THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LAW LTBRAKT Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. (^ succinct efafcmenf of fearing principfes in 6facft; feffcr f^pc. 2. (^ more crfen^e^ commcnfarg, cfuci^afing f^e principfes. 3- (Uotce an^ aut^orittce. Publifhcd In regular octavo foim. and sold at the uniform price of 53.75 V^^ tjofume, incfu^ing ^efttjerg. A' or ton on Bills and N^otes. (sd Edition. ) Clark's Critninal Law. Shipnian's Cotnmon-La^c Pleadni'^ (2d Edition ) Clark on Contracts. Black's Constitutional Laiv. (2 a Edition.) Better on Equity. Clark on Criminal Procedure. Tiffany on Sates. Glenn's International Law. Jai:^^s;ard on Torts. (2 vols. ) Black on Interpretation of La7vs. Ha e 071 Bailments and Carriers. Smith's Elevientary Law. 14 Haie on Damages. 1 5 Hopkins on Beat Property. 16. Hale on Torts. 17. Tiffany oti Persons and Domestic Relations. 18. Cios7vell on Executors and Administrators. 19. Clark on Corporations. 20 Geori^e on Partriership. 21. Shipman on Equity Pleading. 22. A'/cKeivey on Evidence. 2\ Barrows on Nci^lis^ence. In preparation: Hana books of the laiv on other subjects to be announced ,atcr. (|:u6ri6^2^ cin^ for eafc 6g nreet (pu6fie?tng Co., ^i. (pauf, (UXinn. E810 HANDBOOK ON THE LAW OF DAMAGES BY WILLIAM B. HALE, LL. B. Author of "Bailments and Carriers" St. Paul, Minn. WEST PUBLISHING CO. Copyright, 1896, BY WEST PUBLISHING COMPANY. To MY FATHER AND MOTHER This book is affectionately dedicated. (lil/* GG8i;j5 PREFACE. TLo nnthoi''s object in the present work, th; preparation of which has occupied a large portion of his time and attention for a period of nearly two years, has been to state, explain, and illustrate with elementary clearness and accuracy all the rules and principles governing the award of damages in civil cases. In view of the limitations of space in a one- volume work, it has been thought best to give the greater prominence to the discussion of the gen- eral principles underlying the whole subject, letting the applica- tion of those principles to special classes of eases fall into a sub- sidiary place. Another reason for this arrangement is that the book is intended as much for the use of students as of practition- ers, and for that purpose it is absolutely essential that the gen- eral and controlling principles of the subject should be fully and clearly explained. These are few, and are easily grasped when explained in logical and connected order; but when presented with a mass of details applicable only to the special case under discussion the difficulties of the subject are largely increased. Much confusion has also been caused by the loose and unscientific use of terms both by law writers and in judicial opinions. This is notably true with regard to nominal damages. That subject has been made almost unintelligible by the lack of consistency and precision in the use of the terms "wrong" and "damage." The no- tions embraced in these words have been very carefully analyzed in the first chapter. The fundamental nature of Icj^al rights and wrongs has been looked at from a new point of view; and while no new theories are advanced, it is hoped that the subject has been made clearer. The question of damages in actions for in juries to land by the erection of permanent structures, upon which the courts are almost hopelessly confused, has also been looked at from the point of view established in the first chapter, and it is I.AW DAM. (V) VI PREFACE. hoped that the results there reached will be helpful. This sys- tematic examination of the principles of damages with reference to fundamental notions has been followed throughout the work. In connection with each principle discussed, numerous illustra- tions have been given to show its various applications. By means of the index and the careful analysis of the subject in the table of contents reference to any desired point is made easy. In conclusion, the author wishes to acknowledge his very sub- stantial obligation to Mr. Tiffany's excellent treatises on "Sales'* and "Death by Wrongful Act." Very free use has been made of these works in the chapters on those subjects. The writer also desires to express his thanks and appreciation of much kind as- sistance and valuable advice from Mr. E. A. Jaggard. July 1st, 1896. W. B. H. TABLE OF CONTENTS. CHAPTER I. DEFINITIONS AND GENERAL PRINCIPLES. Section Page 1. Definition and Nature 1-3 2. The Theory of Damages 3-7 8. Wrong and Damage 7-12 4. Lawful and Unlawful Conduct 12 5. Authorized Conduct 12-15 6-7. Forbidden Conduct 15-19 8-11. Conduct neither Authorized nor Forbidden 19-22 12. Analysis of Legal Wrongs 23 13-14. Classification of Damages 23 CHAPTER n. NOMINAL DAMAGES. 15-17. Definition and General Nature 24^31 CHAPTER III. COMPENSATORY DAMAGES. 18. Definition 32-34 19-20. Proximate and Remote Consequences iu General 34-35 21. Direct and Consequential Losses 35 22-23. Direct Losses 30-3S 24-25. Consequential Losses 39 26. Proximate and Remote Consequential Losses 39—48 27. Consequential Damages for Torts 48 28. Consequential Damages for Breach of Contract 48-64 29. Avoidable Consequences 64-70 30. The Required Certainty of Damages 70-72 31. Profits or Gains Prevented 72-77 LAW DAM. (vii) Vlll TABLE OF CO.NTENl'S. Section Page 32. Entirety of Demand 77-78 33. Time to Whicli Compensation may be Recovered— Past nml Future Losses 78-80 34-35. Elements of Compensation 86-87 30. Pecuniary Losses 87-91 37-38. Physical Pain and Inconvenience !)l-92 39--t0. Mental Suffering 02-107 41. Aggravation and Mitigation of Damages 107-113 42. Reduction of Loss 114-117 43. Injuries to Limited Interests llS-121 CHAPTER IV. BONDS, LIQUIDATED DAMAGES, AND ALTERNATIVE CONTRACTS. 44. Penal Bonds 122-123 45—17. Liquidated Damages and Penalties 123-127 4S-57. Rules of Construction 127-141 58. Alternative Contracts 141-143 CHAPTER V. INTEREST. 59. Definition 144 CO. Interest as a Debt and as Damages 145-151 61. General Rule 151-152 02. Interest on Nonpecuniary Losses 152-153 03. Pecuniary Losses— Liquidated Demands 153-157 64. Pecuniary Losses— Unliquidated Demaiuls 157-100 05. Contracts 100-102 66-67. Torts 102-107 08. Condemnation Proceedings 107 69. Defendant not Responsible for Delay 168 70. Interest on Overdue Paper— Contract and Statute Rate 168-171 71. Compound Interest 171-175 CHAPTER VI. VALUE. 72. Definition 170 73. How Estimated 176-178 TABLE OF GOXTENTS. IX Section Page 74-75. :Market Value 178-182 76. Value Peculiar to Owner 182-183 77-78. Pretium Affectionis 183-185 79. Time and Place of Assessment 185-186 80. Highest Intermediate Value 186-195 81-82. Medium of Payment— Legal Tenders 195-199 CHAPTER VII. EXEMPLARY DAMAGES. 83-84. In General 200-200 85-86. When Kecoverable 207-217 87. Liability of Principal for Act of Agent 217-220 CHAPTER Vm. PLEADLXG AND PRACTICE. 88. Allegation of Damage— The Ad Damnum 221-223 89-91. Form of Statement 223-227 92-93. Province of Court and Jury 227-236 CHAPTER IX. BREACH OF CONTRACTS FOR SALE OF GOODS. 94-90. Action by Seller— Where Property has not Passed— Damages for Nonacceptance 237-239 97. Where Property has Passed— Damages for Nonpayment. .240-241 98-99. Action by Buyer— Damages for Nondelivery 241-240 100. Damages as for Conversion : . .240-247 lOL Damages for Breach of Warranty 247-250 CHAPTER X. D.\M.\GES IN ACTIONS AGAIN.ST (".\!JKI1:RS. 102-10.^. Carriers of Goods— Damages for Refusal to Transport 251-252 lot. Damages for Loss or Nondelivery 252-254 105. Damages for Injury in Transit 254^255 KK; 107. Damages for Dilay 255-256 TABLE OF" CONTENTS. Cectlon Page lOS. Consequential Damages 'J.")G-257 109. Carriers of Passengers— Damages for Injuries to Passenger.. 257-259 110. Exemplary Damages and Mental Suffering 239-200 111. Personal Injury 2G0 112. Failure to Carry Passenger— Delay 2G0 113. Failure to Carry to Destiuation— Wrongful Ejection 2G1-263 CHAPTER XI. DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES. 114. Public Nature 2G4r-265 115. Action by Sender 2(!5-2G6 116. Action by Receiver 2UG-267 117-118. Compensatory Damages 2U7-268 119. Proximate and Certain Damages 2t>S-276 120. Remote and Speculative Damages 277-282 121. Damages not within Contemplation of Parties— Notice of Purpose and Importance of Message 282-289 122. Messages not Understood— Cipher Messages 289-293 123. Avoidable Consequences 293-295 124. Exemplary Damages 295-296 CHAPTER XII. DAMAGES FOR DEATH BY WRONGFUL ACT. 125. The Rule at Common Law 297-300 126. Damages in Statutory Action— Pecuniary Loss 300-301 127. No Damages for Solatium 301-304 128. Exemplary Damages 304-^06 129. No Damages for Injury to Deceased 306--308 130. Medical and Funeral Expenses 308-309 131. Meaning of "Pecuniary" 309-310 132. Prospective Pecuniary Losses 310-311 1.33. Future Care and Support .311-317 134-135. Future Services 317-328 136. Prospective Gifts 328-334 137. Prospective Inheritance 334-337 138. Evidence of Pecuniary Condition of Beneficir.riL's 33S-339 139. Expectation of Life— Life T:il)h>s 33;)-340 1 10. Interest as Damages 341 141. Reduction of Damages 341-C43 TABLE OF CONTENTS. XI toeciion Page 142. Discretion of Jury r;4:i-347 143. Nominal Damages :i4S-34r> 144. Allegation of Damages 349-oul CHAPTER Xm. WRONGS AFFECTING REAL PROPERTY. 145-147. Damages for Detention of Real Property .352-355 148. Damages for Detention of Dower 355-356 149-150. Injuries to Real Property— Trespasses 357-360 151-152. Nuisance 361-363 153-154. Waste 363 155. Contracts to Sell Real Property— Breach by Vendor 304r-366 156. Breach by Vendee 306-367 157. Breach of Covenants— Seisin and Right to Convey 367-36S 158. Warranty and Quiet Enjoyment 36S-369 159. Against Incumbrances 369-371 160. Covenants in Leases 371 CHAPTER XIV. BREACH OF MARRIAGE PROMISE. 161. ' In General 372 162. Compensatory Damages 372-378 163. Exemplary Damages 378-379 t HANDBOOK LAW OF DAMAGES. CHAPTER I. DEFINITIONS AND GENERAL PRINCIPLES. 1. Definition and Nature. 2. The Theory of Damages. 3. Wrong and Damage. 4. Lawful and Unlawful Conduct. 5. Authorized Conduct. 6-7. Forbidden Conduct. 8-11. Conduct neither Authorized nor Forbidden. 12. Analysis of Legal Wrongs. 13-14. Classification of Damages. DEFINITION AND NATURE. 1. Damages are the pecuniary reparation -which the law compels a w^rongdoer to make to the person in- jured by his wrong. Wherever the comDion law recognizes a right, it also gives a rem- edy for its violation.^ "Ubi jus, ibi remedium." "Eight" and "rem- edy" are correlative terms. Remedies are either preventive of threatened wrongs, or redressive of wrongs committed. Redressive remedies may afford specific relief, as where one is compelled to do the very thing he agreed to do ; or they may afford merely a pecun- 1 3 Bl. Comm. p. 123, c. 8; Ashby v. While, 1 Salk. VJ, 21; Yates v. Joyce, 11 Johns. 13(5. 140. LAW DAM. 2 DEFINITIONS AND GENERAL PRINCIPLES. (Cll. 1 iai'j reparation, as where a money award is given in lieu of the thing agreed to be done. Common-law remedies, with few exceptions,^ are of the latter kind. For most wrongs, an award of a pecuniary recompense is the sole remedy afforded. Equity may prevent threat- ened wrongs by injunction, or afford specific relief; but at common law almost the sole power of the court is to make and enforce a money judgment.^ The niles by which the amount of money or damages to be awarded in particular cases is determined constitute the law of damages, and form the subject of the present volume. These rules form a branch of the remedial law, and in the following pages their application always presupposes a violation of a right given or recognized by the law substantive. Damages a Species of Property. The right to recover damages for an injury is a species of prop- erty, and vests in the injured part}'^ immediately on the commission of the wrong.* It is not the subsequent verdict and judgment, but the commissicm of the wrong, that gives the right. The verdict and judgment simply define its extent. Being propertj', it is pro- tected by the ordinary constitutional guaranties.^ Except when the wrong is a personal tort, or the breach of a marriage promise, - Repleviu. detinue, ejectment, proceedings to recover dower, abatement of nuisance, quo warranto, mandamus, prohibition, habeas corpus, estrepement, and the obsolete brevia anticipantia. See 1 Co. Litt. 100a; Stoiy, Eq. Jur. §§ 730, 825. 3 In Robinson v. Bland, 2 Burrows, 1077-lOSU, an action for nonpayment of money. Lord Mansfield said: "A.lthough this be nominally an action for dam- age, yet it is really and effectually brought for a specific performance of the contract; for pecuniary damages upon a contract for the payment of money are, from the nature of the thing, a specific performance." 4 2 Bl. Comm. 438; 1 Suth. Dam. § 7; 1 Sedg. Dam. § 5. B Cooley, Const. Lim. {5th Ed.) 445; Streubel v. Railroad Co., 12 Wis. 74; Westervelt v. Gregg, 12 N. Y. 202, 211; Dash v. Van Kleeck, 7 Johns. 477; Thornton v. Turner, 11 Minn. 33G (Gil. 237); Williar v. Association, 45 Md. 546; Griffin v. Wilcox, 21 Ind. 370; Chicago, St. L. & N. O. R. Co. v. Pounds, 11 Lea, 127; Thirteenth & F. St. P. Ry. v. Boudrou, 92 Pa. St. 475, 482. It cannot be extinguished except by act of the parties, or by operation of stat- utes of limitation. Bowman v. Teall, 23 Wend. 300; Allaire v. Whitney, 1 Hill, 484; Whitney v. Allaire, 1 N. Y. 305; Christiansen v. Linford, 3 Rob. (N. Y.) 215; Bayliss v. Fisher, 7 Bing. 153; Willoughby v. Backhouse, 4 DowL & R. 539, 2 Barn. & C. 821; Clarke v. Meigs, 10 Bosw. 337. § 2) THE THEORY OF DAMAGES. 3 it passes to the injured party's personal representative, and is as- signable.' THE THEORY OF DAMAGES. 2. The theory upon Tvhich damages are a-warded in civil actions is that they are an indemnity to the person injured, not a punishment to the -wrongdoer. EXCEPTION — Where a tort is accompanied by circum- stances of fraud, gross negligence, malice, or op- pression, exemplary damages are sometimes aw^ard- ed as a punishment to the offender. ■Compensation the Rale. Compensation is the fundamental and all pervasive principle gov- erning the award of damages.^ Compensation, not restitution, value, G Final v. Backus, IS Mich. 218; Sears v. Conover, *42 N. 1'. 113; Nortli v. Turner, 9 Serg. & R. (Pa.) 244; Johnston v. Bennett, 5 Abb. Prac. (N. S.) 331; Butler V. New York & E. R. Co., 22 Barb. 110; Zabriskie v. Smith, 13 N. Y. 32?; Haight v. Hayt, 19 N. Y. 4&4; Richtmeyer v. Remsen, 38 N. Y. 20(3; Pur- ple V. Hudson R. R. Co., 4 Duer, 74; Zogbaum v, Parker, 66 Barb. 341; Wal- dron v. Willard, 17 N. Y. 466; Grocers' Nat. Bank v. Clark, 48 Barb. 26; Mc- Kee V. .Tudd, 12 N. Y. 622; McDougall v. Walling, 48 Barb. 364; Fried v. New York Cent. R. Co., 25 How. Prac. 285; Rice v. Stone, 1 Allen, 566; Muusell V. Lewis, 4 Hill, 635; Robinson v. Weeks, 6 How. Prac. 161; Jordan v. Gillcu, 44 N. H. 424; Grant v. Ludlow's Adm'r, 8 Ohio St. 1; Foy v, Troy & B. R. Co., 24 Barb. 382; Smith v. New York & N. H. R. Co., 28 Barb. 6i)5; Blakeney v. Blakeney, 6 Port. (Ala.) 109; Nettles v. Barnett, 8 Port. (Ala.) 181; Hoyt V. Thompson, 5 N. Y. 820, 347; Nash v. Plamilton, 3 Abb. Prac. 35; The Sarah Ann, 2 Sumn. 206, Fed. Cas. No. 12,342; Meech v. Stoner, 19 N. Y. 26; Linton v. Hurley, 104 Mass. 353. See Barnard v. Harrington, 3 Mass. 228. 7 Filliter v. Phippard. 12 Jur. 202, 204, 11 Adol. & E. (N. S.) 347, 356. "Tne declared object of awarding damages is to give compensation for pecuniary loss; that Is, to put the plaintiff in the same position, so far as money can do it, as he would have been if the contract had been performed or the tort not committed." Sedg. Dam. § 30; Smith v. Sherwood, 2 Tex. 460; Grillin V. Colver, 1(5 N. Y. 4S9, Mechem, Cas. Dam. 74; Robinson v. Ilarmau, 1 Exch. 850. "In general, the rule for the measure of damages in cases or tort m.Ty be said to be that which aims at actual compensation for the injury. ♦ * <• There are qualifications, however; as that inadvertent or unintentional injuries or acts, unaccompanied with malice, draw after them only their direct and Immediate conse(inences, and not those remote and speciiLilivc; while grossly 4 DEFINITIONS AND GENERAL PUIXCIPLES. (Cll. 1 not cost, is the measure of relief.^ Whether the action be ex con- tractu or ex delicto, the end in view is the same, — that plaintiff be made whole. "In civil actions the law awards to the party injured a just indemnity for the wrong- which has been done him, and na more, whether the action be in contract or tort. Except in those special cases where punitory damages are allowed, the inquiry must always be, what is an adequate indemnity to the party injured ? And the answer to that question cannot be affected by the form of action in which he seeks his remedy." ^ Indemnity is achieved, in the eye» of the law, by awarding plaintiff a money judgment. Practically,, an injured party seldom receives complete indemnity. All injuries are not pecuniary, and many are difficult to estimate in money. No amount of money is adecjuate to compensate one for the loss of a limb or an eye. Their value cannot be estimated in mone3^ But, in the nature of things, a money award is the only redress the law ran offer. Proximate and Remote Consequences. Though compensation is the theory and aim of the law in award- ing damages, every consequence of a wrong is not an element in the calculation of what is legal compensation. A person wronged can recover compensation only for the direct or proximate consequences of the wrong. To hold one liable for all the consequences of a negligent or malicious acts may be tlie subject of large damages." Agnew -i- in Seely v. Alden, Gl Pa. St. 302, 304. See, also, Forsytli v. Wells, 41 Pa. St. 291; Woodman v. Nottingham, 49 N. H. 387. "The injured party must be indemnified. He must be placed in the same situation in which he would' have been had the wrong not been committed." Duer, .1., in Suydam v. Jen- kins, 3 Sandf. 614, 620. 8 Pol. Torts, c. 5, citing Whitham v. Kersliaw, 10 Q. B. Div. 013. See, also. Snell V. Delaware Ins. Co., 4 Dall. 430; Quinn v. Van Pelt, 56 N. Y. 417. Cf. Waters v. Greenleaf-Johnson Lumber Co., 115 N. C. 048, 20 S. E. 718. 9 Baiier v. Drake, 53 N. Y. 211, 220. In an action for breach of contract of carriage, "what the passenger is entitled to recover is the difference between wliat he ought to have had and what he did have." Hobbs v. Railroad Co., L. R. 10 Q. B. Ill, 120. See, also, Wall v. City of London Real Property Co... L. R. 9 Q. B. 249. Damages for breach of contract is not limited by the con- sideration paid. Quinn v. Van Pelt, 56 N. Y. 417; Bennett v. Buchan. 01 X. Y 222. § 2) THE THEORY OF DAMAGES. * 5 wrongful act "would set society on edge, and fill the courts with useless and injurious litigation." ^° A rule of damages which should embrace within its scope all the consequences which might be shown to have resulted from a failure or omission to perform a stipulated duty or service would be a seri- ous hindrance to the operations of commerce, and to the transaction of the common business of life. The effect would often be to im- pose a liability wholly disproportionate to the nature of the act or service which a party had bound himself to perform; and to the com- pensation received. ^^ For example, consider the consequences of a failure to pay money when due, "It may bring pecuniary embar- rassment to the payee, and subject him to extortion from usurers; loss of valuable and profitable contracts and undertakings, — pro- spective gains and profits; to the importunity of creditors; suits at law and in ecfuity; and consequent costs and expenses; and, finally, bankruptcy and pecuniary ruin. It may cause not only loss of business, but of reputation, of comfort, peace of mind, and happi- ness. And, moreover, it may cause suffering, sickness, insanity, and destroy the social standing and relations, not only of himself, but of his family. But these possible, nay, perhaps, common, re- sults, are too remote and intangible to be considered as legal losses resulting from the nonpayment of money Avhen due. The task of Investigating such results, and fixing a pecuniary value on them, would be hopeless. And, if it were possible, the liability for such remote consequential losses would appall the most heroic and par- alyze the energies of the most enterprising business man." ^- The lav,- therefore limits liability for consequences to the direct or prox- imate results of the act complained of.^^ "Causa proxima et non remota spectatur." Any other rule would result in wrong and injustice. There is a point beyond which the chain of causation cannot be traced with any degree of certainty. "To the proximate cause we may usually trace consequences with some degree of as- 10 Fleming v. Beck, iS Pa. St. 30'J, 313. li Squire v. Western Union Tel, Co., 98 Mass, 232; Cuttiuy v. Grand Trunk Ry. Co., 13 Allen, 381; Fox v. Harding, 7 Cush. 51U; Le Peiutur v. Southeast- ern Ry. Co., 2 Law T. (N. S.) 170. 12 Field. Dam. § 211. 13 Add. Torts, C. S<-<-, :ilsu, jMist, :;i. 6 DEFINITIONS AND GENERAL PRINCIPLES. (Ch. 1 surance; but beyond that we enter a field of conjecture, where the uncertainty renders the attempt at exact conclusions futile." ^* Exemplary Damages. The allowance of anything more than an adequate pecuniary in- demnity for a wrong suffered is a great departure from the principle on which damages in civil actions are awarded; ^^ but the case of aggravated torts constitutes a well-recognized exception to the rule. Tn such cases it is thought that the damages are not limited to an amount sufficient to compensate plaintiff for the wrong suffered, bur that a further sum, called "exemplary," "vindictive," or "punitive" damages, may be awarded as a punishment to the offender.^ ^ Ex- emplary damages cannot be recovered for breach of contract,^ ^ with perhaps the single exceptibn of a breach of promise of marriage.^ ^ In many jurisdictions the soundness of the doctrine of exemplary dam- ages is stoutly denied, but the weight of authority is the other way. The doctrine is to be supported, if at all, mainly on the grounds of 14 Cooley, Torts, p. 73. 15 Field, Dam. § 32, note; Milwaukee & St. P. Ry. Co. v. Arms, 91 U. S. 48'.). 16 Thus, in Embleu v. Myers, 6 Hurl. & N. 54, it was held that the jury might take into consideration the motives of the defendant; and, if negligence wag accompanied with a contempt of the plaintiff's rights and convenience, they might give exemplary damages. See, also. Day v. Woodworth, 13 How. 363; Winter v. Peterson, 24 N. J. Law, 524; Hagan v. Providence & W. R. Co., 3 R. I. 88; Dean v. Blackwell, 18 111. 330; Sehindel v. Schiudel, 12 Md. 108; God- dard v. Grand Trunk Ry., 57 Me. 202, Mechem, Cas. Dam. 26; Lucas v. Michi- gan Cent. R. Co., 98 Mich. 1, 56 N. W. 1039, Mechem, Cas. Dam. 12. 17 In Singleton's Adm'r v. Kennedy, 9 B. Mon. (Ky.) 222, it was expressly held that vindictive damages could not be given for a fraudulent breach of con- tract. 18 Southard v. Rexford, 6 Cow. 254, Coryell v. Colbaugh. 1 N. .7. Law, 90; Stout v. Prall, Id. 93; Denslow v. Van Horn, 16 Iowa, 476; Berry v. Da Costa, L. R. 1 C. P. 331; Green v. Spencer, 3 Mo. 318; Hill v. Maupin. Id. 32.3; Chel- 11s V. Chapman, 125 N. Y. 214, 26 N. E. 308. See, also, Baldy v. Stratton, 11 Pa. St. 316, 322, in which it was held by Rogers, J., that "it would be a mere mockery of justice to confine the jury to give compensation merely for the value of a worthless husband." In Thorn v. Knapp, 42 N. Y. 474, it was held that, as to the measure of damages, an action for breach of promise of mar- riage has always been classed with actions of torts, and that the defendant's motives might be inquired into as furuishiug grounds for punitive damages. § 3) WRONG AND DAMAGE. 7 authority and convenience. The subject will be fully considered in a subsequent chapter.^® Damages a Mixed Question of Law and Fad. The extent of the loss caused by a wrong, and therefore the quan- tum of damages necessary to indemnify the party injured, is a ques- tion of fact, but it is not left to the arbitrary discretion of a jury. The rule by which the amount or extent of redress should be ascer- tained in any given case is a question of law,-" and the jury are bound by the rule laid down by the court.^^ In cases where exem- plary damages are considered proper, and those cases of personal torts where the damages cannot be measured by any definite pecun- iary standard, because not made up of pecuniary elements, the sound discretion of the jury is the only standard possible; -- and even in this class of cases, though the jury have a large discretion, it is not wholly arbitrary, for the court may set aside a verdict which is so unreasonable as to clearly show that it was the result of passion or prejudice.* WRONG AND DAMAGE. 3. Whenever a legal right is violated, and only then, dam- ages may be recovered. Damnum absque Injuria — Injuria sine Damno. The law does not undertake vain or impossible things. It has always recognized that in actual life many losses must go without compensation, and much harm be suffered without redress. Not every damage in fact is damage in law. "There is merely an imper- fect coincidence between the spheres of things hurtful in fact and things hurtful in law; the sphere of the latter being smaller than, and included in, that of the former. This distinction is exj)ri>ssi'(l in the technical language of English lawyers by the pair of con- trasted terms 'damnum' and 'injuria,' — the former comprising tluit which is hurtful in fact; the Intloi-, thnt \\hicli is wroiigfiil in hnv. i« See post. 200. 20 See post, 227. »» See post, 227. 22 See post, 229. * See post, 2:'.(). 8 DKFINITIOXS AND GENKRAL PKlXCirLES, (Cll. 1 The space throughout which the sphere of the former fails to coin- cide with that of the hitter is the domain of what is technically known as 'damnum absque injuria' " ^^ To sustain an action for damages, the violation of a legal right must be shown.-* For every violation of a legal right damages may be recovered.^ "^ This is necessarily so, for, as has been seen, an award of damages is substantially the only remedy of the common law; and, if damages could not be recovered for the violation of every legal right, there would be rights without remedies, and '*it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal." ^® "Eights and duties, so called, existing beyond the limits of legal remedy, may be matter of enlightened curiosity, and moral and metaphysical speculation, but 2 3 Salmond, Jur. 160. 24 Webb V. Portland Manuf g Co., 3 Sumn. ISO, Fed. Cas. No. 17,322, and Meohem, Cas. Dam. 3. "A legal right must be invaded in order that an action of tort may be maintained. The mere fact that a complainant may have suf- fered a damage of the kind which the law recognized is not enough. There must also be a violation of a duty recognized by law. In the language of the civil law, mere damnum is not enough; there must also be injuria." Jag. Torts, 87. "You must have, in our law, injury as well as damage." Jessell, M. E.. in Day v. Brownrigg. 10 Ch. Div. 294 (304). See, also. Backhouse v. Bonomi, 9 H. L. Cas. 503; Salvin v. Coal Co., 9 Ch. App. 705. It is an es- sential to an action in tort that the act complained of should, under the cir- cumstances, be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right. :Merely that it will, how- ever, do a man harm in his interest, is not enough. Rogers v. Rajendro, 13 Moore, P. C. 209. "At the foundation of every tort, there must be some vio- lation of a legal duty, and therefore some unlawful act or omission." Rich v. New York Cent. & H. R. R. Co., 87 N. Y. 382. "The violation of a moral right or duty, unless it also amounts to a legal right or duty, does not constitute a tort." Chase, Lead. Cas. 8; 1 Aust. .Tur. lect. 5, "Conflict of Law and Moral- ity"; Rex v. Smith, 2 Car. & P. 449. "It is not every moral and social duty the neglect of which is the ground of an action; for there are what are called, in the civil law, 'duties of imperfect obligation,' for the enforcing of which no action lies." Lord Konj-on, C. J., in Pasley v. Freeman, 3 Term R. 51, 63. 2 5 Webb V. Portland Manuf g Co., 3 Sumn. 189, Fed. Cas. No. 17,322, and Mechem, Cas. Dam. 3. 2 6 Lord Hold in Ashby v. White, 2 Ld. Raym. 955. ^ 3) WRONG AND DAMAGE. 9 they are not violations of common law." ^"^ It is necessary, there- fore, to determine the exact nature of legal rights. Same — Legal Rights and Wrongs. Governments exist for the benefit of the governed, and this benefit is afforded in the establishment and protection of rights.-* Every law exists for the purpose of establishing and protecting legal rights.-'' A legal right is a right with which the law invests one person, and in respect to which, for his benefit, a duty is imposed on another or others to do or refrain from doing certain acts.^° Rights -and duties are correlative and coexistent terms. Sometimes the right is given, and sometimes the duty is created. Whenever a right is given, the corresponding duty at once arises; whenever a duty is created, a corresponding right springs into existence. "Vio- lation of right" and "breach of duty" are equivalent terms.^^ The one fundaotiental right of which all men are desirous, and "for the enforcement of which governments are established, is the right not to be harmed in any respect which affects their being and well-being, their happiness, and immunity from pains. In our sys- tem of law, speaking broadly, this right not to be harmed takes the form of the common-law command not to injure another in re- spect to his person, his property, or his reputation."- This is the d'.ity imposed on all members of the community, and the correlative rights arise in each member not to be injured in respect to his se- curity of person, his security of reputation, and his security in the acquisition and enjoyment of property. Rights which cannot be re- ferred to one of these three classes have no legal existence. For example, the law has not created a right to privacy; and therefore an action for damages for the invasion of privacy by opening win- dows was dismissed. Defendant, by overlooking plaintiff's prop- erty, violated no legal right of the plaintiff, because a right to pri- vacy is unknown-^* So, also, the law has not created a right to 27 Ammicau note to Co{,'!,'s v. Bernard, 1 Smitli, Lead. Cas. Eq. 411. 2 8 Cooley, Torts, 23. 20 Holl. Jur. c. S; Wise, Jur. 20. 30 Aust. Jur. lect. IG. See, also, loct. 0. 31 Pig. Torts, 10. 2 2 Pig. Torts, 10; Cooley, Torts, 2:',. 33 Tapliug V. Joae.s, 11 II. L. Cas. 2U0. 10 DEFINITIONS AND GENERAL PRINCIPLES. (Ch. 1 mental tranquillity, and th(M-ofore no action lies for causing fright or nervous terror, unaccompanied by physical harm.^* A mere insult^ however gross, is not actionable.* It is obvious that, even with respect to person, property, and repu- tation, the right not to be harmed cannot exist to the full extent of the above broad statement of the right; for, as every member of the community has the same right not to be harmed, the rights of differ- ent individuals would clash. Thus, the right of one to do what he likes on his own property, which is a part of his right not to be harmed in respect to his property, may conflict with the right of another not to be harmed in respect to his property. Each one's right not to be harmed, therefore, must be limited so as to allow^ of the equal exercise by others of their rights. It follows that harm may sometimes be inflicted without violating a legal right, for all harm is not prohibited. In other words, w'hile damage or harm is an essential element, mere damage alone does not constitute a legal wrong.^^ While the primary object of law is to prevent harm, and all legal rights may be resolved into the right not to be harmed, the fact that conduct results in damage or harm is not conclusive that such con- duct is wrongful in law; for, as has been seen, the law^ does not for- bid all damage. There has been much confusion of thought in re- gard to the terms "damnum" and "injuria," which may be avoided by careful definition and consistent use of the terms. Thus, it is said that no action lies for damnum absque injuria; and this, as has been seen, is true, the phrase being translated "actual damage with- out legal wrong." ^^ But the converse of this proposition is also stated, — that no action lies for injuria sine damno. Translating, as before, we have the proposition that "for a legal wrong without actual damage no action lies," which is untrue. As has been seen, 3* Atchison, T. & S. F. R. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453; Terre Haute & I. R. Co. v. Brunker, 12S Ind. 542, 26 N. E. 178; Canning v. Inhab- itants of Williamstown, 1 Cush. 451; Ft. Worth & D. C. Ry. Go. v. Burton (Tex. App.) 15 S. W. 197; Gulf, C. & S. F. Ry. Co. v. Trott, 86 Tex. 412. 2.5 S. W. 419; Ewing v. Railway Co., 147 Pa. St. 40. 23 Atl. 340. Cf. Yoakum t.. Kroeger (Tex. Civ. App.) 27 S. W. 953. * By Code, Va. § 2897, insulting words are made actionable. 8B See ante, note 24. 8 6 Ante, p. 7. § 3) WRONG AND DA5IAGE. li to denv the remedy is to deny the right which has been violated." Again, substituting for "legal wrong" its equivalent, we have the proposition that "for the violation of a right not to be harmed, with- out actual damage, no action lies," which is sheer nonsense. It is objected that damage is not always an essential element of a legal wrong, because many wrongs are admitted to exist for which an action may be maintained, though no damage has resulted. Thus, one is liable for trespass if he merely walks across another's field, though he does absolutely no damage; ^^ and one who breaks a contract is liable in damages, though the breach actually results in a benefit to the other party.^^ It is equally clear that in many cases conduct is not actionable, i. e. wrongful in law, unless followed by damage. Thus, negligence is not actionable, unless it results in damage.*" It is therefore sometimes said that there are two kinds of wrongs, according as damage is or is not an essential element, and two kinds of rights corresponding, — absolute rights and the right not to be harmed.*^ It has been well said that uo more unsatisfac- 3 7 Ante, p. 8. 3 8 "So a man shall have an action against another for riding over his ground, though it do him no damage; for it is an invasion of his property, and the other has no right to come there." Holt, C. J., in Ashby v. White, Ld.. Uaym. 938. 955. "There is no doubt that a right of action accrues whenever a person interferes with his neighbor's rights, as, for example, by stepping on his land; * * * and this though no actual damage may result." Jb^rle, C. J., in Smith v. Thackerah, L. R. 1 G. P. 5G4, 5UG. See. also, Dixon v. Clow, 24 Wend. 188; McAneany v. .Tewett, 10 Allen, 151; Carter v. Wallace, 2 Tex. 20U. 3 9 Hibbard v. W. U. Tel. Co., 33 Wis. 558. For the technical breach of a bond, though without damage, nominal damages may be recovered. State v. Reinhardt, 31 Mo. 95. Though a trespass result in benefit, instead of damage, plaintife is entitled to recover. Jewett v. Whitney, 43 Me. 242; Jones v. Hnn- novan, 55 Mo. 402; Murphy v. Fond du Lac, 23 Wis. 305. •*o "Mere negligent driving in itself, if accompanied by no injury to the plaiu- tiff, was not actionable at all, for it was not a wrongful act at all till a wrong arose out of the damage which it caused " Brunsdon v. Humphrey. 14 Q. B. Div. 141, 1.50. ■*! Mr. .Jaggard says in his work on Torls, at page 80: "The simple truth i.s that sometimes plaintiff can recover when lie has not shown damage, and sometimes he cannot. On the one hand, mere damage may not constitute a cause of action, in the absence of violation of duty. On the other hand, mere violation of duty may not constitute a cause of action, in the absence of d.-ini- age. There may be no such thing as a li-g.-ii wrong without d.'image, l)ut 12 DEFINITIONS AND GENERAL PRINCIPLES. (Ch 1 torj distinction could be devised.*^ The true solution of the diffi- culty is to be found in the principle of presumption of damage. "In some cases, from the very nature of the case, the law conclusively presumes damage; that is, the plaintiff is not put to the trouble of proving it. In other cases the law does not presume damage; that is, the plaintiff is required to prove its existence. This being so, the right, as we have already pointed out, is, in all cases, not to be injured ; in my person, my reputation, or my property, as the case may be." *^ Accurately speaking, there is no such thing as injuria sine damno,** because injuria imports damnum.*^ Whenever a legal right is violated, damage is necessarily done. LAWFUL AND UNLAWFUL CONDUCT. 4. For the purpose of determining -wrhat conduct is action- able, — i. e. -wrongful in law, — conduct may be di- vided into three classes: (a) Authorized conduct (p. 12). (b) Forbidden conduct (p. 15). (c) Conduct neither authorized nor forbidden (p. 19). SAME-AUTHORIZED CONDUCT. 6. Damage necessarily incident to authorized conduct does not constitute a cause of action. It is damnum absque injuria. For the benefit of society at large, and to prevent a clash between rights of individuals, certain conduct is expressly authorized by law. sometimes there cannot be a legal wrong unless there has been damage. In some cases the law presumg^s damage, and in some cases damages must be proved. In other words, there are two kinds of rights, — one, a simple right, the infringement of which is, in the absence of exceptional circumstances, neces- sarily actionable; the other is a right not to be harmed, the violation of which is actionable only when harm is suffered." 4 2 Pig. Torts, 126. 43 Id. 4* Salmond, Jur. 1G9; Innes, Torts. 4 5 Webb V. Portland Manuf'g Co., 3 Sumn. 189, Fed. Gas. Xo. 17,322. § 5) AUTHORIZED CONDUCT. 13- Damage necessarily caused by such authorized conduct will not sup- port an action. It is damnum absque injuria. Its infliction is not a legal wrong.* ° Conduct may be authorized either by statute or by common law. For damage resulting from the proper exercise of statutory authority no action lies.*' Thus, annoyance from noise, smoke, and disturbances necessarily attending the operation of a rail- road under its franchise, and its interference with property, is dam- num absque injuria;*® but, if the road be operated without au- thority, liability attaches.*^ So, also, where a local nuisance is authorized by statute, its maintenance is not actionable.^" The common law authorizes many acts which harm another. Harm nec- essarily caused by the exercise of one's ordinary rights will not sup- port an action. For example, damage consequent upon competition in trade is not actionable, for every one is authorized to engage in 4c Jagg. Torts, p. 139 et seq., exhaustively collecting and discussing cases. 47 Managers v. Hill, L. R. 6 App. Cas. 193; Gaslight & Coke Co. v. Vestry of St. Mary Abbott's, 15 Q. B. Uiv. 1, 5; J. S. Keator Lumber Co. v. St. Croix Boon> Corp., 72 Wis. 62, 38 N. W. 529; Hamilton v. Railroad Co., 119 U. S. 280, 7 Sup. Ct. 20G; Sedalia Gaslight Co. v. Mercer, 48 Mo. App. 644; Beseman v. Pennsylvania R. Co., 50 N. J. Law, 235, 20 Atl. 109; Durand v. Borough of Ansonia, 57 Conn. 70, 17 Atl. 283; Iron Mountain R. Co. v. Bingham, 87 Tenu. 522, 11 S. W. 705; Bell v. Norfolk S. R. Co., 101 N. C. 21, 7 S. E. 407; Jone& V. St. Louis R. Co., 84 Mo. 151; Slatten v. Des Moines Valley R. Co., 29 Iowa. 148, 154; Richardson v. Vermont Cent. R. Co., 25 Vt. 465; Ellis v. Iowa City, 29 Iowa, 229; Hatch v. Vermont Cent. R. Co., 25 Vt. 49; Dodge v. Essex Co., 3 Mete. (Mass.) 380. Perhaps the best illustration of the absence of liability for damages incident to authorized act is to be found in the contrast of Ry- lands V. Fletcher, L. R. 3 H. L. 330, with the Zemindar Case, L. R. 1 Indian App. 304. 48 Atchison & N. R. Co. v. Garside, 10 Kan. 552; Carroll v. Wisconsin Cent. R. Co.. 40 Minn. 108, 41 N. W. 001; Beideman v. Atlantic City R. Co. (N. .7. Ch.i 19 Atl. 731. 4 9 Jones V. Railway Co., L. R. 3 Q. B. 733. BO Fertilizing Co. v. Hyde Park. 97 U. S. 059; Hinchman v. Patterson Horse R. Co., SO Am. Dec. 252; Managers of the Metropolitan Asylum Dlst. v. Hill, 6 App. Cas. 193; Truman v. Railway Co., 29 Ch. Div. 89-108. 11 App. Cas. 45; Biscoe V. Railway, L. R. 16 Eq. 630; Cogswell v. Railroad Co.. 103 N. Y. 10, 8 N. E. .537; Edmondson v. City of Moberly, 98 Mo. 523, 11 S. W. 990; East- man v. Amoskeag Manuf'g Co., 82 Am. Dec. 201; Bancroft v. City of Cam- bridge, 126 Mass. 438. Where a bridge constructed in accordance with legisla- tive auttjority interferes with navigation, the injury to private persons Is dam- 14 DEFINITIONS AND GENERAL PRINCIPLES. CCll. 1 business;" nor does liability attach to the ordinary use of one's property.^- Private persons are sometimes authorized to exercise disciplinary powers. Thus, the master of a ship is not liable for force used in maintaining order and discipline,^^ and parents or persons in loco parentis may enforce discipline by moderate chas- tisement or detention.'* "The rights of necessity are a part of the law.'' ^•'' There is no liability for acts or omissions as to which a person has no option.^ ^ Thus, w hen a highway becomes obstructed uum absque injuria. Hamiltou v. Railroad Co., 115) U. S. 280, 7 Sup. Ct. 2UG; Kliea V. Railroad Co., 50 Fed. 20; U. S. v. North Bloomlield Gravel Min. Co., 5'6 Fed. G27. 51 Gloucester Grammar Scliool Case (1410-11), Y. B. 11 Hen. IV. p. 47, pi. 21; Mogul S. S. Co. v. McGregor, 23 Q. B. Div. 598. See, also, Chasemore v. Richards, 7 H. L. Cas. 349. 5- A blacksmith may operate his forge, aud a merchant his store, without liability, although neighbors thereby suffer annoyance. Doelluer v. Tynan, 38 How. Prac. (N. S.) 1S2; Smith v. Ingersoll Drill Co., 7 Misc. Rep. 374, 27 N. Y. Supp. 907, collecting cases; McGuire v. Bloomingdale, 8 Misc. Rep. 478, 29 N. Y. Supp. 580. 53 The Agincourt, 1 Hagg. Adm. 271-274; Bangs v. Little, 1 Ware, 50G, Fed. Cas. No. 839; U. S. v. Alden, 1 Spr. 95, Fed. Cas. No. 14,427; Cushmau v. Ryan, 1 Story, 91, Fed. Cas. No. 3,515; Turner's Case, 1 Ware, 83, Fed. Cas. No. 14,248; Wilson v. The Mary, Gilp. 31, Fed. Cas. No. 17,823; Michaelson V. Denison, 3 Day (Conn.) 294; Brown v. Howard, 14 Johns. (N. Y.) 119; Sampson v. Smith, 15 Mass. 365; Flemming v. Ball, 1 Bay (S. C.) 3; Mathews V. Terry, 10 Conn. 455; State v. Board of Education, 63 Wis. 234, 23 N. W. 102; Allen v. Hallet, 1 Abb. Adm. 573; Payne v. Allen, 1 Spr. 304, Fed. Cas. No. 10,8.55; Schelter v. York, Crabbe, 449, Fed. Cas. No. 12,446; Jay v. Almy, 1 Woodb. & M. 262, Fed. Cas. No. 7,236; Butler v. McLellan, 1 Ware, 219. Fed. Cas. No. 2,242; Buddington v. Smith, 13 Conn. 334. 54 Cooley, Torts, 197; Johnson v. Slate, 2 Humph. 283; Winterburn v. Brooks, 2 Car. & K. 16. f>5 Respublica v. Sparhawk. 1 Dall. 357-362; Mouse's Case, 12 Coke, 63; Burton v. McClellan, 3 111. 434; American Print Works v. Lawrence, 23 N. J. Law, 604. 5 The destruction of property for the public good is authorized by neces- sity. Case of Prerogative, 12 Coke, 13; Maleverer v. Spinke, Dyer, 36b; Mc- Donald V. City of Red Wing, 13 Minn. 38 (Gil. 25); Bowditch v. Boston, 101 U. S. 16; Metallic Compression Casting Co. v. Fitchburg R. Co., 109 Mass. 277; Hyde Park v. Gay, 120 Mass. 590; Surocco v. Geary, 3 Cal. 70; Amer- ican Print Works v. Lawrence, 23 N. J. Law, 590; Beach v. Trudgain. 2 Grat. (Va) 219; Hale v. Lawrence. 23 N. J. Law. 590. And see Arundel v. Mc- Oulloch. 10 Mass. 70; Campbell v. Race, 7 Cush. (Mass.) 408; Mouse's Case. § 6) FORBIDDEN CONDUCT. 15 find impassable, a traveler is authorized to go on adjoining lands to avoid the obstruction, and hence he is not liable for trespass.^' The law also authorizes one to repel unlawful or dangerous force by force, in the defense of person, property, or possession, whenever there is a real or an apparent necessity, honestly believed to be real, for the defense. For example, where one acting in self-defense accidentally shoots an innocent bystander, he is not liable if guilty of no negligence.^' In all these cases, the act being expressly de- clared to be lawful, the harm necessarily resulting is damnum absque injuria, or "damage without legal wrong." It is the price men pay for the benefits of society. SAME— FORBIDDEN CONDUCT. 6. An action lies to recover damages for forbidden con- duct by the person for -wrliose benefit the conduct ■was forbidden, -without proof that actual damage resulted. The law conclusively presumes damage. 12 Coke, 63; Respublica v. Sparhawk, 1 Ball. 357; Taylor v. Plymouth, 8 Mete. (Mass.) 462. As to statutory changes, see Fisher v. Boston, 104 Mass. 87. "There are mauy cases iu which individuals sustain an injury for which the law gives no action; for instance, pulling down houses, or raising bulwarks for the preservation of the kingdom against the king's enemies. * * * This is a case to which the maxim applies, 'Salus populi suprema lex est.' " Butler. J., in Governor, etc., British Cast Plate Manufacturers v. Meredith, 4 Term R. 794, 797. See, also, 12 Coke, 12, 13; Dyer, 60b; Russell v. Mayor, etc., of City of New York, 2 Denio, 461. And see the opinion of Butler, J., in Tay-' lor V. Whitehead, 2 Doug. 745, 749. Peril to human life may constitute such necessity as will excuse what would otherwise be wrongdoing. Metropolitan Asylum Dist. v. Hill, L. R. 6 App. Cas. 193-205; Eckert v. Long Island R. Co., 43 N. Y. .502; Pennsylvania Co. v. Roney, SO Ind. 453; Clark v. Famous Shoe & Clothing Co., 16 Mo. App. 463. 8 7 Donahoe v. Wabash, St L. & P. Ry. Co., 8.3 Mo. 560; BuUard v. Harrison, 4 Maule & S. 387-393; Campbell v. Race. 7 Cush. (Mass.) 408; Burd. Load. Cas. 136. As to ways of necessity, see Bish. Noucont. Law, 872; Vosscn v. Dautel, 116 Mo. 379. 22 S. W. 734; Camp v. Whitman (N. J. Ch.) 26 Atl. 917; Lankins v. Terwilliger, 22 Or. 97, 29 Pac. 26S. 58 Morris v. Piatt, 32 Conn. 75; Paxtou v. Boycr, 67 111. 132; Scott v. Shop- herd, 2 W. Bl. 892. As to damage caused In trying to avoid missile, see Vallc ■V. United States Kxp. Co., 117 Pa. St. 401, 23 Atl. 5!) I. 16 DEFINITIONS AND GENEUAL PRINcirLES. (Ch. I 7. Where conduct is forbidden for the benefit of the pub- lic, — that is, where a public duty is created, — an individual cannot maintain an action for its breach ^ unless he sustains special damage thereby. For reasons essentially of iniblic policy, to prevent breaches of the peace, and because its necessary or probable effect is damage to some one, the law absolutely forbids certain conduct. A duty is imposed on all members of the community to refrain from such conduct, and the correlative right to have them refrain arises on the part of those for whose benefit the duty is created. These rights correspond to "absolute rights" in the classification of those writers- who divide rights into absolute rights and rights not to be harmed.^®' From their violation, the law conclusively presumes that some dam- age has resulted.*'" In this class of cases therefore, it is sufficient GO It will be convenient to sometimes use the term "absolute rights" to des- ignate the rights corresponding to forbidden conduct. There is no objection tO' the term if it is understood that it merely stands for specialized instances of the right to immunity from harm. 60 "Every injury imports a damage, though it does not cost the party one farthing." Lord Holt, in Ashby v. White, 2 Ld. Raym. 055. "I can veiT well understand that no action lies in case where there is damnum absque injuria; that is, where there is damage done without any wrong or violation of any right of the plaintiff. But I am not able to understand how it can cor- rectly be said (in a legal sense) that an action will not lie even in a case of a wrong or violation of a right, unless it is followed by some perceptible dam- age which can be established as a matter of fact; in other words, that injuria sine damno is not actionable. On the contrary, from my earliest reading 1 have considered it laid up among the very elements of the common law that wherever there is a wrong there is a remedy to redress it, and that every injury imports damage in the nature of it; and, if no other damage is estab- lished, the party injured is entitled to a verdict for nominal damages." Jus- tice Story, in Webb v. Portland Manuf'g Co., 3 Sumn. 1S9, Fed. Cas. No. 17,- 322, and Mechem, Cas. Dam. 3. When it is understood that the right vio- lated is in all cases a right to immunity from harm, it will readily be con- ceded that "every injury imports damage in the nature of it"; but the phrase does not tell us a great deal, for the fact remains that in many cases damage must be proved to show an injury (wrong). The learned judge evidently re- ferred to those absolute or specialized rights which are correlative to a prohi- bition. "Actual, perceptible damage is not indispensable as the foundation of an action; It Is sufficient to show the violation of a right, in which case the law will presume damage; injuria siue damno is actionable." Per Park. B.. §§ 6-7) FORBIDDEN CONDUCT. 17 to simply prove the conduct, proof of damage being relevant with respect to the amount of compensation recoverable, but not with respect to the existence of the cause of action. In all other cases the law indulges in no presumption, but leaves the party complain- ing of a wrong to prove it by showing the presence of both its es- sential elements, — the conduct itself and the resulting damage. Cases of defamation afford a good illustration of the principle under discussion. Damage is such a probable consequence of certain slanderous and libelous statements that the law absolutely forbids them. These statements are said to be actionable per se. Proof of their utterance, without more, is sufficient to sustain an action, for the law presumes the damage.*'" Other false and defamatory statements may cause harm, but the harm is not such a probable or necessary consequence. The law therefore does not specifically forbid such statements, and, to maintain an action therefor, both the words and the resulting damage must be proved.®* Assaults, iu Embfey f. Owen. G Exch. 353; McLeod v. Boulton, 3 U. C. Q. B. 84; Whip- ple V. Cumberland Manuf'g Co., 2 Story, GGl, Fed. Cas. No. 17,510; Basby v. Harris, 9 Ala. 173; Paul v. Slason, 22 Vt. 231; Cory v. Silcox, G Ind. 39; Lit- tle V. Stanback, G3 X. C. 285. S3 Henkle v. Scbaub, 94 Mlcb. 542, 54 N. W. 293; Smith v. Sun Printing i^t Pub. Ass'n. 5 C. C. A. 91, 55 Fed. 240; Wynne v. Parsons, 57 Conn. 73, 17 Atl. 3G2; Newell, Defaui. 181. To accuse one in print of lying is actionable per se. Riley v. Lee, 88 Ky. 603, 11 S. W. 713; Prosser v. Callis, 117 Ind. 105. ' 19 N. E. 735. So to call a man a "skunk," Massuere v. Dickens, 70 Wis. 83, 35 N. W. 349; or a "swindler," Jauson v. Stiiart, 1 Term. K. 74S; Smith v. Stewart, 41 Minn. 7. 42 N. W. 595. 6* Katcliffe v. Evans [1892] 2 Q. B. 524; Daniel v. Now York News Pub. Co., G7 Hun, 649; 21 N. Y. Supp. 8G2; Bradstreet Co. v. Gill. 72 Tex. Ill), 9 S. W. 753; Brown v. Durham, 3 Tex. Civ. App. 244, 22 S. W. 8G8; iianey Manut'g Co. V. Perkins, 78 Mich. 1, 43 N. W. 1073. Defamatory words that harm no one, even if false, are not actionable; as where they were uttered in the pres- ence of the slandered person only, Sliettill v. Van Deusen, l.'J (iray, 304; or in a foreign language, wliich was not understood. Kiene v. Huff, 1 Iowa, 482. Burdick, Lead. Cas. Torts, 215; Warmouth v. Cramer, 3 Wend. 395; Townsh. Sland. & L. (4th Ed.) 94; 1 Starkic. Sland. & L. 3G1. Defamatory words spoken by a lunatic, whose insanity was obvious, or known 1o all llic liearcrs, are not actional)le. Dickinson v. Harbor, 9 Mass. 224-227; Bry.-iiit v. .I:i< k- son, 6 Humph. 199; Yoatos v. Ilof-d, 4 Blackf. 4(>!. So. also, of words spoken or understood as a jost. Donoghiio v. Hayes, 2(;5. Sec, also, Mrodcrick v. Tames, 3 Daly. 481; Myors v. Dresden, 10 Iowa, G(>0; \aii Kons.soliior v. l)f)kv LAW DAM.— 2 18 DEFINITIONS AND GENERAL PRINCIPLES. (Ch. 1 trespasses, and the like are illustrations of forbidden conduct. To enumerate every case in which damages will be presumed "would be to recapitulate the whole corpus juris."®" PuJdic Wrongs. Where a public duty is created, — that is, where conduct is pro- hibited for the benefit of the community at large, — an individual cannot maintain an action for its breach. The remedy is by in- dictment on behalf of the public. The law gives no private remedy for anything but a private wrong.*'" The reason is one of public policy, and is well stated by Lord Coke in regard to public nui- sances.®^ "A man shall not have an action on the case for a nui- sance done in the highway, for it is a common nuisance, and then it is not reasonable that a particular person should have the action, for, by the same reason that one person might have an action for it, by the same reason every one might have an action, and then he would be punished a hundred times for one and the same cause." Where, however, the breach of a public duty results in special and I>eculiar damage to an individual, he may maintain an action, for all the elements of an actionable wrong are present, and no prin- ciple of public policy prevents.®* It devolves upon plaintiff to bring himself within the exception. He must allege and prove that he has suffered special and peculiar damage. The law will not pre- sume it.®® The right to maintain the action does not depend on the number injured, but upon the personal character of the injury.^® 1 Johns. Cas. 279; Chase v. Whitlock, 3 Hill, 139; Sheffill v. Van Deusen, 13 Gray, 304. 6 5 Sedg. Dam. § 98. 68 3 Bl. Ck)mm. 219; 4 BI. Comm. 107; Broom, Leg. Max. 206. «T Williams' Case, 5 Coke, 72. See, also, Iveson v. Moore, 1 Salk. 15. 08 "Where one suffers in common with all the public, altliough from his proximity to the obstructed way, or otherwise, from his more frequent occasion to use it, he may suffer in a greater degree than others, still he cannot have an action because it would cause such a multiplicity of suits as to be itself an intolerable evil. But when he sustains a special damage differing in kind from that which is common to others, as where he falls into a ditch unlaw- fully made in the highway, and hurts his horse, or sustains a personal Iniui'y. then he may bring his action." Proprietors of Quincy Canal v. Newcoiiib. 7 Mete. (Mass.) 270. 6 9 Winterbottom v. Derby. L. R. 2 Exch. 316. ^0 Cooley, Torts, 102; Henly v. Mayor, etc., of Lyme, 5 Bing. 91, 3 Barn. Sc § 8) CONDUCT NEITHER AUTHORIZED NOR FORBIDDEN. 19 'If many persons receive a private injury by a public nuisance, everyone shall have his action." ^^ The nature of the special dam- age pertains rather to the right of action than the measure of dam- ages, and with it we are not specially concerned. SAME— CONDUCT NEITHER AUTHORIZED NOR FORBIDDEN. 8. An action may be maintained for damage caused by conduct which is neither authorized nor forbidden, provided it was (a) Malicious (p. 20), (b) Negligent (p. 21), or (c) Done at peril (p. 21). Between the two classes of conduct expressly authorized by law and conduct expressly forbidden, there is a third class, comprising the great mass of human actions, in which the conduct is neither expressly authorized nor forbidden, and in which liability for con- sequences must be referred directly to the great fundamental right of immunity from harm. This class corresponds to the second division in the classification of rights into absolute rights and rights not to be harmed. In it, damage is never presumed, but must be jtrovtMl, or the violation of a right is not shown. The law, how- (vci-, has not undertaken the impossible task of insuring against nil harm. It recognizes the fact that unfortunate accidents will occur, for which no one is to blame, and wisely and justly, in most cases, leaves him to bear the loss upon whom it has fallen. The law, however, has pursued no consistent theory of liability." Lia- bility is recognized in three classes of cases: (1) Where the conduct was malicious; (2) where the conduct was negligent; and (3) where it was done at peril. In the first two classes, liability attaches on Adol. 77; Nicholl v. Allen, 1 Best & S. 93G; McKiuuon v. Pcnson, 8 Exch. 319; King v. Richards, 8 Term R. G34. -1 Per Holt, C. J., in Aslaby v. White, Ld. Rayra. 9:58. 9^5. See, also, Wil- liams' Case, 5 Coke, 73; Co. Litt. fida; Corloy v. Lancaster, 81 Ky. 171. "2 Jagg. Torts, 48. O. W. Holmes, Jr., in 7 Am. Law Rev. (ir>2; Holmes, Com. Law, 79; Wabash, St. L. & V. Ky. Co. v. Locke, 111* Ind. 4(>», 14 N. i:. 391. 20 DEFINITIONS AND GENERAL PRINCIPLKS, (Ch. I the theory of culpability. In the third class, it attaches on the theory that there is a duty to insure safety. Each class will be considered briefly. 9. MALICIOUS CONDUCT— An action may be maintained for damages caused by an act done intentionally without just cause or excuse. It is a legal wrong lo do willful harm to another without just cause or excuse.'^ If there exists a right of immunity from harm, it is clear that the negative duty of nut doing willful harm must also exist, subject to necessary exceptions. Thus, the prosecution in good faith of a groundless action is not a legal wrong to defend- ant, though he is put to large expense; ^* but, if the action is prose- cuted maliciously and without probable cause, it is a legal wrong. '^ Fraud, deceit, conspiracy, strikes, boycotts, malicious interference with contract, and the like, are examples of conduct wrongful in 7 3 Bo wen, L. J., in Mogul Steamship Co. v. McGregor, L. II. 23 Q. B. oDS, [1802] App. Cas. 25, citing Bromage v. Prosser, 4 Barn. & C. 2i7; Capital, etc.. Bank v. Henty, L. R. 7 App. Cas. 74. This statement avoids the common principles, for example, as in 1 Add. c. 1, § 9, p. 3G (40). "But every malicious act wrongful in itself in the eyes of the law, if it causes hurt or damage to another, is a tort, and may be the foundation of an action." An act wrongful in itself producing damage is naturally actionable. Generally, Jagg. Torts. 555; Clerk & L. Torts, 16; Green v. Button, 2 Cromp., M. & R. 707; Cattle V, Stockton Waterworks Co., L. R. 10 Q. B. 43. An interesting article on the right to so maliciously exercise one's legal rights as to cause damage to oth- ers, and the remedy therefor, 58 J. P. 814. 74 Woodmansie v. Logan, 2 N. J. Law, SO; Muldoon v. Rickey. 10;j Pa. St. 110; Eberly v. Rupp. 90 Pa. St. 259. •^5 In an action for malicious prosecution, malice must be alleged and prove.l. Saxon V. Castle, 6 Adol. & El. 652; Page v. Wiple, 3 East, 314; Vanduzor v. Linderman, 10 Johns. 106. Emerson v. Cochran, 111 Pa. St. 619, 4 Atl. 49.S. Malice is a distinct issue. Smith v. Maben, 42 Minn. 516, 44 X. W. 792; Coop- er V. Hart, 147 Pa. St. 594, 23 Atl. 833. The burden of proving malice is on the plaintiff. 2 Greenl. Ev. § 449; Barton v. Kavanaugh, .12 La. Ann. 332; Mitchell V. Jenkins. 5 Barn. & Adol. 588; Whalley v. Pepper, 7 Car. & P. 506; Walker v. Cruikshank, 2 Hill, 297; Melvin v. Chancy (Tex. Civ. App.) 28 S. \V. 241; Barber v. Scott (Iowa) 60 N. W. 497; ^^■elsh v. Cheek (N. C.) 20 S- E. 4G0; Womack v. Fudikar, 47 La. Ann. 33, 16 South. 615. §11) CONDUCT NEITHER AUTHORIZED NOR FORBIDDEN. 21 law, because of malice and resulting damage. If either is absent, the wrong is not complete.'^ 10. NEGLIGENT CONDUCT — An action may be main- tained for damage caused by negligent conduct. The law imposes the general duty of exercising due care to avoid harm. Whenever damage results from a failure to exercise such care, a legal wrong is committed. Negligence which does not re- sult in damage is not wrongful in law\ "Mere negligent driving in itself, if accompanied by no injury to the plaintiff, was not ac- tionable at all, for it was not a wrongful act at all till a wrong arose out of the damage which it caused.'' ^^ The principles in- volved in this class of cases are too familiar to require discussion here.'^^ 11. CONDUCT AT PERIL— An action may sometimes be maintained for damage caused by conduct -which is neither malicious nor negligent. The duty to avoid harm is regarded as absolute. "Perhaps the commonest conception of liability in tort is expressed by the classical phrase that a man acts at his peril. He insures the world against w'rong on his part. The duty to avoid harm to others is regarded as absolute. Breach of that duty, and conse- quent damage, are sufficient to create responsibility without refer- ence to his mental attitude; that is, his consciousness or inten- tion. This view of the law had its origin in the early Germanic conceptions of liability. These conceptions inclined to the posi- tion that, whenever harm was done, some one must be lield responsi- ble. There was no definite logic in the selection of the victim. The primitive notion instinctively visited liability on the visible offending cause, whatever it might be, of a visible evil result." ^^ 76. Tap:;;. Torts, c. 9, "Malicious Wioii^'s." -^ Biuusdon v. Ilninplucy. H Q- B. Div. 141, ir.O. T8 For an exceptionally clear and concise discussion of tlio iniiiciplfs df lia- bilitj- for ncf^liiU'iicc. see ,]i\iiS. T"rts, c. 12. TO Jagg. Torts, p. 41). 22 DEFINITIONS AND GENEUAL PRINCIPLES. (Cll. 1 Acts complained of as nuisances are perhaps the best illustration of acts done at peril. Liability is not at all dependent upon either care or motive.^" Absolute liability is also recognized in a class of cases of which Fletcher v. Rylands ®^ is a type. In these cases liability for damage is dependent neither upon malice nor negli- gence, but upon the ownership, use, custody, or control of some dangerous instrumentality.^- Critical modern investigation is ques- tioning and denying the doctrine of absolute liability, and many exceptions are recognized by the courts.^ ^ SUMMARY. The substance of much of the foregoing discussion may be sum- marized in the following analysis of a legal wrong. 80 Upjohn V. Board, 46 Mich. 542, 9 N. W. 845; Cairncross v. Village of rewaukee, 86 Wis. 181, 56 N. W. 648; Lamming v. Galusha, 135 N. Y. 23U, 31 N. E. 1024. The use of ordinary skill and caution in the construction of work (as draining surface water) will not protect from liability, If there has been a failure to provide against any damage which might have been fore- seen. Staton V. Norfolk & C. K. Go., Ill N. C. 278. 16 S. E. 181. Cf. Gulf. C. & S. F. Ry. Co. V. Steele (Tex. Civ. App.) 26 S. W. 926. Contributory negli- gence is ordinarily no defense to a nuisance. Philadelphia & R. R. Co. v. Smith, 12 C. C. A. 384, 64 Fed. 679. Cf. Willis v. City of Perry (Iowa) 60 N, W. 727. 81 L. R. 1 Exch. 265. Cf. Losee v. Buchanan, 51 N. Y. 476. 82 Things dangerous in themselves may be regarded from the point of view of nuisance, negligence, or breach of duty to insure safety. Cumberland Tele- phone & Telegraph Co. v. United Electric Ry. Co., 42 Fed. 273-281. The opinion of Brown, J., in this case is eminently clear and able. Van Norden V. Robinson, 45 Hun, 567. For an able discussion of liability in this class of cases, see Jagg. Torts, p. 832 et seq. 83 Jagg. Torts, 53; Pig. Torts, c. 7; Brown v. Kendall, 6 Gush. 292; Harvey V. Dunlop, Hill & D. 193; Nitro-Glycerine Case, 15 Wall. 524; Lansing v. Stone, 37 Barb. 15; Center v. Finney, 17 Barb. 94; Morris v. Piatt, 32 Conn. 75; Paxton v. Boyer, 67 111. 132; Dygert v. Bradley, 8 Wend. 470; 1 Hill, Torts, c. 5. § 9: 2 Greenl. Ev. 85. See. also. Holmes v. Mather, L. R. 10 Exch. 261; Stanley v. Powell [1891] Q. B. Div. 86. §§ 12-14) CLASSIFICATION OF DAMAGES. 23 ANALYSIS OF LEGAL WRONGS. 12. A legal "w^rong is committed ■whenever (a) Conduct Tvliich is either (1) Forbidden, (2) Malicious, (3) Negligent, or (4) Done at peril (b) Results in damage, -which may be either (1) Actual or (2) Presumed. CLASSIFICATION OF DAMAGES. 13. With respect to their object, damages may be divided into (a) Compensatory damages and (b) Exemplary damages. 14. With respect to amount, compensatory damages may be divided into (a) Nominal damages and (b) Substantial damages. 24 NOMINAL DAMAGES. (Cll. 2 CHAPTER II. NOMINAL DAMAGES. 15-17. Definition and General Nature. DEFINITION AND GENERAL NATURE. 15. Nominal damages are damages insignificant in amount; a sum of money that can be spoken of, but has no existence in point of quantity. 16. Nominal damages are a^varded only in cases -where the la-w presumes damage. "Whenever the law pre- sumes damage, it presumes the lowest possible amount; that is, nominal damages. 17. Whenever damages must be proved to show the vio- lation of a legal right, proof of nominal damage will not support an action. The law applies the maxim, "De minimis non curat lex." It is a fundamental principle of the law of damages that, when- ever one's rights have been invaded, he is entitled to compensation proportional to the amount of the injury.^ The extent of actual injury is usually a question of fact.- In the absence of proof, the law can seldom say that a given wrong has resulted in damage of a definite amount. But, as has been seen, in many, and perhaps most, cases, proof of damage is essential to the proof of a legal wrong.^ In current phraseology, damages are the gist of the ac- tion. In this class of cases, the law awards the amount of dam- ages that have been proved. But there is another class of cases, 1 Sedg. Dam. 28; Suth. Dam. 18. "It is a rational and legal principle that the compensation should be equivalent to the injury." Bussy v. Donaldson, 4 Dall. 200. "It is a general and very sound rule of law that, where an injury fias been sustained for which the law gives a remedy, that remedy shall be commensurate to the injury sustained." Koeliwood v. Allen, 7 Mass. 254. 2 Ante, 7. 3 Ante, 7. ^§ 15-17) DEFINITION AND GENERAL NATURE. 25 in which damages are not the gist, and need not be proved, because they are presumed by law. This occurs, as has been seen, wherever the conduct complained of is absolutely forbidden.* In this class of cases a wrong can be shown without proof of damage. If no damages in fact are or can be proved, the legal presumption never- theless remains.^ But the presumption is only that some dam- age has resulted; the law cannot presume a definite amount. "This requires some practical expression as the compensation for a technical injury. Therefore, nominal damages are given, as six- cents, a penny, or a farthing, — a sum of money that can be spoken of, but has no existence in point of quantity. Verdicts and judg- ments for nominal damages generally specify a small sum which may be paid." ' It is only in cases where damages are not of the gist — that is, in cases of forbidden conduct — that nominal damages * Ante, 15. 5 Webb V. Portland Manuf g Co., 3 Sumn. 189, Fed. Cas. No. 17,322; Lafliu V. Willaid, 16 Pick. 64; Goodnow v. Willard, 5 Mete. (Mass.) 517; Lawrence V. Rice, 12 Mete. (Mass.) 535. See, also, Whittemore v. Cutter, 1 Gall. 429, 433, Fed. Cas. No. 17,600; Marsh v. Billings, 7 Cush. 322; Davis v. Kendall, 2 R. I. 566. Cf. Paul v. Slason, 22 Vt. 231, Mecbem, Cas. Dam. 8. Where an absolute right created by the prohibition of certain conduct is violated, damage is necessarily done, for the possessor of the right is deprived of some- thing secured to him by law. Damage is presumed because it is inevitable that damage has resulted, though it cost the party nothing; "no, not so much as a litttle diachylon." All damage is not pecuniary. In Ashby v. White, Ld. liaym. 938, 958, where plaintiff had been deprived of a right to vote. Lord Holt, answering the objection that plaintiff had suffered no damage, said; •"This action is brought by the plaintiff for the infringement of his franchise. You would have nothing to be a damage but what is pecuniary, and a dam- age to property;" but "a damage is not merely pecuniary, but an injury im- ports a damage where a man is thereby hindered of his right." Piggott de- fined "damnum" as the violation of these absolute or specialized rights. I'ig. Torts, 10. See, also. Id., "Nominal Damages," 135. 6 Suth. Dam. 18. "Where the law implies the injury, it al.so implies the lowest damage." Pastorius v. Fisher, 1 Rawle, 27. And see Repka v. Ser- geant, 7 Watts & S. 9. Where a party fails to furnish ore to a smelting com- I»any for a reduction at a fixed price, the company cannot recover more than nominal damages, where tlie quality of the ore was not fixed, unless tlioy prove the profits of the smelting of whatever grade migiit Ix? furnished. Pat- rick V. Colorado Smelting Co. (Colo. Sup.) 38 Pac. 2:?(!. See, also, Fmser v I>ho Mining & Smelting Co. (Tex. Civ. App.) 28 S. W. 71 I. 26 NOMINAL DAMAGES. (Ch. 2- can be recovered; ^ for it is only in this class of cases that a legal wrong can be shown without proof of actual damage. If substan- tial damage is shown, an equivalent amount is awarded, and th& principle of nominal damages is not involved. The actual damage shown, however small, may be recovered.^ If there is in fact no damage,' but rather a benefit,^" nominal damages are, nevertheless^ allowed. T In Brown v. Watson, 47 Me. 161, it was held that for an injury to a pri- vate person, liowever inconsiderable, he may maintain an action. The plain- tiff in that case had been compelled to take a circuitous route, because of obstructions placed in the road. He was allowed to recover. 8 Defendant may attempt "not to defeat the action altogether, but to restrict the amount of damages recovered to a nominal sum, by proving that the injury itself has not been substantial. The question involved in such cases is really one of compensation purely. If no substantial loss can be proved, the plaintiff must be restricted to nominal damages." Sedg. Dam. 149; Freese v. Crary, '19 Ind. 524; Carl v. Granger Coal Co., 69 Iowa, 519, 29 N. W. 437; Thorp v, Bradley, 75 Iowa, 50, 39 N. W. 177; Bruce v. Pettengill, 12 N. H. 341; Hunt V. D'Orval, Dud. (S. C.) ISO; Tully v. Fitchburg R. Co., 134 Mass. 500. 9 Mellor V. Spateman, 1 Saund. 346b; • Brant v. Gallup, 111 111. 487; Cook v. Hull, 3 Pick. 269; Bolivar Manuf'g Co. v. Neponset Manuf'g Co., 16 Pick. 241; Stowell v. Lincoln, 11 Gray, 434; Pollard v. Porter, 3 Gray, 312; Pond V. Merrifiold, 12 Cush. 181; Shattuck v. Adams, 136 Mass. 34; Newcomb v. Wallace, 112 Mass. 25; Marzetti v. Williams, 1 Barn. & Add. 412; Warre v. Calvert, 7 Adol. & E. 143; Embrey v. Owen, 6 Exch. 352; Northam v. Hurley, 1 El. & Bl. 663; McConnel v. Kibbe, 33 111. 175; Burnap v. Wight, 14 111. 301; Dent v. Davison, 52 111. 109; Graver v. Sholl, 42 Pa. St. 58: Delaware & H. Canal Co. v. Torrey, 33 Pa. St. 143; Chamberlain v. Parker, 45 N. Y. ^^; Dixon V. Clow, 24 Wend. 188; Quin v. Moore, 15 N. Y. 432; Mclntyre v. New York Cent. R. Co., 43 Barb. 532; Ihl v. Forty-Second St. & G. St. F. R. Co., 47 N. Y. 317; Chapman v. Thames Manuf'g Co., 13 Conn. 268; Eaton v. Ly- man, 30 Wis. 41; Adams v. Robinson, 65 Ala. 586; Empire Gold Min. Co. v. Bonanza Gold Min. Co., 67 Cal. 406. 7 Pac. 810; Hancock v. Hubbell, 71 Cal. 537, 12 Pac. 618; Kenny v. Collier, 70 Ga. 743. 8 S. E. 58; Mize v. Glenn, 3S Mo. App. 98; Jones v. Hannovan, 55 Mo. 462. 'The action may be main- tained to vindicate the rights." Per Justice Story, in Webb v. Portland Manuf'g Co., 3 Sumn. 189, Fed. Cas. No. 17,322. It is sometimes said that 10 Hibbard v. W. U. Tel. Co., 33 Wis. 558; Jewett v. Whitney, 43 Me. 242; Jones V. Hannovan, 55 Mo. 462; Murphy v. City of Fond du Lac, 23 Wis. 365; Stowell v. Lincoln, 11 Gray, 434; Gile v. Stevens, 13 Gray, 146; Francis V. Schoellkopf, 53 N. Y. 152. §§ 15-17) DEFINITION AND GENERAL NATURE. 27 De Minimis non Curat Lex. The oft-quoted, but little-understood, maxim, "De minimis non curat lex," does not prohibit the allowance of nominal damages.^ ^ the violation of a right with a possibility of damage is sufficient to maintain an action. Ross v. Thompson, 78 Ind. 90; Allaire v. Whitney, 1 Hill, 484. See Whitney v. Allaire, 4 Denio, 5&4. But this is meaningless. If the right violated is an absolute one, damage need not be proved. If it is the funda- mental right not to be harmed, damage must be proved in order to show a violation of the right. In Allaire v. Whitney, 1 Hill, 484, it was held to be actionable per se to draw one into a contract by fraud. The court said: "In- deed, in all such cases it would not be difficult to show the degree of actual damage. The time of the injured party has been consumed in doing a vain thing, or one comparatively vain; and time is money. Fraud is odious to the law; and fraud in a contract can hardly be conceived of without being attended with damage in fact." Refusal by banker to pay check. Marzetti V. Williams, 1 Barn. & Adol. 415; Winterbottom v. Wright, 10 Mees. & W. 107. See, also, Rolin v. Steward, 14 C. B. 595, where actual damages were given. The omission of an administrator to settle his accounts with the pro- bate court renders him liable for nominal damages at all events. Webb v. Gross, 79 Me. 224, 9 Atl. 612; Fay v. Haven, 3 Mete. (Mass.) 109; McKim v. Bartlett, 129 Mass. 226; Probate Court v. Slason, 23 Vt 300. Contra, 01m- stead V. Brush, 27 Conn. 530. A riparian owner may recover nominal dam- ages for a bare infringement of his rights. New York Rubber Co. v. Rothery, 132 N. Y. 293, 30 N. E. 841; Ulbricht v. Eufaula Water Co., 86 Ala. 5S7, 6 South. 78; Lund v. City of New Bedford, 121 Mass. 286; Tillotson v. Smith. 32 N. H. 90; Shannon v. Burr, 1 Hilt. 39: Champion v. Vincent, 20 Tex. Sll. But see Cory v. Silcox, 6 Ind. 39; McElroy v. Goble, 6 Ohio St. 187; Wood V. Waud, 3 Exch. 748. Nominal damages may be recovered for the unlawful flowage of lands. Chapman v. Copeland, 55 Miss. 476; Gerrish v. New Market Manuf'g Co., 30 N. H. 478; Amoskoag Manuf'g Co. v. Goodale, 46 N. H. 53; or for false imprisonment, Deyo v. Van Valkenburgh, 5 Hill, 242. In England it is held that, in an action against a public officer for neglect of duty, the 11 Fullam V. Stearns, 30 Vt. 443. "This maxim is never applied to the positive and wrongful (i. e. forbidden) invasion of another's property. To war- rant an action in such a case, says a learned writer, 'some temporal damage, be it more or less, must actually have resulted, or must be likely to ensue. The degree Is wholly immaterial; nor does the law upon every occasion re- quire distinct proof that an inconvenience has been sustained. For example. if the hand of A. touch the person of B., who shall declare that pain has not ♦•nsnod? The only mode to render B. secure is to infer that an inconv(Miionce l!,ns actually resulted.' " Seneca Road Co. v. Auburn & R. R. Co., 5 IIllI, 170, 1 75. 28 NOMINAL DAMAGES. (Ch. 2 Keeping clearly iu mind the fundamoulal idea that all legal rights are rights to immunity from harm, the proper application of the maxim is easily understood. The law is a practical science, adapted to the needs and conditions of every-day life. It does not attempt to insure men against all harm. Trilling vexations and losses in cidcnr to existence in a social state must be borne. The law will not countenance litigation over what is insignificant, for mere pur- poses of vexation. But nominal damages are given only in cases where the defendant has been guilty of forbidden conduct, or, in other words, when an absolute right has been violated. What the law has considered important enough to forbid cannot be regarded as a trifle. To require proof of substantial damages would in many cases nullify the prohibition, and destroy the right, by taking away the remedy for its violation. The maxim has no application to this class of cases, and it is only in this class of cases that nomi- nal damages are ever awarded. Where, however, damages are not presumed, but must be proved, — that is, where the right directly involved is the fundamental right of immunity from harm, and not a specialized or absolute right correlative to a prohibition, — proof of merely nominal damages will not support an action. Here alone is the maxim, "De minimis non curat lex" properly applied to take aAvay a right of action. The law no longer distinguishes between no appreciable damage and no damage at all.^^ plaintiff must show damage. The right which every man has to the servicea of such officer is relative to the benefit to be derived therefrom. The right and benefit are co-extensive; and, if the benefit is negatived, the right ceases. Wood, Mayne, Dam. 11; Pig. Torts, p. 129; Wylie v. Birch, 4 Q. B. 5GG; Wil- liams V. Mostyn, 4 Mees. & W. 145; Stimson v. Farnham, L. R. 7 Q. B. 175; Hobson V. Thellusson, L. R. 2 Q. B. 642. In America it is generally held that the officer is liable without proof of damage. "The plaintiff is entitled to nominal damages for the officer's neglect. * * * No actual damages are proved, but, where there is neglect of duty, the law presumes damage." Laf- lin V. Willard, 16 Pick. 64. See, also, Goodnow v. Willard, 5 Mete. (Mass.) 517; Lawrence v. Rice, 12 Mete. (Mass.) 535; Mickles v. Hart, 1 Denio, 548; Patterson v. Westervelt, 17 Wend. 543; Palmer v. Gallup, 16 Conn. 555; Crawford v. Andrews, 6 Ga. 244. 12 St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. G42; Smith v. Thack- «rah, L. R. 1 C. P. 5G4. §S 15-17) DEFINITION AND GENERAL NATCRE. 29' Nominal Dnmngcs Establish Rights. The principal purpose of allowing nominal damages is the estab- lishment of rights. As has been seen, a denial of nominal dam- ages in all cases when no actual damages can be proved would often be a denial of those specialized or absolute rights which grow out of forbidden conduct. A fortiori, an action must lie "whenever the act done is of such a nature as that, by its repetition or continu- ance, it may become the foundation or evidence of an adverse right." ^^ A judgment for the smallest conceivable sum is as effect- ive for declaring the existence or nonexistence of a right as any sum, however large.^* Illustrations of actions brought to establish rights in which nominal damages were awarded might be multiplied indefinitely.^^ A few will suffice. In the Tunbridge Wells Dip- per's Case ^^ the defendant had dipped bathers without having been chosen for the post by the homage according to statute. It was not proved that she had received any gratuity, but the plaintiffs were held entitled to nominal damages, in order to prevent the pos- sibility of damage. In Patrick v. Green way '" the defendant fished in the plaintiff's several fisheries, but caught nothing. Plaintiff was nevertheless held entitled to a verdict because of the infringe- ment of the right, which could thereafter be used as evidence of 13 Webb V. Portland Manuf'g Co., 3 Sumn. 189, Fed. Cas. No. 17,322. "Gen- erally, when one encroaclies upon the inheritance of another, the law gives a right of action; and, even if no actual damages are found, the action will be sustained, and nominal damages recovered, because, unless that could be done, the encroachments acquiesced in might ripen into legal right, and the trespasser, by a continuance of his encroachments, acquire a perfect title." Hathorne v. Stinson, 12 Me. 183. See, also, Seidensparger v. Spear, 17 Me. 123; Chapman v. Thames Manuf'g Co., 13 Conn. 2G9. 1* Patrick v. Greenaway, 1 Saund. 34Gb, note; Devendorf v. Wert, 42 Barb. 227; Bassett v. Salisbury Manuf'g Co., 8 Fost. (N. H.) 438; Thomas v. Brack- uey, 17 Barb. G54; Carhart v. Auburn Gas Light Co., 22 Barb. 297; Honsee v. Hammond, 39 Barl). 89; O'Kiley v. McChesuey, 3 Lans. 278; Delaware & II. Canal Co. v. Torrey, 33 Pa. St. 143. 1' "To state when rights are infringed, and consequently when nominal dam :ij:cs nre recoverable, would be to rofapitulate the whole corpus juris." Scdg. l>:iiii. i;',7. !'•• 2 Wils. 414. »^ Cited in note to Mellor v. Si)a(('iiiau, 1 .ShiiikI. :;ii;i). 30 NOMINAL DAMAGES. (.Cll. 2 the exercise of the right by defendant. In Bower v. Hill ^ ^ the plaintiff's right of way on a stream was obstructed, but the dam- age was problematical on account of the state of the stream. Plain- tiff was held entitled to nominal damages, because acquiescence in the obstruction would be evidence of a renunciation of the right of way. In Blofeld v. Payne ^^ the defendant imitated the plaintiff's hones, and the envelopes in which they were sold, thereby infringing his right. Plaintiff was allowed to recover, although no loss of custom was shown. In all these cases the conduct of defendant was expressly forbidden. A denial of nominal damages would have been a denial of the right for the purpose of creating which the con- duct was forbidden. New Trials and Costs. The importance of the right to recover nominal damages often consists in its effect on costs.^° Where plaintiff is entitled to nomi- nal damages, but judgment is given for defendant, it will be re- versed, if nominal damages will entitle plaintiff to costs; ^^ other- wise not,^^ for the error is harmless.^^ But error in denying nomi- nal damages is not always harmless, even if they do not entitle to 18 1 Bing. N. C. 549. i» 4 Barn. & Adol. 410. 20 In admiralty, wliei*e the costs are in tlie discretion of tlie court, nominal damages are not always given for a technical wrong. Barnett v. Luther, 1 Curt. 434, Fed. Cas. No. 1,025. 21 Potter V. Mellen, 3G Minn. 122, 30 N. W. 438; Enos v. Cole, 53 Wis. Zio, 10 N. W. 377; Sayles v. Bemis, 57 Wis. 315, 15 N. W. 432; Eaton v. Lyman,. 30 Wis. 41; French v. Ramge, 2 Neb. 254; Chambers v. Frazier, 29 Ohio St. 3G2; Seat v. Moreland, 7 Humph, 575; Middleton v. Jerdee, 73 Wis. 39, 40 N. W. 629. 2 2 New Orleans, M. & T. R. Co. v. Southern & A. Tel. Co., 53 Ala. 211; Mc- Allister V. Clement, 75 Cal. 182, 16 Pac. 775; Ely v. Parsons, 55 Conn. 83, 101, 10 Atl. 499; Mcintosh v. Lee, 57 Iowa, 356, 10 N. W. 895; Thorp v. Bradley, 75 Iowa, 50, 39 N. W. 177; Faulkner v. Closter, 79 Iowa, 15, 44 N. W. 208; Haven v. Beidler Manuf'g Co., 40 Mich. 2S6; Harris v. Kerr, 37 Minn. 537, 35 N. W. 379; French v. Ramge, 2 Neb. 254; Middleton v. Jerdee, 73 Wis. 39. 40 N. W. 629; Benson v. President, etc., of Village of Waukesha, 74 Wis. 31. 41 N. W. 1017; Hecht v. Harrison (Wyo.) 40 "^ac. 306; Crawford v. Bergen (Iowa) 60 N. W. 205. Where nominal damages are found on insufficient evi- dence, a new trial will not be granted. Maher v. Winona & St. P. R. Co., 31 Minn. 401, 18 N. W. 105. 2 3 Singer Manuf'g Co. v. Potts (Minn.) 61 N. W. 23 §§ 1-3-17) DEFINITION ANI> GENERAL NATURE. 31 costs. Regard must be had to the real purpose and object of the suit. If it was instituted to try some question of permanent right, and the party is found entitled to that right, but it happens that only nominal damages can be given, there is no objection to giving a new trial, for the error is not harmless; but if the party has failed in the substantial object of the suit, and has left only a bare technical right to recover nominal damages, a new trial will not be awarded him for that purpose.^* Thus, it was held, in an action of trespass against a selectman for cutting trees alleged to obstruct a highway, where the main object of the action was to determine whether or not there had been a dedication of such highway, and the question of dedication was found in favor of the defendant, that error of the trial court in refusing the plaintiff nominal dam- ages for the trees improperly cut was not ground for a new trial. The court said: "The complaint in this suit was manifestly brought to determine whether the plaintiff had a right to the land which was in use for a highwa3\ If error had intervened tending to defeat him in the establishment of this right, the finding that his damages were merely nominal would have constituted no objec- tion to a new trial. But the plaintiff entirely failed in the real object of the suit, but, by reason of the accidental cutting of some brush and trees not necessary to make the highway passable, he has a bare technical right to nominal damages. But substantial justice has been done. That a new trial must be denied under these circumstances is abundantly sustained by the uniform tenor of the decisions in this state and elsewhere."^* 2* Knowles v. Steele (Minn.) Gl N. W. 5o7. 2 5 Ely V. Parsons, 55 Conn. 83, 101, 10 Atl. 499. See, also, Merrill v. Dibble, 12 111. App. 85; Shipman v. Horton, 17 Conn. 487; Gold v. Ives, 29 Conn. 123; Cooke v. Barr, 39 Conn. 30G; Bviggs v. Morse, 42 Conn. 200; Hyatt v. Wood, 3 Johns. 239; Hudspeth v. Allen, 2G Ind. 105; IMumleigh v. Dawson, 1 Gil- man, 544. On general subject of nominal damages, see, also, Asliby v. White, 2 Ld. Raym. 938; Kidder v. Barker, 18 Vt. 454; Clifton v. Hooper, Q. B. 4G8; Baker v. Green, 2 Bing. 317; Williams v. Mostyn, 4 Mees. & W. 145; Young v. Spencer, 10 Barn. & C. 145; Erabrey v. Owen, G E.\oh. 353. 372; Williams v. Esling, 4 Pa. St. 48G; Seneca Road Co. v. Auburn & R. R. Co., 5 Hill, 175; Bustamente v. Stewart. 55 C.-iJ. 115. 32 COMI'EINSATOKV UAMAUliS. (Ch. 3 CHAPTER in. COMPEMSATOKY DAMAGES. IS. Definition. ll)-li(). Proximate and Remote Consequences in GeneraL 21. Direct and Consequential Losses. 22-2;3. Direct Losses. 24-25. Consequential Losses. 26. Proximate and Remote Consequential Losses. 27. Consequential Damages for Torts. 28. Consequential Damages for Breach of Contract. 29. Avoidable Consequences. 30. The Required Certainty of Damages. 31. Profits or Gains Prevented. 32. Entirety of Demand. 33. Time to Which Compensation may be Recovered— Past and Future Losses. 34^35. Elements of Compensation. 3G. Pecuniary Losses. 37-38. Physical Pain and Inconvenience. 30-40. Mental Suffering. 41. Aggravation and Mitigation of Damages. 42. Reduction of Loss. 43. Injuries to Limited Interests. DEFINITION. 18. Compensatory damages are damages sufBcient in amount, in contemplation of law, to indemnify the person injured for the loss suffered. Compensatory damages are either nominal or substantial. Nom- inal damages are legal compensation for a technical wrong, where no substantial damages are proved. Where damages are thus pre- sumed, they may not strictly be called "compensatory," for they may be awarded though the injury results in a benefit. But they may be strictly coincident with the harm suffered.^ Accordingly, they sometimes are, and sometimes are not, strictly compensatory.^ 1 Ante, p. 2G. 2 jag. Torts, 3G7. § 18) DKFINITION. 33 Nominal damages were considered in the last chapter. We will now consider the principles governing substantial compensation. It has been seen that the cardinal principle governing the award of damages both in cases of torts and breaches of contract is that plaintiff should receive a just compensation for the loss suffered. "The general rule is that whoever does an injury to another is lia- ble in damages to the extent of that injury." ^ But legal compen- sation often falls far short of actual indemnity.* The law does not and cannot give compensation for all the consequences of a wrongful act, nor can damages be recovered for mere inconvenience, vexation, or disappointment^ The law prescribes what elements shall be considered m estimating legal compensation. "Where the loss can be calculated by arithmetical rule and pecuniary stand- ards, the amount of compensation is a question of law. Where 3 Dexter v. Spear, 4 Mason, 115, Fed. Cas. No. 3,S(J7. "It is a rational and a legal principle that the compensation should be equivalent to the injury." Bussy V. Donaldson, 4 Dall. 206. "It is a general and very sound rule of law that when an injury has been sustained, for which the law gives a rem- edy, that remedy shall be commensurate to the injury sustained." Kockwood v. Allen, 7 Mass. 254. "By the general system of our law, for every invasion of right there is a remedy, and that remedy is compensation. This compen- sation is furnished in the damages which are awarded." Scdg. Dam. 28. ■* "It has been contended that the true measure of damages, in all actions of covenant, is the loss actually sustained. But this rule is laid doAvn too generally. In an action of covenant for nonpayment of money on a bond or mortgage, no more than the principal and legal interest of the debt can be re- covered, although the plaintiff may have suffered to a much greater amount l>y the default of payment." Tilghman, C. J., in Bender v. Frombcrger. 4 Dall. 43G, 444. "Every defendant against whom an action is brought expe- riences some injury or inconvenience beyond what the costs will compensate him for." Brom, Leg. Max. 199. "But, although the law does not attempt the impossibility of replacing the plaintiff in exactly the position he was in before the injury, yet, within the bounds of possibility, its aim is compensa- tion." Sedg. Dam, 50. 6 Hamlin v. Groat Northern Ry. Co., 1 Hurl. & N. 40S; Hunt v. D'Orval, Dud. (S. C.) 180. See Baltimore & O. R. Co. v. Carr, 71 Md. 135, 17 Atl. 1052. "The injury mu.st be physical, as distinguished from one purely imag- inative; it must be something that produces real discomfort or aniioyanoo, through tlie medium of the senses, not from delicacy of taste or a refined fancy." Bird, V. C, In Westcott v. Middleton, 43 N. J. Eq. 478, 4Sn, 11 Atl. 490; Id.. 41 N. .1. Eq. 297, 18 Atl. 80. Damages may be recovered for incon- i.AW DAM. — y 34 COMnCNSATORY DAMAGES. (Ch. 3 the loss cannot be so estimated, as in cases of personal torts, the law merelv prescribes what elements of injury shall be consid- ered, and leaves the amount of compensation to the discretion of a jury. PROXIMATE AND REMOTE CONSEQUENCES IN GENERAL. 19. For purposes of liability, the consequences of -wrong- ful conduct may be divided into (a) Proximate consequences (p. 39), and (b) Remote consequences (p. 39). 20. Compensation may be recovered only for proximate losses resulting from wrongful conduct, and never for any losses wliich are remote. Where compensation is claimed for losses alleged to have been caused by the wrongful conduct of another, the first question is whether the conduct complained of was really the cause of the harm in a sense upon which the law can act. The harm may be traceable to the conduct, but the connection may be, in the accus- tomed phrase, too remote. 'T^n jure non remota causa sed proxima spectatur." As has been seen, liability must be founded on con- duct which is the proximate cause of the harm. Again, there may have been an undoubted wrong, but it may be doubtful how much of the harm is related to the wrongful conduct as its proximate consequence, and therefore is to be counted in estimating the wrongdoer's liability. The distinction of proximate from remote consequences is necessary — First, to ascertain whether there is any liability at all; and, second, if a wrong is established for which the defendant is liable, to fix the limit of liability or measure of damages.* "Much the same considerations are involved whether the attempt is to show that the injury itself is remote from the act venience amounting to physical discomfort. Chicago & A. R. Co. v. Flagg, 43 111. 364; Southern Kan. E,y. Co. v. Rice, 3S Kan. 398, 16 Pac. 817; Emery v. City of Lowell, 109 Mass. 197; Ross v. Leggett, 61 Mich. 445, 28 N. W. 695; Luse V. Jones, 39 N. J. Law. 707; Ives v. Humphreys, 1 E. D. Smith, 196; Scott Tp. V. Montgomery, 95 Pa. St. 444. 8 PoL Torts, 27. § 21) DIRECT AND CONSEQUENTIAL LOSSES. 35 or only certain consequences of the injury. These classes of cases are often difiQcult to distinguish in practice; and both are to some •extent InTolved in the consideration of nominal damages, where they shade into one another. Besides this, a case turning on the right of action may frequently be a precedent for the decision of n case involving the measure of damages." '' It has been said that the term "proximate cause" is not capable of perfect or general definition,^ and the confusion and uncertainty in the authorities justify the remark. The maxim, "Non remota causa sed proxima causa spectatur," merely points out that some consequences are held too remote to be counted. The test of re- moteness is still to be found.* DIRECT AND CONSEQUENTIAL LOSSES. 21. For the purpose of deterraming -what consequences are proximate and -whaX remote, the losses caused by a wrong may be divided into (a) Direct (p. 06), and (b) Consequential losses (p. 39). - Sedg. Dam. 163. « PoL Torts, 28. » "The question as to what is the direct or proximate cause of an injury is ordinarily not one of science or legal knowledge, but of fact, for a jury to de- termine in view of the accompanying circumstances." Schumaker v. St. Paul & D. R. Co., 46 Minn. o9, 48 N, W. 559. The test of the most conspicuous an- tecedent, suggested by John Stuart Mill, has been recognized. "The cause of an event is the sum total of the contingencies of every description, which, being realized, the event invariably follows. It is rarely, if ever, that the invariable sequence of events subsists between one antecedent and one conse- quent Ordinarily, that condition is usually termed the cause whose share in the matter is most conspicuous, and is the most immediately preceding and proximate in the event." Appleton, C. J., in Moulton v. Inhabitants of San- ford, 51 Me. 127, 134. See, also. Dole v. Insurance Co., 2 Cliff. 4;il, Fed. Cas. No. 3,9G6; Baltimore & P. R. Co. v. Reaney, 42 Md. 117; Northwest Transp. Co. V. Boston Marine Ins. Ck).. 41 Fed. 802; Sutton v. Town of Wauwatosji, 29 Wis. 21. But see Jeffersonville, M. & I, R. Co. v. Riley, 39 lud. 568; Gates V. Railroad Co., 39 Iowa, 45. 86 COMPENSATORY DAMAGES. (Cll. 3- SAME— DIRECT LOSSES. 22. Direct losses are such losses as proceed immediately from, wrongful conduct, -without the intervention of any intermediate cause. ^" 23. Direct losses are necessarily proximate, and compen- sation therefor is al"ways recoverable. Direct Losses. A tort feasor is liable for all injuries resulting directly from his wrongful act, whether they could or could not have been fore- seen by him.^^ The justice and propriety of this rule are mani- fest. If one man strike another with a weapon or with his hand, he is clearly liable for all the direct injury the party struck sus- tains therefrom. The fact that the result of the blow is unex- pected and unusual can make no difference. If the wrongdoer should in fact intend but slight injury, and deal a blow which in 99 cases out of 100 would result in a trifling injury, and yet, by accident, produced a very grave one to the person receiving it, ow- ing either to the state of health or other accidental circumstances of the party, such fact would not relieve the wrongdoer from the consequences of his act. The real question in these cases is, did the wrongful conduct produce the injury complained of? and not whether the party committing the act could have anticipated the result. The fact that the conduct is unlawful renders him liable for all its direct evil consequences.^^ Direct consequences are necessarily proximate. One is conclusively presumed to intend 10 Schumaker v. St. Paul & D. R. Co., 4G Minn. 39, 48 N. W. 5.59. 11 Cogdell V. Yett, 1 Cold. 230; Tally v. Ay res, 3 Sneed, G77; Bo was v. Pi- oneer Tow Line, 2 Sawy. 21, Fed. Cas. No. 1,713; Perley v. Eastern R. Co., 98 Mass. 414; Lane v. Atlantic Works, 111 Mass. 136; Blake v. Lord, 16 Gray, 387; Sloan v. Edwards, 61 Md. 89; Eten v. Luyster, 60 N. Y. 252; Lathers v. Wyman, 76 Wis. 616. 45 N. W. 669; Newsum v. Newsum, 1 Leigh, 86; Keenan v. Cavanaugh, 44 Vt. 268; Little v. Boston & M. R. R., 66 Me. 239; Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 3.56; Lowenstein v. Chappell, 30 Barb. 241; Horner v. Wood, 16 Barb. 389; Schu- maker V. St. Paul & D. R. Co., 46 Minn. 39, 48 N. W. 559. 12 Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 356. ^§ 2 2- J 3) DIRECT LOSSES. 37 the direct consequences of one's acts. Thus, it was held in a civil action for assault, where defendant had intentionally kicked plain- tiff on the leg during school hours, though he did not intend to in- jure him, that, the act being unlawful, defendant was liable for the injury which in fact resulted, though it could not have been foreseen.^^ So, also, a sleeping-car company is liable for a mis- carriage caused by the wrongful expulsion of a married woman from a berth, though its servants were ignorant of her delicate condition.^* And generally, where the previous physical condition is such as to increase the loss caused by a personal injury, the wrongdoer, though unaware of such condition, is, nevertheless, lia- ble for the whole loss caused, as such loss is the direct, though un- expected, consequence of the wrong/'' 13 Vosburg V. Putney, SO Wis. 523, 50 N. W. 403. 1* Mann Boudoir-Car Co. v. Dupre, 4 C. C. A. 540, 54 Fed. QiG. Contra, Pullman Palace-Car Co. v. Barker, 4 Colo. 344,— a case much criticised, and opposed to all the other authorities. See, also, Campbell v. Pullman Palace- Car Co., 42 Fed. 4S4,- Barbee v. Reese, 60 Miss. 906; Oliver v. Town of La Valle, 30 Wis. 594; Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 356. 911. isTerre Haute & I. R. Co. v. Buck, 9G lud. 346; Louisville, N. A. & C. R. Co. V. Jones, 108 Ind. 551, 9 N. E. 476; Ohio & M. R. Co. v. Hecht, 115 Ind. 443, 17 N. E. 297; Lapleine v. Steamship Co., 40 La. Ann. 661, 4 South. 875; Baltimore City Pass. Ry. Co. v. Kemp, 61 Md. 74, 7 Atl. 805; Baltimore & L. T. Co. V. Cassell, 66 Md. 419, 7 Atl. 805; Elliott v. Van Buren, 33 Mich. 49; .Jewell v. Grand Trunk Ry., 55 N. H. 84; Stewart v. City of Ripon, 38 Wis. 584; McNamara v. Village of Clintonville, 62 Wis. 207, 22 N. W. 472; Coleman v. New York & N. H. R. Co., 106 Mass. 160; Allison v. Chicago & N. W. R. Co., 42 Iowa, 274; Driess v. Friederick, 73 Tex. 460, 11 S. W. 493; East Tennessee, V. & G. R. Co. v. Lockhart, 79 Ala. 315; Tice v. Munn, 94 N. Y. 621; Owens v. Ivansas City, St. .7. & C. B. R. Co. (Mo. Sup.) 8 S. W. o50; Louisville & N. R. Co. v. Northingtnn (Tenn.) 17 S. W. 880; .Jackson v. Railroad Co., 25 Am. & Eng. R. Cas. 327; Louisville, N. A. & C. Ry. Co. v. Wood, 113 Ind. 544. 14 N. E. 572; Indianapolis, P. & C. R. Co. v. Pltzer (Tnd. f^up.) 6 N. E. 310: Ix»uisville, N. A. & C. Ry. Co. v. .Jones (Ind. Sup.) 9 N. E. 476; Indinnnpolis, P. & C. R. Co. v. Pitzer (Ind. Sup.) 10 N. E. 70; Wabash. St. L. & P. Ry. Co. V. Locke (Ind. Sup.) 14 N. E. 391; Brown v. Railway Co. 6; Beauchanip v. Saginaw Mining Co. (Midi.) 15 N. W. 65; McNamara v. Village of Clintonville (Wis.) 22 N. W. 472; Cincinnati. 1., f5t. L. & C. R. Co. V. Cooper (Ind. Sup.) 22 N. E. 340; White Sowing-Mach. Co. V. Rifhtor find. App.) 2S .\. E. 416; I.ouisvillo. N. A. ^: C. Ry. Cn. y. Fnlvoy. 104 Ind. W.), 3 N. E. :;89, and I N. E. 9<)S, followed in Uliio .^- M. K. Co. v- 38 COMPENSATORY DAMAGES. (Ch. S In actions of contract the rule is the same.^^ Whether the par- ties to the contract had in mind the damages Avhich might result from a breach does not in the least affect their liability for a loss resulting directly from a breach.^^ The direct consequence of a breach of contract is a loss of the thing contracted for, and is therefore almost necessarily contemplated by the parties. Still, in some cases, the extent of the damage is unexpected, but com- pensation is recoverable, nevertheless, if the loss is direct. Thus, in an action for breach of a contract of carriage, the carrier is liable for the value of a package lost, though ignorant of the fact that it contained jewels.^^ Hecht, supra; Vaudeubui-gh v. Truax, 4 Denio, 464. See, also, cases collected in Clark v. Chambers, 3 Q. B. Div. 327, 47 Law J. Q. B. 427; Crane Elevator C5o. V. Lippert, 11 C. C. A. 521, 63 Fed. 942. "Where a disease caused by the injury supervenes, as well as where the disease exists at the time, and Ls ag- gravated by it, the plaintiff is entitled to full compensatory damages." The negligence causing the accident is the proximate cause of the injury. Louis- vUle, N. A. & C. Ry. Co. v. Snyder, 117 Ind. 435, 20 N. E. 2S4. 16 Hadley v. Baxendale, 9 Exch. 341; Burrell v. New York & S. S. Salt Co., 14 Mich. 34; Brown v. Foster, 51 Pa. St. 165; CoUard v. Southeastern R. Co., 7 Hurl. & N. 79; Williams v. Vanderbilt, 28 N. Y. 217; Smith v. St. Paul, M. & M. Ry. Co., 30 Minn. 169, 14 N. W. 797; Rhodes v. Baird, 16 Ohio St. 581; Brayton v. Chase, 3 Wis. 456; Bridges v. Stickney, 38 Me. 361; Paducah Lumber Co. v. Paducah Water-Supply Co., 89 Ky. 340, 12 S. W. 554; Wilson V. Dunville, 6. L. R. Ir. 210; Hamilton v. Magill, 12 L. R. Ir. 186. 202; Booth V. Spuyten Duyvil Rolling-Mill Co., 60 N. Y. 487; Gallup v. Miller, 25 Hun, 298; Louisville, N. A. & C. Ry. Co. v. Sumner, 106 Ind. 55, 5 N. E. 404; Louisville, N. A. & C. Ry. Co. v. Power, 119 Ind. 269. 21 N. E. 751; Houser v. Pearce, L3 Kan. 104. See Prosser v. Jones, 41 Iowa, 674; McHose v. Fulmer, 73 Pa. St. 365; Wilkinson v. Davies, 146 N. Y. 25, 40 N. E. 501. IT Sedg. Dam. 159, 161; Collins v. Stephens, 58 Ala. 543; Daughtery v. American Union Tel Co., 75 Ala. 168; Cohn v. Norton, 57 Conn. 480, 492, 18 Atl. 595. 18 Kenrig v. Eggleston (1648) Aleyn, 93; Little v. Boston & M. R. R., 66 Me. 239. See, also, Mather v. American Exp. Co., 138 Mass. 55; Prance v. Gaudet, L. R. 6 Q. B. 199; Wilson v. Railway Co., 9 C. B. (N. S.) 632; Star- bird y. Barrows. 62 N. Y. 615. §§ 24-26) CONSEQUENTIAL LOSSES, 39 SAME— CONSEQUENTIAL LOSSES. 24. Consequential losses are the indirect losses caused by a ■wrrong, but to "which some intermediate cause has contributed. 26. Consequential losses may be either (a) Proximate (p. 39), or (b) Remote (p. 39). 26. PROXIMATE AND REMOTE CONSEQUENTIAL LOSSES — Consequential losses are proximate "wrhen the natural and probable effect of the Mrrongful con- duct under the circumstances is to set in operation the intervening cause from which the loss directly results. When such is not the natural and probable effect of the wrongful conduct, the losses are remote. Consequ^eiitial Losses in General. "A loss which is the immediate result of a wrong is called a 'direct loss'; one that is an indirect result of the wrong is called a 'consequential loss.' " ^® For example, where a fence is destroyed, 18 Sedg. Dam. § 111. According to the supreme court of New Hampshire, the term "consequential damage" "means both damage which is so remote as not to be actionable, and damage which is actionable. Sometimes it is used to denote damage which, though actionable, does not follow immediately, in point of time, upon the doing of the act complained of. * * * It is thu.s used to signify damage which is recoverable at common law, in an action of case, as contradistinguished from an action of trespass. On the other hand, it is used to denote a damage which is so remote a consequence of the act that the law affords no remedy to recover it. The terms 'remote damages' and 'consequential damages' are not necessarily synonymous, or to be indif- ferently used." Eaton v. Railroad, 51 N. H. 504, 511). And again: "A damage caused by a breach of a contract is often called consequential (in the tech- nical sense of being a consequence so remote or unexpected as not to entitle the suEfcrer to redress) where it cannot reasonably be suppo.sed to have been contemplated by the parties, in making the contract, as likely to be caused by the breach; and in tort a damage is often called consequential when it was not a reasonably necessary consequence, or one so natural and probable that the defendant can be reasonably suppo.sed to have foreseen the likelihood of its having been '^ansed by the wrong complained of." Thompsdu v. Im- provement Co.. 51 N. U. 515. 40 COMPENSATOHV DAMAGES. (Ch. 3 loss of the fence is the direct result. Loss of the crops by reason of trespassing- cattle entering at the gap is indirect or consequen- tial. Pain and bruises are the direct result of an assault and battery. The doctor's bill, loss of time, and the like, are conse- quential. Consequential losses differ from direct losses in this: that some intermediate cause has contributed to the injury. Whether or not compensation can be recovered for such losses will depend on the nature of the intervening cause. The damages recoverable for either a tort or a breach of contract must result without the intervention of any independent cause. In many of the cases the presence or absence of an "independent self-operat- ing cause" is proposed as a test of what is proximate and what remote. But an intervening cause is not regarded as independent when the natural and probable effect of the conduct complained of is to set it in operation. Proximate consequences, therefore, are simply those that are natural and probable.* "Natural" and "probable" means what, according to common experience and the usual course of events, should be expected to happen. Every one is conclusively presumed to know and contemplate the natural and probable result of their acts.-" The rule of natural and probable consequences is a vague one; but, as Sir Frederick Pollock has said,^^ if English law seems vague on these questions, it is be- cause it is grappled more closely with the inherent vagueness of facts than any other system. In whatever form the rule is stated, it must be remembered that it is not a logical definition, but only * Whether or not a given result is natural and probable is for the jury. Uaverly v. State Line & S. R. Co., 135 Pa. St. 50. 19 Atl. 1013. "Ordinarily, in cases of contract, the question is not one of liability for proximate cause, but of consequential damajres. The breach of contract establishes liability, and the question of the allowance of any item of damage is practically one of the interpretations of the contract, and consequently for the court." Sedg. El. Dam. 64, citing Hobbs v. Railroad Co., L. R. 10 Q. B. Ill, 122; Hammond V. Bussey, 20 Q. B. Div. 79, 89. In an action of contract, Blackburn, J., said: "I do not thuik that the question of remoteness ought ever to be left to a jury. That would be, in effect, to say that there sliall be no such rule as to damages being too remote." Hobbs v. London & S. W. II. Co., L. R. 10 Q. B 111. 20 Suth. Dam. 32. 21 Pol. Torts, 33. §§ 24-26) CONSEQUENTIAL LOSSES. 41 -a guide to the exercise of conuuon sense. "The lawj^er cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause." The practical application of any rule is a matter of great difficulty. Different courts, though equally acknowledging the same princi- ples, have sometimes reached diverse conclusions on similar states ■of facts. TVTien the best possible rule is stated, each case must still be decided upon its own special state of facts, and often upon the nicest discriminations. "While in mau}^ cases the rule of damages is plain and easy of application, there are many others in which, from the nature of the subject-matter and the peculiar circumstances, it is very difficult, and in some cases impossible, to lay down any definite, fixed rule of law by which the damages actually sustained can be estimated with a reasonable degree of accuracy, or even a probable approximation to justice; and the injur\' must be left wholly or in great part unredressed, or the question must be left to the good sense of the jury upon all the facts and circumstances of the case, aided by such advice and instructions from the court as the peculiar facts and circumstances of the case may seem to require. But the strong inclination of the courts to administer legal redress upon fixed and certain rules has sometimes led to the adoption of such rules in cases to which they could not be consistently or justly applied. Hence there is, perhaps, no branch of the law upon which there is a greater con- flict of judicial decisions, and none in which so many merely arbi- trary rules have been adopted. We are compelled to say that the line of mere authority upon questions of damages like that here presented, if any such line can be traced through the conflict of hostile decisions, is too confused and tortuous to guide us to a safe or satisfactory result, without resort to the principles of nat- ural justice and sound policy which underlie these questions, and which have sometimes been overlooked or obscured by artificinl ■distinctions and arbitrary rules." -- The difficulty in stating and applying any practical rule has been much increased by the failure of courts to always use terms with precision and consislency. The distinction between proxi- ^iAllisuu V. Ciiaudler, 11 Mich. r»ll.', .Mecli. Ca.s. Dam. i)'.). 42 COMPENSATORY damagf:s. CCh. 3- mate and remote consequences is often confoundrd with consider- ations of certainty and uncertainty of loss. Compensation for re- mote losses is refused, not because the loss is not in one sense caused by the wrong, but for reasons of public policy, and because the chain of causation cannot be followed with sufficient certain- ty. No cause can operate without being influenced by other causes. So, also, no cause is without an effect, which, in turn, becomes the cause of a further effect, and so on to infinity. Liability for consequences must end somewhere, and the law has fixed this limit at the natural and probable consequences. Compensation is re- coverable for consequential losses only when they are proximate. Consequential losses are proximate only when they are natural and probable. Consequences are natural and probable only when^ according to common experience and the usual course of events, the effect of the wrongful conduct was to set in operation the in- termediate cause; that is to say, when the intermediate cause was not independent. It is just here that the difficulty lies. No effect is the product of a single isolated cause, but rather of innumera- ble co-existing causes. In one sense, every cause is the sum of all the antecedents, for no particular event could have happened if any one of innumerable necessary conditions had been absent. Mr. Wharton ^^ states the case of a haystack fired by a spark from a passing engine. If the railroad had not been built, an event depending on an almost infinite number of conditions (among them, the discovery of coal and iron), or if the haystack had not been erected, an event also dependent on innumerable conditions, no^ fire would have occurred. Each one of such conditions may there- fore be regarded as a cause of the injury, for without it the fire could not have happened. In this view, every antecedent event is a cause of every subsequent one. It is obvious that the law can- not concern itself with such metaphysical refinements. When an efficient adequate cause of an injury is found, it must be taken as the true cause, unless some other independent cause is shown to have intervened between it and the injury.^* The inquiry is al- ways whether there was any intermediate cause disconnected from 23 Whart, Neg. § 85. 24 Georgetown, B. & L. Ry. Co. v. Eagles, 9 Colo. Mo. 13 Pac. 696. Sea. also, Blytbe v. Denver & R. G. Ry. Co., 15 Colo. 333, 25 Pac. 702. §§ 24-26) CONSEQUENTIAL LOSSES. 4S the primary fault, and self -operating, which produced the injury.^*' If there was, then such intermediate cause must be regarded a& the proximate cause, and all antecedent causes as remote. The nature of the intervening cause is the all-important and decisive question. If it is independent of defendant's fault, and such that without it the injury would not have happened, the loss is remote, though defendant's act contributed to it.-^ In all cases, it is, of 2 5 Milwaukee & St. V. Ry. Co. v. Kellogg, 94 U. S. 469. If the injury re- ceived by the plaintiff through the negligence of the defendant superinduced and contributed to the production or development of a cancer, the defendant is responsible therefor, and the cancer is not to be treated as an independent cause of injury or suffering. The wrongdoer cannot be allowed to apportion the measure of his responsibility to the initial cause. Baltimore City Pass. Ry. Co. v. Kemp, 61 Md. 619. 2 6 Where plaintiff was induced by false representations to put money in a speculation, and afterwards put in more money, the loss of the latter money was held a proximate consequence of the fraud. Crater v. Binninger, 33 N. J. Law, 513. Injury to plaintiff's mill and machinery, caused by a boiler ex- plosion, is a proximate consequence of defects in the boiler. Page v. Ford. 12 Ind. 46; Erie City Iron Works v. Barber, 106 Pa. St. 125. Where defendant ab- ducted plaintiff's slaves, leaving no one to care for the plantation, it was held that compensation could be recovered for corn destroyed by cattle of the neigh- bors, and for wood swept away by a flood. McAfee v. Crofford, 13 How. 447. A loss through deprivation of means of protection is proximate. Derry v. Flitner, 118 Mass. 131; The George and Richard, L. R. 3 Adm. & Ecc. 466; Wilson V. Newport Dock Co., L. R. 1 Exch. 177. Borradaile v. Brunton, 8 Taunt. 535; 2 Moore, 582. But see Hadley v. Baxendale, 9 Exch. 341, 347. A de- fect in a fence is a proximate cause of a trespass by cattle and injury to crops. Scott V. Kenton, 81 111. 96. It is natural and probable that a trespassing horse will kick other horses on the premises. Lee v. Riley, 34 Law J. C. P. 212; Lyons v. Merrick, 105 Mass. 71. Where plaintiff's horses escaped through the defect, and were killed by the falling of a haystack on defendant's premises, the loss was held not too remote. Powell v. Salisbury. 2 Younge & J. 391. Where cattle escaped, and ate branches of a yew tree, and were thereby poi- soned, the loss is the proximate result of the defect. Lawrence v. Jenkins, L. R. 8 Q. B. 274. Where defendant's wrong obliges plaintiffs to raise money. a loss through a forced sale of property is too remote to be compensated. See Deyo v. Waggoner, 19 Johns. 241; Donnell v. Jones, 13 Ala. 490; Cochrane V. Quackenbush, 29 Minn. 376. 13 X. W. 154; Larios v. Gurety, L. R. 5 P. G. .346; Travis v. Duffau, 20 Tex. 49; Siuitli v. O'Donnell. 8 Lea, 468. Selling animals with an infectious disease is the proximate cause of its conmiunicatjon to ofJu'r animals of the purchaser. Whcoler v. Kandall, 48 111. 182; Shorrnd v. LangdoM, 21 Iowa, ."jlS; Joy v. Biizi-r, 77 Iowa, 7."., 11 .\. W. ~>~'i: Hroqud v. ■44 COMI'ENSATORY DAMACiES. (Ch. 3 course, prerequisite to any liability that defendant's act had an influence in causing the injury.^^ There must be an immediate and natural relation between the act complained of and the iii- Tiipp, 2G Kan. 700, 14 Pac. 227; Fans v. Lewis, 2 B. Mon. 375; Bradley v. Ilea, 14 Allen, 20; Long v. Clapp, 15 Neb. 417, 19 N. W. 4G7; Jeffrey v. Blge- low, 13 Wend. 51S; Wintz v. Morrison, 17 Tex. 372; Routh v. Caron, G4 Tex. 2S9; Packard v. Slack, 32 Vt. 9; Smith v. Green, 1 C. P. Div. 92. Loss of busi- ness caused by the deprivation of machinery or of business premises is usually considered proximate. Waters v. Towers, S Exch. 401; New York & C. Min- ing Syndicate & Co. v. Fraser, 130 U. S. 611, 9 Sup. Ct. 665; Jolly v. Single. 16 Wis. 2S0; Savannah, F. & W. Ry. Co. v. Pritchard, 77 Ga. 412, 1 S. E. 261; Van Winkle v. Wilkins, 81 Ga. 93, 7 S. E. 644; Sitton v. MacDonald, 25 S. C. 6S; New Haven Steam-Boat Co. v. Mayor, etc., 36 Fed. 716; Moore v. Davis. 49 N. H. 45; Carlisle v. Callahan, 78 Ga. 320, 2 S. E. 751; Lange v. Wagner, 52 Md. 310. But see Vedder v. Hildreth, 2 Wis. 427, and Ruthven Woolen Manuf'g Co. v. Great Western R. Co., 18 U. C. C. P. 316. Loss of goods by sudden flood is not a proximate consequence of a negligent delay by a carrier. Denny v. New York Cent R. Co., 13 Gray. 481; Morrison v. Davis, 20 Pa. St. 171; Railroad Co. v. Reeves, 10 Wall. 176. See post, note 68. Where a defect in the street causes a traveler to be thrown out of his carriage, and exposed to the cold and rain, the city is liable for a seriou disease thereby contracted. Ehrgott V. Mayor, etc., 96 N. Y. 264. In an action on a fire insurance policy, the judge, in his charge to the jury, stated the theory of plaintiff as follows; "The plaintiff says the position of the lightning arresters in the vicinity of the fire was such that by reason of the fire in the tower a connection was made between them, called a 'short circuit'; that the short circuit resulted in keeping back, or in bringing into the dynamo below, an increase of electric current, that made it more diflicuit for this armature to revolve than before, and caused a higher power to be exerted upon it, or at least caused greater resistance to the machinery; that this resistance was transmitted to the pulley by which this armature was run, through the belt; that that shock destroyed that pulley; that by the destruction of that pulley the main shaft was disturbed, and the succeeding pulleys, up to the jack pulley, were ruptured; that by reason of pieces flying from the jack pulley, or from some other cause, the fly wheel of the engine was destroyed, the governor broken, and everything crushed, — in a word, that the short circuit in the tower by reason of the fire caused an ex- tra strain upon the belt, through the action of electricity, and that caused the damage." It was held that the loss was a natural and proximate consequence of the fire, and recoverable. Lynn Gas & Electric Co. v. Merideu Fire Ins. Co., 158 Mass. 570. 33 N. E. 690. 27 Royston v. Illinois Cent. R. Co., 67 Miss. 376, 7 South. 320; Jackson v. Hall, 84 N. C. 489; Wulstein v. Mohlman (Super. N. Y.) 5 N. Y. Supp. 569; ElHs V. Cleveland, 55 Vt. 358; Huxley v. Berg, 1 Starkie, 98; Hampton v. §§ 24-26) CONSEQUENTIAL LOSSES. 45- jury, without the intervention of other independent causes, or the damages will be too remote.-® JUustrations of Proximate and Remote Consequences. Where defendant destroyed the lateral support of a house by wrongfully excavating in a public street, he is liable for injuries to an adjoining house depending on the other for support,^" no independent cause having intervened. A gas company contracted to supply plaintiff with a service pipe, and laid a defective pipe, from which gas escaped. A plumber employed by plaintiff took a lighted candle to discover from whence the gas escaped, and an explosion took place. The negligence of the gas company in lay- ing a defective pipe was held the proximate cause of the explo- sion.^" Here the injury could not have happened but for the in- tervening negligence of the plumber, but the obvious tendency of the original fault was to set in operation just such a force, and therefore the loss could not be regarded as remote. Where a vil- lage maintains a sidewalk at an unsafe height without guards it is liable for injuries to one who is negligently pushed off by a Jones, 58 Iowa, 317, 12 N. W. 2TG; Swinfin v. Lowry, 37 Minn. 345, 34 N. W. 22; Lewis v. Flint & P. M. Ry., 54 Mich. 55, 19 N. W. 744 (cause and occa- sion. Opinion by Cooley, J., collecting and discussing cases). Where a 10' year old boy, while attempting to climb up a ladder attached to a box car of a moving train, lost his footing, and was thrown under the train and killed, his own negligence was the proximate cause of his death. There was no causal connection between the negligence of the company in running its train at a greater speed than allowed by ordinance, and the injui-y suffered. West- ern Ry. of Alabama v. Mutch, 97 Ala. 194, 11 South. 894. Money paid by a railroad company as damages and expenses of a suit brought against it for ejecting a passsenger who refused to pay fare, except by presenting a coupon issued by a connecting line without authority, cannot be recovered from the latter; for the only remedy, as against it, was to refuse to recognize the cou- pon, and the subsequent ejection, particularly if accompanied by unnecessary force, was not made legally necessary by its act In selling the ticket, but was upon the sole responsibility of the company causing the same. Pennsylvania R. Co. V. Wabash, St. L. & P. R. Co.. 157 U. S. 225, 15 Sup. Ct. 57G. 28 Rnrker v. Athens Manuf'g Co., 54 Ga. 84. 20 r.altimore & P. R. Co. v. Reaney, 42 Md. 118. 80 Burrows v. March Gas & Coke Co., 39 Law .7. Exch. 33 L. R. 5 Exch. (;7. See, also, I>annen v. Albany Gaslight Co., 44 N. Y. 4."9; Ivouisvillo Gas Co. v_ Gutenkuntz. 82 Ky. 432. •4G COMP]':.\SAT()IiY DAMAGES. (Ch. 3 third person;'^ but, wliere a town negligently leaves an excava- tion in a street, it is not liable to one who was willfulh' thrown into it by another.^- The act of the latter was not a natural and ])robable effect of the act of the town. There was no causal con- nection between them. In Sharp v. Powell,^ ^ the defendant, con- trary to a police regulation, had washed his wagon in the public street, allowing the water to run down the gutter, to a sewer which, under ordinary circumstances, would have carried it off. But the grating over the sewer was obstructed, and the water spread over the pavement, and froze, forming a sheet of ice. Plain- tiff's horse, being led by, slipped on the ice, and broke its leg. Defendant did not know that the grating was obstructed. It was held that defendant was not liable, the court saying that the loss was too remote, because not one which defendant could fairly be expected to anticipate as likely to ensue from his act. The forma- tion of the sheet of ice at the sewer was not a natural and prob- able result of defendant's wrong. The obstruction of the grating was an unusual circumstance. The shooting of plaintiff's decedent while making an attack on a neighbor's house when drunk is not a natural and probable con- sequence of the liquor dealer's unlawful conduct in selling to him while intoxicated,^* for independent causes intervened. Where an injury to a traveler on a highway is caused partly by a defective road and partly by ice with which it is covered, the defect in the road is the proximate cause of the injury.^"' The duty of the city is not affected by the fact that the ice is in part the result of arti- ficial causes, as of water escaping from a hose, and not wholly of natural causes, such as the fall of rain.^' 31 ViUage of CartervUle v. Cook, 129 111. 152, 22 N. E. 14. 3 2 Alexander v. Town of New Castle, 115 Ind. 51, 17 N. E. 200. 8 3 L. R. 7 C. P. 253, 41 Law J. C. P. 95. Cf. Chamberlain v. City of Osh- kosh, 84 Wis. 289, 54 N. W. 618. 3 4 Schmidt v. Mitchell, 84 111. 195. And see Bradford v. Boley (Pa. Sup.) ;il Atl. 751. 3 5 City of Atchison v. King, 9 Kan. 550; City of Lincoln v. Smith, 28 Neb. 762, 45 N. W. 41. 3 6 Henkes v. City of Minneapolis, 42 Minn. 530, 44 N. W. 1026. As to high- way accidents generally, see Oliver v. Town of La Vaile, 36 Wis. 592; Jackson ■§§ 24-26) CONSEQUENTIAL LOSSES. 47 Where plaintiff could have avoided the injurious consequences of defendant's wrong, his negligence in failing to do so is regarded as the proximate cause of the damage, and the original fault is remote.^ ^ A carrier set plaintiff down a mile from her destina- tion. The day was cold, and there was a line of street cars which plaintiff might have used, but she walked home, and, in so doing, caught cold, and suffered permanent injuries. The injury was held too remote, plaintiffs negligence in failing to take the street car having intervened and caused the injury.^* Where a human agency or the voluntary act of a person over whom defendant has no control intervenes after defendant's wrong- ful act, the consequences are usually remote.^® But, where the act of the third party is a natural and probable result of defend- ant's acts, the loss is not too remote.*" Loss of credit or custom involves the intervention of the will of strangers, and is therefore usually too remote.*^ But, where the wrongful conduct directly V. Town of Bellevieu, 30 Wis. 250; Kelley v. Town of Foud du Lac. 31 Wis. 179; Moulton v. Inhabitants of Sanford, 51 Me. 127; Cobb v. Inhabitants of Standish, 14 Me. 198; Marble v. City of Worcester, 4 Gray, 395; Palmer v. Inhabitants of Andover, 2 Gush. 600; Davis v. Inhabitants of Dudley. 4 Allen, 557; Smith v. Smith, 2 Pick. 621; Horton v. City of Taunton, 97 Mass. 206. note; Hyatt v. Trustees of Village of Rondout, 44 Barb. 3S5; Sykes v. Pawlet, 43 Vt. 440; Bovee v. Danville, 53 Vt. 183. 3 7 See post, "Avoidable Consequences." 38 Francis v. St. Louis Transfer Co., 5 Mo. App. 7. See, also, Hobbs v. Rail- road Co., L. R. 10 Q. B. Ill; Indianapolis, B. & W. R. Co. v. Birney, 71 111. .391. But see Drake v. Kiely, 93 Pa. St. 492. 39 Burton v. Pinkerton, L. R. 2 Exch. 340; Stone v. Codman, 15 Pick. 297; Schmidt v. Mitchell, 84 111. 195; Hampton v. Jones, 58 Iowa, 317, 12 N. W. 276; Ellis V. Cleveland, 55 Vt. 358; Mitchell v. Clarke, 71 Gal. 163, 11 Pac. SS2; State V. Ward, 9 Heisk. 100, 133; Vicars v. Wilcocks, 8 East, 1, 2 Smith, Lead. Cas. Eq. .553, and exhaustive note. Loss of a situation is not a proximate con- sequence of an assault and battery. Brown v. Cummings, 7 Allen, 507. "J Vt. 57; Burnap v. Wight, 14 111. 301. See Alexander v. .lacoby, 2:! Ohio St. 358; Dennis v. Stoughton, 55 Vt. 371; Pollock v. (Jamil, 69 x\!a. 373. CoiiLni, MacVeagh v. Bailey, 29 111. App. (;(x;. 48 COMPENSATORY DAMAGES. (Ch. S affects the credit or trade of plaintiff, the rule is otherwise.*^ A trespasser is liable for the injury caused by a crowd which he draws after him, if his act was of a nature to attract a destructive crowd.*^ 27. CONSEQUENTIAL! DAMAGES FOR TORTS— Com- pensation may be recovered for all tlie consequen- tial losses resulting from a tort -which were natural and probable at the time the tort was committed (p. 49). 28. CONSEQUENTIAL DAMAGES FOR BREACH OF CONTRACT — Compensation may be recovered only for such consequential losses resulting from a breach of contract as Tvere natural and probable under the circumstances contemplated by the parties at the time the contract was made (p. 51). Compensation can be recovered for consequential losses only when they are the natural and probable result of the wrongful conduct. Natural consequences are those which follow an act in the usual order of events, and which, therefore, might reasonably have been anticipated under the circumstances.** Whether the action is for a tort or a breach of contract, the loss must be the proximate re- sult of the primary fault, or compensation cannot be recovered.** In determining whether the loss suffered is a proximate conse- quence, the test in both classes of cases is the same, — the natural and probable tendency of the wrongful conduct to produce the loss in question. But, in determining what consequential losses shall be compensated, there is an important distinction between cases of contract and cases of tort*^ Liability for consequences is much more extended in the case of torts than of contracts. Compen- sation may be recovered for all the injurious consequences of a tort which result according to the usual order of events and gen- 42 Boyd V. Pitt, 14 Ir. C. L. 43; Larios v. Gurety, L. R. 5 P. C. 34G; Tarle- ton V. M'Gawley, Peake, N. P. 270. <3 Fairbanks v. Kerr, 70 Pa. SL S6; Guille v. Swan, 19 Johns. 3S1. ** Ante, p. 40. 4 5 Ante, pp. 4, 34. 4 6 Sutb. Dam. § 45. §§ 27-28) CONSEQUENTIAL DAMAGES. 49 eral experience, and which, therefore, at the time the tort was committed, the wrongdoer may reasonably be presumed to have anticipated.*" But, for breach of contract, compensation may be recovered only for such consequential losses as are natural and probable under the circumstances contemplated by the parties at the time the contract was made; and it is wholly immaterial w^htit consequences are natural and probable, or even actually contem- plated at the time of the breach.*^ "For proximate and natural consequences of the defendant's act, whether it be a breach'' of con- tract or a tort, a recovery can always be had. The only meaning of the rule with regard to the contemplation of parties is that in contract a particular species of proof as to special consequences is often available, which is not so in tort." *® Consequential Damages for Torts. Where, at the time a tort was committed, it might have been reasonably expected to set in operation the intermediate cause of an injury, or where it exposes plaintiff to the risk of injury from some fairly obvious danger, which ultimately results in injury, the loss is a natural and probable one, and may be compensated. The rule that compensation for consequential injuries caused by torts cannot be recovered unless they are such as could have been rea- sonably anticipated does not require the injury to have been ac- tually foreseen.^" It is simply another way of stating the rule *7 Hoadley v. Transportation Co., 115 Mass. 304; Flori v. City of St. Louis, 60 Mo. 341; Forney v. Geldmacher, 1~> Mo. 113; Hughes v. McDonough, 43 N. J. Law, 4G9; Wiley v. Raih-oad Co., 44 N. J. Law, 247; Warwick v. Hutchin- son, 4.5 N. .1. Law, 61; Chalk v. Railroad Co., 85 N. C. 423; Daniels v. Bnllan- tine, 23 Ohio St. 532; Jackson v. Railroad Co., 13 Lea, 491; Borchardt v. Boom Co., 54 Wis. 107, ,11 N. W. 440. 48 Suth. Dam. § 45; Hadley v. Baxendale, 9 Exch. 341; Candee v. Telegraph Co., 34 Wis. 479; Pacific Exp. Co. v. Darnell, 02 Tex. 039; Thomas, B. & W. Manuf'g Co. v. Wabash, St. L. & P. R. Co., 02 Wis. 042, 22 N. W. 827; Smitli v. Osbom, 143 Mass. 185, 9 N. E. 558; Frohreich v. Ganiiiion, 28 Minn. 47t;, 11 iN. W. 88; W. U. Tel. Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. 577; Weaver v. Penny, 17 111. App. 028; Packard v. Slack, 32 Vt. 9; Smith v. Green, 1 C. P. Div. 92; RIech V. Bolch, 08 Iowa. 520, 27 N. W. 507; McAlister v. Railroad Co.. 71 .Mn. 351; .lones v. Gilmore, 91 Pa. St. 310. So(> post, 51 et scii. *'■' Sodg. Dam. § 871. tf> Siith. Dam. § 28; B(]\vas v. Tow Line, 2 Sawy. 21. \<\'i\. Cas. No. l,7i;;. I>AW DAM. — 4 50 COMPKNSATOHY DAMAGES. (Ch. 3 that damages, to be recoverable, must be natural and probable; and it is misleading. "The damages are not limited or affected, so far as they are compensatory, by what was, in fact, in contemj)la- tion by the party in fault." °^ If a tort feasor expected the injury to result from his wrongful act, which in fact did result, be must be presumed to have intended to cause that particular injury; and the loss would be a direct rather than a consequential one, and compensation could be recovered on the principle already ex- plained.^- That which a man actually foresees is to him, at all events, natural and probable.^^ All that is required is that the injury be such as would probably result from such a tort under the circumstances.*^* Every person may reasonably be presumed to know what the consequences of their acts will be according to common experience and the usual course of nature, and required to guard against them.^^ To that extent, therefore, a wrongdoer 51 Suth. Dam. § 16. 62 Stevens v. Dudley, 56 Vt. 158, 106. 53 Pol. Torts. 28. 54 Wliart. Neg. §§ 77, 78; Suth. Dam. § 16; Hig:g:ins v. Dewey, 107 Mass. 494; White v. Ballou, 8 Allen, 408; Luce v. Insurance Co., 105 Mass. 297; Stevens v. Dudley, 56 Vt. 158; Brown v. Railroad Co., 54 Wis. 342, 11 N. W. 356, 911; Terre Haute & I. R. Co. v. Buck, 96 Ind. 346; Winkler v. Railroad Co., 21 Mo. App. 99; Evans v. Railroad Co., 11 Mo. App. 463; Baltimore City P. R. Co. V. Kemp, 61 Md. 74; Hoadley v. Transportation Co., 115 Mass. 304; Ehrgott V. .Mayor, etc., 96 N, Y. 264, 281; Milwaukee & St. P. R. Co. v. Kel- logg, 94 U. S. 469; Clark v. Chambers, 3 Q. B. Div. 327. It is enough that the damage is the natural, though not the necessary, result. Miller v. St. Louis, I. M. & S. Ry. Co, 90 Mo. 389, 2 S. W. 439; Baltimore City P. R. Co. v. Kemp, 61 Md. 74. But see Brown v. Chicago, M. & St. P. R. Co., 54 Wis. 342, 11 N. W. 356, 911, and Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. 764. See, also, SchefCer v. Railroad Co., 105 U. S. 249; Binford v. John- ston, 82 Ind. 426; Schmidt v. Mitchell, 84 111. 195; Eames v. Railroad Co., 63 Tex. 660; Campbell v. City of Stillwater, 32 IMinn. 308, 20 N. W. 320; The Netting Hill, 9 Prob. Div. 105; Childress v. Yourie, Meigs (Tenn.) 561; Forney V. Geldmacher, 75 Mo. 113; Schrader v. Crawford, 94 111. 357. 5 5 One who places another, whom he has made helplessly drunk, in charge of a horse, is presumed to have anticipated the injury which followed. Dun- lap V. Wagner, 85 Ind. 529. See, also, Mead v. Stratton, 87 N, Y. 493; Bertholf v. O'Reilly, 8 Huu, 16; Id., 74 N. Y. 509; Aldrich v. Sager, 9 Hun. 537: Mulcahey v. Givens, 115 Ind. 286, 17 N. E. 598; Brink v. Railroad Co., 17 Mo. App. 177, 199. §§ 27-28) CONSEQUENTIAL DAMAGES. 51 is liable to any person injured by his wrongful acts. But no per- son can be required to guard against the extraordinary or unusual consequences of an act; and, there being no duty to guard against them, such losses are damnum absque injuria,^® The loss — the damnum — is there, but the injuria is wanting. Consequential Damages for Breach of Contract. "There are some important considerations which tend to limit damages in an action upon contract, which have no application to those purely of tort. Contracts are made only by the mutual con- sent of the respective parties; and each partj^ for a consideration, thereby consents that the other shall have certain rights as against him, which he would not otherwise possess. In entering into the contract, the parties are supposed to understand its legal effect, and, consequently, the limitations which the law, for the sake of certainty, has fixed for the recovery of damages for its breach. If not satisfied with the risk which these rules impose, the par- ties may decline to enter into the contract, or may fix their own rule of damages, when, in their nature, the amount must be un- certain. Hence, when suit is brought upon such contract, and it is found that the entire damages actually sustained cannot be re- covered without a violation of such rules, the deficiency is a loss, the risk of which the party voluntarily assumed on entering into the contract, for the chance of benefit or advantage which the 56 A woman's illness, resulting from fright, is not the natural result of the shooting of a dog. Renner v. Canfield, 36 Minn. 90, 30 N. W. 435. Plaintiff, was in bed, in her house. A quarrel between defendant and her husband so frightened her that she gave premature birth to a child. Defendant did not know of her proximity, nor of her condition. He was held not liable. Phil- lips V. Dickerson, 85 111. 11. See, also, Rich v. Railroad Co., 87 N. Y. 382; Allegheny v. Zimmerman, 95 Pa. St. 287; Louisville, N. A. & C. R. Co. v. Lucas, 119 Ind. 583, 21 N. E. 908; Johnson v. Druuunond, 16 111. App. 641; Nelson v. Railroad Co., 30 Minn. 74, 14 N. W. 300; Royston v. Railroad Co.. 67 Miss. 376, 7 South. 320; .Jackson v. Hall, 84 N. C. 489; Wulstoin v. Mohl- raan (Super. Ct) 5 N. Y. Supp. 569; Ellis v. Cleveland, 55 Vt. 358; Huxley v. Berg, 1 Starkie, 9&; Hampton v. Jones, 58 Iowa, 317, 12 N. W. 276; Pliyfo v. Railroad Co., 30 Hun, 377; Teagarden v. Hetfiold, 11 Ind. 522; Gamble v. Mullin, 74 Iowa, 99, 30 N. W. 909. Damages for loss of prospective olTsprliift r-annot be recovered in an action for nogligciuo resulting in a miscarriage, liuller V. Railroad Co., 143 N. Y. 417, .38 N. E. 454. r)2 COMPENSATOUY DAMACICS. (Ch. a contract would have given him in case of performance. His posi- tion is one in which lie has voluntarily contributed to place him- self, and in which, but for his own consent, he could not have been placed by the wroniiful act of the opi)osite party alone. "Again, in the majority of cases upon contract, there is little dilli- culty, from the nature of the subject, in finding a rule by which substantial compensation may be readily estimated; and it is only in those cases where this cannot be done, and where, from the na- ture of the stipulation or the subject-matter, the actual damages resulting from a breach are more or less uncertain in their nature, or diflicult to be shown with accuracy by the evidence, under any definite rule, that there can be any great failure of justice by ad- hering to such rule as will most nearly approximate the desired result. And it is precisely in these classes of cases that the parties have it in their power to protect themselves against any loss to arise from such uncertainty, by estimating their own dam- ages in the contract itself, and providing for themselves the rules by which the amount shall be measured in case of a breach ; and, if they neglect this, they may be presumed to have assented to such damages as may be measured by the rules which the law, for the sake of certainty, has adopted, ''Again, in analogy to the rule that contracts should be construed as understood and assented to by the parties (if not as a part of that rule), damages which are the natural, and, under the circum- stances, the direct and necessary, result of the breach, are often very properly rejected, because they cannot fairly be considered as having been within the contemplation of the respective parties at the time of entering into the contract. None of these several considerations have any bearing in an action purely of tort. The injured party has consented to enter into no relation with the wrongdoer by which any hazard of loss should be incurred; nor has he received any consideration or chance of beneS^ or advantage for the assumption of such hazard; nor has the wrongdoer given any consideration nor assumed any risk in consequence of any act or consent of his. The injured party has had no opportunity to protect himself by contract against any uncertainty in the esti- mate of damages. Mo act of his has contributed to the injury. He has yielded nothing by consent; and least of all has he cnn- §§ 27-28) CONSEQUENTIAL DAMAGES. 53 sented that the wrongdoer might talce or injure his property, or deprive him of his rights, for such sum as, by the strict rules which the law has established for the measurement of damages in actions upon contract, he may be able to show, with certainty, he has sustained by such taking or injury. Especially would it be unjust to presume such consent, and to hold him to the recov- ery of such damages only as may be measured with certainty by fixed and definite rules, when the case is one which, from its very nature, affords no elements of certainty by which the loss he has actually suffered can be shown with accuracy by any evidence of which the case is susceptible. Is he to blame because the case liappens to be one of this character? He has had no choice, no selection. The nature of the case is such that the wrongdoer has chosen to make it; and, upon every principle of justice, he is the party who should be made to sustain all the risk of loss which may arise from the uncertainty pertaining to the nature of the case, and the difficulty of accurately estimating the results of his own wrongful act." ^^ Parties enter into contracts with a view to securing some advan- tage to themselves, and when one of them is, by the other's breach, deprived of the benefit which the latter contracted he should re- ceive, the fundamental principle of compensation requires the dam- ages for the breach to be in proportion to the benefit which was to have been received. For anything amounting to a direct breach of contract, whether foreseen or unforeseen, the party responsible therefor is liable, because he has contracted that the other party shall receive that very thing; but he is not liable for indirect or consequential losses resulting from the breach, unless they are such as the parties may reasonably be presumed to have contemplated at the time the contract was made.'^ The reason is obvious. De- fendant's liability rests on the assumption that he has wrongfully 5T Allison V. Chandler, 11 Mich. 511.', Moch. Cas. Dam. 09. 58 The use of the phrase that "damages must have been conteniiilatcd," or that they must be such as "the parties may be presumed to have contem- plated," and the like, is too universal to be gotten rid of. Tlio author conceives the phrase to mean simply that the bonelits for loss of which plaint itf claims compensation must be such as the parties may be presuujcd to iiavc coutem- plated. /■)4 COM PENS ATOUY DAMAGES. (Ch. 3 deprived plaintiff of a benefit which ho had contracted plaintiff should receive; but, as to benefits dependent on circumstances un- known to him, defendant has made no contract, and is therefore not liable for their loss. lldiUcy V. liiixcndale. In Iladley v. Baxendale ^° an attempt was made to settle this branch of the law, and a rule was laid down to govern the award of damages for breach of contract, that has been generally accepted both in England and America.^" In this case the plaintiffs were owners of a steam mill. The shaft was broken, and they gave it to the defendant, a carrier, to take to an engineer, to serve as a model for a new one. On making the contract, defendant's clerk was informed that the mill was stopped, and that the shaft must be sent immediately. He delayed its delivery; the shaft was kept back in consequence; and, in an action for breach of contract, plain- tiffs claimed as special damages the loss of profits while the mill was kept idle. It was held that, if the carrier had been made aware that a loss of profits would result from a delay on his part, he would have been answerable. But, as it did not appear that defendant knew that the want of the shaft was the only thing which was keep- ing the mill idle, he could not be made responsible to such an ex- tent. The court said: ''^^e think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered either arising naturally — i. e. according to the usual course of things — from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and §§ 27-28) CONSEQUENTIAL DAMAGES. 59 natural consequence of a carrier's delay in delivering them, where the carrier was not informed of the purpose for which they were shipped.^® So, also, in the absence of notice, no consequential dam- ages can be recovered for delay in transmitting cipher telegrams.^** The rule that damages for breach of contract, arising from special circumstances not known to defendant cannot be recovered would seem to be almost a truism. Starting with the proposition that damages, to be recoverable in any case, must be natural and prob- able, — i. e. proximate, — by the very definition of "natural" and "prob- able," damages dependent on special and unknown circumstances are excluded. of the parties in consequence of a breach is the diminution in value of the horse, and compensation for the brealiing of plaintiff s wagon and harness in consequence of the unkindness of the horse cannot be recovered. Case v. Stevens, 137 Mass. 551. A carrier is not liable for damages for delay in the construction of a house caused by its loss of plans. Mather v. American Exp. Co., 138 Mass. 55. Damages for breach of a contract to supply boilers to be used in a pleasure boat at a summer resort are the rental value of the boat during the period of delay. Brownell v. Chapman, 84 Iowa, 504, 51 N. W. 249. Where there is a special contract to deliver apples to a connecting carrier by a certain date, made for the purpose of avoiding the danger of the apples freezing on the connecting line, damage to the apples by freezing is a natural consequence of delay. Fox v. Boston & M. R. Co., 148 Mass. 220, 19 N. E. 22::. Demurrage paid to a railroad company is a natural consequence of a breach of contract to load tiles on a vessel from a train. Welch v. Anderson, Gl Law .J. Q. B. 167. 6 9 Hales V. Railroad Co., 4 Best & S. 66, 32 Law J. Q. B. 292; Frazer v. Smith, (iO 111. 145. See, also. New York Academy of Music v. Hackctt, 2 Hilt. 217; Morgan v. Negley, 53 Pa. St. 153; Arrowsmith v. Gordon, 3 La. Ann. 105; Brock v. Gale, 14 Fla. 523; Benziger v. Miller, 50 Ala. 206; Aldrich v. Goodcll, 75 111. 452; Piper -v. Kingsbury, 48 Vt. 4S0; Prosser v. Jones, 41 Iowa, 674; Halloway v. Stephens, 2 Thomp. & C. (N. Y.) 658; Fort v. Orndoff, 7 Heisk. (Tenn.) 167; Keith's Ex'r v. Hiukston, 9 Bush (Ky.) 283; Noble v. Ames Manuf'g Co., 112 Mass. 492. \V here a machine is totally ruined in trans- portation, the carrier is liable for its whole value; but, where it had no notice that the machine was to be used by plaintiff in his business, it is not liable for the loss of the use of the machine while another was being procured to supply the place of the one destroyed. Thomas, B. & W. Manuf'g Co. v. Wal)asli, St. L. & P. Ry. Co., 62 Wis. 642, 22 N. W. 827. 70 Mackay v. W. U. Tel. Co., 16 Nev. 222; Cannon v. Same, 100 N. C. 300, 6 S. E. 731; Daniel v. Same, 61 Tex. 452; Candoo v. Same. 31 Wis. 471. Con- tra, Daughtery v. American Union Tel. Co., 75 Ala. 168. Sue posi, p. 2.S9. (jO COMPKNSATOllY DAMAGES. i.Ch. 3 Third L'ide of Ilndlctj v. Baxendale — Notice of Special Circumstances. When, at the time of making a contract, notice is given of thf purpose of making it, or of special circumstances affecting the quan- tum of danuigt's likely to result from a breach, damages may be re- covered for all the natural and probable consequences of a breach under those circumstances.''^ This is the third rule of Hadley v, ^1 In au action for breach of a contract wliich was made to enable plaiutilt' 10 fuUill another contract with a third person, of which purpose defendant had notice, damages for the loss on such subcontract may be recovered. Berries V. Hutchinson, IS C. B. (N. S.) 445, 403; Elbinger Actien-Gesellschafft fiir Fabrication von Eisenbahn Materiel v. Armstrong, L. R. 9 Q. B. 473, 479; Hinde v. Liddell, L. 11. 10 Q. B. 265; Grebert-Borgnis v. Nugent, 15 Q. B. Div. 85, 89; Messmore v. New York Shot & Lead Co., 40 N. Y. 422. Where there is notice of a subcontract, but not of the price, if the price is reasonable the profits of the subcontract may be recovered. Illinois Cent. R. Co. v. Cobb, 04 111. 128; Cobb v. Illinois Cent. R. Co., 38 Iowa, 001. And see Harper v. Miller, 27 Ind. 277. Otherwise not. Home v. Midland R. Co., L. R. 7 C. P. 583; Home v. Midland R. Co., L. R. 8 C. P. 131; Lewis v. Rountree, 79 N. C. 122. One who sells a cow to a farmer has notice that she will be placed with other cattle, and, in action for breach of warranty that she is free from foot and mouth disease, damages may be recovered for loss of other cattle to which the disease was communicated. Smith v. Green, 1 C. P. Div. 92. See, also, ante. note 20. A defendant has notice that, in the usual course of business, goods bought by a dealer will be resold. Hammond v. Bussey, 20 Q. B. Div. 79; Thorne v. McVeagh, 75 111. 81. A contract may be of such a nature as to necessarily contemplate subcontracts, as, for example, building contracts, and therefore damages may be recovered arising out of such subcontracts. Smith v. Flan- ders, 129 Mass. 322; McHose v. Fulmer, 73 Pa. St. 305. The damage nat- urally resulting from the breach of an ordinary contract of sale, and therefore presumably contemplated, is the difference between the contract price and the market price, if the goods have a market price; otherwise it is the difference between the contract price and the actual value. Rhodes v. Baird, 10 Ohio St. 573. But where the purchase is made with a view to a known resale al- ready contracted, the damages for a breach are the difference between the two contract prices. Booth v. Spuyten Duyvil Rolling-Mill Co., 00 N. Y. 487; Carpenter v. First Nat. Bank, 119 III. 354, 10 N. B. 18. Where there is notice of special use or need for goods. See Fletcher v. Tayleur, 17 C. B. 21; Schulze V. Great Eastern R. Co., 19 Q. B. Div. 30; Fox v. Railroad Co., 148 Mass. 220, 19 N. E. 222; Smeed v. Foord, 1 El. & El. 002; Simpson v. Railroad Co., 1 Q. B. Div. 274; Richardson v. Chynoweth, 20 Wis. 050; Hamilton v. Western N. C. R. Co.. 96 N. C. 398. 3 S. E. 104; Deming v. Grand Triink R. Co., 48 N. H. 455; Gee v. Railroad Co., 6 Hurl. & N. 211; Jones v. National Printing Co., 13 §§ 27-2SJ CONSEQUENTIAL DAMAGES. 61 Baxendale. The reason for it is found in tlie fundamental prin- ciple of compensation underlying the entire law of damages. The amount of benefit which a party to a contract would derive from its performance is the measure of damages for its breach.^' Where defendant knows that plaintiff contracts for the purpose of secur- ing a special benefit, he must be deemed to have contracted that plaintiff should receive such benefit, and he is liable for a breach accordingly. The intention of the parties must be arrived at by interpreting the contract in the light of the surrounding circum- stances known to both parties, and such circumstances form as much a part of the contract as if they were written into it. If the special circumstances were in fact written into the contract, the damages arising from a breach under those circumstances would be direct, and not consequential. '^^ If a contract of sale is made to enable the vendor to secure a special benefit, and that object is known to defendant, the principle of just compensation requires him to make good its loss arising from his failure to deliver the goods.''* In such case, the contract, interpreted in the light of the object for Daly. 92; Vickery v. MeCormick, 117 Ind. 594, 20 N. E. 495. Where there is notice of special use for premises. See Hexter v. Knox, 63 N. Y. 561; Town- send V. Nickerson Wharf Co., 117 Mass. 501; Haven v. Wakefield, 39 111. 509. Notice of special use of funds. Grindle v. Eastern Exp. Co., 67 Me. 317. The damages recoverable are such as ordinarily arise according to the intrinsic na- ture of the contract, and the surrounding facts and circumstances made known to the parties at the time of making it. Suth. Dam. § 51; Davis v. Talcott, 14 Barb. 611; Cobb v. Railroad Co., 38 Iowa, 601; Haven v. Wakefield, 39 111. 509; Illinois Cent. R. Co. v. Cobb, 64 111. 128; Wmne v. Kelley, 34 Iowa, 3.TJ; ^'an Arsdale v. Rundel, 82 111. 63; Rogers v. Bemus, 69 Pa. St. 432; Hinckley V. Beckwith, 13 Wis. 34; Leonard v. New York, etc., T. Co., 41 N. Y. 544; Scott V. Rogers, 31 N. Y. 676; Hexter v. Knox, 63 N. Y. 561; True v. Telegraph Co., 60 Me. 9; Fletcher v. Tayleur, 17 C. B. 21; Squire v. Telegraph Co., 98 Mass. 232; Borradaile v. Brunton, 8 Taunt. 535; In re Trent & Huraber Co., L. R. G Eq. 390; Dewint v. Wiltse, 9 Wend. 325; Dobbins v. Duquid, 65 111. 464; Shepard v. Milwaukee (Jas-Light Co., 15 AVis. 318; Richardson v. Chyuoweth. 26 Wis. 6.j6; Wolcott v. Mount, 36 N. J. Law, 262; Benton v. Fay, 64 111. 417; Grindle v. Eastern Exp. Co., 67 Me. 317; Ilaiiiilton v. M:igill, 12 L. U. Ir. 186, 204. 72 Alder v. Keighley, 15 Mccs. & W. 117. -■? Suth. Dam. § .50; Sedg. Dam. § 160. ■J-* Hammer v. Schoenfeldor, 47 Wis. 1."), 2 .\. W. 1129. See, also. Maiiniii.u V. Filch, i:;8 .Ma.ss. 273; Bccinan v. U:iiil:i, 118 N. V. ."i.-.s, 2:'. .\. K. SS7. 62 COMPENSATORY DAMAGES. (Ch. 3 which it was made, is more than a mere contract of sale.'"^ The notice cannot require the performance of any additional act to ful- fill the contract, for that would be making a new and different con- tract, and a written contract could not be so varied by parol. A verbal notice is sufllcient to enlarge the damages recoverable for the breach of a written contract.^ ^ Mere knowledge will not increase the damages recoverable for a breach.'^ The knowledge must be brought home to the party sought to be charged, under such circumstances that he must know that the person he contracts with reasonably believes that he ac- cepts the contract with the special condition attached to if® Mr. Sedgwick says ^^ that the notice must form the basis of the contract, but need not form part of it, whatever that may mean. Mr. ^layne states the result of the decisions on this subject as follows i^** "First. Where there are special circumstances connected with a contract which may cause special damage to follow if it is broken, mere no- tice of such special circumstances given to one party will not render him liable for the special damage, unless it can be inferred from the whole transaction that he consented to become liable for such spe- cial damage. Secondly. Where a person who has knowledge or notice of such special circumstances might refuse to enter into the contract at all, or might demand a higher remuneration for enter- ing into it, the fact that he accepts the contract without requiring any higher rate will be evidence, though not conclusive evidence, 7 5 Suth. Dam. § 50. 7 6 See Hydraulic Enjjineering Co. v. M'Haffie, 4 Q. B. Div. G70. T7 Sedg. Dam. § 150; Wood, Mayne, Dam. § 36; Biiti-sh Columbia & "Vancou- ver's Island Spar Lumber & Saw-Mill Co. v. Nettleship, L. K. 3 C. P. 499, 37 Law J. C. P. 235. 7 8 British Columbia & Vancouver's Island Spar Lumber & Saw-Mill Co. v. Nettleship, L. R. 3 C. P. 499, 37 Law J. C. P. 235; Smeed v. Foord, 1 El. & El. G02, G08; Booth v. Spuyten Duyvil Rolling-Mill Co., GO N. Y. 487; Clark v. Moore, 3 Mich. 55, Gl; Snell v. Cottiugham, 72 111. IGl; Home v. Midland K. Co., L. R. 8 C. P. 131; Elbinger Actien-Gesellschafft fiir Fabrication von Eison- bahn Materiel v. Armstrong, L. R. 9 Q. B. 473, 43 Law J. Q. B. 211. 7 9 Sedg. Dam. § IGO. citing Cory v. Thames I. W. & S. B. Co., L. R. 3 Q. B. 181, in which the damages were held to be natural consequences, and the question of notice was therefore immaterial, and Baldwin v. United States Tel. Co., 45 N. Y. 744. «o Wood, Mayne, Dam. § 41. ■§§ 27-28) CONSEQUENTIAL DAMAGES. 63 from which it ma}' be inferred that he has accepted the additional risk in case of breach. Thirdly. Where the defendant has no option of refusing the contract,®^ and is not at liberty to require a higher rate of remuneration, the fact that he proceeded in the contract after knowledge or notice of such special circumstances is not a fact from which an undertaking to incur a liability for special damages can be inferred." General Result of Hadley v. Baxendale. Hadley v. Baxendale introduced no new rule of damages.®^ It is simply a statement, in rather more specific form, of the general prin- ciple that damages, to be recoverable, must be natural and probable. To determine the natural and probable results of a breach of con- tract, we must first know its meaning, and we learn this by inter- preting the contract in the light of all the circumstances known to the parties at its execution. Liability in cases of contract is founded on consent. One can reasonably be presumed to consent to liability only for what is at the time natural and probable under the circumstances then contemplated. Consequences that, in the usual course of things, follow the breach of similar contracts, are natural consequences; and the parties may fairly be presumed to have contemplated them, and to have consented to liability to that extent in case of breach. Where the damages arise from special circumstances, the parties cannot be presumed to have contemplated them, and to have consented to liability, unless such circumstances were made known to them. Where such circumstances are in fact made known, there is no longer any reason for treating them as special, and damages arising under such circumstances are consid- ered natural and probable. Motive Inducing Breach. Since liability for a breach of contract is dependent on the cir- cumstances known at its execution, the motive which induced the violation of the contract cannot be shown either to increase or di- minish the amount of the recovery. Actions for breach of promise of marriage constitute the only exception to this rule. "It fre- quently happens that circumstances of fraud, malice, or vioh'nce give rise to an action of tort as an alternative remedy; but, where 81 As in case of coiuuiou tanifis. 82 JSedg. Dam. 211. 04 COMPENSATORY DAMAGES. (Ch. 5 i\\v plaintifT chooses to sue upon tlie eouti'act, he lets in all the con- sequences of that form of action." ^^ It has sometimes been held that, for breach of a contract to convey land, the vendor would be liable to higher damages if he had acted in bad faith than if he had acted innocently. The cases are conflicting, and will be considered in a later chapter.** In England the doctrine has been finally over- ruled. 'The fraud may give rise to an action for deceit. But, as- long as the plaintiff chooses to sue for breach of contract, he cannot,, by establishing misconduct on the part of the defendant, alter the rule by which damages for breach of contract are assessed." *' AVOIDABLE CONSEQUENCES. 29. Compensation cannot be recovered for injuries "w^liich the injured party, by due and reasonable diligence, after notice of the wrong, could have avoided. Such consequences are regarded as remote, the injured party's -will having intervened as an independent cause. Compensation for a wrong is limited to such consequences as the injured party could not have avoided by reasonable diligence.*^ All other consequences are regarded as remote.®" The rule is the same in cases of contract and cases of tort.** The injured party's own negligence or willful fault in failing to take reasonable precautions to reduce the damage, after notice of defendant's wrong, is the proxi- 83 Wood, Mayue, Dam. § 45. 84 Post, c. 13. 85 Wood, Mayne, Dam. § 4G. 8 Loker v. Damon, 17 Pick. 284; Indianapolis, B. & W. Ry. Co. v. Birney, 71 111. 3'Jl; Salladay v. Town of Dodgeville, 85 Wis. 818. 55 N. W. 69G; Brant v. (lallup, 111 111. 487; Grindle v. Eastern Exp. Co., 67 Me. 317; Sutherland v. Wyer, Id. G4; Simpson v. City of Keokuk, 34 Iowa, 568. Recovery for re- peated entries made by defendant's cattle through an unrepaired break in plaintiff's fence should be limited to such entries as occur before plaintiff has had reasonable time to repair such break. Watkins v. Rist (Yt.) 31 Atl. 413. 8T Laker v. Damon, 17 Pick. 284. See, also, Thompson v. Shattuck, 2 Mete, (Mass.) G15. 8 8 Sutherland v. Wyer, G7 Me. 64; Sherman Center Town Co. v. Leonard, 40 Kan. 3.34, 26 Pac. 717. § 29) AVOIDABLE CONSEQUENCES. 65 mate cause of such injuries.*^ Courts frequently speak of tlie duty to make the damages as light as possible, but it is a duty only in the sense that compensation is denied for losses which might have been avoided. In Miller v. Mariner's Church ^° the doctrine was well explained. Weston, J., said: 'T[f the party injured has it iu his power to take measures by which his loss ma^* be less aggra- vated, this will be expected of him. Thus, in a contract of assur- ance, where the assured may be entitled to recover for a total loss, he, or the master employed by him, becomes the agent of the assurer to save and turn to the best account such of the property assured as can be preserved. The purchaser of perishable goods at auction fails to complete his contract. What shall be done? Shall the auctioneer leave the goods to perish, and throw the whole loss on the purchaser? That would be to aggravate it unreasonably and unnecessarily. It is his duty to sell them a second time, and, if they bring less, he may recover the difference, with commissions and other expenses of resale, from the first purchaser. If the party en- titled to the benefit of a contract can protect himself from a loss arising from a breach, at a trifling expense or with reasonable ex- ertions, he fails in social duty if he omits to do so, regardless of the increased amount of damages for which he may intend to hold the other contracting party liable. 'Qui non prohibet, cum prohibere possit, jubet.' And he who has it in his power to prevent an injury to his neighbor, and does not exercise it, is often in a moral, if not m a legal, point of view, accountable for it. The law will not per- mit him to throw a loss resulting from a damage to himself upon another, arising from causes for which the latter may be responsible, which the party sustaining the damage might by common prudence have prevented. For example, a party contracts for a quantity of bricks to build a house, to be delivered at a given time, and engages masons and carpenters to go on with the work. The bricks are not delivered. If other bricks of an equal quality, and for the stipulated price, can be at once purchased on the spot, it would be unreason- able, by neglecting to make the purchase, to claim and receive of the delinquent party damages for the workmen and the amount of rent which might be obtained for the house if it Imd been luiill. ec Loker v. Damon, 17 Pick. 284. • 7 Mf. 'A. Soe, also, Davis v. Fisli, 1 CJ. (Jrcone (Iowa) lOU. I.A-VV DANf. — 5 66 COMPENSATORY DAMAGES. (Ch. 3 Tho party who is not chargeable with a viohition of his contract shoukl do the best he can in such cases; and, for any unavoidable loss occasioned by the failure of the other, he is justly entitled to a liberal and complete indemnity." Compensation for the reason- able expense and labor of an attempt to reduce the damage is chargeable to the person liable for the wrong, even though the at- tempt prove abortive, for the reason that, if the efforts are success- ful, he will have the benefit of them, and therefore, even if unsuc- cessful, it is but just that he should bear the expense of the attempt.^ ^ But the expense must be reasonable. Plaintiff need not incur unreasonable expenses, and, if he does, they cannot be re- covered. '•^ Tlie Rule Applied — Illustrations. For breach of a contract of sale, the vendee can recover only what it would cost with reasonable diligence to procure the goods from The market or elsewhere.^^ Where goods are tendered after the time fixed for delivery, compensation for damages subsequently ac- 91 Benson v. Maiden & Meh-ose Gaslight Co., G Allen, 149; Bennett v. Lock- wood, 20 Wend. 223. Where a horse is injured and rendered entirely worth- less, money expended in good faith and reasonable diligence, in an effort to effect a cure, may be recovered, in addition to the value of the horse. Ellis v. Hilton. 78 Mich. 150, 43 N. W. 1048. See, also, Eastman v. Sanborn. 3 Allen (Mass.) 594. Where plaintift incurs a new injury while reasonably endeavor- ing to avoid the consequences of defendant's wrong, defendant is liable for such new injuries. .Jones v. Boyce, 1 Starkie, 493. Where a passenger on a stagecoach is placed in sudden danger, and, in the exercise of reasonable pru- dence, leaps therefrom, he may recover for injuries caused by the leap, al- though, had he retained his seat, he would have escaped uninjured. lugalls v. 3ills, 9 Mete. (Mass.) 1. See, also, Wilson v. Newport Dock Co., 4 Hurl. & •€. 232. 92 A passenger delayed through the fault of a railway company cannot re- cover the expense of a special train hired by him to reach his destination, where there was no occasion for his presence there at any particular time. Lc Blanche v. Railroad Co., 1 C. P. Div. 286. Where the expense of repairing :i damaged machine would have equaled the price of a new machine, the rule has no application. Thomas, B. & W. Manufg Co. v. Wabash, St. I>. & P. Ry. Co., 62 Wis. 642, 22 N. W. 827. 93 Parsons v. Sutton, 66 N. Y. 92; McHose v. Fulmer, 73 Pa. St. 365; Gains- ford v. Carroll, 2 Barn. & C. 624; Barrow v. Arnaud. 8 Q. B. 604; Hinde v. Liddell, L. R. 10 Q. B. 265; Benton t. Fay, 64 111. 417; Beymer v. McBride, 37 Iowa, 114; Grand Tower Co. v. Phillips, 23 Wall. 471. § 29) AVOIDABLE CONSEQUENCES. 67 cruing cannot be recovered. One cannot refuse to take goods, and then claim damages because he could not get them.^* A vendee need not accept goods tendered at a higher price than the contract price, nor less than the subsequent market value, as such acceptance would constitute an abandonment of the original contract. ^^ The rule applies in an action against a carrier for nondelivery, where the consignee can protect himself against loss by a purchase in the market.®® Where an employ^ is wrongfully discharged before the expiration of the term of service, he must seek other employment; and the measure of damages is the difference between what he might have earned and what he should have received under his contract.®^ Reasonable diligence in seeking other employment does not require one to accept employment of an entirely different or inferior sort, ov to abandon one's home and place of residence.®^ <^ The duty to seek other employment is confined strictly to contracts for the plain- tiff's time.®® It does not apph', for instance, to a contract to build a house. The fact that the contractor has contracts to build a dozen other houses will not mitigate or lessen the damages recoverable for a breach.^ °° ) An employ^ must accept re-employment tendered by the employer who has discharged liim.^°^ But he need not accept re-employment at a less rate, as that would be a modification of the original contract, and a bar to the recovery of any damages." - Where, after notice to an employ^ not to go on with the work, the 9i Parsons v. Sutton, G6 N. Y. 92. 9 5 Havemeyer v. Cunningham, 35 Barb. 515. 8 6 Scott V. Boston & N. O. S. S. Co., lOG Mass. 4G8. 9 7 Walworth v. Pool, 9 Ark. 394; McDaniel v. Parks, 19 Ark. G71; Suther- land V. Wj-er, 67 Me. 04; Hoyt v. Wildtire, 3 Johns. 518; Shannon v. Corn- stock, 21 Wend. 457; Howard v. Daly, Gl N. Y. 3G2; ilendrlckson v. Anderson. .5 Jones (N. C.) 240; King v. Stelren, 44 Pa. St. 99; Gordon v. Brewster, 7 Wis. 3.">. 88 Williams v. Chicago Coal Co., GO 111. 149 Costigau v. Itailroad Co., 2 Denio, 009; Howard v. Daly, 01 N. Y. 302; Fuchs v. Kooruer, 107 N. Y. 529, 14 N, E. 445; Leatherborry v. Odell, 7 Fed. 041; Sheffield v. Page, 1 Spr. 285, ■"ed. Cas. No. 12,743. But see Huntington v. Railroad Co., 33 How. Prac. 410. 99 Wolf V. Studf'baker, 0." Pa. St. 459. 100 Sodg. El. Dam. p. 77. 101 Higolow V. American Forcite Powder Manuf'g Co., 39 Ilnu, ."99. 102 Whitmarsh v. Littlefield, 40 Hun, 418. / GS COMPENSATORY DAMAGKS. (Ch, 3 latter, nevertheless, completes it, ho cannot recover the increased damages so caused.^ °^ Rule of Contributory Negligence Distinguished. The rule of avoidable consequences must not be confounded with that of contributory negligence, though their results are somewhat similar. Contributory negligence is a complete bar to the mainte- nance of the action. It defeats the right to recover any damages whatever. On the other hand, the rule of avoidable consequences- presupposes a valid cause of action. It has no application until a right to recover some damages at all events has arisen, and then it operates merely to reduce the amount of recovery. It cannot en- tirely defeat the action. Though plaintiff might have avoided the entire loss, yet, if an absolute right was invaded, he is entitled to nominal damages.^*^* In cases where damages are the gist of the action, failure to avoid the damage, if it could be done by reason- able effort, would probably be regarded as contributory negligence,^ and a bar to the action. In actions for breach of contract, damages are never of the gist; and therefore a plea that plaintiff might have avoided all damage is no bar to the action. ^°' Nominal damages, at least, are always recoverable for a breach of contract; and the doctrine of contributory negligence has no application. Limitations of Rule. The rule of avoidable consequences requires the injured person to exercise ordinary care to avoid injurious consequences.^"® He need not exercise more care,^°^ but he cannot recover if he exercises less.^°* What is reasonable care is usually a question of fact to- 10 3 Clark v. Marsiglia, 1 Deuio, 317. lo* See ante, 24. losArmfield v. Nash, 31 Miss. 361. IOC Parker v. Meadows, SG Teun. 181, 6 S; W. 41). A party need not, in order to lessen the injury resulting from a breach of contract, employ some one else to do what the contract bound the other party to do. Gulf., C. & S. F. Ry. Co. V. Hodge (Tex. Civ. App.) .30 S. W. 829. 107 Louisville, N. A. & C. Ry. Co. v. Falvey, 104 Ind. 400. 425, 3 N. E. 380, and 4 N. E. 908; Leonard v. Telegraph Co., 41 N. Y. 544. Where a married woman became pregnant after a personal injury, which was thereby aggra- vated, if she had no reason to anticipate such a consequence, she may recover therefor. Salladay v. Dodgeville, 85 Wis. 318, 55 X. W. GOG. 108 Simpson v. City of Keokuk, 34 Iowa, 5GS; AUender v. Railroad Co., 37 § 29) AVOIDABLE CONSEQUENCES. G9 be determined in view of all the circumstances of the case.^°^ No duty to avoid consequences can arise, of course, so long as the plain- tiff is ignorant that a wrong has been committed.^ ^° Nor does the rule require impossibilities. Where, for example, plaintiffs have invested all their money in the purchase of certain corn, they can- not be required to buy other corn in the market in order to avoid a loss caused by the nondelivery of the corn purchased.^ ^^ The rule does not require plaintiff to himself commit a wrong in order to avoid the consequences of defendant's wrong,^^^ If he must vio- late a contract ^^^ or commit a trespass ^^* to aA-oid such conse- quences, the rule does not apply. Neither does the rule require plaintiff to anticipate a wrong. He is entitled to rely upon the pre- sumption that every one will do his duty, and commit no wrong. The rule only applies where a wrong or breach of contract has been actually committed.^ ^^ For example, a passenger on a railroad Iowa, 2(yi. But see Green v. Mann, 11 111. 613; Chase v. Railroad Co., 24 Barb. 273. 109 As to wliat constitutes reasonable care under the circumstances, see, for example, Bradley v. Denton, 3 Wis. 557; Poposkey v. Muukwitz, 6S Wis. 322, 32 N. W. 35; Smith v. Railroad Co., 38 Iowa, 51S. iioBagley v. Cleveland Rolling-Mill Co., 22 Blatchf. 342, 21 Fed. 159; Gulf. C. & S. F. Ry. Co. V. McMannewitz, 70 Tex. 73, 8 S. W. G6. "Suppose a man should enter his neighbor's field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is re- sponsible. But if the owner sees the gate open, and passes it frequently and willfully and obstinately, or, through gross negligence, leaves it open all sum- mer, and cattle get in, it is his own folly." Loker v. Damon, 17 Pick. 284. 111 "It would be very unreasonable to require one who has bought and paid for an article to have the money in his pocket with which to buy a second in case of nondelivery of the first." Illinois Cent. R. Co. v. Cobb, G4 111. 128, 142. See, also. Startup v. Cortazzi, 2 Cromp. M. & K. 165; Middlokauff v. Smith, 1 Md. 320; Wilcox v. Campbell, 106 X. Y. 325, 12 N. E. 823; Id., 35 Hun. 254. 112 Kankakee & S. R. Co. v. Horan, 23 111. App. 259. 113 Leonard v. Telegraph Co., 41 N. Y. 544, 566. 114 Chicago, R. I. & P. R. Co. v. Carey, 90 111. 514; Wolf v. St. Louis Inde- pendent Water Co., 15 Cal. 319; Simpson v. City of Keokuk, 34 Iowa, 568. 115 Beers v. Board of Health, 35 La. Ann. 1132; Roynolds v. Riv(M- Co.. 43 Me. 513; Plummer v. Penobscot Lumbering Ass'n, 67 Me. 367. A landowner need not avoid improving his property merely because he has notice of condonniatioa proceedings. Driver v. Western Union R. Co., 32 Wis. 569. 7U COMPENSATORY DAMAGKS. (Ch. 3 trnin. who is witliont fault, cannot be required to pay his fare a second time, in order to avoid ejection. ^^* THE REQUIRED CERTAINTY OP DAMAGES. 30. Losses must be certain in amount, and certain in re- spect to the cause from \i^hich they proceed, or damages therefor cannot be recovered. The bur- den of proving both these facts is on the plaintiff. In an action for damages, the plaintiff must prove, as a part of his case, both the amount and the cause of his loss. Absolute cer- tainty is not required, but both the cause and the probable amount of the loss must be shown with reasonable certaint}-.^^^ Substan- tial damages may be recovered though plaintiff can only state his loss proximately; but, where the evidence is so vague and uncer- tain that it is impossible to say that any definite amount of damage has been suffered, no damages can be recovered.^ ^^ The cause of a loss already inflicted is shown with sufficient certainty when the loss is shown to be its natural and probable result.^ ^^ Where the loss is pecuniary, and is present and actual, and can be measured, evidence must be given of its extent, or only nominal damages can be recovered.^-" Pain, suffering, injury to the feelings, and the like, cannot be measured by arithmetical rule; and, of necessity, the com- pensation for such injuries is left to the sound discretion of a jury.^-^ Where compensation for actual pecuniary injury^Ts sought, the jury have no discretion. The amount of damage must be proved, and they can award none other.^^^ Where the loss is al- 116 Yorton v. Railway Co., 62 Wis. 3G7, 21 X. W. .SIG, and 23 N. W. 401. 117 East Tennessee, V. & G. R. Co. v. Staub, 7 Lea, 397; Wolcott v. Mount, 36 N. J. Law, 262, 271; Allison v. Chandler, 11 Mich. .j42, 555. 118 Satchwell v. Williams, 40 Conn. 371. 118 Siith. Dam. § 53; Griffin v. Colver, 16 N. Y. 494. 120 See ante, 24; Sedg. Dam. § 171; Leeds v. Metropolitan Gaslight Co., yO N. Y. 26; Duke v. Missouri Pac. RJ^ Co., 9'J Mo. 347, 351, 12 S. W. 636. 121 See post, p. 220. 122 Damages for future pecuniary loss from a personal injury cannot be awarded where there is no evidence of plaintiffs condition in life, or earning power. Staal v. Grand St. & N. R. Co., 107 N. Y. 627, 13 N. E. 624. § 30) THE REQUIRED CERTAINTY OF DAMAGES. 71 ready in:flicted, and is pecuniary, its amount may usually be proved without any uncertainty. A difficulty arises, however, where com- pensation is claimed for prospective losses in the nature of gains prevented; for it is impossible to prove absolutely that what might have been would have been. But absolute certainty is not re- quired. Compensation for prospective losses may be recovered where they are such as, in the ordinary course of nature, are rea- sonably certain to ensue.^^^ Reasonable certainty means reasou- 123 Strolim V. New York, L. E. & W. R. Co., 96 N. Y. 305. Compensatiou tor loss of future support may be recovered in au action for death by wrongful jict. Lawson v. Chicago, St. P., M. & O. Ry. Co., 64 Wis. 447, 24 N. W. 018; Eames v. Town of Brattleboro, 54 Vt. 471; Houghkirk v. Delaware & 11. Canal Co., 92 N. Y. 219; Hoppe v. Chicago, M. & St. P. Ry. Co., 61 Wis. 357, 1:1 N. W. 227; Johnson v. Chicago & N. W. Ry. Co., &4 Wis. 425, 25 N. W. 223. (Jompensatiou may be recovered for loss of earnings or income caused by per- sonal injuries. Moore's Adm'r v. Minerva, 17 Tex. 20; Wade v. Leroy, 20 How. 34; Pierce v. Millay, 44 111. 189; Chicago & A. R. Co. v. Wilson, 03 111. 167; City of Chicago v. Jones, 66 111. 349; City of Chicago v. Langlass, Id. 361; City of Chicago v. Elzeman, 71 111. 131; Village of Sheridan v. Hibbard, 119 111. 307. 9 N. E. 901; City of Joliet v. Conway, 119 111. 4S9, 10 N. E. 223; Mc- Kiuley v. Chicago & N. W. R. Co., 44 lo\Ya, 314; Stafford v. City of Oska- loosa, 64 Iowa, 251, 20 N. W. 174; Jordan v. Middlesex R. Co., 138 Mass. 425; Stephens v. Hannibal & S. J. R. Co., 96 Mo. 207, 9 S. W. 589; Sheehan v. Ed- gar, 58 N. Y. 631; Pennsylvania & O. Canal Co. v, Graham, 63 Pa. St. 290: Scott Tp. V. Montgomery, 95 Pa. St. 444; Lake Shore & M. S. Ry. Co. v. Frantz. 127 Pa. St. 297, IS Atl. 22; Houston &. T. C. Ry. Co. v. IJoehm, 57 Tex. 152; Goodno v. City of Oshkosh, 28 Wis. 300. The labor of professional men has no fixed market value. What the in- jured person has earned in the past is evidence, though not conclusive, of what he might have earned. Pennsylvania R. Co. v. Dale, 76 Pa. St. 47; Welch V Ware, 32 Mich. 77; New Jersey Exp. Co. v. Nichols, 33 N. J. Law, 434; Parshall v. Minneapolis & St. L. Ry. Co., 35 Fed. 649; Nash v. Sbarpo, 19 Hun, 365; Walker v. Erie Ry. Co., 63 Barb. 260; Luck v. City of Ripon. 52 Wis. 196, 8 N. AV. 815; Baker v. Manliattan Ry. Co., 54 N. Y. Super. Ct. 394; Phillips V. London & S. W. R. Co., 5 C. P. Div. 280; City of Indianapolis v. Gaston, 58 Ind. 224; City of Logausport v. Justice, 74 Ind. 378; Holmes v. Halde, 74 Me. 28; Metcalf v. Baker, 57 N. Y. 662; McNaraara v. Village of Clintonville, 02 Wis. 207, 22 N. W. 472; Collins v. Dodge, 37 .Miim. 503, 35 N. W. 308; City of Bloomington v. Chamberlain, 101 111. 20S; Maslertou v. Vil- lage of Mt. Vernon, 58 N. Y. 391. It is immaterial that plaintirf is not legally entitled to such earnings, if he was in the customary receipt of them. Phil- lips V. London & S. W. R. Co., 5 C. P. DIv. 280; Holmes v. llahh'. 71 Me. 2S; Luck V. City of Riiton, 52 Wis. 190. 8 N W. 815; McNamara v. Viliag.- .if 72 COMPENSATOPvY DAMAGES. (Ch. 3 able probability.^-^ Where the losses claimed are contiugent, speculative, or merely possible, they cannot be compensated.'-" SAME— PROFITS OR GAINS PREVENTED. 31. Compensation may be recovered for profits lost when the loss is a proximate and certain result of the tort or breach of contract. It was at one time laid down as a general rule that damages could not be recovered for the loss of profits.^ -° It was thought that profits were in their very nature too uncertain to be considered.^^^ It is well established now, however, that damages may be recov- ered for such losses if they are proximate, and certain. Selden, J., said: ^-^ "It is a well-established rule of the common law that dam- riintonville, 02 Wis. 207, 22 N. W. 472. But loss of earnings in an illegal em- ployment cannot be compensated. Jacques v. Bridgepcri Horse R. Co.,41 Conn. Ul; Kauffman v. Babcock, 67 Tex. 241, 2 S. W. 878. Where one is learning a profession, compensation may be recovered on the basis of the probable skill lie would have acquired. Howard Oil Co. v. Davis, 7G Tex. G30, 13 S. W. GG5. Where one is not engaged in business at the time of an injury, he may recover compensation for being prevented from engaging in bushiess in the future. Fisher v. Jansen, 128 111. 549, 21 N. E. 598. Prospective damages for defama- tion cannot be recovered, as the verdict heals the reputation. Halstead v. Nelson, 24 Hun, 395; Bradley v. Cramer. 66 Wis. 297, 28 N. W. 372. 124 Griswold v. New York Cent. & H. R. Co., 115 N. Y. 61, 21 N. E. 726; Feeney v. Long Island R. Co., 116 N. Y. 375, 22 N. E. 402. 125 De Costa v. Massachusetts Flat Water .c Mining Co.. 17 Cal. 613; Fry v. Dubuque & S. W. Ry. Co., 45 Iowa, 416; Lincoln v. Saratoga & S. R. Co., 23 Wend. 425; Staal v. Grand St. & N. R. Co., 107 N. Y. 625, 13 N. E. 624; Chicago City Ry. Co. v. Henry, 62 111. 142. 126 Mr. Sedgwick calls attention to the confusion arising from the loose use of the word "profits." As used by the courts in this connection, it may mean either the wages a man could earn, the rent or value of use oi property, the advantages of a contract, or the true profits of a business. Care must be taken to ascertain in which sense it is used in particular cases. Sedg. Dam. 250. 127 See The Lively, 1 Gall. 315, 325. Fed. Cas. No. 8.403; The Anna Maria. 2 Wheat. 327; The Amiable Nancy. 3 Wheat. 546; La Amista.i de Rues. 5 Wheat. .385; Boyd v. Brown, 17 Pick. 453; Smith v. Condry, 1 How. (U. S.) 28; Minor V. The Picayune No. 2, 13 La. Ann. 564. 128 Griffin v. Colver, 16 N. Y. 489, 491. See, also, Brigliam v. Carlisl.', 78 §31) PROFITS OR GAINS PREVENTED. 73 ages recoverable for a breach of contract must be shown with cer tainty, and not left to speculation or conjecture; and it is under this rule that profits are excluded from the estimate of damages in such cases, and not because there is anything in their nature which should per se prevent their allowance. Profits which would cer- tainly have been realized but for the defendant's fault are recover- able; those which are speculative and contingent are not. 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 en- tered into the contemplation of the parties when they made the contract, — that is, must be such as might naturally be expected to follow its violation ; and they must be certain, both in their nature and in respect to the cause from which they proceed." Thus, an- ticipated profits from the use of money cannot be recovered in an action for its nonpayment, because, non constat, instead of realizing any profits, a loss might have been sustained, owing to unforeseen circumstances, as often happens in the business world. In such cases, the average value of the use of money — i. e. interest — is the only loss that can be certainly proved, and is therefore the measure of damages.^ ^^ The Rule Applied — Illustrations. Where plaintiff is engaged in a mercantile business, compensa- tion for a personal injury is limited to the value of his loss of timr. Loss of profits of the business through the injury to the good will Ala. 243, 249; Masterton v. Mayor, etc., of Brooklyn, 7 Hill. 61; Sbermau Center Town Co. v. Leonard, 4G Kan. 354, 20 Pac. 717. Expected specific prof- its cannot be recovered. Brown v. Smith, 12 Cush. 3UG; Aber v. Bratton, CO Mich. 357, 27 N. W. 564; Callaway Min. & Manuf'g Co. v. Clark, 32 Mo. 305; Marlow v. Lajeunesse, 18 L. C. Jur. 188. Anticipated profits from a competition or speculation are too uncertain to bo coinpensatcd. Watson v. Arabergate, N. & B. R. Co., 15 Jur. 448; Western Union Tel. Co. v. Crall, 30 Kan. 580, 18 Pac. 719; Mizner v. Frazier, 40 Mich. 592; W. U. Tel. Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. 577. But see Adams Exp. Co. v. E^cbert, 36 Pa. St. 360. Damages assessed on the basis of an approximale cstiiiiate of the ma- turity of building association stock are not sp(>culative. .MMiitcr v. Tniesdalc, r>7 Mo. App. 435. 120 Greene v. Cod(l;ird, 9 Mete. (Mnss.) 212, 2:52. See post, 1 ft, "Interest." 74 COMPENSATORY DAMAGES. (Ch. 5 is not a natural consequence.^'" The usual and ordinary profits of an established business are reasonably certain, and may be recov- ered in an action for interruption of the business, in the absence of anythinfj; showing that they would not have been realized.^ ^* Some businesses are of so uncertain a natuie that their profits never become established, such as fishing.^^^ Plaintiff cannot re- cover anticipated profits of a new business, in which he was wrong- fully prevented from embarking.^^' Only the amount paid for the publication of an advertisement in a newspaper can be recovered for its negligent omission.^^* Damages for the loss of use of land or business premises are the rental value.^^'^ But, where such loss interrupts an established business, loss of profits may also be com- pensated.^ '' The measure of damages for the nondelivery of or injury to machinery is the value of its use; ^'^ but expected profits lao Marks v. Long Island R. Co., 14 Dalj, 61; Bierbach v. Rubber Co., 54 Wis. 20S, 11 N. W. 514; Masterton v. Village of Mt. Vernon, 58 N. Y. 391. 131 Allison V. Chandler, 11 Mich. 542; Peltz v. Kieliele, G2 Mo. 171; Gunter V. Astor, 4 Moore, 12; Wilier v. Navigation Co., 15 Or. 153, 13 Pac. 768^ French v. Lumber Co., 145 Mass. 261, 14 N. E. 113. 132 Wright V. Mulvaney, 78 Wis. 89, 46 N. W. 1045; Willis v. Branch, 94 X. C. 142; Hunt v. Improvement Co., 3 E. D. Smith, 144; Jones v. Call, 96 X. C. 337, 2 S. E. 647. 133 Red v. City Council of Augusta, 25 Ga. 386; Kenny v. Collier, 79 Ga, 743, 8 S. E. 58; Greene v. W^illiams, 45 in. 206; Hair v. Barnes, 26 111. App. 580; Morey v. Gaslight Co., 38 N. Y. Super. Ct. 185; B'ngham v. W^alla Walla, 3 Wash. T. 68, 13 Pac. 408; Aber v. Bratton, 60 Mich. 357, 27 N. W. 564. 134 Eisenlohr v. Swain, 35 Pa. 107. 135 City of Chicago v. Huenerbein, 85 111. 594; Newark Coal Co. v. Upson, 40 Ohio St. 17; Snodgrass v. Reynolds, 79 Ala. 452; Rose v. Wynu, 42 Ark. 257; Robrecht v. Marling's Adm'r, 29 W. Va. 765, 2 S. E. 827; Hexter v, Knox. 63 N. Y. 561; Townsend v. Nickerson W^harf Co., 117 Mass. 501; Giles V. O'Toole, 4 Barb. 261; Fonda vila v. Jourgensen, 52 N. Y. Super. Ct. 403; Skinker v. Kidder, 123 Ind. 528, 24 N. E. 341; Dodds v. Hakes, 114 N. Y. 260, 21 N. E. 398; City of Cincinnati v. Evans, 5 Ohio St. 594. 136 See supra, and also Ward v. Smith, 11 Price, 19; Hexter v. Knox, 63^ N. Y. 561; Poposkey v. Munkwitz, 68 Wis. 322, 32 N. W. 35; Shaw v. Hoff- man, 25 Mich. 103; Seyfert v. Bean, S3 Pa. St. 450; Llewellyn v. Rutherford, L. R. 10 C. P. 456; Sewall's Falls Bridge v. Fisk, 23 N. H. 171; Schile v. Brokhahus. SO N. Y. 614; Gibson v. Fischer, 68 Iowa, 29, 25 N. W. 914; Woodin V. W'entworth, 57 Mich. 278, 23 N. W. 813; Pollitt v. Long, 58 Barb. 20. i37Blanchard v. Ely, 21 Wend. 342; Griffin v. Colver. 16 N. Y. 489, 496. See. also, Satchwell v. Williams. 40 Conn. 371; Strawn v. Cogswell. 2S TIL § 31) PROFITS OR GAINS PREVENTED. 75 from its use are too uncertain to be recovered.^ ^^ Loss of profits by the destruction of an unmatured crop is usually regarded as too uncertain to be compensated;^^® but compensation based on the average crop of that year has been allowed.^*" Loss of profits of the crop which may grow cannot be recovered for breach of war- ranty of the seeds.^*^ Where an inferior crop is raised, the dam- ages recoverable are the difference between its value and that of the same crop of the kind warranted.^ *^ For breach of a contract of partnership, plaintiff may recover such profits as he can prove with reasonable certaint5\ Evidence of past profits is admissible, but not conclusive.^ *^ Where the partnership was tenninable on notice, future profits cannot be recovered.^** Profits of collateral transactions are usually too remote and uncertain to be recovered 457; Benton v. Fay, 64 111. 417; Cassidy v. Le Fevre, 45 N. Y. 562; Pittsburg Coal Co. V. Foster, 59 Pa. St. 365; Pettee v. Manufacturing Co., 1 Sneed, 381; Hinckley v. Beckwith, 13 Wis. 31; Priestly v. Railroad Co., 26 111. 205; Mid- dlekauff v. Smith, 1 Md. 329. 13S Willingham v. Hooven, 74 Ga. 233; McKinnon v. McEwan, 48 Mich. 106, 11 N. W. 828; Alls V. McLean, 48 Mich. 428, 12 N. W. 640; Krom v. Levy, 48 N. Y. 679; Davis v. Railroad Co., 1 Disney, 23; Pennypacker v. Jones, 106^ Pa. St. 237; Rogers v. Bemus, 69 Pa. St. 432; Bridges v. Lanham, 14 Neb. 369. 15 N. ^V. 704. 13 9 Gresham v. Taylor, 51 Ala. 505; Richardson v. Northrup, 66 Barb. 85; Roberts v. Cole, 82 X. C. 292; Texas & St. L. R. Co. v. Young, 60 Tex. 201; McDaniel v. Crabtree, 21 Ark. 431; Sledge v. Reid, 73 N. C. 440; Jones v. George, 56 Tex. 149. 140 Payne v. Morgan's L. & T. R. & S. S. Co., 38 La. Ann. 164; Rice v. Whit- more, 74 Cal. 619, 16 Pac. 501. 141 Butler V. Moore, 68 Ga. 780; Ferris v. Comstock, Ferre & Co., 33 Conn. 513. 142 Schutt V. Baker, 9 Hun, 556; Randall v. Raper, EL, Bl. & El. 84; Wol- cott V. Mount, 36 N. J. Law, 262; Passinger v. Thorburn, 34 N. Y. 634; White V. Miller, 7 Hun, 427, 71 N. Y. 118; Flick v. Wetherbee, 20 Wis. 392. See Van Wyck v. Allen, 69 N. Y. 61. Contra, Hurley v. Buchl, 10 Lea, 346. i43Bagley v. Smith, 10 N. Y. 489; M'Neill v. Reid, 9 Bing. 68; Gale v. lA'ckk'. 2 Starkie, 107; Dart v. Laimbecr, 107 N. Y. 664, 14 N. E. 291; Reiter V. Morton, 96 Pa. St. 229; Dennis v. Maxficld, 10 Allen i:W; Wakeman v. Man- ufacturing Co., 101 N. Y. 205, 4 N. E. 264; Winslow v. Lane, i;:] .Mo. 161; Barnard v. Poor, 21 Pick. 378. 144 Skinner v. Tinker, 34 Barb. 333; Ball v. Brilluu, 58 Tex. 57. 76 COMPENSATORY DAMAGES. (Gh. 3 for bleach of contract;^*" but, where the profit is the thiug con- tracted for, it may be recovered.^*" The average or usual A'alue of the use of personal property is the measure of damages for the loss of its use.^*^ For the loss of per- sonal property, the wholesale market value, and not the retail value, is the measure of damages.^ *^ "The retail value or the price at which goods are sold at retail includes the expected and contingent profits, the earning of which involves labor, loss of time, and ex- penses, supposes no damage to or depreciation in the value of the goods, and is dependent upon the contingency of finding purchasers for cash, and not upon ci-edit, within a reasonable time, the sale of the entire stock without the loss by unsalable remnants, and the closing out of a stock of goods as none ever was or ever will be closed out, by sales at retail, at full prices." ^*^ Prospective Gains from Property Totally Destroyed. Anticipated profits or gains from the use of property which has been totally destroyed by defendant's wrong do not fall within the rule, and cannot be recovered. In such cases compensation is given for the whole value of the property destroyed, and thereupon, in legal contemplation, all plaintiff's title and interest in the property ceases. It is as though he had sold it. Having received full value, and parted with his title to the property, plaintiff cannot justly ii"' Fox v. Harding, 7 Cush. 516; Smith v. Flanders, 129 Mass. 322; Mace V. Ramsey, 74 N. C. 11; Mitchell v. Cornell, 44 N. Y. Super. Ct. 401; Houston & T. C. R. Co. V. Hill, 63 Tex. 381; Evans v. Railroad Co., 78 Ala. 341; Mis- souri, K. & T. R. Co. V. City of Ft. Scott, 15 Kaa. 435; Shaw v. Hoffman, 2.3 Mich. 162; Watterson v. Allegheny Val. R. Co., 74 Pa. St. 208; Frye v. Maine Cent. R. Co., 67 Me. 414. no Masterton v. Mayor, etc., 7 Hill, 61; Lentz v. Choteau, 42 Pa. St. 435. 147 Benton v. Fay, 64 111. 417; Shelbyville L. B. R. Co. v. Lewark, 4 Ind. 471; Monroe v. Lattin, 25 Kan. 351; Brown v. Hadley, 43 Kan. 267, 23 Pac. 492; Johnson v. Inhabitants of Holyoke, 105 Mass. 80; Luce v. Hoisington, 56 Vt. 436; Wright v. Mulvaney, 78 Wis. 89, 46 N. W. 1045; Cushing v. Seymour, Sabin & Co., 30 Minn. 301, 15 N.W. 249; Fultz v. Wycoff, 25 Ind. 321; Whitson V. Gray, 3 Head, 441; Brown v. Foster, 51 Pa. St. 165; Bohn v. Cleaver, 25 La. Ann. 419. 14 8 Young V. Cureton, 87 Ala. 727, 6 South. 352. 148 Wehle V. Haviland, 69 N. Y. 448. But see Alabama Iron Works v. Hur- ley. 86 Ala. 217, 5 South. 418. § 32) ENTIRETY OF DEMAND. 77 claim compensation for gains he might have derived from its future use.^^" ENTIRETY OF DEMAND. 32. All the damage resulting from a single cause of action must be recovered in a single action. The demand cannot be split, and separate actions maintained for the separate items of damage. A single cause of action gives rise to but a single demand for damages. It is an entirety. Plaintiff must demand the full amount of damages to which he is entitled in one suit, and a judg- ment therein is a bar to any subsequent suit on the same cause of action, even though losses arise subsequently which could not have been foreseen or proved at the time of the former suit. The matters complained of have become res judicata. The cause of action can- not be split, and separate suits maintained for the recovery of each sex^arate item oi damage. A cause of action is the wrong com- plained of; that is, the conjunction of conduct and damage.^ '^ Nei- ther alone constitutes a legal wrong. When an award of damages has been once made for a wrong, that wrong is redressed. Losses subsequently arising, without a renewal or continuance of the con- duct, are damnum absque injuria.^"- On this principle, a recovery in an action for assault and battery was held to be a bar to a sub- sequent action for additional damages, brought upon the falling out of another piece of plaintiff's skull.^^' Holt, C. J., said : "Every new dropping is a nuisance, but it is not a new battery; and, in trespass, the grievousness or consequence of the battery is not the ground of the action, but the measure of damages which the jury must be sup- posed to have considered at the trial." And in another place he 15" Sedg. Dam. § 178; McKniglit v. Ratcliff, 44 Ta. St. luC; Eiio City Iron Works v. Barber, 100 Pa, St. 11^5; Thomas B. & W. Mamif'g Co. v. Wabasli, St. L. & P. Ry. Co., G2 Wis. 642, 22 N W. 827; Edwards v, Beebe, 48 Barb. io<;. i"'! See ante, p. 7 et seq. ^52 Wichita & W. R. Co. v. Beebe, :'.',) Kan. 4U~>, IS Pac. .")(/_'; Howell v. (iond rich, 00 111. .",0; Pierro v. Railway Co., 3!) Minn. !."}!, -10 X. W. yjn; Win Blow V. Stokes, ?, .Tones (N. C.) 2S."). ir,.^ IVtter V. Beal. 1 Ld. K;ivni. :'.:;!», i;!iL'. 1 S:ilU. 11. 78 COMPENSATORY DAMAGKS. (Ch. 3 said : "If this matter had been given in evidence as that which in probability might have been the consequence of the battery, the phiintifif would have recovered damages for it. The injury, v/hich is the foundation of the action, is the battery, and the greatness or consequence of that is only in aggravation of damages." TIME TO WHICH COMPENSATION MAY BE RECOVERED- PAST AND FUTURE LOSSES. 33. The damages recoverable in an action include compen- sation not only for losses already sustained at the time of beginning the action, but also for losses "w^hich have arisen subsequently, and for prospec- tive losses, if such losses are the certain and proxi- mate results of the cause of action, and do not them- selves constitute a new cause of action. Repetition of Wrong. Where an action has been brought for a wrong, and the wrong is subsequently repeated, a new action must be brought to recover the damages caused thereby. Such repetition constitutes a new cause of action, and compensation for the losses caused by one wrong cannot be recovered in an action brought to recover the damages caused by another and a distinct wrong.^°* Continuing Torts and Breaches oj Contract. A single wrongful act, however, may be of such a nature as to give rise to a continuous succession of toils or breaches of contracts. "In the case of a personal injury the act complained of is complete and ended before the date of the writ. It is the damage only that continues and is recoverable, because it is traced back to the act; while in the case of a nuisance it is the act which continues, or, rather, is renewed day by day. The duty which rests upon a wrong- doer to remove a nuisance causes a new trespass for each day's neg- lect." ^°^ In this class of cases, therefore, successive actions may 154 lu an action for slander, evidence of words spoken after commencenieiu of suit are inadmissible. Root v. Lowndes, G Hill, 518; Keenliolts v. Bec-kci-. 3 Denio, 34G. 155 Rockland Water Co. v. Tillson, G9 Me. 255, 2G8. An excavation on oik-'s § 33) PAST AND FUTURE LOSSES. 79 be maintained to recover compensation for the successive losses sus- tained, because each loss results from a separate cause of action.^^' For the same reason, the damages in each case are limited to com- pensation for losses already sustained at the time of bringing the action. Damages for prospective losses cannot be recovered, for they constitute the basis of new actions. A continuing tort or breach of contract is, in effect, simply the repetition of the same wrong an infinite number of times. For instance, where defendant covenanted to keep a gate in repair, each moment it was suffered to remain out of repair constituted a separate breach of the cove- nant, for which a separate action would lie. Therefore the dam- ages recoverable in an action for the breach of such a covenant are limited to compensation for losses already suffered at the time of commencing suit.^^'' As a general rule, where a continuous duty is Imposed by contract, each moment its performance is neglected con- stitutes a separate breach, for which an action will lie. This has been held in actions for the breach of contracts for support,^ "^ con- tracts not to engage in business,^^^ and contracts to convey land.^^° Any breach of an entire contract may be treated as a total breach,^" and often the neglect of a continuing duty imposed by contract may be so considered.^ ^^ Where such is the case, the en- own land is not a tort; but causing the subsidence of a neighbor's laud by such excavation is a tort. Therefore successive actions may be maintained for successive subsidences. Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127. 15G Rockland Water Co. v. Tillson, 09 Me. 255, 268. 157 Beach v. Grain, 2 N. Y. 8G. 158 Fay V. Guynon, 131 Mass. 31. 1 59 Hunt V. Tibbetts, 70 Me. 221. 160 Warner v. Bacon, 8 Gray, 397. 161 "Whether a contract be single and entire or apportlonable, If there Is a total abandonment or breach by one party, the other has a single cause of action upon the entire contract if he think proper to act on the breach as a total one; and the better opinion is that he is obliged to do so. A party has a right to break his contract on condition of being liable for the damages whicli will accrue therefrom at the time he elects to do so." Suth. Dam. 225. S(m\ fllKO, Fish V. Folley, Hill, 54. 162 Suth. Dam. 250; Grand Rapids & B. C. R. Co. v. Van Deusen, 2!) .Miili. 431; Town of Royalton v. Royallon i^ W. Tiu-npikc Co.. 14 Vf. .'ill; Witlicrs V. Reynolds, 2 Barn. & Adol. SS2; Fish v. Foll.-y, Hill, 51; CiMiii v. Hc-idi. 80 COMPENSATORY DAMAGES. (Ch. 3 tire damage, both past and prospective, may be recovered in a single action, and the judgment is a bar to any subsequent action. The breach of a contract to support plaintiff for life has sometimes been regarded as a total breach, and plaintiff allowed to recover the en- tire value of the promised support in one action; ^^^ but, as the con- tract imposes a continuous duty, any breach may be regarded as a partial one onh-, and successive actions may be maintained.^^* Whether an act is a total or only a partial breach is rather a ques- tion of the law of contracts than of damages. In doubtful cases it should be left to the jury.^^'' JUustradons. Illustrations of continuing torts are numerous. In an action for false imprisonment, damages cannot be given for a continuance of the imprisonment after the commencement of the action, for every instant of detention without just cause is an independent tort,^*** So, also, a nuisance gives rise to a fresh cause of action every mo- ment it is maintained; and therefore the damages recoverable are limited to those already suffered at the commencement of the suit."^ •2 Barb. 124; Beach v. Grain, 2 N. Y. S6; Keck v. Bieber, 14S Pa. St. (545, 24 All. 170. See, also. Badger v. Titcomb, 15 Pick. 409. In Cooke v. England, 27 Md. 14, it was held that both past and prospective damages could be re- covered for breach of a contract to repair machinery in a mill, for the con- tract could not be kept alive. But, for breach of a contract to keep cattle passes in repair, prospective damages cannot be recovered. Phelps v. New Haven & N. Co., 4,3 Conn. 453. 163 Covenants for support and maintenance during life are entire, and any breach entitles the injured party to recover entire damages as for a total breach. Schell v. Plumb, 55 N. Y. 592; Dresser v. Dresser, 35 Barb. 573; Shaffer v. Lee, 8 Barb. 412; Trustees of Howard College v. Turner, 71 Ala. 429; Wright v. Wright. 49 Mich. G24, 14 N. W. 571; Parker v. Russell, 133 Mass. 74. 164 Suth. Dam. 25G; Fiske v. Piske, 20 Pick. 499; Berry v. Harris, 43 N. H. 376; Ferguson v. Ferguson, 2 N. Y, 3G0; Turner v. Hadden, G2 Barb. 480. 165 Sedg. Dam. 125; Shaffer v. Lee, 8 Barb. 412; Remelee v. Hall. 31 Vt. 5S2. 166 Brasfield v. Lee, 1 Ld. Raym. 329; Withers v. Henley, Cro. Jac. 379. 167 Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434, 21 Pae. 565; Duncan v. Markley, 1 Harp. 276; Cobb v. Smith, 38 Wis. 21; Stadlor V. Grieben, 61 Wis. 500, 21 N. W. 629. See, also, Pearson y. Carr, 97 X. C. 194, 1 S. E. 916; Dailey v. Canal Co., 2 Ired. 222. In an action for flowiuj: land, damages can be recovered only for losses suffered prior to bringing suit Polly V. McCall, 37 Ala. 20; Benson v. Railroad Co., 78 Mo. 504; Nashville § 33) PAST AND FUTURE LOSSES, 81 The reason and necessity of permitting successive actions in this class of cases is very clear. It is one's duty to discontinue a tres- pass or remove a nuisance.^ °^ The law cannot presume that defend- ant will continue the wrong, nor will it permit him to acquire a right to continue it, by permitting a recovery therefor in advance.^ "^ Thus, where the wrong consists in the unlawful maintenance of a private structure, or an unlawful use of land, the wrong cannot be presumed to be permanent; and therefore prospective damages can- not be recovered. This principle has been applied in actions for ob- structing a stream,^^" for obstructing ancient lights,"^ for filling a canal,^'^ and for laying out a highway around plaintiff's toll gate.^^^ Where an injury to plaintiff's land consists of a trespass which defendant cannot remedy without committing another trespass, the wrong is not regarded as a continuing one, and damages for the en- tire loss must be recovered in one action. Making an excavation ^^* V. Comar, SS Tenn. 415, 12 S. W. 1027; Hargreaves v. Kimberly, 26 W. Va. 7S7. So, also, in actions for diverting water courses, Langford v. Owsley, 2 Bibb, 215; Dority v. Dunning, 78 Me. 387, 6 Atl. 6; Shaw v. Etberidge, 3 Jones (N. C.) 300; or for polluting it, Sanderson v. Coal Co., 102 Pa. St. 370. 168 There is a legal obligation to discontinue a trespass or remove a nui- sance. Clegg V. Dearden, 12 Q. B. 601; Savannah, F. & W. R. Co. v. Davis, 25 Fla. 917, 7 South. 29; Adams v. Railroad Co., 18 Minn. 2G0 (Gil. 236); Barrick v. Schifferdecker, 48 Hun, 3r.o, 1 N. Y. Supp. 21; Cumberland & O. C. Corp. V. Hitchings, 65 Me. 140. 169 Suth. Dam. 255; Adams v. Railroad Co.. IS Minn. 260 (Gil. 236); Ford V. Railroad Co., 14 Wis. 663; Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. 536; Savannah & O. C. Co. v. Bourquin, 51 Ga. 378; Hanover Water Co. v. Ash- land Iron Co., 84 Pa. St. 279; Whitmore v. Bischoff, 5 Hun, 170; Sliermau v. Railroad Co., 40 Wis. 645; Russell v. Brown, 63 Me. 203; Bowyer v. Cook, 4 C. B. 236; Cumberland & O. C. Corp. v. Hitchings, 65 Me. 140. 170 Damages can be recovered for the unauthorized obstruction of a stream by a dam only up to the commencement of suit. Langford v. Owsley, 2 Bibb, 215; Williams v. Water Co., 79 Me. 543, 11 Atl. 600; Van Hoozier v. Railroad ^.'o., 70 Mo. 145; Thayer v. Brooks, 17 Ohio, 489; Bare v. Hoffman, 79 Pa. St. 71. 171 Blunt v. McCormick, 3 Donio, 283. See, also. Union Tru.st Co. v. Cuppy. 26 Kan. 754; Spilman v. Navigation Co.. 74 N. C. 075; Winchester v. Ste- vens Point, 58 Wis. 350, 17 N. W. 547; Moore v. Hall, 3 Q. B. Div. 178. 172 Cumberland & O. C Corp. v. Hitchings, 65 Me. 140. 173 Chephire Turnpike v. Stcvons. 13 X. IT. 28. i74Kansns P. Ry. Co. v. Miblinan, 17 Kan, 224; Cli-gg v. Deardtn, 12 Q. B. 576. LAV,' DAM.— 6 82 COMPENSATORY DAMAGES. (Ch. 3 or embankment ^^'^ on plaintiff's land, or filling up bis pond/'"^ are instances where tbis rule has been properly applied.^'" In these cases there is continuing damage, but no continuing conduct. The trespass — the wrong — was completed once for all. Damage Caused by Permanent Structures. Where permanent structures have been erected which result in in- jury to land, there is much confusion and conflict in the authorities as to whether all the damages, past and prospective, may be re- covered in a single suit, or whether successive actions must be brought to recover compensation for the damage as it arises. The confusion is largely due to a lack of clear conception as to the funda- mental nature of legal rights. The terms "legal" and "illegal," "rightful" and "wrongful," have not been used with precision; and, as a consequence, precedents have been misapplied. It is impossi- ble to reconcile all the cases. One line of decision holds that where permanent stnictures are erected, resulting in injury to lands, all damages may be recovered in a single suit. Thus, it was said in an Iowa case: ^^* "Where a nuisance is of such a character that its continuance is necessarily an injury, and when it is of a perma- nent character, that will continue without change from any cause but human labor, the damage is original, and may be at once fully estimated and compensated." So, it has been held that compensa- tion for the entire loss, both past and prospective, caused by a rail- road embankment, must be recovered in one suit.^®° But even in such cases the ordinary rule has been applied in some states, and damages are recoverable only to the commencement of the action.^ ^^ i'5Ziebarth v. Nye, 42 Minn. 541, 44 N. W. 1027. 176 Fiuloy v. Hersbey, 41 Iowa, 380. 177 WhtTo defendant flooded plaintiff.'s mine by breaking through into it, the entire damage must be recovered in one action. National Copper Co. v. Minnesota Min. Co., 57 Mich. S3, 23 N. W. 781; Lord v. ^Manufacturing Co., 42 N. J. Eq. 157, 6 Atl. 812. 179 Stodghill V. Railroad Co., .53 Iowa, 341, 5 N. W. 495. See, also, Van Orsdol V. Railroad Co., .5(3 Iowa, 470. 9 N. AV. 379. 180 Indiana, B. & W. R. Co. v. Eberle, 110 Ind. .542, 11 N. E. 467; Chi- cago & E. I. R. Co. V. Loeb, 118 111. 203, 18 N. E. 460. See, also, Fowle v. New Haven & Northampton Co., 112 Mass. 334; Town of Troy v. Cheshire R. Co.. 23 N. H. S3; Adams v. Railroad Co., 18 Minn. 260 (Gil. 2.36). 181 nine V. Railroad Co., 101 N. Y. 98, 4 N. E. 536; Dur:-ea v. .Mayor, etc.. § 33) PAST AND FUTURE LOSSES. 83 Reverting to first principles for a moment, the whole matter be- comes clear. If the structure is expressly authorized, there is no liability for the damage necessarily resulting. If it is authorized on condition that compensation be made for the resulting damage (a condition commonly imposed by the authorizing act or the consti- tution), and it is permanent in its nature, its continuance may rea- sonably be presumed, and full compensation for both past and pro- si)ective losses may be recovered in one action.^ *^ It is on this prin- ciple that the railroad embankment case, supra, and other like cases, are to be sustained. Of course, if an authorized permanent work is done negligently, and the negligence results in a continuing injury, it cannot be presumed that the negligence will continue, but, rather, that it will be remedied ; and compensation can therefore be recov- ered only to the commencement of the action, and subsequent ac- tions must be brought for damages subsequently accruing.^ ^^ Where the erection of the structure was a forbidden act, that is, where it was a trespass, and the act of trespass is completed once for all, the entire damage, past and prospective, must be recovered in one suit* Continuing damage does not make a continuing tres- 20 Hun, 120; Blunt v. McCormick, 3 Denio, 283; Cooke v. England, 27 Md. 14, 92 Am. Dec. G30, and notes; Keed v. State, 108 N. Y, 407, 15 N. E. 735; Hargreaves v. Kimberly, 26 W. Va. 787; Ottenot v. Railroad Co., 119 N. Y. G03. 23 N. E. 169; Barrick v. Scliifferdecker, 123 N. Y. 52, 25 N. E. 365; Aid- worth V. City of Lynn, 153 Mass. 53, 26 N. E. 229; Town of Troy v. CliGsbire K. Co., 23 N. H. 83; Cobb v. Smith, 38 Wis. 21; Delaware & R. Canal Co. v. Wright, 21 N. J. Law, 469; Wells v. New Haven & Northampton Co., 151 Mass. 46, 23 N. E. 724; Cooper v. Randall, 59 111. 317; Joseph Schlitz Brew- ing Co. v. Compton, 142 111. 511, 32 N. E. 693. 182 Chicago & E. I. R. Co. v. Loeb, 118 111. 203, 8 N. E. 460; Jeffersonville, M. & I. R. Co. V. Esterle, 13 Bush. 667. But see Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. 536; Pond v. Railrnnd Co., 112 N. Y. 186, 19 N. E. 487, and cases cited in preceding note. Cf. Cadlo v. Railroad Co., 44 Iowa, 11. 183 Aldworth v. City of Lynn, 153 Mass. 53, 26 N. E. 229; City of Eufaula v. Simmons. SO Ala. .51.5, 6 South. 47; Reed v. State. 108 N. Y. 407, 15 X. E. 7:'.5; Duryea v. Mayor, etc., 26 Hun, 120. See. also, City of Noith Vernon v. Voeg- ler. 103 Ind. 314, 2 N. E. 821. Powers v. City of Council Bluffs. 45 Iowa. (Vt2, rolled on in Stodghill v. Railroad Co., 53 Iowa, 341, 5 N. W. 495. cannot be sustained. In this case the construction of the ditch by fhc city \v:is :m authorizt'd act. but it was done negligently. * See Adiinis v. Kiiilroad Co., 18 -Minn. 200 (Gil. 230). I 84 COMPENSATORY DAMAGES. (Ch. S pass. There must be continuing conduct as well. Thus, where a trespasser digs a ditch on another's land, and leaves it, the con- tinued existence of the ditch does not make the wrong a continuing trespass.^ ^* It constitutes merely a continuing damage. The tres- pass was complete when the trespasser left the premises. Conse- quently, the entire damages, past and prospective, must be recovered in one action. The trespasser is not guilty of continuing a trespass or maintaining a nuisance because he is under no duty to remedy it. He could not do so without committing a new trespass. It is sometimes stated that "if a man throws a heap of stones or builds a wall or plants posts or rails on his neighbor's land, and there leaves them, an action will lie against him for the trespass^ and the right to sue will continue from day to day until the incum- brance is removed." ^"^ This is essentially not true. The wrong- ful conduct was complete when the stones or wall were placed on the other's land and the trespasser had departed. He could not then remove them without committing a new trespass. The tort is completed, but the damage is continuing. The law is not so ab- surd as to hold one liable for continuing what it forbids him to dis- continue. But where the trespasser remains in possession and con- trol, or maintains or uses the structure erected by him, then we have a continuing trespass, because there is continuing conduct. Suc- cessive actions may therefore be maintained from day to day so long as such trespass is continued. Thus, railroad companies which^ by trespass, had entered upon the lands of individuals, and begun the construction and operation of railroads, were held liable as tres- passers from day to day so long as the operation of the road was continued.^*' Staging and continuing in a house is a divisible tres- 184 Kansas Pac. Ry. Co. v. Mihlman. 17 Kan. 224. 188 1 Add. Torts, aS2. See, also, Russell v. Brown, 63 Me. 203. In National Copper Co. v. Minnesota Min. Co., 57 Mich. S3, 23 N. W. 781, Cooley, J., draws a distinction between leaving a hole on another's premises, and leaving house* or other obstructions there; saying that physical hindrances are a continuance of the original force, and therefore are continuing trespasses, but that a hole is only the consequence of a wrongful force which ceased to operate the mo- ment it was made. The distinction is unsoimd. See Kansas Pac. Ry. Cc T. Mihlman, 17 Kan. 224. 233. per Brewer, .T. 186 Adams v. Railroad Co., IS Minn. 260 (Gil. 236); Town of Troy v. Chesh- ire R. Co., 23 X. H. S3. § o3j PAST AND FUTURE LOSSES. 85 pass in point of time. There is a fresh trespass on each day.^^^ Judge Cooley pronounced the principle of these decisions not open to criticism. "In each of them there was an original wrong, but there was also a persistency in the wrong from day to day. The plain- tiff's possession was continually invaded, and his right to the ex- clusive occupation and enjoyment of his freehold continually en- croached upon and limited. Each day, therefore, the plaintiff suffered a new wrong, but no single suit could be made to embrace prospective damages, for the reason that future persistency in the wrong could not legally be assumed." ^^^ Where the erection of the structure was neither authorized nor forbidden, but it is wrongful, because it results in injury to plain- tiff's land, — that is, where it is a nuisance, — though the structure is permanent in its nature, and "will continue without change from any cause but human labor," and its continuance may be presumed, the damages cannot be estimated beyond the date of bringing the action, because, in the case of an ordinary nuisance, the cause of ac- tion is not so much the act of the defendant as the damage resulting from his act, and hence the cause of action does not arise until such consequences occur.^®' Thus, it was held in an action by a tenant against his landlord to recover damages because of the latter's erec- tion of buildings adjoining the demised premises, which shut out 187 Per Parke, B., in Loweth v. Smith, 12 Mees. & W. 5S2. Where a turn- pike company had placed buttresses on the phiintift's land for the support of its road, it was held that a recovery of damages for the trespass did not bar a subsequent action for the continuance of the buttresses. "The continued use of the buttresses for the support of the road, under such circumstances, was a fresh trespass." Holmes v. Wilson, 10 Adol. & E. 503. Brewer, J., said that it was very doubtful whether this ruling could be sustained upon principle. Kansas Pac. Ry. Co. v. Mihlman, 17 Kan. 232. 188 National Copper Co. v. Minnesota Min. Co., supra. 189 In Whitehouse v. Fellowes, 10 C. B. (N. S.) 705, it was said by counsel, arguendo: "The distinction which pervades the cases is this: Where the plaintiff complains of a trespass, the statute runs from the time when the act .of trespass was committed, except in the case of a continuing trespass. But where the cause of action is not in itself a trespass, as an act done upon a man's own land, and the cause of action Is the consequential Injury to the plaintiff, there the period of limitation runs from the time the damage l.s sus- taiuod.' Approved by Cooley, .T., in National Coi)per Co. v. Mhino.sota Mln. Co.. 57 Mifli. S."., 2.". \. AV. 7S1. 86 COMPENSATORY DAMAGES. (Ch. S' the light from the tenant's doors and windows, that damages could only be recovered for the time which had elapsed when the suit was commenced, and not for the whole term.^°° So, where a rail- road company constructed a culvert under its emhankment, which damaged land by discharging water upon it, it was held that the case fell within the ordinary rule applicable to continuing nuisances and trespasses.^ ®^ As before stated, all the cases are not consistent with these con- clusions, but there is ample authority to sustain them, and it is sub- mitted that they are sound in principle. ELEMENTS OF COMPENSATION. 34. Damage in respect to anything in the enjoyment of "which one is protected by law may be a subject for compensation. 35. Damage for which the law affords compensation may be divided into three classes: (a) Pecuniary losses, direct and indirect (p. 87). (b) Physical pain and inconvenience (p 91). (c) Mental suffering (p. 92). It has been seen that the law awards damages only for injuries to person, property, or reputation. An injury in an}' one of these re- spects may affect one in one or more of three ways. It may cause (1) pecuniary loss, direct or indirect; (2) physical pain and incon- venience; and (3) mental suffering. All three are proper elements of compensation to be considered in estimating damages. Compen- sation is necessarily aw^arded in money, and it will be observed that but one of the elements of damage is pecuniary. Breaches of con- tract and interference with property rights, where the sole question is as to the value of the property involved, may result solely in pe- cuniary damage. Damage is said to be pecuniary either when money itself is lost, or the damage is such as can be, and usually is 190 Blunt V. McCormick, 3 Denio, 283. 191 Wells V. New Haven & Northampton Co., 151 Mass. 46, 23 N. E. 724. See, also, Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. 536. Cf. Fowle v. New Haven & Northampton Co., 112 Mass. 334. § 36) ELEMENTS OF COMPEXSATIOX PECUNIARY LOSSES. 87 measured by a pecuniary standard.^^^ But usually where the in- jury is to the person, and in some classes of contracts, the damage Avill be, in part at least, nonpecuniary. Thus, a physical injury may result in pecuniary loss from diminished earning power, and also in physical and mental suffering. Physical and mental suffering are nonpecuniary, though none the less actual, elements of injury, and must be compensated in money, though there is no pecuniary stand- ard by which they may be measured. The extent of compensation for such injuries is for the jury. SAME— PECUNIARY LOSSES. 36. Compensation for all pecuniary losses which are the proximate and certain result of the cause of action may be recovered, except — EXCEPTION — Counsel fees incurred in litigation caused by the -w^rong are usually not recoverable. Generally speaking, pecuniary losses are always an element in es- timating the damages caused by a wrong. Indeed, in the great ma- jority of cases, it is the most important one. Pecuniary losses are sustained whenever property is taken or damaged, when the profits of a contract are lost, or one's earning capacity diminished. Other forms of pecuniary loss will readily occur to every mind. As a gen- eral rule, compensation is always recoverable for such losses when they are the proximate and certain result of an actionable wrong. Expenses of Litigation. The expenses of litigation to obtain compensation for a wrong, though the natural and probable consequence of an injury, cannot usually be recovered as damages.^"* "In general, the law considers 102 Sedg. Dam. p. 95. !»♦ CONTRACTS. Goodbar v. Lindsley, 51 Ark. 380, 11 S. "SV. 577; Vorse v. Phillips, 37 Iowa, 428; Offutt v. Edwards, 9 Rob. (La.) 90. TORTS. Flanders v. Tweed, 15 Wall. 450; Winstead v. iiuline, 32 Kan. .^•G8, 4 rac. 994; Kelly v. Rogers, 21 Minn. 14G; Winkler v. Roeder, 23 Neb. 70(5, 37 N. W. 607; Atkins v. Cindwisli, 25 Nob. :VM). 41 N. W. :'.47; Hicks v. Foster, 13 Barb, or.3; Weldi v. Railroad Co.. 12 Hicli. Law. 2!tO; Hnrnard v. Poor, 21 r'ifk. :;78; Bishop v. Ilfiidrlck, S'J I Inn. :VS.'.. 31 N. ^■. Siipp. 5(>i:. Not 88 COMPENSATORY DAMAGES. (Ch. 3 tbe taxed costs as the only damage which a party sustains by the defense of a suit against him, and these he recovers by the judgment in his favor." ^®' The rule excludes compensation for counsel^*'' and witness ^"^ fees, and for time and expense in attending court/** The law has arbitrarily fixed the taxable costs as the limit of com- pensation for this class of losses.^ '^'* Beyond this, the loss is dam- num absque injuria. In some states a recovery for expenses beyond taxable costs has been allowed in cases where exemplary damages eveu when tbe actiou was vexatious. JSalado College v. Davis, 47 Tex. 131. In some cases, the jury have been permitted to consider such expenses for the purpose of giving full indemnity. Whipple v. Cumberland Manuf'g Co., 2 Story, GGl, Fed. Cas. No. 17,516; Piatt v. Brown, 30 Conn. 33G; Welch v. Durand, 30 Conn. 182; Finney v. Smith, 31 Ohio St. 521); Armstrong v. Pier- son, S Iowa, 29; Kose v. Belyea, 1 Haun, 101). Counsel fees in admiralty suits are not allowed, Arcambel v. Wiseman, 3 Dall. 306; The Margaret v. The Connestoga, 2 Wall. Jr. 116, Fed. Cas. No. 9,070; though the rule has been doubted, The AppoUon, 9 Wheat. 362; Canter V. American Ins. Co., 3 Pet. 307. Nor in patent suits, Blanchard's Gun-Stock Turning Factory v. Warner, 1 Blatchf. 258, Fed. Cas. No. 1,521; Stimpsou v. The Railroads, 1 Wall. Jr. 164, Fed. Cas. No. 13,456; Whittemore v. Cutter, 1 Gall. 429, Fed. Cas. No. 17,600. though the contrary has been held, Boston Manuf'g Co. v. Fiske, 2 Mason, 119, Fed. Cas. No. 1,681; Piersou v. Eagle Screw Co., 3 Story, 402. Fed. Cas. No. 11,156; Allen v. Blunt, 2 Woodb. & M. 121, Fed. Cas. No. 217. Where an assessment is made for a contractor, and is held invalid in his suit against the owner to collect it, in a subsequent action against the city to recover the contract price of the work the contractor cannot recover counsel fees in the prior suit. City of Toledo v. Goulden, 3 Ohio Dec. 124; City of Cincinnati v. Steadman, 8 Ohio Cir. Ct. R. 407. Where a city erroneously assumes that a certain w-ay is a public street, and passes an ordinance to change its grade, an abutting owner is entitled to recover of the city the expense incurred by him in showing that it has no rights in such way. Huckestein v. Allegheny City, 165 Pa. St 367, 30 Atl. 982. Where prop- erty Is wrongfully seized on execution, the owner is entitled to a reasonable amount for attorney's fees expended in an action to protect his rights. Gilker- son-Sloss Commission Co. v. Yale, 17 South. 244, 47 La. Ann. 690. 198 Young T. Courtney, 13 La. Ann. 193. See, also, Adams v. Cordis, 8 Pick. 260. inGOelrichs v. Spain, 15 Wall. 211; Henry v. Davis, 123 Mass. 345; War- ren V. Cole, 15 Mich. 265; Haverstick v. Erie Gas Co., 29 Pa. St. 254; Guild v. Guild. 2 Mete. (Mass.) 229. 197 Gulf. C. & S. F. Ry. Co. v. Campbell, 76 Tex. 174, 13 S. W. 19. 198 Jaco])son v. Poindexter, 42 Ark. 97. 199 Sedg. Dam. 339, § 36) ELEMENTS OF COMPENSATION PECUNIARY LOSSES. 89 have been held proper; 2°° but these cases have not been generally followed, and are difficult to be sustained on principle, for such dam- ages are plainly compensatory. ^"^ "The punishment of defendant's delinquency cannot be measured by the expenses of the plaint i If in prosecuting his suit." ^°^ ^ame — Expenses of Prior Litiyation. Where one has in good faith defended an action for the benefit of another, or on account of the latter's wrong, he may, in a sub- sequent action, recover his costs and expenses, including reasonable counsel fees, if the prior litigation was a natural consequence of the •wrong, and necessary to determine the rights of the parties.-"' The 200 Wynne v. Parsons, 57 Conn. 73, 17 Atl. 3G2; Linsley v. Bushnell, 15 €ouu. 225; Bennett v. Gibbons, 55 Conn. 450, 452, 12 Atl. 99; Mason v. Hawes, 52 Conn. 12. In Noyes v. Ward, 19 Conn. 250, where a second trial became necessary in an action for assault and battery, it was held that the •expenses of the first trial might be considered. See, also, Finney v. Smith, 51 Ohio St. 529; Stevenson v. Morris, 37 Ohio St. 10; Peckham Iron Co. v. Harper, 41 Ohio St. 100; Roberts v. Mason, 10 Ohio St. 277; Thompson v. Powning, 15 Nev. 195; Titus v. Corkins, 21 Kan. 722; Marshall v. Betner, 17 Ala. 832; New Orleans, J. & G. N. R. Co. v. Allbvitton, 38 Miss. 242; Taylor V Morton, 61 Miss. 24; Landa v. Obert. 45 Tex. 539. 201 Howell V. Scoggins, 48 Cal. 355; Falk v. Waterman, 49 Cal. 224; Kelly V. Rogers, 21 Minn. 146; Halstead v. Nelson, 24 Hun, 395; Welch v. Railroad Co., 12 Rich. Law, 290; Hoadley v. Watson, 45 Vt. 289; Earl v. Tupper, Id. 275. 202 Day V. Woodworth, 13 How. 363, 371. Approved in Oelrichs v. Spain, 15 Wall. 211. See, also, Fairbanks v. Witter, 18 Wis. 287, 290. -03 Baxendale v. Railway Co., L. R. 10 Exch. 35; Dubois v. Hermance, 50 N. y. G73; Hughes v. Graeme, 33 Law J. Q. B. 335; Inhabitants of Westfield V. Mayo, 122 Mass. 100. Where the litigation was unnecessary, neither costs nor counsel fees can be recovered. Lunt v. Wrenn, 113 111. 168. In an ac- tion on an injunction or attachment bond, counsel fees in obtaining a dissolu- tion of the injunction or attachment may be recovered. Holmes v. Weaver, 52 Ala. 510; Boiling v. Tate, 65 Ala. 417; Graves v. Moore, 58 Cal. 435; Wit- tich V. O'Neal, 22 Fla. 592; Cummings v. Burleson, 78 111. 281; Morris v. Price, 2 Blackf. 457; Raupman v. City of Evansvillo, 44 Ind. 392; Swan v. Tiinmons, 81 Ind. 243; Sanford v. Willotts, 29 Kan. (!47; Tyler v. SalTord, SI Kan. 608, 3 Pac. 333; Trapnall v. McAfee, 3 Mete. (Ky.) 34; Littlejohn v. AVilcox, 2 La. Ann. 620; Swift v. Plessner, 39 Mich. 178; Miles v. Edwards, 6 Mont. 180, 9 Pac. 814; Raymond Bros. v. Green, 12 Neb. 215, 10 N. W. 709; Brown v. Jones, 5 Nev. 374; Corcoran v. .Tudson, 21 N. Y. 10(5; .Andrews v, ^ncnville Woolen Co., 50 N. Y. 282; Rose v. Post. .")(; X. Y. 60.".; .\l<>\;indi'r v. 90 COMPENSATORY DAMAGES. (Ch. 3- rule is uot univei'sal, however.-"* Where plaintiff was successful in the prior litigation, it is sometimes held that counsel fees can- not be recovered, for he has received the taxed costs, which are re- jrarded in the eyes of the law as full indemnity. But, as Mr. Sedg- .Tacoby, '23 Ohio St. 358; Lillie v. Lillie, 55 Vt. 470. Contra, Oliphint v Mans- lield, 30 Ark. 191; Pattou v. Garrett, 37 Ark. G05; Wallace v. York, 45 Iowa, 81; Lowenstein v. Monroe, 55 Iowa, 82, 7 N. W. 406. In Baggett v. Beard, 43 Miss. 120, the expense of the principal suit was held recoverable in an action on an injunction bond. But the weight of authority is the other way. See Frost v. Jordon, 37 Minn. 544, 36 N. W. 713; Jacobus v. Monongahela Nat. Bank, 35 Fed. 395; Randall v. Carpenter, 88 N. Y. 293; Alexander v. Jacoby, 23 Ohio St. 358; Lillie v. Lillie, 55 Vt. 470; Copeland v. Cunningham, 63 Ala. 394; Bustamente v. Stewart, 55 Cal. 115; Vorse v. Phillips, 37 Iowa, 428; Brinker v. Leinkauflf, 04 Miss. 236, 1 South. 170. In an action for breach of covenants of seisin or warranty, or for false representations, the reason- able counsel fees in litigation in which one engaged, relying on the covenant or representation, may be recovered if it was a legitimate consequence of the covenant or representation. Sedg. Dam. 356; Levitzky v. Canning, 33 Cal. 299; Harding v. Larkin, 41 111. 413; Kobertson v. Lemon, 2 Bush, 301; Ky- erson v. Chapman, 66 Me. 557; Allis v. Nininger, 25 Minn. 525; Kennison v. Taylor, 18 N. H. 220; Keeler v. Wood, 30 Vt. 242; Smith v. Sprague, 40 Vt. 43; Dalton v. Bowker, 8 Nev. 190. Contra. Jeter v. Glenn, 9 Rich. Law, 374; Clark v. Mumford, 62 Tex. 531. In Massachusetts, it has been held that the costs, but not the counsel fees, may be recovered. See Lefiingwell v. El- liott, 10 Pick. 204; Reggie v. Braggiotti, 7 Cush. 166. The same principles apply in actions on indemnity bonds. Hadsell v. Hancock, 3 Gray, 526; Kan- sas City Hotel Co. v. Sauer, 05 Mo. 270; Graves v. Moore. 58 Cal. 435. But see Russell v. Walker, 150 Mass. 351, 23 N. E. 383, and McDaniel v. Crabtree, 21 Ark. 431. When, as the necessary and proximate consequence of a breach of contract, plaintiff is compelled to engage in litigation, his reasonable expenses may be recovered. Dubois v. Hermance, 56 N. Y. 673; New Haven &; N. Co. v. Hay- den, 117 Mass. 433; Hagan v. Riley, Vi Gray, 515; Pond v. Harris, 113 Mass. 114; Call V. Hagar, 69 Me. 521; Shaw v. Mayor, etc., of Macon, 19 Ga. 468; Ottumwa V. Parks, 43 Iowa, 119; Henderson v. Squire, L. R. 4 Q. B. 170. •'If a party is obliged to defend against the act of another, against whom he has a remedy over, and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his own, he may notify such party of the pendency of the suit, and may call upon him to defend it. If he fails to defend, then, if liable over, he is liable, not only for the amount of damages recovered, but for all reasonable and necessary expenses incurred 204Leffingwell v. Elliott, 10 Pick. 204; Reggio v. Braggiotti, 7 Cush. 100. §§ 37-38) ELEMENTS OF COMPENSATION PAIN AND INCONVENIENCE. 91 wick has said/"' in speaking of the legal fiction that the taxable costs are a full indemnity for the expenses of litigation, it is very doubtful if the rule ever applies except as between the parties to the suit, for the reason of the rule is that the taxable costs are an arbitrary sum awarded by law to be paid by the losing to the pre- vailing party. SAME— PHYSICAL PAIN AND INCONVENIENCE. 37. Compensation may al-ways be recovered for physical pain w^hich is the proximate and certain result of a ■wrong. 38. Inconvenience amounting to physical discomfort may be compensated. Physical pain or inconvenience which is the proximate and cer- tain result of a wrong is always an element of compensation.^"® in such defense." Inhabitants of Westfield v. Mayo, 122 Mass. 100. See. also, Ottumwa v. Parks, 43 Iowa, 119; Griffin v. Brown, 2 Pick. 304; Osborne & Co. V. Ehrhard, 37 Kan. 413, 15 Pac. 590; Hynes v. Patterson, 95 N. Y. 1. Notice of suit is essential to liability. Lowell v. Boston & L. R. Co., 23 Pick. 24; Chase v. Bennett, 59 N. H. 394. In an action for malicious prosecution, the expenses of the malicious proceeding may be recovered. Lawrence v. Hagerman, 56 111. 68; Krug v. Ward, 77 111. G03; Ziegler v. Powell, 54 Ind. 173; McCardle v. McGinley, 86 lud. 53S; Lytton v. Baird. 95 Ind. 349; Greg- ory V. Chambers, 78 Mo. 294; Magmer v, Renk, 65 Wis. 364, 27 N. W. 26. But the expense of setting stock aside as exempt is not recoverable as damages in an action for maliciously suing out a distress warrant. Sturgls v. Frost, 56 Ga. ISS. The expense of procuring a discharge from imprisonment may be recovered in an action for false imprisonment. Bonosteel v. Bonesteel. 30 Wis. 511; Parsons v. Harper, 16 Grat. 64; Blythe v. Tompkins. 2 Abb. Prac. 468; Foxall v. Barnett, 2 El. & Bl. 928; Pritchot v. Boevey, 1 Cronip. & M. 775. Contra. Bradlaugh v. Edwards, 11 C. B. (N. S.) 377. 205 Sedg. Dam. § '.'A'.). 200 Pierce v. Millay. 44 111. 189; Indianapolis & St. L. K. Co. v. Stables, 62 111. 313; City of Chicago v. Jones, 66 111. 349; City of Chicago v. Langlass. Id. 361; City of Chicago v. Elzeman. 71 111. 131; Chicago & E. R. Co. v. Hol- land, 122 111. 461, 13 N. E. 145; McKinley v. Railroad Co., 44 Iowa, 314; Staf- ford V. City of Oskaloosa. 64 Iowa, 2.51, 20 N. W. 174; Fleming v. Town of Shenandoah, 71 Iowa. 456. ."/J N. W. 456; Ross v. Loggctt, 61 Mich. 1 15. 2S N. W. 695; Stephens v. Railroad Co.. 96 Mo. 207, 9 S. W. 5.S9; Itldcnh.xir v. 92 COMPENSATORY DAMAGKS. (Ch. 3 The amount of damages awarded is necessanly left to the sound discretion of the jury, for there is no arithmetical rule by whicli tlie equivalent of such injuries in money can be estimated. Damages cannot be recovered for inconvenience or annoyance,^"^ unless it amounts to physical discomfort.-"® "The injury must be physical, as distinguished from one purely imaginative. It must be some- thing that produces real discomfort or annoyance through the medium of the senses, not from delicacy of taste or refined fancy." -°^ SAME— MENTAL SUFFERING. 39. Mental suffering standing alone will not support an action where damages is the gist of the -wrong. AO. Mental suffering which is the proximate and certain result of conduct actionable per se, whether a tort or breach of contract, may be compensated. EXCEPTION — In many states compensation cannot be recovered for mental suffering resulting from a breach of contract. Mental Suffering as the Basis of a Cause of Action. It has been doubted whether compensation can ever be recovered •for mental suffering as distinguished from physical suffering.^ ^° Railway Co., 102 Mo. 270, 13 S. W. 8S9, and 14 S. W. 700; Pennsylvania & O. Canal Co. v. Graham, 63 Pa. St. 290; Lake Shore & M. S. Ry. Co. v. Frautz, 127 Pa. St. 297, 18 Atl. 22; Goodno v. Oshkosh, 28 Wis. 300. 207 Hamlin v. Railway Co., 1 Hurl. & N. 408; Hunt v. D'Orval, Dud. (S. C.) 180; Connell v. Telegraph Co., 116 Mo. 34, 22 S. W. 345; Russell v. Tele- graph Co., 3 Dak. 315, 19 N. W. 408; Wilcox v. Railroad Co., 3 C. C. A. 73, 52 Fed. 264; Yoakum v. Dunn, 1 Tex. Civ. App. 524, 21 S. W. 411. 20 8 Chicago & A. R. Co. v. Flagg, 43 111. 364; Southern Kan. Ry. Co. v. Rice, 38 Kan. 398, 16 Pac. 817; Emery v. City of Lowell, 309 Mass. 197; Ross V. Leggett. 61 Mich. 445, 28 N. W. 695; Luse v. Jones, 39 N. J. Law, 707; Ives v. Humphreys, 1 E. D. Smith, 196; Scott Tp. v. Montgomery, 95 Pa. St. 444. But see Walsh v. Railway Co., 42 Wis. 23. 200 Westcott V. Middleton, 43 N. J. Eq. 478, 486, 11 Atl. 490; Id., 44 N. J. Eq. 297, 18 Atl. 80. And see Baltimore & O. R. Co. v. Carr, 71 Md. 135, 17 Atl. 1052. 210 "Mental suflfering, as a distinct element of damage in addition to bodily suffering, has been held not a subject for compensation." Sedg. Dam. § 44; §§ 39-40) ELEMENTS OF COMPENSATION MENTAL SUFFERING. 93- The reason usually given is that such suffering, as a ground for the recovery of damages, is vague, sentimental, or metaphysical; that the suffering of one person is no criterion by which to estimate the sufferings of another, differently constituted, and that it is too dif- ficult to be weighed and assessed on the basis of a pecuniary com- oensation.^^^ But mental suffering is no more vague, fluctuating,, or difificult to estimate than physical suffering which is always a sub- ject for compensation; nor is it anj' the less real. "Wounding a man's feelings is as much actual damage as breaking his limbs. The difference is that one is internal, and the other external; one mental, the other ph3-sical. In either case the damage is not meas- urable with exactness. There can be a closer approximation in es- timating the damage to a limb than to the feelings ; but, at the last, the amount is indefinite."^ ^^ Where the law recognizes a right to compensation for an injury, difficulty in estimating the extent of the injury has never been regarded as a ground for withholding all damages.^^^ The law solves such difficulties by leaving them to the sound discretion of a jury.-^* The real reason for refusing com- pensation for purely mental sufferings is that mental tranquillity is not a right recognized and protected by law.^^^ The law dores not provide a remedy for every possible injury which a man may suffer. It protects his person, his propert}', and his reputation, but his emotions are beyond the domain of rights protected by law. An act causing mental suffering alone is therefore not a tort, for no legal right is invaded. Where the negligent or wrongful act of one person puts another in a position of peril, and thereby causes Joch V. Dankwardt. 85 111. 331; City of Salina v. Trosper, 27 Kan. 544; John- son V. Wells, Fargo & Co., 6 Nev. 224. Contra, see Lunsford v. Dietrich, 86 Ala. 250, 5 South. 461; Pittsburgh, C. & St. L. Ry. Co. v. Sponier, 85 Ind. 165; Moyer v. Gordon, 113 Ind. 282, 14 N. E. 476; Parkhurst v. Masteller, 57 Iowa, 474, 10 N. W. 804; Shepard v. Railway Co., 77 Iowa, 54, 41 N. W. 564; Porter V. Railway Co., 71 Mo. 66. And see Pennsylvania R. Co. v. Kelly, 31 Pa. St. 372; Oakland Ry. Co. v. Fielding, 48 Pa. St. 320. 211 Wadsworth v. Telegraph Co., 86 Tenn. 721, 8 S. W. 582. 212 Head v. Railway Co., 79 Ga. 358, 7 S. E. 217. 213 Wadsworth v. Telegraph Co., 86 Tenn. 695. 711, 8 S. W. 574. 214 Young V. Telegraph Co., 107 N. C. 370, 11 S. E. 1044; Lucas v. Flinn. 35 Iowa, 9; Ballou v. Farnum, 11 Allen, 73, 77, 78. 21 B See ante, c. 1. y4 COMPENSATORY DAMAGES. (Ch. 3 fear and apprehension in the niiud of the hitter, but no actual harm results, there is no cause of action.-^" Negligence is not a tori, un- less it results in damage with respect to a right protected by law. So, also, defamatory words are not actionabk^, unless followed by damage, actual or presumed. Therefore, if the words are not ac- tionable per se, and no special damage is proved, the mere fact that the words cause mental anguish will not support the action.-^' Wherever actual damage is necessary to render an act a legal wrong, — that is, where damages are the gist of the action, — proof of mental suffering alone will not support a recovery.* 210 Canning v. Williamstown, 1 Gush. 451; Atchison, T. & S. F. R. Co. v. McGinnis, 46 Kan. 109, 2G Pac. 45^3; Terre Haute & I. R. Co. v. Bruulier, 128 Ind. 542, 20 N. E. 178; Ft. Worth & D. C. Ry. Co. v. Burton (Tex. App.) 15 S. W. 197; Gulf, C. & S. F. Ry. Co. v. Trott, 8G Tex. 412, 25 S. W. 419; Wy- man v. Leavitt, 71 Me. 227; Ewing v. Railway Co., 147 Pa. St. 40, 23 Atl. 340. Contra, Yoakum v. Kroeger (Tex. Civ. App.) 27 S. W. 953. Where, however, the fright or shock causes illness, nervous prostration, or any other physical in- jury, the original fault is the proximate cause of the injury; and compensa- tion may be recovered, not for the fright, but for the results of it. Smith v. Railway Co., 30 Minn. 1G9, 14 N. W. 797; Purcell v. Railway Co.. 48 Minn. 134, 50 N. W. 1034; Mitchell v. Railway Co., 4 Misc. Rep. 575, 25 N. Y. Supp. 744; Bell v. Railway Co., 26 L. R. Ir. 428, disapproving Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222. See, also, Fitzpatrick v. Railway Co., 12 U. C. Q. B. 645; Oliver v. Town of La Valle, 36 Wis. 592; Bray v. Latham, 81 Ga. 640, 8 S. E. 64; Lehman v. Railroad Co., 47 Hun. 355; Yoa- kum V. Kroeger (Tex. Civ. App.) 27 S. W. 953; Warren v. Boston & M. R. Co., 163 Mass. 484, 40 N. E. 895. Where the fear or anxiety, instead of caus- ing the physical injury, accompanies it, as a concomitant or incident, the iii- jui-y being proved, compensation may be had for the mental suffering. Tlu» physical injury supports the action. Allen v. Railway Co. (Tex. Civ. App.) 27 S. W. 943; Fell v. Railroad Co.. 44 Fed. 248. 217 Lynch v. Knight, 9 H. L. Cas. 577, 598. * In an action for injuring plaintiff's horse in a brutal manner, accompany- ing the act with malicious insults, plaintiff is entitled to damages for mental suffering. Kimball v. Holmes. 60 N. H. 163. But where defendant circulated reports about plaintiff which caused him mental suffering, but were not oth- erwise actionable, he cannot recover for mental suffemg. Terwilliger v. Wands, 17 N. Y. 54. But, if the words had been actionable per se, damages for mental suffering could have been recovered. Adams v. Smith. ."i8 111. 417. It is difficult to see any sound reason for the distinction. §§ 39-40) ELEMENTS OF COMPENSATION MENTAL SUFFERING. 95 Mental Suffering in Actions of Tort. Compensation for mental suffering which is the natural, proxi- mate, and certain result of a tort may be recovered.^ ^* While com- 2i8PERiiONAL INJURY. In actions for personal injuries, the damages sliould include an allowance for mental suffering in so far as it was attend- ant on tlie physical injury, and inseparably connected with it, or a necessary result of it. Van de Venter v. Railway Co., 20 Fed. 32; Anthony v. Railroad Co., 27 Fed. 724; Robertson v. Cornelson, 34 Fed. 716; Carpenter v. Rail- road Co., 39 Fed. 315; The Queen, 40 Fed. 004; Saldana v. Railroad Co., 43 Fed. SG2; Davidson v. Southern Pac. Co., 44 Fed. 47(3; Ware v. Water Co., 1 Dill. 405, Fed. Cas. No. 17,172; Drinkwater v. Diusmore, 16 Hun, 250; Ran- som V. Railroad Co., 15 N. Y. 415; Curtis v. Railroad Co., 18 N. Y. 534; Walker V. Railroad Co., 03 Barb. 260; Demann v. Railroad Co., 10 Misc. Rep. 191, 30 N. Y. ttupy. 920; Indianapolis & Ht. L. R. Co. v. Stables, 02 111. 313; Toledo, W. & W. R. Co. V. Baddeley, 54 111. 19; Peoria Bridge Ass'n v. Loomis, 20 111. 235; Hannibal &, St. J. R. Co. v. Martin, 111 111. 219; City of Chicago v. McLean, 133 111. 148, 24 N. E. 527; Central Ry. Co. v. Serf ass, 153 111. 379, 39 N. E. 119; Wabash & W. R. Co. v. Morgan, 132 Ind. 430, 31 N. E. 661, and 32 N. E. 85; Town of Nappanee v. Ruckman, 7 Ind. App. 361, 34 N. E. 609; Muldowney v. Railroad Co., 36 Iowa, 462; Ferguson v. Davis Co., 57 Iowa, ; Mc- Mahon v. Railroad Co., 39 Md. 438; Giblin v. Mclntyre, 2 Utah, 384; Larmon V. District of Columbia, 5 Mackey, 330; Fairchild v. Stage Co., 13 Cal. 599; Memphis & C. R. Co. v. Whitfield, 44 Miss. 466; City of Salina v. Trosper, 27 Kan. 544; Montgomery & E. R. Co. v. Mallette, 92 Ala. 209, 9 South. 303; Kinney v. Folkerts, 84 Mich. 616, 48 N. W. 283; Lawrence v. Railroad Co., 29 Conn. 390; McMillan v. Brick Works, 6 Mo. App. 434; Wallace v. Rail- road Co. (Super. Del.) 18 Atl. 818; Cooper v. Mullins, 30 Ga. 146. Conuell V. Telegraph Co., 116 Mo. 34, 22 S. W. 345. Mental suffering will be Inferred from severe physical injury, without direct proof that such sulforings ensued. Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288. Mental pain is not a distinct element of damage, in addition to or apart from bodily suffering. .Johnson v. Wells, Fargo & Co., G Nev. 224; Joch v. nnnkwnifit, 8.") 111. :'.:'.l; Galveston, H. & S. A. R. Co. V. Porfert, 72 Tex. :'.ll, lo S. W. 2(i7. Iiislruction.s ap- proved. See llaiiiford v. City of I\.;iii.s;is, lo;) Mo. 172, !."> S. W. 7."):;: ivciuion yC COMPENSATORY DAMAGES. (Ch. iJ pensation for mental suffering aloue cannot be lecoveied, where the same act that causes mental suffering also injuivs plaiuliff iu V. Gilmer, 131 U. S. 22, 9 Wup. Ct. 696. Compeusatiou for sliock to tlie feel- iugs attendant on personal injury may be recovered. Seger v. Town of Barli- liamsted, 22 Conn. 290; Masters v. Town of Warren, 27 Coun. 29;j. ASSAULT AND BATTERY. In a civil action for assault and battery, com- pousation may be recovered for mental suffering, wounded feelings, dishonor, indignity, or disgrace. Boyle v. Case, 18 Fed. 8S0, 9 Sawy. I^Sti; Scbelter v. York, Crabbe, 449, Fed. Cas. No. 12,446; West v. Forrest, 22 Mo. 344; Slater r. Kink, IS III. 527; Gaither v. Blowers, 11 Md. 536; Fay v. Swan, 44 Mich. 544, 7 N. W. 215; Sloan v. Edwards, 61 Md. 89; Grouan v. Kukkuek, 59 Iowa, IS, 12 N. W. 748; Lucas v. Flinn, 35 Iowa, 9; Root v. Sturdivant, 70 Iowa, 55, 29 N. W. 802; Corcoran v. Harran, 55 Wis. 120, 12 N. W, 468; Barnes V. Martin, 15 Wis. 240; Barbee v. Reese, 60 Miss. 906; Ward v. Black- wood, 4S Ark. 396, 3 S. W. 624; Morgan v. Curley, 142 Mass. 107, 7 N. E. 726; Smith v. Holcomb, 99 Mass. 552; Tatnall v. Courtney, 6 Houst. 434; Smith v. Overby, 30 Ga. 241; Nossaman v. Rickert, 18 Ind. 350; Cox V. Vanderkleed, 21 Ind. 164; AVadsworth v. Treat, 43 Me. 163; Beck v. Thompson, 31 W. Va. 459, 4 S. E. 447; Lunsford v. Walker, 93 Ala. 36, 8 South. 386; Taber v. Hutson, 5 Ind. 322; Craker v. Railway Co., 36 Wis. 657; Mclntyre v. Gibbn, 131 U. S. 174, Append.; Hawes v. Knowles, 114 Mass. 518; Townsend v. Briggs (Cal.) 32 Pac. 307. INDECENT ASSAULT. The damages recoverable for an indecent assault upon a woman include compensation for plaintiff's shock, fright, outraged feel- ings, anguish of mind, shame and humiliation, and loss of honor or good name. Wolf V. Trinkle, 103 Md. 355, 3 N. E. 110; Fay v. Swan, 44 Mich. 544, 7 N. W. 215; Alexander v. Blodgett, 44 VL 476; Ford v. Jones, 62 Barb. 4S4; Newell V. Whitcher, 53 Vt. 589. INJURY TO CHILD— RECOVERY BY PARENT. In an action by a father for an injury to his child, plaintiff, may recover for his own mental suffering, but not for those of the child. Durkee v. Railroad Co., 56 Cal. 388; Trimble V. Spiller, 7 T. B. Mon. 394. Contra, Flemington v. Smithers, 2 Car. & P. 292. The cases of Pennsylvania R. Co. v. Kelly, 31 Pa. St. 372, and Oakland R. Co. V. Fielding, 48 Pa. St. 320, apparently holding the contrary, proceed on the theory that mental suffering can never be compensated. Black v. Railroad Co., 10 La. Ann. 33, and Whitney v. Hitchcock, 4 Denio, 461, went off on the notion that such damages were exemplary. CIVIL DAMAGE LAWS. The statutes giving a right of action for inju- ries caused by the unlawful sale of intoxicating liquor usually give redress only for injury to person, property, or means of support, and therefore mental suffering alone will not support the action. Black. Intox. Liq. § 309; Mulford V. Clewell. 21 Ohio St. 191; Koerner v. Oberly, 56 Ind. 284; Brantigam v. While, 73 111. 561; Freese v. Tripp, 70 111. 496; Flynn v. Fogarty, 106 111. 263; Kearney v. Fitzgerald, 43 Iowa, 580; Jackson v. Noble, 54 Iowa, 641, 7 §§ 39-40) ELEMENTS OF COMPENSATION MENTAL SUFFERING. 97 respect to a right protected by law, as in regard to his person, property, or reputation, the law, in redressing such injury, will N. W. 88; ^Yelcll v. Jugeuheimer, 5(3 Iowa, 11, 8 N. W. 673; Clinton v. Lan- ing, 61 Mich. 355, 28 X. W. 125; Jolinson v. Scliultz, 74 Mich. 75, 41 N. W. 865. But where there is a cause of action falling within the statute, mental suffering connected therewith may be taken into account. Pegram v. Stortz, 31 W. Va. 220. 6 S. E. 485; Friend v. Dunks, 37 Mich. 25; Ward v. Thomp- son, 48 Iowa. 588; Peterson v. Knoble, 35 Wis. 80. TRESPASS FOR INJURIES TO REALTY AND PERSONALTY. Mental suffering is not usually a natural or a proximate consequence of a trespass or injury to property. White v. Dresser, 135 Mass. 150. In forcible entry and detain- er, damages for mental suffering cannot be recovered. Anderson v. Taylor, 50 Cal. 131. AYhere one obtains property by duress of threats, mental and physical suffering is not a proximate consequence. Wulstein v. Mohlman (Super. Ct.) 5 N. Y. Supp. 569. But, where a landlord Avrongfully evicted a tenant, it was held that the latter could recover for mental sutfering at having his family turned into the street. Moyer v. Gordon, 113 Md. 282, 14 N. E. 476; Fille- brown v. Hoar, 124 Mass. 580. Cf. Smith v. Grant, 56 Me. 255. Damages for mental suffering have been allowed in actions for taking property under an un- lawful search warrant, Melcher v. Scruggs, 72 Mo. 406; for suing out a vexa- tious attachment, City Nat. Bank v. Jeffries, 73 Ala. 183; Byrne v. Gardner, 33 La. Ann. 6; for carrying away a valuable paper, Bonelli v. Bowen, 70 Miss. 142. 11 South. 791; and for beating plaintiff's horse, Kimball v. Holmes, 60 N. H. 163. A physician has been held liable for mental suffering and shame caused by his taking an unprofessional, unmarried man with him to attend a confinement case. De May v. Roberts, 46 Mich. 160, 9 N. W. 146. EJECTION OF PASSENGER BY CARRIER. The wrongful ejection of a passenger from a public conveyance is not only a breach of contract, but is al.so a tort. Hence, compensation for the humiliation, insult, and indignity put upon him may be recovered. Coppin v. Braithwaite. 8 Jur. 875; (iallena v. Railroad Co., 13 Fed. 116; Murphy v. Railroad Co., 23 Fed. 637; Quigley v. Railroad Co., 5 Sawy. 107, Fed. Cas. No. 11,510; Id., 11 Nev. 350; McKinley V. Railroad Co., 44 Iowa, 314; Shepard v. Railroad Co., 77 Iowa, 54, 41 N. W. 564; Carsten v. Railroad Co., 44 Minn. 454, 47 N. W. 49; Hoffman v. Railroad Co., 45 Minn. 53, 47 N. W. 312; Serwe v. Railroad Co., 48 Minn. 78, 50 N. W. 1021; Perry v. Railway Co., 153 Pa. St. 236. 25 Atl. 772; Baltimore & O. K. Co. v. Bambrey (Pa. Sup.) 16 Atl. 67; Hays v. Railroad Co., 46 Tex. 272; International & G. N. R. Co. v. Smith (Tex. Sup.) 1 S. W. 565; Inter- national & G. N. R. Co. V. Wilkes. 68 Tex. 617, 5 S. W. 491; Pennsylvania U. Co. V. Spicker, 105 Pa. St. 142; Taber v. Hutson, 5 Ind. 322; Toledo, W. & W. R. Co. V. McDonongli. .5:5 Iiul. 2S!i: Lake Erie iV: W. R. Co. v. Fix, SS liid. 381; Chicago, St. L. & P. R. Co. v. Holdridge, 118 Ind. 281, 20 N. E. 837; Chicago iV: N, W. U. Co. V. Chlsliolm. 79 111. .^84; Chicago & N. W. K. Co. v. Williama, 55 111. 1S5; Lake Erie & \X. R. Co. v. Christison, 39 111. A pp. 495; Ponusylvanln LAW DAM. — 7 98 COMPENSATORY DAMAGES. (Cll. 3 also award to plaintiff a suitable coraponsatiou for his mental suf- fering, considered as an inseparable part of the general result of U. Co. V. Couuoll, lliT 111. 411), -20 X. E. SU; Little Kock & F. S. R. Co. v. Doau, 43 Ark. 529; CJi'oigUi K. Co. v. Ilomer, 73 Ga. 251; Head v. Railroad Co., TO Ga. 358, 7 S. E. 217; Wilscy v. Railroad Co., 83 Ky. 511; Louisville & N. R. Co. V. Whitman. 79 Ala. 328; Smith v. Railroad Co., 2;3 Ohio St. 10; Hagau v. Rail- road Co.. 3 R. I. 88; Southern Kansas R. Co. v. Rice, 38 Kan. 398, 10 Pac. 817; Goddard v. Kailway Co., 57 Ale. 202; Allen v. Ferry Co., 46 N. J. Law, 198; Hamilton v. Railroad Co., 53 N. Y. 25 A person seeking passage in a particu- lar car on a railroad train, who is excluded therefrom on account of her color alone, may recover for the indignity, vexation, and disgrace to which she has been subjected. Chicago & N. W. R. Co. v. Williams, 55 111. 185. Where the ejectiou was in good faith, and without violence, insult, or malice, the au- thorities are divided as to whether compensation can be recovered for mental suffering. The question was answered in the negative in Dorrah v. Railroad Co., Go Miss. 14, 3 South. 3G; Illinois Cent. R. Co. v. Sutton, 53 111. 397; Gormau V. Southern Pac. Co., 97 Cal. 1, 31 Pac. 1112; Finch v. Railroad Co., 47 Minn. 30. 49 N. W. 329; Houston City St. R. Co. v. Jageman (Tex. Civ. App.) 23 S. W. 628; and in the affirmative by Chicago & A. R. Co. v. Flagg, 43 111. 3l^4: Pennsylvania Co. v. Bray, 125 Ind. 229, 25 N. E. 439; Chicago & E. I. R. Co. v. Conley, 6 Ind. App. 9, 32 N. E. 96, 865; Curtis v. Railroad Co., 87 Iowa, 622, 54 N. W. 339; Willson v. Railroad Co., 5 Wash. St. 621, 32 Pac. 468, 34 Pac. 146. Where the passenger was put down at an improper place, damages may be recovered for mental suft',oring, if a natural and proximate consequence. Stut/. v. Railroad Co., 73 Wis. 147, 40 N. W. 6.5.]; Missouri Pac. R. Co. v. Kaiser, 82 Tex. 144, 18 S. W. 305. FALSE IMPRISONMENT. Compensalion may be recovered for mental suf- fering caused by false impiisoumeut .lay v. Almy, 1 Woodb. & M. 262, Fed. Cas. No. 7,236; McCall v. McDowell, Dcady, 233, Fed. Cas. No. 8,673; Catliu V. Pond. 101 N. Y. 649, 5 N. E. 41; Abrahams v. Cooper, 81 Pa. St. 232; Dug- gan V. Railroad Co., 159 Pa. St. 248, 28 Atl. 182, 186; Fenelon v. Butts, 53 Wis. 344, 10 N. W. 501; Parsons v. Harper, 16 Grat. 64; Stewart v. Maddox, 63 Md. 51; Hays v. Creary, 60 Tex. 445; Taylor v. Davis (Tex. Sup.) 13 S. W. 642; Coffin V. Varila (Tex. Civ. App.) 27 S. W. 956; Sorenson v. Dundas, 50 Wis. 335, 7 N. W. 259; Ross v, Leggett, 61 Mich. 445, 28 N. W. 695; Ball v. Horri- gan, 65 Hun, 621, 19 N. Y. Supp. 913; Hewlett v. George. 68 Miss. 70.^. '•• South. 885. MALICIOUS PROSECUTION. Mental suffering may be compensated in an action for malicious prosecution. Parkhurst v. Masteller. 57 Iowa, 474, 10 N. W. 864; Vinal v. Core, 18 W. Va. 1; Fisher v. Hamilton. 49 Ind. 341; Hogg v. Pinckney. 16 S. C. 387; Coleman v. Allen. 79 Ga. 637. 5 S. E. 204; Lavender v. Hudgens. 82 Ark. 763; Yount v. Carney (Iowa) 60 N. W. 114; Lunsford v. Dietrich, 86 Ala. 2.50, 5 South. 461; McWilliams v. H:oban, 42 Md. .56; Malone v. Murphy, 2 Kan. 2.50; Faguan v. Knox, 40 N. Y. Super. Ct. 41; Wheeler v. §§ 39—40) ELEMENTS OF COMPENSATION MENTAL SUFFERING. 99 the tort against him; ^^® that is to say, where the act complained of Avill itself support the action, compensation for mental suffering Hanson, 101 Mass. 370, 37 N. E. 382; Shannon v. Jones, 76 Tex. 141, 13 S. W. 477; Willard v. Holmes, Booth & Haydens, 2 Misc. Rep. 303, 21 N. Y. Supp. 99S. LIBEL AND SLANDER. In actions for defamation, if the words are not actionable per se, mental suffering alone will not render them actionable. But if the words are actionable per se, or if other special damage be shown to sup- Ijort the action, plaintiff's mental suffering may be compensated. Shattuc v. McArthm-, 29 Fed. 136; Terwilliger v. Wands, 17 N. Y. 54; Gomez v. Joyce (Super. Ct.) 1 N. Y. Supp. 337; Wilson v. Goit, H N Y. 442; Samuels v. Asso- ciatiou, 6 Hun, 5; Hamilton v. Eno, 16 Hun, 599; Ward v. Deane (Sup.) 10 N. Y. Supp. 421; Lombard v. Lennox, 155 Mass. 70, 28 N. E. 1125; Mahoney v. Belford, 132 Mass. 393; Markham v. Russell, 12 Allen, 573; Hastings v. Stet- son, 130 Mass. 76; Chesley v. Tompsou, 137 Mass. 136; Austin v. Wilson, 4 Cush. 273; Stallings v. Whittaker, 55 Ark. 494, 18 S. W. 829; Republican Pub. €o. V. Mosman, 15 Colo. 399, 24 Pac. 1051; Swift v. Dickerman, 31 Conn. 285; Marble v. Chapin, 132 Mass. 225; McDougald v. Coward, 95 N. C. 368; Scripps V. Reilly, 38 Mich. 10; Newman v. Stein, 75 Mich. 402, 42 N. W. 956; Rea v. Harrington, 58 Vt. 181, 2 Atl. 475; McQueen v. Fulgham, 27 Tex. 463; Zeliff T. Jennings, 61 Tex. 458; Adams v. Smith, 58 111. 419; Miller v. Roy, 10 La. Ann. 231; Dufort v. Abadie, 23 La. Ann. 280; Blumhardt v. Rohr, 70 Md. 328, 17 Atl. 266; Johnson v. Robertson, 8 Part. (Ala.) 486. Contra, Prime v. East- wood, 45 Iowa, 640. Such damages being compensatory, and not exemplary, malice is immaterial. Warner v. Publishing Co., 132 N. Y. 181, 30 N. E. 393; Farrand v. Aldricb, 85 Mich. 593, 48 N. W. 628; Detroit Daily Post Co. v. Mc- Arthur, 16 Mich. 447. SEDUCTION AND CRIMINAL CO.n VEliSATION. In actions by a parent for seduction of his daughter, or by a husband for criminal conversation with bis wife, the fiction of loss o^ service supports the action, but damages may be given for the mental suffering of the parent or husband. Irwin v. Dearman, 11 East, 23; Bedford v. McK6wl, 3 Esp. 119; Andrews v. Askey, 8 Car. & P. 7; Barbour v. Stephenson, 32 Fed. 66; Johnston v. Disbrow, 47 Mich. 59, 10 N. W. 79; Russell v. Chambers, 31 Minn. 54, 16 N. W. 458; Fox v. Stevens, 13 Minn. 1272 (Gil. 252); Herring v. Jester, 27 Houst. 66; Emery v. Gowen, 4 Me. 33; Lnnt V. Philbrick, 59 N. H. 59; Phillips v. Hoyle, 4 Gray. .568; Hatch v. Fuller, 131 Mass. 574; Rollins v. Chalmers, 51 Vt. 592; Hornketh v. Barr, 8 Sorg. & R. ••!i9 Lynch v. Knight, 9 H. L. Cas. 577; Trigg v. Railway Co., 74 Mo. 147; Burnett v. Telegraph Co., 39 Mo. A))]). 599; W. U. Tel. Co. v. Rogers, 68 Miss. 748, 9 South. 823; Summerlield v. Telcgrar)h Co., 87 Wis. 1, 57 N. W. 973. A wife may recover for mental anguisli, mortification, and injured feelings cau.sed by the alienation of her husband's affections, \vitli«»iil sliDwiiig actual Inss of support. Rice v. Rice (.Midi.) C>'2 N. W. 8.'!:'>. 100 COMPENSATORY DAMAGES. (Cll. 3 caused thereby may be included in the damages recoverable. The plaintiff, being entitled to some damage by reason of defendant's wrongful act, may recover all the damage arising from it."*^ Thus,. M; Plielin v. Keudordiue, 120 Pa. St. 354; Matheis v. Mazet, 1G4 Pa. St. oSO, oO Atl. 434; Kendrick v. MeCiary, 11 Ga. GU3; Felkuer v. Scarlet, 29 Md. 154, Taylor v. Sbelkett, 6U Ind. 297; Pruitt v. Cox, 21 Md. 15; Clem v. Holmes, 33- Grat. 722; Riddle v. McGinuis, 22 W. Va. 253; Wilhoit v. Hancock, 5 Biisli, 5G7; Leucker v. Steileii, S9 111. 545; Grable v. Margrave, 4 111. 372; Ball v. Bruce, 21 111. 161; White v. Murtland, 71 111. 250; Yundt v. llartrunft, 41 111. 9; Parker v. Monteitli, 7 Or. 277; Ellington v. Ellington, 47 Miss. 329; Ste- venson V. Belknap, 6 Iowa, 97; Morgan v. Ross, 74 Mo. 318; Comer v. Taylor, 82 Mo. 341; Stout v. Prall, 1 N. J. Law, 79; Coon - Moffitt, 3 N. J. Law, 1G9; Lavery v. Crooke, 52 Wis. 612, 9 N. W. 599; Lipe v. Eisenlerd, 32 N. Y. 229; ("lark v. Fitch, 2 Wend. 459; Stiles v. Tilford, 10 Wend. 338; 2 Selw. N. P. 1106; Russell v. Chambers, 31 Minn. 54, 16 N. W. 458; Bigaouette v. Paulet, 134 Mass. 123. In an action' for criminal conversation, plaintiff need not show that he suffered any pecuniary damages through the loss of his wife's services. Long V. Booe (Ala.) 17 South. 716. For instruction as to damages in action for seduction of wife, see Matheis v. Mazet, 164 Pa. St. 580, 30 Atl. 434. Under statutes giving a woman a right of action for her own seduction, she may recover for mental anguish. Gray v. Bean, 27 Iowa, 221; Hawn v. Banghart, 76 Iowa, 683, 39 N. W. 251; Simons v. Busby, 119 Ind. L3, 21 N. E. 451; McCoy v. Trucks, 121 Ind. 292, 23 N. E. 93; Wilson v. Slepler, 86 Ind. 275; Breon v. Henkle, 14 Or. 494, 500, 13 Pac. 289. ABDUCTION OF CHILDREN. Damages for mental anguish may be given. in an action for the abduction of a child. Magee v. Holland, 27 N. J. Law, 86; Stowe v. Heywood, 7 Allen. 118. PROSPECTIVE MENTAL SUFFERING. Damages may be recovered for prospective mental suffering. Matteson v. Railroad Co., 62 Barb. 364; Mem- phis & C. R. Co. V. Whitfleld, 44 Miss. 466; South & North Alabama R. Co. v. McLendon, 63 Ala. 266; Campbell v. Car Co., 42 Fed. 484; Stewart v. City of Ripon, 38 Wis. 584; Spicer v. Railroad Co., 29 Wis. 580; Shiel v. City of Ap- pleton, 49 Wis. 125, 5 N. W. 27; Kendall v. City of Albia, 73 Iowa, 241, 34 N. W. 833. In personal injury cases, damages may be recovered for grief and mortification which will be caused in the future by any serious deformity and disfigurement. Heddles v. Railroad Co., 77 Wis. 228, 46 N. W. 115; Power v. Harlow, .57 Mich. 107. 23 N. W. 0L»6; Western & A. R. Co. v. Young, 81 Ga. 397, 7 S. E. 912; Sherwood v. Railroad Co.. 82 Mich. 374, 46 N. W. 773; Schmitz v. Railroad Co.. 119 Mo. 2.56, 24 S. W. 472. Contra, Chicago, B. & Q. R. Co. v. Hines, 45 111. App. 299; Chicago, R. I. & P. R. Co. v. Caulfield, 11 C. C. A. 552, 63 Fed. 396. Damages for dread of hydrophobia may be recovered by one who has been bitten by a dog. Godeau v. Blood. .52 Vt. 251; Warner v. Cham- berlain, 7 Houst. IS, 30 Atl. 638. 220 Chapman v. Tol(>graph Co. (Ky.) 13 S. W. 880. §§ 39-40) ELEMENTS OF COMPENSATION MENTAL SUFFERING. 101 in cases of assault --^ or false imprisonment,--- where plaintiff was not actually touched, substantial damages may be recovered, ihougli the entire injury suffered is necessarily mental. At common law there was no property in a corpse; and therefore compensation could not be recovered for mental suffering caused by indignities offered to the remains of a near relative.-^^ But where defendant trespassed on plaintiff's burial lot, and disturbed the remains of his <.hild, it was held that damages for mental suffering could be re- covered in an action of quare clausum fregit,-^* because the trespass was sufficient to support the action. Compensation for mental suf- fering is often refused because such suffering is not a proximate result of the injury. Thus, where a personal injury causes a mis- carriage, damages for mental suffering attending the miscarriage may be recovered, but grief for the loss of the child is too remote.^-"' ^'Any mental anguish which may not have been connected with the bodily injury, but caused by some conception arising from a different source," is too remote. It may be stated as a general rule, in ac- tions of tort, that, wherever a wrong is committed which will sup- port an action to recover some damages, compensation for mental suffering may also be recovered, if such suffering follows as a nat- ural and proximate result. 221 I. de S. V. W. de S., Ames, Cas. Torts, 1; Morton v. Shoppee, 3 Car. & P. 373; Goddard v. Railway Co., 57 Me. 202; Handy v. Jolinson, 5 Md. 450; Beach v. Hancock, 27 N. H. 223; Alexander v. Blodgett, 44 Vt. 476. 222 Wood V. Lane, 6 Car. &. P. 774; Peters v. Stan way, 6 Car. & P. 737; Grainger v. Hill, 4 Bing. N. C. 212; Fotheringham v. Express Co., 3G Fed. 252; Courtoy v. Dozier, 20 Ga. 369; Hawk v. Ridgway, 33 111. 473; Gold v. Bissell, 1 Wend. 210; Mead v. Young. 2 Dev. & B. 521. 2 23 2 Bl. Comm. 429; Foster v. Dodd, 8 Best & S. 842; Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227. 224 Meagher v. Driscoll, 99 Mass. 281. In Larson v. Chase, 47 Minn. .307, 50 X. W. 238, the court broke away from the common-law doctrine, and hold that damages for mental suffering caused by the mutilation of human remains could be recovered, regardless of whether a trespass had been committed or not. See, also, Hale v. Bonner, 82 Tex. 33, 17 S. W. 605. 225 Bovee v. Town of Danville, 53 Vt. 183; W. U. Tel. Co. v. Cooper. 71 Tex. r.07. 9 R. W. 598; City of riiif-auo v. McLean, 133 111. 148, 24 N. E. 527; Tunnl- cliffe V. Railroad Co. (Mi.li.) Gl N. "W. 11. 102 COMPENSATORY DAMAGES. CCll. 3 Mental Suffering in Actions of Contract. Upon the question as to whether damages are recoverable for mental suffering resulting from a breach of contract, the authori- ties are in conflict; but it is believed that, on principle, such dam- ages are recoverable, subject to the general limitation that dam- ages for the breach of a contract must be proximate, certain, and contemplated at the time the contract was made. Undoubtedly, the great majority of contracts are made solely to secure something having a definite or recognized pecuniary value; and in such cases mental suffering would be excluded as an element of damage, be- cause not a natural or contemplated consequence of a breach.^^' But not all contracts are made for pecuniary benefits; and, "where other than pecuniary benefits are contracted for, other than pe- cuniary standards will be applied to the ascertainment of damages flowing from the breach."^^^ Thus, the breach of a promise of mar- riage has always been regarded as an exception, and damages for mental suffering allowed.-^" For breach of an undertaker's con- 228 In the following cases mental suffering has been held too remote or unex- pected to be compensated. Beasley v. Telegraph Co., 39 Md. 181; W. U. Tel. Co. v. Wingate, 6 Tex. Civ. App. 'SM, 25 S. W. 439; Same v. Stephens, 2 Tex. Civ. App. 129, 21 S. W. 148; Gulf, C. & S. F. K. Co. v. Hurley, 74 Tex. .-)93, 12 S. W. 226; W. U. Tel. Co. v. Linn (Tex. Civ. App.) 23 S. W. 895; Id., 87 Tex. 7, 26 S. W. 490; Same v. Motley (Tex. Sup.) 27 S. W. 52; Same v. Stone (Tex. Civ. App.) 27 S. W. 144; Same v. Andrews, lo Tex. 305, 14 S. W. (341; Wells, Fargo & Co. Exp. v. Fuller, 4 Tex. Civ. App. 213, 23 S. W. 412; Nichols V. Eddy (Tex. Civ. App.) 24 S. W. 316; W. U. Tel. Co. v. Carter, 85 Tex. 580, 22 S. W. 961; Ikard v. Telegraph Co. (Tex. Civ. App.) 22 S. W. 534; Pull- man Palace Car Co. v. Fowler, 27 S. W. 2GS; Pullman Co. v. McDonald, 2 Tex. Civ. App. 322, 21 S. W. 945; Thompson v. Telegraph Co., 107 N. C. 449, 12 S. E. 427. In an action against an express company for failure to deliver promptly medicines shipped for the use of plaintiff's sick wife^ damages for sympathetic mental suffering of the husband on account of the pain of his wife are too remote. Pacific Exp. Co. v. Black (Tex. Civ. App.) 2i S. W. 830. 229 Wadsworth v. Telegraph Co., 86 Tenn. 695, 703, 8 S. W. 574. 230 Collins V. Mack, 31 Ark. 684; Sherman v. Dawson, 102 Mass. 395. 399; Reed v. Clark. 47 Cnl. 194; Sauer v. Schulenberg, 33 Md. 2SS; Wilds v. Bogan, 57 Ind. 4.53; Baldy v. Stratton, 11 Pa. St. 316; Chosley v. Chesley, 10 N. H. 327; Wilbur v. .Johnson, 58 Mo. 600; Bird v. Thompson, 96 Mo. 424, 9 S. W. 788; Tobin v. Shaw, 45 Me. 331; Johnson V. Jenkins, 24 N. Y. 252; Musselman V. Barker, 26 Neb. 737. 42 N. W. 759; Thorn v. Knapp, 42 N. Y. 474; Kurtz v. Frank, 70 Ind. 594; Harrison v. Swift, 13 Allen, 144; Giese v. Schultz. .53 Wis. §§ 39-40) ELEMENTS OF COMPENSATION MENTAL SUFFERING. 103 tract to keep safely the body of plaintiff's deceased child, it was held that damages could be recovered for mental anguish;-"^ and a wife has been allowed to recover for mental suffering caused by the negligence of a railroad company in delaying her husband's corpse.'^ - Actions against telegraph companies for delay or failure to de- liver messages constitute by far the most numerous class of cases in which this question has been raised. In the case of So Relle v. Telegraph Co.^^^ it was held that the addressee of a telegraphic message could recover, as compensatory damages, for the failure to deliver promptly a message announcing the death of his mother, by reason of which delay he was prevented from attending her funeral. And it is now^ well established in Texas that, where the nature of the message is such as to apprise the company that mental suffering will result from delay or failure to transmit it, compensation for such suffering can be recovered though not connected with any physical injury or pecuniary loss.^^* The "Texas" doctrine has been 402, 10 N. W. 598; Daggett v. Wallace, 75 Tex. 352, 13 S. W. 49; Vanderpool V. Richardson, 52 Mich. 336, 17 N. W. 936. 231 Renihan v. Wright, 125 Ind. 536, 25 N. E. 822. 23 2 Hale V. Bonner, 82 Tex. 33, 17 S. W. 605. 23 3 55 Tex. 308. 234 Laper v. Telegraph Co., 70 Tex. 689, 8 S. W. 600; W. U. Tel. Co. v. Broesche, 72 Tex. 654, 10 S. W. 734; Same v. Rosentreter, 80 Tex. 406, 16 S. W. 25; Stuart v. Telegraph Co., 66 Tex. 580, IS S. W. 351; W. U. Tel. Co. v. Nations, 82 Tex. 539, 18 S. W. 709; Same v. Beringer, 84 Tex. 38, 19 S. W. 336; Same v. Erwin (Tex. Sup.) 19 S. W. 1002; Same v. Evans, 1 Tex. Civ. App. 297, 21 S. W. 266; Same v. Johnson (Tex. Civ. App.) 28 S. W. 124; Same v. May (Tex. Civ. App.) 27 S. W. 760; Same v. De .Tarles, Id. 792. Compensa- tion for mental suffering may be recovered for breach of a contract to transmit money by telegraph where defendant had notice of the importance of prompt Iiorformance. W. U. Tel. Co. v. Simpson, 73 Tex. 422, 11 S. W. 3S.". As to what is sufficient to charge the company with notice that mental sufferiuu will result from failure to promptly deliver the message, see W. U. Tel. Co. V. Brown, 71 Tex. 723, 10 S. W. 323. overruled in Same v. Carter, 85 Tex. 580. 22 S. W. 961; Same v. Moore, 76 Tex. 66, 12 S. W. 949; Same v. Adams. 75 Tox. 5.31. 12 S. W. S.57: Same v. Feegles, 75 Tex. 537. 12 S. W. 860; Same v. Kirkpatrick, 76 Tex. 27, 13 S. W. 70; Potts v. Tel('grai)h Co., 82 Tex. 545. IS S. W. 604; AV. U. Tel. Co. v. Ward (Tex. .\pp.) 19 S. W. 898; Same v. CarltM-, 2 Tex. Civ. App. 624. 21 S. W. f.ss: Id., S.-> Te.\. 580, 22 S. W. OCl : Ki>ese v. Telegraph Co., 123 Ind. 291, 24 N. K. 1(J3, 10^ COMPEiNSATOKY DAMAGES. C^^'ll. o adopted and followed in other states; among thorn, Alabama, Ken- tucky, Indiana, Iowa, North Carolina, and Tennessee.-^^ But many states, on the other hand, have repudiated it;-''® and the federal courts have refused to follow it.^^^ When it is once conceded that an allowance for mental sulfering is proper in any case, it is dif- ficult to see what there is in the nature of a contract to prevent an allowance for such sufferings, where they are a proximate and contemplated consequence of a breach. Even a technical breach of contract, whether followed by damage or not, will support an action. The party is entitled to nominal damages, at least. This being so, it follows, as in cases of torts, that the entire damage, in- cluding compensation for mental suffering, may be recovered. If damages for mental suffering in cases of tort were confined to cases where mental suffering is an element or necessary consequence of physical pain, there would be some reason in denying such dam- ages in an action of contract. But, so long as mental suffering is considered a proper element of damage in actions for injuries to property or reputation, no sound reason can be given for denying a recovery of such damages in actions of contract.-^* 235 w. U. Tel. Co. V. Henderson, 89 Ala. 510, 7 South. 419; Same v. Cunning- ham, 99 Ala. 814, 14 South 579; Chapman v. Telegraph Co., 90 Ky. 265, 13 S. W. SSO; Keese v. Telegraph Co., 123 Ind. 294, 24 N. E. 163; W. U. Tel. Co. V. Newhouse. 6 Ind. App. 422, 33 X. E. SOO; Same v. Cliue, 8 Ind. App. 364, 3.^ N. E. 564; Mentzer v. Telegraph Co. (Iowa) 62 N. W. 1; Thompson v. Tele- graph Co., 107 N. C. 449. 12 S. E. 427; Wadsworth v. Telegraph Co., &> Tenn. 695, 8 S. W. 574. 236 w. U. Tel. Co. V. Rogers, 68 Miss. 748, 9 South. 823; Russell v. Telegraph Co., 3 Dak. 315, 19 N. W. 408; Council v. Telegraph Co.. 116 Mo. 34, 22 S. W. 345; Newman v. Telegraph Co., 54 Mo. App. 4;i4; Kester v. Telegraph Co., 8 Ohio Cir. Ct. R. 236; Summerfield v. Telegraph Co., 87 Wis. 1, 57 N. W. 973; West V. Telegraph Co., 39 Kan. 93, 17 Pac. 807; Chapman v. Telegraph Co., 88 Ga. 763. 15 S. E. 901; Francis v. Same, 58 Minn. 252, .59 N. W. 1078; Inter- national Ocean Tel. Co. v. Saunders, 32 Fla. 434, 14 South. 148. 237 Chase v. Telegraph Co., 44 Fed. 554; Crawson v. Telegraph Co., 47 Fed. .544; Tyler v. Telegraph Co., 54 Fed. 634; Kester v. Same, 55 Fed. 003; W. U. Tel. Co. V. Wood, 6 C. C. A. 432, 57 Fed. 471; Gahan v. Telegraph Co., 59 Fed. 433. But see Beasley v. Telegraph Co., 39 Fed. 181. 23 8 See note by Wm. L. Clark, Jr., in W. U. Tel. Co. v. Coggin, 15 C. C. A. 235: "Damages in Actions against Telegraph Companies." See, also. Lynch v. Knight, 9 II. L. Cas. 577, per Lord Wousleydale. §§ 39-40) ELEMENTS OF COMPENSATION MENTAL SUFFERING. 105 Kinds of Mental Injury Compensated. Mental suffering which is merely sentimental cannot be compen- sated. "For mere inconveniences, such as annoyance, loss of tem- per, or ves:ation, or for being disappointed in a particular thing which you have set your mind upon, without real physical incon- venience resulting, you cannot recover damages. That is purely sentimental."^^® Compensation may be recovered, in proper cases, for loss of mental capacity;^*" mental suffering, accompanying physical pain; -*^ mental anxiety and distress;^*- fright caused by apprehension of phj'sical harm;^*^ loss of peace of mind and hap- piness;^** sense of indignity, insult, mortification, or wounded pride; ^*^ sense of shame and humiliation; -*® or a blow to the affec- tions.-*^ 23 Hobbs V. Railway Co., L. R. 10 Q. B. 111. See, also, Walsh v. Railway €o., 42 Wis. 23; McAllen v. Telegrapb Co., 70 Tex. 243, 7 S. W. 715. "The plaintiff is entitled to recover whatever damages naturally result from the breach of contract, but not damages for the disappointment of mind occa- sioned by the breach." Hamlin v. Railway Co., 1 Hurl. & N. 408, 411. 240 Ballou v. Farnum, 11 Allen, 73; Wallace v. Railroad Co., 104 N. C. 442, 10 S. E. 552. 241 Boyle V. Case, 9 Sawy. 386, 389, 18 Fed. 880; Carpenter v. Railroad Co., 39 Fed. 315; South & N. A. R. Co. v. MeLendon, 03 Ala. 266; Fairchild v. Stage Co., 13 Cal. 599; Malone v. Hawley, 46 Cal. 409; Pierce v. Millay, 44 111. 189; Indianapolis & St. L. R. Co. v. Stables, 62 111. 313; Sorgenfrei v. Schroeder, 75 III. 397; Hannibal & St. J. R. Co. v. Martin, 111 111. 219; Village of Sheri- dan V. Hibbard, 119 111. 307, 9 N. E. 901; Muldowuey v. Railway Co., 36 Iowa, 462; McKinley v. Railroad Co., 44 Iowa, 314; Kendall v. City of Albia, 73 Iowa, 241, 34 N. AV. 833; Tyler v. Pomeroy, 8 Allen, 480; Smith v. Hol- C'omb, 99 Mass. 552; West v. Forrest, 22 Mo. 344; Matteson v. Railroad Co., 02 Barb. 364; Wallace v. Railroad Co., 104 N. C. 442, 10 S. E. 552; Pennsyl- vania & O. Canal Co. v. Graham, 63 Pa. St. 290; Scott Tp. v. Montgomery, 95 Pa. St. 444; Goodno v. City of Oshkosh, 28 Wis. 300: Stewart v. City of Ilipon, 38 Wis. 584. 24 2 See, generally, ca.ses cited in notes supra; also, Godeau v. Blood. 52 Vt. 251; W. U. Tel. Co. v. Cooper, 71 Tex. 507, 9 S. W. 598. 243 Louisville & N. R. Co. v. Whitman, 79 Ala. 328; Stutz v. Railway Co., 73 Wis. 147, 40 X. W. G53. See, also, Kendall v. City of Albia, 73 Iowa, 241, 34 N. W. 833. and oases cited in note 218, supra. 244 Cox V. Vandcrklcod, 21 Ind. KH. 240 See note 245 on following page. 240 See note 246 on following page. 247 See note 247 on following p:ige. 106 COMl'ENSATOKY DAMAGES. (^Ch. 3- Damages for Mental Suffering Compensatory, not Exemplary. Damages for mental suffering, when allowed at all, are purely compensatory, not exemplary, vindictive, or punitive. They are de- signed to indemnify plaintiff for an injury suffered, not to punish defendant for a wrong done. Consequently, the motives of defend- ant, and the presense or absence of fraud, malice, gross negligence, or oppression, are immaterial.-''^ Thus, it was held in an action for libel that plaintiff was entitled to damages for mental suffering, though the jury had acquitted defendants of malice.^*® Exemplary damages are given in some cases where mental suffering is not 2<5 Quiglej' V. Kaihoad Co., 5 Sawy. 107; Louisville & N. R. Co. v. Whitman, 79 Ala. 328; Chicago & A. K. Co. v. Flagg, 43 111. 3G4; Chicago & N. W. Ry. Co. V. Williams, 55 111. 1S5; Adams v. Smith, 418; Chicago & N, W. Ry. Co. v. Chisholm, 79 111. 584; Pennsylvania R. Co. v. Connell, 112 111. 295; Lake Erie & W. Ry. Co. v. Fix, 88 Ind. 381; Shepard v. Railway Co., 77 Iowa, 54,^ 41 X. W. 564; Smith v. Railway Co., 23 Ohio St. 10; Stutz v. Railway Co., 73 Wis. 147, 40 N. W. 653; Paine v. Railroad Co., 45 Iowa, 569; Fitzgerald v. Railroad Co., 50 Iowa, 79; Batterson v. Railway, 49 Mich, 184, 13 N. W. 508; Chicago &. A. R. Co. v. Flagg, 43 111. 364; Carsten v. Railroad Co., 44 Minn. 454, 47 N. W. 49; Parkhurst v. Masteller, 57 Iowa, 474, 10 N. W. 864; Ross v. Leggett, 61 Mich. 445, 28 N. W. 695; Morgan v. Curley. 142 Mass. 107, 7 N. B. 726; Hastings v. Stetson, ViO Mass. 76; Mahoney v. Belford, 132 Mass. 393; Chesley v. Tompson, 137 Mass. 136; Scripps v. Reilly, 38 Mich. 10; Newman v. Stein, 75 Mich. 402, 42 N. W. 956; Barnes v. Campbell, 60 N. H. 27. 248 As in action for seduction, see Barbour v. Stephenson, 32 Fed. 66; Hatch V. Fuller, 131 Mass. 574; Russell v. Chambers, 31 .Minn! .54, 16 N. W. 458; Lunt V. Philbrick, 59 N. H. 59; Riddle v. McGinnis, 22 W. Va. 253; Simons v. Busby, 119 Ind. 13, 21 N. E. 451; Breon v. Honkle, 14 Or. 494, 500, 13 Pac. 289; Giese v. Schultz, 53 Wis. 462, 10 N. W. 598; Id., 65 Wis. 487, 27 N. W. 353; or for indecent assault, see Campbell v. Car Co., 42 Fed. 484; Wolf v. Trinkle,. 103 Ind. 355, 3 N. E. 110; Fay v. Swan, 44 Mich. 544, 7 N. W. 215; Ford v. Jones, 62 Barb. 484; or for the wrongful execution of a search warrant, Melcher v. Scruggs, 72 Mo. 407. 24T As in actions for breach of promise of marriage, or for grief caused by the failure to deliver a telegi-am. 248 Smith v. Overby, 30 Ga. 241; W. U. Tel. Co. v. Berdine, 2 Tex. Civ. App. 517, 21 S. W. 982; Dirmeyer v. O'Hern. 39 La. Ann. 961, 3 South. 132; Amer- ican Water-Works Co. v. Dougherty, 37 Neb. 373, 55 N. W. 1051; Bixby v. Dunlap, 56 N. H. 456; Thomp. Electr. § 382. Though exemplary damages can- not be recovered against a principal for the act of his agent, damages for mental suffering may. Craker v. Railway Co., 36'Wis. 657. 249 Ferrand v. Aldrich, 85 Mich. 593, 48 N. W. 628. And see Detroit Daily §41) AGGRAVATION AND MITIGATION OF DAMAGES. 107 shown to have resulted from the act complained of; and often, after a full allowance has been made for mental suffering, the circum- stances of the case have been held to be such as to justify a further award by way of punishment or example. ^^"^ AGGRAVATION AND MITIGATION OF DAMAGES. 41. Where damages are not capable of exact pecuniary measurement, but must be left to the discretion of a jury, evidence of the circumstances of the -wrong addressed to the jury for the purpose of influencing its estimate is said to be in aggravation or mitiga- tion of damages. The terms "aggravation"' and "mitigation" of damages are prop- erly used only where the damages are incapable of exact pecuniary measurement. Indemnity is the aim of the law. Where the exact loss is definitely known, the damages cannot be mitigated to less than full and complete compensation; nor can they be aggravated to more than that amount, unless the circumstances justify the im- position of exemplary damages. In other words, evidence in ag- gravation or mitigation of damages is admissible only when the jury is called upon to assess exemplary damages, or to estimate damages for nonpecuniary injuries, such as phj^sical and mental suffering. For example, provocation is admissible, in an action for assault,-^^ to mitigate exemplary damages or damages for mental suffering. Ordinarily, evidence in aggravation or mitigation of damages is in- admissible in actions of contract. These terms are sometimes loose- ly used to mean evidence of anything that tends to increase or de- crease the damages, but the proper sense is that indicated above. Post Co. V, McArtlmr, 16 Mich. 447. Waruer v. Publishing Co., 132 N. Y.. 181, 30 N. E. 393. 250 See post. "Exemplary Damages." 281 Smith V. Holcomb, 99 Mass. 552. Sec, also, Cuirier v. Swan. G3 Me. 323. Provocation cannot mitigate actual damages for assault and battery. Gold- smith's Adm'r v. Joy, 01 Vt. 4S8, 17 Atl. 1010. It is proper to charge that the value and influence of an example set by awarding exemplary damages for assault and battery d«'p('nd upon the social standing of the parties, and that the jury may consider that circumstance in detcrniiuing the amount. Id. lOS COMPENSATORY DAMAGES. C^'h. 3 It is for the jury to say whether the matters given in evidence aggravate or mitigate the damages. It is not a question of law for the court. Therefore, the court should not charge that certain mat- ters must be taken in mitigation of damages, and certain other mat- ters in aggravation.* However, as there would ordinarily be no doubt as to the effect of the evidence, such an instruction would probably be harmless error. For example, in an action for slander it would not ordinarily be reversible error to charge that plaintiff's high character and social condition should be considered in aggra- vation of damages, for the injury to such a one would ordinarily be greater than the one who had no character to lose. Nevertheless, it has been said that, if plaintiff has a well-established character, there is less likelihood of slander hurting him, whereas, if he was a new man starting in the effort to build up a reputation, the same slander might cause more harm. In such a case, therefore, plain- tiff's established character may be considered by the jury in mitiga- tion of damages.^ '^ "The question, in short, is one as to the ad- missibility and effect of evidence, and not strictly one as to the legal measure of damages. Nevertheless, certain rules as to the effect of some common circumstances (such as provocation, good faith, the position of the parties, etc.) in aggravating or mitigating the dam- ages have been laid down, and are followed in ordinary cases, though, as has been said, they should not be regarded as conclusive. These rules are applied in actions of breach of promise of marriage and of tort for personal injury, and in all actions where exemplary damages are allowed."-'^^ *It is for the jury to say whether they will consider seduction as an aggra- vation of damages in actions for breach of promise of marriage, and it is er- ror to instruct them that they must consider it. Osmun v. Winters, 25 Or. ■260, 35 Pac. 250. 252 Broughton v. McGrew, 39 Fed. 672. 2 53 Sedg. Dam. § 52. See, generally, as to aggravation and mitigation of damages, Grable v. Margrave, 3 Scam. 372 (seduction, evidence of defendant's pecuniary ability); Storey v. Early, 86 111. 461 (libel, defendant's pecuniary ability); Sayre v. Sayre, 25 N. J. Law, 235 (slander, evidence of plaintiff's general bad character); Duval v. Davey. 32 Ohio St. 604 (slander for charging woman with unchastity, evidence of reputation for chastity); Mahoney v. Belford, 132 Mass. 393 (slander, evidence of reputation); Palmer v. Crook, 7 Gray, 418 (crim. con., previous state of wife's feeling towards husband). In § 41) AGGRAVATION AND MITIGATION OF DAMAGES. 109 Assault and Battery. The current language of the cases is that leave and license-'** and provocation ^^^ are in mitigation of damages. It would seem, however, more accurate to say that no facts and circumstances can be given in mitigation of actual damages, unless they furnish a legal justification, and are therefore a defense to the cause of action.-^' It is insisted that provocative words cannot be given in mitigation of actual or compensatory damages, but only upon the question of punitive damages.- ^^ False Imprisonment. One who has been wrongfully restrained of liberty of locomotion may recover not only compensatory damages, but wanton disregard of legal right will entitle him to punitive damages, as in an action by a young girl for humiliation, insult, and wounded sensibility consequent upon her arrest." ^^ While malice or want of proper an action by a wife for the alienation of ber busband's affections, the ranii and condition of defendant cannot be considered, in assessing damages. Bailey V. Bailey (Iowa) 6r3 N. W. 341. In an action by a husband for the loss of his wife's services and society through defendant's negligence, evidence of dis- turbed marital relations, when restricted to mitigation of damages, is not re- versible error. Sullivan v. Railway Co., 162 Mass. 530, 39 N. E. 1S5. 2 54 Fredericksen v. Manufacturing Co., 38 Minn. 35G, 37 N. W. 453. 255 Fraser v. Berkeley, 7 Car. & P. G21; Avery v. Ray, 1 Mass. 12; Kiflf v. Youmans, 86 N. Y. 324; Burke v. Melvin. 45 Conn. 243. But not after cool- ing time. Thrall v. Knapp, 17 Iowa, 468; Goldsmith's Adm'r v. Joy, 61 Vt. 488, 17 Atl. 1010; Boniuo v. Caledonio, 144 Mass. 299. 11 N. E. 98; Prindle V. Haight, 83 Wis. 50, 52 N. W. 1134. 256 Birchard v. Booth, 4 Wis. 67. 76. And see Corcoran v. Harrau, 55 A\'is. 120, 12 X. W. 468; Robison v. Rupert, 23 Pa. St. 523; Jacobs v. Hoover, 9 Minn. 204 (Gil. 189); Watson v. Christie, 2 Bos. & P. 224; Dresser v, Blair, 28 Mich. 501; Brown v. Swinoford. 44 Wis 282; Prentiss v. Shaw, 56 yie. 427; Voltz v. Blackmar, 64 N. Y. 440. 257 Goldsmith's Adm'r v. Joy, 61 Vt. 4S8. 17 Atl. 1010. And see Caspar v. Prosdame, 46 Jja. Ann. 36, 14 South. 317; Crosby v. Humphreys. 59 Miun. 92, 60 N. W. 843. 258 Ball V. Horrigan, 65 Hun, 621, 19 N. Y. Supp. 913; Ross v. Leggett, 61 Mich. 445, 28 N. W. 695; Pearce v. Needham, 37 111. App. 90; Taylor v. Coolidge, 64 Vt. 506, 24 Atl. 656; Hewlett v. George. 68 Miss. 703, 9 South. 885. A verdict for .$2,917 damnges has been set nside as excessive for three hours' detention in a lockup. Woodward v. Gliddcu .'^3 Minn. lOS, 22 N. W. IL'7. And a vi-rdict (>f 6 cents for dctciitioii long ciHiugh to walk iicross tlie 110 COMPENSATORY DAMAGES. (Ch. 3 cause is no i)art of the plaintiff's case in an action for false impris- onment, proof tli;ii the defendant believed himself to be legally right in making an improper arrest will mitigate exemplary damages, but will not diminish actual damages.-''" But compensatory damages are not necessarily limited to actual money losses. For an unlaw- ful incarceration in an insane asylum one may recover, not only money expended in procuring his release, but also for consequent humiliation, shame, disgrace, and injury to reputation.^^" Libel and Slander. On the same principle that whatever tends to prove malice in defamation aggravates the wrong, and entitles the plaintiff to exem- plary damages,^^^ whatever negatives malice operates to mitigate damages. The jury determines whether given matter is in mitiga- tion or aggravation of damages. Same — Provocation. Provocation may mitigate damages.^®^ The law makes allowance for acts committed in the heat of sudden passion by way of mitiga- tion of damages. But if there had been an opportunity for blood to cool, a mere provocation, connected with wrong complained of, cannot be shown,"^ The defense follows the analogy of provoca- street has been sustained as adequate. Henderson v. McReynolds, 60 Hun, o79, 14 N. Y. Supp. 351. And see Cabell v. Arnold (Tex. Civ. App.) 22 S. W. 62; Wiley v. Keokuk, 6 Kan. 94. 2B9 Holmes v. Blyler, 80 Iowa, 365, 45 N. W 756; Livingston v. Burroughs. 33 Mich. 511; Tenney v. Smith, 63 Vt. 520, 22 Atl. 659; Comer v. Knowles, 17 Kan. 436; Sleight v. Ogle, 4 E. D. Smith, 445; Miller v. Orice, 2 Rich. 27; McDaniel v. Needham, 61 Tex. 269; Rogers v. Wilson, Minor (Ala.) 407"; Hill V. Taylor, 50 Mich. 549, 15 N. W. 899; Roth v. Smith, 41 111. 314. Good faith as a justification. Aldrich v. Weeks, 62 Vt, 89, 19 Atl. 115. Provoca- tion no justification. Grace v. Dempsey, 75 Wis. 313, 43 N. W. 1127. Nor bad character of defendant. Hurlehy v. Martine, 56 Hun, 648, 10 N. Y. Supp. i)2. 2 80 Such damages, not being punitive, may be recovered after death of de- fendant. Hewlett v. George, 68 Miss. 703. 9 So ith. 885. 2G1 See post, 207. See, also, Hayes v. Todd, 34 Fla. 233, 15 South. 752; €ruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457; Grace v. McArthur, 76 Wis. 641, 45 N. W. 518; Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020. 262 Tarpley v. Blabey, 2 Bing. N. C. 437. 263 Quinby v. Tribune Co., 38 Minn. 528, 38 xN. W. 623, Stewart v. Tribune €o.. 41 Minn. 71, 42 N. W. 787. § 41) AGGRAVATION AND MITIGATION OF DAMAGES. Ill tion as mitigating damages in assault and battery, but tbere does not seem to be any doctrine akin to contributory negligence, whereby the wrong is barred if the person defamed in some manner induced the publication.-^* Same — Common-Law Retraction. A mere offer to retract cannot be shown in mitigation of damages, but a retraction published in good faith, even after commencement of an action for defamation, may, under some circumstances, be proved in mitigation of damages,- ^^ but in mitigation only,* because it negatives malice. ^"^ Conversely, evidence that the defamer, sub- sequent to the publication of the article sued on, has published another, containing a letter from the defamed requesting a retrac- tion, is admissible to show malice.^®^ Same — Honest Belief — Rwmoi's. The law recognizes that anything tending to show an honest be- lief in the substance of the publication when made is admissible for the purpose of disproving malice and mitigating damages, though it tends to prove the truth of the charge.^®^ Accordingly, in an action for slander, evidence that the slander was only a repetition of a current report of long standing, by which plaintiff's general reputation has become impaired, is admissible in mitigation of dam- ages.^®° And where the article contained several distinct libelous charges, a justification as to part of the charges, and not the whole, goes only in mitigation of damages, and does not warrant a verdict for the defendant.^^" Therefore, partial truth may mitigate dam- ages.-^^ But good faith and reasonable belief will not prevent re- 284 Vallery v. State, 42 Neb. 123, 60 N. W. Ml. 28BTurton v. Recorder Co., 144 N. Y. 144, 38 N. E. 1009; Davis v. Marx- bausen, 103 Mich. 315, 61 N. W. 504; Storey v. Wallace, m 111. 5i. * Davis V. Marxhausen, 103 Mich. 315. 61 N W. 504. 206 Allen V. Pioneer Press Co., 40 Miuu. 117, 4i N. W. 936; Park v. Deti'Oit Free-Press Co., 72 Mich. 500, 40 N. W. 731. 267 Thibault v. Sessions, 101 Mich. 279, 59 X. W. 624. 268Hiison V. Dale, 19 Mich. 17, 26. 289 XeLson v. Wallace, 48 Mo. App. 193. 27 Hay V. P.eid, 85 Mich. 296, 4S N. W. .507. *7i Sawyer v. Bennett (Sup.) 20 N. Y. Supp 45. 11^ COMPENSATOUY DAMAGES. (Cll. S oovery of substantial damages.-''^ Cases involving these general principles are constantly arising in connection with the defense urged by the defendant that his conduct was justified by rumors concerning the plaintiff. So far as it may affect the culpability of the defendant, as miti- gating damages, evidence that he knew, believed, and relied on-'^ general rumors to the effect of the defamatory matter would be en- tirely proper. Hence, such evidence is often held to be admissi- ble.^''* However, from the plaintiff's point of view, the extent of his suffering is not measured by defendant's moral shortcoming or personal righteousness. Hence, such evidence is perhaps as often disallowed.^ ^^ If, however, a defendant offers to prove such ru- mors, he cannot object to similar evidence in rebuttal. ^'^^ But pub- lishing defamatory matter as a rumor,^'' or giving a specific source as authority, is no longer ^^^ a defense ^'^ by way of justification, although it may operate to mitigate damages.^^" 272 Biu-t V. Newspaper Co., 154 Mass. 238. 28 N. E. 1; Blocker v. Schoff, 83 Iowa, 265, 48 N. W. 1079. 27 8 Larrabee v. Tribune Co., 36 Minn. 141, 30 N. W. 462; Lothrop v. Adams, 133 Mass. 471. Truth of the charge, though not pleaded, is admissible to disprove malice, and in mitigation of damages, if it was known at the time of publication, but not otherwise. Simons v. Burnham, 102 Mich. 189, 60 N. W. 476; Quinn v. Scott, 22 Minn. 456. 27 4 Van Derveer v. Sutphin, 5 Ohio St. 293; Republican Pub. Co. v. Mosman, 15 Colo. 399, 24 Pac. 1051; Hay v. Reid, So Mich. 296, 48 N. W. 507; Morrison V. Publishing Co. (Super. N. Y.) 14 N. Y. Supp. 131; Arnold v. Jewett, 125 Mo. 241, 28 S. AV. 614. 275 Scott v. Sampson, 8 Q. B. Div. 491; Edwards v. Soctety, 99 Cal. 431, 34 Pac. 128; Gray v. Elzroth, 10 Ind. App. 587, 37 N. E. 551; Blackwell v. Landroth. 90 Va. 748, 19 S. E. 791. 27 8 Bogk V. Gassert, 149 U. S. 17, 13 Sup. Ct. 738; Ward v. Manufacturing Co., 5 C. C. A. 538, 56 Fed. 437. 277Haskins v. Lumsden, 10 Wis. 359; Republican Pub. Co. v. Miner, 3 Colo. App. 568, 34 Pac. 485. 278Maitland v. Goldnoy, 2 East, 426; Northampton's Case, 12 Coke, 384. 279 Lewis v. Walter, 4 Barn. & Aid. 605; Tidman v. Ainslie, 10 Exch. 63; Watkin v. Hall, L. R. 3 Q. B. 396. 2 80 Dole V. Lyon, 10 Johns. 447. § 41) AGGRAVATION AND MITIGATION OF DAMAGES. 113 Same — Plaintiff ^s Character and Position. When one claims damages on the ground of the di^.paraj;i'iii('ut of his character, evidence in mitigation of damages may be given, under proper allegation,-^ ^ that his character was blemished before the publication of the libel or slander.-^- Thus, in an action for libel, the defendant ma.j prove, in mitigation of damages, that, be- fore and at the time of the publication of the libel, the plaintiff was generally suspected to be guilty of the crime thereby imputed to him, and that, on account of this suspicion, his relatives and friends had ceased to associate with him.-^^ Evidence of general bad repu- tation is admissible, in mitigation of damages; and evidence of bad reputation as to that phase of character involved in a case is com- petent, not to establish an}- facts in issue, but to explain conduct, and to enable the jury better to weigh the evidence upon doubtful questions of fact bearing on the character of defendant.^®* There- fore, bad reputation for integrity is admissible in charges of political dishonesty. "We should be loth to differentiate a want of integrity in political matters from the same failing in business or society." ^^' The plaintiff's general social and personal standing may be shown in evidence as bearing on the question of damages.- ^"^ And if plain- tiff alleges her good character and repute, and this is denied by the defendant, the plaintiff is not required to rest upon the legal pre- sumption as to chastity and virtue,-^' but she can properly offer proof under such allegation as part of her case.^^® 281 Halley v. Gregg, 82 Iowa, (JL'2, 48 N. W. 974; ^Yard v. Dean, 57 Hun, 585, 10 N. Y. Supp. 421. 2 82 Ball, Cas. Torts, p. 122. 283 Earl of Leicester v. Walter, 2 Camp. 251. Ct Sanford v. Rowley. 93 Mich. 119. 52 N. W. 1119. 2 84 Hallam v. Post Pub. Co., 55 Fed. 45G See Tbibault v. Sessions, 101 Mich. 279. 59 N. W. G24. 285 Post Pub. Co. V. Hallam. 8 C. C. A. 201. 59 Fed. 530. 2 86 Larned v. Buffintou, 3 .Mass. .540; Klumpli v. Dimn, GG Pa. St. 141; Press Pub. Co. v. McDonald. 11 C. C. A. 15.5, G3 Fed. 238; Morey v. Associa- tion, 123 N. Y. 207. 25 N. E. 1(!1; Farrand v. Aldrieh, 85 Midi. 593. 48 N. W. C28; Hintz v. Graupner, 1.38 111. 158, 27 N. E. !t:;5. 28T Conroy v. Pittsburgh Times, 139 Pa. St. 3.'{4. 21 Atl. 154. 288 Stafford v. Morninj: .Tourual Ass'n, 142 N. Y. 598, 37 N. F. (;25; Vuuiit:. V. Johnson, 123 .\. Y. L'L'C, 25 .N. F. 3(.J3. LAW U.\.M. — b 114 COMPENSATORY DAMAGES. (Ch. 3 REDUCTION OF LOSS. 42. An injured party cannot be compelled to accept spe- cific reparation in lieu of damages; but, if he does so voluntfarily, it "will operate as a reduction of damages. The right to recover damages is a species of property which vests absolutely in the injured party on the happening of the wrong.-^® It is a right to recover a money judgment, and nothing but the in- jured party's own act can release it.^°° He cannot be compelled to accept specific reparation in lieu of damages, for he has an absolute right to a money judgment.-^^ Hence an offer by defendant to re- 289 See aute, p. 2*. Where plaintiff cured certain fruit for defendants, wlio disposed of It at values usually obtained for good fruit, that fact will uot affect plaintifC's liability to defendants for damages to the fruit in defectively curing it. E. E. Thomas Fruit Co. v. Start, 107 Cal. 206, 40 Pac. 33G. 290 Ordinarily the fact that defendant applied th , proceeds of his wrong to plaintiff's benefit will uot reduce the damages, as plaintiff may refuse to accept such application. Torry v. Blacli, 58 N. Y. 185. The fact that defendant paid a note of plaintiff's Avith the proceeds of converted property will not reduce the damages. Northrup v. McGill, 27 Mich. 234. A sheriff who has wrong- fully sold goods belonging to plaintiff cannot reduce the damages by showing that he paid a debt of the plaintiff out of the proceeds. Parham v. McMur- ray, 32 Ark. 261; Dallam v. Filler, 6 Watts & S. 323; McMichael v. Mason, 13 Pa. St. 214. Where the injured party consents to the applicatiou, it will re- duce the damages. Torry v. Black, supra. An unaccepted offer to return the goods cannot be shown, to mitigate the damage.*; for conversion. Carpenter v. Dresser, 72 Me. 377. Where the application is authorized by law, the injured party cannot object, and damages will be reduced. Kaley v. Shed, 10 Mete. (Mass.) 317; Empire Mill Co. v. Lovell, 77 Iowa, 100, 41 N. W. 5S3; Ward v. Benson, 31 How. Prac. 411. In an action for conversion, defendant may show that the goods were seized and sold under an execution against plaintiff. Perkins v. Freeman, 26 111. 477; Bates v. Courtwright, 36 111. 51S; Ball v. Liney, 48 N. Y. 6; Wehle v. Spelman, 25 Hun, 99; Lazarus v. Ely, 45 Conn. 504; Howard v. Manderfleld, 31 Minn. 337, 17 N. W. 946; Beyersdorf v. Sump, 39 Minn. 495. 41 N. W. 101. Compare Lazarus v. Ely, 45 Conn. 504; Hopple v. Higbee, 23 N. J. Law, 342; Mayer v. Duke, 72 Tex. 445, 10 S. W. 565— with Edmondson v. Nuttall, 34 Law J. C. P. 102. 104, 17 C. B. (N. S.) 280; Stickney V. Allen, 10 Gray, 352; Beyersdorf v. Sump, 39 Minn. 495, 41 N. W. 101; Ball v. Liney, 48 N. Y. 6; Wehle v. Butler, 61 N. Y. 245. 291 In Fisher v. Prince, 3 Burrows, 1363, Lord Mansheld said: "Where trover § 42) REDUCTION OF LOSS. 115 turn converted property will not reduce the damages if not accepted by the plaintiff. -''- The rule of avoidable consequences does not re- quire the injured party to receive back converted property, nor to buy it back, though offered at less than the market price.^®^ The rule has no application to losses already completely suffered. As to such losses, the right to pecuniary compensation is absolute. But if the reparation oft'ered would prevent further loss, not at that time actually suffered, the rule applies, and the reparation must be accepted, as compensation for subsequent losses will be denied. Reparation Precenting Actual Loss. Where the reparation by defendant has actually prevented the happening of any damage in the first instance, from the injury, it may be shown, whether accepted by the plaintiff or not, as it goes to show the actual amount of damage, and plaintiff never had a right to recover anything more.^®** Thus, in an action for breach of a is brought for a specific chattel, of an ascertained quantity and quality, and unattended by any circumstances that can enhance the damages above the real value, but that its real and ascertained value must be the sole measure of the damages, there the specific thing demanded may be brought into court. Where there is an uncertainty either as to the quantity or quality of the thing demanded, or that there is any tort accompanying it that may enliance the damages above the real value of the thing, and there is no rule whereby to estimate the additional value, then it shall not be brought in." See, also. Whitten v. Fuller, 2 W. Bl. 902; Earle v. Holderness, 4 Bing. 4G2; Tucker v. Wright, 3 Bing. GOl; Gibson v. Humphrey, 1 Cromp. & M. 544. The practice of staying proceedings upon bringing property into court ha«! never generally prevailed in this country, but it seems to be the practice in Vermont. Rut- land & W. R. Co. V. Bank of Mlddlebury, 32 Vt. 639; Bucklin v. Beals, 3S Vt. ■0.j3. And see Stevens v. Low, 2 Hill, 132; Shotwell v. Weudover, 1 Johns. G5. 292 Norman v. Rogers, 29 Ark. 3G5; Carpenter v. Oresser, 72 Me. 377; Stick- ney v. Allen, 10 Gray, 332; Bringard v. Stellwagen, 41 Mich. r>4, 1 N. W. 909; Livermore v. Northrup, 44 N. Y. 107; Carpenter v. Insurance Co., 22 Ilun, 47; •Green v. Sperry, IG Vt. 390; Morgan v. Kidder, 5o Vt. 3G7. 293 Weld V. Reilly, 48 N. Y. Super. Ct. 531; Muason v. Munson, 24 Conn. 11."); Woods V. McCall, G7 Ga. 50G. 204 Dow V. Humbert, 91 U. S. 294; Stollenworck v. Thadier, 115 Mas.s. 224. In estimating the damages caused by the diversion of a stream, the fact that a part of the water diverted was returned to the stream above plaintiff's land must be considered. Maimvillo Co. v. City of Worcester, 138 Mass. 89. Where a wrongful act results In both a benolit and an injury, an allowance must be made for the bendit. Miiyo v. City of H|)ringliL'ld, 13S Mass. 70, wa.s IIG COMI'ENSAT'JllY DAMAGLS. (Ch. 5 covenant against incumbrances, where the covenantor bought in the outstanding incumbrance, and the plaintiff was not actually in- jured by it, it was held that only nominal damages could be re- covered.-"^ Reparation Accepted. Where the reparation offered is voluntarily accepted, the dam- ages recoverable are the difference between the original loss aud the value of the thing returned at the time of acceptance, for that represents the actual loss. One cannot have both the thing itself and damages for its loss. This has been held in actions of tro- ver,-"" trespass,^"^ and replevin,-"^ where the property wrongfully au action for placing earth on another's laud. The court said: "In determining the extent of the injury to plaintiff's laud, the court had a right to consider the benefits, if any. arising from placing the earth upon the land. An allow- ance for such benefits is not in the nature of recoupment or set-off, but a method of determining the actual damages sustained." See, also, Schroeder v. De Graff, 28 Minn. 299, 9 N. W. 8-57; Murphy v. City of Fond du Lac, 23 Wis. 365; Jeffersonville, M. & 1. R Co. v. Esterle, 13 Bush, GGT; Forsyth v. Wells, 41 Pa. St. 291; McLean County Coal Co. v. Long, 81 111. 359; Single V. Schneider, 24 Wis. 299; Winchester v. Craig, 33 Mich. 205; Moody v. Whit- ney, 38 Me. 174. In an action for flooding lands, an allowance for benefits caused thereby was denied in Gerrish v. Manufacturing Co., 30 N. H. 478, aud Tillotson V. Smith, 32 N. H. 90; and granted in Luther v. AVinnisimmet Co.. 9 Cush. 171; Imboden v. Mining Co., 70 Ga. 8G, 116; Brower v. Merrill. 3 Chand. (Wis.) 40; Howe v. Ray, 113 Mass. 88. The allowance is confined to benefits resulting from the overflow, and does not include benefits arising from defendant's collateral operation. Gile v. Stevens, 13 Gray, 146; Talbot v. Whipple, 7 Gray, 122; Marcy v. Fries, 18 Kan. 353. It has been held that no allowance can be made for a benefit. Gerrish v. Manufacturing Co., 30 N. H, 478; Tillotson v. Smith, 32 N. H. 90. In au action for rents and profits, an allowance must be made for improvements, and the expenses necessarily in- curred to make the land profitable, provided the improvements and expenses were made in good faith. Hylton v. Brown, 2 Wash. C. 0. 1G5, Fed. Cas, No. 6,983; Hodgkins v. Price, 141 Mass. 162. 5 N. E. 502. 295 McMuis V. Lyman, 62 Wis. 191, 22 N. W. 405; Hartford & S. Ore Co. v. Miller, 41 Conn. 112. 296Barrelett v. Bellgard, 71 111. 280; Bowman v. Teall, 23 Wend. 306; Mc- Cormick v. Railroad Co., 80 N. Y. 353; Dailey v. Crowley, 5 Lans. 301; Lucas 297 Hanmer v. Wilsey, 17 Wend. 91; Vosburgb v. Welch, 11 Johns. 175 ^ Gibbs V. Chaise. 10 Mass. 125. See Mayo v. City of Springfield, 138 Mass. 70. 298 De Witt V. -Morris, 13 Wend. 490; Conroy v. Flint, 5 Cal. 327. ■§ 42) REDUCTION OF hOSS. Il7 taken was returned to and accepted by the plaintiff. But even in such cases nominal damages may be recovered. -^^ So, also, where property taken has been recovered by the owner, by repurchase or otherwise, the damages for the taking w411 be reduced by the value of the property recovered; but compensation will be given for the expenses incurred in recovering the property.^ °° Jiepnration by Third Party. Reparation made by a third party, if accepted as such, or if of a nature to prevent further loss, will reduce the damages recoverable ; but if a benefit received from a third person be a pure gratuity, and not intended to be in lieu of damages, or if it be paid, not by pro- ;{. 802 Ohio & M. R. N. Co. v. Dickerson, 59 lud. 317. See, also, Elmer v. Fes- senden, 154 Mass. 427, 28 N. E. 299. Contra. Driukwater v. Dinsiiiore, 8U N. Y. 390. 802 Pennsylvania Co. v. Marion. 104 Ind. 2.39, 3 N. E. 874. See, also, Norris- towu V. Moyer, 67 Pa. St. 3.55. But see Peppercorn v. City of Bhick River Falls. S9 Wis. 38, 61 N. W. 79. • 04 Kingsbury v. Westfall, 61 N. Y. 356; Altliorf v. Wolfe, 22 N. Y. :{55; 118 COMPENSATORY DAMAGES. (Ch. 3 INJURIES TO LIMITED INTERESTS. 43. The measure of damages for injuries to limited inter- ests in property -will be considered under the fol- lowing heads: (a) Interests in real property in possession and in ex- pectancy (p. 118). (b) Special property and ultimate o-wnership in personal property (p. 119). (c) Interest of mortgagors and mortgagees (p. 120). (d) Joint interests (p. 120). Interests in Real Property in Possession and in ExpecUincy. One having the right to the possession of real property for a limited time can recover for any interference with his possession or injury to the property only the damages to his own interest, and not for the whole injury. This rule applies to life tenants,^*^^ lessees,^"^ and to mere occupants.^"^ But a lessee may recover compensation for the whole injury when he is liable over to his landlord.^"^ The owners of expectant interests in land, lessors, reversioners, and remainder-men can recover for injuries to the prop- erty only the damages to their own interests.^ °° Briggs V. Railroad Co., 72 N. Y. 26; Carpenter v. Eastern Transp. Co., 71 N. Y, 574; Pittsburg, C. & St. L. Ry. Co. v. Thompson, 56 111. 138; Dillon v. Hunt, 105 Mo. 154, 16 S. W. 516; Hammond v. Scliiff, 100 N. C. 101, 6 S. E. 753^ Hay ward v. Cain, 105 Mass. 213; Weber v. Morris & E. R. Co., 36 N. J. Law, 213; Harding v. Townshend, 43 Vt. 536; Perrott v. Shearer, 17 Mich. 48; Texas & P. R. Co. v. Levi, 59 Tex. 674; The Monticello v. Mollison, 17 How. 153; Yates v. Whyte, 4 Bing. N. C. 272. See, also, Congdon v. Scale Co., 66 Vt. 255, 29 Atl. 253; Eureka Fertilizer Co. v. Baltimore Copper, Smelting & Rolling Co., 78 Md. 179, 27 Atl. 1035; Lake Erie & W. R. Co. v. Gritfin. S Ind. App. 47, 35 N. E. 396. 305 Greer v. Mayor, etc., 1 Abb. Prac. (N. S.) 206. 306 Holmes v. Davis, 19 N. Y. 488; Cf. Terry v. Mayor, etc., 8 Bosw. (X. Y.> 504; Illinois & St. L. Railroad & Coal Co. v. Cobb. 94 111. 55. 307 Brown v. Bowen, 30 N. Y. 519. 30 8 Walter v. Post, 4 Abb. Prac. 382. 309 Cooper V. Randall, 59 111. 317; Schnable v. Koehler, 28 Pa. St. 181; Seely V. Alden, 61 Pa. St. 302; Dorsey v. Moore, 100 N. C. 41, 6 S. E. 270; Dutro v. Wilson, 4 Ohio St. 101. § 43) INJURIES TO LIMITED INTERESTS. 119 Special Property and Ultimate Ownership in Personal Property. One having a special property in personal property, such as a Iessee,^^° pledgee,^^^ factor,^^^ or bailee,^^^ is treated as the owner in actions against third persons for the loss or injury of the prop- erty, and recovers the damages to his own interest and that of the ultimate owner. The same rule obtains in a suit on a replevin bond in nearly all the states,^^* though there are a few decisions con- tra."" If the owner, for any reason, could not recover against the wrongdoer, then the one in possession under a special property can recover only for the injury to his special property.^^" The measure of damages is the same in an action against the owner for conver- sion or injury to the property.^^'^ For conversion or injury to prop- erty, the owner can recover of one in possession the value of the property, less the defendant's interest therein. ^^* Against a third 310 Caswell v. Howard, IG Pick. 562: St. Louis, I. M. & S. Ry. Co. v. Bigs, 50 Ark. 1G9, G S. W. 724. 311 United States Exp, Co. v. Meints, 72 111. 293; Mechanics' & Traders' Bank of Buffalo V, Farmers' & Mechanics' Nat. Bank of Buffalo, GO N. Y. 40; Adams V. O'Connor, 100 Mass. 515; Pomeroy v. Smith, 17 Pick. 85; Lyle v. Barker, 5 Bin. (Pa.) 457. A depositary may maintain any proper action to protect himself and the depositor. Knight v. Carriage Co., IS C. C. A, 2S7, 71 Fed. GG:^. 312 Groover v. Warfield, 50 Ga. G44. 313 Brewster v. Warner, 13G Mass. 57; Finn v. Railroad Corp., 112 Mass. 524; Garretson v. Brown, 26 N. J. Law, 425; Rooth v. Wilson, 1 Barn. ^Vc Aid. .">9; Armory v. Delamirie, 1 Strange, 505. But see Claridge v. Tramway Co. [1S92] 1 Q. B. 422. 314 Adkins v. Moore, 82 111. 240; Broadwell v. Paradice, 81 111. 474; Buck v. Remsen, 34 N, Y. 383; Burt v. Burt, 41 Mich. 82, 1 X. W. 936; Frei v. Vogel, 40 Mo. 149; Frey v. Drphos, 7 Neb. 194. 816 Hayden v, Anderson, 17 Iowa, 158; Jennings v. Johnson, 17 Ohio, 154; Latimer v. Mottcr, 26 (Jhio St. 480; Cumberland Coal & Iron Co. v. Tilgluiian, 13 Md. 74. 816 Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527; Lowell v, Parker, 10 Mete. (Mass.) 309; Mears v. Cornwall, 73 Mich. 78, 40 N. W. 931; Sheldon v. Express Co.. 48 Ga. 625. 817 Davidson v. Gunsolly, 1 Mich, 388; Fitzhugh v. Wiman. 9 N. Y. .5,59; Baldwin v. Bradley. 69 111. 32. 818 Fisher v. Brown, 104 Mass. 2.59; Fowler v. Gilmau, 13 Mete. (Mass.) 267; Craig V. McHenry, 35 Pa. St. 120; Wheeler v. Peieles, 43 Wis. 332; Johnson y. Stear, 15 C. B. (N. S.) 330. 120 COMPENSATORY DAMAGES. (Ch. 3 person the owner recovers the full value of the piopeity, or com- pensation for the injury to it.^^* Interest of Mortgagors and Mortgagees. A mortgagee of real property can recover for any injury to the mortgaged property, either by the mortgagor or by a third person, the amount in which his security is impaired.^-" A mortgagee of personal property can recover against a stranger full compensation for any injury to the property.^^^ But, against the mortgagor, he can recover only the amount due on the mortgage debt, provided this does not exceed the value of the property.^ ^^ A mortgagor of personal property, in an action against the mortgagee, can recover the value of the property less the amount due the mortgagee.*^' Against a stranger, he recovers the value of the property.^^* Joint Interest. A joint owner can recover against a co-owner, for injuries to the joint property, or for excluding him from its possession, only a com- pensation proportioned to his interest.^ ^* Against third persons, 319 Greeu v. Clark, 12 N. Y. 343. 320 Van Pelt v. McGraw, 4 N. Y. 110; Gardner v. Heartt, 3 Denio. 232; At- kinson V. Hewott, 03 Wis. 390, 23 iS. W. 8S9; State v. Weston, 17 Wis. 107; Schalk V. Kingsley, 42 N. J. Law, 32. For a modification of this rule in Massa- chusetts, see Gooding v. Shea, 103 Mass. 300; Byrom v. Chapin, 113 Mass. 308. As to recovery by a junior mortgagee, see Jackson v. Turrell, 39 N. J. Law, 329. 821 Lowe v. Wing, 56 WMs. 31, 13 N. W. 892; Allen v. Butman, 138 Mass. 586; Densmore v. Mathews, 58 Mich. 616, 26 N. W. 146; Adamson v. Petersen, 35 Minn. 529, 29 N. W. 321; White v. Webb, 15 Conn. 302. 322 Smith V. Phillips, 47 Wis. 202, 2 N, W. 285; Parish v. Wheeler, 22 N, Y. 494; McFadden v. Hopkins, 81 Ind. 459. But the recovery cannot exceed the value of the property. Ganong v. Green, 71 Mich. 1. 38 N. W. 661. 3 23 Dahill v. Booker, 140 Mass. 308. 5 N, E. 496; Russell v. Butterfield. 21 Wend. 300; Bearss v. Preston. 66 Mich. 11, 32 N. W. 912; Torp v. Gulseth, 37 Minn. 135, 33 N. W. 550; Deal v. D. M. Osborne & Co., 42 Minn. 102, 43 N. W. 835. 8 24 Cram v. Bailey, 10 Gray, 87; Gallatin & N. Turnpike Co. v. Fry, 88 Tenn. 296, 12 S. W. 720; Brown v. Carroll, 16 R. I. 604, 18 Atl. 283. 325 Green v. Edick, 66 Barb. 564; Cutter v. Waddiugham, 33 Mo. 209; Cf. Daniels v. Brown, 34 N. H. 454. § 43) INJURIES TO LIMITED INTERESTS. 121 a joint owner can recover only his share. The rule is the same for both real ^^® and personal property.^ ^'' 326 Putney v. Lapham, 10 Gush. 232; Clark v. Huber, 20 Gal. 196; Holdfast V. Shepard. 9 Ired. 222; McGrew v. Harmon. 164 Pa. St. 115, 30 Atl. 265, 268. 827 Zabriskie t. Smith, 13 N. Y. 322; Bartlett v. Kidder, 14 Gray, 449; Thomp- son V. Hoskins, 11 Mass. 419; Hillhouse v. Mix, 1 Root (Conn.) 246. 122 BONDS LltiUIDATED DAMAGES ALTERNATIVE CONTKACTS. (Ch. 4 CHAPTER IV. BONDS, LIQUIDATED DAMAGES, AND ALTERNATIVE CONTRACTS, 44. Penal Bonds. 45-47. Liquidated Damages and Penalties. 48-57. Rules of Construction. 58. Alternative Contracts. PENAL BONDS. 44. In an action on a penal bond the measure of damages is compensation for the actual loss, not exceeding the penalty named. Questions involving a consideration of liquidated damages and penalties formerly arose chiefly in connection with that peculiar form of obligation known as a "common-law bond." By a common- law bond the obligor bound himself to pay a certain sum of money, and at a certain time, to the obligee, upon condition, however, that the obligation should be void on the payment of some lesser sum, or the performance of some particular act. There was, however, no agreement to pay the lesser sum, or perform the designated act. Upon breach of condition, therefore, the sum named in the bond, became the debt, and could be recovered in an action of debt on the bond. This sum is called a "penalty"; and the bond, a "penal bond.'^ Blackstone says:^ "The penalty named in the bond was originally inserted for the purpose of evading the absurdity of those monkish constitutions which prohibited the taking of interest for money, and was therefor pardonably considered the real debt, in the courts of law, when the debtor neglected to perform his agreement for the re- turn of the loan with interest; for the judges could not, as the law then stood, give judgment that the interest should be specifically paid." The rule continued to be enforced however, by courts of law, even after the recovery of interest was allowed by statute. Chancery early assumed jurisdiction to relieve against the penalty 1 3 Bl. Comm. 434. §§ 45-47) LIQUIDATED DAMAGES AND PENALTIES. 125 when the obligor was prevented by accident from fulfilling his ob- ligation on the da}- fixed. This it did by enjoining the execution of the judgment for the penalty, on condition that the obligor would do equity by paying the real debt, with interest for its detention, and costs. Subsequently equity extended its jurisdiction, and re- lieved against the penalty in all cases of default, from whatever cause, on the payment of just compensation. This was on the broad principle that compensation, not forfeiture, is equity. This prac- tice was ultimately followed by courts of law, and was finally sanc- tioned by statute. Such statutes are in force generally in the Unit- ed States. But it would seem that courts of law have power to grant such relief on general principles, without reference to statutes. - Although the damages in an action on a penal bond may be less than the penalty named, as just explained, they can never be great- er. This was because such bond contained no agreement to pay the smaller sum or perform the stipulated act. The only promise or undertaking was to pay the penal sum in default of performance of the condition. Hence at common law no action could be maintained except for the penal sum, and of course the damages could never ex- ceed that sum. LIQUIDATED DAMAGES AND PENALTIES. 45. Liquidated damages are damages agreed upon by the parties as and for compensa.tion for, and in lieu of, the actual damages arising from a breach of con- tract.^ 46. A penalty is a sum agreed to be paid or forfeited ab- solutely upon nonperformance of the contract, re- gardless of the actual damages suffered, and intended rather to secure performance, than as compensa- tion for a breach. 47. Where the parties to a contract agree upon liquidated damages, the sum fixed is the measure of damages 2 Betts V. Burch, 4 Hurl. &. X. 'Mi. See 2 White & T. Lead. Cas. lOq. (-itb En«. Ed.) lOOS. 8 Dwinel v. Biuuu, 54 Mo. 4US, 471, per AjiplLloii, (J. J., (lissciitin^'. 124 BONDS LIQUIDATED DAMAGES ALTERNATIVE CONTKACTS. (Ch 4 for a breach, -whether it exceeds or falls short of the actual damages; but, -where the sum fixed is a penalty, the actual damages suffered, -whether m.ore or less, may be recovered. Intent of the Parties. In making contracts, the parties are at perfect liberty to stipulate for liquidated damages to be paid b^' one party to the other as com- pensation for a breach. On the happening of a breach, the stip- ulated sum is the precise sum to be recovered, be the actual dam- ages more or less. Equity will not relieve against it* To have this elYect, it is, of course, primarily essential that the parties so intended. If they clearly did not intend to liquidate the damages, no question arises in this connection, and the actual damages will be assessed on ordinary principles. But, where the contract ex- presses an intention that a certain sum shall be payable absolutely upon a breach, there is great difficulty, and the courts have fallen into much confusion, in determining whether the sum fixed is liqui- dated damages, to be enforced, or a penalty, to be relieved against. It is frequently said to be solely a matter of intention. A court of law possesses no dispensing power; it cannot inquire whether the parties have acted wisely or rashly in respect to any stipulation they may have thought proper to introduce into their agreements. If they are competent to contract, within the prudential rules the law has fixed as to parties, and there has been no fraud, circum- vention, or illegality in the case, the court is bound to enforce the agreement* "The law relative to liquidated damages has always been in a state of great uncertainty. This has been occasioned by judges endeavoring to make better contracts for parties than they have made for themselves. I think that the parties to contracts, from knowing exactly their own situations and objects, can better appreciate the consequences of their failing to obtain those objects than either judges or juries. Whether the contract be under seal or not, if it clearly states what shall be paid by the party who breaks * In an action to recover a sum stipulated in a contract as liquidated dam- ages, no proof of actual damages is required. Sanford v. First Nat. Bank of Belle Plaine (Iowa) 63 N. W. 459. * Kemp V. Knickerbocker Ice Co.. 69 N. Y. 45. §§ 45-47) LIQUIDATED DAMAGES AND PENALTIES. 125 it, to the party to whose prejudice it is broken, the verdict in the action for the breach of it should be for the stipulated sum. A court of justice has no more authority to put a different construc- tion on the part of the instrument ascertaining the amount of dam- ages than it has to decide contrary to any other of its clauses." ' But the weight of authority will not support this language, in the broad sense in which it is used. Where the contract has expressly designated the amount named as liquidated damages, the courts have held often that it was a penalty, and relieved against it; and conversely, where the contract has called it a penalty, it has been held to be liquidated damages; and, even where the parties have manifestly supposed and intended that an exorbitant and uncon- scionable amount should be forfeited, the courts have carried out the intent only so far as was right and reasonable.^ Contracts in terms providing for "liquidated damages," and expressly exclud- ing all idea of a penalty, have nevertheless been construed to pro- vide for a penalty.'^ This has been said to be on the ground that the parties had given a wrong name to the stipulated sum, and that it was, in substance and in fact, a penalty, and not liquidated dam- ages.' In another case it was said that where the parties declare, in distinct and unequivocal terms, that they have settled and as- certained the damages to be a certain fixed sum to be paid by the party failing to perform, it seems absurd for the court to tell them that it has looked into the contract, and reached the conclusion that no such thing was intended, but that the intention was to name a sum as a penalty to cover any damages that might be proved to have been sustained by a breach of the agreement.® The cases are in e Crisdee v. Bolton, 3 Car. & P. 240, per Best, C. J. See, also, Dwinel v. Brown, 54 Me. 4GS; Brewster v. Edgerly, 13 N. H. 275; Clement v. Cash, 21 N. Y. 253; Yetter v. Hudson, 57 Tex. U04. 6 Davis V. U. S., 17 Ct. CI. 201, 215. " In Kerable v. Farren, 6 Bing. 141, the contract provided for the pa.vuiont of a iixed sum as "liquidated and ascertained damages, and not a penal sum. or in the nature thereof"; but it was held that the sum named was a pen- altj'. See, also, Monnioutli P.'irlc Ass'n v. Wnrn-ii, 55 X. J. Law, 5!>.S, 27 .'X-ti. '.y.V2. "• LMiiipirian v. Cochran. I'l N. V. 275. » Clement v. Cash, 21 N. V. 25.'5. And scf Itolfc v. I'dcixm, 2 l!r error were to have |1.50 per ]VI. for drawing the timber, $1 of whicb was to be paid as the timber was drawn, * * ♦ and the re- maining 50 cents in cash when all the timber was drawn. In the- language of the contract 'it being understood that the balance kept back is to secure the completion of this contract; and it is hereby agreed between the parties that the fifty cents per thousand feet is settled, fixed, and liquidated damages. * * *' They Laving fail- ed to draw all the timber, the question is whether the 50 cents per 1,000 feet on what was drawn, and which was to be paid on com- pletion of the contract, is to be regarded as stipulated damages, or in the nature of a forfeiture or penalty for not completing the contract. The court below charged the jury that the 50 cents per 1,000 feet t)n what had been drawn was stipulated damages. In this we think the court erred. If stipulated damages for nonper- formance of the entire contract, the defendant could not recover any other or greater damages for a nonperformance in whole or in part. And it would follow that he would recover no damages whatever on the contract had the plaintiff in error refused to draw any of 2 4 Morris v. McCoy, 7 Nev. 399. 2BBrytoa v. Marston, aS 111. App. 211; Bagley v. Peddle, 5 Sandf. 192;. Nlver V. Rossman, 18 Barb. 50. 26 Foley V. McKeegan, 4 Iowa, 1, 5; Perkins v. Lyman, 11 Mass. 7G;; Brewster v. Edgerly. 13 N. H. 275. aT Davis v. Freeman, 10 Mich. 1S8. •5;§ 48-57) RULES OF CONSTRUCTION. 133 the timber. Such, clearly, could not have been the intention of the parties. They must have intended that, if the plaintiff in error should draw part of the timber, and not the whole, they should not be paid the 50 cents per 1,000 feet on what had been drawn by them. That, in the language of the contract, should be 'fixed and liquidated ■damages,' If the contract had provided for the payment of 50 cents , per 1,000 feet as liquidated damages for the timber not drawn, the -case would be altogether different. For the nearer such contract was completed, the less would be the damages. The damages would be proportioned to the nonperformance. But the contrary would be the case, as the contract is, if the 50 cents per 1,000 Is to be re- garded as liquidated damages, and not as a penalty; for, the nearer the contract is completed, the greater are the damages In case of failure. * * * The policy of the law will not permit parties to make that liquidated damages, by calling it such in their contract, ■which in its nature is clearly a penalty or forfeiture for nonperform- ance. While it allows them, in certain cases, to fix their own dam- ages, it will in no case permit them to evade the law by agreement." Contracts providing that an employ^ shall forfeit all wages due him if he wrongfully quits the service, belong to this class of cases and will be regarded as stipulating for a penalty.^' And, generally, where a contract provides for payment in installments, and stip- ulates that a certain proportion shall be retained from each install- ment, the whole to be forfeited upon a breach, the sum retained is <-onsidered a penalty.'^® Stipulated Sum where Damciges are Uncertain. Where the damages resulting from a breach of contract cannot be measured by any definite pecuniary standard, as by market value or the like, but are wholly uncertain, the law favors a liquidation of the damages by the parties themselves; and where they stipulate for a reasonable amount, it will be enforced. But, even if the dam- 28 KieLardson v. Woeliler, 2G Mich. 90. 29 Savannah &. C. R. Co. v. Callahan, 5G Ga. 331; Jemmison v. Gray, 2i) Iowa, 537; Potter v. McPherson, 61 Mo. 240; Dullaghan v. Fitch, 42 Wis, ; Lynde v. Thompson, 2 Allen, 456. For failure to purchase a business a.«i agreed. $25,000 was held to be liquidated damages. Woodbury v. Turner. Day & Woolworth Manuf'g Co. (Ky.) 29 S. W. 295. 32 A sum agreed to be paid upon breach of an agreement not to carry on a particular trade, business, or profession within certain limits or within a specified time is nearly always regarded as liquidated damages. Jaquith v. Hudson, 5 Mich. 123; Tode v. Gross, 127 N. Y. 480, 28 N. E. 469; Mott v. Mott, 11 Barb. 127; Applegate v, Jacoby, 9 Dana, 200; Dakin v. Williams, 17 Wend. 447; Williams v. Dakin, 22 Wend. 210; DeGroff v. American Lineu- 33 See note 33 on following page. §§ 48-57) RULES OF CONSTRUCTION. 135 nuisance, ^* disclosure of trade secrets, ^"^ and in various otlier cases.^^ Anything, in fact, that tends to make the damages difiS- cult to estimate, such as the absence of witnesses, or the difficulty Thread Co., 24 Barb. 375, Nobles v. Bates, 7 Cow. 307; Smith v. Smith, 4 Wend. 46S; Pierce v. Fuller, S Mass. 223; Gushing v. Drew, 97 Mass. 445 (contra, Perkins v. Lyman, 11 Mass. 76); Mueller v. Kleine, 27 111. App. 473; California Steam Nav. Co. v. Wright, 6 Cal. 258; Streeter v. Rush, 25 Cal. 67; Grasselli v. Lowden, 11 Ohio St. 349; Newman v. Wolf son, 69 Ga. 764; Light- ner v. Menzel, 35 Cal. 452; Bigony v. Tyson, 75 Pa. St, 157; Barry v. Harris, S3 A stipulation in a building contract for the payment of a reasonable sum for each day or week the work is delayed beyond the agreed time will be sustained as liquidated damages for the delay. Fletcher v. Dyche, 2 Term R. 32; Legge v. Harlock, 12 Q. B. 1015; Crux v. Aldred, 14 Wkly. Rep. 65U; Hennessy v. Metzger, 152 III. 505, 38 N. E. 1058; Mueller v. Kleine, 27 111. App. 473; CurUs v. Brewer, 17 Pick. 513; Folsom v. McDonough, 6 Cush. 208; Hall v. Crowley, 5 Allen, 304; Bridges v. Hyatt, 2 Abb. Prac. 449; O'Donnell v. Rosenberg, 14 Abb. Prac. (N. S.) 59; Farnham v. Ross, 2 Hall, 107; Weeks v. Little, 47 N. Y. Super. Ct. 1; Worrell v. McClinaglian, 5 Strob. 115; Welch v, McDonald, 85 Va. 500, 8 S. E. 711, Jones f. Reg., 7 Can. Sup. Ct. 570; Monmouth Park Ass'n v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140. Contra, Wilcus v. Kling, 87 111. 107; Patent Brick Co. v. Moore, 75 Cal. 205, 16 Pac. 890 (under Code Civ. Proc. § 1671); Brennan v. Clark, 29 Neb. 385, 45 N. W. 472. See Jennings v. Miller (Tex. Civ. App.) 32 S. W. 24. Cf. Mills V. Paul (Tex. Civ. App.) 30 S. W. 558; Collier v. Betterton, 87 Tex. 440, 29 S. W. 467. See. generally. Ward v. Hudson River Bldg. Co., 125 N. Y. 230, 26 N. E. 256; Pettis v. Bloomer, 21 How. Prac. 317; De Graff, Vrieling & Co. v. Wickham (Iowa) 52 N. W. 503; O'Brien v. Anniston Pipe- Works, 93 Ala. 582, 9 South. 415. But, where the work is abandoned, the .stipulated sum cannot be recovered for an indefinite time. Hahn v. Ilorst- man, 12 Bush (Ky.) 249; Greer v. Tweed, 13 Abb. Prac. (N. S.) 427; Colwell V. Lawrence, 36 How. Prac. 306. A gross sum payable at once on delay In completing a building beyond a certain time, is a penalty. Tayloe v. Saudi- ford, 7 Wheat. 13; Savannah & C. R. Co. v. Callahan, 56 Ga. 331. Contra, Allen V. Brazier, 2 Bailey (S. C.) 293. The sum fixed must be reasonable compensation for the actual damage. Clements v. Railroad Co., 132 Pa. St. 445, 19 Atl. 274, 276. The principle applies to other contracts. Harmony v. ningham, 12 N. Y. 99; Walker v. Engler, 30 Mo. 130; Young v. White, 5 Watts (Pa.) 460; Bergheim v. Steel Co., L. R. 10 Q. B. 319. »* Grasselli v. Lowden. 11 Ohio St. 349. 30 Nessle v. Reese, 29 How. Prac. 382; Baglej v. Peddie, 16 N. Y. 469; Roin.lr.l v. Schfll. 4 C ]'.. (X. S.) 97. 88 Sf'o note '.'>() on foll(j\viiiK p-'ige. 136 BONDS LIQUIDATED D A:\IAGKS ALTKRN ATIVE CONTRACTS. (Ch. 4 of procuring testimony, may be considered as bearing upon the mo- tive in stipulating damages.*^ 49 Vt. 392; Stevens v. Pillsbury, 57 Vt. 203 (Smith v. Waiiiwrisiit, 24 Vt. 97, overruled); Stewart v. Bedell, 79 Pa. St. 330 (but see Moore v. Colt, 127 Pa. St. 280, IS Atl. 8); Jobuson v. Gwiuu, 100 lud. 406; Holbrook v. Tobey, OU Me. 410; Cheddick's Ex'r v. Marsh, 21 N. J. Law, 463; Hoaglaud v. Sogur. 38 N. J. Law, 230; Duulop v. Gregory, 10 N. Y. 241. But see Wilcus v. Kliug. 87 111. 107. In Wilkinson v. Colley, 104 Pa. St. 35, 30 Atl. 286, such a con- tract by a pbj^sician was held to provide for a penalty. Such agreements are not considered alternative. Stewart v. Bedell, 79 Pa. St. 330. Nor can the stipulation for liquidated damages be defeated on the ground that, the con- tract being a continuing one, the sum fixed is payable on any one of various breaches of different importance. Atkyns v. Kiunier, 4 Exch. 777; Gals- worthy V. Strutt, 1 Exch. 059; Green v. Price, 13 Mees. & W. 695; Price v. Green, 16 Mees. & W. 340; Hathaway v. Lynn, 75 Wis. 186, 43 N. W. 956; Streeter v. Rush, 25 Cal. 67; Gushing v. Drew, 97 Mass. 445; Grasselli v. Lowden, 11 Ohio St. 349; Moore v. Colt, 127 Pa. St. 289, 18 Atl. 8; Leary v. Laflin. 101 Mass. 334; Dakin v. Williams, 17 Wend. 447; Spicer v. Hoop, 51 Ind. 305; Dunlop v. Gregoiy, 10 N. Y. 241; DufCy v. Shockey, 11 Ind. 70. In Little v. Banks, 85 N. Y. 258, the defendant was the publisher of the New York Court of Appeals Reports. He had contracted to keep them for sale, and to sell to dealers as required; and $100 was stipulated to be paid as liquidated damages for a breach. It was held that this sum could be recovered for a breach, though the actual damages for failure to deliver a single copy might be very much less than a failure to deliver a larger number. 38 A stipulation liquidating the damages for the total loss of a bargain for the purchase or lease of lands will be enforced. Leggett v. Insurance Go., .50 Barb. 616, 53 N. Y. 394; Heard v. Bowers, 23 Pick. 455; Tingley v. Cut- ler, 7 Conn. 291; Knapp v. Maltby, 13 Wend. 587; Slosson v, Beadle, 7 .Johns. 72; Lynde v. Thompson, 2 Allen, 456; Lampman v. Cochran, 19 Barb. 388, 16 N. Y. 275; Mundy v. Culver, 18 Barb. 336; Clement v. Cash, 21 N. Y. 253; Hasbrouck v. Tappen. 15 Johns. 200. Or of persoual property. Pierce v. Young, 10 Wis. 30; Allen v. Brazier, 2 Bailey, 55; Main v. King, 10 Barb. 59; Knowlton v. Mackay, 29 U. C. C. P. 601. An agreement to forfeit tuition fees paid in advance in case of expulsion from school provides for liquidated damages, and not a penalty. Fessman v. Seeley (Tex. Civ. App.) 30 S. W. 208. Forfeiture of reasonable proportion of wages for quitting without no- tice will be upheld. Tennessee Manuf'g Co. v. James, 91 Tenn. 154, 18 S. W. 262. A contract of employment providing that the employe shall pay $1,000 as liquidated damages, in case he shall become intoxicated, provides for liq- uidated damages, and not a penalty, although it is possible for a breach to occur with no actual damages other than nominal. Keeble v. Keeble, 85 Ala. 552, 5 South. 149. ST Cotheal v. Talmage, 9 N. Y. 551; Bagley v. Peddie. 10 N. Y. 469 ^§ 48-57) RULES OF coNSTRuqrioN. 137 ■Stipulated Sum where Damages are Certain. Where damages can be easily and precisely determined by a def- inite pecuniary standard as by proof of market values, but the parties have stipulated for a much larger sum, such sum will usu- ally be held to be a penalty; for it is evident that the principle of •compensation has been disregarded. The principle here is the same as where a smaller sum of money is secured by a larger.^* When- •ever the damages can be ascertained with reasonable certainty, the strong tendency is to regard a stipulated sum materially variant therefrom as a penalty. We have seen, however, that the damages recoverable under legal rules seldom constitute complete indemnity, and in cases of contracts, therefore, the law permits the parties to provide for this contingency. They may stipulate for a compensa- tion for losses which the law would regard as too remote or uncer- tain to be considered, and if the stipulation is reasonable, it will be •enforced as liquidated damages,^ ^ This is but an application of the 8 8 "There are no peculiar reasons why a stipulated sum should be treated as a penalty for exceeding just compensation for a default In the payment of money, and not be so treated in case of a different agreement, where the •excess is capable of being made equally manifest." Suth. Dam. § 289; Fisher Y. Bidwell. 27 Conn. 303. Where parties bind themselves in a certain sum to abide by an award, the sum is a penalty, and only the award, with inter- ■est, can be recovered. Stewart v. Grier, 7 Houst. 378, 32 Atl. 328. 3 9 Jaqua v. Headington, 114 Ind. 309, IG N. E. 527; Nielson v. Read, 12 Fed. 441; Gallo v. McAndrews, 29 Fed. 715; Hodges v. King, 7 Mete. (Mass.) •583; Manice v. Brady, 15 Abb. Prac. 173; Durst v. Swift, 11 Tex. 273; Walker v. Engler, 30 Mo. 130; Cotheal v. Talmage, 9 N. Y. 551; Fitzpatricli v. Cottingham, 14 Wis. 237; Eastou v. Canal Co., 13 Ohio, SO; Bradshaw v. •Craycraft, 3 J. J. Marsh. (Ky.) 79; Ex parte Hodges, 24 Ark. 197; Talcott V. Marston, 3 Minn. 339 (Gil. 238); Shrevc v. Brereton. 51 Pa. St. 175; Knapp r. Maltby, 13 Wend. 587; Powell v. Burroughs, 54 Pa. St. 329; Johnston v. €owan, 59 Pa. St. 275; Keoble v. Keeble, 85 Ala. 552, 5 South. 149. But if the sum fixed varies materially from a just compensation, or if the intention is doubtful, the sum will be held a penalty. Dennis v. Cummins, 3 Johns. Cas. 297; Lindsay v. Anesley, 6 Ired. (N. C.) 188; Mills v. Fox. 4 E. D. Smith, 220: Esmond v. Van Benschoten, 12 Barb. 300, Baird v. Tollivoi. Humph. (Tonn.) 180. A provision in a lease for !?5.(KX) daniatji's. to co:er interruption of earn- ings and other losses in addition to unpaid rent. In case of breach by the lessee, when, on an actual breach, no substantial damage has been suHerod. must be hold to be a penalty. (5ay Manuf'g Co. v. Camp, 25 U. S. App. 131. 13 C. C. A. 137, 05 Fi'd. 791. WIk-h- Hit- provistons of iij.yiiiciit in an :igroe- 138 BONDS LIQUIDATED DAMAGES ALTERNATIVE CONTRACTS, (Cll. 4 rule that the damages for a broach of contract are such as were con- templated at the time the contract was made. Sum Deposited to he Forfeited on Breach. Where a sum is deposited, and the contract declares that it shall be forfeited for nonperformance, if reasonable in amount, it will be enforced as liquidated damages.*" In Wallis v. Smith *^ it was said, in this connection: "In that there seems to me to be great good sense, and for this reason: that if a fund is set apart to meet a particular contingencey, which is described, and that contingency arises, it is difficult to say that the stakeholder, or other person hav- ing the fund, is not to hand it over at once to the person who claims it under the contingency that has happened." The sum deposited must be reasonable.*^ Sum Stipulated for Breach of Contract for Several Things. Where a contract contains stipulations for several things of wide- ly different degrees of importance, it is obvious that a fixed sum made payable on the breach of any of them cannot be based on the principle of compensation. This is still more apparent where the damages for some breaches can be accurately measured, and the sum fixed is in excess of that sum; but it is equally true though the dam- ment for the use of a certain machine are that the lessee shall keep an ac- count of the work done by the machine, and pay ratably therefor, "and, if said lessee shall fail or neglect to keep an account" of the work so done, "the lessor may, at his option, either" employ some suitable person to take the account for him, or "charge said lessee, in lieu of" the ratable price named, "the sum of five dollars per day for each of said machines," the alternative will not be construed as a penalty, but as fixing upon a roughly-estimated per diem equivalent, where the difference is not too great to admit of that conclusion. Standard Button-Fastening Co. v. Breed, 163 Mass. 10, 39 N. E^ 346. 40 Reilly V. Jones, 1 Bing. 302; Hinton v. Sparkes, L. R. 3 C. P. 161; Lea V. Wbitaker, L. R. 8 C. P. 70; Magee v. Lavell, L. R. 9 0. P. 107; Swift v. Powell, 44 Ga. 123; Perzell v. Shook, 53 N. Y. Super. Ct. 501; Mathews v. Sharp, 99 Pa. St. 560; Eakin v. Scott, 70 Tex. 442, 7 S. W. 777. See Stillwell V. Temple, 28 Mo. 156. 41 21 Ch. Div. 243. 4 2 Chaude v. Shepard, 122 N. Y. 397, 25 N. E. 358. It was held in this case, however, that the rule only applied in cases where the deposit was made in part performance of the contract, and not where it was mere security. But see In re Dagenham (Thames) Dock Co., 8 Ch. App. 1022, §j 46-07) RULES OF CONSTRUCTION. 139 ages cannot be accurately measured for any breach, for it is logic- ally certain that one sum cannot be fair compensation for a breach of either of two stipulations of widely different value or importance. In Lyman v. Babcock *^ it was said: *' Where the sum is agreed to be paid for any of several breaches of the contract, and the damages resulting from the breach of all of them are uncertain, and there is no fixed rule for measuring them, but the breaches are apparent- ly of various degrees of importance and injury, the cases are con- flicting in the rule whether the sum should be held as a penalty or as liquidated damages. On principle we are very clear that in such a case the sum should be held as a penalty; for it appears to us that it would be as unjust to sanction a recovery of the sum agreed to be paid alike for any one trivial breach, or for any one important breach, or for breach of the whole contract, as it would be to sanc- tion such a recovery equally for damages certain and uncertain in their nature. The rule holding the sum to be a penalty in the lat- ter case goes upon the injustice of allowing such a recovery for a less amount of actual damages ascertained or readily ascertainable. And we cannot but think that there is like injustice in allowing equally, in case of damages, uncertain indeed, but manifestly and m.aterially different in amount, equally for breach of part of the contract, and for breach of the entire contract. Such a rule would not only put the same value on a small part as on a large part, but would put the same value on any part as on the whole." This is believed to be a correct statement of the law, though the courts have not always found it necessary to state the rule so broadly.^* 43 40 Wis. 503, 517. ** Kemble v. Farren, G Bing. 141; Foley v. McKeegan, 4 Iowa, 1; Moore v. Colt, 127 Pa. St. 289, 18 Atl. 8; Curry v. Larer, 7 Pa. St. 470; McCuUouglv V. Manning, 132 Pa. St. 43, 18 Atl. 1080; Keck v. Bieber, 148 Pa. St. 645, 24 Atl. 170; Hathaway v. Lynn, 75 Wis. ISO, 43 N. W. 95G; Fitzpatrick v. Cot- tingham, 14 Wis. 219; Trustees of First Orthodox Congregational Church v. Walrath, 27 Mich. 232; Daily v. Litchfield, 10 .Mich. 29; Bryton v. Marstou. 33 111. App. 211; Trower v. Elder, 77 111. 453; Lord v. Gaddis, 9 Iowa, 2G5; Hallock V. Slater, Id. 599; Clement v. Cash, 21 N. Y. 253; Niver v. Uossnian. 18 Barb. 50; Staples v. Parker, 41 Barb. 648; Lansing v. Dodd, 45 N. J. Law, 525; Hoagland v. Segur, 38 N. J. Law, 230; Cheddick's Kx'r v. Marsh, 21 N. J. Law, 403; Brown v. Bellows, 4 Pick. 179; Chase v. Allen. 13 Gray. 12; Shute V. Taylor, 5 Mete. (Mass.) Gl; Higginson v. Wi-l Norman Conquest, it is lamented as "an abusion of the common law" that tbr offender was not likewise deprived of Christian burial. * 37 Hen. VIII. c. 9 (1545). This statute limited the rate to 10 per cent., and thus negatively authorized interest. Under this statute the lirst lawful in- terest was taken in England. '"Before the statute of Henry VIII., all interest on money lent was prohibited by the canon law, as it is now in Roman Catholic countries." Per Lord Mansfield in Lowe v. Waller, Doug. 73C), 740; President, etc., Rensselaer Glass Factory v. Reid, 5 Cow. 587, COS, per Mr. Senator Spencer, dissenting. 12 Anne, St. 2, c. IG, reduced the rate to ."> per cent. Various statutes establishing different rates had been passed between the dates of these two statutes. See note in 2 Pars. Notes & B. 391. By 17 & 18 Vict. c. 90, all the laws against usury wore repoalcd, Ictivlng parlies jit liberty to contract for any rate of Interest. s Higgins v. Sargent, 2 Barn. & C. 318; Sliaw v. IMeton, 4 Barn. iV: (". ~\'>, 723; Page v. Newman, 9 Barn. & C. 378, disapproving Arnott v. Itedl'erii, 3 Blug. .3r>3. LAW OAM.— 10 146 INTEREST. (Ch. 5 the discretion of the jury, as damages, only in eases provided for by statute, and as special damages for the detention of money. Same — Interest by Agreement. Where there is an express agreement to pay interest, there is, of course, no difficulty in its allowance. It was held at an early day that, where there was an agreement to obtain money at a specific time, the law would imply an agreement to pay interest after that time, if there was a default.® "Where money is made payable by an agreement between the parties, and a time given for the payment of it, this is a contract to pay the money at the given time, and to pay interest for it from the given day in case of failure of payment at that day." ^ But this rule has not been followed in the later cases. ^ An agreement to pay interest may be implied from the cus- tom or usage of the business in which the debt is contracted. *• There 6 Blaney v. Hendricks, 2 W. Bl. 7G1, 3 Wils. 205; Shipley v. Hammond, 5 Esp. 114; Chalie v. Duke of York, G Esp. 45. 7 Robinson v. Bland, 2 Burrows, 1077, 10S6. See, also, Boddam v. Kiley, 2 Brown, Ch. 2; Mountford v. Willes, 2 Bos. & P. 337. 8 See Mayne, Dam. § 181. The principle seems admitted by Lord Ellen- borough in Salton v. Bragg, 15 East, 223, 22G, and in De Havilland v. Bower- bank, 1 Camp. 50. But in Gordon v. Swan, 2 Camp. 429, note, 12 East, 419, he limited his language in the De Havilland Case to written instruments in the nature of bills or notes. In De Bernales v. Fuller, 2 Camp. 426, he said that, where there was no contract, express or implied, to pay interest, it could not be allowed. He reiterated tlie rule stated by him in the De Havilland Case. In Higgins v. Sargent, 2 Barn. & C. 348, 351, 352, Holroyd, J., said: "Unless interest be payable by the consent of the parties, express, or implied from the usage of trade (as in case of bills of exchange) or other circum- stances, it is not due by common law. * ♦ * independently of these au- thorities I am of opinion, upon the principles of the common law, that interest is not payable upon a sum certain payable at a given day.'' In Page v. Newman, 9 Barn. & C. 378-381, Lord Tenterden stated the rule to be that interest is not due on money secured by a written instrument, unless it ap- pears on the face of the instrument thai interest was intended to be paid, or unless it be implied from the usage of trade. Speaking of interest, it has been well said: "It would fortunately be a very difficult matter to fix upon another point of English law on which the authorities are so little in har- mony with each other." De Havilland v. Bowerbank, 1 Camp. 50-53. 9 Eddowes v. Hopkins, 1 Doug. 376; Selleck v. French, 1 Conn. 32; Moore vy. Voughton, 1 Starkie, 487. § 60) INTEREST AS A DEBT AND AS DAMAGES. 147 is an implied agreement to pay interest on mercantile securities, aris- ing out of the custom of merchants.^" Bame — Inter-est as Damages. It was early settled that, where commercial paper was not paid at maturity, interest thereafter accruing could only be recovered by way of damages unless it was provided for by the terms of the note or bill.^^ "Until the maturity of the bill, the interest is a debt. After its maturity, the interest is given as damages at the discretion of the jury." ^- This is now well established.^^ The allowance of interest as damages is governed in England by the statute of 3 & 4 Wm. IV. c. 42, §§ 28, 29. In all cases it is within the discretion of the jury. Independently of this statute, interest is allowed as special damages for the detention of money, but it must be specially pleaded.^* The American Doclnne. In America the prevailing doctrine is that the right to interest is given by the common law.^^ Interest is usually considered as a necessary and natural incident of money, and a person is regarded 10 Wood's Mayne, Dam. p. 214. 11 Du Belloit V. Lord Waterpark, 1 Dow & R. 16; Dent v. Dunn, 3 Camp. 29G. In Cameron v. Smith, 2 Barn. & Aid. 305-308, it tvas held that, "al- though by the usage of trade interest is allowed on a bill, yet it constitutes no part of the debt, but is in the nature of damages, which must go to the jury, in order that they may find the amount." If this language applies to interest accruing before maturity, it is hard to understand the principle. In re Burgess, 2 Moore, 745, was a similar case, but the bill had matured and been dishonored. The interest was held to be in the nature of damages. 12 Keene v. Keene, 3 C. B. (N. S.) 144. 13 In re Burgess, 2 Moore, 745; Ex parte Charman, Wkly. Notes (1SS7) 184; De Havillaud v. Bowerbank, 1 Camp. 50; Higgins v. Sargent, 2 Barn. & C. 348; Page v. Newman, U Barn. & C. 378. But see Blanoy v. Hcmlricks, 2 W. Bl. 7G1; Parker v. Hutchinson, 3 Ves. 133; Lowndes v. Colleus, 17 Vcs. 27. 1* Watkins v. Morgan, G Car. & P. GGl; Price v. Railway Co., IG Mccs. & W. 244; Cameron v. Smith, 2 Barn. & Aid. 305; Cook v. Fowler, L. R. 7 H. L. 27. 16 Where there Is no statute on the sultjoct, interest will be allowed by way of damages for unreasonably withholding payment of an overdue ac- count Young v. Godbe, 15 Wall. 5G2; Young v. I'olack, 3 Cal. 20S. 14S INTERKST. (Ch. ^ as entitled to it as a matter of right whenever money is wrongfully detained.^^ In some states, however, it is held that the common^ law gives no right to interest, but merely allows the parties to con- tract for it, and that, unless the right to it is given by contract or by statute, it cannot be recovered.^^ In all the states, however, the- matter of interest is largely regulated by statute. Saine — Interest as a Debt. Here, as in England, interest is always properly chargeable where- there is either an express or an implied agreement to pay it; and an agreement to that effect will be implied where there was a cus- tom to charge interest, which was known to the defendant.^* 18 Sedg. Dam. § 292. The early cases are collected and discusstd in Wood V. Kobbius, 11 Mass. 504; Pope v. Barrett, 7 Mason, 117, Fed. Cas. No. 11,273 ^ Boyd V. Gilchrist, 15 Ala. 849; Davis v. Greely, 1 Cal. 422. 17 Parmelee v. Lawrence, 48 111. 331; Sammis v. Clark, 13 111. 544; Mitt V. Allen, Id. 592; City of Chicago v. Allcock, SG 111. 384; Denver, S. P. & P, R. Co. V. Conway, 8 Colo. 1, 5 Pac. 142; Hamer v. Kirk wood, 25 Miss. 95;- Board of Sup'rs of Warren Co. v. Klein, 51 Miss. 807; Kenney v. Hannibal & St. J. R. Co., 63 Mo. 99; Marshall v. Schrieker, Id. 308; Atkinson v. At- lantic & P. R. Co., Id. 367; De Steiger v. Hannibal & St. J. R. Co., 73 Mo. 33; Kimes v. St. Louis, L M. & S. Ry. Co., 85 Mo. 611; Randall v. Green- hood, 3 Mont. 500; Flannery v. Anderson, 4 Nev. 437. In Close v. Fields. 2 Tex. 232, it was held that the right to interest rested wholly on statute. The statutes of many states allow interest when money is vexatiously withheld.^ City of Chicago v. Allcock, 86 111. 384; Chicago & N. W. R. Co. v. Schultz, 55- 111. 421; Bradley v. Geiselman, 22 111. 494. Whether it was so withheld is a question for the jury. Devine v. Edwards, 101 111. 138. Merely defending^ a suit is not vexations delay in payment of money. Aldrich v. Dunham, 16 111. 403. Interest runs from the time payment was due, not from the time the delay became vexatious. City of Chicago v, Tebbetts, 104 U. S. 120. isAyers v. Metcalf, 39 111. 307; Veiths v. Hagge, 8 Iowa, 163; M'AUister v. Reab, 4 Wend. 483, 8 Wend. 109; Meech v. Smith, 7 Wend. 315; Rayburn V. Day, 27 111. 46; Dickson v. Surginer, 3 Brev. 417; Fisher v. Sargent, 10 Cush. 250; Knox v. Jones, 2 Dall. 193; Bispham v. Pallock, 1 McLean, 411, Fed. Cas. No. 1,442; Koons v. Miller, 3 Watts & S. 271; Watt v. Hoch, 25 Pa. St. 411; Adams v. Palmer, 30 Pa. St. 346. Under a statute providing that no more than a certain rate shall be recovered on all contracts, express or im- plied, for the payment of money, unless expressly stipulated for by the parties, an agreement cannot be implied to pay more than the statutory rate. Turner V. Dawson, 50 111. 85. •§ 60) INTKREST AS A DEBT AND AS DAMAGES. 149 £ame — Interest as Damages. By the earlier cases it was held that the allowance of interest as damages was discretionary with the jury.^^ This was especially true in actions of tort, ^° but the rule was also applied in actions x)f contract.-^ The court was thought to have the same discretion as the jury. In a leading case ^^ it was said: "As often as the ■question of interest has been before a court, the judges seem to have considered it as depending on general equitable principles, and, in most cases, to have decided each case in reference to its particular •circumstances, without attempting to give any rule which might be generally applicable." Gradually, however, and in a continually in- <^reasing number of cases, interest came to be allowed as a matter ^f law, and this is now the rule in many classes of cases.^^ Where 19 Sedg. Dam. § 295; Mcllvaine v. Wilkins, 12 N. H. 474. 2 It was so in trespass. Beals v. Guernsey, 8 Johns. 446. And in trover. Hyde v. Stone, 7 Wend. 354; Bissell v. Hopliins, 4 Cow. 53; Kennedy v. Strong, 14 Johns. 12S; Hallett v. Novion, 14 Johns. 273, IG Johns. 327; Dev- ereux v. Burgwin, 11 Ired. 490. And in replevin. Rowley v. Gibbs, 14 Johns. 385. And in actions for negligence. Thomas v. Weed, 14 Johns 255. Or for fraudulent refusal to convey land. Handley v. Chambers, 1 Litt. (Ky.) 3.5S. 21 Dox V. Dey, 3 Wend. 350; Gilpins v. Consequa, Pet. C. C. 85, Fed. Cas. No. 5,452; Watkinson v. Laughton, 8 Johns. 213; Amo'-y v. McGregor, 15 Johns. 24; Letcher v. Woodson, 1 Brock. 212, Fed. Cas. No. 8,280; Dotterer v. Ben- nett. 5 Rich. Law, 295. And, generally, it was held that interest was discre- tionary with the jury. Willings v. Consequa, Pet. C. C. 172, Fed. Cas. No. 17,7U(J; Cakes v. Richardson, 2 Low. 173, Fed. Cas. No. 10,390; Crow v. State, 23 Ark. 684; Brady v. Wilcoxson, 44 Cal. 239; Rogers v. West, 9 Ind. tfK); Morford v. Ambrose, 3 J. J. Marsh. 688; Marshall v. Dudley 4 J. J. -Marsh. 244; Bell's Adm'rs v. Logan, 7 J. J. Marsh. 593; Stark's Adm'r v. Price, 5 Dana, 140; Howcott v. Collins, 23 Miss. 398; Richmond v. Bronson. 5 Denio. 55; Hunt v. Jucks, 1 ILayw. (N. C.) 199; Hogg v. Manufacturing •Co., 5 Ohio, 410; Obermyer v. Nichols, 6 Bin. 159, Heidenheimer v. Ellis, €7 Tox. 420, 3 S. W. G(>0; Close v. Fields. 13 Tex. 023. 2 2 Rens.selaer Glass Factory v. Roid, 5 Cow. 587, 590. 23 Lewis v. Rountree, 79 N. C. 122, 128; Dana v. Fiedler, 12 N. Y. 40-50; Broughton v. Mitchell, 04 Ala. 210; Hamer v. Hathaway, 33 Cal. 117; An- drews v. Durant, 18 N. Y. 496; De Lavallette v. Wendt, 75 N. Y. 579; Rob- inson v. Insurance Co., 1 Abb. Prac. (N. S.) 180; Wehle v. Butler. 13 IIow. Prac. 5; Rhemke v. Clinton, 2 Utah, 230. 150 INTEREST. (Ch. 5 interest is given as damages for the nonpayment or detention of money, it is an inseparable incident of the principal demand. It can only be recovered with the principal by action. It does not con- stitute a debt capable of a distinct claim. Whenever the princl])al demand is satisfied or discharged, the accrued interest, whether paid or not, is extinguished.^* Interest as damages is given at the stat- utory rate.^'' Where no rate is fixed by statute, it is given at the customary rate.^® Where the statutory rate is changed after inter- est begins to accrue, interest accrues thereafter at the new rate.'^ In an action on a foreign judgment, it has been held that interest should be given at the domestic rate,^^ whether the judgment bore interest by the foreign law or not. But it is sometimes held that, if the foreign rate is not proved, it will be presumed to be the same as the domestic rate.^® In an action on a contract, ^° interest should be given at the rate of the place of performance, or of the place 24 Suth. Dam. § 300; Dixon v. Parkes, lEsp.llO; Churcher v. Stringer, 2 Farn, & Adol. 777; Cutter v. Mayor, etc., of New Yoik. 92 N. Y. 166; Hamilton v. Van Rensselaer, 43 N, Y. 244; Devlin v. City of New York, 60 Hun, 68, 14 N, Y. Supp. 251; Hayes v. Railway Co., 64 Iowa, 753, 19 N. W. 245; Southern Cent. R. Co. v. Town of Moravia, 61 Barb. 181; Consequa v. Fanning, 3 Jolins. Ch. 364; Gillespie v. Mayor, etc., of New York, 3 Edw. Gh. 512; Jacot v. Emmett, 11 Paige, 142; Succession of Mann, 4 La. Ann. 28; Succession of Anderson, 12 La. Ann. 95; American Bible Soc. v. Wells, 68 Me. 572; Tenth Nat. Bank v. Mayor, etc., of New York, 4 Hun, 429. Where interest is se- cured by contract, an action may be maintained for it, although the principal has been paid. Robbins v. Cheek, 32 Md. 328; Stone v. Bennett, 8 Mo. 41; Fake v. Eddy's Ex'r, 15 Wend. 76; King v. Phillips, 95 N. C. 245. 26 Wegner v. Bank, 76 Wis. 242, 44 N. W. 1096. 2 6 Davis V. Greely, 1 Cal. 422; Perry v. Taylor, 1 Utah, 63. 27 White V. Lyons, 42 Cal. 279; Woodward v. Woodward, 28 N. J. Eq. 119; Wilson V. Cobb, 31 N. J. Eq. 91; In re Doremus' Estate, 33 N. J. Eq. 234; Mayor, etc., of Jersey City v. O'Callaghan, 41 N. J. Law, 349; Reese v. Rutherford, 90 N. Y. 644; Sanders v. Railway Co., 94 N, Y. 641; O'Brien v. Young, 95 N. Y. 428; Stark v. Olney, 3 Or. 88. 2 8 Parker v. Thompson, 3 Pick. 429; Barringer v. King, 5 Gray, 9; Hop- kins V. Shepard, 129 Mass. 600; Nelson v. Felder, 7 Rich. Eq. 395. 2 Crone v. Dawson, 19 Mo. App. 214; Pauska v. Dans, 31 Tex. 67; Porter v. Munger, 22 Vt. 191. 30 Pana v. Bowler, 107 U. S. 529, 2 Sup. Cl. 704; Sutro Tunnel Co. v. Seg- regated Belcher Min. Co., 19 Nev. 121, 7 Pac. 271. § 61) GENERAL RULE. 151 where the contract was made.^^ But it has been held that in- terest on overdue coupons should be given at the rate of the place where the action was brought.*'' GENERAL RULE. 61. Interest should be allo-wed as damages ■whenever it represents a loss proximately caused by defend- ant's wrong. It is extremely diflficult to frame any rule governing the allow- ance of interest as damages, for. the reason that the law has been in a constant state of evolution during the last 100 years, and the result reached in different jurisdictions is not yet the same. Per- haps much of the confusion in the cases has been caused by the unfortunate use of the term "interest" to indicate both interest as a debt and compensatory damages for delay, measured by the i-ate of interest. The contest has been whether an allowance should be made for the delay. The name by which it should be called received but little attention, and it was incautiously said that interest should or should not be allowed. The distinction however is important. "Interest [as a debt] is recoverable of right, but compensation for deferred payments in torts depends upon the circumstances of each case. The plaintiff may have set his damages so inordinately high as to have justified the defendant in refusing to pay; or in other ways the delay may be plaintiff's fault; or the liability of defend- ant may have arisen without fault, as in Weir v. Allegheny Co.'' In such cases the jury probably would not, and certainly ought not, to make the allowance." '* The failure to appreciate the true nature of interest allowed as damages for delay led to the idea, often ex- pressed in the early cases, that interest could not be allowed unless there was a contract, express or im])]iod, to pay it. Thus in Dodgr 81 Gibbs V. Fremont, 9 Exch. 25; Courtois v. Carijeutier. 1 Wash. C. C. 3Tt!, Fed. Cas. No. 3,28f5; French v. French, 120 Mass :!(W; Pauska v. Dans, 31 Tex. 67; Porter v. Munger, 22 Vt. lUl. 8 2 Fauntleroy v. Hannibal. 5 Dill. 219. Fed. Cas. No. 4,GU2. 8 3 9.J Pa. St. 413. 8 4 Richards v. Gas Co.. i:5iiing of an event upon which a debt was to become due was niikiiown to dffi-iHlaiit, 156 INTEREST. (Ch. 5 Moiieu Wrongfully Acquired or Used. Where one acquires money to which he has no right, it is his duty to pay it over immediately; and, if he fails to do so, he is charge- but was not within the special knowledge of plaintiff, tbe defendant is never- theless liable for interest. Sumner v. Beebe, 37 Vt. 562. INTEREST ON TAXES. Interest is not recoverable on delinquent taxes, in the absence of statute. Perry Co. v. Selma, M. & M. It. Co., 65 Ala. 391; Perry V. Washburn, 20 Cal. 318. 350; Danforth v. Williams, 9 Mass. 324. Where one wrongfully enjoins the collection of taxes from himself, he is liable for in- terest. Rosenberg v. Weekes, 67 Tex. 578, 4 S. W. 899. It has been held that interest is not recoverable on the quota of taxes due from a county to the state. State v. Multnomah Co., 13 Or. 287, 10 Pac. 635. Contra, State v. Van Winkle, 43 N, J. Law, 125. Interest is recoverable on special taxes assessed against abutting owners for street improvements. Gest v. City of Cincinnati, 26 Ohio St. 275. FINES AND PENALTIES. Interest is not recoverable on fines and penal- ties. State V. Steen, 14 Tex. 396; Higley v. First Nat. Bank, 26 Ohio St. 75. A statute allowing the highest market value of property destroyed between the time of destruction and the trial provides for a penalty, and interest is not recoverable. Smith v. Morgan, 73 Wis. 375, 41 N. W. 532; Central Rail- road & Banking Co. v. Atlantic & G. R. Co., 50 Ga. 444; Ware v. Simmons, 55 Ga. 94. INTEREST ON JUDGMENTS. It is usually held that interest is recover- able in an action of debt on a judgment, regardless of whether the original demand carried interest or not. Klock v. Robinson, 22 Wend. 157. It is held In some states to be recoverable by common law. Perkins v. Fourniquet, 14 How. 328, 331; Crawford v. Simonton's Ex'rs, 7 Port (Ala.) 110; Gwinn v. Whitaker's Adm'x, 1 Har. & J. 754; Hodgdon v. Hodgdon, 2 N. H. 169; Ma- hurin v. Bickford,6 N. H. 567; Harrington v. Glenn, 1 Hill (S. C.) 79; Nelson V. Felder, 7 Rich. Eq. 395; Beall v. Silver, 2 Rand. (Va.) 401; Mercer's Adm'r V. Beale, 4 Leigh, 189; Booth v. Ableman, 20 Wis. 602. It is recoverable by statute. Dougherty v. Miller, 38 Cal. 548; Brigham v. Vaubuskirk, 6 B. Mon. 197; Todd v. Botchford, 86 N. Y. 517; Coles v. Kelsey, 13 Tex. 75; Hagood v. Ailcin, 57 Tex. 511. It was held not recoverable, without statute, in Reece v. Knott, 3 Utah, 451, 24 Pac. 757. See, also, Guthrie v. Wickliffs, 4 Bibb, 541; €ogsweU's Heirs v. Lyon, 3 J. J. Marsh. 38. A levy on a judgment or a scire facias cannot include interest, in the absence of statute. Perkins v. Fourni- quet, 14 How. 328, 331; Solen v. Virginia & T. R. Co., 14 Nev. 405; Barron V. Morrison, 44 N. H. 226; Watson v. Fuller, 6 Johns. 283; Mann's Ex'rs v. Taylor, 1 McCord, 171: Williamson v. Broughton, 4 McCord, 212; Hall v. Hall, 8 Vt. 156. INTEREST BETWEEN VERDICT AND JUDGMENT. Interest between ■verdict and judgment is regulated by statute in almost all jurisdictions. Va- § 64) PECUMAin' LOSSES UNLIQUIDATED DEMANDS. 157 able with interest.*'' Where one lawfully acquires money belonging to another, but improperly converts it to his own use, or withholds it after it is his duty to pay it over, he is liable for interest from the time of its conversion or detention. SAME— PECUNIARY LOSSES— UNLIQUIDATED DEMANDS. 64. In actions "where the injury is \«rholly pecuniary, in-^ terest is recoverable as of right, -whether the loss is liquidated or unliquidated. EXCEPTION — In many jurisdictions, -where the loss is unliquidated, interest is discretionary -with the jury. In all cases, either of tort or contract, where the loss is wholly pecuniary, and may be fixed as of a definite time, interest should be allowed as a matter of right, whether the loss is liquidated or unliquidated. Into these cases the element of time enters as an im- portant factor, and the plaintiff will not be fully compensated unless he receive, not only the value of what he has lost, but receive it as- nearly as may be as of the date of his loss. Hence, additional dam- ages in the nature of interest for the lapse of time should be al- lowed. It is never interest as such, but compensation, for the delay of which the rate of interest affords the fair legal measure.*^ It has been seen that interest is universally allowed in actions for non- payment of liquidated demands. It is in the case of unliquidated rious rules prevail. See Hallum v. Dickinson, 47 Ark. 120, 14 S. W. 477; Baltimore City Pass. Ry. Co. v. Sewell, 37 Md. 443; Lord v. Mayor, etc., of City of New York, 3 Hill. 42G; Henning v. Van Tyne, 19 Wend. 101; Kelsoy v. Murphy, 30 Pa. St. 340; Norris v. City of Philadolpliia, 70 Pa. St. 332; Dowel! V. Griswold, 5 Sawy. 23, Fed. Cas. No. 4,040; Swails v. Cissna, 61 Iowa, GU3. 17 N. W. 39; Irvin v. Hazleton, 37 Pa. St. 465; Gibson v. Cincinnati Enquirer, 2 Flip. 88, Fed. Cas. No. 5,391; Com. v. Boston & M. R. Co., 3 Cush. 25; Johnson v. Atlantic & St. L. R. Co., 43 N. H. 410; McLimans v. City of Lancaster, 65 Wis. 240, 26 N. W. .566; McKim v. Blake, 139 Mass. ,593. 2 N. E. 157. ON APPEAL. Interest is often allowed as damages for a frivolous or vexa- tious appeal. Its allowance is regulated by statute. ■«o Interest is recovernljle on money obtained by false representations. Ar- thur V. Wheeler & WMlson Mnnuf'g Co., 12 Mo. Ai)p. 335. •1 Kicli.'irds V. Gas Co., 130 I'a. St. \',1, IS Atl. COD. 158 INTKKF.ST. (Ch. 5 demands that the greatest confusion and uncertainty is met with. The confusion arises from the idea that the allowance of interest as damages proceeds on the theory that defendant is in default for not paying without delay. Thus it is said: "Interest is denied when the demand is unliquidated, for the reason that the person liable does not know what sum he owes, and therefore cannot be in default for not paying." *2 The reason given has no relevancy to the ques- tion at issue. It may be conceded that, where defendant is not re- sponsible for the delay, he cannot justly be charged with interest. But if one causes a loss which is in its nature unliquidated, and which must therefore be submitted to a jury, he is clearly liable for the necessary delay. The damages caused by such delay are clearly a proximate result of the original wrong. These damages are meas- ured by the rate of interest, and the wrongdoer is clearly liable on principle. Interest, as damages, is given as compensation for loss suffered by the detention of money, and the loss suffered is equally great whether the demand is liquidated or unliquidated. Thus it was said, by the Massachusetts court, in an action for the negligent destruction of property: "We have heard no reason suggested why, if a plaintiff has been prevented from having his damages ascer- tained, and in that sense has been kept out of the sum that would have made him whole at the time, so long that that sum is no longer an indemnity, the jury, in their discretion, and as incident to de- termining the amount of the original loss, may not consider the de- lay caused by the defendant. In our opinion, they may do so; and, if they do, we do not see how they can do it more justly than by taking interest on the original damage as a measure." *^ The New York court said, in an action of nondelivery of goods sold: "Inter- est is a necessary item in the estimate of damages in this class of cases. The party is entitled, on the day of performance, to the prop- erty agreed to be delivered. If it is not delivered, the law gives, as the measure of compensation then due, the difference between the contract and market prices. If he is not also entitled to interest from that time, as a matter of law, this contradictory result follows: that, while an indemnity is professedly given, the law adopts such .a mode of ascertaining its amount that, the longer a party is delayed *2 Suth. Dam. § 347. 43 Frazer v. Carpet Co., 141 Mass. 127, 4 N. E. G20. % 64) PECUNIARY LOSSES UNLIQUIDATED DEMANDS. 159 in obtaining it, the greater shall its inadequacy become. It is, how- ever, conceded to be law that, in these cases, the jury may give in- terest, by way of damages, in their discretion. Now, in all cases, unless this be an exception, the measure of damages, in an action upon a contract relating to money or property, is a question of law, and does not at all rest in the discretion of the jury." ** It would seem too clear for argument that, where interest is a necessary part of complete or even approximate indemnity, the in- jured person should be entitled to it as a matter of law, and it should not be left to the discretion of a jury. The measure of damages is in all cases a matter of law, though, where the injury is nonpecuniary, the jury necessarily determines the amount. The decisions are far from harmonious, however, in this class of cases. In many jurisdictions the allowance of interest is still held to be within the discretion of the jury. In some jurisdictions it may depend upon the form of action. Thus, in Massachusetts, if the action is trover, interest is recoverable as a matter of law; whereas, if the action is case for negligently destroying property, interest is discretionary with the jury.*'' The above principles, it is believed, ought to govern allowance of inter- est as damages in all cases; but it is impossible to say that they are yet the law. Perhaps the majority of cases proceed upon the principle, already mentioned, that defendant must be in default for not making payment, or interest cannot be recovered. The argu- *4 Dana v. Fiedler, 12 N. Y. 40. The court said further: "If the giving or refusing interest rests in discretion, the law, to be consistent, should furnish some legitimate means of influencing its exercise by evidence, as by showing that the party in fault has failed to perform, either willfully or by mere accident and without any moral misconduct. All such considerations are con- stantly excluded from a "jury, and they are properly told that, in such an ac- tion, their duty is to inquire whether a breach of the contract has happened, not what motives induced the breach. That by law a party is to have tlie difference between the contract price and the market price, in order that he may be indemuifiod, and because that rule affords the measure of his injury when it occurred; that he may not, as matter of law, recover interest, which is necessary to a complete indemnity; that, nevertlioless, the jury may, in their discretion, give him a complete indemnity, by including the amount of interest In their estimate of his damages, but that lie may not give any evi- dence to influence their discretion,— presents a series of propositions some of which cannot be law." Dana v. Fiodlor, 12 N. Y. 10. 48 Frazer v. Carpet Co., 141 Mass. 12f!, 1 X. E. (120. .U)0 INTEREST. (Ch. 5 ment seems to be that, as one cannot pay or make tender until botb the time and the amount have been ascertained, one cannot be in de- fault for not paying until the verdict. The fallacy of this theory has been already pointed out; but, as many cases are decided upon it, it must be constantly borne in mind in considering the actual state of the law. The following is the result of the decisions upon this theory: 65. CONTRACTS — In actions ex contractu, -w^here the dam- ages are unliquidated, interest is usually recovera- ble, as a matter of la"w: (a) From the time of the breach, where the damages can be made certain by simple computation, or by reference to recognized standards such as market value (p. 160). (b) From the time of demanding an accounting, -where the demand is reasonable, and therefore puts de- fendant in default for not paying the amount which w^ould have been found due (p. 161). (c) From the date of the writ (p. 161). One cannot pay or make tender until both the time and the amount due have been ascertained. As to time, in actions either for breach of contract or tort, compensation is due as soon as the amount is or should be ascertained, and therefore defendant cannot be charged with interest before that time. In actions for breach of contract, the allowance of interest is a question of law for the court.*" Damages Made. Qertaia by Oompiitalioii or Reference to Recognized Standards. The old common-law rule, which required that a demand should be liquidated, or its amount in some w'ay ascertained, before inter- est could be allowed, has been generally modified so far as to hold that, if the amount is capable of being ascertained by mere computation, then it shall carry interest.*^ "Id certum est, quod reddere certum potest." So, also, where th3 amount can be as- *8 Mansfield v. New York Cent. & H. R. R. Co., 114 N. Y. 331, 21 N. E. 735, 1037. 47.McMabon v. Railroad Co., 20 N. Y. 463. § 65) PECUNIARY LOSSES UNLIQUIDATED DEMAND-. 161 ceilained by computation, together with a reference to well-estab- lished market values, interest is recoverable; for such values are so nearly certain that the debtor can obtain some proximate knowledge of how much he has to pay.*® Demand for Accounting — Commencement of Suit. Where the plaintiff has made a reasonable demand for an ac- counting, and defendant fails to accede to it, or to pay the amount which would have been found due, he is in default from the date of demand, and chargeable with interest.*® A demand for a sum assumed to be due may be considered a sufficient demand for a set- tlement, if the sum is a reasonable one.^° The cases are not har- monious. Some hold that interest is recoverable from the begin- ning of the suit.^^ This may be sustained on principle, if the bring- 48 Van Rensselaer v. Jewett, 2 N. Y. 135; McMahon v. New York & E. R. Co., 20 N. Y. 463; Mansfield v. New York Cent. & H. R. R. Co., 114 N. Y. 331, 21 N. E. 735, 1037; Sipperly v. Stewart, 50 Barb. 62; Smith v. Velie, 60 N. Y. 106. In an- action for breach of a contract to deliver property at a certain time, interest is recoverable on the value of the property from that time. Pujol V. McKinlay, 42 Cal. 559; Bickell v. Colton, 41 Miss. 368; Bicknall v. Waterman, 5 R. I. 43; Merryman v. Griddle, 4 Munf. (Va.) 542; Enders v. Board of Public Works, 1 Grat. (Va.) 364, 390; Van Rensselaer's Ex'rs v. Jewett, 5 Denio, 135, 2 N. Y. 135; Van Rensselaer v. Jones, 2 Barb. 643: Livingston v. Miller, 11 N. Y. SO; McKenney v. Haines, 63 Me. 74; Savannah & C. R. Co. V. Callahan, 56 Ga. 331; Inhabitants of Canton v. Smith, 65 Me. 20.3-209. Contra, Dobenspeck v. Ormel, 11 Ind. 31. In Stark's Adm'r v. Price, 5 Dana, 140, it was held to be discretionary with the jury. Where the goods have not been paid for, interest is recoverable on the difference between the contract and the market price. Dana v. Fiedler, 12 N. Y. 40; Cease v. Cockle, 76 111. 484; Driggers v. Bell, 94 111. 223; Thomas v. Wells, 140 Mass. 517, 5 N. E. 485; Clark v. Dales, 20 Barb. 42; Hamilton v. Ganyard, 34 Barb. 204; Fishell V. Winans, 38 Barb. 228; Currie v. White, 6 Abb. Prac. (N. S.) 352, 385. •iOGray v. Van Amringe, 2 Watts & S. 128. BO Adams v. Fort Plain Bank, 36 N. Y. 255; Mygatt v. Wilcox, 45 N. Y. 30(i; Hand v. Church, 39 Hun, 303. Contra, People v. Supervisors of Delaware, !t Abb. Prac. (N. S.) 408. A demand for an unreasonably large sum will not put defendant in default. Goff v. inhabitant.s of Uehobotli, 2 Cusli. 475; Sliip- man v. State, 44 Wis. 458. 81 Goddard v. Foster, 17 Wall, 123; Mercer v. Vose, 67 N. Y. 5(;; Il.iiid v. Church, 39 Hun, 303; Gammon v. Abrams, 53 Wis. 323, 10 N. W. 17!t: 'luckor V. Grover, 00 Wis. 210, 19 N. W. 62; McCollum v. Sewnrd, 62 .N. Y. 316, I,AW DAM. — 11 1G2 INTEREST. (Ch. 5 injj of suit is considered a demand; but it is hard to see why the Lrino-iug of a suit should set interest running, if a demand will not.''^ Other cases hold that interest is recoverable only after ver- dict, for the amount is not liquidated until then.^' Where defend- ant reduces plaintiff's recovery by a recoupment, the demands on both sides are unliquidated, and interest on the balance is usually allowed only from verdict."** If it was defendant's duty to liquidate the debt, and he fails to do so, he is clearly in default, and charge- able with interest.^** But, ordinarily, when plaintiff makes no de- mand for payment or accounting, interest is not recoverable, for defendant is not in default.^* 66. TORTS — In actions ex delicto, interest is recoverable in proper cases, sometimes as a matter of legal right, and sometimes in the discretion of the jury. 67. In determining -when interest is recoverable, the fol- lo-wing rules may be stated: (a) Interest is never recoverable on discretionary dam- ages (p. 163). (b) "Where there is a pecuniary loss, of such a nature as to deprive one of title to a specific thing, or vrhich Feeter v. Heath, 11 Weud. 478; McCormick v. Railroad Co., 49 N. Y. 303; Hewitt V. Lumber Co., 77 Wis. 548, 40 N. W. 822. "Where interest is refused In actions of contract, on the ground that the claim is unliquidated, it is in fact usually allowed from the date of the writ." Sedg. Dam. § 315. B2 White v. Miller, 78 N. Y. 393; McMaster v. State, 108 N. Y. 542, 15 N. E. 417. 63 Cox V. McLoughlin, 76 Cal. 60, 18 Pac. 100; Murray v. Ware's Adm'r, 1 Bibb, 325; McKnight v. Dunlop. 4 Barb. 36; Pursell v. Fry, 19 Hun, 595; Day V. Railroad Co., 22 Hun, 412; Martin v. State, 51 Wis. 407, 8 N. W. 248. 4 The Isaac Newton, 1 Abb. Adm. 588, Fed. Cas. No. 7,090; Brady v. Wil- coxson, 44 Cal. 239; Still v. Hall, 20 Wend. 51; McMaster v. State, 108 N. Y. 542. 15 N. E. 417. In Palmer v. Stockwell, 9 Gray, 237, interest was al- lowed on the balance recovered from the date of the writ. 66 Moore v. Patton, 2 Port (Ala.) 451; McMahon v. Railroad Co., 20 N. Y. 463; Ansley v. Peters, 1 Allen (N. B.) 339; Robinson v. Stewart, 10 N. Y. IS!). 197. 86 Adams Exp. Co. v. Milton, 11 Bush, 49; Gallup v. Perue, 10 Hun. .")2": People V. Supervisors, 9 Abb. Prac. (N. S.) 408; Marsh v. Eraser, 37 Wis. 149: is'ewell V. Keith, 11 Vt. 214. §§ 66—67) PECUNIARY LOSSES UNLIQUIDATED DEMANDS. 163 is so regarded, interest is recoverable on the value of the property, as a matter of legal right (p. 163). (c) Where there is a pecuniary loss, but not such as to deprive one of title to any specific thing, the jury may usually add interest, in their discretion, to make the compensation adequate (p. 165). Interest on Discretionary Damages. Where the damages caused by a tort are not only unascertained, but unascertainable, save by the enlightened conscience of a jury, interest cannot be recovered. ^^ Nor can interest be allowed in cases where exemplary damages may be recovered.''* Sums ascertainable only by the enlightened conscience of a jury do not bear interest before verdict, either as interest or as damages, within the discre- tion of the jury or without. Cases of this nature always involve nonpecuniary elements of injury, and have already been suflQciently explained. The jury have no such discretion when only actual pe- cuniary damage is involved. Property Destroyed, Taken, Converted, and the Like. Where property is destroyed or converted, the title is, or may be regarded as, out of the original owner. The right to recover a pe- cuniary equivalent vests absolutely, at once; and, as we have seen, "" compensation for the loss of future use of the property cannot be recovered, but only compensation for the detention of money, i. e. interest. Therefore, in actions of trover, trespass, replevin, and the like, interest is recoverable on the value of the property from the time of the taking.^" The right to interest as a part of the damages, 7 Western & A. R. Co, v. Young, 81 Ga. 397, 7 S. E. 912; Pittsburgh, S. Ry. Co. V. Taylor, 104 Pa. St. 30G. 68 Ratteree v. Chapman, 4 S. E. G84, 79 Ga. 574. 5 9 Ante, p. 2. «o Ekins v. East India Co.. 1 P. Wms. 395; Hamer v. Hathaway, 33 Cal. 117; Clark v. Whitaker, 19 Conn. 320; Tuller v. Carter, 59 Ga. 395; Sanders V. Vance, 7 T. B. Mon. 209; New Orleans Draining Co. v. De Lizardi. 2 La. Ann. 281; Hayden v. Bartlett, 35 Me. 203; Moody v. Whitney, 38 Me. 174; Robinson v. Barrows, 48 Me. ISG; Hepburn v. Sewell, 5 Har. & J. 211; Thomas v. Sternheimer, 29 Md. 208; Maury v. Coyle, 34 Md. 235; Kennedy v. Whitwell, 4 Pick. 400; NoguH v. Simpson, 99 Mass. .'{88; Winclioster v. Craig, 33 Mich. 205; Chauncy v. Yeaton, 1 N. II. 151; Hyde v. Stone. 7 Wend. 354; IG-t INTEREST. (Ch. 5- in actions of trover and trespass de bonis asportatis, was given, first, in England, by the statute of 3 & 4 Wm. IV. By that statute, the allowance was discretionary with the jury. Early cases in this- country followed the English rule, ®^ but gradually the principle that Baker v. Wheeler, 8 Wend. 505; Stevens v. Low, 2 Hill, 132; Andrews v, Durant, 18 N. Y. 496; McDonald v. North, 47 Barb. 530; Pease v. Smith, 5- Lans. 519; Wehle v. Butler, 43 How. Prac. 5; Commercial Bank v. Jones, 18^ Tex. Sll; Gillies v. Wofford, 2G Tex. 76; Willis v. McNott, 75 Tex. 6D, 12 S. W. 478; Rhemke v. Clinton, 2 Utah, 230; Grant v. King, 14 Vt. 367; Thrall V. Lathrop, 30 Vt. 307; Shepherd v. McQuilkin, 2 W. Va. 90; Bigelow v. Doo- littlo, 36 Wis. 115. Contra, Palmer v. :Murray, 8 Mont. 312, 21 Pac. 126. In Stephens v. Koonce, 103 N. C. 266, 9 S. E. 315, the allowance was held dis- cretionary with the jury. Where demand is necessary to establish the con- version, interest is recoverable only from demand. Garrard v. Dawson, 49- Ga. 434; Northern Transp. Co.* v. Sellick, 52 111. 249; Johnson v. Sumner, 1 Mete. (Mass.) 172; Schwerin v. McKie, 51 N. Y. ISO. In an action against a common carrier for the loss of goods, interest is allowed on their value. Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 566; Woodward v. Railroad Co., 1 Biss. 403, Fed. Cas. No. 18,006; Fraloff v. Railroad Co., 10 Blatchf. 16, Fed. Cas. No. 5,025; The Gold Hunter, 1 Blatchf. & H. 300, Fed. Cas. No. 5,513; Parrott v. Railroad Co., 47 Conn. 575; Mote v. Railroad Co., 27 Iowa, 22; Robinson v. Transportation Co., 45 Iowa, 470; Cowley v. David- son, 13 Minn. 92 (Gil. 80); McCormick v. Railroad Co., 49 N. Y. 303; Duryea V. Mayor, etc., of New York, 26 Hun, 120; Erie Ry. Co. v. Lockwood, 28 Ohio St. 358; Newell v. Smith, 49 Vt. 2.55; Whitney v. Railway Co., 27 Wis. 327. Contra, De Steiger v. Railroad Co., 73 Mo. 33; Fowler v. Davenport, 21 Tex. 626. "In an action for destroying or carrying off property, the plaintiff, recov- ers interest from the time of the wrongful act." Sedg. Dam. § 316; Fail's Adm'r v. Presley's Adm'r, 50 Ala. 342; Oviatt v. Pond, 29 Conn. 479; Brown v. Railroad Co., 36 Ga. 377; Bradley v, Geiselman, 22 111. 494; John- son V. Railway Co., 77 Iowa, 666, 42 N. W. 512; Buffalo & H. Turnpike Co. V. City of Buffalo, 58 N. Y. 639; Mairs v. Association, 89 N. Y. 498; City of Allegheny v. Campbell, 107 Pa. St. 530; Texas & P. R. Co. v. Tankersley, 6;V Tex. 57. Contra, Green v. Garcia, 3 La. Ann. 702, where interest was refused! because the demand was unliquidated. In actions of replevin, where the prevailing party recovers, not the property Itself, but its value, interest is allowed from the time the property was taken Yelton v. Slinkard, 85 Ind. 190; Blackie v. Cooney, 8 Nev. 41; Brizee v, Maybee, 21 Wend. 144; McDonald v. Scaife, 11 Pa. St. 381; Bigelow v. Doolit- tle, 36 Wis. 115. Damages for detention and interest cannot both be recovered, McCarty v. Quimby, 12 Kan, 494. ci Beals v. Guernsey, 8 Johns. 446; Hyde v. Stone, 7 Wend. 354; Bissell v. Hopkins, 4 Cow. 53; Rawloy v. Gibbs, 14 Johns. 385. §§ 66-67) PECUNIARY .LOSSES UMLiyUIDATED DEMANDS. IGO the right to interest was discretionary with the jury was aban- doned, and it is now generally held that the plaintiff is entitled to interest on the value of property converted or lost to the owner by a trespass as a matter of law.®^ The interest is as necessary a part of a complete indemnity in such cases as the value itself, and is no more in the discretion of the jury than the value.®^ Same — Destruction by Negligence. It is difficult to perceive any sound distinction, in this regard, between cases where property is destroyed by a misfeasance, and where it is destroyed by negligence,^* Some courts, in fact, allow interest in cases of negligence as a matter of law, ®^ while others leave it to the discretion of the jury.^* Property Losses in General. Where a tort causes a property loss, but is not such as to deprive the owner of title to any specific thing, as where the value of prop- erty is diminished by an injury wrongfully inflicted, the jury may, in their discretion, give interest on the amount by which the value is diminished from the time of the injury.''^ Only specific damages, 2 Wilson V. City of Troy, 135 N. Y. 9G, 32 N. E. 44. 6 3 Andrews v. Durant, 18 N. Y. 496; McCormick v. Railroad Co., 49 N. Y. S03-315; Buffalo & H. Turnpike Co. v. City of Buffalo, 58 N. Y. (J39; Parrott V. Ice Co., 46 N. Y. 361, 369. 64 In Parrott v. Ice Co., 46 N. Y. 361, 369, it was said: "In cases of trover, replevin, and trespass, interest on the value of property unlawfully taken or converted is allowed by way of damages, for the purpose of complete indem- nity of the party injured; and it is difficult to see why, on the same principle, interest on the value of property lost or destroyed by the wrongful or negli- gent act- of another may not be included in the damages." 65 Alabama G. S. R. Co. v. McAlpine, 75 Ala. 113; Arthur v. Railway Co., €1 Iowa, 648, 17 N. W. 24; Varco v. Railway Co., 30 Minn. 18, 13 N. W. 921; Ciiapman v. Railway Co., 26 Wis. 295; Dean v. Railway Co., 43 Wis. 305. 66 Western & A. R. Co. v. McCauley, 68 Ga. 818; Chicago & N. W. Ry. Co. V. Shultz, 55 111. 421; Fraxcr v. Carpet Co., 141 Mass. 126, 4 N. E. 620; Home Ins. Co. V. Pennsylvania R. Co., 11 Hun, 182. In Lucas v. Wattles. 49 .Mich. 380, 13 N. W. 782, it was said to be discretionary with the jury to allow inter- est from the date of the writ. In Houston & T. C. R. Co. v. Muldrow, 51 Te.\. 233, the right to interest was denied absolutely; and in Toledo, P. & W. Ry- Co. V. Johnston, 74 111. S3, it was denied in tlie absence of a^'gravaling circnin- stances. • T Thomas v. Weed, 14 Johns. 255; AN'aliatli v. Ucdiieid, IS .N. V. 157, 4(i2; IGG INTEREST. (Ch. 5 computable on direct or indirect evidence of actual value, can be thus increased.^® It is sometimes said that the jury cannot award interest eo nomine in ordinary cases of torts, but that they may con- sider the lapse of time since the injury in estimating the damages."* Thus, in a Pennsylvania case, ^° where interest was claimed on the value of property negligently destroyed, it was said that interest, as such, could not be recovered in actions of tort, or in actions of any kind where the damages were not, in their nature, capable of exact computation, both as to time and amount, but that the jury might allow additional damages, in the nature of interest, for lapse of time. "It is never interest as such, nor as a matter of right, but as compensation for the delay, of which the rate of interest affords fair legal measure." So, in a Massachusetts case, ''^ where the action was also for the negligent destruction of property, the court, after noting the fact that interest is allowed as of right in trover and other like actions, held that, in an action on the case for the negligent de- struction of property, the jury, in their discretion, and as incident to determining the amount of the original loss, might consider the delay caused by the defendant, and that interest on the original dam- ages was a fair measure of the damages caused by the delay. In Mairs v. Association, 89 N. Y. 49S; Duryee v. Mayor, etc., of Xew Yorli, 90 N. Y. 477, 498; Home Ins. Co. v. Pennsylvania R. Co.. 11 Hun, 182; Moore V. Railroad Co., 126 N. Y. 671, 27 N. E. 791; Pennsylvania S. V. R. Co. v. Ziemer, 124 Pa. St. 500, 17 Atl. 187; Black v. Railroad Co., 45 Barb. 40; Green- field Sav. Bank v. Simons, 133 Mass. 415; Milbank v. Dennistown, 1 Bosw. 246. Interest may be recovered on money spent in repairing property injured (^yllitehall Transp. Co. v. New Jersey Steam Boat Co., 51 N. Y. 369), or in repurchasing property wrongfully taken and sold (Dodson v. Cooper, 37 Kan. 346, 15 Pac. 200; Mclnroy v. Dyer, 47 Pa. St. 118). "We hold that, in this state, whenever one party has a legal right to recover of another a debt or damages as due at a particular time, he is also entitled to interest as an in- cident from the maturity of the demand until the trial." Stoudenmeier v. Williamson, 29 Ala. 558, 569. Interest has been allowed in an action for death of husband (Central R. Co. v. Sears, 66 Ga. 499); and for trespass on land (Dur- j-ee V. Mayor, etc., of New York, 96 N. Y. 477; Lawrence R. Co. v. Cobb, 35 Ohio St. 94); and for diverting water (Bare v. Hoffman, 79 Pa. St. 71). 6 8 Western & A. R. Co. v. Young, 81 Ga. 397, 7 S. E. 912. 6 9 Clement v. Spear, 56 Vt. 401. 7 Richards v. Gas Co., L30 Pa. St. 37-40, IS Atl. 600. 71 Frazer v. Carpet Co., 141 Mass. 126, 4 N. E. 620. § 68) PECUNIARY LOSSES UNLIQUIDATED DEMANDS. 167 the supreme court of the United States it was said: ^^ "Interest is not allowable as a matter of law, except in cases of contract or the unlawful detention of money. In cases of tort, its allowance as damages rests in the discretion of the jury." 68. CONDEMNATION PROCEEDINGS — Where property is taken under the right of eminent domain, inter- est is recoverable on the amount of the a"ward from the time of the taking. The taking of property under the right of eminent domain is analogous to a sale. If not agreed on, the damages are assessed as of the time of the taking, and interest on the amount ascertained is allowed as compensation for the detention of the money from that time." The reason for the rule was well stated in a Peunsylvauia case:^* "If the plaintiff was entitled to compensation by reason of her property being taken at a particular time, she was certainly entitled to interest as compensation for its wrongful detention. The company, as well as the plaintiff, could have had the damages as- sessed as soon as they pleased after locating the road, and it was no reason for withholding compensation that its amount was unknown or unascertained. As the company was the party to pay, it ought to have had the amount ascertained, and paid it. Failing to do so, it has no right to complain at having to meet an incident of the delay in the shape of interest." T 2 Lincoln v. Claflin. 7 Wall. 132, 139. 7 3 Hayes v. Railway Co., G4 Iowa, 753, 19 N. W. 245; Hartshorn v. Railroad Co., 52 Iowa, 613, 3 N. W. 648; Cohen v. Railroad Co., 34 Kan. 158. 8 Pac. 138; Bangor & P. R. Co. v. McComb, 60 Me. 290; Reed v. Railroad Co., 105 Mass. 303; Kidder v. Oxford, 116 Mass. 165; Chandler v. Aqueduct Corp., 125 Mass. 544; Sioux City, etc., R. Co. v. Brown, 13 Neb. 317, 14 N. W. 407; Nortli Hudson County R. Co. v. Booraem, 28 N. J. Eq. 450; Atlantic & G. W. Ry. Co. V. Koblentz, 21 Ohio St. 334; Alloway v. City of Nashville, 88 Tonn. 510, 13 S. W. 123; Vette v. U. S., 76 Wis. 278, 45 N. W. 119; Old Colony R. Co. V. Miller. 125 Mass. 1; Parks v. City of Boston, 15 Pick. 198. 74 Delaware, L. & W. R. Co. v. Burson, 61 Pa. St. 369, 380. 168 INTEREST. (Ch. 5 SAME— DEFENDANT NOT RESPONSIBLE FOR DELAY. 69. Where the defendant is not responsible for the delay in making compensation, he is not chargeable -with interest. Where defendant is in no way responsible for the dehiy, he is laot liable for interest. He may be responsible for the delay, either because his original fault necessarily involves a delay, as where it causes an unliquidated loss which must be submitted to a jury, or because he simply refuses or fails to pay when it is his duty to pay. Where defendant is not responsible for the delay, the loss of in- terest is not a proximate consequence of his fault, and therefore cannot be recovered. For example, if defendant tenders the amount due, and it is refused, he is not liable for interest after the date of the tender. The loss of it is the debtor's own fault.* A debtor is not chargeable with interest on the debt by a delay in its payment, caused by his being summoned as trustee of the creditor in a trus- tee process.f Here the act of the law intervened and caused the loss. INTEREST ON OVERDUE PAPER— CONTRACT AND STATUTE RATE. 70. Where a contract expressly provides for interest after maturity, it -will be allo^sved at the stipulated rate, but w^here no express provision is made it is held: (a) In some jurisdictions, that interest can be allowed only as damages, and at the statutory rate. (b) In other jurisdictions, that interest accrues by the terms of the contract, and at the stipulated rate. The rate at which interest shall be allowed, after maturity of a contract which expressly provides for interest, depends upon the construction of the contract, and raises a question upon which there is great conflict of authority. If the contract expressly provides for ♦.Thompson v. Iliiilroad, 5S N. H. 524. t Bickford v. Rich. 105 Mass. 340. § 70) INTEREST ON OVERDUE PAPER. 169 interest after maturity, if default is then made, it is recoverable, not as damages for the detention of the money, but under the contract, as part of the debt; and, of course, the stipulated rate governs. Upon this point the authorities are agreed. But where the contract merely provides for interest, and is silent as to interest after ma- turity, in many jurisdictions it is held that the contract is broken by nonpayment at maturity, and that only a claim for damages re- mains, and that, therefore, interest is allowed as damages, and at the statutory rate.'^^ In other jurisdictions, however, it is held that there is an implied contract to pay the agreed rate after maturity, and that such interest is given under the contract, and not as dam- ages.'^ The objection to the doctrine of an implied agreement to 7 5 Cook V. Fowler, L, R. 7 H. L. 27; Goodcliap v. Roberts, 14 Ch. Div. 49 210; Stoughton v. Lynch, 2 Johns. Ch. 209; Healy v. Gilman, 1 Bosw. 235;- Langdon v. Town of Castleton, 30 Vt. 2S5; Davis v. Smith, 48 Vt. 52; Emer- son V. Atwater, 12 Mich. 314; Carpenter v. Welch, 40 Vt. 251; Schieffelin v. Stewart, 1 Johns. Ch, 620; Backus v. Minor, 3 Cal, 231, 9 5 Denniston v, Imbrie, 3 Wash, C. C, 396, Fed. Cas. No. 3,802; Von Hemert T. Porter, 11 Mete. (Mass.) 210. 9 Gelpcke V. City of Dubuque, 1 Wall. 175; Aurora City v. West, 7 Wall. S2;. Clark V. Iowa City, 20 Wall. 583; Town of Genoa v. Woodruff, 92 U. S. 502; Amy V. City of Dubuque, 98 U. S. 470; Koshkonong v. Burton, 104 U. S, 668; Paua v. Bowler, 107 U. S, 529, 2 Sup, Ct. 704; Rich v. Town of Seneca Falls, liy Blatchf. 558, 8 Fed, 852; Fauntleroy v. Hannibal, 5 Dill. 219, Fed. Cas. No. 4,092; Hollingsworth v. City of Detroit, 3 McLean, 472, Fed. Cas. No. 6,613; Huey v. Macon Co., 35 Fed. 481; Harper v. Ely, 70 111. .■>S1; Hum- phreys v. Morton, 100 111. 592; City of Jeffersonville v. Patterson, 26 lud. 15; Forstall v. Association, 34 La. Ann. 770; Com, of Virginia v. State of Maryland, 32 Md. 501; Welsh v. Railroad Co., 25 Minn. 314; Connecticut Mut. Life Ins, Co. v. Cleveland, C. & C. R. Co., 41 Barb. 9; Burroughs v. Commissioners, 65 N. C. 234; McLeudon v. Commissioners, 71 N. C. 38; Dunlap V. Wiseman, 2 Disn. 398; North Pennsylvania R. Co. v. .'\dams. 54 Pa. St. 94; Langston v. Railroad Co., 2 S, C, 248; Mayor, etc, of Nashville V. First Nat, Bank, 1 Baxt. 402; City of San Antonio v. Lane, 32 Tex. 405; Aronts v. Com., IS Grat. 7M, 776; (iibert v. Railroad Co., 33 Grat. 586. 59S; Mills V. Town of Jefferson, 20 Wis. .54. Couirn, Rose v. City of Bridgopoil, 17 Conn. 213; Force v. City of Elizabeth, 28 N. J. E(i. 1(«. 1~4 INTKREST. (Ch. 5 but once only. These are the reasons why they are excepted from the operation of the general rule."^ The same reasons apply when- ever separate interest notes are given. The allowance of interest in this class of cases may be sustained on another principle, which we are about to explain. Interest secured by coupons is a debt, on which interest may be given as damages. As punishment for a fraudulent breach of trust, or other gross or willful wrong, the offender is often charged with compound inter- est.»« Compound interest is never allowed by way of damages.®' But where, by the terms of a contract, interest is due at a fixed day, it is a debt; and, if not paid when due, interest thereon may be recovered as damages. ^""^ This secondary interest does not, in turn, bear in- 97 Bowman v. Neely, 151 111. 37, 37 N. E. S40. 8 8 Ackerman v. Eiiiott, 4 Barb. 626. Where a trustee uses trust funds for his own benefit, he is liable for compound interest. Merrifield v. Longmire, G6 Cal. ISO, 4 Pac. 1176; State v. Ho worth, 48 Conn. 207; Jennison v. Hap- good, 10 Pick. 77; Schieffeliu v. Stewart, 1 Johns. Ch. 620. 9 9 Lewis V. Small, 75 Me. 323. 100 Calhoun v. Marshall, 61 Ga. 275; Tillman v. Morton, 65 Ga. 386; Mann v. Cross, 9 Iowa, 327; Hershey v. Hershey, 18 Iowa, 24; Preston v. Walker, 26 Iowa, 205; Burrows v. Stryker, 47 Iowa, 477; Talliaferro's Exrs V. King's Adm'r, 9 Dana, 331; Peirce v. Rowe, 1 N. H. 179; Bledsoe v. Nixon, 69 N. C. 89; Ankelel v. Converse, 17 Ohio St. 11; Cramer v. Lepper, 26 Ohio St. 59; Wheaton v. Pike, 9 R. I. 132; Lanahan v. Ward, 10 R. I. 299; Henderson v. Laurens, 2 Desaus. Eq. 170; Singleton v. Lewis, 2 Hill ^S. C.) 408; Gibbs v. Chisolm, 2 Nott & McC. 38; Doig v. Barkley, 3 Rich. Law, 125; O'Neall v. Bookman, 9 Rich. Law, 80; House v. Female Col- lege, 7 Heisk. 128; Lewis v. Paschal's Adm'r, 37 Tex. 315; Catlin v. Ly- man, 16 Vt. 44 (contra, Braughton v. Mitchell, 64 Ala. 210); Montgomery v. Tutt, 11 Cal. 307; Doe v. Vallejo, 29 Cal. 385; Denver Brick & Manuf'g Co. V. McAllister, 6 Colo. 261; Rose v. City of Bridgeport, 17 Conn. 243; Leonard V. Villars. 23 111. 377; Niles v. Board, 8 Blackf. 158; Doe v. Warren, 7 Me. 48; Banks v. McClellan, 24 Md. 62 (contra, Fitzhugh v. McPherson, 3 Gill, 408); Hastings v. Wiswall, 8 Mass. 455; Henry v. Flagg, 13 Mete. (Mass.) 64; Van Husan v. Kanouse, 13 Mich. 303; Dyar v. Slingerland, 24 Minn. 267; Corrigan v. Delaware Falls Co., 5 N. J. Eq. 232, 245; Mowry v. Bishop, 5 Paige, 98; Young v. Hill, 67 N. Y. 162 (contra, Howard v. Farley, 3 Rob. [N. Y.] 599); Sparks v. Garrigues, 1 Bin. (Pa.) 152; Stokely v. Thomp- son, 34 Pa. St. 210; Pindall v. Bank of Marietta, 10 Leigh, 481; Genin v. Ingersoll, 11 W. Va. 549. Interest may be recovered on the arrears of an .§ 71) COMPOUND INTEREST. 175 terest. For example, to ascertain the amount due on a matured ob- ligation stipulating for the payment of interest at stated times, simple interest should be calculated from maturity on the principal sum plus the unpaid interest contracted for. Interest cannot be recovered on the amount due as damages for the nonpayment of the contractual interest.^"^ So, in an action on a note stipulating for interest after maturity, and providing that, if the interest were not paid annually, it should become principal, and bear interest at the same rate, it was held ^^'^ that the unpaid interest due at maturity of the note, and each successive annual installment of interest from that date, bore interest, — not, however, so as to compound the in- terest on the amounts in default. Simple interest only was allowed on the arrears of contractual interest, the court holding that only the interest on the principal became principal, and bore interest. annuity. Elliott v. Beeson, 1 Har. (Del.) 106; Houston v. Jamison's Adm'r, 4 Har. (Del.) 330. Contra, Isenhart v. Brown, 2 Edw. 341; Adams v. Adams, 10 Leigh, 527. Even though it is in the form of interest on a fixed sum. Knettle v. Grouse, 6 Watts, 123; Addams v. Heffernan, 9 Watts, 529. 101 Wheaton v. Pike, 9 R. I. 132; Bledsoe v. Nixon, 69 N. 0. 89. 10 3 Vaughan v. Kennan. 38 Ark, 114. 176 VALUE. (Ch. 6 CHAPTER VI. VALUE. 72. Definition. 73. How Estimated. 74r-7o. Market Value, 76. Value Peculiar to Owner. 77-78. Pretium Affectionis. 79. Time and Place of Assessment 80. Highest Intermediate Value. 81-82. Medium of Paymeflt— Legal Tenders. DEFINITION. 72. Value is the estimated or appraised worth of a thing, calculated in money, — its pecuniary equivalent. In speaking of the principles upon which compensation is award- ed, we have had frequent occasion to refer to the "value" of the thing in question as furnishing the measure of recovery. In this chapter it is proposed to discuss the methods of ascertaining such value, and the elements that enter into the calculation. The value of a thing is simply its pecuniary equivalent. Compen- satory damages are intended as a pecuniary equivalent for the thing lost by defendant's wrong, and it follows that the assessment of compensatory damages, in almost every case, resolves itself primarily into an inquiry as to value. Where property is lost, converted, or destroyed, the owner is compensated when he receives its full value in money. "WTiere a contract is broken, the value of the thing con- tracted for is the measure of compensation. Where a tort results in personal injury, the value of the time and labor lost, the medical attendance, etc., is an element, though not the onlj^ one, of compen- sation. HOW ESTIMATED. 73. The value of property must be estimated -with refer- ence to the most valuable present or future use for which it is adapted. § 73) HOW ESTIMATED. 177 It is obvious that tlie value of a thing does not depend upon the use to which it is put by tlie owner. Property may be stored in safe-deposit vaults and not used at all; but it is none the less val- uable. It is the most advantageous possible use to which property may be put, and not the actual use to which it is put, that deter- mines its value. Thus, it was held, in an action for use and occupa- tion of a building adapted for use as a machine shop, that its rental value as a machine shop could be recovered, though defendant had used it only for storage.^ And in estimating the value of a horse it was said: "Perhaps he would not have been worth anything as a fast trotter, or as a gentleman's carriage horse, because not adapted to the work; but that would not depreciate his value as a cart horse, for which purpose he was to be used." ^ So, also, in estimating the value of a cow, her exceptional value for breeding purposes, because of her thoroughbred blood, must be considered, and it would be error to limit the inquiry to her value for beef or milking purposes.' Any possible future use must be considered in fixing the present value.* The possibility must not be merely speculative or conjec- tural, but must be reasonably certain, and such as to affect the sell- ing price in the market.^ "A man may have property well situated for a certain purpose, — such as a mill site, or as a farm, or as a residence or store, or as a mine, — and he may refuse to use it for any one of those purposes to which it is best suited. Still he may sell it in open market to a purchaser whose opinion of its present market value is based upon the future use to which it may be put. So he may claim, in any proceeding to condemn that land, the mar- ket value thereof, as that value is fixed by the public for those pur- poses. The difference between such a valuation and speculation seems clear. Land never used by its owner for any purpose is sought to be condemned. The fertility of the soil is one of the char- acteristics or properties of that land. It has never produced any 1 Horton v. Coolcy, 135 Mass. 5S'J. 2 Farrel v. Colwell, 30 N. J. Law. 123, 127. 3 Central Branch U. P. R. Co. v. N'cbols, 21 Kan. 212. * Reed v. Ohio & M. Ky. Co., 12G 111. 48, 17 N. E. 807; Ellington v. Boniictt. 59 Ga. 280; Shenango & A. K. Co. v. Braliam, 79 Pa. St. 447; iMoure v. Uall, 3 Q. B. Div. 178; Holland v. Worley, 20 Ch. Div. 578. 8 Sedj;. Dam. § 253. LAW DAM. — 12 • 178 VALUE. (Ch. f> returns; but there is no attempt to prove future productions. They are specuhitivc. The fertility of the soil is a fact, — a fact which in some cases may add great value to the property, and may be one of the constituents of the market price," ® It was accordingly held ^ that, in proceedings for the condemnation of a mining claim for rail- road purposes, the owner may prove the value of the land for town- lot purposes, whether built upon or not, in addition to proving its value as a prospect; but his recovery is confined to its value foi one or the other purpose. Stated generally, the price to be paid for land taken in condemnation proceedings is its value for any pur- pose for which it is shown by the evidence to be available, and not simply its value as land as it is at the time.* MARKET VALUE. 74. The market value is the price or rate at which a thing is sold. 75. The market value of an article is merely evidence of its real value, and is not conclusive. The market value is the price or rate at which a thing is sold.® To make a market, there must be buying and selling. "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 instance, under a false rumor, which, if true, would augment its value, may suspend their sales, or put a price upon it, not according to its value in the actual state of the market, 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 shall prove to be true. In such case, it is clear that the asking price is not the worth of the 6 Montana R. Co. v. Warren, 6 Mont. 275, 12 Pac. &41. 7 Id. 8 Reed v. Ohio & M. Ry. Co., 126 111. 48, 17 N. E. 807; Mississippi & R. R. Boom Co. V. Patterson, 08 U. S. 403, 407. 9 Blydenburgh v. Welsh, Baldw. 331, 340, Fed. Cas. No. 1,583. §§ 74-75) MARKET VALUE. 179 thing on the given day, but what it is supposed it will be worth at a future day, if the contingency shall happen which is to give it this additional value. To take such a price as 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 performance." ^° The mar- ket value is the fair cash value if sold in the market for cash, and not on time." A single sale will not establish a market value.^* Value in Nearest Market. Where there is no market for the article at the place where its value is to be estimated, the value at the nearest market is taken as a basis, and an allowance is made for the cost of transportation, the object being to ascertain the real value at the place of compen- sation.^^ Value of Property in Course of Manufacture. The value of articles partially manufactured is the value they would have when completed, less the cost of completing them.^* 10 Id. 11 Brown v. Calumet R. Ry. Co., 125 111. 600, IS N. E. 2S3. 12 Graham v. Maitland, 1 Sweeny (N. Y.) 149. 13 Bullard v. Stone. G7 Cal. 477, 8 Pac. 17; Sellar v. Clelland, 2 Colo. 532; Furlong v. PoUeys, 30 Me. 491; Berry v. Dwinel, 44 Me. 255; Rice v. Manley, GG N. Y. 82; Wemple v. Stewart, 22 Barb. 154; Grand Tower Min., Manuf'g & Transp. Co. v. Phillips, 23 Wall. 471; O'Hanlan v. Railway Co., 6 Best & S. 484, 34 Law J. (N; S.) Q. B. 154. If the nearest market is resorted to by per- sons from the place where the value is to be estimated as a place of purchase, the transportation charges must be added. See cases cited supra. If such mar- ket is a point of sale,— that is, if the goods are worth more there than at the place where their value is to be estimated,— the cost of transportation must be de- ducted. Harris v. Panama R. Co., 58 N. Y. 6G0; Cockburn v. Ashland Lum- ber Co., 54 Wis. G19, 12 N. W. 49. See. also. Glaspy v. Cabot, 135 Mass. 435. Cf. .lohnson v. Allen. 78 Ala. 387; McDonald v. Uuaka Timber Co., 88 Teun, 38, 12 S. W. 420; Hendrie v. Xeelon, 12 Out. App. 41; Saunders v. Clark, 100 Mass. 331. It is presumed, prima facie, that goods are worth as much at the point of destination as at the place of shipment. Rome R. Co. v. Sloan, 39 Ga. G3G; South & N. A. R. Co. v. Wood, 72 Ala. 451; Echols v. Louisville & N. R. Co., 90 Ala. 3GG, 7 South. G55; Richmond v. Brousou, 5 Deuio, 55. 14 Emmons v. Westlield Bank. 97 Mass. 230. ISO VALUE. (Ch. & Value of Property for Which There is No Market Value. A market value, as signifying a price established by sales in the- ordinary course of business, is not necessary to a judicial valuation. Property is often subject to such valuation for which no proof of value in tlio market could be given, because it is not bought and sold in the ordinary course of trade, and is not known in the market. Itt such cases the real value is to be ascertained from such elements- of value as are attainable.^'* "The market price, in the ordinary sense, is generally, but not always, the test of value. For such a tort as a conversion of goods, a plaintiff may be entitled to large damages, though' unable to sell the goods at any price. He may be greatly injured by the loss of goods which he cannot sell, but which would be productive of great benefit, and therefore would be of great value, without a sale." ^® The promissory note of an in- dividual may have no market value. But proof of the solvency of the maker, or that the note is secured by collateral, in whole or in part, furnishes a basis for a fair valuation. Market Price is Merely Evidence of Value. The market price of an article is only a means of arriving at its- real value.^'' It is not itself the value of the article, but it is evi- dence of the value. The law adopts it as a natural inference of fact, but not as a conclusive legal presumption.^* Where an article is destroyed which can be readily replaced by purchase in the mar- ket, so as to put the owner in as good a position as he was before, the market price and real value will be the same. In such cases, the market value is said to be the measure of damages, but per- 16 Murray v. Stanton, UU Mass. 345. "If at any particular time tliere be no market demand for an article, it is not on that account of no value." Trout v. Kennedy, 47 Pa. St. 387, 393. In Erie & P. R. Co. v. Douthet, 88 Pa. St. 243,. the value of a pass for life for an entire family over a railroad was estimated. But see Brown v. St. Paul, M. & M. R. Co., 30 Minn. 236, 31 N. W. 941. 10 Hovey v. Grant. 52 N. H. 509, 581. 17 Sedg. Dam. § 243. "What a thing will bring in the market at a given time is, perhaps, the measure of its value then, but not the only one." Trout V. Kennedy, 47 Pa. St. 387. 18 Kountz V. Kirkpatrick, 72 Pa. St. 370. Defendant cannot show that the ai-ticle was intrinsically of no value, and that the market value was due to iv misapprehension on the part of the public. Smith v. Griffith, 3 Hill, 333. ^§ 74-75) MARKET VALUE. 181 haps it would be more accurate to say that the value of the article was the measure. jS'tocA's, Bonds, and Other Securities. The value of securities for the payment of money is, prima facie, the amount secured.^ ^ Where the securities have a market value, as in the case of stocks and bonds, that value ordinarily controls.^" Where there is no market value, the intrinsic value may be shown.'^^ The prima facie value of bills and notes may be reduced by showing invalidity, payment, or insolvency of the maker; ^^ but the maker cannot show his own insolvency.-^ 19 BILLS AND NOTES. Evans v. Kymer, 1 Barn. & Adol. 528; St. John V. O'Connel, 7 Port. (Ala.) 4GG; Ray v. Light, 34 Ark. 421; American Exp. Co. V. Parsons, 44 111. 312; Hersey v. Walsh, 3S Minn. 521, 38 N. W. G13; .Menkens v, Menkens, 23 Mo. 252; Bredow v. Mutual Sav. Inst., 28 Mo. 181; Decker v. Mathews, 12 N, Y. 313; Metropolitan El. R. Co. v. Kneelaud, 12u N. y. 134, 24 N. E. 381; Ramsey v. Hurley, 72 Tex. 194, 12 S. W. 56; Rob- bins V. Packard, 31 Vt. 570. See, also, Barron v. Mullin, 21 Minn. 374. The value of a savings bank book is, prima facie, the amount of deposits. Wegner v. Second Ward Sav. Bank, 7G Wis. 242, 44 N. W. 109G. Of an ac- <;ount, its face value. Sadler v. Bean, 37 Iowa. 439. 20 BONDS. Haj-es v. Massachusetts Mut. Life Ins. Co., 125 111, G2G, 18 N. E. 322; First Nat. Bank of Monmouth v. Strang, 28 111. App. 325; Cal- lanan v. Brown, 31 Iowa, 333; Grifhth v. Burden, 35 Iowa, 138; Roberts v. Berdell, 61 Barb. 37; Wintermute v. Cooke, 73 N. Y. 107; Simpkius v. Low, 54 N. Y. 179. STOCKS. Deck's Adm.'r v. Feld, 38 Mo. App. 674; Ormsby v. Mining Co., 5G N. Y. 623; Connor v. Hillier 11 Rich. 193. And see Delany's Adm'rs v. Hill, 1 Pittsb. R. 28. 21 Itedding v. Godwin, 44 Minn. 3.j5, 46 N. W. 563; Dock's Adm'r v. Feld, 38 Mo. App. 674; Huse & Loomis Ice & Transp. Co. v. Heinze, 102 Mo. 245, 14 S. W. 756. 2 2 Zoigler v. Wells, Fargo & Co., 23 Cal. 179; American Exp. Co. v. I':ir- sons. 44 111. 312; Latham v. Brown, 16 Iowa, 118; O'Donogliue v. Carhy. 22 Mo. 393; Potter v. Merchants' Bank, 28 N. Y. 641; Cothran v. Hanover Nat. Bank, 40 N. Y. Super. Ct. 401. An immaterial alteration will not re- duce the damages. It must be such as will vitiate the instrument. Booth v. Powers, 56 N. Y. 22. See, also. Rose v. Lewis, 10 Mich. 4.S3. 23 Stephenson v. Thayer, 63 Me. 143; Outhouse v. Outhou.«e, 13 Iluii. l.'JO; Robbins v. Packard, 31 Vt. 570; Kalckhoff v. Zoehrlaut, 4.3 Wis. ;{7:5; Texas W. Ry. Co. V. Gentry, 69 Tex. 625, 8 S. W. 98; Memphis & L. R. U. Co. v. Walker, 2 Head, 467. 182 VALUE. (Ch. G Good Will oj Established Business. The value of the good will of an established business may be es- timated on a basis of past profits.-* A depression may be shown to reduce the estimate.'^'' In an English case, ^^ it was said that the good will of premises should be valued at such a sum as persons who are in the habit of estimating such things would fix as the value of the good will of the premises under ordinary circumstances. The improved value of neighboring property may be considered. VALUE PECULIAR TO OWNER. 76. Where property has a peculiar value to the o-wner, such as it has to no other person, or -where it can- not be exactly replaced by other goods of like , kind, the actual value to the o-wrner, and not the market value, is the measure of compensation. This rule has frequent application where compensation is claimed for the loss of household goods and furniture, wearing apparel, and the like. In such a case it was said: "He could hardly have sup- plied himself in the market with goods in the same condition and so exactly suited to his purposes as were those of which he had been deprived. As compensation for tlie actual loss is the fundamental principle upon which this measure of damages rests, it would seem that the value of such goods to their owner would form the proper rule on which he should recover; not any fanciful price that he might for special reasons place upon them, nor, on the other hand, the amount for which he could sell them to others, but the actual loss in money he would sustain by being deprived of articles so specially adapted to the use of himself and his family." ^^ In a similar case it was said: "The clothing was made to fit plaintiff, and had been partly worn. It would sell for but little, if put into the market to be sold for secondhand clothing; and it would be a wholly inadequate and unjust rule of compensation to give plaintiff, 24 Ante, 74. 2 5 Chapman v. Ivirby, 49 111. 211, 219. 2 8 Llewellyn v. Rutherford, L. K. 10 C. P. 456. 2T International & G. N. Ry. Co. v. Nicholson, Gl Tex. 550, 553. §§ 77-78) PRETIUM AFFECTIONIS. 183 in such a case, the value of the clothing thus ascertained. The rule must be the value of the clothing for use by the plaintiff. No other rule would give him a compensation for his damages. This rule must be adopted because such clothing cannot be said to have a mar- ket price, and it would not sell for what it was really worth." ^' In such cases, the value is to be properly fixed by considerations of cost and actual worth at the time of the loss, without reference to what they could be sold for in any particular market.^* The rule applies where the property destroyed cannot be replaced. Thus the measure of damages for the destruction of a family portrait is ''the actual value to him who owns it, taking into account its cost, and the practicability and expense of replacing it, and such other con- siderations as in the particular case affect its value to the owner." ^^ Family portraits or heirlooms have a peculiar value to the owner, and may also be difficult or impossible to replace. The recovery of their real value to the owner may be sustained under either branch of the rule. Such articles have no market price, and their value must be determined on other considerations,^^ PRETIUM AFFECTIONIS. 77. A pretium affectionis is an imaginary value placed upon a thing by the fancy of its o\i7ner, growing out of his attachment for the specific article and its associations. 78. A pretium affectionis is never taken as a basis of compensation, for it is not the real value. The imaginary or sentimental value sometimes placed upon prop- erty by its owner, growing out of his attachment for that specific 2 8 Fairfax v. New York Cent. & H. R. R. Co., 73 N. Y, 1G7, On loss of baggage, plaiutifC is entitled to recover its value for use to him, and not market value, Simpson v. New York, N, H, & H, R. Co. (Sup.) 38 N, Y. Supp, 341, 2 3 Denver, S. P. & P, R. Co, v. Frame, G Colo. 382. 385, 30 Green v, Boston & L. R, Co., 128 Mass, 221. 22G. See Houston & T. C R. Co. v. Burke, 55 Tex. 323. •'" The actual value to the owner does not iiic;m (lie prelluiu affect ioiiis. Sedg. Dam, ? 251. 184 VALUE. (Ch. 6 property, the "pro+ium affectionis," as it is called, cannot be recov- ered as compensation for the destruction or conversion of such prop- erty.^^ In speaking of the action of trover. Prof. Parsons said:^^ *'T\Tiether in this or any action, instead of the actual value, that which the plaintilT puts upon the property, as a gift, perhaps of a dear friend, or for other purely personal reasons, can be recovered, is not, perhaps, certain. We think it quite clear, however, that this pretiura affectionis cannot be recovered, unless in cases where the conversion or appropriation by the defendant was actually tortious; and in that case we should be disposed to hold that the defendant should be made to pay what he would have been obliged to give if ho had bought the article, or, at least, that the damages might be considerably enlarged in such a case, on the principle of exemplarv damages." Mr. Field thinks that the jury should determine, under all the circumstances of the case, the amount of damages.^* In Suy- dam V. Jenkins ^'^ it was said, obiter: "In most cases the market value of the property is the best criterion of its value to the owner, but in some its value to the owner may greatly exceed the sum that any purchaser would be willing to pay. The value to the owner may be enhanced by personal or family considerations, as in the case of family pictures, plate, etc.; and we do not doubt that the 'pre- tium affectionis,' instead of the market price, ought then to be con- sidered by the jury or court in estimating the value." When an- alyzed, the damage caused by the loss or destruction of property of this nature, consists of two elements: First, the loss of the real property A^alue; second, the grief or mental suffering at the loss of the cherished article. From this we gather what we apprehend to be the true rule, which is that, where property is of such a nature that its loss or destruction, under the circumstances, naturally and proximately causes mental suffering, compensation for such mental 32 Moseley v. Anderson, 40 Miss. 49. The satisfaction and pleasure which the possession of an article gives, like the satisfaction which comes from liaviug a contract respected and performed, is of a nature that the law does cot recognize as a subject for compensation. Sedg. Dam. § 251. 3 3 3 Pars. Cont. (Sth Ed.) 209 34 Field, Dam. § 817. See, also, Whitfield v. V\'hittield, 40 Miss. 3".2; Id., i4 Miss. 254; Bickell v. Colton, 41 Miss. 308. 3 5 3 Sandf. G14, 021. § 79) TIME AND PLACE OF ASSESSMENT. 185 suffering may be recovered, in a proper action, in addition to the victual value of the property. TIME AND PLACE OF ASSESSMENT. 79. As a general rule, value should be estimated as of the time and at the place where the o"vtrner was de- prived of the thing valued. As a general rule, value is assessed as of the time and at the place where the owner is deprived of it. This is on the theory that such value is beneficially equal to the property itself.^^ Interest is usually added as compensation for delay in payment. The rule is of .general application, wherever the question of value is involved. Thus, the measure of damages, in actions for conversion, is ordinarily the value of the property converted at the time and place of conver- .dion.^^ In condemnation proceedings, it is the value at the time 3 6 Ewing V. Blount, 20 Ala. 694; Simpson v. Alexander, 35 Kan. 225, 11 Pac. 171; Cutler v. James Goold Co., 43 Hun, 516. 3T Robinson v. Hartridge, 13 Fla. 501; Spencc- v. Vance, 57 Mo. 427; Cole T. Ross, 9 B. Mon. 393; Spicer v. Waters, 65 Barb. 227; Briscoe v. AIcElween. 43 Miss. 556; Dixon v. Caldwell, 15 Ohio St. 412; New York Guaranty & In- demnity Co. V. Flynn, 65 Barb. 365; Fowler v. Merrill, 11 How. 375; Watt v. Potter, 2 Mason, 77, Fed. Cas. No. 17.291; Bourne v. Ashley, 1 Low. 27, Fed. Cas. No. 1,699; Allen v. Dykers, 3 Hill, 593; Lee v. xMathews, 10 Ala. 6S2; Moore v. Aldrich, 25 Tex. Supp. 276: Ripley v. Davis, 15 Mich. 75; Final v. Backus, 18 I^Iich. 218; Barry v. Bennett, 7 Mete. (Mass.) 354; Falk v. Fletcher, 18 C. B. (N. S.) 403; Taylor v. Ketchum, 5 Rob. (N. Y.) 507; Selkirk v. Cobb. 13 Gray, 313; Agnew v. Johnson, 22 Pa. St. 471; Thillips v. Speyers, 49 N. Y. «53; Tyng v. Commercial Warehouse Co., 58 N. Y. 308; Andrews v. Duraut. 18 N. Y. 496; Ormsby v. Vermont Copper .Alin. Co., 56 N. Y. 623; Douglass V. Kraft, 9 Cal. 562; Yater v. Mullen, 24 Ind. 277; Dillenback v. Jerome, 7 Cow. 298; Dennis v. Barber, b Serg. & R. 420; Ilurd v. Hubbcll, 26 Conn. 389; Cook v. Loomis, Id. 48;i; Lyon v. Gormley, 53 I'a. St. 2(il; Stirling v. -Garritee, 18 Md. 468; Carlyon v. Lannan, 4 Nev. 156; Boylan v. Huguet, S Nev. 345; Hamer v. Hathaway, 33 Cal. 117; Page v. Fowler, 39 Cal. 412; Riley v. Martin, 35 Ga. 136: Grant v. King, 14 Vt. 367; Crumb v. Oaks, 38 Vt. 566; Kennedy v. Strong, 14 Johns. 128; RyUurn v. Prj'or, 14 Ark. 50.'i; Hatcher v. Pelham, 31 Tex. 201; Jenkins v. .McConlco, 26 Ala. 213; Robinson V. Barrows, 48 .Me. 186; Sanders v. Vance. 7 T. B. .Mon. 209; Clark v. Whit- 186 VALLiE. (Ch. t> and place of taking.^ ^ In actions for breach of a contract of sale, it is the value at the time and place the goods should have beea delivered.^ ^ An important exception to the rule is sometimes rec- ognized in the case of property of a fluctuating value, and especially in the case of corporate stocks. SAME— HIGHEST INTERMEDIATE VALUE. 80. In many, but not all, jurisdictions, -where one has been T^rongfully deprived of property of a fluctu- ating value, the highest value intermediate the ■wrong and the end of the trial, is the measure of damages, provided the action is brought -within a reasonable time. EXCEPTION — The rule is sometimes confined to trans- actions in stocks. aker, 19 Conn. 319; Linville v. Black, 5 Dana, 177; Commercial & Agricul- tural Bank v. Jones, 18 Tex. 811; Davis v. Fairclough, 63 Mo. 61; Dainiel v. Holland, 4 J. J. Marsh, 26; King v. Ham, 6 Allen, 298; Lillard v. Whitaker, 3 Bibb, 92; Scull v. Briddle, 2 Wash. C. C. 150, Fed. Cas. No. 12,509; Willianm V. Crum, 27 Ala. 468; Kennedy v. Whitwell, 4 Pick. 406; Liuam v. Reeves, 68 Ala. 89; Jones v. Horn, 51 Ark. 19, 9 S. W. 309; Brasher v. Holtz, 12 Colo, 201, 20 Pac. 616; Ford v. Roberts, 14 Colo. 291, 23 Pac. 322; Skinner v. Pin- ney, 19 Fla. 42; Brewster v. Van Liew, 119 111. 55i, 8 N. E. 842; First Nat, Bank v. Strang, 28 111. App. 325, 338; Thew v. Miller, 73 Iowa, 742, 36 N. W. 771; Simpson v. Alexander, 35 Kan. 225, 11 Pac. 171; Chamberlaiu v. Worrell, 38 La. Ann. 347; Hopper v. Haines, 71 Md. 04, 18 Atl. 29, and 2a Atl. 159; Forbes v. Boston & L. R. Co., 133 Mass. 154; Jellett v. St. Paul, M. & M. Ry. Co., 30 Minn. 265, 15 N. W. 237; Black v. Robinson, 62 Miss. 68; Nance v. Metcalf, 19 Mo. App. 183; Barlass v. Braash, 27 Neb. 212, 42 N. W. 1028; Beede v. Lamprey, 64 N. H. 510, 15 Atl. 133; Railroad Co. v. Hutchins, 37 Ohio St. 282; Blum v. Merchant, 58 Tex. 400; Miller v. Jannett. 63 Tex. 82; Crampton v. Valido Marble Co., 60 Vt. 291, 15 Atl. 153; Arkansas Val. Land & Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 45S; Ghen v. Rich, S Fed. 159; Neiswanger v. Squler, 73 Mo. 192; Ingram v. Rankin, 47 Wis. 406, 2 N. W. 755; Perkins v. Marrs, 15 Colo. 262, 25 Pac. 168. 38 Indiana, B. & W. Ry. Co. v. Allen, 100 Ind. 409; Chaffee's Appeal. .50 Mien. 244, 22 N. W. 871; AUoway v. City of NashvUle, 88 Tenn. 511, 13 S, W. 123. 8 8 See post, p. 241. § 80) HIGHEST INTERMEDIATE VALUE. l87 In actions for conversion, an exception to the rule that the meas- ure of damages is the value of the property, with interest from the time of conversion, has been recognized where the property is of a fluctuating value.*" In such cases, in many jurisdictions, the plain- tiff is entitled to recover the highest value the property has reached at any time intermediate the conversion and the end of the trial, provided the action be brought within a reasonable time. This ex- ception has given rise to great conflict in the decisions. It pro- ceeds upon the principle that, where an owner is wrongfully deprived of his property, he and not the wrongdoer should have the benefit of a subsequent increase in value, and that to hold otherwise would practically permit one to force a sale to himself, at his own price, by selecting a period of great depression to convert the property, and, by having the benefit of a subsequent increase in value, to re- ceive large profits from his own wrong."*^ These reasons are equally applicable in all cases where one is wrongfully deprived of his prop- erty, and the rule has accordingly been applied in actions of det- inue *^ and replevin, *^ in actions for refusal to transfer or deliver corporate stock, ** and in actions for failure to deliver goods sold, the price of which had been paid in advance.*^ The rule of dam- age should not depend on the form of action ; and, indeed, the Codes have very generally abolished all artificial distinctions. Objections to the Doctrine. A just indemnity for all losses which are the natural, proximate, and certain results of the wrong complained of, is the rule of com- 4 The qualification that the property be of a fluctuating value would seem to he unimportant, as it is doubtful if there is any property entirely stable in value; and, besides, if the property did not fluctuate, it would be Immaterial at what time the value was taken. Field, Dam. § 71)9. 41 Suth. Uam. § 1119; Field. Uam. § 812. 4 2 Johnsob V. Marshall, 34 Ala. 522. 4 3 In Suydam v. Jenkins, 3 Sandf. 614, it was held that the damages recov- erable in replevin were the same as in trover, but that in neither case was the rule of highest intermediate value of invariable application. 4 4 Bank of Montgomery Co. v. Ueese, 2G I'a. St. 143; Musgrave v. Becken- dorff, 53 Pa. St 310. 4B Oilman v. Andrews, GO Iowa, IKJ, 23 N. W. 2!)1 ; Harrison v. Charlton. 37 Iowa, 134; Myer v. Wheeler, G5 Iowa. .390, 21 N. W. G92; Gregg v. Fltzhugh, 'id Tex. 127; Kent v. Giuter. 2:5 Iiid. 1. 188 VALUE. (Ch. 6 pensation, whether the action be in contract or in tort. Testing the rule of highest intermediate value by this principle, several objec- tions to its adoption as a uniform rule of damages become apparent. For instance, on what principle can the plaintiff be said to have lost the highest intermediate value, when the property was not intended for sale, but for use, or even, when the property was intended for sale, if it would have been sold in the course of business before the advance occurred? *° It is true that in some cases the plaintiff may have been injured to the extent of the highest value of the property at any time before the trial; but, perhaps in the majority of cases, this would not be so. In the case of raw material, perishable prop- erty, or property intended for consumption, the probabilities are that it would have been disposed of within a short time, and no benefit would have been realized by the subsequent increase in value.*^ Again, the presumption that the owner would have disposed of his property when it reached the highest figure would not accord with fact once in a hundred times. ''^ The objections to the doctrine have been ably stated by Ducr, J.:** "When the evidence justifies the conclusion that a higher price would have been obtained by the owner had he kept the possession, or has been obtained by the wrongdoer, we have admitted and shown that it ought to be included in the estimate of damages, — in the first case, as a portion of the indemnity to which the owner is entitled, and, in the second, as a profit which the wrongdoer can- not be permitted to retain; but we cannot admit that the same rule is to be followed where nothing more is shown than a bare possi- bility that the highest price would have been realized, and still less where it is proved that it would not have been obtained by the owner, and has not been obtained by the wrongdoer. * * * Our objec- tions to considering an intermediate higher value as an invariable rule of damages have already been stated, and need not be repeated. It is perfectly just, when the enhanced price has been realized by the wrongdoer, or it is reasonable to believe w^ould have been real- ized by the owner, had he retained the possession; but in all other 46 Sedg. Dam. (8th Ed.) § 509, note, on page 110. *^ Pinkerton v. Uailroad, 42 N. H. 424, 402. 48 AVright V. Bank, 110 xN. Y. 2:i7. 24(J. IS N. E. 10. ■49 Suydam v. Jenkins, '6 SaucJf. U14, 024, 02'J. § SO) HIGHEST INTERMEDIATE VALUE. 189 cases damages founded upon such an estimate are either purely gpeculative or pUiinly vindictive. They are conjectural and specu- lative when it is barely possible that the owner, had he retained the possession, would have derived a benefit from the higher value. They are vindictive when it is certain that no such benefit could have resulted to him." If the rule limiting damages to the value of the property at the time of conversion, with interest thereon, is to be departed from in any case, and a higher value allowed, it would seem, on principle, that it should be done only when it is proved, and not merely pre Bumed, that the higher value would actually have been realized.^" The rule of highest intermediate value has not met with universal favor. In many jurisdictions it is repudiated altogether, and in others itR application is greatly limited. Sometimes it is applied only to stock transactions, ^^ and sometimes it is applied to any BO Sedg. Dam. (8th Ed.) § 509, note; Meshke v. Van Doren, 16 Wis. 319 r ;5uydam v. Jenkins, 3 Sandf. (514, 629; Symes v. Oliver, 13 Mich. 9; Ewart v. Kerr, 2 McMul. 141; De Ulerq v. Mungin, 46 111. 112; Ingram v. Kankin, 47 Wis. 406, 420, 2 N. W. 755. Where defendant is in possessioi of the property at the time of trial, there is no injustice in compelling him to pay its value at that time. Suth. Dam. § 1125; Ingram v. Kankin, 47 Wis. 420, 2 N. W. 755. Bi Field, Dam. §§ SOS, S12. Bank of Montgomery Co. v. Reese, 26 Pa. St. 143. In Suydam v. Jenkins, 3 Sandf. 614, 633, the distinction between stocks and ether personal property was justified on the ground— "First, that as chancery may decree a specific execution of a contract for replacing stock, and the de- fendant, when such a decree is made, to enable himself to perform it, must of necessity purchase the stock at its then market price, he can have no right to complain when he is compelled to pay the same sum as damages, by the judgment of a court of law; and, second, that as stock is usually held, not for sale, but as a permanent investment, it is a reasonable presumption that, had it not been replaced at the stipulated time, whatever It might be is no more than an indemnity." But, as Mr. Sedgwick has pointed out (2 Sedg. Dam. [Sth Ed.] p. 110, note), though these are the reasons commonly assigned for the distinction, it is very doubtful whether a decree can be had for specitic per- formance of such an agreement, damages being an adequate remedy for the breach. Story, Eq. Jur. §§ 717, 717a; Buxton f. Lister, 3 Atk. 3S3; Sullivan v. Tuck, 1 Md. Ch. 59. And as to stocks of a fluctuating value, it is quite as probable that they were bought for speculation as tliar tliey wire bnugiit for investment. Mr. Field also comos to the conclusion that there is no sound dis- tinction in this regard between stocks and other personal property. I'Mil, . Dam. § 813. 190 VALUE. (Ch. 6 transaction in merchandise of a fluctuating value. It would be an herculean task to review all the various and conflicting opinions that have been delivered on this subject, but we shall notice a few as illustrations of the different views taken. Applications of the Rule. In New York, in an early case, ^^ the rule was adopted in its broadest terms, no distinction being made between stocks and other personal property. The action was for the conversion of stock. The trial was a protracted one, and during its continuance the value of the stock increased over |2,000, which the plaintiff was allowed to recover. The rule adopted was that, where there is any uncertainty or fluctuation attending the value, and the chattel afterwards rises in value, the plaintiff is entitled to recover the highest market value of the property, at any time intermediate the conversion and the end of the trial, provided the action is brought within a reasonable time. In a later case ^^ a different rule was sanctioned. The action was for the conversion of wheat, and the measure of damages adopted was the highest value between the time of conversion and a reason- able time thereafter in which to commence the action. The court said: **In the absence of any definite means for ascertaining the period when the owner of the property would have disposed of it, we are necessarily more or less in the dark as to the amount of injury which he has sustained by the illegal act of the defendants, and are driven to resort more or less to conjecture, or to fix upon some arbitrary period for determining the price of the property. It is obviously a rule of doubtful justice to give to the plaintiff the whole period un- til the statute of limitations would attach for the commencement of this action, and the whole period intervening between the conver- sion and the trial to select his standard of price, ^^athout ever hav- ing given notice of his intention to adopt the price of any partic- ular period. A much more just and equitable rule, independent of adjudications upon this question, would seem to be to allow to the 62 Romaine v. Van Allen, '2i5 N. Y. 309. See, also, Cortelyou v. Lansing. 2 Caines, Cas. 200; West v. Wentworth, 3 Cow. 82; Wilson v. Mathews. 24 Barb. 295. In Brass v. Worth, 40 Barb. 648. a rule was declared more nearly consistent with the later than the earlier authorities. 53 Scott V. Rogers, 31 >J. Y. tJTU, 1182. •§ 80) HIGHEST INTERMEDIATE VALUE. 191 plaintiff some reasonable period, within the statute of limitations, for fixing the price of the property, provided he notifies the adverse party at the time of such act on his part, but never to allow him unlimited liberty of selection as to the price of which he will avail himself at the trial of the cause. If he does not make and notify his ■election of time, then to fix the time by the day of commencing the action, provided the action be commenced within a reasonable time after the conversion. This is an election to hold the defendant lia- ble for the conversion, and, in effect, to treat the property as his. * * * This seems to me the just and equitable rule. It is not, however, perhaps, quite the rule which has obtained in the law for settling the question of damages in the case of an illegal conver- sion of property. * * * i think the rule of damages applicable to cases of this description is reasonably well settled to be as liberal as this in favor of the plaintiff, to wit, to allow to the plaintiff the highest price for the property prevailing between the time of con- version and a reasonable time afterwards for the commencement of the action. Some of the cases carry the period up to the time of trial of a suit commenced within a reasonable time; and, as be- tween these two periods, — the time of commencing the suit, and the time of trial, — the rule is somewhat fluctuating. What this reason- able time shall be has never been definitely settled, and may, per- haps, fluctuate to some extent, according to the circumstances of the particular case." Though the rule sanctioned in this case differed materially from that adopted in the earlier case, the latter has not been regarded as overruled, but, on the contrary, has been followed in later cases.''* These cases have been overruled in so far as stock transactions are concerned, on the ground that the loss of the highest intermediate value is not a natural, proximate, or certain result of the wrong. In Baker v. Drake '^'^ the court said: "This enormous amount of profit, given under the name of damages, could not have been ar- 64 Burt V. Dutcher, 34 N. Y. 493; Markham v. Jaudon, 41 N. Y. 23.1; I.obdoll V. Stowell, 51 N. Y. 70. See, also, Morsan v. Gre;:^, 4G Barb. 183; I^awrence V. Maxwell, G Lans. 4(iU; Nauman v. Caldwell, 2 Sweeney, 212. In MatUiews V. Coe, 41) N. Y. ij7, the court distinguished earlier cases, but Intimated tliat the rule was not so tirmly settled as to be beyond the reach of review. 86 53 N. Y. 211, 215. 1^2 VALUE, (Ch. (? rived at excei)t upon the unreasonable supposition, unsupported by any evidence, that the plaintiff not only would have supplied the necessary margin and caused the stock to be carried through all it» fluctuation, 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 endowed with the supernatural power of prescience." The court held that, in this class of cases, it was the owner's duty to avoid fur- ther loss by going into the market and replacing the stock, and that the market price, within a reasonable time after notice of the con- version in which to do so, was the measure of damages. This rule was reaffirmed in a later case,"** where it was said: "It is the nat- ural and proximate loss which the plaintiff is to be indemnified for^ and that cannot be said to extend to the highest price before trials but only to the highest price reached within a reasonable time after the plaintiff had learned of the conversion of his stock within which he could go in the market and repurchase it." It was held in this^ case to be immaterial whether the stock was owned absolutely, or simply carried on margins, — a distinction suggested in the earlier case. The supreme court of the United States has adopted the rule of the New York court in regard to stock transactions.^^ ''It has been assumed, in the consideration of the case, that the measure of dam- ages in stock transactions of this kind is the highest intermediate value reached by the stock between the time of the wrongful act complained of and a reasonable time thereafter, to be allowed to the party injured to place himself in the position he would have been in had not his rights been violated. This rule is most frequently ex- emplified in the wrongful conversion by one person of stocks belong- ing to another. To allow merely their value at the time of conver- sion would, in most cases, afford a very inadequate remedy, and, in case of a broker, holding the stocks of his principal, it would af' ford no remedy at all. The effect would be to give to the broker 5G Wright V. Bank. 110 N. 1'. 237, 240, IS N. E. 79. See, also. Baker t. Drake, G(J N. Y. 518; Gruman y. Smith, SI N. Y. 25; Colt v. Owens, 90 N. Y, 308. 67 Galigber v. Jones, 129 U. S. 193, 200, 9 Sup. Ct. 335. § 80) HIGHEST INTERMEDIATE VALUE. 193 the control of the stock, subject only to nominal damages. The real injury sustained by the principal consists, not merely in the assump- tion of control over the stock, but in the sale of it at an unfavorable time and for an unfavorable price. Other goods wrongfully con- verted are generally supposed to have a fixed market value at which they can be replaced at any time; and hence, with regard to them, the ordinary measure of damages is their value at the time of con- version, or, in case of sale and purchase, at the time fixed for their delivery. But the application of this rule to stocks would, as be- fore said, be very inadequate and unjust. The rule of highest inter- mediate value, as applied to stock transactions, has been adopted in England and in several of the states in this country, while in some others it has not obtained. * * * On the whole, it seems to us that the New York rule, as finally settled by the court of ap- peals, has the most reasons in its favor, and we adopt it as a cor- rect view of the law." In Pennsylvania the rule of highest intermediate value was adopt- ed with reference to stock transactions, ^® but not in regard to per- sonal property in general.^® The rule w'as afterwards declared ap- plicable only where the defendant was under a contract or trust duty to deliver stock, ^° and still later it was held that the rule did not apply to actions of trover nor to ordinary stock contracts, but only to cases in which there was a trust relation between the parties, and in cases W'here justice cannot be reached by the ordinary measure of damages.®^ In Alabama, it is discretionary with the jury to allow such value as they deem proper between the highest value reached before trial and the value at the time of conversion.*'- "This discretion of the jury ns Bank of Montgomery Co. v. Reese, 2G Pa. St. 1-13; Miisgrave v. Bocken- dorff, 53 Pa. St. 310. 50 Smethurst v. Woolston, 5 Watts & S. lOG (noiulolivory of chattels); Xoilci- V. Kelley, GU Pa. St. 403 (conversion of pledged stock). 60 Noilcr V. Kelley, GO Pa. St. 403; Work v. Bennett, 70 Pa. St. 481; Piiil- lips' Appeal. G8 Pa. St. 130. 01 Huntington & B. T. K. &c Coal Co. v. Knplisli. SO I*a. St. lilT; Xetween a stock broker and his cliciil. Galigher v. .Jones. lliO IJ. S. 10.3, 201, Sup. Ct. .33.'). C2 i.neb V. I'iasii. G.j Ala. G'JG; Street v. Nelson, G7 Ala. r>()l; Ueiilio v. L.\W DAM. — 13 ini VALUE. (Ch. 6 in selecting the exact period of valuation should be exercised in such a manner as to prevent the defendant from reaping a pecuniary prof- it through his wrongful act, and at the same time, in proper cases, to permit the special equities or hardships of the particular case so to operate in the mitigation of damages, as exact justice may re- quire." ^^ In Mississippi, the measure of damages is the value at. the time of conversion, with interest, except in the following classes of cases: (1) Where the original act was wrongful ; (2) where it was bona fide, but the defendant subsequently disposed of the property wrongfully and with knowledge of the plaintiff's claim; (3) where the taking and dis- position of the property were both in good faith, but the defendant seeks to retain the excess of the proceeds of the sale over the market value at the time of the conversion "as a speculation"; (4) where the I)roperty has some peculiar value to plaintiff, and is willfully taken or withheld by the defendant."* The rule of higher intermediate value has been adopted, with more or less variations, in other jurisdictions, "^ but in perhaps the ma- jority of them it has been denied.*^ ^ In all jurisdictions the action Hughes, 69 Ala. 581. See, also, Tatum v. Manning, 9 Ala. 144; Ewing v. Blount, 20 Ala. 094; Jenkins v. McConico, 26 Ala. 213; Johnson v. Marshall. 34 Ala. 522. Formerly, in case of nondelivery of goods sold, the rule was not applied. Rose v. Bozeman, 41 Ala. 078. 6 3 Burks V. Hubbard, 09 Ala. 379, 384. 64 Whitlield v. Whitfield, 40 Miss. 352, 307. See, also, Bickell v. Colton, 41 Miss. 308. 6 5 Cannon v. Folsom, 2 Iowa, 101; Harrison v. Charlton, 37 Iowa, 134; Oilman v. Andrews, GO Iowa, 116, 23 N. W. 291; Ellis v. Wire, 33 Ind. 127; Gregg V. Fitzhugli, 30 Tex. 127; Kandon v. Barton, 4 Tex. 289; Brasher v. Davidson, 31 Tex. 190; Kid v. Mitchell, 1 Nott & McC. 334. And see Pick- ert V. Kugg, 1 N. D. 230, 46 N. W. 446. 6 6 Kennedy v. Whit well, 4 Pick. 400; Greenfield Bank v. Leavitt, 17 Pick. 1; Gray v. Bank, 3 Mass. 304; Hussey v. Bank, 10 Pick. 415; Fisher V. Brown, 104 Mass. 259 (but see Maynard v. Pease, 99 Mass. 555); Brewster v. Van Liew, 119 III. 554, 8 N. E. S42; Galena & S. W. R. Co. v. Ennor, 123 111. 505, 14 N. E. 673; Smith v. Dunlap, 12 111. 184; Cushman v. Hayes, 40 111. 145; Bates v. Stansell, 19 Mich. 91; Jackson v. Evans, 44 Mich. 510, 7 N. W. 79; Ingram v. Rankin, 47 Wis. 406, 2 N. W. 755; Noonan v. Ilslcy. 17 Wis. 314; White v. Salisbury, 33 Mo. 150; Walker v. Borland, 21 Mo. 289; Pinkerton v. Railroad Co., 42 N. H. 424, 463; Enders v. Board, 1 Grat. 3li4; §§ 81-82) MEDIUM OF PAYMENT LICGAL TENDERS. 195 must be brought within a reasonable time, or the rule does not ap- ply." MEDIUM OF PAYMENT— LEGAL TENDERS. 81. Damages must be assessed and paid in domestic money. 82. Money means coin, in the absence of statutes declar- ing something else a legal tender. Damages must be assessed and paid in money, ®* and, in the ab- sence of statute, money means coin.®® It would be a simple matter, ordinarily, to estimate the amount due on a contract for the payment of money, if there were but a single standard of money, and that standard remained unchanged between the time of contract and the date of payment. But where there are two or more standards of dilferent intrinsic value, or where the standard has been changed, difficult problems may arise. By the legal tender acts, ^° it was declared that certain treasury notes of the United States should be a legal tender in payment of debts. The effect of these acts was to establish a new and addi- tional standard of money, nominally, but not intrinsically, equal to the old. It was decided that the acts were constitutional, and ap- plied to antecedent as well as subsequent contracts.'^ ^ Many ex- ceedingly important and difficult questions thereupon arose, such as Third Nat. Bank of Baltimore v. Boyd, 44 Md. 47; Baltimore City Passenger Ry. Co. V. Sewell, 35 Md. 23S; Andrews v. Clark, 72 Md. 39G, 20 Atl. 429; Fosdick V. Greene, 27 Ohio St. 484; Arrington v. Railroad Co., G Jones (N. C.) 68 (but see Boylston Ins. Co. v. Davis, 70 N. C. 485). 07 If there is an unreasonable delay, the measure of damages is the value at the time of the injury. Heilbrouer v. Douglass, 45 Tex. 402. C8 Sedg. Dam. § 26G. 69 Field, Dam. § 21G; Gwin v. Brecdlove, 2 How. (U. S.) 29. 7 Rev. St. U. S. 1875, p. 712, c. 39, § 3589; 12 Stat. 345; Id. 709; Id. 21S. 71 Knox V. Lee; Parker v. Davis (legal tender cases) 12 Wall. (U. S.) 457; Dooley v. Smith, 13 Wall. (U. S.) G04; Juilliard v. Greenman, 110 U. S. 421, 4 Sup. Ct. 122. These cases overruled Hepburn v. Griswold, 8 Wall. (U. S.) G03. which held the acts unconstitutional as to antecedent contracts. The state courts generally sustained the acts. See Metropolitan Bank v. ^ an Dyck, 27 N. Y. 400; Meyer v. Roosevelt, Id.; Lewis v. Railroad Co., G Am. Law Reg. (X. S.) 70.T; Lick v. I'\ui]kner, 25 Cal. 404; Van Ilusau v. Kanouse, i:; .Midi. :;0:5; Wood v. Biiliciis, G Allen, 51G. 19G VALUE. (Ch. &■ the ricfht of parties to stipulate for payment in gold, and the fonu of judgment on such a contract. The result of the decisions under the legal tender acts has been admirably summed up by Mr. Field as follows:* "(1) That, where a contract provides for the payment of money within the United' States and contains no stipulation as to the kind of money, it will' be satisfied by a tender of the nominal amount in legal tender notes ;- and the measure of damages in an action on such a contract is the nominal amount due in legal tender notes.^- (2) That, if gold or silver coin is applied in payment of such a claim, in the absence of a special contract in relation thereto, it will be applied at its nominal value; and it satisfies to the same extent, and no more, as a pay- ment of an equal nominal amount in legal tender notes.'^^ (3) That,, where a contract provides specifically for payment in gold or silver coin, the coin must be paid, ^* and damages for the breach of sucb * Field, Dam. 222. "2 Sedg. Dam. § 269. Wbere gold is deposited in bank, payment maj* be made in legal tender paper. Aurentz v. Porter, 5G Pa. St. 115. See, also,. Tbompson v. Riggs, 5 Wall. 663, and Marine Bank v. Fulton Bank, 2 Wall. 252. A judgment rendered before tbe passage of tbe act is satisfied by pay- ment in legal tender paper (Bo wen v. Clark, 46 Ind. 405). tbough it was for a debt created by tbe loan of gold (Mclnbill v. Odell, 62 111. 169). See, also,. Belloc V. Davis, 38 Cal. 242; Longwortb v. Mitcbell, 26 Obio St. 334. T3 Hancock v. Franklin Ins. Co., 114 Mass. 155; Stan wood v. Flagg, 9S Mass.. 124; Stark v. Coffin, 105 Mass. 328. 7 4 Bronson v. Rodes, 7 Wall. 229. In Butler v. Horwitz, Id. 25S, 260, Cbase,- C. J., said: "A contract to pay a certain sum in gold and silver coin is, in substance and legal effect, a contract to deliver a certain weigbt of gold and silver of a certain fineness, to be ascertained by count. Damages for non- performance of such a contract maj-^ be recovered at law as for nonperform- ance of a contract to deliver buUioa or other commodity. But whether the contract be for the delivery or payment of coin, or bullion, or other property, damages for nonperformance must be assessed in lawful money, — that is to say, in money declared to be legal tender in payment. * * * we find two descriptions of lawful money in use under acts of congress, in either of which damages for nonperformance of contracts, whether made before or since the passage of the currency acts, may be properly assessed, in the absence of any different understanding or agreement bet\Yeen parties. But the obvious intent, in contracts for the payment or delivery of coin or bul- lion, to provide against fluctuations in the medium of payment, warrants the- inference that it was the understanding of the parties that such contracts^ •|§ 81-82) MEDIUM OF PAYMENT LEGAL TENDERS. 197 A contract should be assessed in coin for the nominal amount; and judgment should be rendered for the coin stipulated, and not for its equivalent value in treasury legal tender notes; and such a judg- ment can only be satisfied by specie payment." ^"^ Foreign Currency. Foreign currency is considered merely as a commodity, and, ac- ■cordingly, wherever such currency is involved, judgment is given for its value in domestic money.^® As the value is to be estimated as •sliould be satisfied, whetlier before or after judgment, only by tender of coin, which the absence of any express stipulation as to description, in con- tracts for payment in money generally, warrants the apposite inference of an understanding between parties that such contracts may be satisfied, before ^r after judgment, by the tender of any lawful money. * * * When, therefore, it appears to be the clear intent of a contract that payment or satisfaction shall be made in gold or silver, damages should be assessed and judgment rendered accordingly." TsThe Emily Souder, 17 Wall. 6GG; Chisholm v. Arrington, 43 Ala. 010; Bowen v. Darby, 14 Fla. 202; Stringer v. Coombs, G2 Me. IGO; Chesapeake Bank v. Swain, 29 Md. 483; Independent Ins. Co. v. Thomas, 104 Mass. 192; Warren v. Franklin Ins. Co., Id. 518; Stark v. Coflin, 105 Mass. 328; Cur- rier V. Davis, 111 Mass. 480; Whitney v. Thacher, 117 Mass. 523; Chrysler T. Renois, 43 N. Y. 209; Phillips v. Speyers, 49 N. Y. G53; Quinn v. Lloyd, 1 Sweeney, 253; Phillips v. Dugan, 21 Ohio St. 4GG; Bridges v. Reynolds, 40 Tex. 205; Johnson v. Stallcup, 41 Tex. 527. In some states, gold was treated like ordinary merchandise, and its value was assessed in paper. Baker's Appeal, 59 Pa. St. 313; Frank v. Calhoun, Id. 381; Dunn v. Barnes. 73 N. C. 273; Wills v. Allison, 4 Heisk. 385; Bond v. Greenwald, Id. 453. In Kellogg v. Sweeney, 46 N. Y. 291, it was held that, in actions of tort for the loss of gold, judgment should be entered in gold coin, and not its then ■equivalent in pnper. Contra, Cushing v. Wells, 98 Mass. 550. "6 Pollock V. Colglazure, Sneed (Ky.) 2; Sheehan v. Dalrymple, 19 Mich. 239; Fabbri v. Kalbfleisch, 52 N. Y. 28; Colton v. Dunham, 2 Paige, 2G7; Mather v. Kluike, 51 Pa. St. 425; Christ Church Hospital v. Fuechsel, 54 Pa. St. 71; Nova Scotia Tel. Co. v. American Tel. Co., 4 Am. Law Kog. 7A. '0 Slilson V. Gibbs, ->?. Mich. 280, 18 N. W. 81.^>. Sec, also, Wilson v. Unwcn 64 Mich. i:W. :',1 N. W. 81. 206 EXEMPLARY DAMAGES. (Cll. 7 that compensation to the plaintiff is the purpose in view, and any instruction which is calculated to lead them to suppose that, be- sides compensating the plaintiff, they may punish the defendant, is erroneous." In this case, the instruction complained of author- ized the jury, after estimating the actual damages of the plaintiff, to go further and give an additional sum, limited only by their dis- cretion, by way of punishment and example, and for that reason was held erroneous. The rule is the same in Massachusetts, where it is held ^^ that the ''manner and manifest motive" of a tort may be shown in proof of mental suffering. Exemplary damages have been denied in other jurisdictions.^^ Jurisdictions Where Exemplary Damages are Oompensatory. In West Virginia the doctrine that, in a civil case, punitive, vin- dictive, or exemplary damages can be imposed as a mere punish- ment to the defendant, was originally repudiated,^ ^ and it was held, upon a review of the cases, that the term "exemplary damages," when properly used, meant merely compensation for mental suffer- ing, and not additional damages given as a punishment.-* Dam- ages called "exemplary" were held recoverable, but they were dis- tinctly held to be compensatory. These cases have been recently overruled in an elaborate opinion which relies principally upon Scriptural authority.* The original West Virginia doctrine is main- tained in a few jurisdictions.-^ In Texas, under the name of "ex- emplary damages," compensation may be recovered for items of dam- age which would ordinarily be excluded as remote; but it seems that damages cannot be given as a punishment.^ ^ 21 Hawes v. Knowles. 114 Mass. 518. 2 2 Murphy V. Hobbs, 7 Colo. 541, 5 Pac. 119; Greeley, S. L. & P. Ry. Co. v. Yeager, 11 Colo. 345, 18 Pac. 211; Riew^ v. MeCormick, 11 Neb. 261, 9 N. W. 88; Fay v. Parker, 53 N. H. 342; Bixby v. Dunlap, 56 N. H. 456. 23 Beclj v. Thompson, 31 W. Va. 4-59, 7 S. E. 447. 2 4 Pegram v. Stortz, 31 W. Va. 220, 6 S. E. 4S5. * Mayer v. Frobe (W. Va.) 22 S. E. 58. 2 5 Quigley V, Railroad Co., 11 Nev. 350; Union Pac. R. Co. v. Hause, 1 Wye. 27. 26 Biering v. Bank, 69 Tex. .399, 7 S. W. 90; International & G. N. R. Co. v. Telephone & Tel. Co., 69 Tex. 277, 5 S. W. 517. In some jurisdictions the ex- penses of litigation may be considered in assessing exemplary damages. Mar- shall Y. Betner, 17 Ala. 833; Patton v. Garrett, 37 Ark. 605; Huntlev v. §§ 85-S6) WHEN RECOVERABLE. 207 WHEN RECOVERABLE. 85. In jurisdictions \rliere exemplary damages are al- lowed, they can be recovered only in actions of tort, and when the tort is accompanied by violence, oppression, gross negligence, malice, or fraud. EXCEPTIONS — (a) Exemplary damages may be recov- ered for breach of promise of marriage (p. 213). (b) In a few states exemplary damages may be recov- ered in an action on a statutory bond, where the breach of condition was a tort (p. 213). (c) In some jurisdictions, exemplary damages cannot be recovered where the tort is also a crime (p. 215). 86. Liability to exemplary damages does not survive. In most jurisdictions the doctrine has become firmly established that exemplary damages, in addition to compensation for the loss actually suifered, may be awarded as a punishment to defendant, and as a warning to others.^^ But a civil action does not lie merely Bacon, 15 Conn. 267; Beecher v. Ferry Co., 24 Conn. 491; Dalton v. Beers, 3S Conn. 529; Bennett v. Gibbons, 55 Conn. 450, 12 Atl. 99; Wynne v. Parsons. 57 Conn. 73, 17 Atl. 362; Titus v. Corkins, 21 Kan. 722; Winstead v. Hulme, 32 Kan. 5GS, 4 Pac. 994; Eatinun v. Railway Co., 35 La. Ann. lOlS; Xortli- ern, J. & G. N. R. R. Co. v. Allbritton, 38 Miss. 243; Roberts v. Mason, 10 Ohio St. 277; Finney v. Smith, 31 Ohio St. 529; Stevenson v. Morris, 37 Ohio St. 10; Peckham Iron Co. v. Harper, 41 Ohio St. 100. See ante, p. — . Contra. Hoadley v. Watson, 45 Vt. 289. 27 Emblen v. Myers, 6 Hurl. & N. 54; Bell v. Railway Co., 4 Law T. (N. S.) 293; Day v. Woodworth, 13 How. 363; Milwaukee & St. P. Ry. Co. v. Arms, 91 U. S. 489; Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110; Denver & R. G. Ry. Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286; Browu v. Evans, 8 Sawy. 488, 17 Fed. 912; U. S. v. Taylor, 35 Fed. 484; Jefferson Co. Sav. Bank v. Eborn, 84 Ala. 529, 4 South. 38(j; Clark v. Bales, 15 Ark. 452; Citizens' St. Ry. Co. v. Steen, 42 Ark. 321; St. Ores v. McGlasheu, 74 C.nl. 148, 15 Pac. 452; Bundy v. Maginess, 76 Cal. 532, 18 Pac. 668; Liusloy v. Bushnell, 15 Conn. 225; Dalton v. Beers, 38 Conn. 529; Robinson v. Burton. 5 Har. (Del.) 335; Coleman v. Allen, 79 Ga. 637, 5 S. E. 204; Harrison v. Ely, 120 111. 83, 11 N. E. 3.34; Binlord v. Youn^', 115 Ind. 174. 16 N. E. 1 12; Park- hurst v. Masteller, 57 Iowa, 474, lU .\. W. 864; Root v. Sturdivant, 70 lown. 20S EXKMPLAKY DAMAGICS.. (Cll. 7' to inflict punishment. A cause of action must exist independently of tlio claim for exemplary damages. In other words, where dam- ages are the gist of an action, proof of aggravating circumstances, such as would ordinarily justify the infliction of exemplary dam- ages, is alone insufficient to maintain the action. Some actual loss must be proved,^* Where a wrongdoer dies before trial, only com- pensatory damages can be recovered against his estate. The lia- bility to exemplary damages does not survive.^" In an action" 55, 129 N. W. S02; Kedfleld v. Kedfleld, 75 Iowa, 435, 39 N. W. OSS; Thill v, rohlman, 76 Iowa, 038. 41 N. W. 385; Wheeler & Wilson Manuf'g Co. v. Boyce, 36 Kan. 350, 13 Pac. 609; Louisville & N. R. Co. v. Ballard. 85 Ky. 307, 3 S. W. 530; Pike v. Billing, 4S Me. 539; Webb v. Oilman, 80 Me. 177, 13- Atl. 6SS; Baltimore & Y. Turnpike v. Boone, 45 Md. 344; Philadelphia, W. &, B. R. Co. V. Larkin, 47 Md. 155; McPherson v. Ryan, 59 Mich. 33, 26 N. W. 321 ^ Ross V. Leggett, 61 Mich. 445, 28 N. W. 695; Newman v. Stein, 75 Mich. 402, 42 X. W. 956. Contra, Stilson v. Gibbs, 53 Mich. 280, IS N. W. 815; Wilson V. Bo wen, 64 Mich. 133, 31 N. W. 81; McCarthy v. Niskern, 22 Minn. 90 p Peck V. Small, 35 Minn. 465, 29 N. W. 69; Vieksburg & M. R. Co. v. Scaulan,. 63 Miss. 413; Higgius v. Railroad Co., 64 Miss. 80, 8 South. 176; Buckley v, Knapp, 48 Mo. 152; Joice v. Branson, li Mo. 28; Bohm v. Dunphy, 1 Mont. 333; Magee v. Holland, 27 N. J. Law, 86; Plaines v. Schultz, 50 N. J. Law^ 481, 14 Atl. 488; Bergmann v. Jones, 94 N. Y. 51; Johnson v. Allen, 100 N. C. 131, 5 S. E. 606; Bowden v. Bailes, 101 N. C. 612, 8 S. E. 342; Knowles v. Railroad Co., 102 N. C. 59, 9 S. E. 7; Atlantic & G. W. Ry. Co. v. Dunn, 19- Ohio St. 162; Hayner v. Cowden, 27 Ohio St. 292; Lake Shore & M. S. Ry. Co. V. Rosenzweig, 113 Pa. St. 519, 6 Atl. 545; Philadelphia Traction Co. v, Orbann, 119 Pa. St. 37, 12 Atl. 816; Kenyon v. Cameron, 17 R. I. 122, 20 AtL 233; Quinu v. Railway Co., 29 S. C. 381, 7 S. E. 014; Polk v. Fancher, 1 Head> (Tenn.) 336; Jones v. Turpin, 6 Heisk. (Tenn.) 181; Cox v. Crumley, 5 Lea (Tenn.) 529; Louisville, N. & G. S. R. Co v. Guinan, 11 Lea (Tenn.) 98; Rea V. Harrington, 58 Yt. 181, 2 Atl. 475; Camp v. Camp, 59 Vt. 667, 10 Atl. 748;. Borland v. Barrett, 76 Va. 128; Harman v. Cuudiif, 82 Va. 239; McWilliams- V. Bragg, 3 Wis. 424; Spear v. Hiles, 67 Wis. 350, 30 N. W. 506; Sullivan v. Navigation Co., 12 Or. 392, 7 Pac. 508; Heneky v. Smith, 10 Or. 349; Day v. Holland, 15 Or. 464, 15 Pac. 855. The estate of a lunatic is not liable for ex- emplary damages. Mclntyre v. Sholty, 121 111. 660, 13 N. E. 239. 2 8 Meidel v. Anthis, 71 111. 241; Schippel v. Norton, 38 Kan. 507, 16 Pac. 804; Stacy v. Publishing Co., OS :Me. 279; Ganssly v. Perkins, 30 Mich. 492; Robinson v. Goings, 63 Miss. 500; Jones v. Matthews, 75 Tex. 1, 12 S. W. 823. A right to recover nominal damages is sufficient to sustain a verdict for ex- emplary damages. Wilson v. Vaughn, 23 Fed. 229; Hefley v. Baker, 19 Kan. 9, 29 Edwards v. Ricks, 30 La. Ann. 920; Rippey v. Miller, 11 Ired. 247; §§ 8o-8G) WIIi:\ RECOVERABLE. 209 against joint wronodoers, the bad motives of some of the defendants will not be imputed to the others, and therefore exemplary dam- ages cannot be recovered unless all of the defendants acted so as to become liable therefor.^" The plaintiff has an election to sue joint tort feasors, either jointly or severally. By suing them jointly, he waives any claim for exemplary damages, unless all acted from bad motives.^ ^ In such a case, the measure of damage is the actual loss sustained from the joint wrong. To recover exemplary dam- ages, the suit should be against the party who alone acted so as to incur the liability.^^ "It would be very unjust to make the malig- nant motive of one party a ground of aggravation of damage against Ihe other party, who was altogether free from any improper motive. In such case, the plaintiff ought to select the party against whom he means to get the aggravated damages." ^^ Where the plaintiff has no election, but must join all the defendants, exemplary damages are not waived. Thus, where husband and wife must be sued joint- ly for a tort of the wife, judgment for exemplary damages may be given against both.'* Exemplary damages, being designed to punish the wrongdoer, can be justified only where the wrong was willful or wanton, and their allowance is limited to that class of cases.^^ Actual malice,'"' wan- Wriffht V. Donnell, 34 Tex. 201. Vindictive damages are awarded as a inm- islimont against a wrongdoer, and not as compensation for the injured person. Therefore thej- cannot be given in an action against personal representatives of a decedent on account of the wrong of decedent. Sheik v. Hobson, (i4 Iowa. 146, 19 N. W. S75. 30 Suth. Dam. § 407. 31 McCartliy v. De Armit, 99 Pa. St. 63. It was held that damages should be assessed against the least culpable defendant, and, unless all the defend- ants were liable for exemplary damages, none could be recovered. 3 2 Becker v. Dupree, 75 111. 167. 3 3 Dark v. Nowsam. 1 Exch. 131. 34 Munter v. Bande, 1 Mo. App. 484; I.omljard v. Batchclder, .")S Vt. Tt'tS, ~) Atl. .",11. See 3 Suth. Dam. c. 2(;. ■■•■■- Keedcr v. Purdy, 4S 111. 261; l':ii well v. Warren, To III. 2S; Tohvlo, W. &; W. Ily. Co. V. Iloberts, 71 111. 510; .Miller v. Kirby, 74 111. 212; Scolt v. Hryson, Id. 420; Becker v. Dupree, 75 111. 167; Moore v. (Jrose, 4:5 Ind. 3(t; Hniwii v. Alien, .'55 Iowa, ."'.06; Tyson v. Kwing, 3 .1. J. Marsh. 1S5; Kljidlt v. lleiz. 29 Mich. 202; Jockers v. I'.nrgman, 29 Kan. 109; Dnw v. .lulien, .'!2 K.iii. r.76, 4 30 See note 36 on roliouing page. LAW DAM. I 1 210 EXEMPLARY DAMAGES. (Ch. 7 tonness," oppression, brutality, insult,^^ fraud,^° or gross negli- gence *" are suflicient to justify the allowance of exemplary dam- Piu-. 1000; Wanamaker v. Bowes, 3G Md. 42. Lack of reasonable grounds for believing allegations made to procure an attachment will not justify exemplary damages. Nordhaus v. Peterson, 54 Iowa, G8, 6 N. W. 77. Exemplary dam- ages cannot be recovered for accidental or unintentional injuries. Walker v. Fuller, 29 Ark. 448; Tiipp v. Grouner, 60 111. 474; AValler v. Waller, 7U Iowa, 513, 41 N. W. 307; Jackson v. Schmidt, 14 La. Ann. 818; Blodgett v. Brattle- boro, 30 Vt. 579; U. S. v. Taylor, 35 Fed. 484; Ames v. Hilton, 70 Me. 3G; Sapp v. Railway Co., 51 Md. 115. An idiot is not liable for exemplary dam- ages. Mclntyre v. Shelly, 121 111. 660, 13 N. E. 239. 36 Ralston v. The State Rights, Crabbe, 22, Fed. Cas. No. 11,540; Dibble v. Morris, 26 Conn. 416; Kilbourn v. Thompson, 1 McA. & M. 401; Sherman v. Dutch, 16 111. 283; Moore v. Crose, 43 Ind. 30; Louisville & N. R. Co. v. Bal- lard, 85 Ky. 307, 3 S. W. 530; Webb v. Oilman, 80 Me. 177, 13 Atl. 688; Joice v. Branson, 73 Mo. 28; Sowers v. Sowers, 87 N. C. 303; Philadelphia Traction Co. V. Orbann, 119 Pa. St. 37, 12 Atl. 816; Pittsburgh, C. & St. L. Ry. Co. v. Lyon, 123 Pa. St. 140, 16 Atl. 607. 87 Goetz V. Ambs, 27 Mo. 28; Green v. Craig, 47 Mo. 90; Borland v. Barrett, 76 Va. 128. See, also, cases cited in note 36, supra. Wantonness means reck- less disregard of consequences. President, etc., of Baltimore & Y. T. R. Co. v. Boone, 45 Md. 344; Louisville & N. R. Co. v. Ballard, 85 Ky. 307, 3 S. W. 530. 3 8 Reeder v. Purdy, 48 111. 261; Cutler v. Smith, 57 111. 252; Smith v. Wun- derlich, 70 111. 426; Drohn v. Brewer, 77 111. 280; Moore v. Crose, 43 Ind. 30; Jennings v. Maddox, 8 B. Mon. 430; Louisville & N. R. Co. v. Ballard, 85 Ky. 307, 3 S. W. 530; Webb v. Oilman, 80 Me. 177, 13 Atl. 688; Raynor v. Xims, 37 Mich. 34; Joice v. Branson, 73 Mo. 28; Bowden v. Bailes, 101 N. C. 612, 8 S. E. 342; Philadelphia Traction Co. v. Orbaun, 119 Pa. St. 37, 12 Atl. 816; Redfield v. Redfield, 75 Iowa, 435, 39 N. W. 688. Abuse of process is sufficient ground. Iluclde v. Money, 2 Wils. 205; Nightingale v. Scannell, 18 Cal. 315; Louder v. Hiusou, 4 Jones (N. C.) 369; Rodgers v. Ferguson, 36 Tex. 544; Shaw V. Brown, 41 Tex. 446. So also is willful refusal to perform official duty. Wilson V. Vaughn, 23 Fed. 229; Elbin v. Wilson, 33 Md. 135. A passenger rudely and wrongfully expelled from a train may recover exemplary damages, Philadelphia W. & B. R. Co. v. Larkin, 47 Md. 155; Knowles v. Railroad Co., 102 N. C. 59, 9 S. E, 7; but not where the conductor acted honestly, and there were no aggravating circumstances, Fitzgerald v. Railroad Co., 50 Iowa, 79; Philadelphia, W, & B. R. Co. v. Larkin, 47 Md. 155; Knowles v. Railroad Co., 77 Mo. 663; Hamilton v. Railroad Co., 53 N. Y. 25; Yates v. Railroad Co., 67 N. Y. 100; Tomlinson v. Railroad Co., 107 N. C. 327, 12 S. E. 138. 88 Sedgw. Dam. § 367. See Louisville & N. R. Co. v. Ballard, 85 Ky. 307, 3 S. W. 530. Contra, Singleton v. Kennedy, 9 B. Mon. 222, 226. *o Emblen v. Myers, 6 Hurl. & N. 54; U. S. v. Taylor, 35 Fed. 484; Mo §§ 85-86) WHEN RECOVERABLl-:. 211 ages. Good faith *^ and provocation *^ may be shown in mitigation of damages. Evidence of defendant's wealth or poverty is admissi- ble; *^ for what would be a heavy punishment for a poor man might be no punishment at all for a rich one, and vice versa. bile & M. R. Co. v. Ashcraft, 48 Ala. 15; Lienkauf v. Morris. 66 Ala. 406; Citizens' St. Ry. Co. v. Steeu, 42 Ark. 321; W. U. Tel. Co. v. Eyser, 2 Colo. 141; Linsley v. Busbnell, 15 Conn. 225; Kilbourn v. Thompson, 1 McA. & M. 401; Frink v. Coe, 4 Greene (Iowa) 555; Cochran v. Miller, 13 Iowa, 12S; Bowler v. Lane, 3 Mete. (Ky.) 311; Fleet v. Holleukemp, 13 B. Mon. 219; Kountz v. Brown, 10 B. Mon. 577; Wilkinson v. Drew, 75 Me. 300; Vicksburg & J. R. Co. v. Patton, 31 Miss. 156; Memphis & C. R. Co. v. Whitfield, 44 Miss. 406; Hopkins v. Railroad Co., 36 N. H. 9; Taylor v. Railway Co., 48 2s. H. 301; Caldwell v. Steamboat Co., 47 N. Y. 282; Pitts- burgh, C. & St. L. Ry. Co. v. Lyon, 123 Pa. St. 140, 16 Atl. 607; Byram v. McGuire, 3 Head, 530; Kolb v. Bankhead, 18 Tex. 228; Yerian v. Linklet- ter, 80 Cal. 135, 22 Pac. 70. 41 Where defendant acted in good faith, he is not liable to exemplary dam- ages, St. Peters Church v. Beach, 26 Conn. 355; Oursler v. Railroad Co., 60 Md. 358; Millard v. Brown, 35 N. Y. 297; Bennett v. Smith, 23 Hun, 50; Tracy v. Swartwout, 10 Pet. 80; Plummer v. Harbut, 5 Iowa, 308; Pierce V. Getchell, 76 Me. 216; Pratt v. Pond, 42 Conn. 318; Nightingale v. Scan- nell, 18 Cal. 315; unless he acted in a cruel and abusive manner. Dalton V. Beers, 38 Conn. 529. Sec, also, Johnson v. Camp, 51 111. 219; Bauer v. Gottmanhausen, 65 111. 499; Jasper v. Purnell, 67 111. 358; Raynor v. Nims, 37 Mich. 34. Where defendant acted on advice of counsel, exemplary damages cannot be recovered. City Nat. Bank v. Jeffries, 73 Ala. 183; Cochrane v. Tut- tle, 75 111. 361; Murphy v. Larson, 77 111. 172; Livingston v. Burroughs, 33 Mich. 511; Carpenter v. Barber, 44 Vt. 441; Shores v. Brooks, 81 Ga. 46S, S S. E. 429. Defendant's honest belief that he was acting in the right will prevent or mitigate exemplary damages. Wilkinson v. Searcy, 76 Ala. 176; Farwell v. Warren, 70 111. 28; Allison v. Chandler, 11 Mich. 542; Brown v. Allen, 35 Iowa, 306. *2Ward V. Blackwood. 41 Ark. 295; Johnson v. Von Kettler, 66 111. 03; Shay V. Thompson, 59 Wis. 540, 18 N. W. 473; Currier v. Swan, 63 Me. 323; Kiff V. Youmans. 86 N. Y. 324, 331; Huftalin v. Misuer, 70 111. 55. 43 Brown v. Evans, 8 Sawy. 488, 17 Fed. 912; Grable v. Margrave, 4 111. 372; Jacobs' Adm'r v. Railroad Co., 10 Bush, 263; Sloan v. Edwards, 61 Md. 89; McCarthy v. Niskeru, 22 Minn. 90; Peck v. Small, 35 Miun. 465, 29 N. W. 69; Whitfield v. Westbrook, 40 Miss. 311; Buckley v. Kuapp. 48 Mo. 152; Belknap v. Railroad Co., 49 N. H. 35S; John.son v. Allen, luo N. C. 131, 5 S. E. 606; Ilayner v. Cowden, 27 Ohio St. 292; McBrido v. .Mc- Laughlin, 5 Watts, 375; Dush v. Fitzluigli, 2 Lea, 307; Rca v. Harrington, 58 Vt. ISl, 2 Atl. 475; Ilaruiau v. CundilT, 82 Va. 2;'.;>; Spear v. Sweeney, 212 EXEMPLARY DAMACICS. (Oh. 7 Province of Court and Jury. It is the province of the court to determine whether there is any evidence to support an award of exemplary damages.** It is the province of the jury to determine whether or not such damages should be awarded.*'* It is error to submit the question to the jury,, in the absence of any evidence to sustain a verdict for exemplary damages,*" and it is error to instruct the jury to give exemplary damages, for they rest solely in the discretion of the jury, and can- not be claimed as a matter of law.*^ The amount of exemplary SS Wis. 545, GO N. W. lOGO; Birchard v. Booth, 4 Wis. 07; Meibus v. Dodge.. 38 Wis. 300; Winn v. reckliam, 42 Wis. 493; Brown v. Swiueford, 44 Wis. 282; Lavery v. Crooke, 52 Wis. C12, 9 N. W. 599; Hare v. Marsh, Gl Wis, 435, 21 N. ^V. 267; Spear v. Hiles, 67 Wis. 350, 30 N. W. 511. But contra, Guen^erech v. Smith, 34 Iowa, 348. Defendant may show his poverty in* rebuttal, Mullin v. Spangenberg, 112 111. 140; Rea v. Harrington, 58 Vt. 181,. 2 Atl. 475; or in chief, Johnson v. Smith, G4 INIe. 553. It has been held that evidence of the pecuniary condition of plaintiff, is admissible. Beck v. Do well, 111 Mo. 50G, 20 S. W. 209 (action for personal injuries); Gaither v. Blowers,. 11 Md. 536; McNamara v. King, 7 111. 432 (assault and battery); Grable v. :Margrave, 4 111. 372 (seduction); Hayner v. Cowden, 27 Ohio St. 292. 4* Chicago, St. L. & N. O. R. Co. v. Scurr, 59 Miss. 4.56; City of Chicago- v. Martin, 49 111. 241; Heil v. Glanding. 42 Pa. St. 493; Kennedy v. Rail- road Co.. 36 Mo. 351. *5 Pratt v. Pond, 42 Conn. 318; Dye v. Denham, 54 Ga. 224; Johnson v. Smith, 64 Me. 553; Smith v. Thompson, 55 Md. 5; Chicago, St. L. & N. O. R. Co. V. Scurr, 59 Miss. 456; Graham v. Railroad Co., 66 Mo. 536; Nagle v. Mullison, 34 Pa. St. 48; Hawk v. Ridgway, 33 111. 473. Punitive damages for slander are not allowed as a matter of right, but their recovery rests in^ the sound discretion of the jury. Nicholson v. Rogers, 129 Mo. 136, 31 S. W. 260. 40 Selden v. Cashman, 20 Cal. 56; Chicago, St. L. & N. O. R. Co. v. Scurr,. 59 Miss. 456; Rose v. Story, 1 Pa. St. 190; Amer v. Longstreth, 10 Pa. St. 145; Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. St. 306; Philadelphia- Traction Co. v. Orbann, 119 Pa. St. 37, 12 Atl. 816; Bradshaw v. Buchanan, . 50 Tex. 492. *^ Hawk v. Ridgway, ,33 111. 473; Wabash, St. L. & P. Ry. Co. v. Rector,. 104 111. 296; Louisville & N. R. Co. v. Brooks' Adm'x, 83 Ky. 129; Southern R. Co. V. Kendrick, 40 Miss. 374; New Orleans, St. L. & C. R. Co. v. Burke, 53 Miss. 200; Jerome v. Smith, 48 Vt. 230; Boardman v. Goldsmith, Id. 403;. Snow V. Carpenter, 49 Vt. 426; Webb v. Oilman, 80 Me. 177, 13 Atl. 688; Jacobs v. Sire, 4 Misc. Rep. 398, 23 N. Y. Supp. 1063. Contra, Mayer v. Duke, 72 Tex. 445, 10 S. W. 565; Fox v. Wuuderlich, 64 Iowa, 187, 20 X_ ■§§ 85-86) WHEN RECOVERABLE. 213 damages is limited only by the sound discretion of the jury,*® but where the verdict is so excessive as to show passion, prejudice, or ■corruption, the court may set it aside.'*" In What Actions Recoierahle. As a general rule, exemplary damages can be recovered only in actions of tort.^° Actions for breach of promise of marriage, how- ever, constitute an exception to the rule; ^^ and it has been held that exemplary damages can be recovered in an action on a statutory bond, where its condition was broken by a tort such as would or- dinarily justify the infliction of exemplary damages.^^ In suits in equity, exemplary damages are never given.^^ Where the circum- stances justify it, exemplary damages may be recovered in actions \V. 7; Thill v. Pohlman, TG Iowa, 638, 41 N. W. 385; Hodgson v. Millward, 5 Grant, Cas. 406; Piatt v. Brown, 30 Conn. 336; Coryell v. Colbaugli, 1 N. J. Law, 77. 4 8 Graham v. Railroad Co., 66 Mo. 536; New Orleans, St. L. &, C. R. Co. V. Burke, 53 Miss. 200; Southern R. Co. v. Kendrick, 40 Miss. 374; Johnson r. Smith, 04 Me. 553; Chicago, St. L. & N. O. R. Co. v. Scurr, 59 Miss. 456; Borland v. Barrett, 76 Ya. 128; Canfield v. Chicago, R. I. & P. Ry. Co., 59 Mo. App. 354. In New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660, the court refused to set aside a verdict of $4,500 against a railroad company for carrying a passenger 400 yards beyond his station, and refusing to return. The court said there was "no legal measurement, save their discretion." 4 Flannery v. Railroad Co., 4 Mackey, 111; Cutler v. Smith, 57 111. 2.52; Farwell v. Warren, 70 111. 28; Collins v. Council Bluffs, 35 Iowa, 432; Goetz V. Ambs, 27 Mo. 28; Borland v. Barrett, 76 Va. 128; Rogers v. Henry, 32 Wis. 327. t'o Sodg. Dam. § 370. Exemplary damages cannot be recovered in actions of contract. Guildford v. Anglo-French Steamship Co., 9 Can. Sup. Ct. 303. 51 McPherson v. Ryan, 59 Mich. 33, 26 N. W. 321; Johnson v. Jenkins, 24 N. Y. 252; Thorn v. Knapp, 42 N. Y. 474; Chellis v. Chapman, 125 N. Y. 214, 26 N. E. 308. 62 Floyd V. Hamilton, 33 Ala. 235; Richmond v. Shickler, 57 Iowa, 486, 10 N. W. 882; Renkert v. Elliott, 11 Lea, 235. Contra, Cobb v. People, 81 111. 511; McClendon v. Wells. 20 S. C. 514. Exemplary damages are not recoverable against the sureties on a bond for a distress warrant. Ham- ilton V. Kllpatrick (Tex. Civ. App.) 29 S. W. 819. Sureties on sequestration or replevin bonds are not liable for exemplary damages on account of tlie malice of the principal. McArthur v. Barnes (Tex. Civ. App.) 31 S. W. 212. And see North v. Johnson, 58 Minn. 242, 59 N \V. 1012. 63 All claims to exemplary damages are waived by coming iiilo e(iuily. Bird V. Railroad Co., S Rich. Eq. 46. 211 KXEMPLAUY DAMAGES. (Ch. 7 for assault and battery, °* false imprisoument,^^ malicious prosecu- tion,^" defaiiiatiou,^^ willful injuries to person ^^ or property,^® 6* Buiuly V. Magiuess, 76 Cal. 532, IS Pac. OGS; Smith v. Bagwell, 1S> Fla. 117; McNamara v. King, 7 111. 432; Reeder v. Purdy, 48 111. 261; Drolin V. Brewer, 77 111. 280; Harrison v. Ely, 120 111. S3, 11 N.* E. 334; Root v. Sturtlivant, 70 Iowa, 55, 29 N. W. S02; Titus v. Corkius, 21 Kan. 722; Slater V. Sherman, 5 Bush, 206; Pike v. Dilling, 48 Me. 53'J; Webb v. Oilman, 80 Me. 177, 13 Atl. 688; President, etc., of Baltimore & Y. Turnpike Road v. Boone, 45 Md. 344; Elliott v. Van Buren, 33 Mich. 49; Crosby v. Hum- phreys, 59 Minn. 92, 60 N. W. 843; Green v. Craig, 47 Mo. 90; Caufield v. Chicago, R. I. & P. R. Co., 59 Mo. App. 354; Cook v. Ellis, 6 Hill, 466; Louder v. Hinson, 4 Jones (N. C.) 369; Porter v. Seller, 23 Pa. St. 424; Newell V. Whitcher, 53 Vt. 5S9; Borland v. Barrett, 76 Va. 12S; Shay v. Thompson, 59 Wis. 540. 18 N. W. 473. C5 Huckle V. Money, 2 Wils. 205; Bradley v. Morris, Busb. 395; McCarthy V. De Armit, 99 Pa. St. 63; Grohmann v. Kirschman, 168 Pa. St. 189, 32 Atl. 32; Clissold v. Machell, 26 U. C. Q. B. 422. 50 Donnell v. Jones, 13 Ala. 490; Coleman v. Allen, 79 Ga. 637, 5 S. E. 204; Parkhurst v. Masteller, 57 Iowa, 474, 10 N. W. 864; McWilliams v. Hoban, 42 Md. 56; Peck v. Small, 35 Minn. 465, 29 N. W. 69; Winn v. Peckham, 42 Wis. 493; Spear v. Hiles, 67 Wis. 350, 30 N. W. 506: Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101. 5 7 Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202; Binford v. Young, 115 Ind. 174, 16 N. E. 142; Daly v. Van Benthuysen, 3 La. Ann. 69; Buckley v. Knapp, 48 Mo. 152; Nicholson v. Rogers, 129 Mo. 136, 31 S. W. 260; King v. Root, 4 Wend. 113; Sowers v. Sowers, 87 N. C. 303; Press Pub. Co. V. McDonald, 11 C. C. A. 155, 63 Fed. 238; Barr v. Moore. 87 Pa. St. 385; Rea v. Harrington, 58 Vt. 181, 2 Atl. 475; Harman v. Cundiff, 82 Va. 239; Haines v. Schultz, 50 N. J. Law, 481, 14 Atl. 4SS (newspaper libel); Klewin v. Bauman, 53 Wis. 244, 10 N. W. 398. Express malice must be shown. Republican Pub. Co. v. Conroy, 5 Colo. App. 262, 38 Pac. 423; Childers v. Publishing Co., 105 Cal. 284, 38 Pac. 903. Cf. Smith v. Matthews, 9 Misc. Rep. 427, 29 N, Y. Supp. 1058. The falsity of the defamation is evi- dence of malice. Bergmann v. Jones, 94 N. Y. 51. But exemplary damages may be recovered, in the absence of express malice, if the defamation was wanton. Bowden v. Bailes, 101 N. C. 612, 8 S. E. 342. The bad character of plaintiff is admissible in mitigation of exemplary damages. Maxwell v. Kennedy, 50 Wis. 645, 7 N. W. 657. 5 8 Dalton V. Beers, 38 Conn. 529; Georgia R. R. v. Olds, 77 Ga. 073; .Joffer- sonville R. Co. v. Rogers, 38 Ind. 116; Philadelphia, W. & B. R. Co. v. Larkin, 47 Md. 155; Knowles v. Railroad Co., 102 N. C. 59, 9 S. E. 7; Higgins v. Rail- road Co., 64 Miss. 80, S South. 176; Dorrah v. Railroad Co., 65 Miss. 14, 3 South. 36; Louisville & N. R. Co. v. Greer (Ky.) 29 S. W. 337. 69 U. S. V. Taylor, 35 Fed. 484; Devaughu v. Heath, 37 Ala. 595; Bales v. §§ 8")-S6) WHEN RECOVERABLE. 215 and in actions of trover ^° and replevin.®^ In actions founded on loss of service, as for enticement,®^ seduction,®^ criminal conver- sation,®* and for harboring plaintiff's wife,®° exemplary damages may be recovered.®® Exemplary Damages for Torts Which are Also Crimes. In actions of tort, where the tort is also a crime, it is held, in some jurisdictions, that exemplary damages cannot be recovered; for the defendant would be thereby subjected to double punishment Clark, 15 Ark. 452; Curtiss v. Hoyt, 19 Ctonn. 154; Shores v. Brooks, 81 Ga. 46S, 8 S. E. 429; Cutler v. Smith, 57 111. 252; Chicago & I. R. Co. v. Baker, 73 111. 316; Keirnan v. Heaton, G9 Iowa, 136, 28 N. W. 478; Briggs v. Mil- Ijurn, 40 Mich. 512; Craig v. Cook, 28 Minn. 232, 9 N. W. 712; Parker v. Shackelford, 61 Mo. 68; Perkins v. Towle, 43 N. H. 220; Winter v. Peterson, 24 N. J. La-sv. 524; AUaback v. Utt, 51 N. Y. 651; Greenville & C. R. Co. v. Partlow, 14 Rich. (S. C.) 237; Cox v. Crumley, 5 Lea (Tenn.) 529; Cook v. Garza, 9 Tex. 358; Camp v. Camp, 59 Yt. 667, 10 Atl. 748; Koenigs v. Jung, 73 Wis. 178, 40 X. W. 801; Cumberland Tel. & Tel. Co. v. Poston, 94 Tenn. (;96, 30 S. W. 1040 (wanton destruction of ornamental trees). 60 Dennis v. Barber, 6 Serg. & R. 420; Harger v. McMains, 4 Watts, 418; Taylor v. Morgan, 3 Watts, 333; Silver v. Kent, 60 Miss. 121. Contra, Berry V. Vantries, 12 Serg. & R. 89. 61 Cable V. Dakin, 20 Wend. 172; McDonald v. Scaife, 11 Pa. St. 381; Brizoe v. Maybee, 21 Wend. 144; Holt v. Van Eps, 1 Dik. 206, 40 N. W. 689; Whit- field v. Whitfield, 40 Miss. 352; McCabe v. Morehead, 1 Watts & S. 513; ,Scho- field v. Ferrers, 46 Pa. St. 438; Single v. Schneider, 30 Wis. 570. Contra, Butler V. Mehrling, 15 111. 488; Hotchkiss v. Jones, 4 Md. 260. It would seem that the rule should be the same in actions of detinue. Whitfield v. Whitfield, 40 Miss. 352. Contra, McDonald v. Norton, 72 lOAva, 052, 34 N. W. 458. 62 Smith V. Goodman, 75 Ga. 198; Tyson v. Ewing, 3 J. J. Marsh. 185; Bix- by V. Dunlap, 56 N. H. 456; Magee v. Holland, 27 N. J. Law, 86. 63 Robinson v. Burton, 5 liar. (Del.) 335; Grable v. Margrave, 4 111. 372; Stevenson v. Belknap, 6 Iowa, 97; Fox v. Stevens, 13 Minn. 272 (Gil. 252); Lavery v. Crooke, 52 Wis. 612, 9 N. W. 599. 64 Johnson v. Disbrow, 47 Mich. 59, 10 N. W. 79; Matlieis v. Mazet. 161 I'a. St. 580, 30 Atl. 431. See Williams v. Williams, 20 Colo. 51, 37 Pao. 614 (ac- tion by wife for enticing away husband). C3 Johnson v. Allen, 100 N. C. 131, 5 S. E. 666. 60 In case of physical injury to a child or servant, exemiUary danuiges can be recovered only in an action by the child or servant. They cannot be re- covered in an action by the master or parent for loss of services. IUa<'k v. Railroad Co., 10 La. Ann. 33; Hyatt v. Adams, 16 Mich. ISO; Wliilii.'y v. Hitchcock, 4 Denio, 461. Contra, Kliiiginau v. Ilnliucs, .'.1 M... ."ol. 216 EXEMPLARY DAMAGES. (Ch. 7 for the same offense."'' In other jurisdictions, this is considered no objection to the allowance of exemplary damages, and it is not even admissible in mitigation."* "Judgment for the criminal offense is for the offense against the public. Judgment for the tort is for the offense against the private sufferer. * * » Though punitory damages go in the right of the public, for example, they do not go by way of public punishment, but by way of private damages, — for the act as a tort and not as a crime, — to the private sufferer and not to the state. Though they are allowed beyond compensation of the private sufferer, they still go to him, for himself, as damages allowed to him by law, in addition to his actual damages, like the double and treble damages sometimes allowed by statute. Consid- ered as strictly punitory, the damages are for the punishment of the private tort, not of the public crime." "" This reasoning is not very satisfactory. As has been well said,''" after there has been one trial, in which defendant's culpability has been tried with a view to punishment in the interest of the public, any other trial for the same purpose, whatever may be the form of the proceeding, is, in sub- stance, putting the accused again in jeopardy of punishment for the same offense, and vexing him again for the same cause. In some 6 7 Murpby v. Hobbs, 7 Colo. 541, 5 Pac. 119; Huber v. Teuber, 3 McAr- tbur, 484; Cherry v. McCall, 23 Ga. 193; Taber v. Hutson, 5 Ind. 322; But- ler V. Mercer, 14 Ind. 479; Nossaman v. Rickert, 18 Ind. 350; Humphries v. Johnson, 20 Ind. 190; Meyer v. Bohlfing, 44 Ind. 238; Ziegler v. Powell, 54 Ind. 173; Stewart v. Maddox, G3 I-^d. 51; Farman v. Lauman, 73 Ind. 5G8; Austin V. Wilson, 4 Cush. 273; Fay v. Parker, 53 N. H. 342. 6 8 Brown v. Evans, 8 Sawy. 4SS, 17 Fed. 912; Phillips v. Kelly, 29 Ala. G28; Wilson v. Middleton, 2 Cal. 54; Bundy v. Maginess, 76 Cal. 532, 18 Pac. 6GS; Jefferson v. Adams, 4 Har. 321; Smith v. Bagwell, 19 Fla. 117; Hendrickson v. Kingsbury, 21 Iowa, 379; Garland v. Wholeham, 2G Iowa, 185; Guengerich v. Smith, 36 Iowa, 587; Redden v. Gates, 52 Iowa, 210, 2 N. W. 1079; Chiles v. Drake, 2 Mete. (Ky.) 146; Elliott v. Van Bureu, 33 Mich. 49; Boetcher v. Staples, 27 Minn. 308, 7 N. W. 263; Wheatley v. Thorn, 23 Miss. 62; Corwin v. Walton, 18 Mo. 71; Cook v. Ellis, G Hill, 4GG; Sowers V. Sowers, 87 N. C. 303; Roberts v. Mason, 10 Ohio St. 277; Barr v. Moore, 87 Pa. St. 385; Wolff v. Cohen. 8 Rich. 144; Cole v. Tucker. 6 Tex. 2GG; Ed- wards V. Leavitt, 46 Vt. 126; Klopfer v. Bromme, 26 Wis. 372; Brown v. Swineford, 44 Wis. 282; Corcoran v. Harran, 55 Wis. 120. 12 N. W. 468. 69 Brown v. Swineford, 44 Wis. 285. See, also. Fry v. Bennett, 4 Duor, 247. 7 Suth. Dam. § 402, § 87) LIABILITY OF PRINCIPAL FOR ACT OF AGENT. 217 jurisdictions, the verdict and judgment in the first trial are admissi- ble in mitigation on the second.''^ LIABILITY OF PRINCIPAL FOE ACT OF AGENT. 87. A principal is not liable to exemplary damages for the tort of his agent or servant, unless he author- ized or ratified the act as it -was performed, or -was himself guilty of negligence. EXCEPTION — In some jurisdictions, if the principal is liable for compensatory damages, he is liable also for exemplary damages, if the agent or servant •would be. Exemplary damages, being designed as a punishment, cannot just- ly be inflicted in the absence of fault, and therefore cannot be re- covered in an action against a principal for the act of his agent or servant,^ ^ unless he authorized or ratified the act as it was per- formed,^^ or was himself guilty of negligence in employing the agent,^* or in not preventing the act.^^ "For injuries by the neg- ligence of a servant w^hile engaged in the business of the master, within the scope of his employment, the latter is liable for com- pensatory damages; but for such negligence, however gross or cul- pable, he is not liable to be punished in punitive damages unless he 71 Taylor v. Carpenter, 2 Woodb. & M. 1, 23, Fed. Gas. No. 13,785; State v. Autery, 1 Stew. (Ala.) 399; Johnstou v. Crawford, 62 N. C 342; Porter v. Seller, 23 Pa. St. 424; Smithwick v. Ward, 7 Jones (N. O.) &4; Sowers v. Sowers, 87 N. C. 303; Flanagan v. Womack, 54 Tex. 45; Shook v. Peters, 59 Tex. 393. '2 The Amiable Nancy, 3 Wheat. 54G; Pollock v. Gantt, 09 Ala. 373; Burns V. Campbell, 71 Ala. 271; Wardrobe v. Stage Co., 7 Cal. 118; Mcndolsohn V. Anaheim Lighter Co., 40 Cal. 657; Grund v. Van Vleck, 69 111. 478; Keene V. Lizardi, 8 La. 26; Boulard v. Calhoun, 13 La. Ann. 445; Te,\as T. R. Co. V. .Tohnson. 75 Tex. 1.58. 12 S. W. 482. 73 Lienkauf v. Morris. 66 Ala. 406; Becker v. Dujjri-o, 75 111. 167; Evistou v. Cramer, .57 Wis. 570, 15 N. W. 760; Kilpatrick v. Haley. (i6 Fed. 133, 13 0. C. A, 480. 74 Burns v. Campbell, 71 Ala. 271; Sawyer v. Saner, 10 Kan. 466. 7B Freese v. Tripp. 70 111. 496; Kohrlg v. Potors, 41 Mich. 475, 2 N. W. SOI. 218 EXEMPLARY DAMAGES. (Ch. 7 is chargeable with gross misconduct. Such misconduct may be established bv showing that the act of the servant was authorized or ratified, or that the master employed or retained the servant knowing that he was incompetent, or from bad habits unfit for the position he occupied." ^^ It is, however, sometimes held that, if the principal is bound to make compensation for the act of his servant or agent, he is also liable to exemplary damages if the servant or agent would be.'''' In those jurisdictions where exemplary damages are in fact compensatory, the master is liable for such damages, if liable at all. Liability of Corporations. It is usually held that corporations are liable to exemplary dam- ages for the acts of their agents or servants, in cases where the agent or servant w^ould be liable to such damages.''* This is placed on 7 Cleghorn v. Railroad Co., 56 N. Y. 44. See, also, Sullivan v. Navigation Co., 12 Or. 392, 1 Pac. oOS; Mace v. Reed. 89 Wis. 440, 62 N. W. 186. Cf. Memphis & C. Packet Co. v. Nagel (Ky.) 29 S. W. 743. 7T Hazard v. Israel, 1 Bin. 240; Southern Exp, Co. v. Brown, 67 Miss. 260, 7 South. 318, and 8 South. 425. Exemplary damages may be recovered against a firm for the act of one partner in the course of the partnership business. Robinson v. Goings, 63 Miss. 500. 7 8 Citizens' St. Ry. Co. v. Steen, 42 Ark. 321; W. U. Tel. Co. v. Eyser, 2 Colo. 141; Flannery v. Raili'oad Co., 4 Mackey, 111; Illinois Cent. R. Co. v. Hammer, 72 111. 353; Singer Manuf'g Co. v. Holdfodt, 86 111. 455; Wabash, St L. & P. Ry. Co. V. Rector, 104 111. 296; Wheeler & Wilson Manuf'g Co. v. Boyce, 36 Kan. 350, 13 Pac. 609; Southern Kansas R. Co. v. Rice, 38 Kan. 398, 16 Pac. 817; Bowler v. Lane, 3 Mete. (Ky.) 311; Jacobs v. Railroad Co., 10 Bush. 263; Central Pass. R. Co. v. Chatterson (Ky.) 29 S. W. 18; Louis- ville & X. R. Co. V. Ballard, 85 Ky. 307, 3 S. W. 530; Goddard v. Railway Co., 57 Me. 202; Hanson v. Railroad Co., 62 Me. 84; Baltimore & O. R. Co. V. Blocher, 27 Md. 277; President, etc., of Baltimore & Y. T. R. v. Boone, 45 Md. 344; Baltimore & O. R. Co. v. Barger, 80 Md. 23, 30 Atl. 560; Philadel- phia, W. & B. R. Co. V. Larkin, 47 ^Id. 155; Yicksburg & J. R. Co. v. Patton, 31 Miss. 156; Perkins v. Railroad Co., 55 Mo. 201; Travers v. Railway Co., 63 Mo. 421; Canfield v. Railroad Co., 59 Mo. App. 354; Belknap v. Railroad Co., 49 N. H. 358; Atlantic & G. W. Ry. Co. v. Dunn, 19 Ohio St. 162; Lake Shore & M. S. Ry. Co. v. Rosenzweig, 113 Pa. St. 519, 6 Atl. 545; Philadelphia Traction Co. v. Orbann, 119 Pa. St. 37, 12 Atl. 816; Quiun v. Railway Co., 29 S. C. 381, 7 S. E. 614; Louisville & N. R. Co. v. Garrett, 8 Lea, 438. A rail- road company has been held liable for exemplary damages for the act of a corporation operating its road as a lessee, see Hart v. Railroad Co., 33 S. C. § 87) LIABILITY OF PRINCIPAL FOR ACT OF AGENT. 219 the ground that otherwise corporations would never be liable for exemplary damages, since they can act only by agents or servants. Thus it has been said:^^ ''We confess that it seems to us that there is no class of cases where the doctrine of exemplary damages can be more beneficially applied then to railroad corporations in their ca- pacity of carriers of passengers; and it might as well not be applied to them at all as to limit its application to cases where the servant is directly or impliedly commanded by the corporation to maltreat and insult a passenger, or to cases when such act is directly or im- pliedly ratified; for no such cases will occur. A corporation is an imaginary being. It has no mind but the mind of its servants. It has no voice but the voice of its servants. It has no hands with which to act but the hands of its servants. All its schemes of mis- chief, as well as schemes of public enterprise, are conceived by hu- man minds and executed by human hands. All attempts, therefore, to distinguish between the guilt of the servant and the guilt of the corporation, or the malice of the servant and the malice of the cor- poration, or the punishment of the servant and the punishment of the corporation, are sheer nonsense, and only tend to confuse the mind and confound the judgment." In many jurisdictions, however, the same rule is applied to corporations as is applied to individuals, and the corporation is not liable unless it authorized or ratified the act.^** Obviously, a corporation can authorize or ratify an act of 427, 12 S. E. 9; and for act of conductor in ejecting passenger, Soutbern Kansas R. Co. v. Rice, 38 Kan. 398, 16 Pac. 817; Goddard v. Railroad Co., 57 Me. 202; Lucas v. Railroad Co., 98 Mich. 1, 56 N. W. 1039; Louisville, N. A. & C. R. Co. V. Wolfe, 128 Ind. 347, 27 N. B. 606. Cf. Lake Shore & M. S. R. Co. V. Prentice. 147 U. S. 101. 13 Sup, Ct. 261. TO Goddard v. Railway Co., 57 Me. 202, 223. See, also, Hanson v. Railway Co., 62 Me. 84. 80 City Nat. Bank v. Jeff.ries, 73 Ala. 1S3; Turner v. Railroad Co., 34 Cal. 594; Mendelsohn v. Lighter Co., 40 Cal. 657; McCoy v. Railroad Co., 5 Houst. 599; Hill v. Railroad Co., 11 La. Ann. 292; Great Western Ry. Co. v. Miller, 19 Mich. 305; Ackerson v. Railway Co., 32 N. J. Law, 254; Murphy v. Rail- road Co., 48 N. Y. Super. Ct. 90; Sullivan v. Navigation Co., 12 Or. 392; Koll V. Gas Co., 131 Pa. St. 466, 19 Atl. 78. Cf. Lake Shore & M. S. Ry. Co. v. Rosenzwelg, 113 Pa. St. 519, 6 Atl. 545; IMiiladelphla Traction Co. v. Orbann, 119 Pa. St. 37, 12 Atl. 816; Ilagnn v. Uaihoad Co.. 3 R. I. 88; Hays v. Rail- road Co., 40 Tex. 272; Galvostoii, II. .Vc S. A. Uy. Co. v. Donalioe, 56 Tex. 162; -20 EXEMPLARY DAMAGES. (Cll. 7 nil agent onl}' by the act of another agent. A distinction must "be drawn between directors and other agents, whose acts are the acts of the corporation, and mere servants. luteruational & G. N. R. Co. v. Garcia, 7u Tex. 207, 7 S. W. 802; Ilicketts v. liailway Co., 33 W. Va. 433, 10 S. E. 801; Milwaukee & M. R. Co. v. Kinney, 10 Wis. 388; Bass v. Railway Co., 36 Wis. 450, 39 Wis. 63G; Craker v. Rail- n\ay Co., 36 Wis. 657: Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760; Lake Shore c*c M. S. R. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 2G1; The Nor- mannia, 62 Fed. 469; Beers v. Packet Co., Id. Where a railroad company rat- ifies the malicious act of its conductor in removing a passenger from a train with unnecessary force, it is liable for exemplary damages. International & G. N. Ry. Co. V. Miller (Tex. Civ. App.) 28 S. W. 233. § 88) PLEADING AND PRACTICE. 221 CHAPTER Vm. PLrEADl.NG AND PRACTICE. 88. Allegation of Damage— The Ad Da r num. 89t-91. Form of Statement. 92-93. Fiovince of Court and Jury. ALLEGATION OF DAMAGE— THE AD DAMNUM. 88. When the object of an action is to recover damages, the declaration should allege that the injury is to the damage of the plaintiff, and the amount of the damage should be stated. The recovery cannot, in general, exceed the amount specified, though it may be less. The declaration in an action at law consists of a statement of the facts upon which plaintiff bases his right to relief. When the ac- tion is to recover damages, the declaration should allege that the facts resulted in damage to the plaintiff. The amount should be stated, and should be fixed sufficiently high to cover the real de- mand, as the plaintiff cannot, in general, recover a greater amount than he has alleged.^ But the jury may find a less amount than i Annis v. Upton, G6 Barb. 370; Mclntire v. Clark, 7 Wend. 330; Lake v. Merrill, 10 N. J. Law, 288; Herbert v. Hardenbergh, Id. 222; Hawk v. Ander- son, 9 N. J. Law, 319; Stafford v. City of Oskaloosa, 57 Iowa, 748. 11 N. W. COS; Davenport v. Bradley, 4 Conn. 309; Henderson v. Stainton, Hardin, 123; Robinett v. Morris' Adm'rs, Id. 93; Tyuer v. Hays, 37 Ark. .")99; White v. Cannada, 25 Ark. 41; Snow v. Grace, Id. 570; Derrick v. Jones, 1 Stow. (Ala.) 18; Hall v. Hall, 42 Ind. 585; McWhorter v. Sayre, 2 Stew. (Ala.) 225; Rowan V. Lee, 3 J. J. Marsh. 97; Edwards v. Wiester, 2 A. K. Marsh. 382; Cheveley V. Moi-ris, 2 W. Bl. 1.300; Curtiss v. Lawrence, 17 Johns. Ill; Fish v. Dodge. 4 Denio, 311; Pierson v. Finney, 37 111. 29: KcUey v. Bank, G4 111. 541; Lantz V. Froy, 19 Pa. St. 3GG; David v. Conard, 1 Greene (Iowa) 33G; Cameron v. Boyle, 2 Greene (Iowa) 154. But see Calumet Iron & Steel Co. v. Martiu, 115 111. .3.58, 3 N. E, 45G, where it was held error to instruct the jury not to ;,'lve damages above the ad damnum. The error in roiidcrlng a verdict in excess of tlic ad damnum may be cured Ijy plaintiff romittin;; the o.\ccss, or the nd damnum may be amended. Ilaiiis v. .laffray, 3 liar. iV: J. 51."!; Caliill v. 222 PLEADING AND PRACTICE. (Ch. 8 that alleged. The mere fact that a plaintiff claims more than the facts alleged entitle him to will not render the declaration demur- rable,^ but he cannot recover more than the facts will warrant.^ After verdict, it will be presumed that the damages were assessed according to the proof.'* The portion of the declaration alleging and claiming damages is call the "ad damnum." It is usually considered as a legal conclu- sion from the facts stated. Where this is true, it cannot be trav- ersed, and is not admitted by a failure to answer or deny it.^ It is a matter of form, not of substance." If it is omitted, or left blank, the judgment is not for that reason void.'^ In some jurisdictions the allegation of the amount of damages is considered an allegation of fact, and traversable.® In code states a declaration will not sup- Pintony, 4 Munf. 371; Schneider v. Seeley, 40 111. 257; Pickerinj? v. Pulsifer, 9 111. 79; Grass Val. Quartz Min. Co. v. Stackhouse, 6 Cal. 413; Lantz v. Frey, 19 Pa. St. 366. See Corning v. Corning, 6 N. Y. 97; Tyner v. Hays, 37 Ark. 599; Miller v. Weeks, 22 Pa. St. 890; McClannaban v. Smith, 76 Mo. 42S; Johnson v. Brown, 57 Barb. 118; Deane v. O'Brien, 13 Abb. Prac. 11; Dress- ier V. Davis, 12 Wis. 58; Moore v. Tracy, 7 Wend. 229; Palmer v. Wylie, 19 Johns. 276; Jackson v. Covert's Adm'rs, 5 Wend. 139; Crabb's Ex'rs v. Bank, 6 Yerg. 332. Where double damages are claimed, the ad damnum limits the actual damage. Rosevelt v. Hanold, 65 Mich. 414, 32 N. W. 443. 2 Lelaud v. Tousey, 6 Hill, 328; W. U. Tel. Co. v. Hopkins, 49 Ind. 223. 8 Murphy v. Evans, 11 Ind. 517; Wainwright v. Weske, 82 Cal. 196, 23 Pac. 12. * Van Rensselaer's Ex'rs v. Platner's Ex'rs, 2 Johns. Cas. 17. 5 Jenkins v. Steanka, 19 Wis. 126; Bartelt v. Braunsdorf, 57 Wis. 1, 14 N. W. 869; Raymond v. Traffarn, 12 Abb. Prac. 52; Woodruff v. Cook, 25 Barb. 505; McKensie v. Farrell, 4 Bosw. 192; Thompson v. Lumley, 7 Daly, 74; Newman v. Otto, 4 Sandf. 668; McLees v. Felt, 11 Ind. 218. 6 Connoss v. Meir. 2 E. D. Smith, 314 T Galena & C. U. R. Co. v. Appleby, 28 111. 283; Mattingly v. Darwin, 23 111. 618; Hargrave v. Penrod, 1 111. 401; Bank of Metropolis v. Guttschlick, 14 Pet. 19; Stephens v. White, 2 Wash. (Va.) 260. See, also, Kennedy v. Woods, 3 Bibb, 322; Digges v. Norris, 3 Hen. & M. 268; Palmer v. Mill, Id. 502. 8 Brownson v. Wallace, 4 Blatchf. 465, Fed. Cas. No. 2,042; Tucker v. Parks, 7 Colo. 62, 1 Pac. 427; Carlyon v. Lannan, 4 Nev. 156; Cole v. Hoeburg, 36 Kan. 203, 13 Pac. 275; White v. Stage Co., 5 Or. 99. Failure to deny the amount claimed admits that that is the correct amount due. Huston v. Rail- road Co., 45 Cal. 550; Dimick v. Campbell, 31 Cal. 23S; Patterson v. Ely. 19 Cal. 28. •§§ 89-91) ALLEGATION OF DAMAGE FORM OF STATEMENT. 223 port a judgment by default unless it contains an allegation of dam- ages.* SAME— FORM OF STATEMENT. 89. With respect to questions of pleading, damages are divided into two classes: (a) General, and (b) Special. 90. General damages are such as necessarily result from the -w^rong complained of. They are therefore pre- sumed by law, and need not be specifically alleged. 91. Special damages are such as are not the necessary consequence of the wrong complained of, but w^hich actually occur as a proximate result thereof. They are not presumed by law, and must be pleaded spe- cially and circumstantially, or compensation there- for cannot be recovered. Mr. Chitty says: "Damages are either general or special. Gen- eral damages are such as the law implies or presumes to have ac- crued from the wrong complained of. Special damages are such as really took place, and are not implied by law, and are either super- added to general damages arising from an act injurious in itself, — as when some particular damage arises from the uttering of slander- ous words actionable in themselves, — or are such as arise from an act indifferent, and not actionable in itself, but only injurious in its consequences."^" Again: "It docs not appear necessary to state the former description of the damages in the declaration, because presumptions of law are not, in general, to be pleaded or averred as facts. ♦ * ♦ But, when the law does not necessarily imply that 9 Simonson v. Blake, 12 Abb. Prac. 331; Waltou v. Walton, ;52 Barb. 20;',; Pittsburgh Ckial Min. Co. v. Greenwood, 39 Cal. 71; Gautier v. Euglish, 21) Cal. 1G5; Parrott v. Den, 34 Cal. 79. In some states, by statute, in actinns of ccii- tract, damages need not be proved. Cole v. Hoeburg, 3(5 Kan. 2'i;5, 13 Pac. 275; White v. Stage Co., 5 Or. 99. See, also, Bartk-lt v. Bank, 79 ("al. 21S. 21 Par-. 743. 10 Chit. PI. 410. 224 PLEADIxXG AND PRACTICE. (Cll. 8 the plaintiff sustained the damages by the act complained of, it is essential to the validity of the declaration that the resulting damage should be shown with particularity. * * * And whenever the damages sustained have not necessarily accrued from the act com- plained of, and consequently are not implied by law, then, in order to prevent surprise on the defendant, which might otherwise ensue at the trial, the plaintiff must, in general, state the particular dam- age which he has sustained, or he will not be permitted to give evi- dence of it. Thus, in an action of trespass and false imprisonment^ where the plaintiff offered to give in evidence that during the im- prisonment he was stinted in his allowance of food, he was not per- mitted to do so, because the fact was not, as it should have been, stated in the declaration; and in a similar action it was held that the plaintiff could not give evidence of his health being injured, un- less specially stated. So, in trespass 'for taking a horse,' nothing can be given in evidence which is not expressed in the declaration; and, if money was paid over in order to regain possession, such pay- ment should be alleged as special damages." ^^ These rules are equally applicable to pleadings under the code or common-law sys- tems. It has been seen that nominal damages can be recovered only In cases where the law will presume damage.^ ^ Such damages are necessarily general. They could not be specially pleaded. All that is necessary is that the declaration shall state facts constituting a cause of action.^' Compensatory damages, strictly so called, may be either general or special. In either case the plaintiff must prove the amount. If they are general, the law may presume that some such damage re- sulted, but it cannot presume anything as to its amount. The plaintiff must therefore show the amount by evidence, or only nom- inal damages can be recovered.^* Where compensation is sought 11 Id. 411. 12 See ante, p. 24. 13 Cowley V. Davidson, 10 Minn. 392 (Gil. 314); Hood v. Palm, 8 Pa. St. 237; Parker v. Griswold, 17 Conn. 2SS. 1* See ante, pp. 25, 70; Sutli. Dam. § 9; Scdg. Dam. § 97; Frcese v. Crary, 29 Ind. 524; Carl v. Coal Co., 69 Iowa, 519, 29 N. W. 437; Thorp v. Bradley, 75 Iowa, 55, 39 X. W. 177; Bruce v. Pettengill, 12 N. H. 341. §§ 89-91) ALLEGATION OF DAMAGE FORM OF STATEMENT. 225 for special damage, its amount must be proved, at least approxi- mately, or nothing can be recovered. Exemplary damages need not be specially pleaded.^' The rules of pleading do not require that the circumstances which attend the tort shall be specially averred, in order to entitle the plaintiff to damages commensurate with them. They are matters of evidence, and should not be pleaded. If outrage and oppression attend a tort, they belong to the wrongful act itself, and are not merely spe- cial injury.^® "In trespass you may charge and prove the whole circumstances accompanying the act, and which were part of the res gestae, in order to show the temper and purposes with which the trespass was committed." ^^ It has been held that, where ex. emplary damages are claimed on the ground of malice, malice must be pleaded.^* Illustrations. Bodily and mental suffering are the necessary consequence of a personal injury. They are therefore general, and not special items of damage, and may be proved without being pleaded.^® In an ac- tion for personal injuries, under an allegation that plaintiff was thereby prevented from attending to his ordinary business, he cannot iBGustafson v. Wind, C2 Iowa, 281. 17 N. W. 523; Andrews v. Stone. 10 Minn. 72 (Gil. 52); Wilkinson v. Drew, 75 Me. 300; Southern Exp. Co. v. Brown, 67 Miss. 260, 7 South. 31S, and 8 South, 425; Savannah, P. & W. Ry. Co. V. Holland, 82 Ga. 257, 10 S. E. 200; Alabama G. S. R. Co. v. Arnold, 84 Ala. 159, 4 South. 359. Contra, International & G. N. R. Co. v. Smith, 02 Tex. 252; Galveston, H. & S. A. R. Co. v. Le Gierse, 51 Tex. 189. 1 6 Per Strong, J., in Schofield v. Ferrers, 46 Pa. St. 438. Under some Codes, the facts justifying the allowance of exemplary damages must be pleaded. Welsh V. Stewart, 31 Mo. App. 370; Sullivan v. Navigation Co., 12 Or. 392, 7 Pac. 508. 1' Ogdon V. Gibbons, 5 X. .7. Law, 518. 18 .Johnson v. Railroad Co., 51 Iowa, 25. 50 N. W. ,543; Jones v. Marshall, 50 Iowa, 739, 10 N. W. 204. In an action for malicious prosecution, exemplary damages may be recovered without being specially pleaded, as such damages arise from the existence of malice. Davis v. Seeley (Iowa) 00 X. W. IS."?. 10 Bodily pain. Curtis v. Railroad Co., 18 N. Y. 534; Swarthout v. Steam- boat Co., 40 Barb. 222. Mental suffering. Gronan v. Kukkuck, 59 Iowa, 18, 12 N. W. 748; Brown v. Railroad Co., '.)'.) .Mo. 310, 12 S. W. 055; Central Railroad & Banking Co. v. Lanier, 83 Ga. 587. 10 S. E. 279; Wright v. Compton, 53 Ind. 337. LAW DAM. — 15 226 PLEADING AND PRACTICE. (Cll. S show the amount of his earnings in a particular business.'^" "As the business is not stated, nor any earnings or loss of earnings men- tioned, the allegation referred to can only be construed as intended to characterize the injury, and indicate its extent and permanence in a general way, which amounts simply to a claim for general dam- ages, and lays no foundation at all for proof of special damages. The evidence referred to was not intended simply to show the ef- fect and extent of the injury, but to enhance the damages, by show- ing tlie loss of earnings in a special employment, requiring some special skill and training. These damages, therefore, were not the necessary result of the acts set out in the declaration, and could not be implied by law; but they were special damages, which, in order to prevent a surprise upon the defendant, must be particularly spec- ified in the declaration, or the plaintiff will not be permitted to give evidence of them at the trial." ^^ An action for malicious prosecution can be sustained only on proof of damage. The law will not presume damage. Accordingly, special damage must be proved, in order to show an actionable wrong, and only such items of damage as are specially pleaded may be shown. Thus, damages for loss of credit or reputation cannot be recovered unless specially pleaded.-- Slanderous words spoken of one with reference to his calling are actionable per se. The law presumes damage. Hence damages may be recovered under the general allegation of damage for a general loss or decrease of trade.^^ But loss of particular customer* or sales is special damage, and must be alleged.^* The loss of use of property is a necessary consequence of its wrongful detention, and damages therefor may accordingly be recovered, though not spe- -so Tomlinson v. Derby, 43 Conn. 562. See, also, Wabash W. R. Co. v. Fried- man, 14G 111. 583, 30 N. E. 353, and 34 N. E. 1111. 21 Taylor v. Town of Monroe, 43 Conn. 36, 46. See. generally, Hunter v. Stewart, 47 Me. 419; Johnson v. Von Kettler, S4 111. 315; O'Leary v. Rowan, 31 Mo. 117. 2 2 Donnell v. Jones, 13 Ala. 490. See. also, Rowand v. Bellinger, 3 Strob. 373; Stanfield v. Phillips, 7S Pa. St. 73. 23 Foulger v. Xewcomb, L. R. 2 Exch. 327; Evans v. Harries, 1 Hurl. & N. 251. 2-1 See Heiser v. Loomis, 47 Mich. 16. 10 N. W. 60; Chicago W. D. R. Co. v. Klauber, 9 111. App. 613; Pollock v. Gantt, 69 Ala. 373. §§ 92-93) PKOVINCE OF COURT AND JURY. 227 cially pleaded." Expenses incurred in an attempt to avoid tlie con- sequences of defendant's wrong are special damages, and must be pleaded.^* Damages for the direct losses caused by a breach of contract may be recovered, though not specially pleaded. Such damages are the inevitable and necessary result of a breach. Thus, the profit which would have been realized as the direct result of work done at the ■contract price may be recovered, though not specially alleged.^'' In an action on an injunction or attachment bond, counsel fees incurred in dissolving the injunction or attachment must be specially pleaded. PROVINCE OF COURT AND JURY. 92. The measure of damages is a question of la^w, for the court. 93. The am.ount of damages is a question of fact, to be determined from the evidence by the jury. The jury are bound to follow the measure of damages laid do-wn by the court. It has already been stated that in the assessment of damages the general rule is that the measure of damages is a question of law, for the court, and the amount of damages is a question of fact for the jury. It is proposed here to examine more in detail the meaning and application of the general rule. The rule is equally applicable to cases of tort and cases of contract. Pecuniary Injuries. VHiieve an injury results only in pecuniary damage, the question for the jury is primarily of what items the loss consists, and, sec- 2 5 Woodruff V. Cook, 25 Barb. 505. Contra, Adams v. Gardner. 78 111. 5US. In trover or replevin, or trespass lor the destruetiou of property, loss of Ibo value of the property is the only damage presumed. Any other damages suffered must be specially pleaded. Schofield v. Ferrers, 40 Pa. St. 438; Brink v. FreofC, 44 Mich. (19, G N. W. 94; Stevenson v. Smith. IW Cal. lO'J; Burrage v. Melson, 48 Miss. 2:'.7. 28 Patten v. Libbey, 32 .Me. 37S; Teagarden v. IleUicld, 11 lud. 522. 27 Burrell v. Salt Co., 14 Mich. 34. See, also, T,ar!i\\:iy v. Perkins, 10 N. Y. 371; Ward v. Smith, 11 Price, 19; Drlggs v. I)\vi;,'lii, 17 Weml. 71. 228 PLEADING AND PRACTICE. (Ch. S ondly, what is the value of the thing lost. Both of these questions must be determined from the evidence, and according to the rule of damages laid down by the court. This is equally true in cases of contracts and cases of torts. "In cases where a rule can be dis- covered, the jury are bound to adopt it." ^^ The only difference be- tween contracts and torts is that in cases of contract the loss is usually wholly pecuniary, while in cases of tort the loss is perhaps quite as often nonpecuniary as otherwise. The items of loss, and the value of the thing lost, must be proved by evidence. Even in cases where the law will presume damage, it will not presume any definite amount of damage, and the jury are not allowed to find substantial damages in the absence of any evidence as to the actual amount.^" Where no damages are proved, a verdict for more than nominal damages will be set aside, unless it is a case where exem- plary damages are proper.^^ Where damages will not be presumed, the evidence must show substantial damages, or the verdict must be for defendant. Value cannot always be proved with exactness. The jury necessarily have a certain discretion within the range of 2 Walker v. Smith, 1 Wash. C. C. 1.j2. Fed Cas. No. 17,080. It is the duty of the court to define the elements of damag'^. and of the jury to assess them; and when the court fails so to do, but, on the contrary, instructs the jury that they may assess such damages as they think just, and take into considera- tion as elements of damages any items they think proper, svch instruction is- erroneous. Union Pae. Ry. Co. v. Shook (Kan. App.) 44 Pac. 685. 30 See ante, pp. 2o, 70. A default admits plaintiff's right to recover some dam- ages, but not the amount of damages. In the obsence of evidence as to the amount, plaintiff recovers only nominal damages. Chicago & I. R. Co. v. Baker, 73 111. 316. After default there cannot be a verdict for defendant. Nominal damages at least must be given. Ellis v. State, 2 Ind. 262. After default in an action for negligence, defendant may show, tor the purpose of reducing damages to a nominal sum, that he was not guilty of negligence. Batchelder v. Bartholomew, 44 Conn. 494. Where plaintiff claims exemplary aamages, and defendant defaults, plaintiff must give evidence of circum- stances justifying exemplary damages, or they cannot be given. Chicago «& I. R. Co. V. Baker, 73 111. 316. A demurrer admits all material facts welt pleaded, but does not admit the amount of damage, la the absence of proof, only nominal damages can be recovered. Crogan v. Schiele, 53 Conn 186, 1 Atl. 899, and 5 Atl. G73; Hanley v. Sutherland. 14 Me. 212. 31 Pittsburgh, C. & St. L. Ry. Co. v. Dcwin. 86 111. 28P; Cochrane v. Tuttlo.. 75 111. 361; Oakley Mills Manuf'g Co. v. Xeese, 54 Ga. 459; De Briar v. Min- turn, 1 Cal. 450; Smith v. Houston. 25 Ark. 183. |§ 92-93) PROVINCE OF COURT ANJJ JURY. 229 the testimony. But, \\liere the verdict is either much greater or much less than the amount proved, it will be set aside.^- "Where there is a legal measure of damages the jury must de- termine the amount as a fact according to that measure, otherwise the law which measures the compensation would be of no avail ; and whether they have done so or not, in a given case, may be proxi- mately seen by a comparison of the verdict with the evidence." ^* If the jury disregards the measure of damages given them by the court, or the court instructs them erroneously as to the measure of damages, the verdict may be set aside.^* Thus, in an action for breach of contract of sale, the ordinary measure of damages is the difference between the contract price and the market value at the time the goods should have been delivered. If the jury disregard this measure, and find a different sum, the verdict will be set aside. What is the contract price, and what is the market value, are ques- tions of fact, to be determined by the jury from the evidence. The jury may adopt as the market value any value between the highest and lowest values testified to, but the value adopted must be sus- tained by some evidence.^ ^ Similarly, in an action in tort for the simple conversion of property, the ordinary measure of damages is the value of the property at the time of conversion, with interest. A verdict for any other sum is erroneous.^* Nonpecnmiary Injuries. It is where a wrong causes nonpecuniary injuries that the jury have the widest discretion in determining the amount of damages 1o be awarded, though even here, as will be presently seen, their discretion is not wholly arbitrary. Nonpecuniary injuries most saCassell v. Hays, 51 111. 2G1; Ray v. Jofliies, 86 Kj. 3G7. 5 S. W. SOT; Jacksonville, T. & K. W. Ry. Co. v. Roberts, 22 Fla 324. 33 Suth. Dam. § 2, cited in Parke v. Frank. 75 Cal. 3G4, 17 Pac. 427. Where a verdict of a jury rests in calculation, and they fini excessive damages, a new trial may be granted. Nutter v. Railroad Co. 13 Ind. 479. 8< It is the duty of the court to set aside a verdict which is palpablv a^'ainst the law as applied to the facts found. McDonald v. Walter, 40 N. Y. 551, 553. 35 See Lockwood v. Onion, 50 111. 50(5; Wat-son v. Harmon. .S5 Mo. 443, 447; Nicholson v. Couch, 72 Mo. 20'. i. 3 See ante, p. 185. In trespass, where the Jury fail to give the enliro Talue of the property taken, the verdict will be set aside. Porteous v. Hagol, Harp. (S. C.) 332. 230 PLEADING AND PRACTICE. (Ch. 8 often occur in cases of tort, though thoy may result from a breach of contract, as, for instance, breach of promise of marriage, or fail- ure to deliver a telegram, resulting in mental suffering. There is no measure of damages possible for physical pain and inconvenience, or mental suffering. The amount of money which shall be considered as compensation for this class of injuries is necessarily left to the sound discretion of the jury. The court can merely instruct them what elements may be considered, and from their own experience and knowledge they must determine the amount to be awarded.^^ Setting Aside Verdicts. The court may set aside a verdict when it is against the weight of evidence, but it is with extreme reluctance that the power is exer- cised. A verdict will not be disturbed unless it is against the de- cided preponderance of the evidence, or is based on no evidence whatever.^* Nor will it be disturbed merely because the jury — one or all of them — have reasoned incorrectly. "If such a doctrine were to prevail, scarcely any verdict will stand. The trial by jury is not founded upon a supposition so absurd as that the whole twelve will reason infallibly from the premises to the conclusion." ^' Same — Excessive and Inadequate Damages. Where the damages awarded by a jury are excessive or inade- quate, the court, in the exercise of a sound discretion, may set the verdict aside. This is substantially on the ground that the verdict is against the evidence. The discretion of the court is not arbi- trary. If there is sufficient evidence to support the verdict, it can- not be set aside. When the injury is wholly made up of pecuniary elements, it is usually easy to see w'hether the damages awarded 37 The court cannot, merely because the damages are at large, leave the whole matter to the jury. "It must instruct them as to the proper measure of damages. An action is brought against a railroad company for wrongful refusal of admission to the train. The jury is told that plaintiff is entitled to such damages as will, under all the circumstances, compensate him. The verdict cannot stand. 'The court must decide and instruct the Jury in re- spect to what elements and within what limits damages may be estimated in the particular action.' Baltimore »!c O. R. Co. v. Carr, 71 Md. 135, 17 Atl. 1052. See Knight v. Egerton, 7 Exch. 407." Sodg. El. Dam. p. 142. 5 8 See Perry v. Robinson, 2 Tex. 490. 3 Per Maule, .7., quoted in Sedg. Dam. § i;j'JO. §§ 92-93) PROVINCE OF COURT AKD JURY. 231 are supported by the evidence."" In many actions of contract the damages may be calculated with almost mathematical certainty. Accordingly, it is in this class of cases that verdicts are most fre- quently set aside. But even in cases involving nonpecuniary in- juries, where there is no fixed measure of damages, and the auwunt is necessarily left to the sound discretion of a jury, the court may set aside the finding of the jury. In this class of cases, however, it is with the greatest caution and reluctance that the court will interfere.*^ This is because it is very difiBcult to say, in this class of cases, that the e\idence does not support the verdict. It is only in the clearest cases that the court will disturb the verdict.*^ "In 4 See Connelly v. McNeil, 2 Jones (N. C.) 51 (where interest was wrong- fully allowed); Havana, R. & E, R. Co. v. Walsh, 85 111. 58 (where a counter- claim was overlooked in estimating damages). See, also, Toledo, P. & W. R. Co. V. Patterson, 63 111. 304; Kolb v. O'Brien, 8G 111. 210; Farwell v. War- ren, 70 lU. 28; St. Louis, I. M. & S. Ry. Co. v. Hall. 53 Ark. 7, 13 S. W. 13S; Cram v. Hadley, 48 N. H. 191. 41 "It must not be supposed, however, that verdicts in cases of torts are be- yond control; but they should stand, unless they are grossly erroneous, or there is a palpable misconception of the testimony, or thej' are the result, plainly, of passion or prejudice." City of Ottawa v. Sweely, 65 111. 434, 436. See, also, City of Galesburg v. Higley, 61 111. 287; Scherpf v. Szadeozky, 4 E. D. Smith, 110; The Commerce, 16 Wall. 33; Murray v. Buell, 74 Wis. 14, 41 N. W. 1010; Chicago & N. W. Ry. Co. v. Peacock, 48 111. 253; Weaver v. Page, 6 Cal. 681 (!?15,000 for malicious prosecution sustained); Earth v. Merritt, 20 Mo. 567; Pittsburgh, C. & St. L. Ry. Co. v. Sponier, 85 Ind. 165; Ohio & M. Ry. Co. V. Judy, 120 Ind. 397, 22 N. E. 252; Wunderlich v. Mayor, etc., of New York. 33 Fed. 854; Goodno v. City of Oshkosh, 28 Wis. 300; Tennessee Coal & R. Co. V. Roddy, 85 Tenn. 400, 5 S. W. 286; Goetz v. Ambs, 27 Mo. 28. ■4 2 Whether or not a verdict is excessive must depend upon the facts of each case. Thus, in Missouri Pac. Ry. Co. v. Poay, 7 Tex. Civ. A pp. 400, 26 S. W. 768, $4,000 was held not excessive for ejection from^ car. Rut in Ilardenbergh v. Railroad Co., 41 Minn. 200, 42 N. W. 933. $800 was hold ex- cessive for ejection, nnd ijllOO was ordered remitted. !i;25,(X)0 is not excessive for injuries to a child. Dunn v. Railroad Co., 35 Minn. 73, 27 N. W. 448. .\or to a man rendered a hopeless cripple for life. Hall v. Railroad Co., 4(i Minn. 439, 49 N. W. 239; Wlllard v. Holmes (Com. PI.) 21 N. Y. Supp. 998. A verdict for $60,000 for false iniprisonmont lasting 35 days was held ex- cessive. Kilburn v. Thompson. 4 M!U'.\rlhur, 401. In Smith v. Whit tier, 95 Cal. 279-2.S3, 30 Pac. .529. will bo found a collection of small verdicts. :in.! at page 284, 95 Cal., and page 529. :\0 Vnc. of largo vordlcts. In llio following oases verdicts have been licld not excessive: Knee Imrt, l)ni ex- 232 PLEADING AND PRACTICE. (Ch. 8 all cases where there is no rule of law regulating the assessment of damages, and the amount does not depend on computation, the judgment of the jury, and not the opinion of the court, is to govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case." *^ The court, in setting aside a verdict for excessive damages, should ternal recovery, $5,000, Coggswell v. Railway Co., 5 Wash. 46, 31 Pac. 411. Broken rib and roughened pleura, $500, Evans v. City oi' Huntington. 37 W. Va. GDI, 10 S. E. 801. Broken thigh, $2,000, McDowell v. The France. 53 Fed. 843. Collar bone brokc?n and other injuries, $7,.o00, Galveston, II. & S. A. R. Co. V. Wesch (Tex. Civ. App.) 21 S. W. 313. Right arm and shoulder. $15,000, Morgan v. Railroad Co.. 95 Cal. 501, 30 Pac. 001. Displacement of womb, $15,000, City of Chicago v. Leseth, 43 111. App. 480. Helpless invalid for life. $15,000, Sears v. Railroad Co., 6 Wash. 227, 33 Pac. 389. Spinal in- jury, $3,000, Wabash Western Ry. Co. v. Friedman, 41 111. App. 270 (reversed on another point [111. Sup.] 30 N. E. 353). Finger of left hand, $2,750, Haynes V. Erk, Ind. App. 332, 33 N. E. 027. Permanent injury to lung, $5,000, Fordyce v. Culver, 2 Tex. Civ. App. 569, 22 S. W. 237. Broken leg, thereafter stiff and short, $5,000, Town of Fowler v. Linquist (Ind. Sup.) 37 N. E. 133; $0,500, Selleck v. J. Laugdon Co., 59 Hun, 027, 13 N. Y. Supp. 858. Broken skull, crushed hip, and damaged urinary organs, $15,000, Texas & P. R. Co. v. Hohn, 1 Tex. Civ. App. 36, 21 S. W. 942 Fracture of hip, woman of 00, $5.- 000, City of Kansas City v. Manning, 50 Kan. 373, 31 Pac. 1104. Loss of limbs by woman, $23,000, Erickson v. Railroad Co. (City Ct. Brook.) 32 N. Y. Supp. 915. Injury to eyes, ears, shoulder, and arm, $3,000, Sabine & E. T. R. Co. v. Ewing, 1 Tex. Civ. App. 531, 21 S. W. 700. Loss of eyes, $10,000, Mather v. Rillston, 156 U. S. 391, 15 Sup. Ct. 464. Amputation of left arm, etc., $10,- 000. Baltzer v. Railroad Co., 89 Wis. 257, 00 N. W. 710. In cases of willful violence, $9,000, Townsend v. Briggs (Cal.) 32 Pac. 307; $2,000, Wohlenberg V. Melchert, 35 Neb. 803, 53 N. W. 982. Arm, $10,000, Flanders v. Railroad Co., 51 Minn. 193, 53 N. W. 544. Loss of leg, $25,000, Ehrman v. Railroad Co., 131 N. Y. .576. .30 N. E. 67. Libel, $45,000, Smith v. Times Co., 4 Pa. Dist. R. 399. The following verdicts have been held excessive: Foot. $12,000, Kroener v. Railroad Co., 88 Iowa, 16, 55 N. W. 28; $3,000, Kennedy v. Railroad Co. (Minn.) 00 N. W. 810. Two fingers, $5,000. Louisville & N. R. Co. v. Foley. 94 Ky. 220, 21 S. W. 806. Fracture of smaller bone of ankle. $1,100, Bron- son V. Railway Co., 07 Hun, 649, 21 N. Y. Supp. 095; Louisville & N. R. Co. V. Survant (Ky.) 27 S. W. 999. Amputation of first joint of left thumb, $2,000, Louisville & N. R. Co. v. Law (Ky.) 21 S. W. 048. In case of willful violence, $5,000, Roades v. Larson, 06 Hun, 035, 21 N. Y. Supp. 855. For dis- honor of a check, $4.50, Schaffner v. Ehrman (111. Sup.) 28 N. E. 917. 4 3 Worster v. Bridge Co., 10 Pick. 541. §§ 92-93) PROVINCE OF COURT AND JURY. 233 clearly see that tliev are excessive; that there has been a gross ■error; that there has been a mistake of the principles upon which the damages have been estimated, or that some improper motive or feelings or bias has influenced the minds of the jury. Upon a mere matter of damages, where different minds might well arrive at different conclusions, and there is nothing inconsistent with an honest exercise of judgment, the verdict of the jury should not be disturbed.** "A court of law will not set aside a verdict, upon the ground of excessive damages, unless in a clear case, where the jury have acted upon a gross mistake of facts, or have been governed by «ome improper influence or bias, or have disregarded the law." *^ ■"The rule so carefully maintained and guarded in actions upon con- tracts, and for tortious injuries to property, is incapable of being applied when the injury is to the person, for those injuries are with- out precise pecuniary measure. The law has, accordingly, in this class of cases, committed the detei-mination of the amount of dam- ages to be awarded to the experience and good sense of jurors. And, where the verdict rendered by them may reasonably be pre- sumed to have resulted from an honest and intelligent exercise of judgment upon their part, the policy of the court is, and necessarily must be, not to interfere with their conclusion." *® Where the damages found by a jury are inadequate the verdict will be set aside, on the same principles that apply when the dam- ages are excessive. It has been held that in actions of tort, as a general rule, the verdict will not be set aside because the damages were too small.^^ But the rule is now established otherwise.*" "A verdict for a grossly inadequate amount stands upon no higher 4* Thurston v. Martin, 5 Mason, 497, Fed. Cas. No. 14,018. *5 Wiggin v. Coffin, 3 Story, 1, Fed. Cas. No. 17,624. See, also, Gilbert v. Burtenshaw, Cowp. 230; Whipple v. Manufacturing Co., 2 Story, GGl, Fed. Cas. No. 17,516; Harris v. Railroad Co., 35 Fed. 116. 46 Walker v. Railway Co.. 63 Barb. 260. 207. *7 Howard v. Barnard, 11 C. B. 653; Hayward v. Newton, 2 Strange, 940; jMTd Townsend v. Hughes, 2 Mod. 150; Barker v. Dixie, 2 Strange, 1051. Of. Pritchard v. Hewitt, 91 Mo. .547, 4 S. W. 437. 4 8 Beattie v. Moore, L. R. 2 Ir. 28, 31; Robinson v. Town of Waupaca, 77 Wis. 544, 46 N. W. 809; Pritchard v. Hewitt, 9 Mo. 547, 4 S. W. 437; Watsmi V. Harmon, 85 Mo. 443; Caldwell v. Railroad Co., 41 La. Ann. CL'I. 6 South, 234 PLEADING AND PKACTICE. (Ch. 8- ground in legal principle, nor in the rules of law or justice, than a verdict for an excessive or extravagant amount. It is doubtless true that instances of the former occur less frequently, because it is less frequently possible to make it clearly appear that the jury have grossly erred. But, when the case does plainly show the result, justice as plainly forbids that the plaintiff should be denied what is his due as that the defendant should pay what he ought not to be charged." *' It was accordingly held that a verdict for the plaintiff for a sum far less than he was entitled to recover under any evidence in the case, provided he was entitled to recover at all, would be set aside, on application of the plaintiff, although, upon the evidence, a verdict for the defendant would not have been disturbed.^" "V\Tiere the verdict is excessive the plaintiff may frequently cure the error by remitting the excess. Where an item of damage has been erroneously included in the estimate by the jury, the error may be cured by remitting the amount allowed for such item, provided it can be definitely ascertained; °^ otherwise not.^^ In the case of nonpecuniary injuries, where the verdict of the jury is final, unless it shows that the jury were influenced by partiality, prejudice, or passion, the plaintiff has been pennitted to remit enough to prevent the verdict from being excessive. It is a common practice for both trial and appellate courts to indicate the amount by which they deem the verdict excessive, and require the plaintiff to remit it, as 49 McDonald v. Walter, 40 N. Y. 551, 554. 50 Id. A verdict awarding nominal damages for a serious personal injury- will be set aside. Beattie v. Moore, L. R. 2 Ir. 28; Robbins v. Railroad Co., T Bosw. 1; Falvey v. Stanford, L. R. 10 Q. B. 54. Cf. Richards v. Rose, 9 Excli.218. See, also, Richards v. Sandford, 2 E. D. Smith, 849; Alloway v. City of Nash- ville, 88 Tenn. 510, 13 S. W. 123 (interest added on appeal); Howard v. Bar- nard, 11 C. B. G53. In Phillips v. Railway Co., 5 Q. B. Div. 78, a verdict for £7,000 was set aside as inadequate. On the second trial a verdict for £10,000' was held not excessive. 5 C. P. Div. 280. 61 Toledo, W. & W. Ry. Co. v. Beals, 50 111. 150; Strong v. Hooe, 41 Wis. 059; Kavanaugh v. City of Janesville, 24 Wis. CIS; Evertson v. Sawyer, 2 Wend. 507; Howard v. Grover, 28 Me. 97; Lambert v. Craig, 12 Pick. 199 j King v. Howard, 1 Cush. 137; Pendleton St. R. Co. v. Rahmann, 22 Ohio St. 446. Cf. Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. G96. s2 Pavey v. Insurance Co.. 56 Wis. 221. 13 N. W. 925; Smith v. Dukes, 5 Minn. 373 (Gil. 301). See, also, St. Louis, I. M. & S. Ry. Co. v. Hall, 53 Ark. 7, 13 S. W. 138; Hodapp v. Sharp, 40 Cal. G9; Lambert v. Craig, 12 Pick. 199. §§ 92-93) PROVINCE OF COURT AND JURY. 235' a condition of refusing a new trial." It is a grave question whether this practice does not deprive the parties of the right to trial by jury, and it would seem to be an invasion of the province of the jury,°* but the practice is supported by the weight of authority.'*'* Exemplary Damages. It is a question for the court to determine whether there is any evidence to support a verdict for exemplary damages. ^^ It is a question for the jury to determine whether exemplary damages shall be awarded.^^ It is error to instruct the jury to give exemplary damages."* It is error to submit the question to them where there B3 Upham V. Dickinson, 50 111. 97; Jolinson v. Von KetUer, 66 111. 63; Duffy V. City of Dubuque, G3 Iowa, 171, 18 N. W. 900; Collins v. City of Council Bluffs. 35 Iowa, 432; Hegeman v. Railroad Corp., 13 N. Y. 9; Diblin v. Mur- phy, 3 Sandf. 19; Whitehead v. Kennedy, 69 N. Y. 402, 470; Spicer v. Rail- way Co., 29 Wis. 580; Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701; Corcoran V. Harran, 55 Wis. 120, 12 N. W. 468; Patten v. Railway Co., 32 Wis. 524; Baker v. City of Madison, 62 Wis. 137, 22 N. W. 141, 583; Van Winter v. Henry Co., 61 Iowa, 684, 17 N. W. 94; Lombard v. Railroad Co., 47 Iowa, 494; Johnston v. Morrow, 60 Mo. 339. See Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880. 64 See dissenting opinions in Burdict v. Railway Co., 123 Mo. 221, 27 S. AV. 453. See, also, Suth. Dam. § 460; Sherry v. Frecking, 4 Duer, 452; Koeltz V. Bleckman. 46 Mo. 320; Leeson v. Smith 4 Nev. & Man. 304; Savannah, F. & W. Ry. V. Harper, 70 Ga. 119; Carlisle v. Callahan, 78 Ga. 320, 2 S. E. 751; Craig v. Cook, 28 Minn. 238, 9 N. W. 712; Potter v. Railroad Co., 22 Wis. 586. 6 5 Baker v. City of Madison, 62 Wis. 137, 22 N. W. 141, 583; Pratt v. Pio- neer Press Co., 35 Minn. 251, 28 N. W. 708; Hutchius v. Railway Co., 44 Minn. 5, 46 N. W. 79; Town of Union v. Durkes, 38 N. J. Law, 21; Missouri Pac. Ry. Co. V. Dwyer, 36 Kan. 58, 12 Pac. 352; Hopkins v. Orr, 124 U. S. 510, 8 Sup. Ct. 590; Arkansas Val. Land & Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 458. 68 Philadelphia Traction Co. v. Orbann, 119 Pa. St. 37, 12 Atl. 816; Pitts- burgh S. Ry. Co. V. Taylor, 104 Pa. St. 306; Chicago, St. L. & N. O. R. Co. v. Scurr. 59 Miss. 456; Selden v. Cashman, 20 Cal. 50. 87 Nagle V. Mullison, 34 Pa. St. 48; Graham v. Railroad Co., 66 Mo. 536; Chicago, St. L. &, X. O. Ry. Co. v. Scurr, .19 Miss. 450; Johnsou v. Siuilh, 64 Me. 553; Smith v. Thompson, 55 Md. 5; Pratt v. I'.ukI, 12 Couu. 318; Dye v. Denham, 54 Gn. 224. 68 Wabash, St. L. & P. Ry. Co. v. Rector, lol ill. 2;m;; llnwk v. IMdg- way, 33 111. 473; New Orleans, St. L. & C. R. Co. v. liurkc. .".3 .Miss. 2(»0; South- ern R. Co. V. Kendrick, 40 Miss. 374; Louisville & N. R. Co. v. Brooks' Adni'.x, 236 PLEADING AND PKACTICE. (Cil. S is no evidence to support a verdict for exemplary damages.^" A Terdict for exemplary damages may be set aside when it is clearly excessive.*" The court proceeds on the same principle as in other cases of excessive damages. The verdict will be set aside only when it is grossly excessive, or the jury acted under the in- fluence of passion, prejudice, or some other improper motive.'^ «3 Ky. 120; Boardman v. Goldsmith, 48 Vt. 403; Snow v. Carpenter, 49 Vt. 420. Contra, Mayer v. Duke, 72 Tex. 445, 10 S. W. 5G5. An instruction tliat "this is one of tJie cases wliere ttiey may give exemplary damages" was held erroneous, where the facts were in dispute. Pickett v. Crook, 20 Wis. 358. Under Code Iowa, § 1557, providing that the person injured in her means of support by the intoxication of another shall have a right of action, against the person selling the liquor, "for all damages actually sustained, as well as ex- emplary damages," it was held proper to instruct the jury that, if plaintiff was entitled to actual damages, it was their duty to add thereto an amount as exemplary damages. Thill v. Pohlmau, 7(1 Iowa, 638, 41 N. W. 385. See, also. Fox V. Wuuderlich, 64 Iowa, 187. 20 X. W. 7. So an instruction that, if au assault was accompanied by certain aggravating circumstances, the jury ought to give exemplary damages, was held not erroneous. Hooker v. New- ton, 24 Wis. 292. An instruction that the jury cannot give vindictive damages "unless they believe, from the evidence, that the defendants maliciously en- tered upon plaintiff's land in a rude, aggravating, or insulting manner," is er- roneous, because it improperly restricts the str.ndard of liability. De Vaughn V. Heath, 37 Ala. 595. 6 9 See cases cited in note 56, supra. GO With this limitation, the amount of exemplary damages Is discretionary with the jury. Chicago, St. L. & N. O. R. Co. v. Scurr, 59 Miss. 456; Borland V. Barrett. 76 Va. 128. 61 Cutler v. Smith, 57 111. 252; Farwell v. Warren, 70 111. 28; Collins v. City of Council Bluffs, 35 Iowa. 432; Goetz v. Ambs, 27 Mo. 28; Rogers v. Henry, 32 Wis. 327; Borland v. Barrett, 76 Va. 128: Flannery v. Railroad Co., 4 Mac. 111. See, also, Bryan v. Acee, 27 Ga. 87; Willis v. McNeill, 57 Tex. 465. In New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660, a verdict of $4,500 against a railroad company for carrying plaintiff 400 yards beyond a station and refusing to return was sustained. In Burkett v. Lanata, 15 La. Ann. 337, It is said: "Exemplary damages should nevertheless be commensurate to the nature of the offense, and when extravagant damages are allowed they will be reduced to their proper standard." §§ 94-96) BREACH OF CONTRACTS FOR SALE OF GOODS. 237 CHAPTER IX. BREACH OF CONTRACTS FOR SALE OF GOODS. 94-96. Action by Seller— Where Property has not Passed— Damages for Nonacceptance. 97. Where Property has Passed— Damages for Nonpayment. 98-99. Action by Buyer— Damages for Nondelivery. 100. Damages as for Conversion. 101. Damages for Breach of Warranty. ACTION BY SELLER— WHERE PROPERTY HAS NOT PASSED —DAMAGES FOR NONACCEPTANCE. 94. If the buyer ■wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nonacceptance. 95. Where the price is payable on a day certain irrespec- tive of delivery, and the buyer -wrongfully neg- lects or refuses to pay such price, the seller may maintain an action for the price, although the prop- erty in the goods has not passed. 96. The measure of damages for nonacceptance is the es- timated loss directly and naturally resulting from the breach of contract in the natural course of events, and, "when there is an available market for the goods, is prima facie to be ascertained by the difference bet-ween the contract price and the market price at the agreed time and place of deliv- ery. When the property in the goods has not passed, as where the con- tract is for the sale of unascertained goods or of goods which are not in a deliverable state, the buyer's breach of his promise to ac- cept and pay for thera can only affect the seller by way of damages. The goods are still his. Ue may resell them or not, at his pleasure. 238 BREACH OF CONTUACTS FOR SALE OF GOODS. (Ch. 9 His onlj remedy, therefore, is an action against the buyer for non- acceptance.^ To this general rule there is only the one exception, which has been above stated, that, if by the terms of the contract the price is payable irrespective of delivery, the seller may sue f.»r the price at the time agreed upon, leaving the buyer to his cross action in case the seller, after receiving the price, should fail to de- liver the goods.^ Damages for Nonacceptance. The proper measure of damages for nonacceptance is generally the difference between the contract price and the market price at the place of delivery at the time when the contract is broken, because the seller may take his goods into the market, and obtain the cur- rent price for them.^ If the goods have no market price, the dam- ages must, of course, be otherwise ascertained ; * and if they have no money value the measure of damages would be equal to the whole contract price. '^ The date at which the contract is deemed to be broken is that fixed by the contract for the delivery, and not that at which the buyer may give notice that he intends to break the contract and refuse accepting the goods.* If the contract Is for 1 Laird v. Pirn, 7 Mees. & W. 474. 478; Collins v. Delaporte, 115 Mass. 159, 162; Gordon v. Norris, 49 N. H. 37(J; Daufortli v. Walker, 37 Vt 239; Atwood T. Lucas, 53 Me. 508; Brand v. Henderson, 107 111. 141; Gansou V. Madigan, 13 Wis. G8; Chapman v. Ingram, 30 Wis. 290, 294; Peters t. Cooper, 95 Mich. 191. .j4 N. \V. WU: Bonj. Sales, § 758. 2 Dunlop v. Grote, 2 Car. &. K. 153. 3 Barrow v. Arnaud, 8 Q. B. 595, 608, per Tindal, C. J. See, also. Tufts v. Bennett, 163 Mass. 398, 40 N. E. 172; Cherry Valley Iron Works v. Flor- ence Iron R. Co., 12 C. C. A. 306, 64 Fed. 569; Gray v. Railroad Co., 82 Hun, 523, 31 N. Y. Supp. 704. * Chicago V. Greer, 9 Wall. 726; McCormick v. Hamilton, 23 Grat. 561. Where there was no market, the proper measure of damages was the actual loss which the sollers, acting as roasoimble men in the ordinary course of business, had sustained. Dunkirk Colliery Co. v. Lever, 9 Ch. Div. 20, 25. Where an article has no market value, an investigation into the constituent elements of the cost to the party who contracted to furnish it becomes neces- sary, and that cost, compared with the contract price, will afford the meas- ure of damages. Masterton v. Mayor, etc., 7 Hill, 61. 5 Allen V. .Jarvis. 20 Conn. 38. Cf. Chicago v. Greer, 9 Wall. 726. « Boorman v. Nash, 9 Barn. &, C. 145; Phillpotts v. Evans, 5 Mees. & W. §§ 91-96) ACTION BY SELLER DAMAGES FOR NON ACCEPTANCE. 239 the sale of goods to be manufactured, or otherwise procured by the seller, and the buyer refuses to accept or gives notice that he in- tends to refuse acceptance, so that the seller is excused from pro- curing and tendering the goods, he will be entitled to such damages as will put him in the same position as if he had been permitted to complete the contract.'' Thus where the contract was for the sale of rails to be rolled by the seller, "and to be drilled as he may be directed," at $58 per ton, and the buyer refused to give directions for drilling, and at his request the seller delayed rolling until after the time prescribed for their delivery, and then the buyer advised the seller that he should decline to take any of the rails under the contract, it was held that the seller was not bound to roll the rails and tender them, and that the proper rule of damages was the dif- ference between the cost per ton of making and delivering the rails ^nd |58.« When the contract is for the sale of a chattel to be made to order, there is a conflict of authority as to whether the property passes ou completion, or whether acceptance by the buyer is essential to the appropriation; and in such cases, whether an action can be main- tained for the pfice or whether the seller is confined to an action for damages for nonacceptance will depend on the rule adopted in the particular jurisdiction as to what is necessary to transfer the propert}'. 475; Tbompson v. Alger, 12 Mete. (Mass.) 428, 443; Scbramm v. Boston Sugar-Refining Co., 14G Mass. 211, 15 N. E. 571; Gordon v. Norris, 49 N. H. 376; Girard v. Taggart, 5 Serg. & R. 19; Dana v. Fiedler, 12 N. Y. 40; Camp V. Hamlin, 55 Ga. 259; Williams v. Jones, 1 Bush, G21; Pittsburgh, C. & St. K Ry. Co. V, Heck, 50 Ind. 303; Sanborn v. Benedict, 78 111. 309; Kadish T. Young, 108 111. 170. 7 Cort V. Ambergate N. & B. & E. J. Ry. Co., 17 Q. B. 127, 20 Law J. Q B. 460; Hinckley v. Pittsburgh Bessemer Steel Co., 121 U. S. 264, 7 Sup Ct. 875; Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S. W. 210 Muskegon Curtain-Roll Co. v. Keystone Manuf g Co., 135 Pa. St. 132, 19 Atl 1008; Hosmer v. Wilson, 7 Mich. 295; Haskell v. Hunter, 23 .Mich. 305; But ler V. Butler, 77 N. Y. 472. • Hinckley v. Pittsburgh Bessemer Steel Co., 121 U. S. 264, 7 Sup. Ct. 875. 240 BREACH OF CONTRACTS FOR SALE OF GOODS. (Ch. 9 SAME— WHERE PROPERTY HAS PASSED— DAMAGES FOR NONPAYMENT. 97. Where, under a contract of sale, the property in the goods has passed to the buyer, and he -wrongfully neglects or refuses to pay for them according to the terms of the contract, the seller may maintain an action against him for the price of the goods.'-' When the property in the goods has passed, unless the sale is on credit or payment is made to depend on some contingency, the seller may maintain an action for the price.^° If the sale is on credit, he must, of course, await the termination of the credit before bring- ing suit,^^ And if the price is payable by a bill or other security, and the security is not given, the seller cannot sue for the price until the bill would have matured, though he may sue at once for damages for breach of the agreement, in which case the measure of his damages will be prima facie the amount of the sum to be se- cured.^ - In England it is held that the seller is not entitled, under any circumstances, to rescind the contract for default in the payment of the price; ^^ but in this country it has been frequently declared that the unpaid seller, who is in possession of the goods, has, among other remedies, the right to keep the goods as his own, and recover » Chalm. Sale, § 51. 10 Scott V. England. 2 Dowl. & L. 520; Stearns v. Washburn, 7 Gray, 187, 189; Morse v. Sherman, 100 Mass. 430; Frazier v. Simmons, 139 Mass. 531, 533, 2 N. E. 112; Hay den v. Demets, 53 N. Y. 420; Doremus v. Howard, 23 N. J. Law, 390; Armstrong v. Tm-ner, 49 Md. 589; Ganson v. Madigan, 13 Wis. 07. 11 Calcutta & B. Steam Nav. Co. v. De Mattos, 32 Law J. Q. B. (N. S.) at page 328; Keller v. Strasberger, 90 N. Y. 379; Dellone v. Hull, 47 Md. 112. Mere insolvency of one of the parties is not equivalent to a rescission or a breach. It simply relieves the seller from his agreement to give credit. Pardee v. Kanady, 100 N. Y. 121, 126, 2 N. E. 885. Cf. New England Iron Co. V. Gilbert Elevated R. Co., 91 N. Y. 153, 168. 12 Paul v. Dod, 2 C. B. 800; Rinehart v. Olwiue, 5 Watts & S. 157; Hanna v. Mills, 21 Wend. 90; Barron v. MuUin, 21 Minn. 374. But see Foster v. Adams, 60 Vt 392, 15 Atl. 109. 13 Martindale v. Smith, 1 Q. B. 389, §§ 98-99) ACTION BY BUYER DAMAGES FOR NONDELIVERY. 241 the difference between the market price at the time and place of delivery and the contract price.^* ACTION BY BUYER— DAMAGES FOR NONDELIVERY. 98, Where the seller -w^rongfully neglects or refuses to de- liver the goods to the buyer, the buyer may main- tain an action against the seller for damages for nondelivery. 99. The measure of damages is the estimated loss directly and naturally resulting from the seller's breach of contract, and, when there is an available market for the goods in question, is prima facie to be as- certained by the difference bet-ween the contract price and the market price of the goods at the agreed time and place of delivery.^'* The breach of contract of which the buyer complains may arise from the seller's default in delivering the goods, or from some defect in the goods delivered. There may be a breach of the principal contract for the transfer of the property and the delivery of posses- sion or of a collateral contract of warranty. Damages for Nondelivery. Before the property has been transferred to the buyer, his only remedj" is an action for breach of contract. If he has paid the price, and the goods are not delivered, he may rescind the contract, and recover what he has paid upon an implied contract in an action for money had or received.^'- If he has not paid the price, his only remedy, wheT^e the seller fails to deliver, is to sue for damages for li Dustan v. McAndrew, 44 N. Y. 73; Hay den v. Denicts, 53 N. Y. 42(i; Mason v. Decker, 72 N. Y. 595; Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E, 415; BaiT v. Logan, 5 Har. (Del.) 52; Young v. Mertcns, 27 Md. 114, 126; Cook V. Brandeis, 3 Mete. (Ky.) 555; Bagley v. Findlay, 82 III. 524; Ames V, Moir, 130 111. 582, 22 N. E. .^.35. See. also, Putnam v. Gliddeu, 159 Mass. 47, 34 N. E. 81. 1 c See Chalm. Sale, § 53. »• Nash V. Towne, 5 Wall. G89; Clevolimd v. Storrott, 70 Pa. St. 204. LAW DAM.— 16 242 BREACH Of CONTRACTS FOR SALE OF GOODS. (Ch. 9 breach of the contract. His position is the converse of that of the seller who is suing the buyer for nonacceptance. He has the money in his hands, and may go into (he market and buy. The loss which he sustains by the nondelivery of the goods is therefore, under ordi- nary circumstances, simply the difference between the contract price and the market price of the goods at the time and place of delivery, and this is the measure of his damages.^^ If he has prepaid the price, he may still sue for nondelivery, and is entitled to recover the market price of the goods without deduction.^* If there is no differ- iT Barrow v. Arnaud, 8 Q. B. 604, at page 609; Shaw v. Nudd, 8 Pick. 9; Dana v. Fiedler, 12 N. Y. 40; Cahen v. Piatt. 69 N. Y. 348; Fessler v. Love, 48 Pa. St. 407; Kribs v. Jones, 44 Md. 390; Miles v. Miller, 12 Bush, 134; McKercher v. Curtis, 35 Mich. 478; Cocliburn v. Ashland Lumber Co., 54 Wis. G19, 12 N. W. 49; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502; Olson y. Shai'ples, 53 Minn. 91, 55 N. W. 125; Hewson-Herzog Supply Co. v. Min- nesota Brick Co., 55 Minn. 530, 57 N. W. 129. In case of a total failure to deliver, the buyer may recover the amount with which he could have pur- chased machines of equal value. If those delivered were defective, the measure of his damages is the cost of supplying the deficiency. Marsh v. McPherson, 105 U. S. 709. See, also, Stillwell & Bierce Manuf'g Co. v. Phelps, 130 U. S. 520, 9 Sup. Ct. 601. When the market value is unnaturally inflated by unlawful means, it is not the true test Kountz v. Kirkpatrick, 72 Pa. St. 376. Where goods are purchased to be shipped abroad, and the fact is known to the seller, and it is impossible for the buyer to dis- cover the inferiority of the goods till they reach their ultimate destination, the measure of damages is the diffei-ence between the market price of the goods contracted for at the date of arrival and the price afterwards realized on a sale of the goods, with costs and expenses of sales. Camden Consoli- dated Oil Co. V. Schlens, 59 Md. 31. Where a job lot of chattels is sold, and the vendor has title only to part, the measure of damages is the difference between the value of the entire lot sold and the value of the lot without those as to which the title failed. Hoffman v. Chamberlain, 40 N. J. Eq. 663, 5 Atl. 150. In an action for breach of contract to deliver goods sold, defend- ant can show the actual cost to the plaintiff of the goods which plaintiff bought from other parties to fill his orders for the goods purchased. Theiss V. Weiss, 166 Pa. St. 9, 31 Atl. 63. 18 Startup V. Cortazzi, 2 Cromp., M. & R. 165; Smethurst v. Woolston, 5 Watts & S. 106; Humphreysville Copper Co. v. Vermont Copper Min. Co., 33 VL 92. Some courts ;jl11ow the buyer to recover the highest market price between the breach and the action. Clark v. Pinuey, 7 Cow. 681; Gilmaa v. Andrews, 66 Iowa, 116. 23 N. W. 291; Suydam v. Jenkins, 3 Sandf. 614; Benj. Sales (Bennett's 6th Am. Ed.) 901, note. §§ 98-99) ACTION BY BUYER DAMAGES FOR NONDELIVERY. 243 ence between the contract price and the market price, he is entitled only to nominal damages.^* Even if the seller repudiates the contract before the date of de- livery, so that the buyer may sue at once, the damages are to be assessed as of the agreed date of delivery, unless it appears that the buyer could have supplied himself in the market on such terms as to mitigate his loss.^" But, if the time of delivery is extended at the seller's request, damages will be assessed according to the market price at the date to which delivery is postponed.^^ Damages lohere there is no Market Price. To the rule of market price there are some exceptions, depending on particular circumstances. The goods may have no market price at the place of delivery for lack of a market, in which case the market value may be determined by ascertaining the market price in the nearest available market, and adding the expense of fetch- ing the goods to the place of delivery; ^^ or, if there is no available market, the market value may be determined by ascertaining the cost of manufacturing the goods, if that is the natural and reasona- ble way to procure them;^^ or, if the exact descri])tion of goods 19 Valpy v. Oakeley, 16 Q. B. 941; Moses v. Rasin, 14 Fed. 772; Fessler V. Love, 48 Pa. St. 407; Wire v. Foster, 62 Iowa, 114, 17 N. W. 174. Nominal damages only will be awarded for failure to deliver certain paid-up stock, which has not been issued, and which has no market or actual value, though it would have cost its par value to procure it, since the measure of damages is not the cost of procuring it, but the loss sustained by failure to receive it. Barnes v. Brown, 130 N. Y. 372, 29 N. E. 760. 2 Roper V. Johnson, L. R. 8 C. P. 167; Austrian & Co. v. Springer, 94 Mich. 343, 54 N. W. 50. Duty of vendee to supply himself elsewhere. Miller v. Trustees, 7 Greenl. 51. Cf. Brown v. Muller, L. R. 7 Exch. 319. Several de- liveries. Merrimack Manuf'g Co. v. Quiutard, 107 Mass. 12? : Booth v. Roll- ing Mill Co., 60 N. Y. 487; McHose v. Fulmer, 73 Pa. St. 365. 21 Ogle V. Earl Vane, L. R. 3 Q. B. 272; Hickman v. Haynes, L. R. 10 C. P. 598; Roberts v. Benjamin, 124 U. S. 64, 8 Sup Ot. 393; Hill v. Smith. 34 Vt. 535; McDermid v. Redpath. 39 Mich. 372; Browi v. Sharkey (Iowa) CI N. W. 364. 2 2 Grand Tower Co. v. Phillips, L'3 Wall. 471; Furlong v. Polleys, 30 Me. 491; Cahen v. Piatt, 69 N. Y. 348; Johnson v. Alien. 78 Ala. 387. *» Paine v. Sherwood, 21 Minn. 225. Where there 11, no market price, but the goods have been resold, the price paid plus the proflts on tho resale may be recovered. Trigg v. Clay, 88 Va. 330, 13 S. E 434. 244 BREACH OF CONTRACTS FOR SALK OF GOODS. (Ch. 9 cannot be obtained, the damages may be fixed by the price of the best substitute obtainable, if it is reasonable for the buyer to take that course."* If no substitute is obtainable, the buyer may be en- titled to special damages."" Special Damages. As in other classes of contracts, the damages may be special as Avell as general. The measure of general damages is the loss di- rectly and naturally resulting from the breach of the contract, under ordinary circumstances. The rule as to market price flows natu- rally from this general principle. The measure of special damages is the loss directly and naturally resulting from the breach of con- tract under the special circumstances of the case as contemplated by the parties."® Each case involving special damages must be de- termined by its own merits. Special damages are not recoverable^ unless alleged with sufficient particularity to enable the defendant to meet the demand."^ Communication of Special Circumstances. The seller cannot be charged with special damages, unless he had knowledge of the special circumstances from which the special loss 24 Hinde v. Liddell, L. R. 10 Q. B. 265. The buyer must always make rea- sonable exertions to mitigate bis damages. Hammer v. Scboenfelder, 47 Wis. 455, 2 N. W. 1129. Tbe measure of damages for breach of contract to fur- nish certain kinds of coal for a particular purpose is, in case the buyer is forced to purchase a more expensive grade, the difference in price, when the cheaper gi'ade would have answered exactly the same purpose. Consolidated Coal Co. of St. Louis v. Block & Hartman Smelting Co., 53 111. App. 565. 2 Parsons v. Sutton, 66 N. Y. 92; Richardson v. Chynoweth, 26 Wis. 656. Some courts, however, permit the buyer to recover his actual loss by way of general damages, on the ground that, where an article of similar quality cannot be procured, this is a contingency which must be considered to have been within the contemplation of the parties, who are presumed to know whether the article is of limited production or not. McHose v. Fulmer, 73 Pa. St. 365; Culin v. Woodbury Glass Works, 108 Pa. St. 220; Bell v. Rey- nolds, 78 Ala. 511. See, also, Carroll Porter Boiler & Tank Co. v. Columbus Mach. Co., 5 C. C. A. 190, 55 Fed. 451. 26 Hadley v. Baxendale, 9 Exch. 341. 354, 23 Law J. Exch. 179; Griffin v. Colver, 16 N. Y. 489. See, also, Cassidy v. Le Fevre. 45 N. Y. 562. 2 7 Smith V. Thomas, 2 Bing. N. C. 372; Parsons v. Suiton, 66 N. Y. 92;. Furlong v. Polleys, 30 Me. 491. See ante, p. 223. §§ 98-99) ACTIO.N BY BUYER DAMAGES FOB NONDELIVERY. 245 would be likely to result; ^^ and while, if he had such knowledge, he will generally be charged,-^ it is important to bear in mind that mere communication of the special circumstances is not enough unless it be given under such circumstances as reasonably to imply that it formed the basis of the agreement, — that is, unless the cir- cumstances are such that it must be supposed that a reasonable man would have had them in contemplation as a probable result of the breach of the contract.^" A seller is usually bound for such damages as result to the buyer from being deprived of the ordinary use of a chattel, but not for such damages as result to him from being deprived of its use for a special or extraordinary purpose, which was not communicated.^^ So the buyer is not usually entitled to damages arising from loss of profits on a subsale, or from penalties or expenses incurred by him from inability to execute such subsale; ^^ but he may recover such 2 8 Cory V. Thames Iron Works & Ship Bids. Co.. L. K. 3 Q. B. 181. 37 Law J. Q. B. 68; British Columbia & V. I. Spar, Lumber & Sawmill Co. V. Nettleship, L. R. 3 C. P. 499, 37 Law J. C. P. 235; Bartlett v. Blanchard, 13 Gray, 429; Fessler v. Love, 48 Pa. St. 407; Billmeyer v. Wagner, 91 Pa. St. 92; Paine v. Sherwood, 10 Minn. 315 (Gil. 270); Mihills Manuf'g Co. v. Day, 50 Iowa, 2.j0; Peace River Phosphate Co. v. Grafflin, 58 Fed. 550; Mas- terton v. Mayor, etc., 7 Hill, 61. 2 9 Smeed v. Foord. 1 El. & El. 002, 28 Law J. Q. B. 178 (loss of crop from delay in furnishing threshing machine). A seller who contracts to supply a butcher with ice, knowing it is required to preserve meat, is liable if the meat spoils in consequence of his failure to supply, and the buyer is unable to supply himself elsewhere. Hammer v. Schoenfelder, 47 Wis. 455, 2 N. W. 1129. The full amount of damage to lettuce growing in a greenhouse, and frozen by reason of failure to supply water for steam heating, is the measure of damages for such failure. Watson v. Inhabitants of Needhani. 161 Mass. 404, 37 N. E. 204. 30 British Columbia & V. I. Spar, Lumber & Sawmill Co. v. Nettleship, cited in note 28; Home v. Midland Ry. Co., L, R. 7 C. P. 583, 591, L. R. 8 C. P. 1.31, per Willes, .1.; Booth v. Spuyten Duyvill Rolling Mill Co., m X. y. 487, 496. 31 Cory v. Thames Iron Works & Ship Bldg. Co.. L. R 3 Q. B. 181, 37 Law J. Q. B. 68. On a contract to deliver furniture for an hotel, set up in the rooms and ready for use on a certain date, damages for delay in performance Is measured by the rental value of the rooms when furnished, during the de- lay, r.crkr-y it (jay Furniture Co. v. Ilascall. V2:', Ind r)02, 24 N. E. 3.36. 32 Williams v. Reynolds, 6 Best & S. 49.j, 34 Law .7. (}. B. 221; Devlin v. 246 BREACH OF CONTRACTS FOR SALE OF GOODS. (Cll. damages if the subsale and the other special circumstances neces- sary to advise him of the probable consequences of a breach were communicated to the seller.*' SAME— DAMAGES AS FOR CONVERSION. 100. Where under a contract of sale the property in the goods has passed to the buyer, and the seller ■wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action for conversion of the goods against the seller and recover their value.^ \Mien the property has passed, if the seller refuses to deliver, the buyer has the same right of action for nondelivery as if the property had not passed; but he has, in addition to his right of action on the contract, the rights of an owner. He has not only the property in the goods, but the right of possession, defeasible in the case of his failure to pay for the goods.^^ If he is not in default, therefore, he may, on the refusal of the seller to deliver, maintain an action for conversion. As a rule, the measure of the buyer's damages in such an action, either against the seller *^ or a third person, who has dealt with the goods under such circumstances as to amount to a conversion,^ ^ is the value of the goods at the time of the conversion. But he cannot recover greater damages against the seller by suing in tort than by suing on the contract; and, if he Mayor, etc., 63 N. Y. 8; Cockburn v. Ashland Lumber Co., 54 Wis. 619, 627, 12 N. W. 49. See, also, Fox v. Harding, 7 Cush. 516; Borries v. Hutchinson, 18 C. B. (N. S.) 445. 38 Elbinger Actien-Gesellschafft fur Fabrication von Eisenbahn Materiel V. Armstrong, L. R. 9 Q. B. 473; Hydraulic Engineering Co. v. McHaffie, 4 Q. B. Div. 670; Grebert-Borgnis v. Nugent, 15 Q. B. Div. 85; Messmore V. New York Shot & Lead Co., 40 N. Y. 422; Booth v. Spuyten Duyvill Roll- ing Mill Co., 60 N. Y. 487. 3* See Chalm. Sale, § 54. 3 5 Benj. Sales, §§ 883, 886. 36 Kennedy v. Whitwell, 4 Pick. 466; Philbrook v. Eaton, 134 Mass. 398. 3 7 Chinery v. Viall, 5 Hurl. & N. 2SS, 29 Law J. Exch. 180; France v. Gau- det, L. R. 6 Q. B. 199. § 101) DAMAGES FOR BREACH OF WARRANTY. 247 has not paid for the goods, the measure of his damages will be the difference between the contract price and the market value.'* SAME— DAMAGES FOR BREACH OP WARRANTY. 101. The measure of damages for breach of warranty of fitness, quality, or condition is the estimated loss, directly resulting from the breach of -warranty. Such loss is prima facie the difference betw^een the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered the w^arranty. That the buyer may bring an action for damages in case the goods are inferior in quality to that warranted, follows from the general rule that an action for damages lies in every case of a breach of con- tract.»' Diminution of Damages — Recoupment. Instead of bringing an action for damages, the buyer may wait till he is sued for the price, and then set up the breach of warranty in diminution pro tanto of the damages.*" And at common law this was his only way of availing himself of a breach of warranty as a defense. The rule was stated by Parke, B., in the leading case oi Mondel t. Steel,*^ as follows: "Formerly it was the practice when an action was brought for an agreed price of a specific chattel sold with a warranty, to allow the plaintiff to recover the stipulated sum, 3 8 Chinery v. Viall, 5 Hurl. & N. 288. 29 Law J. Exch. 180. 89 Poulton V. Lattimore, 9 Barn. & C. 259; Day v. Pool, 52 N. Y. 41G; Scott V. Raymond, 31 Minn. 437, IS N. W. 274; Cox v. Long, G9 N. C. 7; Polhemus V. Heiman, 45 Cal. 573. 4" Street v. Blay, 2 Barn. & Add. 456; Parson v. Sexton, 4 C. B. 899; Poulton V. Lattimore, 9 Barn. & C. 259; Withers v. Green, 9 How. 213; Lyon V. Bertram, 20 How. 149, 154; Bradley v. Rea, 14 Allen, 20; Dailey V. Green, 15 Pa. St. 118, 12G; Dayton v. Hooglund, 39 Ohio St. G71; Doane V. Dunham, 65 111. 51^, 79 111. 131; Underwood v. Wolf, 131 111. 425, 23 N. E. 598; Morehouse v. Comstock, 42 Wis. 626; Polhemus v. Heiman, 45 Cal. 573; Breen v. Moran, 51 Minn. 525, 53 N. W. 755; Central Trust Co. v. Arctic Ice Mach. Manuf'ij Co., 77 Md. 202, 26 Atl. 493. ♦ 1 8 Mees. &i \V. 858. 248 BREACH ov contracts kor sale of goods. (Ch. leaving the defendant to a cross action for breach of the warranty; in which action as well the difference between the price contracted for and the real value of the articles as any consequential damage might have been recovered. * * * The performance of the war- ranty not being a condition precedent to the payment of the price, the defendant who received the chattel warranted has thereby the property vested in him indefeasibly, and is incapable of returning it back. He has all that he stipulated for as the. condition of paying the price, and therefore it was held that he ought to pay it, and seek his remedy on the plaintiff's contract of warranty. ♦ * • But, after the case of Basten v. Butter,''- a different practice began to prevail, and, being attended with much practical convenience, has since been generally followed; and the defendant is now per- mitted to show that the chattels, by reason of the noncompliance with the warranty, were diminished in value. * * * The rule is that it is competent for the defendant, not to set off by a proce- dure in the nature of a cross action the amount of damages which he has sustained by breach of the contract, but simply to defend himself by showing how much less the subject-matter of the actioiv was worth, by reason of the breach of contract; and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfac- tion for the breach of contract, and is precluded from recovering in an other action to that extent, but no more."' This case also determined that the buyer must bring a cross action if he desired to claim consequential or special damages; but, under the changed procedure now generally prevailing, the buyer may re- cover such damages by way of counterclaim.*^ And to-day in most states such damages may be set up by way of defense or counter- claim in an action on a note given for the price.** Measure of Damages. Prima facie the measure of damages, in case of a breach of war- ranty, is the difference between the value of the goods as they in <2 7 East, 479. *3 See Zabriskie v. Central Vt. R. Co., 131 N. Y. 72, 29 N. E. 1006. <4 Withers v. Greene, 9 How. 213; Ruff v. .Tarrett. 94 111. 475; Wentworth V. Dows, 117 Mass. 14, per Colt, J.; Wright v Davtuport. 44 Tex. 104. § 10 ) DAMAGES FOR BREACH OF WARRANTY. 249 fact were and the value of the goods as it would have been if they had been as warranted.*"* This is because, in ordinary cases, the difference is the loss which results directly from the breach of war- ranty. But the buyer may recover whatever other losses directly result from the breach.*® Thus where the seller warranted seed as of a particular description, and delivered inferior seed, he was held liable for the loss of crop which thereby resulted to the buyer; *' iind, where the buyer resold, the seller was held liable for the loss of crop which resulted to the subpurchaser, and for which the buyer, having resold with a warranty, was liable to the subpurchaser.*' . 266 DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES. (Cil. 11 Co." a telegraph compauy had failed to deliver a telegram directing the purchase of certain goods, and the sender escaped a loss which he would have sustained had the message been delivered and the goods bought. It was held that he could recover nominal damages, for the company had broken its contract. ' ACTION BY RECEIVER. 116. An action may be maintained by the receiver of a message for damages caused by the company's de- fault in its transmission. A telegraph company is liable to the receiver of a message for damages caused by their default in its transmission. This liability is rested sometimes on contract and sometimes on tort. It does not necessarily follow that the contract is made with the person by whom or in whose name a message is sent. He may have no in- terest in the subject-matter of the message, but the party to whom it is addressed may be the only one interested in its correct or dili- gent transmission; and where that is the case, he is the one with whom the contract is made.' In this respect, actions against tele- graph companies are analogous to actions against common carriers. Whether the action against the carrier is to be brought by the con- signor or the consignee depends, as a general rule, upon which one the legal right to the property is vested in. If it is vested in the consignee, the consignor, in making the contract with the carrier, is regarded as having acted as the agent of the consignee,'' Where the action by the consignee is regarded as sounding in tort, the liabilitj- is based upon breach of the public duty imposed on tele- graph companies to transmit messages. "Every contract made by a telegraph company is made in pursuance of a duty imposed upon it by the state, and any breach of it is not only a breach of con- tract, but a tort; for the duty assumed involves the performance of this contract, not merely as it affects the sending, but as it af- fects the delivering. The telegraph company is under a duty to all 6 33 Wis. 558. 6 De Rutte v. Telegraph Co., 1 Daly, 547. 7 Hale, Bailm. 543. §§ 11<-11S) COMPENSATORY DAMAGES. 267 the world, and breach of its contract with the sender is a breach of this duty, as it affects the receiver." * There is negligent or willful conduct resulting in damage, and this, as has been seen, attaches liability. COMPENSATORY DAMAGES. 117. Compensation may be recovered for all losses vsrhich are the natural and probable consequence of a de- fault in the transmission of messages. 118. What are natural and probable consequences must be determined \^th reference to the facts contem- plated by the parties. Distinction between Tort and Breach of Contract Immaterial. It is not necessary, where there is no question as to punitive or exemplary damages, to distinguish cases in which the action is one for breach of the contract to transmit and deliver the message from cases in which the action is on the case for the tort in failing to perform the duty devolved on the telegraph company under the contract. "The substance and nature of the default and the con- sequent injury are the same in either view, and, in the absence of circumstances warranting the imposition of punitory damages, the measure of damages must be the same, whatever be the form of the action." ' Damages for Natural and Contemplated Consequences Only. The liability of telegraph companies is determined under the rules laid down in Hadley v, Baxendale,^" WTiere the company has no notice of the nature of the transaction, either from the message it- self, or from information given it at the time of sending the mes- sage, the only damages recoverable are the cost of the message." There is much difficulty in applying the rule of contemplated con- sequences, owing to the peculiar nature of the contract. Perhaps as often as otherwise the telegraph company knows nothing of the « Sedg. Dam. 878. » W. U. Tel. Co. V. Rogers, G8 Miss. 748, 9 South. 81i3. 10 9 Exch. 341. »i Beaupr6 v. Telegraph Co., 21 Minn. 155. 2GS DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES. (Cll. 11 ■object of the contract or the probable consequences of a breach. Many messages are written in cipher. Some messages disclose more than others. For instance, a message may show, on its face, that it relates to a purchase or sale of goods; but it may give no notice that the purchase or sale was made with reference to a sub- contract, while another message might disclose the fact of a sub- contract. In one case, therefore, damages for loss on the subcon- tract might be recovered, while in the other it could not. "The telegraph company usually derives its only knowledge of the object to be effected from the message itself, and hence in some cases is in absolute ignorance, in others has complete knowledge, and in still others can only surmise what the object is, or what the loss in consequence of any mistake or negligence in transmission will be." ^* In this class of cases, therefore, the principal contest is usually as to how far the company can be charged with knowledge of the object of the message. Each case, therefore, must be decided largely upon its own facts. SAME— PROXIMATE AND CERTAIN DAMAGES. 119. Damages may be recovered for losses sustained or gains prevented where they are the proximate and certain result of defendant's fault. EXCEPTION" — Damages cannot be recovered for loss of unlawful contract or gain. Losses Sustained or Gains Prevented. Whenever it can be shown that, by reason of a telegraph com- pany's inexcusable failure to send or to deliver a telegram, or of an error in its transmission, the sender has failed to make some gain or profit which he would otherwise have made, or has sustained «ome loss which he would not otherwise have sustained, and the amount thereof can be shown with certainty, the gain or profit pre- vented or loss sustained is a proper element of damages in an action against the company for its breach of contract. This, of course, ia subject to the qualification laid down in Hadley v. Baxendale, that 12 Sedgw. Dam. § ST5. § 119) PROXIMATE AND CERTAIN DAMAGES. 269* such damage must hare arisen naturally from the company's breach of contract itself, or must have been in the contemplation of the parties when they made the contract as a probable result of a breacb thereof. Same — Illustrations — Losses Sustained. The following illustrations show the application of the rule where losses have been sustained: In W. U. Tel. Co. v. Landis ^^ plaintiffs' agent had delivered to defendant, for transmission to them, a message that he had bought two car loads of sheep at $5.60 per hundred. In the course of trans- mission, the word "sixty" in the message was changed to "six." Plaintiffs, relying on the message, sold the sheep before arrival at $6 per hundred. It was held that the measure of plaintiffs' damages was the difference between the amount the sheep were sold for and their actual value. In Doughtery v. Telegraph Co.^* it was held that, for failure to deliver a message directing the sale of cotton owned by the sender, he may recover the actual damages sustained by a fall in the price of the cotton between the time it would have been sold if the mes- sage had been delivered and the time it was actually sold, reason- able diligence having been used to make the sale. In W. U. Tel. Co. v. Williford ^^ it was held that the measure of damages for failure to deliver a telegram to the owner of cattle from his agent, whereby an opportunity to sell the cattle was lost, is the difference between their market value at the place where they were at the time and the price for which they could have been sold. In W. U. Tel. Co. v. Linney ^® it was held that a telegraph com- pany is liable to the addressee of a telegram, on failure to deliver within a reasonable time a telegram notifying him not to ship cat- tle to a certain market, for loss caused by a shipment to such mar- ket. In W. U. Tel. Co. v. Collins ^' it was held that where a telegraph company neglects to deliver a message to a live-stock shipper as to the state of the market at a certain point, in consequence of which. 13 12 Atl. (Pa. Sup.) 4G7. 115 27 S. W. 700 (Tox. Civ. App.). 1*75 Ala. 1G8. le 28 S. W. 234 (Tex. Civ. App.). 17 45 Kan. 88, 25 I'ac. 187. 270 DAMAGKS IN ACTIONS AGAINST TELEGRAPH COMPANIES. (Ch. 11 neglect the shipper sends his stock to the next nearest market, at which he receives 10 ccnis per 100 less than the market price for the same stock at the first point on the same day, the shipper is en- titled to recover from the telegraph company the difference between the market prices of the two points, with the difference in freight added. In W. U. Tel. Co. v. Stevens ^* it was held that where a telegraph company, by negligently failing to deliver a telegram, causes the sender's cattle to be shipped to a point where they have to be sold at less than the market price at the place whence they were shipped, the measure of damages is the difference between such market price and the amount for which they were sold. It was further held that the fact that the sender might have purchased other cattle of the same grade, for a less sum than he received for his, does not affect the question of damages, since it does not devolve on him to replace the cattle lost through the company's negligence. In Hollis V. Telegraph Co.^® it was held that the measure of dam- ages which may be recovered from a telegraph company for deviat- ing from the terms of a message correctly reporting the state of the market for a particular article, whereby the receiver of the mes- sage is induced to send the article forward for sale, is the difference between the actual state of the market and the terms of the mes- sage, as erroneously transmitted, overstating it, provided the ac- tual loss amounts to that much. In W. U. Tel. Co. v. James ^° it was held that where the injury done one to whom a telegram was sent, by failure to deliver it, was the prevention of a sale that would otherwise have been consum- mated, the measure of damages is the price which would have been realized by the sale less the market value of the goods on that day, or, if they had no market value, the contract price less the price that could have been obtained afterwards. In Garrett v. Telegraph Co.-^ it appeared that plaintiff had an arrangement with a Chicago firm to inform him by wire of any change in the cattle market. He delivered a message to them to defendant's agent, stating where he could be reached by wire, which 18 16 S. W. 1095 (Tex. Sup.). 2090 Ga. 254. 16 S. E. S3. 19 91 Ga. 801, 18 S. E. 287. 21 58 N. W. 1064 (Iowa). ^ 119) PROXIMATE AND CERTAIN DAMAGES. 271 was not sent. Relying upon the silence of his correspondent, plain- tiff purchased cattle for the Chicago market on the basis of the price last named by it, which had fallen. It was held that the measure of damages was the difference between the Chicago price at the time he bought the cattle and what it was when last informed by his correspondent. In W. U. Tel. Co. v. Haman ^^ it appeared that a member of the plaintiff firm, after receiving instructions by telegraph, had pur- chased a quantity of wool, and delivered to the defendant telegraph company a message advising the firm thereof, telling the agent that the message was important, and that he thought his firm had prob- ably contracted to sell the wool ; and, to avoid any mistake, he had the agent transcribe the message, and signed the copy. The mes- sage was not delivered, and the price of wool when the firm first learned of the purchase had declined from the price at which they could have sold it if they had gotten the message. They sought to recover the difference as their damages, and it was held that they could do so. In W. U. Tel. Co. v. Brown ^^ plaintiff had contracted to sell in C. certain mules, for the purchase of which his agent had been sent to K.; but, owing to the failure of plaintiff to get a mes- sage in due season, his customer rescinded the contract. It was held that the measure of damages for failure to make this sale was not the difference between the price at which they could have been bought in K. if the message had been delivered in due time, and the price at which he had contracted to sell them, but that difference less the expense of transportation to C. In W. U. Tel. Co. v. Hyer ^* ship brokers in Pensacola, who had been engaged by customers to charter a vessel, sent a telegram to their correspondent in Barbadoes, making an offer for the charter of a vessel. The offer was accepted, and a message to that effect sent to the brokers, but the message was not delivered to them by the telegraph company. Their correspondent in Barbadoes, as their agent, signed a charter party. Not receiving the answer to their message, they told their customer that they had failed to charter the 2 2 2 Tex. Civ. A pp. 100, 20 S. W. 1133. 2 8 84 Tex. 54, 19 S. W. 33G. «* 22 Fla. G37, 1 South. 120. 272 DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES. (Ch. 11 vessel, whereupon he chartered another. Two weeks later the vessel chartered by their agent came to Pensacola, and they were obliged to recharter it at a loss. The telegraph company was held liable for such loss, and for the plaintiffs time and exertions in recharter- ing the vessel. In Parks v. Telegraph Co.^'^ it was held that for failure to deliver a message authorizing the sender's agent to secure a debt due him from a third person by attachment, by reason of which other cred- itors secured attachments, and the sender lost his debt, the sender could recover from the company the amount of the debt.^" In Herron v. Telegraph Co.^^ where plaintiff's sale of his horse had failed because of delay in delivering a telegram, and the horse had no regular market value in the neighborhood, and plaintiff had since disposed of him for the best price by reasonable effort attain- able, it was held that the plaintiff could recover the difference be- tween the dispatch's offer and the price realized, with cost of keep and interest. In Pruett v. Telegraph Co.^^ the plaintiff's agent had telegraphed him that a herd of cattle which plaintiff was holding together for sale had been sold by the agent, and informed the telegraph agent that, unless the message was delivered that day, the plaintiff would turn the herd loose. The telegraph company failed to deliver the telegram that day, and the herd was therefore turned loose. It was held that the company was liable for the cost of regathering the cattle, and the death and depreciation in value of the cattle caused by such regathering. In W. U. Tel. Co. v. Bates ^° it was held that where plaintiff, through delay in receiving a telegram, made a journey which he would not have made until later if it had been received, he was en- titled to recover the increased expenses of the premature journey. He could not recover more than this loss.*" 2 5 13 Cal. 422. 2 6 To the same effect, see Fleischner v. Cable Co., 55 Fed. 738, and W. U. Tel. Co. V. Sheffield, 71 Tex. .570, 10 S. W. 752. 2T 57 N. W. 696 (Iowa). 28 6 Tex. Civ. App. 533, 25 S. W. 794. 28 93 Ga. 352, 20 S. E. 639. »o See Sprague v. Telegraph Co., 6 Daly, 200, affirmed in 67 N. T. 590. § 119) PROXIMATE AND CERTAIN DAMAGES. 273 In W. U. Tel. Co. v. Proctor ^^ it was held that, where a telegram sent b}' a father to prevent the marriage of a minor daughter was not promptly delivered, by reason of which the marriage was per- formed, he may recover for loss of service until she reaches the age of 18 years. In Gulf, C. & S. F. Ry. Co. v. Loonie^^ where it appeared that plaintiff, who was constructing a building, went to C. for materials, leaving the plans with his workmen ; that afterwards he telegraphed that the plans be sent to C, but the message was not delivered; that while at C. he agreed on the materials and prices, but could not conclude contracts for the materials, in the absence of the plans; that afterwards the price of the material advanced, — it was held that an instruction that plaintiff's measure of damage was "the amount he paid for the message, the value of plaintiff's time lost, and the difference he had to pay by reason of the advance in the price of material," was properly given. In W. U. Tel. Co. v. Jobe ^^ it was held that where a telegraph company failed to deliver a message to plaintiff, announcing the illness of his wife's father, till 14 hours after receipt, plaintiff can recover the cost of a second message sent him in relation thereto, and paid for by him. In Rich Grain Distilling Co. v. W. IT. Tel. Co.^* it was held that where a telegram requesting boiler makers to send a man to repair a boiler in a distillery is not delivered, damages are recoverable for money expended in paying idle servants.' ° Same — Hlmtrations — Gains Prevented . The following cases show the application of the rule to cases in which gains or profits are prevented. The rule, of course, is subject «i 25 S. W. 811 (Tex. Civ. App.). 82 82 Tex. 323, 18 S. W. 221. 8 3 2.J S. W. IGS (Tex. Civ. App.). 8* 13 Ky. Law Rep. 23G (Ky. Super. Ct.). 8 See, also, Tyler v. Telegraph Co., GO 111. 421; W. U. Tel. Co. v. Du Bois, 128 111. 248, 21 N. E. 4; W. U. Tel. Co. v. Hobson, 15 Grat. (Va.) 122; Iladley v. Telegraph Co., 115 Ind. 101, 15 N. E. 815; Manville v. Telegraph Co., 37 Iowa, 214; Turner v. Telegraph Co., 41 Iowa, 458; Leonard v. Telegraph Co. 41 X. Y. .'14. LAW 1JA.M. — 18 274 DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES. (Ch. 11 to the qualification that the profits or gain must not be speculative. This qualification will be preseutly illustrated. In Alexander v. Telegraph Co.^® it was held that, where the sender of a telegram loses a purchase of land by reason of the company's failure to deliver the telegram, he may recover the difference be- tween the price at which the property was offered to him and its actual market value at the time tiie message should have been de- livered. In Kittenhouse v. Telegraph Co.^'^ the operator made a mistake in the article ordered by telegraph. It was held that the company must make good the difference between the price of the article ac- tually ordered at the time the dispatch should have been deliv- ered, and the price of the same article if it had been purchased as soon as the mistake was discovered. In United States Tel. Co. v. Wenger ^* there was a failure by the telegraph company to deliver a message to buy certain stock which advanced in price between the time when the message should have been delivered and the time it was purchased under another order. It was held that the company was liable for the amount of the ad- vance in the price of the stock between those dates. ^' In True v. Telegraph Co.*" the plaintiffs, having received an offer of a cargo of corn at 90 cents per bushel, had delivered to the tele- graph company, to be sent to the personmaking the offer, the follow- ing message: "Ship cargo named at ninety, if you can secure freight at ten." The message was not delivered by the company, and by rea- son thereof the plaintiffs failed to obtain the corn on the terms of- fered, and the i)rice of corn and freight immediately advanced, and the plaintiffs lost the profits that they might have made thereon. The court held that the measure of damages was the difference be- tween the price named in the offer and that which plaintiffs would have been obliged to pay at the same place, in order, by due dili- gence, after notice of failure to deliver their telegram, to purchase ae GG Miss. IGl, 5 South. 397, 87 44 N. Y. 263. 3 8 55 Pa. St. 2G2. 39 And see Pearsall v. Telegraph Co., 124 N. Y. 2.1C., 2G N. E. .">.34. *o GO Me. 9. § 119; PROXIMATE AND CERTAIN DAMAGES. 275 the like quantity and quality of corn, with the same rule in relation to the freight. In Carver v. Telegraph Co.*^ it was held that where a telegraph company, with notice of the importance of a message directing the purchase of cattle, fails to deliver it, and there is a subsequent per- manent advance in the price of cattle, the company will be liable to the sender for the loss sustained by purchase of cattle at the ad- vanced price. In Pearsall v. Telegraph Co.*- it was held that the proper meas- ure of damages for failure to deliver a telegraphic message contain- ing on its face an instruction to buy a certain stock, that in con- sequence was not bought until 24 hours later, was the difference between the market value of the stock when the message ought to have been delivered and on the day after. In W. U. Tel. Co. v. Fatman *^ a ship broker desired to furnish a vessel for the use of another person, and, if he had done so, he would have been entitled to certain commissions for his services. He dis- patched to Liverpool for a vessel, and a message requiring imme- diate reply, and offering a suitable vessel, was delivered to a tele- graph company, to be communicated to the broker ; but the company failed to deliver it within a reasonable time, and on that account the vessel was not obtained. The broker sued the company, and re- covered judgment for the amount of the commissions he would have earned if he had secured the vessel, and the judgment was affirmed. In W. U. Tel. Co. v. Valentine ** it was held that where, by the negligence of a telegraph company, a person fails to obtain a salaried position, the measure of damages is the difference between the amount of such salary' and the amount actually earned by him. In W. U. Tel. Co. v. Bowen *^ it appeared that plaintiffs were threshers, and their agent at V. wired them: "Have 30,000 bushels for you, if you can come at once." Plaintiffs answered : "Will ship machinery at once." The latter message was not delivered, and some of the parties for whom threshing was to be done, not knowing 4131 S. W. 432 (Tex. Civ. App.). 42 124 N. Y. 25G. 2G N. E. 534 (affirming 44 Hun, 532). 4 8 73 Ga. 285. 44 18 111. App. 57. 4 84 Tex. 47G. 19 S. W. 554. 276 DAMAGKS IX ACTIONS AGAINST TEF-EGRAPII COMPANIES. (Cll. 11 that the offer was accepted, made other contracts. It was held that defendant was liable for the loss of the contracts, though there was- no delay in getting the machine to V. In W. U. Tel. Co. v. Robinson *^ which was an action against a telegraph company to recover for negligence in the transmission of a message, it appeared that plaintiffs held certain contracts for threshing grain, which they lost thereby. It was held that the measure of their damages was the difference between the amount they would have received under the contracts and the expense they would have incurred in fulfilling them. In W. U. Tel. Co. v. Longwill *'' a telegram had been sent to a physician summoning him, but through the negligence of the com- pany it was not delivered to him until it was too late to make the visit, and until after the order had been countermanded. There was testimony that a reasonable compensation for the services expected to be performed by the physician would have been $500, and the sender of the message was solvent. It was held that the difference between such sum and what he earned during the time that he would have been absent on such visit was the measure of damages. Same — Loss of Unlawful Contract or Gain. Even if a telegraph company is negligent in failing to send or deliver a message, the sender cannot recover for gains prevented thereby, if they would have been unlawful. The law clearly can- not take such matters into consideration in compensating him. He could not recover, for instance, damages for being prevented from entering into or carrying out an unlawful contract. Thus, in a Georgia case it was held that since contracts for fictitious or option "futures" are illegal, whether between principal and principal, or broker and principal, where both parties are in complicity touching the unlawful purpose, such contracts, or the loss or gain resulting from them, cannot be invoked to measure the damages sustained by the sender of a telegram in consequence of a mistake made by the- company in transmitting the message.*^ *8 29 S. W. 71 (Tex. Civ. App.). *^ 21 Pac. 339 (X. M.). 4 8 Cotbran v. Telegraph Co., S3 Ga. 2.j, 9 S. E. S36. See, also, Melchert v.. Telegraph Co., 11 Fed. 193; Freeman v. Telegraph Co., 93 Ga. 230, 18 S. E- 647 (referred to infra). § 120; REMOTE AND SPECULATIVE DAMAGES. 277 SAME— REMOTE AND SPECULATIVE DAMAGES. 120. Damages cannot be recovered for losses -which are remote or speculative. This rule is but the converse of the general rule that losses must t>e proximate and certain in order to be compensated. To entitle the plaintiff to recover more than nominal damages, it is incumbent 4ipon him to prove actual and certain damage, and to show, further than this, that it was the natural result of the breach of its con- tract by the telegraph company, or was in the contemplation of both parties, when they made the contract, as a probable consequence of a breach of it. This qualification is laid down in Hadley v. Baxen- dale and GriflSn v. Colver,^" and is sufficiently illustrated by the fol- lowing cases: In W. U. Tel. Co. v. Cooper " it was held that failure to de- liver a message to a physician, calling him to attend a patient, does not render the company liable for the patient's suffering, if the message could not have been delivered in time for him to have rendered any assistance. Of course, in such a case the com- pany would be liable for nominal damages for its breach of contract, -and for the price paid it for transmission of the message." In W. U. Tel. Co. v. Kendzora ^^ which was an action for failure to deliver a message summoning a physician to attend plaintiff's wife, who died two days later, it was held that plaintiff could not recover for loss of his wife's services, where there was no evidence that her life could have been saved had the message been promptly !)8. f 2 And see Cults v. Telegraph Co., 71 Wis. 4(5. 30 N. W. 027. 6 3 77 Tex. 2.-,7. 13 S. W. OSG. «« 3!) Fed. LSI. 278 DAMAGKS I\ ACTIONS ACiAINST TEI.EGRAPH COMPANIES. (Cll. il In W. IT. Tel. Co. v. Smith ^' it was held that one suing a tele- graph company for delay in delivering a message, whereby he wa» deprived of seeing his father alive, must show that the distance be- vweeu him and his father, the means of travel, and the time required to make the trip, were such that he could have reached his father before the latter's death had the message been properly delivered. In W. U. Tel. Co. v. Parks ^^ it was held that delay in transmitting messages to and from a consulting physician, who in fact could not come, is no ground for damages beyond the cost of the dispatches, where it does not appear but that the attending physician did all that could be done, and that plaintiff suffered nothing from the de- lay but suspense of mind. In Freeman v. Telegraph Co." it was held that there could be no recovery for failure to deliver a message offering employment when the addressee was already under contract with another, consistently with which he could not have entered the employment of the sender. In Hughes v. Telegraph Co.^* it was held that, where the incor- rect transmission of a telegram caused plaintiff to sell shares of stock for which he received the market value, his damages were limited to the cost of the message, though a few^ days later he was compelled, in order to buy shares of the same stock, to pay an ad- vanced price. In W. U. Tel. Co. v. Fellner ^^ which was an action against a telegraph company for failure to deliver a message instructing the addressee to purchase for plaintiff 100 shares of certain stock, it w'as held that the mere fact that, within a few^ days after the message was sent, the price of such stock advanced |.550, and so continued until suit w'as brought, did not entitle plaintiff to recover more than nominal damages, there being no evidence that, if the stock had been jturchased, plaintiff would have ever sold it at a profit. In Cahn v. Telegraph Co.®° the plaintiff had sent a telegram to hi& brokers directing the latter to sell certain stock. The message wa& not delivered for several days, during which the price of the stock fell from $73 to $55 per share. The plaintiff in fact owned no stock. It was held that the company was not liable for the difference be- es 30 S. W. 549 (Tex. Sup.). r.8 114 N. C. 70, 19 S. E. 100. G6 25 S. TV. S13 (Tex. Civ. App.). '-^ 58 Ark. 20, 22 S. W. 917. 67 93 Ga. 230, IS S. E. 647. go 4G Fed. 40 § i-O) REJVIOTE AND SPECULATIVE DAMAGES. 279 tween the price of the stock when the telegram should have been delivered and the price to which it declined, because, ''the plaintiff not having the stock in the hands of his brokers, and his telegram being an order to sell something he did not own, and it being ad- mitted that if the telegram had been delivered in time the brokers would have sold, still there could have been no actual loss to plain- tiff. The brokers would necessarily have gone into the market, and purchased at the market price, — viz. |73, — or used their own stock or the stock of others, which is the same thing and of the same value; hence it would have been a purchase and a sale of the stock on the same day and at the same price, and there could be no loss or dam- age predicated on this transaction." Plaintiff in this case could re- cover nominal damages and the cost of the message paid by him.*'^ In W. U. Tel. Co. v. Hall ®^ the plaintiff brought suit against a telegraph company for delaying the delivery of a message directing the addressee to buy for plaintiff 10,000 barrels of petroleum, the market price of which when the message ought to have been deliv- ered was |1.17 per barrel, but when received by the addressee had advanced to |1.35 per barrel. The addressee did not purchase. It was held that plaintiff, having suffered no actual loss, could only recover nominal damages, and not the contingent profit he might have made by buying at the one price and selling at the other. In this case the authorities are collated.*^ In W. U. Tel. Co. v. Cooper ^* which was an action against a tele- graph company for failing to deliver a message sent to plaintiff's family physician, calling him to attend plaintiff's wife in her con- finement, it was held that there could be a recovery for the wife's increased suffering caused by her labor being prolonged, but not for the death of the child and consequent bereavement of the parents, as the latter damages were too remote, being the result of a second- ary cause. It was further held that the plaintiff could not recover for his own mental suffeiing caused by alarm and sympathy for his wife's suffering, as it was too remote. 61 Affirmed in 2 U. S. App. "Jl, 1 C. C. A. 107, and 48 Fod. 810. 6 2 124 U. S. 444, 8 Sup. Ct. 7)17. 63 St-e, also, Cannon v. Telegraph Co., 100 N. C. oOO, S. E. 731. •* 71 Tex. 507, 9 ii. W. 508. 280 DAMAGKS IN ACTIONS AGAINST TEt-KCJUATH COMPANIES. (Cll. 11 In Rich Grain Distilling Co. v. W. U. Tel. Co.°=* it was liekl that, where a telegram requesting boiler makers to send a man to repair a boiler in a distillery is not delivered, damages cannot be recovered for probable profits on liquors that could have been made had no delay occurred by reason of such nondelivery. In Duncan v. Telegraph Co.®" it was held that a mistake in the transmission of a telegram, requesting the services of a veterinary surgeon, cannot be deemed the proximate cause of the death of a horse belonging to the sender of the telegram, where the evidence is merely conjectural as to whether the life of the horse might have been saved had a veterinary come at once, pursuant to a correct transmission. In Smith v. Telegraph Co.°^ the plaintiff had deposited money with defendant telegraph company, to be transmitted to a bank for the payment of plaintiff's note due on that day, but, because of de- fendant's failure to notify the bank until the day following, the note went to protest. It was held that, in the absence of pecuniary loss resulting from defendant's failure, plaintiff could not recover for damages to his credit. In Kenyon v. Telegraph Co.,®^ an action against a telegraph com- pany for failure to deliver a message, by reason of which plaintiff failed to receive an appointment as deputy assessor, it was held that damages for loss of the salary he would have received are too spec- ulative, since a deputy only holds office at the pleasure of the officer appointing him.®^ In Walser v. Telegraph Co.'''* a telegraph company failed to de- liver the following telegram, sent by the comptroller of the currency: "Would you accept receivership First National Bank Wilmington? * * * Compensation, fjf2()0 per month, subject to future modifica- tion." It was held that, where the pleadings raised no question as to exemplary damages, plaintiff could recover only nominal damages, since, if he had received the message and had sent an affirmative 6 5 13 Ky. Law Rep. 27jC, (Ky. Super. Ct.). Gc 87 Wis. 173, 58 N. W. 75. 7 150 Pa. St. 561. 24 Atl. 1049. 6 8 100 Cal. 454, 35 Pac. 75. 69 And see Merrill v. Telegraph Co., 78 Me. 97, 2 Atl. 847. 7 114 N. C. 440, 19 S. E. 3l3G. ■§ 120) REMOTE AND SPECULATIVE DAMAGES. 281 reply, the government would have been under no obligation to con- fer the o£Sce on plaintiff. In W. U. Tel. Co. v. Bowen/^ an action against a telegraph com- pany for failure to deliver a message, whereby plaintiff lost a con- tract for threshing certain grain, where the complaint showed the amount of grain to be threshed, and the rate of toll per bushel con- tracted for, it was held that the damages were not contingent or uncertain. In W. U. Tel. Co. v. Clifton "- it was held that the delay of a tele- graph company in delivering a telegram to an attorney, requesting him to take the first train for a neighboring town, but which tele- gram contained nothing to show why he was wanted at that place, or what injuries would result to him from the delay in delivery, does not enable him to recover the attorney's fees which he might have earned had the dispatch been seasonably delivered, as such rule of damages would cover all possible and improbable consequen- -ces arising from the delay in delivering, instead of the probable con- sequences only. In Chapman v. Telegraph Co.''^ it was held that the loss of a note which plaintiff avers his father would have given him had he been ^ble to see him before his death is a consequence too remote to sus- tain a claim for damages for failure to deliver a telegram announ- •cing the illness of the father. In Alexander v. Telegraph Co."^* it was held that where, by fail- ure of a telegraph company to deliver a message, plaintiff lost the •opportunity to buy for |3,000 land worth $5,000, and sought to re- -cover the difference, the damages claimed are not so speculative, re- mote, or contingent as to absolve the company from liability. In McAlleu v. Telegraph Co.'^'* it was held that damages for bruises received in consequence of being obliged to take a rough vehicle, instead of tlie family carriage, are too remote for a claim against a telegraph company for failure to transmit a message ordering the family carriage. In Frazer v. Telegraph Co.,^° which was an action for negligence in transmitting to plaintiffs a telegram aiiiiounciug a rise in the 71 84 Tox. 470, lit S. W. ">L 7-» (Ji; .Miss. 101. ."j Soiilli. :!;)7. T2 08 Miss. 307, 8 South. 74f). to 70 Tex. 2U. 7 S. W. 71."). 73 90 Ky. 2G5. 1.3 S. W. 8S0. fost Al:i. 1,S7, 4 .Soiilli. s:;i. 282 DAM.UiE.S IN ACridNS AiiAIXST TELEGRAPH COMPANIES. (Cll. 11 price of cotton, whereby plaintitTs sold their cotton for less than they could have obtained, it appeared that the sender was under no legal obligation to inform plaintiffs as to the price of cotton, and that plaintiffs did not rely on receiving information from him. It was held that the damages claimed were too remote. In W. U. Tel. Co. v. Crall '^ it was held that damages cannot be recovered for inaccurate transmission on account of the loss of antic- ipated gains or profits, based on the probability of plaintiff's horse being able to win prize purses at a trotting race, as such damages are too remote, contingent, and speculative. SAME— DAMAGES NOT WITHIN CONTEMPLATION OF PAR-^ TIES— NOTICE OF PURPOSE AND IMPORTANCE OF MESSAGE. 121. Consequential damages, arising out of circumstances not contemplated by both parties, cannot be recov- ered; but, if enough appears in the message to show that it relates to a commercial business transac- tion, it is sufiBLcient to charge the company -with damages resulting from default in its transmission. It will be noticed that the rule laid down in Hadley v. Baxen- dale '* requires that damages for breach of contract, to be recover- able, must be such as may fairly be considered as arising naturally from the breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, when they made the contract, as the probable result of the breach of it. If the damages sought to be recovered may fairly be considered as arising naturally out of the breach of contract itself, the party who has broken the contract will be presumed to have contemplated them as the probable result of a breach. If, on the other hand, the dam- ages sought to be recovered arose out of special circumstances, not disclosed by the contract itself, they cannot be recovered, unless it is shown that such special circumstances were communicated or 7 7 39 Kan. 580, 18 Pac. 719. " 9 Excli. 341. {; 121) >'OTICE OF PURPOSE AND IMPORTANCE OF MESSAGE. 283- known to the party who broke the contract, so that they can be con- sidered as having been contemplated when he made the contract." In McColl V. Telegraph Oo.*" the dispatch was as follows: "Can close Valkyria and Othere, 22, 20 net, Montreal. Answer immediate- ly." It was held that the sender could not recover commissions which he would have earned as a broker in effecting a charter of the two vessels named in the dispatch if the message had been duly transmitted, as they were not damages either actually contemplated or to be fairly supposed to have been contemplated by the company. "In the present case," it was said, "the text of the message which the defendants failed to transmit until after a delay of several days indicates upon its face no occasion for special care or the involving of the chartering of two vessels. There was no notice or informa- tion of any fact given to the defendant, or contained in the message itself, indicating its importance or that special damages would re- sult from any neglect. However strongly the plaintiff may have felt assured, acting as a broker in the matter, that the offer telegraphed to his principals would be accepted, and that he would get his five per cent, commission, yet there is nothing in the case that places these contingencies, in themselves uncertain and remote, within the contemplation of the defendant. It is true the plaintiff's principals might have accepted the offer, and paid the plaintiff the commis- sions, and their evidence is that they would have accepted it if it had not been delayed by the neglect of the defendant in failing to forward it immediately. The claim of the plaintiff is for a special and contingent loss, and not for such a loss as was the natural and necessary consequence of the defendant's neglect, or such as, from the surrounding circumstances, could even be inferred by the de- 7 See Smith v. Telegraph Co., S3 Kj'. 104; W. U. Tel. Co. v. J. A. Koiiip Grocer Co. (Tex. Civ. App.) 2S S. W. 00a; W. U. Tel. Co. v. Lively (T»x. App.) 15 S. W. 197; McColl v. Telegraph Co., 44 N. Y. Super. Ct. 4S7; Bahl- win V. Telegraph Co., 4.j X. Y. 744; Mackay v. Telegraph Co., 16 Nev. 222, 228, and cases there collated; Dorgan v. Telegraph Co., Fed. Cas. No. 4,004; Smith V. Telegraph Co., S3 Ky. 104; Lowery v. Telegraph Co., GO N. Y. I'JS; Ilibbard v. Telegraph Co.. 33 Wis. 558; W. U. Tel. Co. v. Graham, 1 Cnlo. 230; Squire v. Telogniph Co.. 08 Mass. 232; First Nat. Bauk of Barnesville V W. U. Tel. Co., 30 Ohio St. 555. 80 44 N. Y. Super. Ct. 4S7. ZiS-i: DAMAGES IN ACTIONS AGAINST TKI.KGKAril COMPANIES. (^Ch. 11 fendant. The decision in Baldwin v. Tolcf^rapli Co.,^^ that, where a special purpose is intended by one party, and is unknown to the other, and does not appear by the message itself, in the assessment of damages, such special purpose cannot be taken into consideration, but that the damages must be limited to those resulting from the ordinary and obvious puiijose of the contract, governs the case under consideration." *^ 81 45 N. Y. 744. 82 In Smith v. Telegraph Co., supra, plaiuliff had deposited with his bro- kers in New York securities to protect them in the purchase of stock on his account. Several purchases were made by them, of which he had notice. The brokers telegraphed him of another purchase, which telegram defend- ant failed to deliver. There was a decline in stocks, and plaintiff's margin was exhausted, and his stocks sold at a heavy loss. It was held, in a suit for damages for faihu-e to deliver the telegram, that plaintiff could not re- cover on the ground that if he had known of the purchase mentioned in the message he would have protected his stock, and saved a portion of his deposit, such consequences not being the ordinary result of a failure to deliver the message, and contemplated when the company agreed to send it, and plain- tiff could only recover the expense of sending the message. In W. U. Tel. Co. v. Carter, 85 Tex. 580, 22 S. W. 961,— an action for fail- ure to deliver promptly a message informing the addressee of the death of a lelative, so that he was unable to reach the home of the relative in time to attend the funeral,— it was held that the expense of exhuming the body, and removing it to another place, was not the proximate result of the failure to deliver the message promptly, since it could neither be foreseen that if the message were not delivered promptly the body would be interred in a place which would be unsatisfactory to the addressee, nor could it be known that in such an event the addressee would wish to exhume it. In W. U. Tel. Co. v. J. A. Kemp Grocer Co. (Tex. Civ. App.) 28 S. W. 005, it was held that a telegraph company failing to deliver a message ordering goods already sold by the sender for future delivery was not liable for loss of profits thereon, in the absence of notice of such sale. In W. U. Tel. Co. v. Parlin & Orendorff Co. (Tex. Civ. App.) 25 S. W, 40, it was held that for failure of a telegraph company to deliver a message •stating that the sender would, at a certain time, be at a certain place, the sender could not recover damages for loss of profits on goods which he would have sold the addressee, the company having no notice of the purpose of the message. In W. U. Tel. Co. v. Cornwell, 2 Colo. App. 401, 31 Pac. 303, C. left a dis- patch at defendant's telegraph office in S., to be forwarded to plaintiff at M. The dispatch was: "Strauss gone to Howard. Gave man gold watch by mistake. Left no word with me. Store closed. Answer." Strauss was a § 121) NOTICE OF PURPOSE AND IMPORTANCE OF MESSAGE. 285'- On the question as to how far mere indefiniteness iu the lauguage of a message will defeat a recovery for consequential damages against a telegraph company, the decisions are not harmonious. There are some cases that go to the extent of holding that the oper- ator who transmitted the message must have been able to under- stand its meaning as the sender and part}^ to whom it was sent understood it; otherwise, it is said, he cannot reasonably be sup- posed to have contemplated damages as the probable consequence clerk, whom plaintiff had left in charge of his jewelry store in his absence, . and during the night or early in the morning, before the dispatch was sent,, had robbed the store, and absconded with the property; and the dispatch, was in relation to the absconding, but defendant's agent had no notice there- of. The dispatch remained in the S. oflace an hour and a half, and was then, forwarded to the M. office, where it remained two hours before it was deliv- ered, or any effort made to deliver it. Held, that plaintiff could not recover- more than the cost of the message and incidental expenses. In Cahn v. Telegraph Co., 2 U. S. App. 24, 1 C. G. A. 107, and 4S Fed. SIO, it was held that a telegraph company could not be held liable for loss of profits alleged to result from delay iu sending a message to sell 200 shares of certain stock merely because the operator who received the message for- transmission was familiar with the method of dealing on the New York stock exchange, and knew from the message that a "short" sale was intended, which necessarily implied the sending of a subsequent order to buy for the purpose of "covering." It was further held iu that case that, whore one de- livers to a telegraph company for transmission a message to sell 200 shares of certain stock, the legal presumption which the company is authorized to- make is that it is an order to sell stock held by the sender, and not that he intended to sell something which he neither had nor proposed to acquire, for such a presumption Avould involve a violation of the law, as held by some of the highest courts in the country. In W. U. Tel. Co. v. Short, 53 Ark. 434, 14 S. "W. ('49, a message to plaintiff had been delivered to defendant telegraph company reciting that a certain case was set for August 17th. As delivered to plaintiff, it read August 7th. It was held that defendant was liable for plaintiff's reasonable expenses iu going to and from the trial, and the value of his time; but that, there being no evidence that the company had notice of special circumstances connected with the sending of the message, it was not liable for loss to plaintiff re- sulting from the necessity of sljutling down his mill, idleness of his teams, etc., during his absence. In Barrett v, I'elcgraph Co., 42 Mo. App. 512, it \vas hcul that for the failure of a telegraph company to transmit a telegram iu relation to a ship- ment of three loads of cattle, and the cashing of a (haft therefor, damages cannot be extended beyond the loss sustained on three loads, as only damages 286 DAM.\G1-:S IX ACTIONS AGAINST TEI-EGKAI'II COMPANIES. (Ch. 11 of a failure to transmit it.*^ Most of the cases, however, hold that, where enough appears in the message to show that it relates to a commercial business transaction between the correspondents, it is sufficient to charge the company with damages resulting from its negligent transmission or a failure to transmit it.^* In Postal Tel. Cable Co. v. Lathrop ^^ the rule was stated to be that "where a mes- sage as written, read in the light of well-known usage in commercial correspondence, reasonably informs the operator that the message is one of business importance, and discloses the transaction so far as is necessary to accomplish the purpose for which it is sent, the company should be held liable for all the direct damages resulting from a negligent failure to transmit it as written," etc. Where a telegraph message, when read in the light of well-known usage in commercial correspondence, reasonably informs the operator that the message is one of business importance, and discloses the trans- action so far as it is necessary to accomplish the purpose for which it is sent, the telegraph company is liable for all direct damages from the negligent failure to transmit or deliver it, as written, with- in a reasonable time.^® Where the subject to which a telegram re- as to such loads might be fairly considered as arisiug naturally, and to have been in contemplation of the parties to the contract. In W. U. Tel. Co. v. Smith, 76 Tex. 253, 13 S. W. 169, the plaintiff deliv- ered to a telegraph company for transmission a message as follows: "R. [Ad- dressed]. Meet me In C. Saturday night. S.,"— which was not delivered to R.; and plaintiff brought an action against the company, alleging that by its negligence he was put to expense in hiring a conveyance to go from C. to R.'s home, and back again; that by loss of time he failed to meet important en- gagements; and that, by reason of exposure, his health was greatly impaired. It was held that the petition was bad on demurrer, the damages being too remote, conjectural, and not in contemplation of the parties, in case of a breach of the contract. 83 See cases cited, supra. 84 See Tyler v. Telegraph Co., 60 111. 421, 74 111. 168; Telegraph Co. v. Gris- wold, 37 Ohio St. 302; Marr v. Telegraph Co., 85 Tenn. 530, 3 S. W. 49G; W. U. Tel. Co. V. Blauchard, 68 Ga. 29'J; Squire v. Telegraph Co., 98 Mass. 232; Hadley v. Telegraph Co., 115 lud. 200, 15 N. E 845; Manville v. Telegraph Co., 37 Iowa, 214; W. U. Tel. Co. v. Williford (Tex. Civ. App.) 27 S. W. 700; Herron v. Telegraph Co. (Iowa) 57 N. W. 696. 8 5 131 111. 575, 23 N. E. 583. 86 Bierhaus v. Telegraph Co., 8 Ind. App. 246, 34 ^^ K,. 581. § 121) NOTICE OF PURPOSE AXD IMPORTANCE OF MESSAGE. 287 lates (as a proposition to sell goods at a given rate) is understood by the company, it is not necessary, in order to make it liable in compensatory damages for negligence in transmission, that the com- pany should be able to foresee the exact amount of pecuniary loss which such negligence is likely to cause.*^ A telegraph company is not relieved from liability for special damage resulting from delay in delivering a message, which prevented plaintiff from entering into certain contracts, by the fact that at the time the message was sent it had no notice of the contracts plaintiff was about to enter into, or the damages liable to arise from such delay.** Illustrations. In United States Tel. Oo. v. Wenger *^ a message read: "Buy fifty (50) Northwestern fifty (50) Prairie du Chien, limit forty-five (45)." Tliere was a delay in its delivery, resulting in a loss to the sender on account of the advance in price of Chicago & Northwestern Railway Company stock, and the Milwaukee & Prairie du Chien Railway Company stock, which the message was intended to order purchased. A recovery was sustained, the court saying: "The dis- patch was such as to disclose the nature of the business to which it related, and that the loss might be very likely to occur if there was a want of promptitude in transmitting it, containing the order." In W. U. Tel. Co. v. Haman ®° a member of the plaintiff firm, after receiving instructions by telegraph, purchased a quantity of wool, and delivered to the defendant telegraph company a message ad- vising the firm thereof, telling the agent that the message was im- [)ortant, and that he thought his firm had probably contracted to sell the wool; and, to avoid any mistake,he had the agent transcribe the message, and signed the copy. It was held that the circumstan- ces surrounding the delivery of the message to the agent were suffi- cient to apprise him of its importance and the consequence of a failure to deliver it. In Martin v. Telegraph Co."^ the plaintiff sued defendant telegraph company for delay in delivering Ihe message: "M. & Co. hold note 87 Popper V. Telegraph Co., 87 Teun. 554, 11 S. W. 783. 88 Gulf, C. & S. I'\ Ky. Co. v. Looiiie, 82 Tex. 3:i3, 18 S. VV. '221. 89 55 Pa. St. 262. »o 2 Tex. Civ. A pp. 100, 20 S. W. 1133. »i 1 Tex. Civ. App. 143, 20 S. W. 8t>0. 288 DAMAGES IN ACTIONS AGAINST TELEGH VPM COMPANIES. (Ch. 11 of W. Will be attached to-night. Your bank telegraph M, Bros^ bankers, to make bond." It was held that the message was suffi- cient on its face to show that its prompt delivery was necessary to avert a loss. In W. U. Tel. Co. v. Williford °- the defendant telegraph company received for transmission to plaintiff the following message: "How many beeves and bulls have you? Don't go away; will get them off. Answer." It was held that the message advised defendant that it related to a matter of business in which loss would probably result if it was not promptly delivered, and defendant was liable for nom- inal damages, and for such further damages as naturally resulted from the failure to deliver the message. In Bierhaus v. Telegraph Oo.®^ an attorney wired wholesale deal- ers: "Have 3'ou claim against P. L. D.? Answer how much."^ The latter replied: "Yes; one hundred and sixty-one dollars and fifteen cents." It was held that the telegraph company was liable to such dealers for special damages for failure to deliver such mes- sages within a reasonable time, though it was not informed of their importance otherwise than by their character. In W. U. Tel. Co. v. Lowrey ^* it was held that a telegram direct- ing commission merchants in Chicago to sell corn in their posses- sion is sufficient of itself, without instructions, to indicate to the operator to whom it is delivered the necessity for its prompt trans- mission, so as to render the telegraph company liable for delay in transmitting it. In Garrett v. Telegraph Co.®° a dealer in cattle living in Iowa wired his Chicago correspondent, "Send me market, Kansas City, to-morrow and next day." He had previously sent and received a great many messages from that office. It was held that it was a question for the jury whether the message charged the company with notice that the sender intended to act upon the result of it in buying or selling cattle at Kansas City. In Mo wry v. Telegraph Co.^^ it appeared that, on the day the message was sent, plaintiffs received a message from defendant which gave the price of hams, etc., and in answer plaintiffs deliv- 8 2 2 Tex Civ. App. 574, 22 S. W. 244. 9* 32 Xftb. 732. 49 N. W. 707. 8 3 8 Ind. App. 24G, 34 N. E. .581. ss 83 Iowa. 257, 49 N. W. 88. 8 6 51 Hun, 126, 4 N. Y. Supp. G66. i 122) MESSAGES KOT UNDERSTOOD CIPHER MESSAGES. 289 ered to defendant the reply: "Will take two cars sixteens. Ship soon as convenient, via West Shore." It was held that the contents of the message were such as to indicate to defendant that it was important, and that a failure to send it would result in loss to the parties, and that defendant was liable for the loss to plaintiffs caused by the rise in the price of hams between the delivery of the message to defendant and its transmission. In W. U. Tel. Oo. v. Sheffield ^' the plaintiffs sued defendant tele- graph company for delay in transmitting the message, '^^ou had bet- ter come and attend to your claim at once," sent to them by a bank which was holding notes for collection for plaintiffs against a fail- ing debtor. It was held that the language of the message was suffi- cient, of itself, to indicate to the operator the urgency of the mes- sage, so as to bring such matter into the contemplation of the par- ties in sending the message. And it was further held that the ne- cessity of speed and carefulness was sufficiently shown by the mes- sage, without the addition of the names of the debtors, the claims against whom demanded attention." Of course, when the receiving agent knows personally the purpose and urgency of a message, it need not be shown that notice thereof was given him by the sender, for to give him notice thereof would be useless.^ ^ If the agent knew of the importance of the prompt delivery of the message, or could have discovered it from the terms of the telegram, or from other telegrams in reference to the same matter, the company is chargeable with knowledge of the fact.*** SAME— MESSAGES NOT UNDERSTOOD— CIPHER MESSAGES. 122. Where a message cannot be understood by the com- pany's ag-ents, consequential damages cannot be recovered. EXCEPTION — In some jurisdictions telegraph compa- nies are held liable for damages caused by their default whether or not the result was known by the company to be probable.'"" 97 71 Tfx. .^70. 10 S. W. 752. 9 8 w. U. Tel. Co. v. Jobe, 6 Tex. Civ. App. 403, 2~) S. W. 103G. »» Erie Telegraph & Telephone Co, v. Grimes, 82 Tex. 89, 17 S. W. 831. 100 Sedg. Dam. § 891. l.AW DAM. — I'.i 290 DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES. (Ch. 11 The General Rule. It is held, in most jurisdictions, that where a message cannot b understood b}' the company's agents, as where it is written in cipher, consequential damages cannot be recovered, and the company is lia- ble only for nominal damages, or at most the price paid for send- ing the message. All the cases which hold that a telegraph com- pany is not liable for consequential damages for a failure to trans- mit a dispatch as received, on the ground of indefiniteness or ob- scuritj' in the language of the message, do so upon the ground that, unless the agent of the company may reasonably know from the message itself, or is Informed by other means, that it relates to a matter of business importance, he cannot be supposed to have con- templated damages as a result from his failure to send it as written. The supreme court of Wisconsin, in Candee v. Telegraph Co.,^°^ say: "The operator who receives and w4io represents the company, and may for this purpose be said to be the other party to the con- tract, cannot be supposed to look upon such a message as one per- taining to transactions of pecuniary value and importance and in respect to which pecuniary loss or damages will naturally arise in case of his failure or omission to send it. It may be a mere items of news, or some other communication of trifling and unim- portant character." In Postal Tel. Cable Co. v. Lathrop ^*'- it is said: "It is clear enough that, applj-ing the rule in Hadley v. Baxendale,^°^ a recov- ery cannot be had for a failure to correctly transmit a mere cipher dispatch, unexplained, for the reason that to one unacquainted with the meaning of the ciphers it is wholly unintelligible and nonsen- sical. An operater would therefore be justifiable in saying it con- tains no information of value as pertaining to a business transac- 101 84 Wis. 472. 102 131 111. 575, 23 N. E. 5S3. Cf. W. U. Tel. Co. v. Hyer Bros., 22 Fla. G37, 1 South. 129, where it was said: "The larger part of all messages sent are of a commercial or business nature, which suggest value. The requirements of friendship or pleasure can await other means of less severity and less expense. If this be true, why should the law assume that, as a rule, all messages sent over it are unimportant, and that au important one is an exception, of which the operator is to be informed?" 10 3 9 Exch. 341. § 122) MKSSAGES NOT UNDERSTOOD CIPHER MESSAGES. 291 tion, and a failure to send it, or a mistake in its transmission, can reasonably result in no pecuniary loss." In W. U. Tel. Co. y. Way ^•'* it is said that the rule in Hadley v. Caxendale "has been universally accepted to mean that liability for damages, in cases of mere breach of contract, must have some nec- essary relation to what may naturally be expected to follow its vio- lation, or to such results as may be fairly supposed, in the eye of the law, to have entered into the contemplation of the irties when they made the contract. The knowledge which is the basis of this lia- bility, and which imputes notice of the object of the contract, can be derived only in one of two ways: (1) From the face of the mes- sage itself; or (2) from extrinsic information imparted by the sender. Unintelligible or cipher dispatches give no clue as to the special damage that may result from negligence in transmitting them, and afford no ground for the company to suppose that any loss other than nominal can follow from a failure to send them. The wisdom and justice of the rule is nowhere better illustrated than in the transmission of such dispatches. ^\Tien the sender elects to studi- ously conceal from the operator the contents or nature of the mes- sage, he thereby deliberately puts the telegraph company in the darkness of ignorance as to the character of the duty imposed upon :.t, or the magnitude of its liability. The company cannot know, therefore, whether the breach of the obligation will probably be fol- lowed by a hundred or a hundred thousand dollars damages. This is both unreasonable and unjust, for telegraph companies are not common carriers or insurers; but their liability, like that of or- dinary bailees, is based upon the degree of care or negligence exer- cised by them in the discharge of their duties. The care and dili- gence must then, upon every well-settled principle of our jurispru- dence, be in proportion to the duty in hand, varvmg according to the magnitude and nature of the subject-matter of the bailment. Noth- ing is more important or just, in this view of the subject, than that the law should require the sender at his hazard to disclose the mean- ing or nature of the message, in order that the company may observe such precautions as may be necessary to guard itself against the risk incident to the duty to be performed." '"" 104 8.'? Ala. ~>42, 4 South. 8r>.3, per Sonimorvllle, J., dissontlng. 105 Se« rriiiirose v. Tek';,'rai)li Co., 154 U. S. 1, 14 Sup. Ct. lO'JS; Birncy v. 292 DAMAGKS IN ACTIONS AGAINST TELEGRAPH COMPANIES. (Ch. 1 H In rrimrose v. Telegraph Co.^°® it was held that a telegraph com- pany is not liable to the sender of a message for losses on purchases of wool caused by a mistake in transmitting it, where it was in ci- pher, wholly unintelligible to the compan}' and its agents, and they were not informed of the nature, importance, or extent of the trans- action to which it related, or of the probable consequences, if it were transmitted incorrectly, although they knew that the sender was a wool merchant, and that the person addressed was in his employ. The Exception. Some of the courts have taken a contrary view, and have held tnat a telegraph company which negligently fails to send or to deliver^ or which makes a mistake in transmitting, a message, is liable for all the damages naturally flowing from such failure or mistake^ though the message was in cipher and its contents uncommunicated and wholly unintelligible to the company.^ "^ It was said in W. U, Tel. Co. V. Way ^°* that the principle of the Hadley v. Baxendale case, construed with reference to the facts of the case and the ques- tions involved, "is that special circumstances, which take the con- tract out of the usual course of things, must be communicated, in Telegraph Co., IS Md. 341; United States Tel. Co. v. Gildersleve, 29 Md. 232? Baldwin v. Telegraph Co., 45 N. Y. 744; Landsberger v. Telegraph Co., 32 Barb. (N. Y.) 530; McColl v. Telegraph Co., 44 N. Y. Super, Ct. 4S7; Dauiel- V Telegraph Co., 61 Tex. 452; First Nat. Bank of Barnesville v. W. U. TeL Co., 30 Ohio St. 555; Stevenson v. Telegraph Co., IG U. C. Q. B. 530; W. U, Tel. Co. V. Martin, 9 111. App. 587; Sanders v. Stuart, 1 C. P. Div. 326, 45 Law J. C. P. GS2; Beaupre v. Telegraph Co., 21 Minn. 155; Mackay v. Telegraph' Co., 16 Nev. 222; Camp v. Telegraph Co., 1 Mete. (Ky.) 164; W. U. Tel. Co. V. Hall, 124 U. S. 444, 8 Sup. Ct. 577; Cannon v. Telegraph Co., 100 N. C, 300, 6 S. E. 731; Abeles v. Telegraph Co., 37 Mo. App. 554; Behm v. Tele- graph Co.. Fed. Cas. No. 1,234; Hill v. Telegraph Co. (S. C.) 20 S. E. 135 r W. U. Tel. Co. V. AYilson, 32 Fla. 527, 14 South. 1 (overruling W. U. Tel. Co. v, Hyer Bros., 22 Fla. 637, 1 South. 129). IOC 154 U. S. 1, 14 Sup. Ct. lO'JS. 107 Daughtery v. Telegraph Co., 75 Ala, 168; W, U, TeL Co. v. Way, 83 Ala.. 542, 4 South, 844; American Union Tel. Co. v. Daughtery, SO Ala. 191, 7 South, 660; W, U. Tel. Co. v. Fatman. 73 Ga. 285; Postal Tel. Cable Co. v. Lathrop^ 33 111. App. 400 (affirmed in 131 111. 575, 23 N. E. 583); W. U. Tel. Co. v. Reynolds, 77 Va. 173; W. U. Tel. Co. v. Hyer Bros., 22 Fla. 037, 1 South. 12D' (overruled by W. U. Tel. Co. v. Wilson, 32 Fla. 527, 14 South. 1). 10 8 S3 Ala. 542. 4 South. 844. § 123) AVOIDABLE co.nsp:quences. 293 order to become an element of the duty in reference to which the pai'ties are presumed to contract, and, if unknown, damages suffered by reason of the existence of such special circumstances are not re- coverable; but that, in all cases, the damages which would nat- urally, generally, and proximately result from a breach of the con- tract, 'according to the usual course of things,' are recoverable. Whether or not actually contemplated by the parties, the law con- clusively presumes them to have been in their contemplation. Such, sls this court understands, is the proper construction to be placed on the words 'in the contemplation of both parties at the time they made the contract,' as employed in the statement of recoverable damages in Hadley v, Baxendale." The cases supporting this rule are certainly opposed to the weight of authority, but it is by no means clear that they cannot be sustained on principle. As has been seen, the direct loss caused by a breach of contract may be compensated, even though it was wholly unexpected. ^"^ The direct damages resulting from breach of contract to transmit a cipher message is the loss of the value of the information contained.^ ^° This value, and not the consideration paid for sending the message, sliould be the measure of damages. The rule of Hadley v. Baxen- dale limits liability only for consequential damages. It does not apply to direct damages. Ahbrecidtions. Abbreviations commonly used in trade and understood, or which ought to be understood, by the telegraph company, do not make a telegram a cipher message.^ ^^ SAME— AVOIDABLE CONSEQUENCES. 123 Plaintiff cannot recover for consequential losses w^liich he could have avoided -with reasonable diligence. The rule of avoidable consequences applies with full force to contracts with telegraph companies for the transmission of mea- 108 See ante, p. 3S. 110 Sedg. Dam. § 802. 111 Popper V. Tele«iapli Co., 87 'Jonn. '>'>\, 11 S. W. 7s;;; I'ostiil Tel. Cahle Co. V. Latluup, lol 111. 57"), 'J.'3 N. E. 583. 2U4 DA.MAGliS IN ACTIONS AGAINST TELKGRAPH COMPANIES. (Ch. 11 snj^es. The sender or addressee of a telegram, as the case may be, on discovering that it has not been sent or delivered, or that an error has occurred in its transmission, must take all reasonable steps to prevent loss. The law imposes upon a party subjected to injury by the action of another the active duty of making reasonable exer- tions to render the injury as light as possible. ''"VMiere the injury results from breach of contract or unintentional negligence, this ob- ligation to reduce the consequence of the injury by reasonable dili- gence is positively imposed by every consideration of public interest and sound morality; and if the injured party, througli negligence or willfulness, allow^s the damage to be unnecessarily enhanced, the increased loss falls justly on him." ^^^ In Marr v. Telegraph Co.^^* the plaintiff had delivered to the defendant a message to a broker to buy 1,000 shares of certain stock for him, and by mistake the message was sent for 100 shares only. The plaintiff knew of the mistal^e the day after the 100 shares had been purchased, but did not renew his order until several days after the stock had advanced. It was held that, for the advance occurring after the plaintiff could have remedied the mistake, the defendant was not responsible. In Danghtery v. Telegraph Co.^^° the court held that, for failure to deliver a message directing the sale of cotton owned by the sender, he could recover the actual damages sustained by a fall in the price of the cotton between the time when it would have been sold if the message had been delivered, and the time it was actually sold, but added the qualification that, as soon as the sender discovered that the message had not been sent, it became his duty, within a reasonable time, to repeat the order or direction to sell, or to take other requisite steps to prevent further loss. In W. U. Tel. Co. v. Hearne,^^® an action against a telegraph company for failure to transmit a telegram, whereby the mortgage on plaintiff's property was foreclosed, it was held that plaintiff must show that he could not obtain, from other sources, funds necessary to discharge the debt maturing by failure to send the telegram as agreed. In Gulf, 113 Marr v. Telegraph Co., 85 Tenn. 529, 3 S. W. 496; Leonard v. Telegraph Co., 41 N. Y. 544; Rittenhouse v. Independent Line of Telegraph, 44 N. Y. 2l^>. 114 85 Tenn. 529. 3 S. W. 49G. 115 75 Ala. 168. 116 7 Tex. Civ. App. 67, 20 S. W. 478. § 124) EXEMPLARY DAMAGES. 295 C. & S. F. Ry. Co. V. Loonie,^^'' which was an action against a tele- graph company for failure to deliver a telegram sent by plaintiff, directing that certain building plans be sent to him at C, so as to enable him to conclude contracts for the material to be used in the building, it was held that the refusal to instruct the jury that it was plaintiff's duty to use reasonable efforts to avoid or lessen his dam- age, and if a reasonably prudent business man would have sent another telegram for the plans, and if such telegram had been sent the plans would have reached plaintiff in time to have consummated his contract, then plaintiff is only entitled to compensation for the value of his time and expense during the extra time he would have been kept at C. on account of the delay, was error. EXEMPLARY DAMAGES. 124. Telegraph companies are liable for exemplary dam- ages -whenever other defendants would be liable. Exemplary or punitive damages are given, not by way of compen- sation, but by way of punishment, for the purpose of deterring the defendant and others from similar acts in the future.^^' They are not allowed for a mere breach of contract. In such cases the dam- ages are compensatory only. Nor are they allowed for mere negli- gence without any aggravating circumstances."® But for negligence that is gross, or any wrong that is willful or malicious, exemplary damages may be recovered in addition to the damages allowed as compensation.^^" This rule applies in all the states to actions against telegraph companies for failure to send or deliver a message, where the action is in tort, and based on the company's negligence. Unless there is a willful breach of duty, or gross negligence, puni- tive or exemplary damages cannot be allowed. But if, on the other hand, there is gross negligence or willfulness, the company is liable 117 S2 Tox. 323. IS S. W. 221. 118 7>eriy v. Fletcher, Fed. Cas. No. 1,3.">7. iioMcCiill V. MffDowell, Fed. Cas. No. H,G73; Berry v. Flotclior. Fed. Cas. No. 1,357; Milwaukee & St. P. Uy. Co. v. Arms, 91 U. S, 481). 120 Philadelphia W. &. 15. K. Co. v. Qui;^dey, 21 How. 202; Day v. Wood- worth, 13 How. 303. 296 DAMAGES IN ACTIONS AGAINST TKLICGRAPII COMPANIES. (Cll. 11 for punitive or exemplary damages in addition to the damage actu- ally sustained. ^'^ In McAllen v. Telegraph Co.^^^ it appeared that plaintiff was informed by defendant's agent that there was a tele- graph office at the station to which he sent the message, and that the agent soon after sending the message discovered that the office had been closed, but concealed this knowledge from plaintiff. The agent ^^•as not informed that the message, which in form was an ordinary telegram, was of great importance. It was held that excmplaiy damages could not be recovered. In West v. Telegraph Co. ^-^ it appeared that the telegraph company accepted a written message, and received pay for its immediate transmission and delivery, and the agents of the company failed to transmit or deliver the same, on account of such gross negligence as amounted to wantonness or a malicious purpose, and the company was held liable for exemplary damages in addition to the actual damages sustained. At common law, exemplary damages cannot be recovered in an action for breach of contract, compensatory damages only being con- sidered in such actions, and therefore exemplary damages could not be recovered against a telegraph company in an action ex contractu for failing to send or deliver a message. The action to warrant the allowance of exemplary damages would have to be ex delicto for its negligence. The common-law doctrine, however, has been done aw'ay with in those states which have abolished by statute the distinction between forms of action. Such is the case, for instance, in Texas. "If the facts stated show a breach of contract, and also that the breach is of such a character as to authorize a suit as for a tort, all the damages recoverable for the thing done or committed, either in an action ex delicto or ex contractu, may be recovered in the one suit." ^^* 121 Be^nsley v. Telegraph Co., 39 Fed. ISl; American Unicn Tel. Co. v. Daugbtery, 89 Ala. 191, 7 South. 660; W. U. Tel. Co. v. Heudersou, 89 Ala. 510, 7 South. 419; McAllen v. Telegraph Co., 70 Tex. 243, 7 S. W. 715; West V. Telegraph Co., 39 Kan. 93, 17 Pac. 807. 122 70 Tex. 243. 7 S. W. 715. 123 39 Kan. 93, 17 Pac. 807. 124 Gulf, C. & S. F. Ry. Co. v. Levy, 59 Tex. 547; Stuart v. Telegraph Co.. GO Tex. 580. 18 S. W. 351. § 125) DAMAGES FOR DEATH BY WKONGFUL ACT. 297 CHAPTER XII. DAilAGES FOR DEATH BY WRONGFUL ACT. 125. The Rxile at Common Law. 126. Damages in Statutoiy Action— Pecuniary Losa. 127. No Damages for Solatium. 128. Exemplaiy Damages. 129. No Damages for Injury to Deceased. 130. Medical and Funeral Expenses. 131. Meaning of "Pecuniary." 132. Prospective Pecuniaiy Losses. 133. Future Care and Suppoi-t. 134-135. Future Services. 136. Prospective Gifts. 137. Prospective Inheritance. 138. Evidence of Pecuniary Condition of Beneficiaries. 139. Expectation of Life— Life Tables. 140. Interest as Damages. 141. Reduction of Damages. 142. Discretion of Jury. 143. Nominal Damages. 144. Allegation of Damages. THE RULE AT COMMON LAW. 135. At common law no civil action could be maintained for w^rongfully causing the death of a human being. History of Rule. In 1G06, in Higgins v. Butcher/ where the defendant had assaulted and beaten the plaintiff's wife, from which she died, it was held that the plaintiff could not recover. All the case decided was that, where the person to whom a wrong is done dies, the action dics.- The question was not; raised again in England until 1808, when, in Baker v. Bolton,^ Lord Ellcnborough laid down his famous prop- osition that, "in a civil court, the death of a human being cannot be complained of as an injury." The law was extended in Osborne v. 1 Ycl. 89. 2 Till'. Dualli Wruiigl'. Act, c. L o 1 Camp. 193. 298 DAMAGES FOR DEATH DY WRONGFUL ACT. (Ch. 12 Gillott,* by holding that, while a master can sue for injury done his servant by wrongful act or negligence, whereby the service of the servant is lost to his master, still if the injury result in the servant's death, the master's compensation is gone,'* The early American cases were not in accord with Baker v. Bolton." The common-law rule, however, has been unanimously accepted by the courts of the various states and of the United States.'^ Reason of Rule. None of the many reasons assigned for the rule has been gener- ally accepted as satisfactory. In England it has been urged that the rule is based on the merger of the wrong resulting in death into the felony involved. The sufficiency of this reason has been denied in England, and in America the docti'ine has been generally repudiated.^ Forfeiture," as an explanation, is as objectionable.^* "Actio personalis moritur cum persona" is a restatement, and not an explanation, of the rule. Moreover, it does not apply to any one not a party to the action, as the master, parent, or husband.^ ^ Pub- * L. 11. S Exch. 88. B But, AThere death does not at once ensue, the person entitled to the serv- ices of the one injured may recover for the loss accruing between the injury and the death, and such action is not barred by the death. Hyatt v. Adams. 10 Mich. ISO. 8 Tiff. Death Wrongf. Act, § 6; Cross v. Guthery (1T&4) 2 Root, 90; Ford v. Monroe (1838) 20 Wend. 210; Plummer v. Webb (182.5) 1 Ware, 75, Fed. Gas. No. 11,234; Carey v. Railroad Co. (1S18) 1 Cush. 475. See Palfrey \. Railroad Co., 4 Allen, 55; Eden v. Railroad Co. (1853) 14 B. Mon. 105; .Tames v. Christy (1853) 18 Mo. 102; Shields v. Yonge, 15 Ga. 349; Chick v. Railroad Co., 57 Ga. 357; McDowell v. Railroad Co., 60 Ga. 320; Sullivan v. Union Pac. R. Co., 3 Dill. 334, Fed. Cas. No. 13,599; McGovern v. Railroad Co., 07 N. Y. 417; Cutting v. Sea bury, 1 Spr. 522, Fed. Cas. No. 3,521. ~ Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 205; City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113; Green v. Railroad Co., 28 Barb. 9; Insurance Co. v. Brame, 95 U. S. 754; Asher v. Cabell, 1 C. C. A. 693, 50 Fed. 818-824; The Corsair, 145 U. S. 335-344, 12 Sup. Ct. 949; Hyatt v. Adams, 10 Mich. 180-185 (collecting cases); Tiff. Death Wrongf. Act, §§ 11, 13, 14 (collecting cases). 8 Hyatt V. Adams. 16 Mich. ISO; Caroy v. Railroad Co., 1 Cush. 475; 2 Bish. Crim. Law (2d Ed.) § 270. 9 Shields v. Yonge, 15 Ga. 349. 10 Orop?o V. Railroad Co., .50 N. .7. Law. 317, 13 Atl. 233. 11 Green v. Railroad Co., *41 N. Y. 294, 28 Barb. 9. § 125) THE RULE AT COMMON LAW. 299 lie policy, that enlightened nations are unwilling to set a price on human life, that the value of life is too great to be estimated in mone}', or that the law refuses to recognize the interest of one per- son in the death of another, are all unsatisfactory, if not absurd, reasons.'- It is of no practical utility to search further for the reason of the rule.^^ The rule is barbarous, and rests on adjudica- tion, in fact.^* Except as modified by statute, the common-law rule as to dis- charge by death remains in force. But, almost universally, direct legislation has practically abrogated it by creating a new action. The English statute (Lord Campbell's Act) for compensating the families of persons killed by accident w^as passed in 184G. Statutes similar to this have been passed by most of the states of the United States of America and by many of the provinces of Canada.^ ° These acts do not repeal nor create an exception to the common law^ "A totally new action," said Lord Blackburn,^*' "is given against the person who would have been responsible to the deceased if the deceased had lived, — an action which * * * is new in its species, new in its quality, new in its principle, in every w^ay new, and which can be brought by a person answering the description of the widow, parent, or child who, under such circumstances, has suffered pecuniary loss." The constitutionality of the various acts giving a remedy in case of death has not been seriously questioned,^ ^ but generally sustained, laOsborn v. Gillett, L. R. 8 Exch. 88; Smith, Neg. (2d Ed.) 25G; Hyatt v. Adams, IG Mich. 180; Connecticut Mut. Life Ins. Co. v. New Yorii & N, H. R. Co., 25 Conn. 205. ^3 Leonard, J., in Green v. Railroad Co., *41 N. Y. 294. 14 Pol. Torts, 53. The rule rests more on artificial distinction than any real principle, and savors more of the logic of the schoolmen than of common sfn.se. llyntt v. Adams, 1(5 Mich. ISO. 10 Tiff. Wrongf. Act, p. xvii. (analytical table of statutes). 16 Seward v. The Vera Cruz, 10 App. Cas. 50; Blake v. Railway Co., IS Q. B. 93, 21 Law J. Q. B. 233; Whitford v. Railroad Co., 23 N. Y. 4G5; Little- wood V. Mayor, etc., S9 N. Y. 24; Rus.sell v. Sunbury, 37 Ohio St. 372; Ham- ilton V. Jones, 125 Ind. 17G, 25 N. E. 192; Hulbort v. City of Topeka, ;>4 Fed. 510; Mason v. Railroad Co., 7 Utah, 77, 24 Pac. 79(5. IT Southwestern R. Co. v. Paulk. 24 Ga. 350; Hoard of Internal Improve- ment for Shelby Co. v. Scearce, 2 Uuv. (Ky.) 57»J; Georgia Raili'oad & Banking Co. V. Oaks, 52 Ga. 410. 300 DAMAGES FOR DEATH BY WRONGFUL ACT. (Cll. 12 even M'liere the remedy was made to apply exclusively to railroad corporations.^^ The authorities are about equally divided as to whether these statutes are to be liberally or strictly construed. On the one hand, it is said that they are remedial, and should consequently receive a liberal construction.^^ On the other hand, it is said that they are in derogation of the common law, and should consequently re- ceive a strict interpretation.^" DAMAGES IN STATUTORY ACTION— PECUNIARY LOSS. 126. In an action under Lord Campbell's act, or similar statutes, the daniag:es are measured by the pecun- iary loss resulting to the beneficiaries of the ac- tion from the death, unless the statute prescribed a diJSferent measure. The distinguishing feature of Lord Campbell's act, and of acts similar to it in respect to damages, is that the damages to be re- covered are solely such as result from the death to the persons for whose benefit the action is given. This feature is common to most, but not all, of the acts in force in the United States and Canada.-^ The amount of damages recoverable depends, of course, somewhat upon the language of the statute under which the action is brought But in spite of differences in phraseology, it is believed that the principles applicable in the measure of damages under all these acts is the same, viz. that the damages are measured by the pecunia- ry loss resulting to the beneficiaries of the action from the death.^^ This statement, however, is subject to the qualification that certain 18 Boston, C. & M. R. v. State, 32 N. H. 215; Schoolcraft's Adm'r v. Louis- ville & N. R. Co., 92 Ky. 23.3, 17 S. W. 567. Compare Smith v. Railroad Co., 75 Ala. 449. And, generally, see Denver, S. P. & P. Ry. Co. v. Woodward, 4 Colo. 162; Chicago, St. L. & N. O. R. Co. v. Pounds, 11 Lea (Tenn.) 127. 19 Tiff. Death Wrongf. Act, c. 2, § 32, collecting cases. 2 Id. 21 Tiff. Death Wrongf. Act, c. 9, where the statutes are carefully collated. 2 2 Walker v. Railway Co. (Mich.) U2 N. W. 1032. § 127) NO DAMAGES FOR SOLATIUM. 301 of the acts authorize exemplary, in addition to compensatory, dam- ages. Many statutes provide that the amount that may be recovered as damages shall not exceed a certain sum. This sum is limited to $5,000 in Colorado, Connecticut, Illinois, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New York, Oregon, Wisconsin, and Wyoming; to §7,000 in New Hampshire; to §10,000 in the District of Columbia, Indiana, Kansas, Ohio, Oklahoma, Utah, Virginia, and West Virginia; and to $20,000 in Montana. In New Brunswick the reasonable expectation of benefit from the continuance of the life is confined to a period not exceeding 10 years. With these ex- ceptions, the statutes impose no limit.* NO DAMAGES TOR SOLATIUM. 127. Damages cannot be recovered as a solatium for "wounded feelings. In ]31ake v. Midland Ry. Co.,-^ which is perhaps the leading case upon the measure of damages, Coleridge, J., said: "The title of this act may be some guide to its meaning; and it is 'An act for compensating the families of persons killed,' not for solacing their wounded feelings;'' and in that case it was held that, in assessing damages, the jury could not take into consideration the mental sufferings of the plaintiff for the loss of her husband, and that, as the damages exceeded any loss sustained by her admitting of a pecuniary estimate, they must be considered excessive. The New York act, and some others which have been nwdeled upon it, re- quire the damages to be assessed with reference to the "pecuniary" injuries. But, irrespective of the use of "pecuniary" in the various enactments, the construction adopted in Blake v. Midland Ry. Co. has been almost universally followed, and it is held that the jury are confined to the pecuniary loss, and that nothing can be allowed by way of solatium for the grief and woimdt^ feelings of the bene- ficiaries,^* or to compensate them for the loss of society or of com- * See Tiff. Death Wrongf. Act. p. xvil. (annlytieal table of statutes). 23 18 Q. B. 93; 21 Law J. Q. B. 2X3; IG Jur. 502. '-:^ Tliis principle is expresslj' declared in nearly every case in wliich the measure of damages Is discussed. It is suflident to cite tlie followinf:: II- 302 DAMAGES FOR DKAIII BY WRONGFUL ACT. (Cll. 1- panionship which they have suilered.^"^ A different rule was once declared in Indiana, ^"^ and was followed until recently in Calif ornia,^^ liuois Cent. R. Co. v. Barron. 5 Wall. 95; Id., 1 Biss. 412, Fed. Cas. No. 1,052, 1 Biss. 453, Fed. Cas. No. 1,053; Wbltou v. Railroad Co., 2 Biss. 282, Fed. Cas. No. 17,5ii7; Id., 13 AVall. 270; Little Rock & Ft. S. Ry. Co. v. Barker, 33 Ark. 350; City of Chicago v. Major, 18 111. 349; Conant v. Griffin, 48 111. 410; City of Chicago v. Scholten, 75 111. 468; Chicago City Ry. Co. v. Gillam, 27 111. App. 3SG; Barley v. Railroad Co., 4 Biss. 430, Fed. Cas. No. 997; Brady v. Chicago, 4 Biss. 448, Fed. Cas. No. 1,796; Kansas Pac. Ry. Co. v. Cutter, 19 Kan. S3; State v. Baltimore & O. R. Co., 24 Md. 84; Mynniug v. Railroad Co., 59 Mich. 257, 26 N. W. 514; Hutchins v. Railway Co., 44 Minn. 5, 46 N. W. 79; Collins v. Davidson, 19 Fed. 83; Hardy v. Railway Co., 36 Fed. 657; Schaub V. Railroad Co., 106 Mo. 74, 16 S. W. 924; McGowan v. Steel Co. (Mo. Sup.) 16 S. W. 236; Atchison, T. & S. F. R. Co. v. Wilson, 1 C. C. A. 25, 48 Fed. 57; Besenecker v. Sale, S Mo. App. 211; Anderson v. Railroad Co., 35 Neb. 95, 52 N. W. 840; Oklfield v. Railroad Co., 14 N. Y. 310; Tilley v. Railroad Co., 29 N. Y. 252, 24 N. Y. 471; Wise v. Teerpeuuiug, 8 N. Y. Leg. Obs. 153; Goss v. Railroad Co., 50 Mo. App. 614; Storrie v. Marshall (Tex. Civ. App.) 27 S. W. 224. The court having charged, in the language of the Code, that a fair and just compensation could be recovered for the pecuniary in- juries resulting to the persons for whose benefit the action was brought, a refusal to charge additionally that plaintiff cannot recover for the suffering of the child or for his own mental suffering, and that the jury cannot award punitive damages, is reversible error, as such principles do not sufticiently ap- pear in the instruction given. Dorman v. Railroad Co. (City Ct. Brook.) 1 N. Y. Supp. 334; Steel v. Kurtz, 28 Ohio St. 191; Au v. Railroad Co., 29 Fed. 72; Penusylvauia R. Co. v. Zebe, 33 Pa. St. 318; Cleveland & P. R. Co. v. Rowan. 66 Fa. St. 393; Pennsylvania R. Co. v. Butler, 57 Pa. St. 335; March v. AValker, 48 Tex. 375; Southern Cotton P. & M. Co. v. Bradley, 52 Tex. 587; Galveston v. Barbour. 62 Tex. 172; Galveston, H. & S. A. Ry. Co. v. Matula, 79 Tex. 577, 15 S. W. 573; Taylor, B. & H. Ry. Co. v. Warner, 84 Tex. 122, 19 S. W. 449, and 20 S. W. 823; McGown v. Railroad Co., 85 Tex. 289, 20 S. W. 80; Webb v. Railway Co., 7 Utah, 17, 24 Pac. 616; Hyde v. Railway Co.. 7 Utah, 356, 26 Pac. 979; Weils v. Railway Co., 7 Utah, 482, 27 Pac. 688; Need- ham V. Railroad Co., 38 Vt. 294; Potter v. Railway Co., 21 Wis. 372. Under the Scotch law the jury may administer a solatium. Patterson v. Wallace, 1 Macq. H. L. Cas. 748. 2 5 Gillard v. Railway Co., 12 L. T. 356; Schaub v. Railroad Co., 100 Mo. 74, 16 S. W. 924; Atchison, T. & S. F. R. Co. v. Wilson, 1 C. C. A. 25, 48 Fed. 57; Green v. Railroad Co., 2 Abb. Dec. 277, affirming 32 Barb. 27; Taylor, B. & H. Ry. Co. V. Warner, 84 Tex. 122, 19 S. W. 449, and 20 S. W. 823; McGown v. 2 6 See note 26 on following page. 2 7 See note 27 on following page. § 127) NO DAMAGES FOR SOLATIUM. 303 but these states are no longer exceptions to the common rule. In Quebec, also, it was formerly held that damages could be allowed as a solatium, 2^ but, under the later decisions, it is held that the damages must be confined to the pecuniary loss.^^ In Virginia, ^° Railroad Co., 85 Tex. 2Sy, 20 S. W. SO; Pepper v. Southern Pac. Co., 105 Cal. 389, 38 Pac. 974; Gulf, C. & S. F. Ky. Co. v. Finley (Tex. Civ. App.) 32 S. W. 51, and cases in preceding note. In an action by the husband, the court charged that damages should be given as a pecuniary compensation, the jury measuring plaintiff's loss by a just estimate of the wife's services and companionship; that is, by their value in a pecuniary sense, nothing being al- lowed for plaintiff's wounded feelings. Eeld, no error, companionship evi- dently being intended to express service. Pennsylvania R. Co. v. Goodman, G2 Pa. St. 329. 26 Long V. Morrison, 14 Ind. 595. This case, so far as it holds that dam- ages for anything but the pecuniary injury can be recovered, was disapproved in Jeffersonville R. Co. v. Swayne's Adm'r, 2G Ind. 477. Louisville, N. A. & C. Ry. Co. V. Rush, 127 Ind. 545, 2G N. E. 1010. See, also, Ohio & M. R. Co. v. Tindall, 13 Ind. 366. 27 Beeson v. Mining Co., 57 Cal. 20; IMcKeever v. Railroad Co., 59 Cal. 294; Cook V. Railroad Co., GO Cal. 604; Nehrbas v. Railroad Co., 62 Cal. 320; Cleary V. Railroad Co., 76 Cal. 240, 18 Pac. 269. In Morgan v. Southern Pac. Co., 95 Cal. 510, 30 Pac. 603, all the cases are reviewed, and it is there held, in ac- cordance with the general rule, that the recovery is limited to the actual pe- cuniary loss. Muuro v. Railroad Co.. 84 Cal. 515, 24 Pac. 303. Uuder the original California act exemplary damages were expressly provided for. My- ers V. San Francisco. 42 Cal. 215. 2 8 Ravary v. Railway Co., G Low. Can. Jur. 49, reversing 1 L. C. Jur. 280. The decision rested on the ground tliat the right to recover such dam- ages existed uuder the civil law, and was not abolished by the statute. i:» Canadian Pac. Ry. Co. v. Robinson, 14 Can. Sup. Ct. 105, reversing 2 M. L. R. Q. B. 25; City of Montreal v. Labelle, 14 Can. Sup. Ct. 741. See, also. Provost V. Jackson, 13 L. C. Jur. 170; Ruest v. Railway Co., 4 Quebec L. R. 181; Grand Trunk Ry. Co. v. Ruel, 1 Leg. News, 129. 30 Baltimore & O. R. Co. v. Xoell, 32 Grat. 304; Matthews v. Warner, 20 Grat. 570. The court in the latter case rests its decision on the language of the act which provides that the jury "may award such damages as to it may seem fair and just," and which it says diifers from that of other states in not ex- pressly or Impliedly limiting the damages to pecuniary' loss. Christian, J., says: "I think it is manifest that the legislature intended, as In Kentucky. Iowa, Connecticut, and California (which states are exceptional to tlie Eng- lish statute), to allow the jury In such cases to award punitive and exoniplai-y damages." It is to be observed, however, that the Connecticut statute pro- vides for the survival of the original cause of aisk. 174; Nashville & C. R. Co. v. Stevens, 9 Heisk. 12; Collins v. Railroad Co., Id. 841; Railroad Co. v. Mitchell, 11 Heisk. 400). Cf. Louisville cV: N. R. Co. v. Burke, 6 Cold. 45. , Contributory negligence of deceased may be shown in mitiga- tion of damages. Louisville it N. R. Co. v. Burke. 6 Cold. 45; Nashville & C. R. Co. V. Smith, 6 Heisk. 174; Louisville & N. R. Co. v. Howard, 90 Tenn, 144, 19 S. W. 116. Deceased was 57 year.s old. in declining health. His monthly earnings were iH25, and his sufferings had not been extreme. The negligence of dofc-ndant was not gross, and there was evidom-e of contributory negligence. Held, that a verdict of $12,000 \v:is excessive. Snodgrass, J., said: "The principal intiuiry is not what is iht value or (he life taken. It is whether, and how much, negligence was displayed in taking It. and wheth- oOS DAMAGES FOR DEATH BY WUONGKUL ACT. (Ch. 12 wick, where the statutes authorize the jury to consider the suffering of the deceased. MEDICAL AND FUNERAL EXPENSES. 130. It is g-enerally, but not universally, held that com- pensation may be recovered for medical and funeral expenses. Since the damages are based solely upon the injury which results from the death, it would logically follow that the expenses of nurs- ing, medical attendance, etc., which result, not from the death, but from the injury causing it, cannot be recovered. It has been fre- quently held, however, in actions by parents for the death of minor children, that these expenses may be included.'*^ As to funeral ex- penses, it has been held in England that they cannot be included.*^ "The subject-matter of the statute," says Willes, J., in Dalton v. South Eastern R. Co., "is compensation for injury by reason of the relative not being alive." In that case the action was for the bene- fit of a father on account of the death of a minor son, and the ver- er, and to what extent, the negligence of the deceased caused or contributed to it, and, from the reasonable and just compensation to be given upon de- termining the first inquiiy against the negligent wrongdoer, what amount should be deducted on account of the contributing default of the deceased." Louisville & N. K. Co. v. Stacker, 86 Tenu. 343, G Is W. 784. On the other hand, ?S,000 damages for the death of a man earning $4 a day, of industri- ous and sober habits, with an expectation of lite ot 31 years, has been held not excessive. Tennessee Coal & R. Co. v. Roddy, 85 Tenn. 400, o S. W. 286. And where deceased was careful, and the defendant's engineer was very reck- less, it was held that a verdict for $15,000 woukl noi be disturbed. Chesa- peake, O. & S. W. R. Co. V. Hendricks, 88 Tenn. 710, 13 S. W. 696, 14 S. W. 488. 4T Little Rock & F. S. Ry. Co. v. Barker, 33 Ark. 350; Pennsylvania Co. v. LiUy, 73 Ind. 252; Rains v. Railway Co., 71 Mo. 164; Roeder v. Ormsby, 13 Abb. Prac. 334, 22 How. Prac. 270; Pennsylvania R. Co. v. Zebe, 33 Pa. St. 318; Pennsylvania R. Co. v. Bantom, 54 Pa. St. 495; Cleveland & P. R. Co. v. Rowan, 66 Pa. St. 393; Lehigh Iron Co. v. Rupp, 100 Pa. St. 05; Galveston V. Barbour, 62 Tex. 172; BruusAvig v. White, 70 Tex. 504, 8 S. W. 85. Hol- land V. Brown, 35 Fed. 43, contra. 4 8 Dalton V. Railroad Co., 4 C. B. (N. S.) 296, 4 Jur. (N. S.) 711, 27 Law J. C. P. 227. See Boulter v. Webster, 13 Wkly. Rep. 289. § i31) MEANING OF "PECUNIARY." 309 diet was reduced by the amount of the funeral and mourning ex- penses which the father had paid. In the United States funeral expenses are generally held to be a legitimate element of damages, at least when paid by one of the beneficiaries who was under obli- gation to pay them.*^ The Minnesota act provides that, out of the money recovered, "any demand for the support of the deceased, and funeral expenses, duly allowed by the probate court, shall be first ■deducted and paid." ^° MEANING or "PECUNIARY." 131. The term "pecuniary losses" is used in the sense of material, as distinguished from, sentimental, losses. The use of "pecuniary" to designate the kind of loss for which recovery can be had is misleading, for the damages are by no means confined to the loss of money, or of what can be estimated in money. As will be seen, damages are recoverable for the loss of the serv- ices of husband, wife, and child, and also for the loss by a child of the care, education, and counsel which he might have received from his parents. Th(» word has been used rather for the purpose of excluding from the recovery damages to the feelings and affec- tions than of confining the damages strictly to those injuries which are "pecuniaiy," according to the ordinary definition. As was observed by Denio, J., in Tilley v. Railroad Co. :^^ "The word 'pecuniary' was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though painful and grievous to be borne, cannot be measured or <9 Owen V. Brocksehiniclt. rA Mo. 2S5; Murphy v. Railroad Ck)., 8S N. Y. 445 (affirming Id., 25 Ilun, Mil); Petrie v. Railroad Co., 29 S. C. 303, 7 S. K. 515; and cases cited in note 47, supra. In Holland v. Brown, supra, it was held that they did not result from the death. In Gay v. Winter, 34 Cal. 153, it was held that if recoverable they must be specially pleaded. See Bunyea V. Railroad Co., 19 D. C. 70. Husband may recover funeral expenses of wife. 2 111. L'lX); (•lii(a;,'o, K. 1. A: 1'. K. Co. v. Austin, GO 111. 42G; Chicago & A. K. Co. v. May, Kis 111. i:ss. 012 DAMAGES KOll Dl.A'l'II BY WRONGFUL ACT. (Ch. 12 benefit, taking into consideration his age, ability, and disposition to ^^■ol•lv, and habits of living and expenditure. ''^ To this may, of course, be added, as in other cases, the amount which he would probably have accumulated, and which they might reasonably have expected to inherit.^*^ The damages to the widow should be calcu- lated upon the basis of their joint lives; the damages to the minor children, for the loss of support, should be confined to their minor- ity.°^ It seems that the pecuniary value of the support of the head B5 Pennsylvania R. Co. v. Butler, 57 Pa. St. 335; Pennsylvania Tel. Co. v. Varnau (Pa. Sup.) 15 Atl. 624; Hudson v. Houser, 123 Ind. 309, 24 N. E. 243; Baltimore & O. R. Co. v. State, 24 Ind. 271. Scliaub v. Railroad Co., 106 Mo. 74, 16 S. W. 924; Hogue v. Railroad Co., 32 Fed. 305; Sliaber v. Rail- way Co., 28 Minn. 103, 9 N. W. 575; Bolinger v. Railroad Co., 36 Minn. 41S, 31 N. W. 856; Burton v. Railroad Co., 82 N. C. 504, 84 N. G. 192; Blackwell V. Railroad Co., Ill N. C. 151, 16 S. E. 12; Pool v. Soutliern Pac. Co., 7 Utah, 303, 26 Pac. 654; Wells v. Railway Co., 7 Utah, 482, 27 Pac. 688; Bal- timore & O. R. Co. V. Wiglitman, 29 Grat. 431. Soyer v. Water Co., 15 Mont. 1, 37 Pac. 838; St. Louis, I. M. & S. Ry. Co. v. Sweet, 60 Ark. 550, 31 S. W. 571. Opportunities of acquiring wealth by change of circumstances in life are not to be considered. Mansfield Coal & Coke Co. v. McEnery, 91 Pa. St. 185; Atlanta & W. P. Ry. Co. v. Newton, 85 Ga. 517, 11 S. E. 776. See Chris- tian V. Railway Co., 90 Ga. 124, 15 S. E. 701. Deceased was a fireman, and evidence was introduced to prove that firemen on defendant's road, when thoy had acquired sufficient experience and skill, were sometimes promoted to be engineers at increased wages. Held that, as it was not shown that deceased possessed the skill to be an engineer, the admission was error. Brown v. Railroad Co., 64 Iowa, 652, 21 N. W. 193. The court refused to charge that, if deceased was largely indebted, the plaintiff would have no pecuniary in- terest in his life until his debts were paid, and that the jury must fix a pe- riod when he would have acquired property beyond his debts. Held no er- ror. Pennsylvania R. Co. v. Plenderson, 51 Pa. St. 315. But in Texas it is held that it is proper to show what were the deceased's chances of pi'omotion.. St. Louis, A. & T. Ry. Co. v. Johnston, 78 Tex. 536. 15 S. W. 104; Texas & P. Ry. Co. v. Robertson, 82 Tex. 657, 17 S. W. 1041; Gulf, C. & S. F. Ry. Co. v. John (Tex. Civ. App.) 29 S. W. 5.58. And that the standard is not to be fixed by what he Avas earning when he died. International «fc G. N. R. Co. v. Or- mond, 64 Tex. 485; East Line & R. R. Ry. Co. v. Smith, 65 Tex. 167. 56 Lake Erie & W. R. Co. v. Mugg, 132 Ind. 108, 31 N. E. 504; Catawissa R. Co. V. Armstrong, 52 Pa. St. 282; Castello v. Landwehr, 28 Wis. 522; Law- son V. Railway Co., 04 Wis. 447, 24 N. W. 618. See post, p. 334. 67 The court charged that the jury should estimote the reasonable probabili- ties of the life of deceased, and give plaintiffs such peeuniaiy damages as § 133) FUTURE CARE AND SUPPORT. 313 of a family cannot be limited to the amount of his wages earned for the benefit of his family, but that his daily services, attention, and care on their behalf may be considered.^ ^ The testimony in such cases, as also in actions for the death of a minor child, neces- sarily takes a wider range than when the question is simply whether the beneficiaries have suffered a pecuniary loss, in a strict sense.^® Provided that it appears that the deceased was apparently able to provide for the support of his family, the court will be slow to set aside a verdict for lack of exact proof.^" Thus, it is not essential they had suffered, or would suffer, as the direct consequence of deceased's death; that for the children these prospective damages should be estimated to their majority, "and as to the widow, to such probability of life as the jury may find reasonable." Held, that this was correct, and, no objection being made to tlie part relating to the widow, it would be assumed that it was un- ■derstood by the juiy as meaning the probable duration of the joint lives of herself and her husband. Baltimore & R. Turnpike Road v State, 71 Md. 573, 18 Atl. 884; Baltimore & O. R. Co. v. State, 33 Md. 542; Baltimore & O. R. Co. V. State, 41 Md. 268; Duval v. Hunt, 34 Fla. 85, 15 South. 87G. 58 Bolinger v. Railroad Co., 36 Minn. 41S, 31 ^. W. 856. 5 9 Staal V, Railroad Co., 57 Mich. 239, 23 N. W. 795. Testimony as to the household and living expenses of decedent's family, by one who had kept the accounts, is competent to show the loss to decedent's family because of his death. Hudson v. Houser, 123 Ind. 309, 24 N. E. 243. Evidence that de- ceased had been in the habit of turning his wages over to his wife was pi-op- ^^rly admitted for the purpose of showing the loss sustained by deceased's family. Lake Erie & W. R. Co. v. Mugg, 132 Ind. 168, 31 N. E. 564. As having reference to the question of the reasonable expectation of pecuuiaiy benefit to the widow, an instruction to the jury tliat they might consider his capacity to earn money, the injury to his business, his health, and general condition in life, as disclosed by the evidence, is not erroneous. Clapp v. Railway Co., 36 Minn. 6. 29 N. W. 340. Evidence showing what property -erdict of $5,000 was excessive, in view of the absence of evidence that he earned annually so much as the interest on one half tliat sum. Illinois Cent. R. Co. V. Welden, 52 111. 290. 6 3 Deceased earned $1 a day, which he always brought home and spent on his wife. The probable duration of his life was 27 years. Held, that a ver- dict of $2,500 should be reduced to $1,G50. Louisville & N. R. Co. v. Trammell, 93 Ala. 350, 9 South. 870. Deceased was 31 years old, sober and industrious, a druggist, but at the time of his death was laying rails at $2.50 a day. In an action by the widow, held that $5,000 was not excessive. Dallas & W. Ry. Co. V. Spicker, 61 Tex. 427. A verdict of $10,000 will not be set aside as excessive, in view of testimony that deceased was a "stout, healthy, and so- ber" laborer, about 35 years old, earning $1.25 a day, and that he left a widow and two infant children. Missouri Pac. Ry. Co. v. Lehmberg, 75 Tex. (il, 12 S. W. 838. Where the average wages of the deceased were $125 per month, held that a verdict of $5,000 each in favor of the widow and seven year old daughter, i-espectively, was not excessive. St. Louis, A. & T. Ry. Co. V. Johnston, 78 Tex. 536, 15 S. W. 104. The deceased was a healthy and robust man 29 years old, an engineer, and earning $125 a month. Held, that a verdict in favor of his wife for $10,000 was not excessive. Texas & P. Ry. Co. V. Geiger, 79 Tex. 13, 15 S. W. 214. Where plaintiff's husband was a healthy man, 55 years old, who earned from $500 to $1,200 a year, and who had always supported plaintiff, a verdict for $6,250 actual damages held not § 133) FUTURE CARE AND SUPPORT. 315- Action by Widow — Evidence of Number of Children. Where the children are included among the beneficiaries, as is the case under most statutes, evidence of their number and ages is, of course, necessary/* Where, however, the action is to be brought by the widow in her own name, the question arises whether such evidence is proper. In Pennsylvania, where the widow sues for the benefit of the children, as well as of herself, and the declaration must state who are the parties entitled, such evidence is required.*' In Missouri, on the other hand, and in some other states, the action, when brought by the widow, is for her sole benefit. It is held, nevertheless, that, as the burden of supporting minor children is imposed upon her, evidence of their number and ages is admissible to show the extent of the burden cast upon her by the death.*^* So, in Wisconsin, although the action is for the sole benefit of the widow, and hence an instruction that damages may be allowed to the widow and children is erroneous,®'^ the fact that the deceased left children who will be dependent on her may be considered in estimating her damages.'® excessive. Paschal v. Owen, 77 Tex. 5S3, 14 S. W. 20.3. Deceased was 33 years old, in good health, earning $14 a week 7 mouths in the year. Held, in- a suit for wife and five children, that ?6,000 was not excessive. Byrd v. Corner, 6 Chi. Leg. N. 3G4. Deceased was insolvent and in failing health, but able to superintend his business as innkeeper. Verdict of $4,000 apportioned among his children hdd excessive. Hutton v. Windsor, 34 U. C. Q. B. 4S7. In suit for wife and children, £3,000 held not excessive. Secord v. Railway Co.. lo U. C. Q. B. G31. In suit for wife and children, £5,000 held excessive. Morley v. Railroad Co., 16 U. C. Q. B. 504. 6 4 Breckenf elder v. Railway Co., 79 Mich. 5G0, 4 N. W. 957. See section SO. 8 5 Huntingdon & B. T. R. Co. v. Decker, 84 Pa. St. 419. 86 Tetherow v. Railway Co., 98 Mo. 74, 11 S. W. 310; Soeder v. Railway Co., 100 Mo. G73, 13 S. AV. 714; Atchison, T. & S. F. R. Co. v. Wilson, 1 C. C. A. 25, 48 Fed. 57. Under Rev. St. 1889, § 4425, such evidence is, of course, improper. Schlereth v. Railroad Co. (Mo. Sup.) 19 S. W. 1134. 6 7 Schadewald v. Railway Co., 55 Wis. 5G9, 13 N. W. 458; Lieimaun v. Railway Co., 82 Wis. 28G, 52 N. W. 91. It is error to direct the jury to give damages to recompense the estate of deceased, for such instruction In effect directs them to compensate the children as well as the' widow. Cores v. Graff, 77 Wis. 174. 4G N. W. 48. 68 Mulcairns v. Janesville, G7 Wis. 24, 29 iN. W. 5G5; Abbot v. McCadtlen, 81 Wis. 5G3. 51 N. W. 1079. 310 DAMAGES FOR DEATH BY WUONGFUL ACT. (Ch. 12 Death of Parent of Minor — Loss of Education and Personal Training. The damages for loss of support suffered by a minor child include the loss of such comforts, conveniences, and also of such education as the parent might have been expected to bestow upon him. In Pym V. Railway Co.,«» Cockburn, C. J., said: ''We are of opinion that, as the benefit of education, and the enjoyment of the greater comforts and conveniences of life, depend on the possession of pecuniary means to procure them, the loss of these advantages is one which is capable of being estimated in money, — in other words, is a pecuniary loss, — and therefore the loss of such advantages aris- ing from the death of a father whose income ceases with his life is an injury in respect of which an action can be maintained on the statute," It has frequently been held, however, that damages are not confined to the loss of such education as is procurable only by pecuniary means, but that they may be given for the loss of the personal care, training, and instruction of a parent, and even of a mother, where the father still survives.'^'* A leading case on this subject is Tilley v. Hudson River R. Oo.,^^ which was an action brought by a father as administrator for the benefit of children for the death of their mother. On the first appeal it was held that the value of the mother's earnings, and the probability that the children would have received an estate increased by such earnings on the death and intestacy of the father, could not be considered; but, upon the second appeal, it was held that evidence of the mother's 6 9 2 Best & S. 759, 10 Wkly. Rep. 737, 31 Law J. Q. B. 249; afErmecl, 4 Best & S. 396, 11 Wkly. Rep. 922, 32 Law J. Q. B. 377. -0 TUley v. Railroad Co., 24 N. Y. 471, 29 N. Y. 2r)2; Howard County Com'rs V. Legg, 93 Ind. 523; Stober v. Railway Co., 91 Mo. 509, 4 S. W. 389; Dimmey V. Railroad Co., 27 W. Va. 32; Searle's Adm'r v. Railway Co., 32 W. Va. 370. 9 S. E. 248; Baltimore & O. R. Co. v. Wightman, 29 Grat. 431; St. Louis, 1. M. & S. Ry. Co. v. Maddry, 57 Ark. 3(>(j. 21 S. W. 472. In Illinois Cent. R. Co. V. Welden, 52 111. 290. it Avas held that while, on principle, an instruction that the jury might consider the loss of instruction and physical, moral, and intellectual training of the father was correct, it should not have been given, because there was no evidence tending to show that the deceased was fitted by education or by disposition to furnish it. Followed in Chicago, R. I. & P. R. Co. V. Austin, 09 111. 42G. See, also. Baltiirore & O. R. Co. v. Stanley, 54 111. App. 215; St. Louis, I. M. & S. Ry. Co. v. Sweet, 60 Ark. 550, 31 S. W. 571. ^1 Supra. §§ 134-135) FUTURE SERVICES. 317 capacity to bestow ui?"on her children such training, instruction, and education as would be pecuniarily serviceable to them was ad- missible, and that, as indicating such capacity on her part, it was not improper to admit evidence of her capacity to conduct business and save money. "It is certainly possible," said Hogeboom, J., "and not only so, but highly probable, that a mother's nurture, in- struction, and training, if judiciously administered, will operate favorably upon the worldly prospects and pecuniary interests of the child. * * * jf they acquire health, knowledge, and a sound bodily constitution, and ample intellectual development, under the judicious training and discipline of a competent and careful mother, it is very likely to tell favorably upon their pecuniary interests." SAME— FUTURE SERVICES. 134. The damages recoverable by a husband for the death of his "wrife include the reasonable value of her services, less the cost of suitably maintaining her. 135. The damages recoverable by a parent for the death of a minor child include the value of the child's services during minority, less the cost of support. Death of ]l'ife — Loss of Sercice. The pecuniary injury to a husband from the death of a wife necessarilyincludes the loss of her services, and themeasure of dam- ages is their reasonable value,'- less the cost of suitably maintain- ing her.* Thus, in Whiton v. Chicago & N. W. Ey. Co.,^' a case arising in the circuit court, under the Wisconsin statute, the plain- tiff proved that his wife was a superior woman, as wife, mother, and 7 2 Chicago & N. W. R. Co. v. Whitton, 13 Wall. 270; Whiton v. Railroad Co., 2 Biss. 282, Fed. Cas. No. 17,597; Chant v. Railway Co. (ISGO) Wkly. Notes, 134; Pennsylvania R. Co. v. Goodman, G2 Pa. St. 321); Delaware, L. & W. R. Co. V. Jones, 128 Pa. St. 308. IS Atl. 330; Lett v. Railway Co., 11 Ont. App. 1, reversing Id., 1 Ont. 548. Damages for the death of a wife must be based on the value of her services, and it is incumbent ou tlic plain- tiff to prove such services and their value. Nelson v. Railway Co. (.Mit-h.) G'i N. W. 993. • Gulf, C. & S. P. Ry. Co. v. Southwick (Tex. Civ. App.) 30 S. W. 592. 7 8 Supra, note 72. 318 DAMAGES FOR DEATH BY WRONGFUL ACT. (Ch. 12 member of society. The court charged thff jury (after stating that the damages were confined to the pecuniary loss; that it was im- possible to lay down any fixed rule; and that the matter largely rested with the sound reason and discretion of the jury) that, taking all the facts and circumstances into consideration, they might con- sider the personal qualities, the ability to be useful, of the deceased, and also her capacity to earn money. The jury rendered a verdict of |5,000, which was held not to be excessive. The defendant hav- ing brought the case to the supreme court, the charge was approved, Mr Justice Field, who delivered the opinion, declaring it to be clear and explicit as to the character of the damages which the jury were authorized to consider. Proof that the deceased actually rendered services is not necessary, but may be inferred by the jury. Thus, in Chant v. South Eastern Ey. Co..''* which was an action by a gardener, owing to the fact that the plaintiff, the only witness, broke down in course of his examination, no evidence was given of the pecuniary loss, but the jury gave a verdict of £200. This was moved against in the exchequer chamber, on the ground that there was no evidence of pecuniary assistance; but the court thought that, in the absence of evidence to the contrary, it must be assumed that she was a person of average health, industry, and good character, and that to a poor man such a wife gave pecuniary assistance in keeping house, etc., and declined to grant a new trial. So, in Delaware, L. & W. R. Co. v. Jones,"^ the plaintiff introduced evidence to show that the deceased was GO years old and had always been healthy, and rested. The court refused to rule that this evidence did not show a pecuniary loss, or that the plaintiff could only recover nominal damages; and in the supreme court the lower court was sustained, Sterrett, J., observing that the jury might infer that she was an ordinarily industrious and useful wife. In Pennsylvania R. Co. v. Goodman ^' 7 4 Supra, note 72. But see Mitchell v. Railroad Co., 2 Hun. 535, where a verdict for $4,000 was set aside as unauthorized by the proof, the only pecun- iary loss shown being what might be inferred from the fact that deceased was a married woman and aged 20. 7 5 Supra, note 72. '6 62 Pa. St. '6-d. The court charged that damages should be given as a pecuniary compensation, the jury measuring the plaintiff's loss by a just estl- ^§ 134-135) FUTURE SERVICES. 319 it is said that the frugality, industry, usefulness, attention, and ten- der solicitude of a wife and the mother of children, inasmuch as they render her services more valuable than those of an ordinary serv- ant, are elements which are not to be excluded from the jury in making their estimate of value. Death of Minor Child — Loss of Service. In an action for the benefit of a parent for the death of a minor child the damages necessarily include the loss of the child's services during minority,'^^ and the measure of damages is the value of the services less the probable cost of support and maintenance.^® It is not essential that the child should ever have earned anything. Thus, in Duckworth v. Johnson,^ ^ a father, who was a working man, sued for the death of a son 14 years of age, who had earned 4s. a week for a year or more, but who, at the time of his death, was without emploj-ment. There was no evidence of the cost of boarding and clothing him, and the judge left it to the jury to say whether the plaintiff had sustained any pecuniary loss by the death; and, the jury having found a verdict of £20, it was held that the plaintiff was mate of the services and companionship of the wife; that is, by their value in a pecuniary sense, nothing being allowed for the plaintiff's wounded feel- ings. The charge was sustained, on the ground that "companionship" was evidently used to express the relation of the deceased in the character of the services performed. 7 7 Little Rock & Ft. S. Ry. Co. v. Barker, 33 Ark. 350; Chicago v. Keefe, 114 111. 222, 2 N. E. 2G7; Illinois Cent. R. Co. v. Slater, 129 111. 91, 21 N. E. 575; McGovern v. Railroad Co., 67 N. Y. 417; Galveston v. Barbour, G2 Tex. 172; Rains v. Railway Co., 71 .Mo. 1G4; Pennsylvania R. Co. v. Zebe, 33 Pa. St. 318; Caldwell v. Biowu, 53 Pa. St. 453. A widowed mother may recover notwithstanding that she has no right to the services of a minor child, since the act gives her a right of action. Pennsylvania R. Co. v. Bantom, 54 Pa. St. 495. A parent may recover damages for the death of a minor child al- though the latter never contributed to the parent's support. Mollie Gibson Consol. Mining & Milling Co. v. Sharp, 5 Colo. App. 321, 38 I'ac. S50. TSRockford, R. 1. & St. L. R. Co. v. Dolaney. 82 111. 198; Rajnowski v. Railroad Co., 74 Mich. 15, 41 N. \V. 847; Pennsylvania Co. v. Lilly, 73 lud. 252; Brunswig v. White, 70 Tex. 504, 8 S. W. 85. The value of the services Is to be without regard to any peculiar value wliich the parent miglu attach to them. St. Louis, I. .M. & S. Ry. Co. v. Freeman, 3() ,\rk. 41. 78 4 Hurl. & N. 053, 29 L. J. Exch. 25, 5 Jur. (N. S.) U30. 320 DAMAGES FOR DEATH BY WRONGKUL ACT. (Ch. 12 entitled to retain it. In Bramall v. Lees *° a father recovered £15 for the death of a daughter 12 years old, who had never actually earned anything, but who might, if she had lived, have obtained work in a factory. So, in Condon v. Railway Oo.,^* a widow re- covered £10 for the death of a son of 14, who had never earned any- thing, but whose capabilities were valued at Gd. a day. In no English case does it appear that damages have been given for the death of a child of such tender years as to be incapable of earning wages. But in the United States it is well settled that substantial damages may be recovered in such cases. Ihl v. Railway Co.^- is a leading case in point. The action was brought for the death of a child three years old, and the verdict was $1,800. The court of appeals sustained the lower court in refusing to nonsuit the plaintiff, or to direct a verdict for nominal damages, for absence of proof of pecuniary damages to the next of kin. "It was within the province of the jury," said Rapallo, J., "who had before them the parents, their position in life, the occupation of the father, and the age and sex of the child, to form an estimate of the damages with reference to the pecuniary injury, present or prospective, resulting to the next of kin. Except in very rare instances, it would be im- 80 29 L. T. 111. See Chapman v. Rothwell, 4 .Tur. (N. S.) IISO, where Crompton, J., comments upon the case with approval. 81 16 Ir. Com. Law, 415. See Burke v. Raih-oad Co., 10 Cent. Law .J. 48. In an action by a father for the death of his daughter, aged 10, it was proved that deceased lived with her parents, and was maintained by them, rendering services which enabled them to dispense with a servant. No evidence was given of the exact value of her services, or as to the cost of her maintenance. Held, that there was evidence for the jury, but a verdict for £150 should be reduced to £50. Wolfe v. Railway Co., 20 L. R. Ir. 548. The plaintiff's father and stepmother were killed simultaneously. An action for the loss of the father had been instituted in which £100 was obtained; but Is. only was allo- cated to plaintiff, who sued in a second action for the death of her stepmother. The parties were in humble life. The stepmother earned Gs. a week besides her food, which earnings were applied to the support of the family. Plaintiff resided with her father and stepmother. For six months preceding the death she earned 5s. a week, but previously had not been able to work from weak- ness of health. Held, that a verdict in the former case was no bar; also that there was evidence of pecuniary loss sufficient to sustain the action. Johns- ton V. Railway Co., 26 L. R. Ir. 691. 82 47 N. Y. 317. §§ 134-135) FUTURE SERVICES. 321 practicable to furnish direct evidence of any specific loss occasion- ed by the death of a child of such tender years; and to hold that, without such proof, the plaintiff could not recover, would, in effect, render the statute nugatory in most cases of this description. It cannot be said, as a matter of law, that there is no pecuniary dam- age in such a case, or that the expense of maintaining and educating the child would necessarily exceed any pecuniary advantage which the parents could have derived from his services had he lived. These calculations are for the jury, and any evidence on the subject beyond the age and sex of the child, the circumstances and condition in life of the parents, or other facts existing at the time of the death or trial, would necessarily be speculative and hypothetical, and would not aid the jury in arriving at a conclusion." He adds that the amount of damages could have been reviewed in the court be- low, but could not in the court of appeals; the only question for the higher court being whether any, or more than nominal, damages could be recovered.^^ 83 In Lehman v. City of Brooklyn, 20 Baib. 234, a stricter construction of the statute was adopted. In that case Brown, J., held that a verdict of $1,500 for a child of four years was excessive, and forcibly states the argu- ment against the allowance of substantial damages in such cases: "For the next ten years," he says, '"had he lived, it may safely be said that he would have been a burden in place of a benefit, pecuniarily, to his parents. And for The next seven years after that, if educated to a profession or mercantile calling, or put to a trade, he would have done well— much better than the ma- jority of lads— if he supported himself. During all this time he would have been exposed to disease and death. * * * The lil'e of this little buy, how- ever priceless may have been its value in other aspects, had no pecuniary value which the jury could justly estimate at $1,500. If the plaintiff recov- ered at all, the damages should have been nominal." But this decision is opposed to the decisions earlier and later. Indeed, 'n actions for the death of minor children, as in other actions under the statute, the New York courts have gone fai-ther than those of any other state in yielding the question of damages to the discretion of the jury. Thus in Oldlield v. Railroad Co., 14 N. y. 310, affirming 3 E. D. Smith, 103, which was an action for the death of a daughter six years old, the judge charged that the plaintilf could recover what- ever pecuniary loss the next of kin (tlie mother) iniglit be suppdsed to iueiu* in consequence of the loss of the child, and qualilied this by adding th;u tlic jury were to give what they should dcein fair and just, with reference to the pecuniary injury resulting from the death. The judge also excluded all considerations arising from the sulleiiiig of the cliild or- (he anguish ul' (ho LAW DAM. — 21 322 DAMAGES FOR DEATH BY WRONGFUL ACT. (Ch. 12 In conformity with the views expressed in Ihl v. Forty-Second St. By. Co., it is established that the jury may infer the amount of loss from proof of the age, sex, and condition in life of the deceased child, and that testimony as to the value of the services is unneces- paronts. and confined the rule of damages exclusively to indemnification for a pecuniary loss. This instruction was sustained by the court of appeals. Wright. .T.. observins that it was only another way of instructing the jury that the damages were a sum which, in their opinion, taking into consideration all the circumstances of the case, would be the pecuniary loss to the next of kin. "This," he concludes, "was right, unless the statute limits the recovery to the actual loss proved at the trial. We think it does not." See Quin v. Moore, 15 N. Y. 432. In O'Mara v. Railroad Co., 38 N. Y. 445, the jury ren- dered a verdict of $1,500 for a boy 11 years old. The defendant moved for a new trial on the ground that there was no evidence of the pecuniary value of the life, which was denied, and in the court of appeals the lower court was sustained. Hunt, C. J., observing that the jury would have the right, acting upon their own knowledge, and without proof, to say that the services of a boy from 11 until 21 years of age were valuable to his father, and to estimate their value. The court went to the extreme length in Houghkii'k v. Canal Co., 92 N, Y. 219; Id., 28 Hun. 407 (general term); Id., 11 Abb. N. C, 72, 63 How. Prac. 328 (special term),— in which case a verdict of $5,000 was rendered for an only child 6 years old, intelligent and healthy, the daughter of a mar- ket gardener,— these facts and the circumstance of her death constituting the only evidence. The general term declined to set the verdict aside as excess- ive, and the court of appeals declared that it was impossible to say that error bad been committed thereby, although it granted a new trial on another ground. In the opinion of the court at general term the difficulty of any court called upon to review the damages in such casts is clearly set forth as fol- lows: "The court in that case" [Ihl v. Railroad Co., 47 N. Y. 317], "says that the damages could be reviewed in this court. But the difficulty is, by what test are we to review them? If it is a matter of guess Avork, the jury can guess as well as we. If we are to review them by the test of the evidence, then the difficulty is that there is no direct evidence proving the amount of loss. The facts to which the consideration of the jury is limited by the case cited would be, in the present case, substantially and in brief: A girl of six years, healthy and bright, only child of a gardener and his wife, both of whom survived her. Given her death; what is their pecuniary loss?" Referring to the position taken by the general term, tliat the doctrine of the court of appeals leaves it impossible for a court to say in any instance that damages are excessive, Finch, J., who delivered the opinion of the court of appeals, says: "The damages to the next of kin * * * are necessarily indefinite, prospective, and contingent. They cannot be proved with even an approach to accuracy, and yet they are to be estimated and awarded, for the statute §§ 134-135) FUTURE SERVICES. 323 sarj,®* though perhaps not improper.*" It would seem, however, that such proof would not dispense with the necessity of evidence showing the expectancy of life of the parents.*® It is said in some of the cases that where the deceased is a minor, and leaves a parent entitled to his services, the law presumes a loss for which more than nominal damages can be recovered.*^ Such damages may be en- has so commanded. But even in such case there is, and there must be, some basis in the proof for the estimate, and that was given here, and always has been given. Human lives are not all of the same value to the survivors. The age and sex, the general health and intelligence, of the person killed, the situation and condition of the survivors, and their relation to the deceased, —these elements furnish some basis for judgment. That it is slender and in- adequate is true; but it is all that is possible, and, while that should be given, more cannot be required. Upon that basis and from such proof the jury must judge; and, having done so, it is possible, though not entirely easy, for the general term to review such judgment, and set it aside if it appears excess- ive, or the result of sympathy and prejudice." In Ahem v. Steele, 48 Hun, 517, 1 N. Y. Supp. 257, in sustaining a verdict of $4,500 for a child of six. Van Brunt, P. J., remarked: "The damages appear to be excessive, as it does not seem that there can be any pecuniary damage resulting from the death of so young a child; * * * but as recoveries have been sustained, based on the death of much younger children, we see no reason for interference with the verdict upon this account." Gorham v. Railroad Co., 23 Hun, 449; Huerzeler V. Railroad Ck)., 1 Misc. Kop. 130, 20 N. Y. Supp. 070. But in Carpenter v. Railroad Co., 38 Hun, 110, it was held that a verdict could not be sustained on evidence merely of the relationship," age, and habits of the child, when there was no evidence of the condition, pecuniary and physical, of the parents or of their age. See, also. Gill v. Railroad Co., 37 Hun, 107; Birkett v. Ice Co., 110 N. Y. 504, 18 N. E. 108. 8 4 Little Rock & F. S. Ry. Co. v. Barker, 39 Ark. 491; City of Chicago v. Major, 18 111. 349; City of Chicago v. Scholten, 75 111. 408; City of Chicago V. Hesing, 83 111. 204; Union Pac. Ry. Co. v. Dunden, 37 Kan, I, 14 Pac. 501; Nagel V. Railway Co., 75 Mo. 653; Grogan v. Foundry Co., 87 Mo. 321; Brunswig v. White, 70 Tex. 504, 8 S. W. 85. Austin Rapid Transit Ry. Co. v. Cullen (Tex. Civ. A pp.) 29 S. W. 250. sBRajnowski v. Railroad Co., 74 Mich. 15, 20, 4L^N. W. 847, 819; Pennsyl- vania Coal Co. v. Nee (Pa. Sup.) 13 Atl. 841; Pennsylvania R. Co. v. Hender- son, 51 Pa. St. 315. See, also, Klanowskl v. Railway Co., 57 Midi. 525, 24 N. W. 801. 80 Carpenter v. Railroiid Co., 3S Hun, 110. 8T Where the next of kin are collateral kindred of the deceased, and have not received pecuniary aid from him, proof of such relationship will warrant a recovery of nominal damages only; but where the di>c(i; Bradley v. Sattler, loG 111. G03, 41 N. E. 171; Atrops v. Costello, 8 Wash. 149, 35 Pac. G20. Deceased was a brakeman over 20 years old, whose next of kin was a father, liviiig in Germany. Held, that the plain- tiff was entitled to more than nominal damages. The court says that while the measure of recovery would be affected by proof, or by the absence of it, of facts showing the value of the life to the survivors, the law presumes some value. Robel v. Railway Co., 35 ilinn. 84, 27 N. W. 305. It is not competent for the defendant to prove that the child's services were of no value. Fop- piano V. Baker. 3 Mo. App. 559. 88 City of Chicago v. Scholten, 75 111. 468. 89 Louisville, N. A. & C. Ry. Co. v. Rush, 127 Ind. 545, 2G N. E. 1010. 90 Potter V. Railway Co., 22 Wis. 615; Ewen v. Railway Co., 38 Wis. G13. 91 The mother was a widow, poor, and kept boarders. Deceased was a boy, an only child, healthy, intelligent, and obedient. The physician's bills and funeral expenses were $290, On the first trial the jury gave $4,500, which was set aside as excessive. Little Rock & F. S. Ry. Co. v. Barker, 33 Ark. 350. On the second trial the jury gave $3,500, of which the plaintiff remitted $1,235. .Held, that a third trial would not be granted on the ground of excessive damages. Id. 39 Ark. 491. Deceased was a son six or seven years old. Held, that a verdict of $2,000 was not so excessive as to justify the court to interfere. Chicago & A. R. Co. v. Becker, 84 111. 483. Deceased was within 18 months of majority, and fitting herself to be a teacher, at the expense of her father. Her next of kin were her parents and a sister. Held, that these facts did not justify a verdict vi $2,000, or more than nominal dam- ages. Lake Shore & M. S. Ry. Co. v. Sunderland. 2 111. App. 307. Whether the damages were excessive is a question of fact which will not be reviewed in the supreme court. City of .Toliet v. Weston, 123 111. G41, 14 N. E. GG5; Id., 22 111. App. 223; Citj- of Salem v. Harvey, 29 111. App. 483; Id., 129 111. §§ 134-135) FUTURE SERVICES. 325 Same — Expectancy of Benefit after Majority. Damages for the death of an adult child, as will be seen, are usually confined, except where they are based upon the loss of a prospective inheritance, to cases where the child has manifested his willingness to assist his parents by actually doing so. In ac- 344, 21 N. E. 1076. A judgment for $3.(X)0 for a minor, who was 11 years and 8 months old, intelligent, healthy, and promising, and left surviving him a father, earning $700 or $800 a year as an engineer, and having a wife and 3 children, is not grossly excessive. Union Pac. Ry. Co. v. Dunden, 37 Kan. 1. 14 Pac. 501. Deceased was 18 years old, and was employed at $1.40 a y 326 DAMAGES FOR DEATH BY WRONGFUL ACT, (Ch. 12 cordance with the principle of these cases, it is held in Arkansas,®* Maryland,®^ Michigan,®* and Pennsylvania ®^ that, in an action for the death of a minor child of tender years, damages are limited to the loss of service during the child's minority, and that the chances of his surviving his parents and of his ability and will- ingness to assist them after that period should be excluded from consideration. In Maryland ®® the same rule has been held to apply^ although the minor is old enough to be self-supporting, and has ac- tually contributed to the support of the parent; and the rule as de- clared in Pennsylvania would cover such a case.®^ But in Ar- kansas the rule does not apply where the minor has shown himself able and willing to make his own living, and to contribute to the passion or prejudice, so as to warrant the court in setting it aside as excessive, lioss V. Railway Co., 44 Fed. 44. Deceased was a boy of eight, and his mother was in poor health, and dependent on friends, and lost by his death a pension of $2 a month. Held, that a verdict of $2,000 was not excessive. Ewen V. Railway Co., 38 Wis. 613. Deceased was a healthy boy, 16 months old, whose parents were poor and approaching middle life. Held, that a ver- dict of $1,000 was not excessive. Hoppe v. Railway Co., 01 Wis. 3o9, 21 X. W. 227. A verdict of $1,200 for a boy eight years old, whose parents were poor and had a large family, held not excessive. Strong v. City of Stevens Point, 62 Wis. 255, 22 N. W. 425. Deceased was seven years old. His father was poor, troubled with rheumatism, and sawed wood for a living, and his mother at times worked out. Held, that a verdict of $2,500 was not excessive. Johnson v. Railway Co., 64 Wis. 425. 25 N. W. 223. A verdict of $2,000 for a l)oy 18 months old held not excessive. Schrier v. Railway Co., 65 Wis. 457, 27 N. W. 167. 92 Little Rock & F. S. Ry. Co. v. Barker, 33 Ark. 350; St. Louis, I, M. & S. Ry. Co. V. Freeman, 36 Ark. 41. 93 State V. Baltimore & O. R. Co., 24 Md. 84. 9< Cooper V. Railway Co., 66 Mich. 261, 33 N. W. 300. 9 5 Pennsylvania R. Co. v. Zebe, 33 Pa. St. 31S; Caldwell v. Brown, 53 Pa. St. 453; Lehigh Iron Co. v. Rupp, 100 Pa. St. 95. 96 No expectation of pecuniary benefit to the father from the continuance of the life, after minority, of a son 19 years old, can be considered, although the son had been emancipated 2 years before his death, and had paid to his father the greater part of his earnings, and had promised to help him after becoming of age. Agricultural & M. Ass'n v. State, 71 Md. 86, 18 Atl. 37. 9 7 Lehigh Iron Co. v. Rupp, 100 Pa. St. 95. §§ 134-135) FUTURE SERVICES. 327 support of his parents.®' In Missouri and some other states the right of action is confined by the terms of the statute to the death of a minor child. In New York, KansaSj^** Texas/ °° and Wisconsin, damages are not limited to the value of the services during minor- ity.^°^ In Xew York ^°- the right of action, even in case of the death of an adult child or a collateral relative, is not confined to cases where there is evidence of past benefits upon which to base a reasonable probability of future benefits; and it is accordingly held that in an action for the death of a minor child the jury are not confined to a consideration of the benefits which would have re- sulted to the parents during minority, but may consider the proba- ble, and even possible, benefits which might have resulted to them from his life, modified by the chances of failure and misfortune. In Wisconsin ^°^ it is held that the jury may take into consideration the reasonable expectation of pecuniary advantage that would have resulted from the child living beyond minority; but that it must be shown that the circumstances were such as to render it probable that the parents might need the services of the child, or aid from him, after majority; and that a sufficient foundation for such dam- ages is laid by showing that the physical or pecuniary circumstances of the parents were such as to show that they might need such 8 8 St. Louis. I. M. & S. Ry. Co. v. Davis, 55 Ark. 462, IS S. W. 628. 9 8 Missouri Pac. K. Co. v. Peregoy, 36 Kan. 424. 14 Pac. 7. 100 Gulf, C. & S. F. lly. Co. v. Compton, 75 Tex. 667, 13 S. W. 667; San Antonio St. Ry. Co. v. Mochlcr (Tex. Civ. App.) 29 S. W. 202. See Houston & T. C. R. Co. v. Nixon, 52 Tex. 19. 101 In an action by the administrator for the death of a child IS months old, owins to the fact that another action had been (erroneously) l)ejj:un by the father to recover for the loss of services of the child during minority, only such damages were claimed as would accrue to the father or next of kin by reason of the loss of such pecuniary benefit as he might have received after the minority. A new trial was granted for error In the Instructions, but the court intimates that the action might be maintained. Schelller v. Railway Co.. 32 Minn. 51S, 21 N. W. 711. Although the father had given his time to the deceased (a minor sun), tlie parents may recover more than nominal damages. St. Joseph i^i W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461. 102 Birkett v. Ice Co., 110 X. Y. 504. IS N. E. lOS. 103 Potter V. Railroad Co., 22 Wis. 615, 21 Wis. 372. Cf. Seaman v. Trust Co., 15 Wis. 578. 328 DAMAGKS FOR DKATH BV WUONGFUL ACT. (Cll. 12 services or aid. In Iowa ^"^ and Washington ^°' two actions may be maintained, — one by the personal representative to recover dam- ages to the estate for the loss of benefits that would have accrued after majority, and one by the parent for loss of services during minority. SAME— PROSPECTIVE GIFTS. 136. Damages may be recovered for loss of prospective gifts which it is reasonably probable plaintiff Tvould have received. The cases in which, upon the facts, damages are recoverable for the loss of prospective gifts, are commonly actions by parents for the death of adult children, although cases also arise in which such damages may be recovered for the benefit of adult children on ac- count of the death of a parent, or for the benefit of brothers and sisters and other collateral relatives. As has been said, such dam- ages are not confined to cases of these descriptions, but may be re- covered, where the facts furnish a proper basis, in addition to dam- ages for loss of services, support, etc., in actions for the benefit of husbands, waves, minor children, ^''^ and, in some jurisdictions at least, of parents of minor children. In order to lay a foundation for the recovery of damages for the loss of prospective gifts, it is usually held necessary, except in New York, for the plaintiff to show that the deceased, during his life, gave assistance to the beneficiaries, by way of money, services, or other material benefits, which, in reasonable probability, would have continued but for the death.^" Death of Adult Child. Thus, in Dalton v. Railway Co.,^°^ where it appeared that the plaintiff's son, who was 27 years old and unmarried, and lived away 104 Walters v. Kailioad Co., 36 Iowa, 45S; Lawrence v. Birney, 40 Iowa, ?,77; Walters v. Railroad Co.. 41 Iowa. 71; Benton v. Railroad Co., 55 Iowa, 49G. 8 N. W. 330; Morris v. Railroad Co.. 26 Fed. 22; Code, §§ 3732, 3761. 105 Hedrick v. Navisation Co., 4 Wash. 400, 30 Pac. 714: 2 Hill's Ann. St. §§ 13S, 139. 106 pym V. Railway Co., 2 Best & S. 759. 4 Best & S. .390. 107 Cases cited in notes, infra. 108 4 c. B. (N. S.) 296, 4 Jur. (N. S.) 711, 27 Law J. C. P. 227. % 136) PROSPECTIVE GIFTS. 329 from bis parents, had in the last 7 or 8 years been in the habit of making them occasional presents of provisions and money, amount- ing to about £20 a year, it was held that the jury were warranted in inferring that the father had such a reasonable expectation of pecuniary benefit from his son's life as to entitle him to recover damages. And in Franklin v. Eailway Co.,^°^ it appeared that the father was old and infirm, and that the son, who was young and earning good wages, assisted him in some work, for which he was paid 3s. 6d. a week; and, the jury having found that the father had a reasonable expectation of benefit from the continuance of the son's life, it was held that the action was maintainable, although the ver- dict of £75 was excessive. In Sykes v. Railway Co.,^^° on the con- trary, where the deceased was a bricklayer, and received from his father the wages of a skilled workman, and was of great assistance to his father, who was also a bricklayer, and who, owing to the loss ■of assistance from the deceased, could not take the contracts which he had done during his son's life, it was held that, inasmuch as the benefit which the father derived accrued, not from the relationship, but from a contract, and there was no evidence that he paid his son less than the usual wages, he had suffered no pecuniary loss from the death."* The distinction taken in the English cases has generally been ob- served in the United States.^^^ The proper measure of damages 109 3 Hurl. & N. 211, 4 Jur. (N. S.) 565. The plaintiff was 59 years old. nearly blind, injured in his leg and hands, and unable to work as formerly. Some 5 or G years before the death of his son, when the plaintiff was out of work for 6 months, the son had assisted the father pecuniarily, but had not •done so since. Z/cW, that there was evidence of pecuniary injury. Hether- ington V. Railway Co., 9 Q. B. Div. 100. 110 44 Law J. C. P. 191, 32 Law T. (N. S.) 199, 23 Wkly. Rep. 473. 111 The injury to the sons of deceased by the dissolution of a partnership between him and them cannot be considered. Deraarest v. Little, 47 N. J. Law, 28. 112 In an action for the benefit of a father for the death of an unmarried son 22 years of age, plaintiff can recover only by showing that deceased gave assistance to his father, contributed money to his support, or that the father had reasonable expectation of jjocuniary l>enelit from tlie continued life of the son, the reasonable cliaracler of this e.\poct ition to appear from the facts in proof. In the absence of sucli proof, only ni)iiiiiial damages can be re«'()v- ered. Fordyce v. McCants, 51 Ark. ."i»;i, n s. W. (;'.U. A vt-rtlict of .SKi.imn) 330 DAMAGES FOR DEATH BY WRONGFUL ACT. (Cll. 12 is the present worth of the amount which it is reasonably probable the deceased would have contributed to the support of the parent during the latter's expectancy of life, in proportion to the amount he was contributing at the time of his death, not exceeding his should be set aside, it appearing that the next of kin entitled to the benefit of the verdict was a mother in comfortable pecuniary circumstances, who had derived no profit from the earnings of her son, and was not liliely to profit by his earnings had he lived. Atchison, T. & S. F. R. Co. v. Brown, 2G Kan. 443. The son lived apart from his parents, but was unmarried. No proof was offered of the parents' financial condition, or that they had ever received any actual pecuniary benefits from him during his lifetime; nor was there any evidence showing a reasonable probability of pecuniarj' advantage to them from the continuance of the son's life. Held, that no more than nominal damages should have been recovered. Cherokee & P. Coal & Min. Co. v. Jjimb, 47 Kan. 469, 28 Pac. 181. The deceased contributed to the support of his mother and invalid sister, but not of his other brothers and sisters. Held, that damages should be allowed only on account of the first two. Richmond V. Railway Co., 87 Mich. 374, 49 N. W. 621. Damages for the death of a son must be shown by evidence regarding the earnings of deceased and other cir- cumstances, unless such evidence is not accessible. A verdict for $9,000, based on no evidence showing the value of deceased's life to plaintiff, set aside. Houston & T. C. Ry. Co. v. Cowser, 57 Tex. 293. The petition must show that the son supported plaintiff, or contributed to his support, or that there was some expectation of pecimiary benefit to be derived from deceased; and a mere allegation that plaintiff, "as his sole surviving parent, had been dam- aged $10,000 actual damages," is insufficient. Winnt v. Railway Co., 74 Tex. 32, U S. W. 907. But see Johnson v. Railway Co., 18 Neb. 690, 2G N. W. 347, where the father lived in Sweden, and had received no aid from the de- ceased since his coming to the United States, a short time before the death, and it was held that the evidence should have been submitted to the jury. In Pennsylvania it is said that "parents*' and "children," as used in the act, indicate the family relation in point of fact as the foundation of the right of action, without regard to age, Pennsylvania R. Co. v. Adams, 55 Pa. St. 499. If the child was of age and the family relation existed, damages may be recovered for the loss of the reasonable expectation of pecuniary advan- tage, if any, from the continuance of the relation. Id.; Pennsylvania R. Co. V. Keller, 67 Pa. St 300; North Pennsylvania R. Co. v. Kirk, 90 Pa, St. 15. But if the family relation has ceased, and the child does not contribute to his parents' support, no damages can be recovered. Lehigh Iron Co. v. Rupp, 100 Pa. St. 95. See, generally, Johnson v. Railroad Co., SO Hun, 306, 30 N. Y. Supp. 318; Colorado Coal & Iron Co, v. Lamb (Colo. App.) 40 Pac. 251; Duval v. Hunt, 34 Fla. 85, 15 South. 876. § i36) PROSPECTIVE GIFTS. 331 expectancy of life; ^" though it would seem that the rnle Is not to be applied with mathematical strictness, and that the jury may properly take into consideration the increasing wants of the parent, and the increasing ability of the child to supply them.^^* In Hutchins v. Railway Co.,^^^ it was said: "The proper estimate can usually be arrived at with approximate accuracy by taking into ac- count the calling of the deceased, and the income derived there- from; his health, age, talents, habits of industry; his success in life in the past, as well as the amount of aid in money or services which he was accustomed to furnish the next of kin; and, if the verdict is greatly in excess of the sum thus arrived at, the court will set it aside or cut it down." ^^* The application of the rules in actions 113 Richmond v. Railway Co., supra. But in Virginia, in an action for the benefit of a widowed mother for the death of an unmarried son, who lived with and cared for her, it was held that the jury might allow such sum as would be equal to his probable earnings during his and her expectancy of life. Baltimore & O. R. Co. v. NoeU, 32 Grat. 394. 11* International & G. N. R. Co. v. Kindred, 57 Tex. 491; Texas & P. Ry. Co. V. Lester, 75 Tex. 56, 12 S. W. 955. See Iletherington v. Railway Co., 9 Q. B. Div. 160. It is error to instruct the jury as to the disposition of the child to help, since the question is, did he helpV Chicago &. N. W. R. Co. v. Swett, 45 111. 197. 116 44 Minn. 5, 46 N. W. 79. In that case the verdict was $3,500, while the evidence showed that the contributions of the son to his mother did not ex- ceed $50 a year, and that her expectancy of life was only 7% years. The court reduced the verdict to $2,000. Opsahl v. Judd, 30 Minn, 12G. 14 N. W. 575. lie The jury may consider the circumstances of the son, his occupatiou, age, health, habits of industry, sobriety, and economy, his annual earnings, and his probable diu^tion of life at the time of the accident; also the amount of property, age, health, and probable duration of plaintiff's life, and the amount of assistance he had a reasonable expectation of receiving from the son. Hall v. Railway Co., .^59 Fed. IS. Though the true measure of dnm- ages for the killing of plaintiff's son is "a sum equal to the pecuniary beuciit the parent had a reasonable expectation of receiving from her child had he udt died," it is not misleading to charge that the damages are "such sum as you may, under the evidence, reasonably believe plaintiff might have rocoivod' from the assisUince of deceased had ho not been killed; and you ma^-, in esti- mating such sum. If any, consider, under the evidence before you, the age of deceased, the time he might have lived, the age of the plaintiff, the time she may probably live, and any other evidence lending to show what daiiiagcs, if 332 DAMAGES FOR DEATH BY WRONGFUL ACT. (Ch. 12 for the deatli of adult children, particularly with reference to the amount of the verdict, is illustrated in the cases in the subjoined note.^^^ any, she may have suffered by the killing of deceased. You will find for plaintifC such damages, under the instructions heretofore given, as you may think will compensate her for the loss, if any, she may have sustained by the killling." Missouri Pnc. II. Co. v. Lee, 70 Tex. 49G, 7 S. W. 857. 117 Deceased conti-ibuted to the support of his mother and her invalid daugh- ter $30 to $50 a mouth, and gave his sister $5 to $20 a month when neces- sary. He was healthy, and his expectancy of life was 32V^ years. His mother was 59 years old, and her expectancy was 14% years. His sister was 19 years old, and her expectancy 42 years. He earned $100 to $150 a month. Held, that a verdict for $0,500 was not excessive; and that the jury were at liberty to consider that, in aiding the daughter, who belonged to his mother's family, the son was contributing to the support of his mother, who was his next of kin. Little Rock & F. S. Ky. Co. v. Voss (Ark.) 18 S. W. 172. De- , 12 S. W. 955. Where a mother who is GO years old, and in good health, had for many years been supported by her son, aged 221/^ years, and who at the time of his death was earning from $00 to $65 per month, one-half of which he had been in the habit of giving to his mother, a verdict for $3,550 is not excessive. Missouri Pac. liy. Co. v. Ilenry, 75 Tex. 220, 12 S. W. 828. A verdict for $4,995 was not so excessive as to justify reversal, where decedent, at the time of his death, was a strong, healthy man 28 years old, of good habits, and earning $1.75 per day. Webb v. Rail- way Co., 7 Utah, 3G3, 2G Pac. 981. Action by father for death of son who had just come of age, and who, for two years previous to death, while attending school, had worked on his father's farm without wages. It was intended that he should study medicine at an expense to his father of $1,000 for three or four years, and in vacation work at home. Held, that there was no reason- able expectation of pecuniary benefit. Mason v. Bertram, IS Ont. 1. 118 Baltimore & O. R. Co. v. State, GO Md. 449. 119 In an action for the benefit of two sons and a daughter, all married and of age, it appeared that the deceased lived with her daughter, thus enabling the latter to work and earn six dollars a week, and that the deceased alpo fre- quently assisted in nursing the sick in her sons' families; but it did not ap- pear how often she went, how long she stayed, or what was the value of such services. Held (1) that, as the services rendered by the mother constituted the pecuniary benefit which the daughter had a right to expect from the continu- ance of the life, the value of such services, and not what the daughter might earn, was the measure of damages; (2) that there was no evidence sudlcieut to warrant the jury in finding any pecuniary loss to the sons. Baltimore & O. R. Co. V. State, 03 Md. 135. The deceased lived with one married daugh- ter, and was in the habit of rendering services (the value of which did not appear) to her and to her husband, who was an Invalid, and to her other adult children. Held, that a nonsuit was prcipcriy denied, retrie v. Kailread 534 DAMAGES FOR DEATH BY WRONGFUL ACT. (Ch. 12 Nothing can be allowed for the loss of a father's counsel and serv- ices, except so far as they can be estimated in money.^*° Death of Collateral Relative. The same rules apply to the recovery of damages for the death of <;ollateral relatives.^-^ SAME— PROSPECTIVE INHERITANCE. 137. Where it is probable that the decedent, but for his death, would have accumulated property, which, if he had died intestate, would have been inherited by the beneficiaries of the action, these facts consti- tute such a reasonable expectation of pecuniary benefit as to authorize a recovery of damages for its loss.'" Co., 29 S. C. 303, 7 S. E. 515. The court lays stress on the absence of the ■word "pecuniary" from the statute. A married daughter and son, nearly 21 years old, neither of them supported by their father, who left also a widow and dependent minor children, have no right to damages. St. Louis, A. & T. Ry. Co. V. Johnston, 78 Tex, 536, 15 S. W. lOi. In an action by a daughter for the death of her mother, it appeared that deceased lived with plaintiff, who was a laundress, and by whom she was maintained, the deceased assisting her in the laundry, etc. It was not shown that the value of the services of the deceased exceeded her support. Held, that a verdict for plaintiff should be set aside. Hull v. RaUway Co., 26 L. R. Ir. 2S9. 120 Demarest v. Little, 47 N. J. Law, 28. 121 Where decedent was addicted to the use of intoxicating liquors, was careless in his work, and did not save his earnings, his brothers and sisters, to whose support he had never contributed, were entitled to nominal damages only. Anderson v. Railroad Co., 35 Neb. 95, 52 N. W. 840. But see Groten- kemper v. Harris, 25 Ohio St. 510. Deceased had a sister and two brothers living in Denmark. He was a bridge carpenter, and received $2 a day. He had been at work three or four months, and had sent some money to his sister (how much did not appear). There was no evidence as to his age or his capacity for earning and saving money, or as to the expectation of pecun- iary benefit to be derived by the next of kin from his estate if he had lived longer. Eeld, that a verdict of $1,750 should be set aside as excessive. Seren- «en V. Railroad Co., 45 Fed. 407. Damages to minor sisters and nieces. Du- val V. Hunt, 34 Fla. 85, 15 South. 876. 122 pym V. Railway Co., 2 Best & S. 759, 31 L. J. Q. B. 249, 8 Jur. (N, S.) 819, 10 Wkly. Rep. 737, 6 L. T. (N. S.) 1537; affirmed in 4 Best & S. 396, 32 § 137) PROSPECTIVE INHERITANCE. 335 In Pym v. Great Northern Ry. Co./-= where the party killed was in possession of personalty to the amount of £3,400, and was tenant for life of an estate in land worth nearly £4,000 a year, with re- mainder to his eldest son in tail, and, by settlement, a jointure of £1,000 a year was settled on his wife, and £20,000 secured to the younger children on his death, and the deceased died intestate, it was held that the widow and younger children had a sufficient ex- pectation of pecuniary benefit to render its loss a ground for action, Cockburn, C. J., after observing that the loss of education and the greater comforts and enjoyments of life arising from the death of a father whose income ceases with his life is an injury in respect of w^hich an action can be maintained, continues as follows: "A for- tiori, the loss of a pecuniary provision, which fails to be made owing to the premature death of a person by whom such provision would have been made had he lived, is clearly a pecuniary loss for which compensation may be claimed. It is true that it must always remain matter of uncertainty whether the deceased person would have applied the necessary portion of income in securing to his family the social and domestic advantages of which they are said to have been deprived by his death; still more, whether he would have laid by any and what portion of his income to make provision for them at his death. But * * * it is for a jury to say, under all the circumstances, taking into account all the uncertainties and contingencies of the particular case, whether there was such a rea- sonable and well-founded expectation of pecuniary benefit as can be estimated in money." The jury having given £13,000, — £1,000 to the widow, and £1,500 to each of the younger children, — it was held that the latter sum ought in each case to be reduced to £1,000. In Illinois Cent. R. Co. v. Barron,^-* an action brought under the Illinois statute, the testator was a bachelor, 35 years old, and had Law J. Q. B. 377, 10 Jur. (N. S.) 199, 11 Wkly. Rep. 922; Illinois Cent R. Co. V. Barron, 5 WaU. 90; Lake Erie & W. R. Co. v. Mugg, 132 Ind. 168, 31 N. E. .'>G4; McAdory v. Louisville & N. R. Co., 10 South. 507; Castello v. I^uid- wehr, 28 Wis. 522. The loss of the chainee to be endowed out of her hus- band's accumulations is a pecuniary injury to the wife. Catawis.sa R. Ct). v. .-S-rm-strong. 52 Pa. SL 282. 123 2 Best & S. 759, 4 Best & S, 39G. 12* 5 Wall. 00. 336 DA>rAGES FOU DEATH BY WRONGFUL ACT. (Ch. 12 an estate of |3o,000, which he left by will to his father. He was an attorney, but for four years prior to his death had been a judge. His term of oflQce having expired, he was about to resume his pro- fession, with a fair promise of doing as well as before he was elected judge, when his professional income had been about' |3,000 a year. The action was for the benefit of his father, brothers, and sisters, one of w'hom had formerly received some assistance from him for support. The court refused to charge that it was necessary that the beneficiaries should have a legal interest in the life, but char- ged, among other things, that the jury had a right, in estimating the amount of pecuniary injury, to take into consideration the re- lations between the deceased and his next of kin, the amount of his property, the character of his business, and the prospective increase of wealth likely to accrue to a man of his age with the business and means which he had, the possibility that his estate would have de- creased rather than increased, and the contingency that he might have married, and his property descended in another channel. The verdict and judgment were for |3,7d0; and, the case coming before the supreme court on exceptions to the charge, and on the refusal to charge as requested, the judgment was affirmed. The opinion was delivered by Mr. Justice Xelson, who said: "The damages in these cases, whether the suit is in the name of the injured party, or, in case of his death, under the statute, by the legal representative, must depend very much on the good sense and sound judgment of the jury, upon all the facts and circumstances of the particular ease. If the suit is brought by the injured party, there can be no fixed meas- ure of compensation for the pain and anguish of body and mind, nor for the loss of time and care in business, or the permanent injury to health and body. So, when the suit is brought by the representa- tive, the pecuniary injury resulting from the death to the next of kin is equally uncertain and indefinite. If the deceased had lived, they may not have been benefited, and, if not, then no pecuniary injury could have resulted to them from his death. But the statute in respect to this measure of damages seems to have been enacted upon the idea that, as a general fact, the personal assets of the de- ceased would take the direction given them by the law, and hence the amount recovered is to be distributed to the wife and next of kin in the proportion provided for in the distribution of personal § 137) PROSPECTIVE INHERITANCE. 337 property left by a person dying intestate. If the person injured had survived and recovered, he would have added so much to his per- sonal estate, which the law, on his death, if intestate, would have passed to his wife and next of kin. In case of his death by the in- jury, the equivalent is given by a suit in the name of his represen- tative." It would seem that, where there is no evidence tending to show that the deceased would probably have accumulated anything if he had lived, no more than nominal damages should be awarded,^ ^'^ and that the verdict should be set aside if the amount is grossly out of proportion to the reasonable probabilities of the case.^^' 125 In an action for the benefit of brothers and sisters, where the deceased had accumulated nothing, li^ld, that only nominal damages should be awarded. Howard v. Canal Co., 40 Fed. 195. But in Grotenkemper v. Harris, 25 Ohio St. 510, where the deceased was only four or five years old, and the benefi- ciaries were a brother and sisters, it was held not to be error to charge that the reasonable expectation of pecuniary benefit may consist of what a person may give to his next of kin while living, as well as what they may inherit from him at his death. 126 The injury claimed was the deprivation of the probable accumulations of deceased in his business. The juiy gave a verdict of $27,500. To reach this result, they must have found that deceased, who had already acquired a competence, would have continued in business for his full expectancy of life; would have retained sufficient health and vigor of mind to enable him to do ro as successfully as before; would have avoided business losses; would have safely invested his accumulations; and that the children would have received them at his death. Held, that the verdict should be set aside, unless the plain- tiff would consent to a reduction to $15,000. Demarest v. Little, 47 N. .T. Law, 28. In an action by a widow for the death of her husband, where it appeared that plaintiff was 20 years old and her husband 22 at the time of his death, and that his wages up to that time had iK'on entirely consumed in the expenses of his houseliold, it was error to charge that, if the jury believed the widow's expectancy of life was greater than her husband's, they should allow her the present value of any property she would probably have received from her husband as dower if he had not been killed, as the realization of any sum as dower depended on too many remote contingencies. St. Louis. I. M. & S. Ry. Co. V. Needham, 3 C. C. A. 120, 52 Fed. 371. Decedent was a widow 61 years old, who had done a profitable business as a boardinghou.'^e keeper, and had made some money, besides supporting a daughter, and occa- sionally gave small amounts to a son. Ilrht tliat, as Uie jury were authorized to take into consideration the reasonable expectation of her property being increased for the benefit of her cliildrcn, who were ol age, and llie re.-usonable LAW DAM. — 22 33S DA31AGE3 FOR DEATH BY WRONGFUL ACT. (Ch. 12 EVIDENCE OF PECUNIARY CONDITION OF BENEFICIARIES. 138. Evidence of the pecuniary condition of the beneficia- ries is inadmissible, except EXCEPTION — (a) In some cases such evidence is ad- missible to sho-w the probability of future gifts be- ing made. (b) In Wisconsin and New York such evidence is ad- missible in all cases. As a general rule, it is inadmissible to introduce evidence of the poverty^-' or bad health^-® or of other facts tending to show the necessities of the beneficiaries, since such facts do not tend to prove that they have suffered a pecuniary loss. 'If the moral obligation to support near relatives," says Cooley, C. J., in Chicago & N. W. R. expectation of pecuniary benefit to them by support or otlierwise, a verdict of $1,000 was sustained by the evidence. Tuteur v. Railroad Co^ 77 Wis. 505, 46 N. W. 897. Decedent was a widower, 73 years old, strong and vigorous, and actively engaged in business. The children were of age, and not depend- ent on him. Held, that .$1,000 was not excessive. City of Wabash v. Carver, 129 Ind. 552, 29 N. E. 25. 127 Illinois Cent. R. Co. v. Baches, 55 111. 379; Chicago & N. W. Ry. Co. V. Moranda, 93 IlL 302; Chicago & N. W. R. Co. v. Howard, 6 111. App. 569; Heyer v. Salsbury, 7 111. App. 93; Chicago, R. I. & P. R. Co. v. Henry, Id. 322; Beard v. Slieldon, 13 111. App. 54; Illinois Cent. II. Co. v. Slater, 28 111. App. 73, affirmed 129 111. 91, 21 N. E. 575; City of Delphi v. Lowery, 74 Ind. 520; Overholt v. Vieths, 93 Mo. 422. 6 S. W. 74; Chicago & N. W. Ry. Co. V. Bayfield, 37 Mich. 205; Hunn v. Railroad Co., 7S Mich. 513, 44 N. W. 502; Central R. R. v. Rouse, 77 Ga. 393, 3 S. E. 307; Central R. R. v. Mooie, 61 Ga. 151. The Illinois cases on this subject are somewhat modified by the recent case of Pennsylvania Co. v. Keane, 143 111. 172, 32 N. E. 2(50, in which it was held that, in an action by the widow as administratrix, it is proper to allow her to testify that the deceased was at the time of her death her sole support. The opinion says: "We take it that the rule deducible from the cases is substantially this: that it is not competent to show what the pecuniary circumstances of the widow, family, or next of kin are or have been since the decease of the intestate, but that it is competent to show that the wife, children, or next of kin were dependent upon him for support before and at the time of his death." 128 Illinois Cent. R Co. v. Baches, supra; Benton v. Railroad Co., 55 Iowa, 496, 8 N. W. 330. § 139) EXPECTATION OF LIFE LIFE TABLES. 339 Co. V. Bayfield, "were to be the criterion, we might take their poverty into account; ♦ ♦ ♦ b^t as this may or may not have been recognized, and, if recognized, may have been very imperfectly re- sponded to, it is manifest that it can be no measure of the pecuniary injury the family received, or was likely to receive, from the death." But an exception to tliis rule is recognized in some cases where dam- ages are based upon the loss of prospective gifts, and especially in oases for the benefit of parents on account of the death of minor children, as tending to show the probability that such gifts would have been made.^-^ In Wisconsin ^^° and New York ^^^ such evi- dence seems to be admissible in all cases. EXPECTATION OF LIFE— LIFE TABLES. 139. Standard life tables are admissible to shoA^ the ex- pectation of life of the deceased and the beneficia- ries, but they are not conclusive. In order to show the expectation of life of the deceased and of the beneficiaries the Carlisle, Northampton, and other standard life tables may be introduced; ^^^ though such tables are not conclusive, 129 Potter V. Railway Co., 21 Wis. 373, 22 Wis. 615; Ewen v. Railway Co., 38 Wis. 613; Johnson v. Railway Co., 64 Wis. 425, 25 N. W. 223; Wiltse v. Town of Tilden, 77 Wis. 152, 46 N. W. 234; Staal v. Railroad Co., 57 Mich. 239, 23 N. W. 795; Cooper v. Railway Co., G6 Mich. 201, 33 N. W. 300; Mis- souri Pac. R. Co. V. Peregoy, 30 Kan. 424, 14 Pac. 7; Little Rock, M. R. & 'L\ Ry. Co. v. Leverett, 48 Ark. 'i33, 3 S. W. 50; International & (i. N. R. Co. V. Kindred, 57 Tex. 491; Illinois Cent. R. Co. v. Crudup, 63 Miss. 291; Chi- cago V. McCulloch, 10 111. App. 459; Illinois Cent. R. Co. v. Slater. 28 UL App. 73, contra. See City of Chicago v. Powers, 42 111. 109; Bnlliniore & P. R. Co. v. Mackey, 157 U. S. 72, 15 Sup. Ct 49L 130 Annas v. Railroad Co., 07 AVis. 40, 30 N. W. 2S2; Mcivoigue v. City of JanesvUle, 68 Wis. 50, 31 N. W. 298; Thompson v. .Joluiston, 80 Wis. 570, 57 ^. W. 298. 181 See post, p. 344, and note^. 132 Donaldson v. Railroad Co., 18 Iowa, 280; Coatea v. Railroad Co., 02 Iowa, 480, 17 N. W. 7(i0; Wordcn v. Railroad Co., 70 Iowa, 310, 41 N. W. 26; Gorman v. Railway Co., 78 Iowa. 50'J, 43 N. W. 30:?: Louisville, C. & L. R. Co. V. Mahony's Adm'.x, 7 Bush, 2.'?5; Cooper v. Railway Co., 00 Midi. 201, 33 N. W. 300; Iluun v. Railroad Co., 78 Mich. 513, 44 N. W. 502; Si«llar.s 340 DAMAGES FOR DEATH BY WRONGFUL ACT. (Ch. 12 since the jury should consider them with the other evidence in the case/^^ and may determine the probable length of life solely upon evidence of the age, health, habits, etc., of the person.^^* The computation s!iould be made from the death of the deceased; ^^^ and where, as in Iowa, the action is brought for the death of a minor to recover damages for the loss of benefits that would have accrued to the estate after his majority, it is error to compute the expectation from the age of 21.^^° The calculation of the amount of pecuniary loss should be based upon the joint lives of the deceased and of the beneficiary,^ ^^ V. Foster, 27 Neb. 118, 42 N. W. 907; Sauter v. Railroad Co., 6G N. Y. 50; Mississippi & T. R. Co. v. Ayres. IG Lea, 725; San Antonio & A. P. Ry. Co. V. Bennett, 76 Tex. 151, 13 S. W. 319. 133 Sclieffler v. Railway Co., 32 Minn. 518, 21 N. W. 711; McKeigue v. City of JanesVille, G8 Wis. 50, 31 N. W. 298; Georgia Railroad & Banking Co. V. Oaks, 52 Ga, 410; Georgia R. Co. v. Pittman, 73 Ga. 325; Central R. Co. V. Crosby, 74 Ga. 737; Central R. Co. v. Thompson, 76 Ga. 770. Where, mortality tables are introduced, and no other evidence is offered to show that the probability of life was greater or less than that shown by such tables, it was error to charge that the tables were not controlling, but should be given just such weight as the jury thought proper. Nelson v. Railway Co. (Mich.) 62 N. W. 993. 134 Beems v. Railway Co., 67 Iowa, 435, 25 N. W. G93; Deisen v. Railway Co., 43 Minn. 454, 45 N. W. 864; Gulf, C. & S. F. Ry. Co. v. Compton, 75 Tex. 667, 13 S. W. 667. Where the court erroneously gives positive directions for ascertaining the damages by certain mathematical calculations, the error is not cured by the subsequent statement that in the end the whole matter of damages is left entirely to the sound judgment of the jury as to what is prop- er under all the circumstances. St. Louis, I. M. & S. Ry. Co. v. Needham, ;;• C. C. A. 129, 52 Fed. 371. 135 Plaintiff's intestate being only five years old at the time of his death, it was error to admit in evidence tables giving no expectancy of life for any ago under ten years. Rajnowski v. Railroad Co., 74 Mich. 15, 20, 41 N. W. 847, S^9. 136 Walters v. Railroad Co., 41 Iowa, 71; Wheolan v. Railway Co., 85 Iowa, 167, .52 N. W. 119. 137 Rowley V. Railway Co., L. R. 8 Exch. 221, 42 Law J. Exch. 153, 29 Law- T. (N. S.) ISO; Illinois Cent. R. Co. v. Crudup, 63 Miss. 291. § 141) REDUCTION OF DAMAGES. 341 INTEKEST AS DAMAGES. 140. Interest as damages cannot be recovered, except EXCEPTION— In New York, by statute, the amount re- covered draws interest from the death. While the jury may, perhaps, take into account the time which has elapsed since the death, as affecting the amount of damages, it is improper for them, after computing the amount of damages, to add interest upon that sum.^^^ The New York act provides that the amount recovered shall draw interest from the death, which interest shall be added to the verdict, and inserted in the entry of judg- ment. This provision is not unconstitutional.^^^ The rate of in- terest is governed by the statute regulating interest in force at the time of the verdict.^*" The interest is to be added and inserted by the clerk.^*^ REDUCTION OF DAMAGES. 141. Property received by descent or otherw^ise upon the death of the deceased cannot be considered in re- duction of damages. Where the beneficiary acquires property by descent or otherwise upon the death of the deceased, it is not proper for the jury to reduce the damages on that account; ^*^ for it may fairly be assumed that the beneficiary would, in the natural course of events, have acquir- ed the property ultimately, and his damages are for the loss of bene- fits which he might have received during the remainder of the life i"8 Central R. Co. v. Sears, 6G Ga. 499; Cook v. Railroad Co., 10 llun. 4l'i; (K) was not excessive. Erwin v. Steamboat Co., 23 llun, 573; Quiun v. Power, 20 llun, 183. Dece- dent was a single woman 30 j^eais old, witho\il otlier near relatives than her parents, who were GG and 58 years old. Both were i)oor, and the father inlirm. and, for 20 years decedent had contributed $.'5(J0 (tr $100 per annum to their support. She was in good health, and receiving a salary of $8 or $9 per week. 157 08 X. Y. 523. 346 DAMAGES FOR DEATH BY WRONGFUL ACT. (Cll. 12 to charge that where the children are of full age, and living away from home, and self-supporting, no such pecuniary loss has been, sustained by them as can be recovered. It was said on appeal: '^Tiatever the rule may be in other states, there are many cases in this which in principle sustain the rulings of the trial judge. • ♦ * In but few cases arising under this act is the plaintiff able to show direct, specific pecuniary loss, ♦ ♦ * and generally the basis for the allowance of damages has to be found in the proof of the character, qualities, capacity, and condition of the deceased^ and in the age, sex, circumstances, and condition of the next of kin. The proof may be unsatisfactory, and the damages may be quite un- certain and contingent; yet the jurors in each case must take the elements thus furnished, and make the best estimate of damages they can. There seems to be no other mode of administering the statute referred to, and protection against excessive damages must be found in the power of courts in some of the modes allowed by law to revise or set aside the verdicts of juries." ^^* Held, that a verdict for $4,000 damages was not excessive. Bowles v. Railroad Co., 46 Hun, 324. In Kelly v. Railway Co., 14 Daly, 418, the only relatives of the deceased were a brother and sister in Ireland, and three nephews in New York. There was no evidence that he ever did anything to assist them, nor was it shown what the proceeds of his business were, nor what, if any- thing, was the value of his life to his next of kin. A verdict of $1,000 was held not excessive. The court points out that the courts of New York have not discriminated between the immediate and collateral kindred, and that in other states proof is necessary tliat the relatives had received or were likely to re- ceive support from the deceased. But where no facts appeared except that the deceased was a married woman aged 20 years, and a verdict of $4,000 was rendered, it was held that a new trial should be granted. Mitchell v. Railroad Co., 2 Hun, 535. 168 How slight is the protection thus afforded is illustrated by Pineo v. RaUroad Co., 34 Hun, SO, which was an action brought by the brother as ad- ministrator of a girl of 14, whose next of kin was supposed to be her father, who had abandoned his family years before, and concerning whom it was not known whether he was alive or dead. It was held that a refusal to charge that there was no evidence that the life of deceased had any pecuniary value to her father was not error, and that a verdict of $3,500 should not be set aside as excessive. In a dissenting opinion. Barker, J., pertinently remarks: "If we uphold this verdict, we do, in effect, say that the jury are omnipotent in this class of cases, and that there is no rule of law to be observed by them in assessing damages." § 1-12) DISCRETION OF JUBY. 347 Exccssice Verdict — Reduction of Amount. In cases where the amount of the verdict is deemed by the court to be excessive, it is a common practice to allow the verdict to stand upon condition that the plaintiff remit a part of the sum awarded.^ ^^ In Wisconsin, however, it is held that this practice is allowable only when the illegal portion of the judgment is readily severable from the rest, and hence there can be no remittitur in actions for death; ^®° and this view has been in several cases maintained in dissenting opinions.^®^ Inadequate Verdict. Where the damages are inadequate, the court may, in its discre- tion, set the verdict aside, and order a new trial.^*^ 159 pym V. Railway Co., 2 Best & S, 759, 31 L. J. Q. B. 249, 10 Wkly. R. 737, 6 L. T. (N. S.) 537, 8 Jur. (N. S.) 819; Id., 4 Best & S. 390, 32 L. J. Q. B. 377, 11 Wkly. R. 922, 10 Jur, (N. S.) 199; Little Rock & F. S. Ry. Co. v. Barker, 39 Ark. 491; Central R. R. v. Crosby, 74 Ga. 737; Rose v. Railroad Co., 39 Iowa, 246; Hutcbins v. Railway Co., 44 Minn. 5, 46 N. W. 79; Smith V. Railway Co., 92 Mo. 360, 4 S. W. 129; Demarest v. Little, 47 N. J. Law, 28; Mclntyre v. Railroad Co., 37 N. Y. 287. For recent cases discussing amount of damages properly allowed, see Nickerson v. Bigelow (D. C.) 62 Fed. 900; Farm- ers' L. & T. Co. V. Toledo, A. A. & N. M. Ry. Co. (C. C.) 67 Fed. 73; Weller v. Railway Co., 120 Mo. 635, 23 S. W. 1061, and 25 S. W. 522; RUey v. Transit Co., 10 Utah, 428, 37 Pac. 681; San Antonio St Ry. Co. v. Watzlazick (Tex. Civ. App.) 28 S. W. 115; Austin Rapid Transit Ry. Co. v. CuUen (Tex. Civ. App.) 29 S. W. 250; Id., 30 S. W. 578; Taylor, B. & H. Ry. Co. v. Warner (Tex. Civ. App.) 31 S. W. 06; Baltimore & O. R. Co. v. Stanley, 54 111. App. 215; Atchison, T. & S. F. R. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919; Welch v. Railroad Co., 86 Me. 552, 30 Atl. 116; Johnson v. Railroad Co., 80 Hun, 300, 30 N. Y. Supp. 318; Texas & P. Ry. Co. v. Hudman (Tex. Civ. App.) 28 S. W..388; Mexican Nat R. Co. v. Finch (Tex. Civ. App) 27 S. W. 102S; St Louis, I. M. & S. Ry. Co. v. Sweet 00 Ark. 550, 31 S. W. 571; Nelson v. Rail- way Co. (Mich.) 62 N. W. 993; International & G. N. R. Co. v. McNeel (Tex. Civ. App.) 29 S. W. 1133; Gulf, C. &. S. F. Ry Co. v. Johnsuu (Tex. Civ. App.) 31 S. W. 255. 180 Potter V. Railroad Co., 22 Wis. 615. 181 LitUe Rock & F. S. Ry. Co. v. Barker, 39 Ark. 491; Central R. R. v. Crosby, 74 Ga. 737; Rose v. Railroad Co., 39 Iowa, 240. i62Marianl v. Dougherty, 40 Cal. 27; Wolford v. INIining Co., 63 Cal. 4S:J; .Tames v. I{aiIroii(l Co., !»2 .Ma. 231, 9 South. 335. See Spriugctt v. Balls, 7 Best & S. 477, 4 Fost & F. 472. o4i> DAMAGES FOR DEATH BY WRONGFUL ACT. (Ch. 12 NOMINAL DAMAGES. 143. The cases are not agreed as to •whether or not, in the absence of actual pecuniary loss, nominal damages may be recovered. Since the damages are based upon the pecuniary loss of the bene- ficiaries, it would seem to follow that, if there is no pecuniary loss, the action cannot be maintained for the recovery even of nominal damages. This has been intimated in England,^ "^^ and held in Michigan,^®* Texas,^^^ and Wisconsin. ^*^^ Thus, in Duckworth v. Johnson, Pollock, C. B., said: "If there was no damage the action is not maintainable. It appears to me that it was intended by the act to give compensation for damage sustained, and not to enable persons to sue in respect of some imaginary damage, and so punish those who are guilty of negligence by making them pay costs." And in Hurst v. Detroit City Ry. Co., Long, J., said: "The statute does not imply that damages and pecuniary loss necessarily flow from the negligent killing." On the other hand, it has been held, or rather intimated, in a great number of cases, that damages do neces- sarily flow from the negligent killing, and that whenever there is proof of the negligence of the defendant, and of the existence of next of kin, the action lies for at least nominal damages; ^*^^ al- 163 Duckworth v. Johnson, 4 Hurl. & N. 653, 29 L. J. Exch. 25, 5 Jur. (N. S.) 630. See Boulter v. Webster, 13 Wldy. R. 289, 11 L. T. (N. S.) 598. In the earlier case of Chapman v. Rothwell, EL, Bl. & El. 168, Crompton, J., had said that section 1 of Lord Campbell's act appears to contemplate giving damages, wherever the party injured could have recovered them, whetlier nominal or not. The jury found a verdict of £1 for the widow, and 10s. for each of the children. The court granted a new trial, without imposing costs on the plain- tiff, on the ground that the jury had shrunk from their duty of deciding the issue. Springett v. Balls, 7 Best &, S. 477, 4 Fost. & F. 472. 164 Hurst V. Railway Co., 84 Mich. 539, 48 X. W. 44; Van Brunt v. Railroad Co., 78 Mich. 530, 44 N. W. 321; Charlevois v. Railroad Co., 91 Mich. 59, 51 N. W. 812. i65McGown V. RaUroad Co., 85 Tex. 289. 20 S. W. 80. iGG Regan v. Railway Co., 51 Wis. 599, 8 N. W. 292. 1C7 Chicago & A. R. Co. v. Shannon, 43 III. '538; Chicago & X. W. R. Co. v. Swett, 45 lU. 197; Chicago v. Scholteu, 75 111. 4G8; Quincy Coal Co. v. Hood. § 144) ALLEGATION OF DAMAGES. 349' though the question of nominal damages has in few cases been actu- ally involyed in the decision.^ ^^ ALLEGATION OF DAMAGES. 144. Substantial damages may be recovered under the gen- eral ad damnum in those jurisdictions where nom- inal damages may be recovered, i. e. ^vhere some damages are presumed. In jurisdictions -where nominal damages cannot be recovered, the damages must be specially pleaded. As has been stated, it is held in s(5me jurisdictions that the stat- ute necessarily implies pecuniary loss to the beneficiaries from the death, and that the action can consequently be maintained in the absence of pecuniary loss for at least nominal damages; while in other jurisdictions it is held that, without pecuniary loss, the ac- tion is not maintainable, even for nominal damages.^°* In the latter jurisdictions it appears to be necessary to allege in the complaint the facts showing pecuniary loss. Thus, in Michigan it Is said that the damages are special, and that it must be made to appear by proper allegations that pecuniary loss necessarily resulted.^ ^° And in Wisconsin it is held that the complaint must allege facts show- ing that loss, present or prospective, has resulted,^^^ although in 77 111. 68; Quin v. Moore, 15 N. Y. 432; Dickens v. Railroad Co., 1 Abb. Dec. 504; Ihl V. Railway Co., 47 N. Y. 317; Lehman v. City of Brooklyn, 29 Barb. 234; Atchison, T. & S. F. R. Co. v. Weber, 33 Kan. 543, G Pac. 877; Thomp. Neg. p. 1293. The jury are not restricted to an award of nominal damages only, because the evidence fails to show with any certainty the extent of a sis- ter's pecuniary loss, where she had been partly supported by deceased. Ohio & M. Ry. Co. V. Wangelin, 1.52 111. 138, 38 N. E. 760. See, also. North Chicago St R. Co. V. Brodie, l."j(i 111. 317, 40 N. E. 942. 168 Lyons' Adm'r v. Railroad Co., 7 Ohio St. o36; Kenney v. Railroad Co., 49 Hun, 535. 2 N. Y. Supp. 512; Korrady v. Railway Co., 131 lud. 261, 29 N. E. 1009. 188 See ante, p. 348. 170 Hurst V. Railway Co., 84 Mich. 539, 48 N. W. 44. 171 Regan v. Railway Co.. 51 Wis. 599, S X. W. :i92. But In Ewon v. Rail- road Co., 38 Wis. 613, where an element in the pecuniary injury was I lie loss 350 DAMAGES FOR DEATH BY WRONGFUL ACT. (Cll. 12 the latter state, where the complaint showed that the deceased was a laboring man, working for the defendant (without alleging that he received any compensation), and that he left a child of three years, it was held on demurrer that it sufficiently showed that the child had suffered pecuniary loss.^'^* On the other hand, in jurisdictions where it is held that nominal damages necessarily result from the death, it seems that a complaint is good on demurrer although it does not allege more than the death and the survival of beneficiaries. Thus, in New York, in an action for the benefit of a widow, the complaint was held good on demurrer notwithstanding that it contained no allegations that damages had been sustained, although the court declined to express an opinion whether, without further allegations, proof of substantial damages would be admissible,^ ^^ And, in an Indiana case, a complaint which showed that the deceased left a widow and infant children surviving was held good on demurrer although it did not directly allege that tho beneficiaries sustained actual damages; the court saying that the legal presumption is that the infant children and wife are en- titled to the services of a father and husband, and that such services are valuable to them.^'^* In order to allow proof of damages in these jurisdictions, it appears to be sufficient to allege that the bene- ficiaries have sustained damages in a certain amount^''' It has been held in Indiana, however, in an action by a father for the death of a minor child, that, in order to recover for loss of services beyond of SI pension cut off by the death of deceased, it was held uuuccessary to al- lege this fact in order to admit proof of it. 1T2 Kelley v. Railway Co., 50 Wis. 381, 7 N. W. 291. 1T8 Kenney v. Railroad Co., 49 Hun, 535, 2 N. Y. Supp. 512. 174 Korrady v. Railway Co., 131 Ind. 261, 29 N. E. 1069. ITS Safford v. Drew, 3 Duer, 627; Louisville, N. A. & a Ry. Co. v. Buck, 116 Ind. 566, 19 N, E. 453; Barron v. Railroad Co., 1 Biss. 412, Fed. Cas. No. 1,052; Serensen v. Railroad Co., 45 Fed. 407; Barnum v. Railway Co., 30 Minn. 461, 16 N. W. 364. See, also, Westcott v. Railroad Co., 61 Vt. 438, 17 Atl. 745; Ewen v. Railroad Co., supra; Kenney v. Railroad Co., supra. The dec- laration averred that by the death the widow and minor children were de- prived of their support and the children of their means of education, to the damage, etc. Hrhl, that such averments were sufficient to admit evidence of the ability of deceased to earn money. Chicago & A. Ry. Co. v. Carey, 115 111. 115, 3 N. E. 519. § 144) ALLEGATION OF DAMAGES. 351 the date of the beginning of suit, such damages must be specially averred.^^' And a California case has held that damages for funeral expenses, if recoverable at all, must be specially alleged.^^"' 176 Pennsylvania Co. v. Lilly, 73 In2, 25 N. E. 365. 3« Luther v. Winnisimmet Co., 9 Cush. 171; Sullons v. Railway Co., 74 Iowa, 659, 38 N. W. 545. Cf. Falsom v. Log-Driving Co., 41 Wis. 602. 37 Pollott v. Long, 58 Barb. 20. In Sininious v. Brown, 5 R. I. 299, the jury were allowed to consider evidence of protits lost by defendant's dam < iiusing water to set back on plaintiff.s mill. 358 WRONGS AFFECTING REAL PROPERTY. (Ch. 13 damages are measured by the depreciation in the value of the land caused thereby, not by the value of the trees when severed.^® It is sometimes said that, when full grown timber trees are cut and re- moved by a trespasser, the measure of damages is the value of the trees. The value of the trees is rather evidence of the amount of damages than its measure, but the result obtained in the case of tim- ber trees is the same in either case,^^ though it would not be for fruit or ornamental trees, or probably for growing timber trees.**' The same principles hold good when minerals are ^^Tongfully mined on plaintiff's land. The value of the coal or ore may be evidence of the amount in which the plaintiff has been damaged, but the meas- ure of damages is the diminished value of the realty.*^ This is also 88 Carter v. Pitcher, 87 Hun, 580, 34 N. Y. Supp. 549; Edsall v. Howell, 86 Hun. 424. 33 N. Y. Supp. 892; Dwight v. Railroad Co., 132 N. Y. 199, 30 N. E. 398; Nixon v. StillweU, 52 Hun, 353, 5 N. Y. Supp. 248; Montgomery v. Locke, 72 Cal. 75, 13 Pac. 401; mtchell v. Billingsley, 17 Ala. 391; Wallace V. Goodall, 18 N. H. 439; Lowery v. Rowland (Ala.) 16 South. 88. And see, as to other injuries, Fisher v. Naysmith (Mich.) 64 N. W. 19; Chicago & A. R. Co. V. Robbins, 54 111. App. 611; International & G. N. Ry. Co. v. Davis (Tex. Civ. App.) 29 S. W. 483; O'Connor v. Shannon (Tex. Civ. App.) 30 S. W. 1096; Louisville. N. A. & C. Ry. Co. v. Sparks. 12 Ind. App. 410, 40 N. E. .546; Southern Marble Co. v. Darnell, ^ Ga. 231, 21 S. E. 531. But cf. Board of Com'rs of Rush Co. v. Trees. 12 Ind. App. 479, 40 N. E. 535; Hurley v. Jones, 165 Pa. St. 34. 30 Atl. 499. 39 E. E. Bolles Wooden Ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. 398; Miller V. Wellman, 75 Mich. 353, 42 N. W. 843; Winchester v. Craig, 33 Mich. 205; Michigan Land & Iron Co. v. Deer Lake Co., 60 Mich. 143, 27 N. W. 10; Cotter v. Plumer, 72 Wis. 476, 40 N. W. 379; Webster v. Moe, 35 Wis. 75; earner v. Railway Co., 43 Minn. 375, 45 N. W. 713; Beede v. Lamprey, 64 N. H. 510, 15 Atl. 133; Kolb v. Bankhead, 18 Tex. 229; Central Railroad & Banking Co. v. Murray, 93 Ga. 256, 20 S. E. 129. Cf. Single v. Schneider, 24 Wis. 299; Gaskins v. Davis, 115 N. C. 85, 20 S. E. 188. *o Dwight V. Railroad Co., 132 N. Y. 199, .30 N. E. 398; Argotsinger v. Vines, 82 N. Y. 308; Nixon v. StillweU, 52 Hun, 353, 5 N. Y. Supp. 248. *i Forsyth v. Wells, 41 Pa. St. 291; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; U. S. v. Magoon, 3 McLean, 171, Fed. Cas. No. 15,707; Barton Coal Co. v. Cox. 39 Md. 1; Franklin Coal Co. v. McMillan, 49 Mo. 549. That the measure of damage is the value of the coal or ore at the top of the shaft, less the cost of raising it, see Aurora Hill Consol. Min. Co. v. 85 Min. Co., 12 Sawy. 355, 34 Fed. 515; Forsyth v. Wells, 41 Pa. St. 291; Cham- berlain v. CoUinson, 45 Iowa, 429; Austin v. Mining Co., 72 Mo. 535. That §§ 1-49-150) INJURIES TO REAL PROPERTY TRESPASSES. 359 the measure which has been applied to actions for injuries result- ing from the removal of lateral support,*^ for the destruction of a meadow, ■•^ and for the unlawful filling up of a mill pond."* If the plaintiff proves no actual damages, the trespass, nevertheless, enti- tles him to nominal damages.*^ Cost of Repairing. Where the injuries to the realty can be repaired, and that with- out greater expense than the diminution in the value of the land if no repairs were made, then the cost of restoring the realty to its condition before the trespass is the measure of damages.*' But to this must be added damages for the decreased value of the land during the time the plaintiff was deprived of its full use.*^ it is the value after it is severed, see Illinois & St. L. R. & C. Co. v. Ogle, 82 111. 627; McLean County Coal Co. v. Long, 81 111. 359; Omaha & Grant Smelting & Refining Co. v. Tabor, 13 Colo. 41, 21 Pac. 925; Sunny side Coal & Coke Co. V. Reitz (Ind. App.) 39 N. E. 541. But see Martin v. Porter, 5 Mees. & W. 351. 42 Gilmore v. Driscoll, 122 Mass. 199; Kopp v. Railroad Co., 41 Minn. 310, 43^ N. W. 73; Moellering v. Evans, 121 Ind. 195, 22 N. B. 989; McGuire v. Grant, 25 N. J. Law, 356. But see Thurston v. Hancock, 12 Mass. 220. 43 Ft. Worth & D. C. Ry. Co. v. Hogsett, 67 Tex. 685, 4 S. W. 365; Ft. Worth & N. O. Ry. Co. V. Wallace, 74 Tex. 581, 12 S. W. 227. But see Vermilya v. Railway Co., 66 Iowa, 606, 24 N. W. 234. For various rules as to the measure of damages for the destruction of crops, see King v. Fowler, 14 Pick. 238; Rich- ardson V. Northrup, 66 Barb. 85; Folsom v. Driving Co., 41 Wis. 602; Drake V. Railway Co., 63 Iowa, 303; 19 N. W. 215; Byrne v. Railway Co., 38 Minn. 212, 36 N. W. 339; Gulf, C. & S. F. Ry. Co. v. McGowan, 73 Tex. Aoo, 11 S. W. 336; Galveston, H. & S. A. Ry. Co. v. Parr (Tex. Civ. App.) 28 S. W. 264; Colorado Consolidated Land & Water Co. v. Hartman, 5 Colo. App. 150, 38 Pac. 62; Chicago & E, R. Co. v. Barnes, 10 Ind. App. 460, 38 N. E. 428; Hoi)- kins V. Commercial Co. (Mont.) 40 Pac. 865. ** Finley v. Hershey, 41 Iowa, 389. •«5 Jones V. Hannovan, 55 Mo. 462; Munroe v. Stickney, 48 Me. 462; Tootle V. Clifton, 22 Ohio St. 247. 4« Graessle v. Carpenter, 70 Iowa, 166, 30 N. W. 392; Harrison v. Klser, 79 Ga. 588; Seely v. Alden, 61 Pa. St. 302; Ziebarth v. Nye, 42 Minn. 541." 44 N. W. 1027; Koch v. Investment Co., 9 Wash. 405, 37 Pac. 703. But see Burtraw v. Clark, 103 Mich. 383, 61 N. W. 552; Nelson v. Village of West Duluth, 55 Minn. 497, 57 N. W. 149. *^ Cavanagh v. Durgin, 156 Mass. 466, 31 N. E. 643; Walters v. Chamber- lin, OTj Mich. 333, 32 N. W. 440; Graessle v. Carpenter, 70 Iowa, 166, 30 N. W. ;J92. 300 WRONGS AFFECTING KKAL PROPERTY. (Cll. l3 By the rule of avoidable consequences *^ the plaintiff can recover such damages for only what would be a reasonable time in which to repair.** Consequential Damacjes. Consequential damages may also be recovered, in addition to the damages already mentioned, when a proper case is presented. Thus a trespasser who pulled down a fence has been held liable for the value of cattle lost in consequence of the trespass,^" in addition to the value of the fence. Damages for injured feelings have been recovered in an action in the nature of trespass q. c. f. for the re- moval of a body from a cemetery lot."*^ A defendant who under- mines a store may become liable for a loss of profits caused there- by.°^ And one who destroys a dam may be liable for the loss of profits of a mill run by water supplied from the dam.'^* Exemplary Damages and Penaltm. Exemplary damages may also be recovered in an action for inju- ries to real estate when the trespass causing the damage was wan- ton or malicious.^* In some states it has been provided by statute that treble damages shall be recoverable for malicious or willful trespasses.^' <8 See ante, p. 64. 49 Ludlow V. Village of Yonkers. 43 Barb. 493; Whipple v. Weanskuck Co., 12 R. I. 311. BO Damron v. Roach, 4 Humph. 134. 61 Meagher v. Driscoll, 99 Mass. 281. 62 Shafer v, Wilson, 44 Md. 268. 63 White V. Moseley, 8 Pick. 356. 64 Cutler V, Smith, 57 111. 252; Smalley v. Smalley, 81 111. 70; Koenigs v. Jung, 73 Wis. 178, 40 N. W. 801; Reynolds v. Braithwaite, 131 Pa. St. 416. 18 Atl. 1110; Brown v. Allen, 35 Iowa, 306; Craig v. Cook, 28 Minn. 232, 9 N. W. 712; Trauerman v. Lippincott, 39 Mo. App. 478; U. S. v. Taylor, 35 Fed. 484. But see McCorraack v. Showalter, 11 lud. App. 98, 38 N. E. 875; Fishbume v. Engledove (Va.) 22 S. E. 354. 5 5 Reed V. Davis, 8 Pick. 514; Michigan Land & Iron Co. v. Deer Lake Co., 60 Mich. 143, 27 N. W. 10; Barnes v. Jones, 51 Cal. 303. §§ 151-152) INJURIES TO REAL PROPERTY NUISANCE. 361 SAME— NUISANCE. 151. For nuisances -which are permanent, the measure of damages is the loss in the market value of the premises. 152. For nuisances -which are not permanent, the ordinary- measure of damages is the loss in rental value plus the expenses incurred in abating the nuisance and restoring the premises to their former condition. When the nuisance of which the plaintiff complains is one which be cannot abate, and of which the law presumes the continuance,^' the damage is estimated at the permanent depreciation in the mar- ket value of the premises.®^ Where the nuisance is of a temporary nature, the wrongful continuance of which will not be presumed, the measure of damages is the actual loss which the plaintiff has sustained up to the time of bringing the action.^^ This is measured, in general, by the loss in the rental value of the premises; that is, the value of the use of the land.*^^ To this may be added the ex- pense of restoring the injured premises to the condition in which 5 8 As when the conduct is authorized on condition that compensation be made for damages. See ante, p. S3. As to special damages, see Rose v. Miles, 4 Maule & S. 101; Booth v. Ratte, 15 App. Cas. 188. 5- Illinois Cent. R. Co. v. Grabill, 50 111. 241; Vandorslice v. City of Phila- delphia, 103 Pa. St. 102; Fowle v. Northampton Co., 112 Mass. SM; Finley v. Hershey, 41 Iowa, 389; O'Connor v. Railroad Co., 56 Iowa, 735, 10 N. W. 2G3; •Givens v. Van Studdiford, 86 Mo. 149; Consolidated Home Supply Ditch & Reservoir Co. v. Hamlin (Colo. App.) 40 Pac. 582. "Where the nuisance can be abated, it has been held that there can be no recoveiy for permanent in- juries. Cumberland & Oxford Canal Corp. v. Hitchings, Go Me. 140; Ilattield T. Railroad Co., 33 N. J. Law, 251; Hopkins v. Railroad Co., 50 Cal. 190; Bat- tishill V. Reed, 18 C. B. 696. And see Foote v. "^'ater Co. (Iowa) 62 N. W. 048. ■'S See ante, p. 82; Bielman v. Railway Co., 50 Mo. App. 151; Cumberland & O. Canal Corp. v. Hitchings, 65 Me. 140; Hale v. Cli.Trd Union [1891] 1 Ch. 29:3. 58 City of Chicago v. Huenerbein, 85 111. .594; Francis v. Schoellliopf, 53 N. Y. 152; Herbert v. Rainey (Pa. Sup.) 29 .Ml. 725; Loughran v. City of Des Moines, 72 Iowa, 382, 34 N. W. 172; Culf, C. cV: S. F. Ry. Co. v. IIcKsley, 62 Tex. 593. 3G2 WRONGS AFFECTING REAL PROPERTY. (Ch. 15 they were before the nuisauce began.®" If the plaintiff has abated the nuisance, expenses so incurred may be recovered.'^ Other in- juries, indirect, but not too remote, may be compensated in an action, for a nuisance. Thus, the profits of an established business may be recovered;®^ damages by sickness including medical expenses*^ and loss of time; ®* and for inconvenience caused by the nuisance.** M%en Nominal Damages Recoverable. Annoyance, to constitute a nuisance, must cause substantial dam- age; for damages are the gist of the wrong, unless there is a physic- al invasion of or interference with another's property, in which case the presence or absence of actual damage is immaterial. The creating or continuing of a nuisance in any form, which in- volves the physical invasion of or interference with another's prop- erty, is a wrong for which at least nominal damages may be recov- ered." Neither absence of actual damages, nor even benefit from the nuisance,^^ nor abatement, will prevent such recovery.®^ Thus the overhanging of another's land is a nuisance, for which an actioD will lie without allegation or .proof of actual damages.®'' So, to cause water to flow wrongfully upon another's land in such a way 60 Jutte v. Hughes, 67 N. Y. 267; Emery v. Lowell. 109 Mass. 197. 61 Jutte V. Hughes, 67 N. Y. 267; Shaw v. Cummiskey, 7 Pick. 76. 62 St. John V. Mayor, etc., 13 How. Prac. 527; Park v. Railway Co., 43^ Iowa, 636. 63 Pierce v. Wagner, 29 Minn. 335, 13 N. W. 170; Loughran v. City of Des Moines, 72 Iowa, 382, 34 N. W. 172; Gulf, C. & S. P. R. Co. v. Richards (Tex. Civ. App.) 32 S. W. 96. 6 4 Loughran v. City of Des Moines, 72 Iowa, 382, 34 N. W. 172; Lockett v. Railway Co., 78 Tex. 211, 14 S. W. 5r>4. 6 5 Baltimore & P. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719; Churchill v. Water Co. (Iowa) 62 N. W. 646; Randolf v. Town of Bloomfield, 77 Iowa, 50, 41 N. W. 562; Berger v. Gaslight Co. (Minn.) 62 N. W. 336; Columbus, H. V. & T. R. Co. v. Gardner, 45 Ohio St. 309, 13 N. E. 69; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719. But cf. Brown v. Watson, 47 Me. 161. «6 Alexander v. Kerr, 2 Rawle (Pa.) 83; Munroe v. Stickney, 48 Me. 462. • 7 Francis v. Schoellkopf, 53 N. Y. 152; Wesson v. Iron Co., 13 Allen (Mass.) 95; Kimel v. Kunel, 4 Jones (N. C.) 121; Marcy v. Fries, 18 Kan. 353. 6 8 Call V. Buttrlck, 4 Cush. 345; Gleason v. Gai-y, 4 Conn. 418. 60 Bellows V. Sackett, 15 Barb. 96; Codman v. Evans, 7 Allen, 431; Tucker V. Newman, 11 Adol. & E. 40. §§ 10O-154) INJURIES TO REAL PROPKRTY WASTE. 363- that its continuance would create an easement is sufiQcient to jus- tify an injunction, irrespective of damages.'^" But when the act complained of is lawful in itself, and actionable only because of harmful consequences, a different rule prevails. Then it is only when some actual damage is done that a right of action ensues. The damage must be substantial. "Everything must be looked at from a reasonable point of view. The law does not regard a trifling inconvenience, but only large, sensible incon- veniences and injuries, which sensibly diminish the comfort, enjoy- ment, or value of the property which they affect." ^^ SAME— WASTE. 153. The measure of damages for -waste is the duninutioiL in the market value of the inheritance. 154. In many states double or treble damages for ■waste are imposed by statute. The measure of damages for waste committed by the owner of a particular estate is the diminution in the value of the estate in re- version or remainder,'^ ^ Where waste has been committed by re- moving fixtures, or cutting trees, the recovery is not limited to the value of fixtures, or of the trees after severance.'^* By the statute of Gloucester ''* a penalty of treble damages was imposed in certain cases of waste. This statute is in force in some states.''^ In others there are similar statutes, giving double or treble damages, and usually imposing an additional penalty of for- feiture of the place wasted.^® -0 Learned v. Castle, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11, and eases cited. 712 Jag. Torts, 778; Pickard v. Collins, 23 Barb. (N. Y.) 444; Rhodes v. Dunbar, 57 Pa. St. 274; Barnes v. Hathorn, 54 Me. 124; St. Helen's Smelt- ing Co. V. Tipping, 11 H. L. Cas. 642. "2 Van Deusen v. Young, 29 N. Y. 9; Harder v. Harder, 2(j Barb. 409;. White v. Stoner, 18 Mo. App. 540. For waste by a vendor, see Worrall v. Munn, 53 N. Y. 185. 73 White v. Stoner, 18 Mo. App. 540; HosUing v. Phillips, 3 Exch. IGG. 74 G Edw. I. c. 5. 70 Sackett v. Sackett, 8 Pick. 309. See 3 Bin. (Pa.) Append. G02. 7 6 Xew York, 4 Rev. St. 1SS3, § IO-jU; Mi<-liigan, llow. Ann. St ISS.'^, I I'Mo; Wisconsin, Sanb. &, B. Ann. St. 1889, § 31T<;; Iowa, .M(< llaitrs Arm. 3G4: WRONGS AFFECTING REAL PROPERTY. (Cll. 13 CONTRACTS TO SELL REAL PROPERTY — ERE ACH BY VENDOR. 155. The proper measure of damages for the breach by a vendor of his contract to sell real property is the difference between the contract price and the mar- ket value of the land at the time of the breach, plus any part of the purchase price -w^hich has been paid, w^ith interest. EXCEPTION — In some states the vendee can recover, in addition to purchase money advanced, vrith in- terest, only nominal damages for a breach of the contract due to failure of the vendor's title, provided the vendor acted in good faith. In Pennsylvania, the good faith of the vendor is immaterial. The Better Rule. In most Ameiican states a vendee can recover substantial dam- ages for his vendor's breach of contract to convey real property; ^^ that is, the vendee is given the benefit of his bargain. This is of particular importance when the property has risen in value after the contract of sale was entered into.^® The value of the land in estimating the damages is taken at the time it should have been conveyed under the contract.^" Code 188S, §§ 4568, 4569; Minn. St. 1894, §§ 5882, 5883; Missouri, 2 Rev. St 1889, § &401; Massachusetts, Pub. St 1882, p. 1038; Indiana, Rev. St 1894. § 287 (Rev. St 1881, § 286); Kentucky, Gen. St 1894, § 2328. 7 7 Hopkins v. Lee, 6 Wheat 109; Plummer v. Rigdon, 78 HI. 222; Loomis V. Wadhams, 8 Gray, 557; Brigham v. Evans, 113 Mass. 538; Muenchow v. Roberts, 77 Wis. 520, 46 N. W, 802; Skaaraas v. Finnegan, 31 Minn. 48, 16 N. W. 456; Shaw v. Wilkins' Adm'r, 8 Humph. (Tenu.) 647; Case v. Wol- cott 33 Ind. 5; Duncan v. Tanner, 2 J. J. Marsh. (Ky.) 399; Robinson v. Heard, 15 Me. 296; Whiteside v. Jennings, 19 Ala. 784; Wells v. Abernethy, 5 Conn. 222; Kempner v. Cohn, 47 Ark. 519, 1 S. W. 869; Irwin v. Askew, 74 Ga. 581; Nichols v. Freeman, 11 Ired. 99; Barbour v. Nichols, 3 R. L 187; Cade v. Brown, 1 Wash. 401, 25 Pac. 457; Dunshee v. Geoghegan, 7 Utah, 113, 25 Pac. 731; Russ v. Telfener, 57 Fed. 973. 7 8 Hopkins v. Lee, 6 Wheat 109. 7 9AUen V. Atkinson, 21 Mich. 351; Combs v. Scott 76 Wis. 6(52, 45 N. W. § 155) CONTRACT OF SALE BREACH BY VENDOR, 365- Nominal Damages Only — The English Rule. In England an anomalous rule of damages has been adopted in- actions against vendors for breach of contracts to sell real property. The leading cases establishing the rule in that country are Flureau V. Thomhill ®° and Bain v. Fothergill." The uncertainty of English titles is assigned as the reason for the rule, but such considerations have no place under our registry laws. The English rule has been followed, however, in some states. In Pennsylvania this is carried so far that only nominal damages are recoverable even in cases where the vendor knew that his title was not good.^^ But in the other states which follow the English rule it is necessary that the vendor act in good faith or he is held liable for substantial dam- ages.^ ^ So, where the title was in a third person, a vendor has been 532; Plummer v. Rigdon, 78 111. 222; Whiteside v. Jennings, 19 Ala. 784. That the necessary expense incurred by the plaintiff in searching the title may be recovered, see Cal. Civ. Code, § 3306. And cf. Sanderlin v. Willis,. 94 Ga. 171, 21 S. E. 291. For cases of failure of the title to part of the land, see Hiner v. Richter, 51 HI. 299; Moses v. Wallace, 7 Lea, 413; Walker v. France, 112 Pa. St. 203, 5 Atl. 208. For breach of a contract to give a lease, the measure of damages is the value of the lease; that is, the difference between the value of the premises for the term and the rent which was to be paid. Loyd v. Capps (Tex. Civ. App.) 29 S. W. 595; Paposkey v. Munk- witz, 68 Wis. 322, 32 N. W. 35; Trull v. Granger, 8 N. Y. 115; Knowles v. Steele, 59 Minn. 452, 61 N. W. 557. Expenses necessarily caused by the lessor's breach may be added. Yeager v. Weaver, 64 Pa. St 425. But see, for expenses not recoverable, Eddy v. Coffin, 149 Mass. 463, 21 N. E. 870-,^ Cohn V. Norton, 57 Conn. 480, 18 Atl. 595. »o 2 W. Bl. 1078. 81 Ij. R. 7 H. L. 158. It was said by Parke, B., in Robinson v. Harman, 1 Exch. 850, that "contracts for the sale of real estate are merely on condi- tion that the vendor has a good title, so that, when a person contracts to sell real property, there is an imi)lied undertaking that, if he fail to make a good title, the only damages recoverable are the expenses -which the ven- dee may be put to in investigating the title." 82 Burk V. Sorrill, 80 Pa. St. 413; McCafferty v. Griswold, 99 Pa. St. 276; McXair v. Compton, 35 Pa. St. 2.'}, But see Hennershotz v. Gallaglicr (I'a. Sup.) 16 Atl. 518. 83 Pumpelly v. Phelps, 40 N. Y. 59; Conger v. Weaver, 20 N. Y. 140; Mar- graf V. Muir, .57 N. Y. 155; Walton v. Meeks, 120 N. Y. 79, 2:\ N. E. 1115; Rinoer v. Collins, 156 Pa. St. 342, 27 Atl. 28; Donnor v. Rcdonbaugh. 61 Iowa, 2(;9, 16 N. W. 127; Yokom v. McP.ridc, 56 Iowa, 139, 8 N. W. 79.'.; Dunniea 366 WRONGS AFFECTING REAL PROPERTY. (Ch. 13 held liable beyond nominal damages, even though the vendor rea- sonably believed that he could procure a conveyance of the title of the owner.** Fraudulent RepresenVi lions by Vendor. Where a vendor makes fraudulent statements, in order to induce s. vendee to purchase land, as to the quantity, boundaries, or con- dition and improvements of the land contracted to be sold, the meas- ure of damages is the difference between the value of the land as it is and its value if it had been as represented.*'^ SAME— BREACH BY VENDEE. 156. The measure of damages for the breach by a vendee of his contract to purchase real property is the dif- ference bet-ween the contract price and the value of the land. When a purchaser of real property fails to carry out his contract, the vendor can recover such an amount as damages as will make him whole. If the land was worth less than he sold it for, or if it depreciated in value between the time the contract was made and its breach by the vendee, the vendor can recover the difference in value of the land and what the vendee agreed to pay for it.*® In some cases the vendor has been permitted to recover the contract price,*' but this gives him more than compensation, since he still V. Sharp, 7 Mo. 71; Hemdon v. Venable, 7 Dana (Ky.) 371; Baltimore Per- manent Bldg. & Land Soc. v. Smith, 54 Md. 187; Sanford v. Cloud, 17 Fla. 532; Tracy v. Gunn, 29 Kan. 508. «< Pnmpelly v. Phelps, 40 N. Y. 59; Heimburg v. Ismay, 35 N. Y. Super. €t. 35. «6 Drew V. Beall, 62 IlL 164; Krumm v. Beach, 96 N. Y. 398; Page v. Wells, 37 Mich. 415; Gates v. Reynolds, 13 Iowa, 1; Hahn v. Cummings, 3 Iowa, 583. «6 Allen V. Mohn, 86 Mich. 328, 49 N. W. 52; Old Colony R. Co. v. Evans, 6 Gray, 25; Ellet v. Paxson, 2 Watts & S. (Pa.) 418; Griswold v. Sabin, 51 N. H. 167; Porter v. Travis, 40 Ind. 556; Anderson v. Truitt, 53 Mo. App. 590; Hogan v. Kyle, 7 Wash. 595, 35 Pac. 399. But see McGuinness v. Whalen, 16 R. I. 558, 18 Atl. 158. 8- Richards v. Edick, 17 Barb. 260; Goodpaster v. Porter, 11 Iowa, 161; Inhabitants of Alna v. Plummer, 4 Me. 258. § 157) BREACH OF COVKNANTS SEISIN AND RIGHT TO CONVEY. 367 has the land. WTiere the vendee has been in possession, interest on the whole amount of purchase money unpaid has been allowed as additional damasres.*" BREACH OF CO-TENANTS— SEISIN AND RIGHT TO CONVEY. 157. The measure of damages for breach of a covenant of seisin or right to convey is the purchase price paid, ■with interest, and costs of the ejectment suit. For the breach of covenants of title, the rules of damages are anomalous. The can be explained only through the feudal origin of the covenants themselves. The rules as they are in force in most of the states operate to restore the parties to the position they were in before any contract was made, and not to give such damages as would place the covenantee in as good a position as though the contract made by the covenantor had been performed. The covenants of seisin and of right to convey are the same, so far, at least, as the measure of damages for their breach is con- cerned. The covenantee does not get the benefit of his- bargain, as he should, but only recovers what he has paid for the land.*® If the eviction is only partial, a proportionate amount of the consid- eration paid is recovered.^" If there has been no eviction, only nom- inal damages can be recovered.®^ Interest on the purchase price, or any part of it, which has been paid, may be recovered as a part of the damages.®^ When the covenantee has defended an ejectment «8 Stevenson v. Maxwell, 2 N. Y. 408; Fludyer v. Cocker, 12 Ves. 25. «9 Weber v. Anderson, 73 111. 439: Bingbam v. Weiderwax, 1 N. Y. 509; Pitcber v. Livingston, 4 Johns. 1; Nicliols v. Walter, 8 Mass. 243; Hodges V. Tbayer, 110 Mass. 28G; Mclnnis v. Lyman, 62 Wis. 191, 22 N. W. 405; Kimball v. Biyant, 25 Minn. 4'.m; Montgomery v. Reed, G9 Me. 510; Martin V. Long, 3 Mo. 391. But see Smitb v. Strong, 14 Ficlc. 128, a case wIkto tbe consideration paid could not be proved. 90 Tone v. Wilson, 81 111. 529; Gutlirie v. Pugsley, 12 Jobus. 12(5; Morris v. Pbelps, 5 Jobns. 40; Cornell v. .latkson, 3 Cusb. (Mass.) 50G; Mcliiuis v. Lyman, 02 Wis. 191, 22 N. W. 40.1; Bibb v. Freeman, 59 Ala. 012. Cf. Hart- ford & Salisbury Ore Co. v. Miller, 41 Conn. 112. »i Smith V. Hughes, 50 Wis. 620, 7 N. W. 6.5:5; ("ockrcll v. rrodor, 65 Mo. 41; Norman v. Winch, 65 Iowa, 2G:{, 21 N. W. 59S. 02 liicklurd v. Page, 2 .Mass. 4."j5; Siimricr v. Williams, S Ma.s.s. 162; Smitb oG8 WRONGS AFFKCTING REAL PROPERTY. (Cll. 13 suit bi'ouglit by the rightful owner, and has been defeated, he may recover from the covenantor the costs of the suit.''^ In most states this includes counsel fees,"* but not in all.°^ SAME— WARRANTY AND QUIET ENJOYMENT. 158. The measure of damages for breach of a covenant of -warranty or quiet enjoyment is in most states the purchase price paid, with interest, for the time the covenantee is liable for mesne profits, plus the costs of any suit brought to try the title. EXCEPTION — In a few states the measure of damages for breach of these covenants is the value of the land at the time of eviction. The Consideration as the Measure. In nearly all the states the damages which are given on covenants of warranty and quiet enjoyment are based on the old feudal doc- trine of warranty, and the value of the land at the time of the cove- nant is made the measure. But the value of the land is taken at the price which was paid for it. Though this may be contrary to all the fundamental principles of damages, it is certainly the rule in the great majority of states.®^ Under this rule a covenantee, who is evicted by one having a superior title, cannot recover from his war- rantor for improvements which he has erected on the land; ®^ though, V. Strong, 14 Pick. 128; Martin v. Long, 3 Mo. 301; Lawless v. Collier's Ex'rs, 19 Mo. 480; Brandt v. Foster, 5 Iowa, 289. S3 Sumner v. Williams, 8 Mass. 1G2; Rickert v. Snyder, 9 Wend. 416; Staats V. Ten Eyck, 3 Caines, Cas. 111. 9* Staats V. Ten Eyck, 3 Caines, Cas. Ill; Rickert v. Snyder, 9 Wend. 41G; Ryerson v. Chapman, G6 Me. 557. 95 Williams v. Bnrg, 9 Lea, 455; Jeter v. Glenn, 9 Rich. Law, 374; Tunier V. Miller, 42 Tex. 418. 9 6 Staats v. Ten Eyck, 3 Caines, Cas. Ill; Harding v. Larkin, 41 111. 413; Devine v. Lewis, 38 Minn. 24, 35 N. W. 711; Brandt v. Foster, 5 Iowa, 287; Lambert v. Estes, 99 Mo. 604, 13 S. W. 284; Alvord v. Waggoner (Tex. Civ. App.) 29 S. W. 797; Rash v. Jenne, 26 Or. 169, 37 Pac. 538. But see Brooks V. Black, 68 Miss. 161, 8 South. 332; Taylor v. Wallace (Colo.) 37 Pac. 963. 97 Pitcher v. Livingston, 4 Johns. 1; Hunt v. Raplee, 44 Hun, 149. But see Ela v. Card, 2 N. H. 175. § 159) BREACH OF COVENANTS AGAINST INCUMBRANCES. 869 as has been seen, the value of snch improvements is deducted from the mesne profits, which are recovered by the real owner.®* When- ever the covenantee is liable for mesne profits, he can recover in- terest on the consideration paid for the same length of time that he ^s so liable for the mesne profits.'*® There may be a recovery, also, as part of the damages, of the costs of any suits brought or defended in settling the title to the land,^*'° provided the costs were incurred in good faith.^°^ Costs may include attorney's fees.^"* The Value at Eiiiiion as the Measure. In Massachusetts and a few other states the measure of damages awarded on the breach of covenants of warranty and quiet enjoy- ment is the value of the land at the time of the eviction.^"* This, of course, includes improvements.^^* SAME— AGAINST INCUMBRANCES. 159. The measure of damages for breach of a covenant ag^ainst incumbrances is: (a) For a permanent incumbrance, the diminution in the value of the premises due to the incumbrance, — not exceeding, in most states, the consideration paid; in others, not exceeding the value of the land (p. 270). • 8 Ante, p. 354. • 9 Cox V. Homy, 32 Pa. St. IS; Hutcliins v. Roundtree, 77 Mo. 500. 100 Bennet v. Jenkins. 13 Johns. 50; Swartz v. Ballon, 47 Iowa, 188. 101 Ryerson v. Chapman, GO Me. 557. 102 Harding v. Larkin, 41 111. 413; Swartz v. BaUou, 47 Iowa, ISS; Rickert V. Snyder, 9 Wend. 416; Miservey v. SneU (Iowa) G2 N. W. 767. Contra, Leffingwell v. Elliott, 10 Pick. 204; Turner v. Miller, 42 Tex. 419. 103 Norton v. Babcock, 2 Mete. (Mass.) 510; Furnas v. Durgiu, 119 Mass. 500; Hardy v. Nelson, 27 Me. 525; Keeler v. Wood, 30 Vt. 242; Sterling v. Peet, 14 Conn. 245; Weeks v. Barton (Tex. Civ. App.) 31 S. W. 1071 (but see Gass V. Sanger [Tex. Civ. App.] 30 S. W. 502). For failure of title of one of several parcels the damage is the value of that parcel. Grant v. Hill (Tex. Civ. App.) .30 S. W. 0.52. 104 Coleman v. 15:1 Hard's Heirs, 13 La. Ann. 5L2; iJmiiiy v. Iluiikiiison, 27 Beav. .505. LAW UA.M.— 21 370 AVUONGS Al'TKCTING RKAL PliOPKRTY. (Ch. 13 (b) For incumbrance "which causes a total eviction, the consideration with interest and costs in most states, or the value of the land -with interest in others; for a partial eviction, a proportionate amount (p. 370). (c) For a removable incumbrance, the reasonable ex- pense of removing it, not exceeding the considera- tion or the value of the land (p. 371). Permanent Incumbrances. When a grantor has conveyed with a covenant against incum- brances, and it turns out that there is a permanent incumbrance on the land, such as a right of way or other easement, the grantee is entitled to such a sum as will compensate him for the decreased value of the land, regarded as a permanent injury.^"^ The amount I'ecoverable is limited, however, by the sum which could be recovercnl for a total loss of the land.^°® Eviction Total or Partial.. An incumbrance may be such that it causes the eviction of the covenantee. In such case the amount of recovery is measured by the same rules as a recovery on the breach of a covenant of war- ranty, and the same conflict in the cases exists.^"'^ The measure of damages is either the consideration paid, with interest and costs,^"^ or the value of the land, with interest from the time of eviction.^"^ When the eviction is temporary only, as by an outstanding term of years or a dower interest, the measure of dajnages is the value of the outstanding interest.^ ^° For a partial eviction, the damages 105 Bronson v. Coffin, 108 Mass. 175; Harlow v. Thomas, 15 Pick. GG; Grant V. Tallman, 20 N. Y. 191; Mackey v. Harmon, 34 Minn. 168, 24 N. W. 702; Kellogg V. Malin, 62 Mo. 429; Mitchell v. Stanley, 44 Conn. 312. IOC Clark v. Zeiglor, 79 Ala. ;J4G; Koesteubader v. Peirce, 41 Iowa, 204. 107 See ante, p. 368. 108 Dimuiiek v. Lockwood, 10 Wend. 142; Grant v. TaUman, 20 N. Y. 191; Howell V. Moores, 127 111. 67, 19 N. E. 8G3; Patterson y. Stewart, 6 Watts & S. (Pa.) 527; Stewart v. Drake, 9 N. J. Law, 139; McGuftey v. Humes, 85 Tenn. 26, 1 S. W. 506; Jenkins v. .Tones, 9 Q. B. Div. 128. 109 Barrett v. Porter, 14 Mass. 143; Horsford v. Wright, Kirb. (Conn.) 3. 110 Rickert v. Snyder, 9 \^■end. 416; Terry v. Drabenstadt, 68 Pa. St. 400; § 160) BREACH OF COVENANTS IN LEASES. 371 recoverable are proportioned to the value or price of the part lost, not exceeding, of course, the amount which could be recovered for a total eviction.^ ^^ Removable Incumbrances. Where incumbrances exist, such as mortgages, which can be re- moved by the payment of money, the expense of removing the in- cumbrance is the measure of the covenantee's damage; ^^- but this must not exceed the price or value of the land as the case may be,^^' The covenantee must not pay more than is necessai'j in removing the incumbrance/^* 160. SAME ^COVENANTS IN LEASES. When any of the foregoing covenants occur in leases, the same rules govern the damages for their breach as when they are found in deeds.^^^ The other covenants usually inserted in leases are mere jcontracts, for the breach of which the principles of damages have already been discussed.^ ^' Tierney v. Whiting, 2 Colo. 620. But see Harrington v. Mni-ph.v. 109 Mass. 299. Ill Harlow v. Thomas, 15 Pick. (Mass.) 66; Wright v. Nipple. 02 Ind. 310. iizPrescott V. Trueman, 4 Mass. 627; Donahoe v. Emei-y, 9 Mete. (Mass.) 63; Winslow v. McCall, 32 Barb. 241; Hall v. Dean, 13 Johns. 10.1; Hurd V. Hall, 12 Wis. 112; Ward v. Ashbrook. 78 Mo. 515; Dilhihunty v. Railway Co., 59 Ark. 699, 27 S. W. 1002, and 28 S. W. 657. And see, for cases giving nominal damages, McGuckin v. Milbank, 83 Hun, 473, 31 N. Y. Supp. 1049; Grant v. Tallman, 20 N. Y. 191; Tufts v. Adams, 8 Pick. 547. 113 Johnson v. Collins, 116 Mass. 392; Grant v. Tallman, 20 N. Y. 191; Bailey v. Scott, 13 WMs. 618. 114 Bradshaw v. Crosby, 151 Mass. 237, 21 N. E. 47; Coburn v. Litchfield, 132 Mass. 449. For breach of covenants to remove incumbrances, see Som- ers V. Wright, 115 Mass. 292. 115 Dobbins v. Duquid, 65 IIL 404; Sheets v. Joyncr, 11 lud. App. 205. ;;S X. E. 830; Clark v. Fisher, 54 Kan. 403, 38 I'ac. 41».;; Wetzel v. Kii-licn-ek laintiff is entitled to such damages as would place her in as good a position pecuniarily as she would have been in if the contract had been fulfilled.^ The actual outlay in preparation for the marriage may be recovered, if it is specially pleaded.'^ Nonpecuniary Losses. The nonpecuniary losses caused by a breach of promise of mar- riage include the injury to reputation,® wounded affections, mortifi- cation or distress of mind, and the like.' The amount to be awarded * Coolidge V. Neat, 129 Mass. 146; Grant v. Wiley, 101 Mass. 356; Har- rison V. Swift, 13 Allen, 144. 6 Bennett v. Beam, 42 Mich. 346, 4 N. W. 8; Berry v. Da Costa, L. R. 1 C. P. 331; Miller v. Rosier, 31 Mich. 475; McPherson v. Ryan, 59 Micb. 33, 26 N. W. 321; Rutter v. Collins, 103 Micb. 143, 61 N. W. 267; Crosier v. Craifj, 47 Hun, 83; Cbellis v. Chapman, 125 N. Y. 214, 26 N. E. 308; KnifiPen v. McConnell, 30 N. Y. 285; Olson v. Solverson, 71 Wis. 663, 38 N. W. 329; Rich- mond V. Roberts, 98 111. 472; Douglas v. Gausman, 68 111. 170; Harrison v. Cage, Cartb. 467; Johnson v. Travis, 33 Minn. 231, 22 N. W. 624; Lawrence V. Coolie, 56 Me. 187. Defendant's reputation for wealth may be shown. Stratton v. Dole. 45 Xeb. 472, 63 N. W. 875; Ortiz v. Navarro (Te.\. Civ. App.) 30 S. W. 581; Stribley v. Welz, 8 Ohio Cir. Ct R. 571. Evidence of wealth should be confined to general reputation. Kniffen v. McCounell, 30 N. Y. 285. Plaintiffs lack of property may be shown. Vandcrpool v. Ricli- ardson, 52 Mich. IV-MJ, 17 N. W. 9'M. « I.awrence v. Cooke, 56 Me. 187. Cf. Miller v. Rosier, 31 Mich. 475. 7 Glasscock v. Shell, 57 Tex. 215. Sec, also, Stribley v. Welz, 8 Ohio Cir. Ct. R. 571. • Johnson v. Caulkiiis, 1 Johns. Ca.s. 110; (Joddurd v. Wostcott, 82 Mit^h. 180, 188. 46 N. W. 242. 6 Harrison v. Swift, i:; .\llcii. 114; Wells v. l'a(l;;rU, S IJarb. :V2:\; .^li.;ili:in 374 BREACH OF MARRIAGE PROMISE. (Ch. 14 for such items of injury is necessarily left to the sound discretion of the jury.^° If their verdict is so excessive or inadequate as to indicate passion or prejudice, it may be set aside.^^ As in other cases where the loss is nonpecuniary and the damages are discre- tionary with the jury, evidence in aggravation or mitigation is ad- missible to affect their estimate. Same — Circumstances of Aggravation. In estimating the damages, the jury may take into account the fact that plaintiff had been seduced by defendant, as tending to in- crease the mortification and distress suffered by her,^^ "If by rea- son of an imprudent and criminal act, in which both participated, she is brought to such a state that the suffering occasioned to her feelings and affections must necessarily be increased by his abandon- ment, then that would be but an inadequate and poor compensation v. Barry, 27 Midi. 217; Goddard v. Westcott. 82 Mich. ISO, ISS, 4G N. W. 242; HoUoway v. Griffith, 32 Iowa, 400; Wilbur v. Johuson, 58 Mo. GOO; Coolidge V. Neat, 129 Mass. 146. Plaintiff may show that she appeared sin- cerely attached to defendant. Sprague v. Craig, 51 111. 288. 10 Tobin v. Shaw, 45 Me. ool; Coryell v. Colbaugh, 1 N. J. Law, 77; Stout v. Prall, 1 N. J. Law, 79; Southard v. Rexford, 6 Cow. 254. 11 Richmond v. Roberts, 98 111. 472; Douglas v. Gausman, 68 111. 170; Good- all v. Thurman, 1 Head. (Tenn.) 209; Hattin v. Chapman, 46 Conn. 607. 12 Sherman v. Rawson, 102 Mass. 395; Berry v. Da Costa, L. R. 1 C. P. 331; Paul V. Frazier, 3 Mass. 71; Kelley v. Riley, 106 Mass. 339; Kniffon v. Mc- Connell, 30 N. Y. 285; Wells v. Padgett, 8 Barb. 323; Tubbs v. Van Kleek, 12 111. 446; Burnett v. Simpkins, 24 111. 264; Bennett v. Beam, 42 Mich. 346, 4 N. W. 8; Sheahan v. Barry, 27 Mich. 217; Bird v. Thompson, 96 Mo. 424, 9 S. W. 788; Coil v. Wallace, 24 N. J. Law. 291; Hattin v. Chapman, 46 Conn. 606; Daggett v. Wallace, 75 Tex. 352, 13 S. W. 49. But it must be pleaded. Leavitt v. Cutler, 37 Wis. 46; Tyler v. Salley, 82 Me. 128, 19 Atl. 107; Gates v. McKinney, 48 Ind. 562. Contra, Jennette v. Sullivan, 63 Hun, 361, 18 N. Y. Supp. 266. Loss of time and medical expenses resulting from seduction cannot be recovered. Tyler v. Salley, 82 Me. 128, 19 Atl. 107; Giese v. Schultz, 53 Wis. 402, 10 N. W. 59S. Damages may be recovered for the pain and humiliation of giving birth to a bastard. Wilds v. Began, 57 Ind. 453. In some states seduction cannot be proved in aggravation of dam- ages. Weaver v. Bachert, 2 Pa. St. 80; Gring v. Lerch, 112 Pa. St. 244, 2-30, 3 Atl. 841; Tyler v. Salley, 82 Me. 128, 19 Atl. 107; Burks v. Shain, 2 Bibb, iMl. It is for the jury to say whether they will consider the fact of seduc- tion in estimating damages, and it is error to instruct that they must consider it Osmun v. Winters, 25 Or. 260, 35 Pac. 250. § 162) COMPENSATORY DAMAGES. 375 which did not take it into account." ^' The seduction must have been accomplished by means of the promise of marriage.^* In connection with the question how far plaintiff has been wound- ed in her affections, or suffered mortification or distress, the jury may consider the length of time during which the engagement had subs'isted,^^ and the abruptness and humiliation with which it was broken.^® Where a woman has been wantonly deserted after a long engagement, and when her affections have been deeply implanted, her wounded spirit, the disgrace, the insult to her feelings, the prob- able solitude which may result by reason of such desertion, after a long courtship, are all matters to be considered by the jury.^^ For the purjxise of enhancing damages, the plaintiff may prove that she announced the fact of her engagement to her friends, and invited them to attend the wedding. ^^ In Southard v. Rexford ^^ it was held that the attempt to justify a breach of promise of marriage by stating, upon the record, as the cause of desertion of the plaintiff, that she had repeatedly had criminal intercourse ^ith various persons, is a circumstance which ought to aggravate damages, when there is a complete failure to prove the charge. The reason for the rule has been said to be that a verdict for nominal or trifling damages under such circumstances would be fatal to the character of the plaintiff. It has been inti- mated that the rule only applies where the justification is pleaded, ^^ but it has been held to be equally applicable where evidence of such facts is offered in mitigation, without being specially pleaded.^ ^ It is certainly an anomaly, in an action for a breach of conti'act, to hold 13 Sherman v. Rawson. 102 Mass. o95. 1* Espy V. Jones, 37 Ala. 379. isCoolidge v. Neat, 129 Mass. 14<1: Grant v. Willoy, 101 Afass. ."hjO. 16 McPhcrson v. Ryan, 59 Mich. 33, 26 N. W. ;;21. 17 Coolidge V. Neat, 129 Mass. 146. Plaintiffs altered social position may be considered. Smith v. Woodfine, 1 C. B. (N. S.) 660; Berry v. Da Costa, L. R. 1 C. P. 331. i« Reed v. Clark, 47 Cal. 194; VaudoriK)ol v. Richardson, 52 .Mich. 336, 17 N. W. 9:J6. 18 6 Cow. 254. 20 Kniffcu V. McConnoll, 30 N. Y. 2.S5, per Infjraliam. J. 21 Thorn v. Knapp. 42 N. Y. 474; Kuiffeu v. McCounell, 30 N. Y. 2S5; I>avis V. Slaj;le, 27 -Mo. CUO. 37 G BREACH OF MARRIAGE PROMISE. (Ch. 14 that setting up matters in an answer to excuse such breach, the l)roof of which fails, is an aggravation of damages,-^ but this action is anomalous in many other respects. The rule has been denied,-^ and in some states it applies only when the justification was made in bad faith.-* Same — Circumstances in Mitujation. The defendant may show, in mitigation of damages, licentious conduct in plaintiff, and her general character as to sobriety and virtue, without any limitation as to time. "The object of this action is, not merely compensation for the immediate injury sustained, but damages for the loss of reputation. This must necessarily depend on the general conduct of the party subsequent to, as well as pre- vious to, the injury complained of, and the damages to be recovered, as in actions for defamation, ought to be regulated by all the circum- stances of the case. The proof of reputation cannot depend on time. It is a question which is general in its nature; and the inquiry re- specting it, when material, must be general." ^^ A breach of the criminal law by the plaintiff, as by profane cursing and swearing, though not a defense to the action, may be given in mitigation of damages.-® Evidence of plaintiff's abusive conduct towards de- fendant's mother and sister, and of her lewd and immodest conduct, can be considered only in mitigation of damages.-^ Consanguinity, not within the forbidden degrees, will not mitigate or excuse a breach of promise to marry. -^ The jury cannot consider, in mitigation of damages, the probability that, owing to defendant's want of love and affection, such as a husband should bear his wife, the mar- riage would be an unhappy one. 'Tt virtually would have been say- 2 2 Kniffen v. McConnell, 30 N. Y. L'85; Leavitt v. Cutler, 37 Wis. 46, 53. 2 3 Hunter v. Hatfield, 68 Ind. 416. 2* Alberts v. Albertz, 78 Wis. 72, 47 N. W. 95; Leavitt v. Cutler. 37 Wis. 46; Blackburn v. Mann, 85 111. 222; Fidler v. McKinley, 21 111. 308; Denslow V. Van Horn, 16 Iowa, 476; Reed v. Clark, 47 Cal. 194. See, also, Simp.soii V. Black, 27 Wis. 206. 2 5 Johnson v. Caulkins. 1 Johns.- Cas. 116, 3 Johns. Cas. 437. See, gener- ally, Button V. McCanley, 38 Barb. 413, 5 Abb. Prac. (N. S.) 29; Alberts v. Albertz, 78 Wis. 72, 47 N. W. 95; Williams v. Hollingsworth, 6 Baxt. 12. 2 6 Beny v. Bakeman, 44 Me. 164. 2 7 Alberts V. Albertz, 78 Wis. 72, 47 A. W. 95. 28 Id. § 162) COMPENSATORY DAMAGES. 377 ing that the plaintiff ought not to recover the damage actually sus- tained because the defendant might have inflicted a greater. In other words, it would be oif setting the injury that he might have done against that already inflicted." -^ It has been held that the fact that defendant is afflicted with an incurable disease may be «hown in mitigation of damages. In Johnson v. Jenkins,^" defend- ant was permitted to show, in mitigation of damages, that he refused to consummate the marriage because of the settled opposition of his mother, who was in infirm health. It has been held that an offer "by the defendant to marry plaintiff, made after suit brought, is not admissible in mitigation of damages.^ ^ Defendant's knowledge, at the time the promise is made, of the facts relied on as a defense or to mitigate the damages is important. Thus, if the promise is made in ignorance of the fact that plaintiff had borne a bastard child, or had indulged in illicit intercourse with other men, such facts constitute a complete bar to the action; ^- but, if known to defendant, they constitute no defense,^'' and at most can be considered only in mitigation.^* Thus, it has been held that, if the lack of virtue is relied on to absolve the defendant from the fulfillment of his contract, his knowledge of that fact must have been acquired after entering into the engagement, and the defend- ant must have terminated the engagement immediately upon being apprised of the tr-uth. But the bad character of the plaintiff may be shown in mitigation of damages, even though the defendant was cognizant of the facts at the time of making the contract, for the 2» Piper V. Kingsbniy, 4S Vt. 480. 3 24 N. Y. 252. 31 Kurtz V. Frank. 7G Ind. 504; Bennett v. Beam, 42 Mieb. o4G. 352, 4 N. W. 8; Holloway v. Griffith, 32 Iowa, 409; Southard v. Ilexlord, (3 Cow. 254. €ontra, Kelly v. Renfro, 9 Ala. 325. 32 Boynton v. Kellofjg, 3 Mass. 189; Guptill v. Verbaclc, 58 Iowa, 98, 12 N. W. 125; Beri-y v. Bakeman, 44 Me. 104; Budd v. Crea, 6 N. J. Law, 370; Burnett v. Simpkins, 24 111. 264; Johnson v. Travis, 33 Minn. 2:51. 22 N. W. G24. Such facts must be pleaded. Smith v. Braun. 37 La. Ann. 225. "3 Burnett v. Simpkins, 24 111. 204; .Johnson v. Travis, 33 Minn. 2;J1, 22 N. W. 024; Denslow v. Van Horn, KJ Iowa, 470; Kolloy v. lll^lilield, 15 Or. '217, 14 Pac. 744; Irving v. Green wont I, 1 Car. &. V. 35(,i; Bi-m li v. .Mi-riick. 1 Car. & K. 463. 8« Denslow v. Van Horn, 10 lowii, 470. 37S BREACH OF MAKRIAG1-: IMajMISE. (Oil. 14 reason that its breach does not result in the same injury as if the character had been good.^° EXEMPLARY DAMAGES. 163. Exemplary damages are awarded on the same prin- ciples as in tort actions. Actions for breach of promise of marriage are, as to damages, classed with actions for torts; and the motives of defendant may be inquired into with a view to furnishing ground for punitive dam- rjggg. 3 6 Precisely the same rules govern the allowance of exemplary" damages as would be applied if the action were in tort." Evidence of the circumstances under which the promise was broken is ad- missible in aggravation or mitigation of damages. 'It is always competent, for the purpose of enhancing the damages, to prove the motive that actuated the defendant; that he entered into the con- tract, and broke it, with bad motives and a wicked heart; and it is competent for him to prove, in mitigation of damages, that his 3:. Burnett v. Siinpkins, 24 111. 264; Kantzler v. Grant, 2 111. App. 236. See, also, Butler v. Esclileman. IS 111. 44; Doubet v. Kirkman, 15 111. App. 622; Denslow v. Van Horn, 16 Iowa, 476; Palmer v. Andrews, 7 Wend. 142; Von Storch V. Griffin, 77 Pa. St. 504; Biidd v. Crea, 6 N. .1. Law, 370; Dupont v. McAdow, 6 Mont. 226, 9 Pac. 925. "Any misconduct showing that the party complaining would be an unfit companion in married life may be given in evidence in mitigation." Suth. Dam. § 990, citing Leeds v. Cook, 4 Esp. 256; Button V. ]McCauley, 5 Abb. Prac. (N. S.) 29; Alberts v. Albertz, 7S Wis. 72, 47 X. W. 95. Declarations of plaintiff that she cared nothing for defendant, and only wanted his money, and to spite his family, are admissible in miti- gation of damages. Miller v. Rosier, 31 Mich. 475. But see Miller v. Hayes, 34 Iowa, 496. See, also, Robinson v. Graver, 88 Iowa, 381, 55 N. W. 492. Where defendant had seduced plaintiff under promise, it has been held that he cannot prove her general bad character between the promise and the breach. Boynton v. Kellogg, 3 Mass. 189; Espy v. Jones, 37 Ala. 379. 3 6 Thorn v. Knapp, 42 N. Y. 474. 3 7 See ante, p. 200; Chellis v. Chapman, 125 N. Y. 214, 26 N. E. 308. The allowance of exemplary damages is discretionary with the jurj', and it is re- versible error to instruct them that, if they find that defendant purposely wronged plaintiff and that his conduct was malicious, they are bound to give exemplai-y damages. Jacobs v. Sire, 4 Misc. Rep. 398, 23 N. Y. Supp. 1063. § 163) EXEMPLARY DAMAGES. 37^' motives were not bad, and that his conduct was neither cruel nor malicious. In the case of Johnson v. Jenkins,^® it was held com- petent, in mitigation of damages, for the defendant to prove, when asked by the plaintifif why he had discontinued his visits to her, that he declared that his affection and regard for her were undiminished, but that he could not marry her, because his parents were so violent- ly opposed to the match. Judge Allen, writing the opinion of the court, says: "Every circumstance attending the breaking off of the engagement becomes part of the res gestae. The reasons which were operative and influential with the defendant are material, so far as they can be ascertained; and whether they are such as, tending to show a willingness to trifle with the contract and with the rights of the plaintiff, should enhance the damages, or, on the contrary, show- ing a motive consistent with any just appreciation of and regard for his duties, should confine the damages within the limit of a just compensation, will always be for the jury to determine." '° 3 8 24 N. y. 252. 3 9 Thorn v. Knapp, 42 N. Y. 474. See, generally, Chellis v. Chapman, 12.'> N. Y. 214, 26 N. E. 308; Coil v. Wallace, 24 N. .T. Law, 291; Coryell v. Col- baugh, 1 N. J. Law, 77; Johnson v. Travis, 33 INIinu. 231, 22 N. W. 624; Kel- ley V. Highfield, 15 Or. 277, 14 Pac. 744; Goddard v. Westcott, 82 Mich. ISO, 46 N. W. 242; Dupont v. McAdow, 6 Mont 226, 9 Pac. 925; Moore v. Hop- kins, 83 Cal. 270, 23 Pac. 318. Evidence of matters in aggravation of dam- ages which occur after the suit is brought is incompetent. On this principle a letter, addressed by defendant to plaintiff, accusing her of unchasteness and containing many gross and indecent expressions, was excluded. Green- leaf V. McColley, 14 N. H. 303. Charges of immorality in an affidavit during progress of trial are inadmissible. Leavitt v. Cutler, 37 Wis. 46. TABLE OF CASES CITED. [the figures refer to pages.] Abbot V. McCadden, 315. Abeles v. Telegraph Co., 292. Aber v. Bratton, 73, 74. Abrahams v. Cooper, 98. Abrams v. Kounts, 134. Ackerman v. Emott, 174. Ackerson v. Railway Co., 219. Adams V. Adams, 175. V. Cordis, 88, 198. v. Fort Plain Bank, 161. V. Gardner, 227. V. O'Connor, 119. V. Palmer, 148. V. Railroad Co., 81-84. v. Robinson, 26. T. Smith, 94, 99, 106. Adams Exp. Co. v. Egbert, 73 V. Milton, 162. Adamson v. Petersen, 120. Addams v. Heffernan, 175. Adkins v. Moore, 119. Agincourt, The, 14. Agnew V. Johnson, 18.1. Agricultural & M. Ass'n v. State, 326. Ahern v. Steele. 323. Alabama G S. R. Co. v. Arnold, 225. V. Heddleston, 258. V. McAlpine, 165. Alabama Iron Works v. Hurley, 76. Alberts v. Albertz, 376, 378. Alder v. Keighley, 61. Aldrich V. Dunham, 148. V. Goodell, .59. V. Sager. 50. V. Weeks, 110. Aid worth v. City of Lynn, 83, Alexander v. Blodgett, 90, 101. V. Ilerr. 355. Alexander v. Humber, 95. V. Jacoby. 47. 89, 90. V. Kerr. 3G2. V. Telegraph Co., 274, 281. V. Town of New Castle, 46. Allaback v. Utt, 215, Allaire v. Whitney, 2, 27. Allegheny v. Zimmerman, 51. Allen V. Atkinson, 364 V. Baker, 372. V. Blunt, 88. V. Brazier, 135, 136, 142. V. Butman, 120. V. Dykers, 185. V. Ferry Co., 98. V. Hallet, 14. V. Jarvis, 238. V. Mohn, 366. V. Pioneer Press Co., 111. V. Railway Co., 94. V. Smith. 353. Allender v. Railroad Co., GS. AUis V. Niuiuger 90. Allison V. Cliandler, 41, 53, 70, 74, 211. V. Chicago & N W. R. Co., 37. V. Juniata Co., 154. Alloway v. City of Nashville. 167, 186, 234. Alls V. McLean, 75. Althorf V. Wolfe. 117, 312. Alvord V. \A'aggoiier. 3(;8. Amer v. Longstreth, 212. American Bible Soc. v. Wells, 150. American Cent. Ins. Co. v. McLana- than, 142. American Exp. Co. v. I'arsons, 181. American Print Works v. Lawrence 14. American I'nioii Tel. Co. v. Daughtery, 292, 296. i-Aw D \.\r. (881) ^82 CASES CITED. [The fijnu-es refer to pages.] American Water- Works Co. v. Dough- erty, lOG. Ames V. Hilton, 210. V. Moir, 241. Amiable Nancy, The, 217. Amistad de Rues, La, 72. Amory v. McGregor, 149. Amoskeag Manuf'g Co. v. Goodale, 27 Amy V. City of Dubuque, 173. Anderson v. Railroad Co., 302, 334. V. Taylor, 97. V. Truitt, 366. Andrews v. Askey, 99. V. Clark, 195. V. Durant, 149, 164, 165, 185. V. Glenville Woolen Co., 89. v. Stone. 225. Anketel v. Converse, 174. Annas v. Railroad Co., 339. Annis v. Upton, 221. Ansley v. Peters, 162. Anthony v. Railroad Co., 95. Applegate v. Jacoby, 134. AppoUon, The, 88. Arcambel v. Wiseman, 88. Arents v. Com., 173. Argotsinger v. Vines, 358. Arkansas Yal. Laud & Cattle Co. v. Mann, 186, 235. Armfield v. Nash, 68. Armory v. Delamirie, 119. Armstrong v. Piei'son, 88. V. Turner, 240. Arnold v. Jewett, 112. Arnott V. Redfern, 145. Arrington v. Railroad Co.. 195. Arrowsmith v. Gordon, .59. Arthur v. The Cassius, 252. v. Railway Co., 165. V. Wheeler & Wilson Manuf'g Co., 157. Arundel v. McCulloch. 14. Ashby V. White, 1, 8, 11, 16. 19, 25, 31. Ashe V. County of Harris, 154. Asher v. Cabell, 298. Ashtown's Lessee v. White, 131. Ashuelot R. Co. v. Elliot. 169. Aslin V. Parkin, 3."i5. Atchison. T. & S. F. R. Co. v. Brown, 330. V. Hughes. 347. V. McGiunis, 10, 94. Atchison, T. & S. F. R. Co. v. Weber, 349. V. Wilson, 302, 315. Atchison & N. R. Co. v. Garside, 13. Atkins V. Gladwish, 87. V. Yeomans, 356. Atkinson v. Atlantic & P. R. Co., 148. V. Hewett, 120. V. Transportation Co., 50. Atkisson v. The Castle Gardeu, 2.53. Atkyns v. Kinuier, 136. Atlanta & W. P. Ry. Co. v. Newton, 312. Atlantic & G. W. Ry. Co. v. Dunn, 208, 218. V. Koblentz. 167. Atrops V. Costello, 304, 324. Atwood V. Lucas, 238. Au V. Railroad Co.. 302. Aultman v. Stout, 250. Aultman & Taylor Co. v. Hethering- ton, 249. Aurentz v. Porter, 196. Aurora City v. West, 173. Aurora Hill Consol. Min. Co. v. 85 Min. Co., 358. Austin V. Mining Co., 358. V. Wilson, 09, 216. Austin Rapid Transit Ry. Co. v. Cul- len, 323, 347. Austrian & Co. v. Springer, 243. Averett v. Brady, 3.53. Averill Coal & Oil Co. v. Verner. 172. Avery v. Ray, 109. Ayers v. ;Metcalf, 148. Ayres v. Pease, 142. V. Railway Co., 255. B Backhouse v. Bonomi, 8. Backus v. Minor, 173. Badger v. Titcomb, 80. Bagby v. Harris. 17. Baggett V. Beard, 90. Bagley v. Cleveland Rolling-Mill Co. 69. V. Fiudlay, 241. V. Peddie, 132, 135, 136. V. Smith, 75. Bailey v. Bailey, 109. CASES CITED. 383 [The figures refer to pages.] Bailey v. Scott, 371. Baiu y. F'otliergill. 3G5. Bainbridge v. Wilcocks, 155. Baird v. Tolliver, 137. Baker v. Bolton, 297, 298. V. City of Madison, 235. V. Drake. 4, 191, 192. V. Green. 31. V. Manhattan Ry. Co., 71. V. Wheeler, 164. Baker's Appeal. 197. Baldwin v. Bradley, 119. V. Porter, 117. V. Telegraph Co., oG, 2.S3, 284, 292. V. United States Tel. Co., 62. Baldy v. Stratton, 6. 102. Bales V. Clark. 214. Ball V. Britton. 75. V. Bruce, 100. V. Horrigan, 9S, 109. V. Liney. 114. Ballou V Farnum, 93. 105. Baltimore City Pass. Ry. Co. v. Kemp, 37, 43, 50, 258, 259. V. Sewell, 157, 195. Baltimore Permanent Bldg. & Laud Soc. V. Smith, 366. Baltimore & L. T. Co. v. Cassell, 37. Baltimore & O. R. Co. v. Bambrey, 97. V. Barger, 218. V. Blocher, 218. V. Carr. 33. 92. 230. 260. V. Noell. 303. 331. V. Pumphrey. 2.">4. V. Stanley, 316. 347. V. State, 312-314. 333. V. Wightman, 312, 316, 342. Baltimore & P. R. Co. v. Fifth Baptist Church, .362. V. Mackey, .3.39. V. Roaney, 35. 45. Baltimore & R. Turnpike Road v. State, 313. Baltimore & Y. Turnpike v. Boouo, 208. I'.altzer v. Railroad Co., 2.32. Bancroft v City of Camliridge, 13. Bangor & P. R. Co. v. McComb, 167. Bangs V. Little. 14. Bank of Metinpolis v. Guttscliliek. 222. Bank of Montgomery Co. v. Reese. 187. 189, 193. Banks v. McClellan, 174. Barbee v. Reese, 37, 96. Barber v. Scott. 20. Barbour v. Nichols, 364. V. Stephenson, 99, 106. Barclay v. Kennedy, 173. Bare v. Hoffman. 81, l(i6. Barker v. Dixie, 233. Barlass v. Braash. 186. Barley v. Railroad Co., 302. Barnard v. Harrington, 3. V. Poor, 75, 87. Barnes v. Brown, 243. V. Campbell, 106. V. Hathorn. 363. V. Jones, 360. V. Martin. 96. Barnett v. Luther, 30. Barnum v. Railway Co., 350. Baron v. Abell. 355. Barr v. Logan. 241. V. :Moore. 214. 216. Barrelett v. Bellgard. 116. Barrett v. Porter, 370. V. Telegraph Co., 285. Karrick v. Scliifferdecker, 81, 83, 357. Barringer v. King, 150. Barron v. Morrison. 156. V. Mullin. 181. 240. V. Railroad Co.. 3.-.O. Barrow v. Aruaud. 66, 238, 242, V. Rhiuelandcr, 172. Barry v. Bennett. 185. V. Harris, 135. Bartells v. Redfield. 155. Bartelt v. Braunsdorf. 222. Barth v. Mcrritt, 231. Bartlett v. Bank. 223. V. Blaufhaid, 245. V. Kidder, 121. Barton v. Kavauaugli. 20. Barton Coal Co. v. Co.\. '.'>'64. Cadle V. Railroad Co., S3. Cahen v. Piatt, 242. 243. Cahill v. Pintony, 221. Cahn V. Telegraph Co., 278. 285. Cairncross v. A'illage of Pewaukee, 22. Calcutta & Steam Nav. Co. v. De Mattos, 240. Caldwell v. Brown. .".10, 326. V. Dunklin, 153. V. Railroad Co., 233. V. Steanii)oat Co., 211. Calhoun v. .Marshall, 174. California Steam Nav. Co. v. Wright. 135. Call V. i5ultri( k. ;'.i;2. V. Ha gar. 00. Callahan v. Ingram. 110. 388 CASES CITED. [Thp Oi^ures refer to pa,?es.] Callanan v. Brown, ISl. Callaway Min. & Manuf'g Co. v. Clark. 73. Calumet Iron & Steel Co. v. Martin, 221. Camden Consolidated Oil Co. v. Schlens, 242. Cameron v. Boyle, 221. V, Smith, 147. Camp T. Bates, 172. V. Camp, 208, 215. V. Hamlin, 239. V. Telegraph Co., 292. V. Whitman, 15. Campbell v. Brown, 353, 354. V. Car Co., 100, 106. V. City of Stillwater, 50. V. Pullman Palace-Car Co., 37. V. Race. 14, 15. V. Shields. 131. Canadian Pac. Ry. Co. v. Robinson, 303. Candee v. Webster, 155. V. Telegraph Co., 49, 59, 290. Canfield v. Railroad Co., 213, 214, 21S. Canning v. Inhabitants of Williams- town, 10, 94. Cannon v. Folsom, 194. V. Telegraph Co., 59, 279, 292. Canter v. American Ins. Co., 8S. Capen v. Crowell, 172. Capital, etc., Bank v. Henty, 20. Carey v. Day, 307. V. Railroad Co., 298. Carhart v. Auouru Gas Light Co., 29. Carl v. Coal Co., 224. V. Granger Coal Co., 2(;. Carlisle v. Callahan, 44, 235. Carlson v. Railway Co., 304. Carlyon v. Lannan, 1S5, 222. Garner v. Railway Co., 358. Carpenter v. Barber, 211. V. Dresser, 114, 115. V. Eastern Transp. Co., 118. T. First Nat. Bank, 60. V. Insurance Co., 115. V. Railroad Co., 95. 105. 323. V. Welch. 173. CarroU v. Railway Co., 13. 342. Carroll-Porter Bi)iler & Tank Co. v. Columbus Mach. Co., 244. Carsten v. Railroad Co.. 97, 106. 263. Carter v. Corlcy, 131. V. Pitcher, 358. V. Walla .-e, 11. Cartwright v. Gardner, 142. Carver v. Telegraph Co., 275. Gary v. Courteney. 198. Case V. Fish, 172. V. Stevens, 59, 249. V. Wolcott. 364. Case Threshing Mach. Co. v. Haven, 249. Caspar v. Prosdime, 109. Cassell v. Hays, 229. Cassidy v. LeFevre, 75. 244. Casteel v. Walker, 171. Castello V. Landwehr, 312, 335. Caswell V. Howard, 119. Catawissa R. Co. v. Armstrong, 312,. 335, 344. Gates V. McKinney, 374. Gatlin v. Lyman, 174. V. Pond, 98. Cattle V. Stockton Waterworks Co., 20.. Cavanagh v. Durgin, 359. Cease v. Cockle, 161. Cecil V. Hicks, 170. Center v Finney. 22. Central Branch U. P. R. Co. v. Nich- ols, 177. Central Pass R. Co. v. Chatterson. 218. Central R. Co. v. Crosby, 340, 347. V. Moore, 338. V. Rouse, 338. V. Sears, 166, 341. V. Serfass, 95. V. Thompson. 340. Central Railroad & Banking Co. v. At- lantic & G. R. Co., 156. V. Lanier, 225. V. Murray, 358. Central Trust Co. v. Arctic Ice Mach_ Manuf'g Co., 247. Chaffee's Appeal, 186. Chalie v. Duke of York, 146. Chalk V. Railroad Co., 49. Chamberlain v. Bagley, 134. V. City of Oshkosh, 46. V. Collinson, 358. V. Parker, 26. V. Worrell. 186. Chambers v. Fi-azior, 30. V. Goldwiu, 172. CASES CITED. o8y [The figures refer to pages.] ■Champion v. Vincent, 27. Chandler v. Aqueduct Corp., 167. Chant V. Railway Co.. 317, 318. Chapin v. Murphy, Hid. Chapman v. Copeland, 27. v. Ingram, 2oS. V. Kirby, 182. V. Railway Co., 1G5, 253. V. Rothwell. 320, 348. V. Telegraph Co., 100. 104, 281. V. Thames Manuf 'g Co., 20, 29. Charlevois v. Railroad Co., 348. Charman, Ex parte, 147. Chase v. Allen, 139, 141. V. Bennett, 91. V. Railroad Co., 09. V. Telegraph Co., 104. V. Whitlock, 18. Chasemore v. Richards, 14. Chaude v. Shepard, 138. Chauncy v. Yeaton, 103. Cheddick's Ex'r v. Marsh, 136, 139. Cheek v. Waldrenn, 153. Chellis V. Chapman, 0, 213, 373, 378, 379. Cherokee «fe P. Coal & Min. Co. v. Limb, 330. Cherry v. McCall. 216. Cherry Valley Iron Works v. Florence Iron R. Co., 238. Chesapeake Bank v. Swain, 197. Chesapeake, O. & S. W. R. Co. v. Hen- dricks, 308. Cheshire Turnpike v. Stevens, 81. Chcsley v. Chesley, 102. V. Tompson, 99, 106. Chesterfield v. .Jansen, 145. Chevoley v. Morris, 221. Chicago V. Greer, 238. T. Keefe, 319. V. McCulIoch, 339. Chicago, B. & Q. R. Co. v. Hale, 254. T. Harwood, 344. V. nines, 100. V. Sykes, 344. Chicago City Ry. Co. v. Gillam, 302. V. Henry, 72. Chicago, M. & St. P. Ry. Co. v. Dowd, 344. Chicago, R. I. & P. R. Co. v. Austin, 311, 310, 344. V. Carey, 09. Chicago, R. 1. & P. R. Co. v. Caulfield, 100. V. Henry, 338. Chicago, St. L. & N. O, R. Co. v. Pounds, 2, 300, 307. V. Scuir, 212, 213, 235, 236. Chicago, St. L. & P. R. Co. v. Hold- ridge, 97. Chicago, W. D. R. Co. v. Klauber, 220. Chicago & A. R. Co. v. Adler, 332. V. Becker, 324, 344. V. Carey, 350. V. Flagg 34, 92, 98, 106, 261, 263. V. May, 311. V. Bobbins, 358. V. Shannon, 332, 344, 348. V. Wilson, 71. Chicago & E. I. R. Co. v. Conley, 98. V. Loeb, 82, 83. Chicago & E. R. Co. v. Barnes, 359. V. Holland, 91. Chicago, & I. R. Co. v. Baker, 215, 228. Chicago & N. W. R. Co. v. Bayfield, 325, 338. V. Chisholm, 97, 106, 263. V. Dickinson, 2.52. V. Howard, 338. V. Moranda, 338. V. Peacock, 231. V. Sehultz, 148, 165. V. Stanbro, 254. V. Swett, 331, 344, 348. V. Whitton, 317, 343. V. Williams, 97, 98, 106, 263. Chick V. Railroad Co., 298. Childers v. Publishing Co., 214. Childress v. Yourie. 50. Cliiles V. Drake, 216, 305. Chilliuer v. Chilliner, 142. Cliinery v. Viall, 246, 247. Cliisholm V. Arrington, 197. Christ Church Hosi)il;U v. Fucchsel, 197. Christian v Railway Co., 312. Christlanson v. Linford, 2. Chrysler v. Renois, 197. Cluircher v. Stringer. 150. Cliurchill V. Water Co., 362. Cincinnati. II. &; I. R. Co. v. Eaton, 259. Cincinnati, I. St. L.. & G. li. Co. v. Cooper, 37. 5U0 CASES CITED. [Tho figures refer to pasos.] Citizens' St Ry. Co. v. Steou, 207, 211, 218. City Nat. Banlj: v. Jeffries, 97, 211, 219. City of Allesrbeny v. Campbell, 1U4. City 01 Atchison v. King, 4G. City of Bloomingtoii v. Cliniiiborlain, 71. City of Chicago v. Allcock, 148. V. Elzoman, 71, 01. V. Hesiug, 323, 324. V liucnerbeiu, 74, 301. V. Jones, 71, 91. V. Langlass, 71, 91. V. Leseth, 232. V. McLean, 9.1. 101. V. Major, 302, 323. V. Martin, 212. V. People, 154. V. Powers. 339. V. Scholten, 302, 323, 324, 344, 348. V. Tebbetts, 148. City of Cincinnati v. Evans, 74. V. Steadman, SS. City of Delphi v. Lowery, 338. City of Eufaula v. Suumous, S3. City of Enreka v. :Merrifielcl, 298. City of Galesburg v. Higley, 231. City of Indianapolis v. Gaston, 71. City of Indianola v. Gulf, W. T. & P. Ry., 142. City of Jeffersonville v. Patterson, 173. City of Joliet v. Conway, 71. V. Weston, 324. City of Kansas City v. Manning, 232. City of Lincoln v. Smith, 4G. City of Logansport v. Justice, 71. City of Montreal v. Labelle, 303. City of North Vernon v. Voegler, 83. City of Ottawa v. Sweely, 231. City of Pekin v. Reynolds, 154. City of Salem v. Harvey, 324, 332. City of Salina v. Trosper, 93, 95. City of San Antonio v. Lane, 173. City of Toledo v. Goulden, 88. City of Vicksburg v. McLain, 325, 343. City of Wabash v. Carver. 338. Clapp V. Railway Co., 313. Claridge v. Tramway Co., 119. Clark V. Bales, 207. V. Barnard, 130. V. Boyreau, 355. V. Chambers, 38, 50. Clark V. Dales, IGl. V. Duttou, l.")3. V. Famous Shoe & Clothing Co., 15- V. Fisher, 371, V. Fitch, 100. V. Iluber, 121. V. Iowa City, 173. V. Kay, 141. V. Marsiglia. (iS. V. Moore, 02. V. Mumford, 90. V. Newsam, 209. V. Pinney, 242. V. Whitaker, 103, 185. V. Zoigler, 370. Clarke v. Meigs, 2. Cleary v. Railroad Co., 303. Clcgg V. Dearden, 81. Cleghorn v. Railroad Co., 218. Clem V. Holiufcs, 100. Clement v. Cash, 125, 13G, 139, 140. V. Spear, 1()(). Clements v. Railroad Co., 135. Cleveland v. Sterrett, 241. Cleveland & P. R. Co. v. Rowan, 302, 308. Clifton V. Hooper, 31. Clinton v. Laning, 97. Clissold V. Machell, 214. Close V. Fields, 148, 149. Coates V. Railroad Co., 339. Cobb V. Inhabitants of Slandish, 47. V. People, 213. V. Railroad Co., 60, Gl, 257. V. Smith, 80. S3. Coburn v. Litchfield. 371. Cochran v. Miller, 211. Cochrane v. Quackenbush, 43. V. Tuttle, 211, 228. Cockburn v. Ashland Lumber Co., 179; 242, 24G. Cockrell v. Proctor, 3G7. Codman v Evans. 3G2. Coffin V. Varila, 98. Cogdell V. Yett. 36. Coggs V. Bernard, 9. Cogswell V. Railroad Co., 13, 232. Cogswell's Heirs v. Lyon, 156. Cohen v. Railroad Co., 167. Cohn V. Norton, 38, 3G5. Coll V. Wallace. 374. 379. Cole V. Iloeburg, 222, 223. CASES CITED. 591 [Tlie figures x*efer to pages.] Cole T. Ross, ISo, 19S. V. Tucker, 21G. Coleman v. Allen, 98, 207, 214. V. Ballard's Heirs, 369. V. New York cV: N. H. R. Co., 37. Coles V. Kelsey, 15G. Collard v. Railroad Co., 38, 56, 255. Collier v. Betterton, 135. Collins V. City of Council Bluffs, 213, 235, 236 V. Davidson, 302. V. Delaporte, 238. V. Dodge, 71. V. Mack, 102. V. Railroad Co., 307. V. Stephens. 38. Colorado Coal «& Iron Co. v. Lamb, 330. Colorado Consolidated Land & Water Co. V. Hartman, 359. Colt V. Owens, 192. Colton V. Du.iham, 197. Columbus, H. V. & T. R. Co. v. Gard- ner, 362. Colwell V. Lawrence, 135. Combs V. Scott, 364. Comer v. Knowles, 110. V. Taylor, 100. Commerce, The, 231. Commercial & Agricultural Bank v. Jones, 164, 186. Com. V. Boston & M. R. Co.. 157. V. State of Maryland, 173. Compta, The, 254, 255. Conant v. Griffin, 302. 344. Condon v. Kemper, 129. V. Railway Co., 320. Congdon v. Scale Co., 118. Conger v. Weaver, 3(!5. Conn V. Peun, 155. Connecticut Mut. Life Ins. Co. v. Cleveland, C. & C. R. Co., 173. V. New York & N. H. R. Co., 298, 299. Connell v. Telegraph Co., 92, 95, 104. Connelly v. McNeil, 231. Connoss v. Meir, 222. Conor v. Hillier, 181. Conroy v. Flint, 116. V. Pittsburgh Times, 113. Consequa v. Fanning, 150. Consolidated Coal Co. of St. Louis v. Block & Hartman Smelting Co., 244. Consolidated Home Supply Ditch & Reservoir Co. v. Hamliu, 361. Cook V. Braudeis, 241. V. Ellis, 202, 214, 216. V. Finch, 140. V. Fowler, 147, 169, 170. V. Garza, 215. V. Hull, 26. V. Loomis, 185. V. Railroad Co., 303, 341. Cooke V. Barr, 31. V. England, SO, 83. Coolidge V. Neat, 373-375. Coon V. JNIoftitt, 100. Cooper V. Hart, 20. V. MuUins, 95. V. Railway Co., 325, 326, 339. V. Randall, 83, 118. Coover v. Moore, 306. Copeland v. Cunningham. 90. Coppin V. Braithwaite, 97. Corcoran v. Harrau, 96, 109, 216, 235. V. Judson, 89. Corley v. Lancaster, 19. Cornell v. Jackson, 367. Corning v. Corning, 222. Cornwall v. Mills, 341. Corrigan v. Delaware B'alls Co., 174. Corsair, The, 298. Cort V. Ambergate N. & B. E. J. Ry. Co., 239. Cortelyou v. Lansing, 190. Corwin v. Walton, 216. Cory V. Sileox, 17, 27. V. Thames Iron Works »& Ship Bldg. Co., 57, 62. 245. Coryell v. Colbaugh, 6, 213, 374, 379. Costigan v Railroad Co., 67. Cotheal v. Talmage, 136, 137, 140. Cothran v. Hanover Nat. Bank, 181. v. Telegraph Co., 276. Cotter V. Flumer, 358. Coulter v. Pine Tp., 342. Courtois V. Carpentier, 151. Courtoy v. Dozicr, 101. Cowley V. Davidson, 164, 224. Cox V. Crumley, 208, 215. V. Henry, 368. V. Long, 247. V. McLoughlin, 162. V. Vanderklced, 96, 10.5. Crabb's Exrs v. Bank, 222. 392 CASES CITED. ['riu> figiu-es i-ofc'l- to piisos.] Crais v. Cook. 215, 235, 3G0. V. Mclleury, 119. Grain v. Beach, 79. Craker v. Railway Co., 9G, lOG, 204, 2120. Cram v. Bailoy, 120. V. Hadley, 231. Cramei' v. Lepper, 174. Crampton v. Yalido Marble Co., ISG. Crane v. Peer, 142. Crane Elevator Co. v. Lippert, 3S. Crater v. Binninger, 43. Crawford v. Andrews, 28. V. Bergen, 30. V. Siuiouton's Ex'rs, 15G. Crawson v. Telegraph Co., 104. Crisdee v. Bolton, 125. Crogan v. Schiele, 22S. Croker v. Railway Co., 203. Cromwell v. County of Sac, 1G9. Crone v. Dawson, 150. Cropper v. Nelson, 19S. Crosby v. Humphreys, 109, 214, Crosier v. Craig, 373. Cross V. Guthery, 298. Crouch V. Railway Co., 252. Crow V. State, 149. Cruikshauk v. Gordon, 110. Crumb v. Oaks, 185. Crux V. Aldrcd, 135. Culin \. Woodbiu-y Glass Works, 244. Cumberland Coal »& Iron Co. v. Tilgh- man, 119. Cumberland Telephone & Telegraph Co. V. Postou, 215. V. United Electric Ry. Co., 22. Cumberland & O. C. Corp. v. Hitch- ings, 81, 361. Cummings v. Burleson, 89. V. Dudley, 199. V. Howard, 1G9. Curd v. Letcher, 155. Currie v. White, IGl. Currier v. Davis, 197. V. Swan, 107, 211. Curry v. Larer. 139. Curtis V. Brewer, 135. V. Innerarity, 153. V. Railroad Co., 95, OS, 225. Curtiss V. Hoyt, 215. V. Lawrence, 221. Cushing V. Drew, 135, 130. V. Seymo-ir. Sabin & Co., 76. V. Wells, 197. Cushman v. Hayes, 194. V. Ryan, 14. Custis V. Adkins, 153. Cutler V. James Goold Co., 185. V. Smith, 210, 213, 215, 23G, 3G0. Cutter V. Mayor, etc., of New York, 150. V. Waddlngham, 120. Cutting V. Railway Co., 5, 255. V. Seabury, 298. Cutts V. Telegraph Co., 277. D. Dagcnham (Thames) Deck Co., In re, 138. Daggett V. Pratt, 141. V. Wallace, 103, 374. Dahill V. Booker, 120. Dailey v. Canal Co., 80. V. Crowley, 116. V. Green, 247. Daily v. Litchfield, 139. Dakin v. Williams, 134, 136. Dallam v. Filler, 114. Dallas & W. Ry. Co v. Splcker, 314. Dalton V. Beers, 207, 211, 214. V. Bowker, 90. V. Railway Co., 308, 328. Daly V. Van Benthuyseu, 214. Damron v. Roach, 360. Dan V. Chubb, 355. Dana v. Fiedler, 149, 159, IGl, 239, 242. Danforth v. Walker, 238. V. Williams. 15(). Daniel v. Holland, 186. V. New York News Pub. Co., 17. V. W. U. Tel. Co., 59, 292. Daniell v. Sinclair, 172. Daniels v. Ballantine, 49. V. Brown, 120. V. Ward, 169, 171. V. Wilson, 144. Danziger v. Boyd, 355. Darley Main Colliery Co. v. Mitchell, 79. Dart V. Laimbeer, 75. CASES CITED. 393 [The figures refer tc pages.] Dasli V. "Van Kleeck, 2. Daugbtery v. American Union Tel. Co., 38, 55. 59, 292, 294. Davenport v Bradley, 221. V. Wells, 19S. David V. Conard. 221. Davidson v. GunboUy, 119. V. Southern Pac. Co., 95. Davis V. Doe, 352 V. Fairclougb. ISG. V. Fish, 65. V. Freeman, 132, 141. V. Greely. 148, 150. V. Guarnieri, 343. V. Hendrie. 172. V. Inhabitants of Dudley, 47. V. Kendall, 25. V. Logan, 35G. V. Marxhausen, 111. V. Railroad Co., 75, 257. V. Rider, 171. V. Seeley, 225. V. Slagle, 375. V. Smith. 173. V. Talcott, Gl. V. U. S.. 125. V. Yuba Co., 144. Day V. Brownrigg, 8. V. Holland, 208. V. Pool, 247. V. Railroad Co., 1G2. V. Woodworth, 6, 89, 200. 202, 207, 295. Dayton v. Hooglund, 247. Deal V. D. M. Osborne & Co., 120. Dean v. Blackwell, 6. V. Railway Co., 165. Deane v. O'Brien, 222. De Bernales v. Fuller, 14G. De Briar v. Minturn, 228. Decker v. Mathews. 181. )eck's Adm'r v. Feld, iSl. De Clerq v. Mungin, 189. De Costa v. Mas.sachusetts Flat Water «S: Mining Co., 72. De Graff, Vrieling & Co. v. Wickham, 135. De Groff v. American Linen-Thread Co., 134. De Havillnnd v. Bowerbank, 14G, 147. Deisen v. Rnilway Co.. 340. Deitzler v. Wilhito, 354. Delano v. Curtis. 117. Delany's Adm'rs v. Hill, 181. De Lavallette v. Wendt, 149. Delaware, L. &. W. R. Co. v. Burson, 167. V. Jones, 317, 318. Delaware & H. Canal Co. v. Torrey, 26, 29. Delaware & R. Canal Co, v. Wright, 83. Dellone v. Hull, 240. Demann v. Railroad Co., 60, 95, 256. Demarest v. Little, 329, 334, 337, 347. De May v. Roberts, 97. Dennis v. Barber, 185, 215. V, Cummins, 134, 137. V. Maxfield, 75. V. Stoughton, 47. Denniston v. Imbrie, 155, 173. Denny v. New York Cent. R. Co., 44. Denslow v. Van Horn, 6, 376-378. Densmore v. Mathews, 120. Dent V. Davidson, 26. V. Dunn, 147. Denver Brick & Manuf'g Co. v. Mc- Allister, 174. Denver City Irrigation & Water Co. v. Middaugh, 80. Denver, S. P. & P. R. Co. v. Conway, 148. V. Frame, 183. V. Woodward, 300. Denver & R. G. Ry. Co. v. Harris, 207. Derrick v. .Tones, 221. Derry v. Flitner, 43. De Rutte v. Telegraph Co., 264-260. De Steiger v. Railroad Co., 148, 164. Detroit Daily Post Co. v. McArthur, 99, 106. Devaughn v. Heath, 214, 236. Devendorf v. Wert, 29. Devereux v. Burgwin, 149. Deverill v. Burnell, 142. Devine v. Edwards, 148. v. Lewis, 36S. Devlin v. City of New York, 150. v. :Mayor, etc., 57, 245. Dewint v. Wiltse, 61. De Witt V. Morris, 116. Do.xter v. Spear, 33. Deyo V. Van Vallene v. (ioddard, 73. V. Williams, 71. Greenlield Banl< v. r.oavilt. 194. Gi'eciHichl Sav. I'.;ink v. Siinous, 160. 400 CASES CITED. [The fijiuros refer to pases.] Greenish v. Standard Sugar Refinery, 155. Greenleaf v. McCollej\ 379. Greenville i: C. K. Co. v. Partlow, 215. Greer v Mayor, etc., 118. V. Tweed, 135. Gregg V. Fitzhujjh, 187, 194. Gregory t. Chambers, 91. Gresham v. Taylor, 75. Grey v. Grant, 201. Griffey v. Kenuard, 353. Griffin v. Brown, 91. V. Colver, 3, 70, 72, 74, 244, 277. V. Wilcox, 2. Griffith V. Burden, 181. V. Railway Co., 355. Griggs V. Fleckenstein, 47. Grimes v. Blake, 172. Grindle v. Eastern Exp. Co., 61, G4, 257. Gring v. Lerch, 374. Griswold v. New York Cent. & H, R. R. Co., 72. V. Sabin, 366. Grocers' Nat. Bank v. Clark, 3. Grogan v, Fouudiy Co., 323. Grohmann v. Kirschman, 214. Gronan v. Kukkuck, 96, 225. Groover v. Wartield, 119. Grosso V. Railroad Co., 298. Grotenkemper v. Harris, 334, 337. Gruman v. Smith. 192. Grand v. Pendergast, 252. V. Van Vleck. 217. Guengerech v. Smith, 212. Guengerich v. Smith, 216. Guild V. Guild, SS. Guildford v. Anglo-French Steamship Co., 213. Guille V. Swan, 48. Guiteman v. Davis, 198. Gulf, C. & S. F. Ry. Co. v. Camp- bell, 88. V. Compton, 327, 340. V. Finley, 303. V. Helsley, 361. V. Hodge, 68. V. Hurley, 102. V. John. 312. V. Johnson, 347. V. Levy, 296. Gulf, C. & S. F. Ry. Co. v. Loonle, 273^ 2S7, 294. ■ "v. McGowan, 359. V. McMaunewitz, 69. V. Richards, 362. v. Southwick, 309, 317. V. Steele, 22. V. Trott, 10, 94. Gulliver v. Fowler, 371. Gully V. Remy, 141. Gunderson v. iClevator Co., 325. Gunu v. Head, 172. Guuter v. Astor, 74. Guptill V. Verback, 377. Gustafson v. Wind, 225. Guthrie v. I'ussley, 367. V. Wickliffs, 156. Gutta Percha & Rubber Manufg Co. V. Benedict, 153. Gwin V. Breedlove, 195. Gwinu V. Whitaker's Adm'x, 156. H Hackenberry v. Shaw, 141. Hackett v. Railroad Co., 254. Hadley v. Baxendale, 38, 43, 49, 54- 58, 60, 63, 244. 257. 259, 267, 268, 277, 282, 290-293. V. Telegraph Co., 273, 286. Hadsell v. Hancock, 90. Haehl v. Railroad Co., 304. Hagan v Railroad Co., 6, 98, 219. V. Riley, 90. Hager v. Blake, 170, 172. Hagood V. Aikin, 156. Hahn v. Concordia Society, 142. V. Cummings, 366. V. Horstman, 135. Haight V. Hayt, 3. Haines v. Schultz, 203, 208, 214. Hair v. Barnes, 74. Hale V. Bonner, 101, 103. V. Chard Union, 301. V. Lawrence, 14. Hales V. Railroad Co., 59, 255, 257. Haley v. Railroad Co., 305. Hall V. Crowley, 135. V. Dean, 371. V. Hall. 156. 221. V. Iluckins, 153. CASES CITED. [The figures refer to pages.] 401 Hall V. Railroad Co., 231, 331. Hallam v. Post Pub. Co., 113. Hallett V. Noviou, 149. Halley v. Gregg, 113. Hallock V. Slater, 139. Halloway v. Stephens, 59. Hallum V. Dickinson, 157. Halstead v. Nelson, 72, 89. Hamer v. Hathaway, 149, 163, 185. Y. Kirkwood, 148. Hamilton v. Eno, 99. V. Ganyard, 161. V. Jones, 209. V. Kilpatrick, 213. V. Le Grange, 155. V. McPherson, 252. V. MagiU, 38. 61. V. Moore, 130. V. Railroad Co., 13, 14, 98, 203, 210, 261, 263. V. Van Rensselaer, 150, 169. T. Western N. C. R. Co., 60. Hamlin v. Railway Co., 33, 92, 105, 259. Hammer v. Breidenbach, 140. V. Schoenfelder, 61, 244, 245. Hammond v. Bussey, 40, 58, 60, 250. V. Schiff, 118. Hampton v. Jones, 44, 47, 51. Hancock v. Franklin Ins. Co., 196. ^. Hubbell, 26. Hand v. Armstrong, 170, V. Church, 161. flandley v. Chambers, 149. Handy v. Johnson, 101. Haney Manuf g Co. v. Perkins, 17. Haniford v. City of Kansas, 95. Hanley v. Sutherland, 228. Hanmer v. Wilsey, 116. Hanna v. Mills. 240. Hannibal & St. J. R. Co. v. INIartin, 95. 105. Hanover Water Co. v. Ashland Iron Co., 81. Hanson v. Railroad Co., 218, 219, 261. Ilardenbergh v. Railroad Co., 231. Harder v. Harder, 363. Harding v. Larkin, 90, 368, 369. V. Townshend. 118, 342. Hardy v. Nelson, 309. T. Railway Co.. .302. Hare v. Marsh. 212. Harper v. McMains, 215. LAW DAM.— 26 Hargrave v. Penrod, 222. Hargreaves v. Kimberly, 81, 83. Hargrove v. Creighton, 198. Harlow v. Thomas, 370, 371. Harman v. Cuudiff, 208, 211, 214. Harmony v. Bingham, 135. Harper v. Ely, 153, 173. V. Miller, 00. Harrington v. Glenn, 156. V. Murphy, 371. Harris v. Eldred, 117. V. Jaffray, 221. V. Kerr, 30. V. Railroad Co., 179, 233. Harrison v. Cage, 373. V. Charlton, 187, 194. V. Ely, 203, 207, 214. V. Kiser, 359. V. Swift. 102, 373. Hart V. Railroad Co., 218. Plartford & S. Ore Co. v. Miller, 116, 367. Hartshorn v. Railroad Co., 167. Harvey v. Dunlop, 22. V. Railroad Co., 251, 252, 257. V. Snow, 352. Hasbrouck v. Tappen, 134, 136. Haskell v. Hunter, 239. Haskins v. Lumsden, 112. Hastings v. Stetson, 99, 106. v. Wiswall, 174. Hatch V. Fuller, 99, 106. V. Vermont Cent. R. Co., 13. Hatcher v. Pelham, 185. Hatfield v. Railroad Co.. 361, Hathaway v. Lynn, 13(i, 139. Hathorne v. Stiu.son, 29. Hattin v. Chni)man, 374. Hauxhurst v. Ilovey, 153. Havana, R. & E. R. Co. v. Walsh, 2.31. Ilavemeyer v. Cunningham. 67. Haven v. Beidlor Manuf'g Co., 30. v. Wakefield, 61. Haverly v. State Line & S. R. Co., 40, Ilaverstick v. Erie Gas Co., 88. Hawes v. Knowles, 96, 206. V. Woolcock, 197. Hawk V. Anderson, 221. V. Ridgway, 101, 212, 235. Hawn V. Bangliart, 100. Hay V. Reid. 111. 112. Ilavdcn v. Anderson, 119. 402 CASES CITED. [The tijiuros refer to pages.] Hayden v. Bartlett, 1G3. V. Demels, 240, 241. Hayes v. Massachusetts Mut Life Ins. Co., ISl. V. Rfiihvay Co., 150, 107. V. Todd, 110. Hayuer v. Cowden, 208, 211, 212. Haynes v. Erk, 232. Hays V. Creary, 98. V. Railroad Co., 97, 219. Hayward v. Caiu, 118. V. Newtou, 233. Hazard v. Israel, 218. Head v. Railroad Co., 93, 98. Healy v. Gilman, 173. Heard v. Bowers, 136. Heaver v. Lauahan, 117. Ilecht V. Harrison. 30. Heddles v. Railroad Co., 100. Hedrick v. Navigation Co., 328. Hefloy V. Baker, 208. Hegomau V. Railroad Corp., 235. Heideuheimer v. Ellis, 149. Heil V. Glandiug, 212. Heilbroner v. Douglass, 195. Heimburg v Ismay, 366. Heirn v. McCaughan, 258, 259. Heiser v. Loomis, 226. Henderson v. Cansler, 130. V. Chaires, 356. V. Laurens, 174. V. McReyuolds, 110. V. Squire, 90. V. Stainton, 221. Hendrlf'kson v. Anderson, 67. V. Kingsbury, 216. Hendrie v. Neelon, 179. Heneky v. Smith, 208. Hcukos V. City of Minneapolis, 46. Henklo v. Schaub, 17. Ilenly v. Mayor, etc.. of Lyme, 18. Henuershotz v. Gallagher, 365. Hennessy v. Metzger, 135. Henning v. Van Tyne, 157. Hennion's Ex'rs v. Jacobus, 153. Henry v. Davis, 88, 130. V. Flagg. 174 V. Thompson, 171. Hepburn v. Griswold, 195. V. Sewell, 163. Herbert v. Hardeubergh, 221. V. Railway Co., 171. Herbert v. Rainey, 361. llerudon v. Yeuable, 360. Herreshoff v. Tripp, 355. Herring v. Jester, 99. V. Skaggs, 249, 250. Herron v. Telegraph Co., 272, 286. Horsey v. Walsh, 181. Hershey v. Hershey, 174. Hetherington v. Railway Co., 329, 331. Hewitt v. Lumber Co., 162. II(>wlott V. George, 98. 109, 110. Hewson-Herzog Supply Co. v. Minne- sota Brick Co., 242. Hexter v. Knox, 61, 74. Hoyer v. Salsbury, 338. Hey wood v. Hey wood, 199. Hibbard v. Telegraph Co., 11, 26, 265, 283. Hickman v. Haynes, 243. V. Railway Co., 325. Hicks V. Foster. 87. V. Railway Co., 342, 343. Higbie v. Farr, 140. Higgins V. Butcher, 297. V. Dewey, 50. V. Railroad Co.. 208, 214. V. Sargent, 145-147, 154. Higginson v. Weld, 139, 252. Higley v. First Nat. Bank, 156. Hildreth v. Thompson, 356. Hill V. Maupin. 6. V. Myers, 355. V. Railroad Co., 219. V. Smith. 243. V. Taylor, 110. V. Telegraph Co.. 292. HiUhouse v. Mix, 121. Hinchman v. Patterson Horse R. Co., 13. Illnekley v. Beckwith, 61, 75. v. Pittsburgh Bessemer Steel Co., 239. Hiude v. LiddeU, 60, (id, 244. Hiner v. Richter, 365. Hinton v. Sparkes. 138. Hiutz V. Graupner, 113. Hitchcock V. Harrington, 356. Hitt V. Allen, 148. Hixon V. Hixon, 198. Hoadley v. Transportation Co., 49, 50. V. Watson. 89, 207. Hoagland v. Segur, 136, 139, 140. CASES CITED. 403 [The figures refer to pages.] Hoare v. Allen, 155. Hobbs v. Railroad Co., 4, 40, 47, 105, 25S, 259. Hobson V. Tbellusson, 28. V. Trevor, 142. Hodapp y. Sharp, 234. Hodgdon v. Hodgdon, 156. Hodges, Ex parte, 137. V. King, 137. 142. V. Thayer, 3(j7. Hodgkins v. Price, IIG, 3.j3, 354. Hodgson V. Milhvard, 213. Hoffman v. Cliamberlain, 242. V. Railroad Co., 97. Hogan V. Kyle, 3G6. Hogg V. Manufacturing Co., 149. v. Pinckney, 98. Hogue V. Railroad Co., 312. Holbrook v. Tobey, 13G. Holden v. Trust Co., 169. Holdfast V. Shepard, 121. Holland v. Brown, 308, 309. V. Worley, 177. HoUingsworth v. City of Detroit, 173. Hollis V. Telegraph Co., 270. HollOAvay v. Griffith, 374, 377. Holmes v. Blyler, 110. V. Davis, 118. V. Halde. 71. V. Jones, 235. V. Mather, 22. V. Railway Co., 304. V. Weaver, 89. V. Wilson. 85. Holt V. Van Eps, 215. Home Ins. Co. v. Baltimore Warehouse Co., 119. v. Pennsylvania R. Co., 165, 166. Honsee v. Hammond, 29. Hood V. Palm, 224. Hooker v. Newton, 2,36. Hopkins v. Commercial Co., 359. v. Crittenden, 170. V. Lee, 364. V. Orr, 235. V. Railroad Co., 211, 361. V. Shepard, 150. Hoppe V. Railway Co., 71, 328. Hopper V. Haines, 180. Hopple V. Higbee, 114. Home V. Midland R. Co., 60, 62, 245, 250, 257. Horner v. Wood, 36. Hornketh v. Barr, 99. Horsford v. Wright, 370. Horton v. City of Taunton, 47. V. Cooley, 177. Hosking v. Phillips, 303. Hosmer v. Wilson, 239. Hotchkiss V. Jones, 215. Houghkirk v. Canal Co., 71, 322. Houghton V. Page, 145. House V. Female College, 174. Houser v. Pearce, 38. Houston V. Jamisons Adm'r, 175. Houston City St. R. Co. v. Jageman, 98. Houston & G. N. R. Co. v. Randall, 95. Houston & T. C. R. Co. v. Baker, 305. V. Boehm, 71. v. Bradley, 305. V. Burke, 183. V. Cowser, 330. V. Hill, 76. V. Jackson, 256. V. Moore, 305. V. Muldrow, 165. V. Nixon, 327 Hovey v. Edmison, 172. V. Grant, ISO Howard v. Barnard, 233, 234. V. Canal Co., 337. V. Daly, 67 V. Farley, 174. V. Grover, 234. V. Hopkyns. 142. V. Manderfield, 114. Howard County Com'rs v. Leggf, 31ft. Howard OD Co. v. Davis, 72. Howcott V. Collins, 149. Howe V. Ray, 110. Howell V. Goodrich, 77. V. Moores, 370. V. Scoggins, 89. Hoyt V. Thompson, 3. V. Wildfire, 07. Huber v. Teuber, 216. Huckestein v. Allegheny City, 88. Huckle V. Money. 201, 210, 214. Hudson V. Dale, 111. V. Houser, 312. 313. Hudspeth \. Allen, 31. Huerzplor v. Railroad Co., 323. Huey V. Macon Co., 173. 404 CASES CITED. [The figures refer to pages.] Hufford V. Railroad Co., 201. Huftalin v. Misuer, 211. Hughes V. Graeme. 89. V. McDonough, 4'J. V. Telegraph Co., 2TS. Hulbert v. City of Topeka, 299. Hull V. Railway Co., 334. Hummel v. Browu, l-io. Humphreys v. Morton, 173. Humphreysville Copper Co. v. Ver- mont Copper Min. Co., 212. Humphries v. Johnson, 21(j. Hunn V. Railroad Co., 338, 339. Hunt V. D'Orval, 26, 33, 92. V. Improvement Co., 74. V. Jucks, 149. V. O'Neill, 355. V. Raplee, 368. V. Tibbetts, 79. Hunter v. Hatfield, 37C. V. Stewart, 226. Huntingdon & B. T. R. Co. v. Decker, 315. Huntington v. Railroad Co., 67. Huntington & B. T. R. & Coal Co. v. English, 193. Huntley v. Bacon, 206. Huntress v. Burbank. 155. Hurd V. Hall, 371. V. Hubbell, 185. Hurlehy v. Martine, 110. Hurley v. Buchi, 75. V. Jones, 358. Hurst y. Railway Co., 348, 349. Huse V. Loomis Ice & Transp. Co. v. Heinze, 181. Hussey v. Bank, 194. Huston V. Rjiilroad Co., 222. Ilutchins V. Railway Co., 235, 302, 331, 347. V. Roundtree, 369. Hutton T. Windsor, 315. Huxley v. Berg, 44, 51. Hyatt V. Adams, 215. 298, 299. V. Trustees of Village of Rondout, 47. V. Wood, 31. Hyde v. Railway Co.. 302. . V. Stone, 149. 163. 164. Hyde Park » . Gay, 14. Hydraulic Co. v. Chatfield, 170. Hydraulic Engineering Co. v. M'Haffle, 62, 240. Hylton V. Brown, 116. Hynes v. Patterson, 91. I. de S. V. W. do S., 101. Ihl V. Railroad Co., 26, 320, 322, 349. Ikard v. Telegraph Co., 102. Illinois Cent. R. Co. v. Baches. 338. V. Barron, 301, 307, 335, 343. V. Cobb, 00, 01, 09, 256. V. Crudup, 339, 340. V. Grabill, 361. V. Hammer, 218. V. Owens, 256. V. Slater, 319, 338, 339. V. Sutton, 98. V. Welden, 311, 314, 316. Illinois «fc St. L. R. Co. v. Whalen, .332.. Illinois & St. L. Railroad & Coal Co.. V. Cobb, 118. V. Ogle, 359. Imboden v. Mining Co., 110. Independent Ins. Co. v. Thomas, 197. Indiana B. & W. R. Co. v. Allen, 186.. V. Eberle, 82. Indianapolis, B. & W. R. Co. v. Bimey, 47, 64, 201. Indianapolis, P. & C. R. Co. v. Pitzer,. 37. Indianapolis & St. L. R. Co. v. Stables,. 91, 95, 105. Ingalls V. Bills, 60. Ingledew v. Cripps, 142. V. Railroad Co., 255. Ingram v. Rankin, ISO, 189, 194. Inhabitants of Alua v. Plummer, 306.. Inhabitants of Canton v. Smith, 101. Inhabitants of AVestfield v. Mayo, 89, 91. Insurance Co. v. Brame, 298. International Ocean Tel. Co. v. Saun- ders, 104. International & G. N. R. Co. v. Davis, 358. V. Garcia. 220. V. Kindred. 331, 339. V. McNeel, 347. CASES CITED. 405 [The figures refer to pages.] International & G. N. R. Co. v. Miller, 220. T. Nicholson, 182. V. Ormoud, 312. V. Smith, 97, 225. V. Telephone & Tel. Co., 206. T. Wilkes, 97. Iron Mountain R. Co. v. Bingham, 13. Irvin V. Hazleton, 157. Irving V. Greenwood, 377. Irwin V. Askew, 364. V. Dearman, 99. Isaac Newton, The, 162. Isenhart v. Brown, 171. Ives V. Humphreys, 34, 92. Iveson V. Moore, IS. Jacks V. Turner, 154. Jackson v. Cleveland. 133. V. Covert's Adm'rs, 222. V. Evans, 194. V. Hall, 44, 51. V. The Julia Smith, 253. V. Noble, 96. V. Railroad Co., 37, 49. V. Schmidt, 210. V. Town of Bellevieu, 46. V, Turrell, 120. V. Wood, 3.j3, 355. Jackson's Ex'rs v. Lloyd, 155. Jacksonville, T. & K. W. Ry. Co. v. Roberts, 229. Jacobs V. Hoover, 109. V. Railroad Co., 218. V. Sire, 212, 378. Jacobs' Adm'r v. Railroad Co., 211. Jacobson v. Poindexter, 88. Jacobus V. Monongahela Nat. Bank, 90. Jacot V. Emmett, 1.50. Jacques v. Bridgeport Horse R. Co., 72. James v. Chri.sty, 298. v. Railroad Co., 347. .Tane v. Hagon, 155. Janson v. Stuart, 17. •Taqua v. Headiugton. 137. Jaquith v. Hudson, 12<5, 134. Jasper v. Purnell, 211. Jay V. Alniy. 14. 98. Jefferson v. .Adams, 210. Jefferson Co. v. Lewis, 109. Jefferson Co. Sav. Bank v. Eborn, 207. JeffersonviUe M. & I. R. Co. v. Esterle, 83, 116. V. Riley, 35. JeffersonviUe R. Co. v. Rogers, 214. V. Swayne's Adm'r, 303. Jeffrey v. Bigelow. 44. Jellett V. Railroad Co., ISO, 254. Jemmison v. Gray, 133. Jenkins v. Jones, 370. V. McConico, 185, 194. V. Steanka, 222. Jennette v. Sullivan, 374. Jennings v. Johnson, 119. V. Maddox, 210. V. Miller, 135. V. Railway Co., 342. Jennison v. Hapgood, 174. Jerome v. Smith, 212. Jeter v. Glenn, 90, 30S. Jewell V. Grand Trunk Ry., 37. Jewett V. Whitney, 11, 26. J. I. Case Plow Works v. Niles & Scott Co., 249. Joch V. Dankwardt, 93, 95. Jockers v. Boigman, 209. Johannesson v. Borschenius, 117. Johnson v. Allen, 179, 208, 211, 215, 243. V. Atlantic & St. L. R. Co., 157. V. Brown, 222. V. Camp, 211. V. Caulkius, 373, 370. V. Chicago & N. W. Ry. Co., 71. V. Collins. 371. V. Disbrow, 99, 215, V. Druiiimond, 51. V. Gwinn, 136. V. luhabilants of Holyoke, 76. V. Jenkins, 102. 213, 377, 379. V. Marshall, 187, 194. V. Railroad Co., 164, 225, 326, 330, 339, 347. V. Robertson, 99. V. Schultz, 97. V. Smith, 212, 213, 235. V. Stallcup, 197, V. State, 14. V, St ear, 119. V. Summer, 164, V. Travis, 373, 377, 379. 406 CASES CITED. [The fisiiros refor to pa^es.] Johnson v. Von Kettler, 211, 226, 235. V. Weoduiau, 202. V. Wells, Fargo & Co., 93, 95. Johnston v. Bennett. 3. V. Cowan, 137. V. Crawford. 217. T. Morrow, 235. V. Kailwaj' Co., 320. Joice V. Branson, 20S, 210. Jolly V. Single, 44. Jones V. Boyce, 60. V. Call, 74. V. Chamberlain, 198. V. George, 75, 249. v. Gilmore. 49. V. Hannovan, 11, 26, 359. V. Horn, 186. T. Just, 249. T. Manufacturers' Nat. Bank, 155. V. Marshall, 225. V. Matthews, 208. T. National Printing Co., 00. v. Railway Co., 13. V. Reg., 135. T. St. Louis R. Co., 13, V. Tui-pin, 208. Jordan v. Gillen, 3. V. Lewis, 131. V. Middlesex R. Co., 71. Joseph Schlitz Brewing Co. v. Comp- ton, 83. Joshua Barker, The, 253. Joy V. Bitzer. 43. J. 's. Keator Lumber Co. v. St. Croix Boom Corp., 13. Judd V. Dike, 153. Juillard v. Greenman. 195. Jutte V. Hughes. 362. K Kadish v. Young, 239. KalckhofC v. Zoehrlaut, 181. Kaley v. Shed, 114. Kankakee & S. R. Co. v. Horan, 69. Kansas City, Ft. S. & M. R. Co. v. Daughtry, 305. Kansas City Hotel Co. v. Sauer, 90. Kansas City. M. & B. R. Co. v. Riley, 261. V. Sanders, 304. Kansas Pac. Ry. Co. v. Cutter, 302, 307, 343. V. Mihlmau, 81, 84, 85. Kuntzler v. Grant, 378. Kauffman v. Babeock, 72. Kavanaugh v. City of Janesville, 234. Kearney v. Fitzgerald, 90. Keck V. Bieber, 80, 139. Koeble v. Keeble, I3(i. 137, 140. Keeler v. Wood, "JO. 369. Keeuan v. Cavanaui;li. :!6. Keene v. Keene, 147, If.'t. V. Lizardi, 217. Keenholts v. Becker, 78. Kehrig v. Peters, 217. Keil V. Gas Co., 219. Keirnan v. Ileatou, 215. Keith's Ex'r v. Iliukston, 59. Keller v. Railroad Co., 345. V. Strasberger, 240. Kelley v. Bank, 221. V. HiiThfield, 377, 379. V. Railroad Co.. 304, 307, 314. 350. V. Riley, 374. V. Town of Fond du Lac, 47. Kellogg V. Hickok, 155. V. Lavender, 170. V. Malin, 370. V. Railroad Co., 342. V. Sweeney, 197. Kelly V. Railway Co., 340. V. Reufro, 377. V. Rogers. 87. 89. Kelsey v. Mui-phy, 157. Kemble v. Farren. 125. 139. Kemp V. Knickerbocker Ice Co., 124. Kempner v. Cohu, 364. Kendall v. City of Albia, 95, 100, 105. V. Stone, 202. Kendrick v. MeCrary, 100. Kennedy v. Railroad Co., 212, 232. V. Strong, 149, 185. V. Whitwell, 163, 186, 194, 246. V. Woods, 222. Kenney v. Railroad Co.. 148, 349, 350. Kennison v. Taylor, ^XK Kennon v. Gilmer, 95, 2.34. Kenny v. Collier, 26, 74. Kenrig v. Eggleston, 38. Kent V. Bown, 171. V. Ginter, 187. V. Railroad Co., 253. CASES CITED. 407 [The figures refer to pages.] Keatucky Cent. R. Co. v. Gastiueau's Adm'r, 305. Kenyon v. Cameron, 208. V. Telegraph Co., 280. Kerr v. Haverstick, 170. Kester v. Telegraph Co., 104. Kid V. Mitchell, 194. Kidder v. Barker, 31. V. Oxford, 167. Kiene v. Ruff, 17. Kiff V. Youmans. 109, 211. Kilbonrn v. Thompson, 210, 211, 231. Kille V. Ege, 353. Kilpatrick v. Haley, 217. Kimball v. Bryant, 3G7. V. Holmes, 94, 97. Kimel v. Kimel. 362. Kimes v. St. Louis, I. M. & S, Ry. Co. 148. Kimmel v. Burns, 170. King V. Fowlei, 359. V. Ham, 186. V. Howard. 234. V. Little. 355. V. Phillips, 150. V. Richards, 19. V. Root, 202, 214. V. Shepherd, 253. V. Steiren, 67. Kingsbui-y v. Westfall, 117. Kinney v. Folkerts. 95. Kirkman v. Vanlier, 155. Kitchen v. Bank, 154. Klanowski v. Railway Co., 323. Klepsch V. Donald, 304, 305. Klewin v. Bauman, 214. Klingman v. Holmes, 215. Klock V. Robinson, 156. Klopfer V. Bromme, 216. Klumph V. Dunn, 113. Knapp V. Maltby, 134. 136, 137. Knettle v. Crou.se, 175. Knickerbocker Ins. Co. v. Gould, 153. Kniffen v. McConnell, 373-376. Knight V. Carriage Co., 119. V. Egerton, 230. Knowles v. Railroad Co., 208, 210, 214. V. Steele, 31, 365. Knowlton v. Mackay, 136. Knox V. Jones, 148. V. Lee, 195. Koch V. Investment Co., 359. Koeltz V. Bleckman, 235. Koeuigs Y. Jung, 215, 360. Koerner v. Oberly. 96. Koestenbader v. Peirce, 370. Kohler v. Smith. 169. Kolb V. Bankhead, 211, 358. V. O'Brien, 231. Koons V. Miller, 148. Koosorowska v. Glasser, 342. Kopp V. Railroad Co., 359. Korrady v. Railway Co., 349, 350. Koshkonoug v. Burton, 173. Kountz V. Brown, 211. V. Kirkpatrick, 180, 242. Kribs V. Jones, 242. Kroener v. Railroad Co., 232. Krohn v. Oechs, 253. Krom V. Levy, 75. Krug V. Ward, 91. Krumm v. Beach. 366. Kurtz V. Frank, 102, 377. V. Sponable, 141. La Amistad de Rues, 72. Ladd v. Arkell, 198. V. Foster, 304. Laflin v. Willard, 25, 28. Laird v. Pim, 238. Lake v. Merrill, 221. Lake Erie & AV. R. Co. v. Christison, 97. V. Fix, 97, 106, 261, 263. v. Griffin, 118. V. Mugg, 312. 313, 335. Lakeman v. Griunell, 253. Laker v. Damon, 64. Lake Shore & M. S. R. Co. v. Frantz. 71, 92. V. Parker, 344. V. Prentice, 219, 220. V. Rosenzweig, 20S. 218, 219. V. Sunderland, 324. Lambert v. Craig, 234. V. Estes, 368. Lamming v. Galuslia, 22. Lamphear v. Budciiigham, 307. Lampman v. Cochran, 125, 136, 140, 142. Lanahau v. Ward, 170, 174. Landa v. Obcrt, 89. Laudsbergor v. Telegraph ('o., 292. 408 CASES CITEE. [The ligiu-es refer lo pa:?os.] Lane v. Atlantic Works, 3U. Langdon v. Town of Castleton, 173. Lange v. Wagner, 44. Langford v. Owsley, SI. Langston v. Kailroad Co., 109, 173. Lankins v. Terwilliger, 15. Lannen v. Albany Gaslight Co., 45. Lansing v. Dodd, 139. V. Stone, 22. Lantz V. Frey, 221, 222. Lanusse v. Barker, 19S. Laper v. Telegraph Co., 103. Lapleine v. Steamship Co., 37. Lara way v. Perkins, 227. Larios v. Gurety, 43, 48. Larmon v. District of Columbia, 95. Larned v. Buthntou, 113. Larrabee v. Tribune Co., 112. Larson v. Chase, 101. Larwell v. Stevens, 3.33. Lash V. Lambert, 155. Latham v. Brown, 181. V. Darling, 170. Lathers v. Wyman, 36. Latimer v. Hotter, 119. Laurea v. Bernauer, 134. Lavender v. Hudgens, 98. Lavery v. Crooke, 100, 212, 215. Lawless v. Collier's Ex'rs, 368. Lawrence v. Birney, 328. V. Cooke, 373. V. Cowles, 141, 17L V. Hagerman, 91. V. Jenkins, 43. V. Maxwell, 191. V. Railroad Co., 95. T. Rice, 25, 28. Lawrence R. Co. v. Cobb, 166. Lawson v. Raihvay Co., 71, 312. Layton v. Butler, 356. Lazarus v Ely, 114. Lea V. Whitaker, 138. Learned v. Castle, 363. Leary v. Laflin, 136. Leatherberry v. Odell, 67. Leavitt v. Cutler, 374, 376, 379. Le Blanche v. Railroad Co., 66, 260. Le Branthwait v. Halscy, 155. Lee V. Mathews, 185. V. Riley, 43. V. Wilcocks, 198. Leeds v. Cook, 378. V. Metropolitan Gaslight Co., 70. Leffingwell v. Elliott, 90, 309, Legge V. Harlock, 135. Leggett V. Insurance Co., 130. Le Grange v. Hamilton, 155. Lehigh Iron Co v. Rupp, 308, 320, 330. Lehman v. City of Brooklyn, 321, 349. v. Railroad Co., 94. Iceland v. Tousey, 222. Leutz V. Choteau, 76. Leonard v. New York, etc., T. Co., 61. v. Telegraph Co., 68, 69, 273, 294. V. Villars, 174. Le Peintur v. Southeastern Ry. Co., 5. Lesson v. Smith, 235. Letcher v. Woodson, 149. Lett V. Railway Co., 310, 317. Leucker v. Steilen, 100. Levitzky v. Canning, 90. Lewis V. Flint & P. M. Ry., 45. v. Paschal's Adm'r, 174. V. Peake, 2.50. V. Railroad Co., 19.5. V. Rountree. 60, 149. V. Small, 174. V. Walter. 112. Lick V. Faulkner, 195. Lienkauf v. Morris, 211, 217. Liermann v. Railway Co., 315, Lightner v. Menzel, 135. Lillard v. Whitaker, ISO, Lillie V. Lillie, 90. Liuam v. Reeves, ISO. Lincoln v. Claflin, 107. V. Saratogi & S. R. Co., 72. Lindsay v. Anesley. 137. Linsley v. Bushnell, 89, 207, 211. Linton v. Hurley, 3. Linville v. Black, ISO. Lipe V. Eisenlerd, 100. Little V. Banks, 130, 154. V. Railroad Co., 30, 38, 56. V. Stauback, 17. Littlejohn v. Wilcox, 89. Little Rock, M. R. & T. R. Co. v. Lov- erett, 339. Little Rock & Ft. S. Ry. Co. v. Barker, 302, 308, 319, 323, 324, 320, 347. V. Dean, 98. V, Voss, 332. Littlewood v. Mayor, etc.. 299. Lively, The, 72. Livei'more v. Northrup, 115. IJvingston v. Burroughs, 110, 211, CASES CITED. 409 [The figures refer tp pages.] Xiivingston v. Miller, 161. Llewellyn v Rutherford, 74, 1S2. Lobdell V. Stowell, 191. Lockett V. Railway Co., 362. Lockwood V. Onion, 220. V. Railroad Co., 315. Loeb V. Flash, 193. Logan v. Railroad Co., 263. Loker v. Damon, 65, 69. Lombard v. Batehelder, 209. V. Lennox, 99. V. Railroad Co., 235. Long V. Booe, 100. V. Bowring, 112. V, Clapp, 44. V, Lamkin, 117. V. Morrison. 303. Longworth v. Askren, 131. T. Mitchell, 196. Loomis V. Wadhams, 364. Lord Y. Gaddis, 139. V. Manufacturing Co., 82. V. Mayoi. etc., of City of New York, 157. Lord Towusend v. Hughes, 233. Losee v. Buchanan, 22. Lothrop V. Adams. 112. Louder v. Hinson. 210, 214. Loudon V. Taxing Dist., 144. Loughran v. City of Des Moines, 361, 362. Louis V. The Buckeye, 253. Louisville, C. & L. R. Co. v. Mahony's Adm'x. 305, 339. Louisville Gas Co. v. Gutenkuntz, 45. Louisville, N. A. & C. Ry. Co. v. Buck. 350. V. Falvey, 37. 6S. V. .Tones, 37. V. Lucas, 51. V. Power, 38. V. Rush, 303, 324. V. Snyder, 38. V. Sparks, 358. V. Sumuer, 38. V. Wolfe, 219. V. Wood, 37. Louisville, N. & G. S. R. Co. v. Gniiian, 208. Louisville & N. R. Co. v. BaHard. 208, 210, 218. V. Brooks' Adm'.x, 212, 235, 305. V. Burke, 307. Louisville & N. R. Co. v. Conley, 307. v. Foley, 232. v. Garrett, 218. V. Greer, 214. v. Howard, 307. V. Law, 232. V. Mason, 254. V. Northiugton, 37. V. Shivell's Adm'r, 305. V. Stacker, 308. V. Survant, 232. V. Trammell, 314. V. Wallace, 153. V. Whitman, 98, 105, 106. Lowe V. Peers, 134. V. Waller, 145. V. Wing, 120. Lowell V. Boston & L. R. Co., 91. V. Parker, 119. Lowenstein v. Chappell, 36. V. Monroe, 47, 90. Lowery v. Rowland, 358. V. Telegraph Co.. 283. Loweth V. Smith, 85. Lowndes v, Collens, 147. Loyd v. Capps, 365. Lucas V. Flinn, 93, 96. V. Railroad Co., 6, 219. V. Trumbull, 116. V. Wattles, 165. Luce V. Hoisington, 76. V. Insurance Co., 50. Luck V. City of Ripon, 71. Ludlow V. Village of Yonkers, 360. Ludwick V. Huntzinger, 169. Lueck V. Heisler, 214. Lund V. City of New Bedford, 27. Luusford V. Dietrich, 93, 98. V. Walker, 96. Lunt V. Philbrick, 99, 106. V. Wreun, 89. Luse V. Jones. 34. 92. Lustig V. Railroad Co., 345. Luther v. Wiiinisimniet Co., 116, 357. Lyle V. BarkiT, 119. Lyles V. Lyles' Ex'rs, 199. Lyman v. Rabcock, 139. Lynch v. Kniglit. 94, !)!). 101. Lynde v. Thompson, 134, 136. Lynn Gas & Ll,?ctric Co. v. Merldon Fm'c Ins. Co., 44. Lyon v. Bortrnm. 217. V. Gorinloy, 185. 410 CASES CITED. [The figtsres refor to pnsos.l Lyons v. Merrick, 43. Lyon's Adiu'r v. Railroad Co., 349. Lytton V. Baird, 91. M McAdory v. Louisville & N. R. Co., 335. McAfee v. Crofford, 43. McAlister v. Railroad Co., 49. McAllen v. Telegraph Co., 105, 281, 290. McAllister v. Clement, 30. V. Reab, 148. McAneany v. Jewett, 11. McArthur v. Barnes, 213. McBride V. McLaughlin, 211. McCabe v. Morehead, 215. McCafferty v. Griswold, 305. McCall V. McDowell, 98, 295. McCardle v. McGinley, 91. McCarthy v. De Armit, 209, 214. V. Niskern, 208, 211. McCarty v. Quimby, 104. McClanahan v. Porter, 350, McClaunahan v. Smith, 222. McClendon v. Wells, 213. McColl V. Telegraph Co., 283, 292. McCollum V. Seward, 101. McConnel v. Kibbe, 20. McCormick v. Hamilton. 238. V. Railroad Co., 110, 102, 164, 105. V. Showalter, 300. V. Vanatta, 250. McCoy V. Railroad Co., 219. V. Trucks, 100. McCrubb v. Bray, 355. McCuUough V. [Manning, 139. McDaniel v. Crabtree, 75, 90. V. Needham, 110. V. Parks, 07. McDermid v. Redpath, 243. McDonald v. City of Red Wing, 14. V. Hodge, 198. V. North, 104. V. Norton, 215. V. Scaife, 104, 215. V. Snelling, 47. V. Unaka Timber Co., 179. V. Walter, 229, 234. McDougald v. Coward. 99. McDougall V. Walling, 3. McDowell V. The France, 232. V. Railroad Co., 298. Mace V. Ramsey, 70. V. Reed, 218. McElroy v. Goble, 27. McFadden v. Hopkins, 120. McGovern v. Railroad Co., 298, 319. McGowan v. Steel Co., 302, 300. McGown V. Railroad Co., 302, 348. McGrath v. Gegner. 242. McGi'ew V. Harmon, 121. McGuckin v. Milbank, 371. McGuftey v. Humes, 370. McGuinness v. Whalen, 306. McGuire v. Bloomiugdale, 14. V. Grant, 359. McHenry v. Marr, 371. McHose V. Fulmer, 38, 00, 60, 243, 244^ Mcllvaine v. Wilkins, 149. Mcluhill V. Odell, 190. Mclnnis v. Lyman, 307. :\IcInroy v. Dyer, 117, 106. Mclntire v. Clark, 221. Mcintosh V. Lee, 30. Mclntyre v. Giblin, 90. V. Railroad Co., 20, 345, .347. V. Sholty. 208, 210. MacKay v. Railroad Co., 201, 202. V. Telegraph Co., 283, 292. V. W. U. Tel. Co., 59. McKee v. Judd, 3. McKeever v. Railroad Co., 303. McKeigue v. City of Janesville, 339^ 340. McKenney v. Haines, 101. McKensie v. Farrell, 222. McKercher v. Curtis, 242. Mackey v. Harmon, 370. McKim V. Bartlett, 27. Y. Blake, 157. McKinley v. Railroad Co., 71, 91, 97^ 105. McKinnon v. McEwan, 75. V. Penson, 19. McKnight v. Dunlop, 102. V. Ratcliff, 77. McLean County Coal Co. v. Long, 116^ 359. McLees v. Felt, 222. McLendon v. Commissioners, 173. McLeod V. Boulton, 17. McLimans v. City of Lancaster, 157^ McMahau v. Bowe, 353. CASES CITED. 411 [The figures refer to pages.] McMahon v. Field, 25S. Y. Railroad Co., 'Jo, lGO-162. McMaster v. State, 1G2. McMicbael v. Masou, 114. McMillan v. Brick Works, 95. McMuis V. Lyman, 116. McNair v. Comptou, 365. McNamara v. King, 202, 212, 214, V. Village of Clintonville, 37, 71. M'Neill V. Ileid, 75. McNitt V. Clark, 131. Macomber v. Dimliam, 1G9. Macon Co. v. Kodgers, 170. McPtiersou v. Ryan, 208, 213, 373, 375. McQueen v. Fulgliam, 99. MacVeagh v. Bailey, 47. McWliorter v. Sayre, 221. McWilliams v. Bragg, 208. V. Hoban, 98, 214. Magdeburg General Ins. Co. v. Paul- son, 254. Magee v. Holland, 100, 208, 215. V. Lavell, 138. Magmer v. Reuk, 91. Magnin v. Diusmore, 252. Maher v. Winona .& St. P. R. Co., 30. Malaouey v. Belford, 99, 106, 108. Maliurin v. Bickford, 156. Main v. King, 134, 136. Mairs v. Association, 164, 166. Maitland v. (ioldney, 112. Maleverer v. Spinke, 14. Malone v. Hawley, 105. V. Murpby, 98. Managers of the Metropolitan Asylum Dist. V. Hill, 13. Maner v. Wilson, 169. Maugalore, The, 254. Mangan v. Foley, 306. Manice v. Brady, 137. Mann v. Cross, 174. Mann Boudoir-Car Co. v. Dupre, 37, Manning v. Fitch, 61. V. Iron Ore Co., 341. Mann's Ex'rs v. Taylor, 156. Manuville Co. v. City of Worcester, 115. Mauslield v. New York Cent. &. H. R. R. Co., 160, 161. Mansfield Coal iic Coke Co. v. McEn- ery, 312. Manter v. Trucsdale, 73. Manville v. Telegraph Co., 273, 286. Marble v. Chapin, 99. V. City of Worcester, 47. Marburg v. Marburg, 198. March v. Walker, 302, 305. Mai-cy V. Fries, 116, 362. Margaret, The, v. The Connestoga, 88. Margraf v. Muir, 365. Maria, The Anna. 72. Mariani v. Dougherty, 347. Marietta Iron ^^■orks v. Lottimer, 170. Marine Bank v. Fulton Bank, 196. Markham v. Jaudon, 191. V. Russell, 99. Marks v. Long Island R. CJo., 74. Marlow v. Lajeunesse, 73. Marquette, H. & O. R. Co. v. Laugton,. 253. Marr v. Telegraph Co., 286, 294. Marr's Adm'r v. Prather, 198. Marsh v. Billings, 25. V. Fraser, 162. V. McPherson, 242. Marshall v. Anderson, 356. V. Betner, 89, 206. V. Dudley, 149. V. Railroad Co., 253. V. Schrieker, 148. Martin v. Franklin, 198. V. Long, 367. 368. V. Porter, 359. V. State, 162. V. Telegraph Co., 287. Martindale v. Smith, 240. Marzetti v. Williams, 26, 27. Mason v. Bertram, 333. V. Calleuder, 171, 172. V. Decker, 241. V. Hawes, 89. V. Railroad Co.. 299. Massuere v. Dickons, 17, Masters v. Town of Warren, 90, Masterton v. Mayor, etc., of Brooklyn^ 73, 76, 238, 245. V. Village of yit. Vernon, 71, 74. Matheis v. Mazot, 100, 215. Mather v. American Kxp, Co,, 38, 59^ 257. V, Kinike, 197. V. Rillstou, 2:!2. .Mathews v. Sliarp, 138. V. Terry, 14, 412 CASES CITED. [Tho figures rofor to pasos.] Matteson v. Railroad Co., 100, 105. Matthews v. Coe, 101. v. Warner, 303, 305. Mattingly v. Boyd, 155. V. Darwin, 222. Maury v. Coyle, 1G3. Maxwell v. Allen, 134. V. Kennedy, 214. Mayer v. Duke, 114, 212, 236. V. Frobe, 200, 206. V. Reed, 155. Maynard v. Pease, 194. Mayo V. City of Springfield, 115, 116. Mayor, etc., of Jersey City v. O'Cal- lagban, 150. Mayor, etc., of Nashville v. First Nat. Bank, 173. Mead v. Stratton, 50. V. Wheeler, 134, 154. V. Young. 101. Meaders v. Gray, 170. Meagher v. Driscoll, 101, 360. Mears v. Cornwall, 119. Mechanics' & Traders' Bank of Buf- falo V. Farmers' & Mechanics' Nat. Bank of Buffalo, 119. Meech v. Smith, 14S. V. Stoner, 3. Meibus v. Dodge, 212. Meidel v. Anthis, 208. Melcher v. Scruggs, 97, 106. Melchert v. Telegraph Co., 276. Mellor V. Spateman, 26, 29. Melvin v. Chancy, 20. Memphis & C. Packet Co. v. Nagel, 218. Memphis & C. R. Co. v. Whitfield, 95, 100, 211. Memphis & L. R. R. Co. v. Walker, 181. Mendelsohn v. Anaheim Lighter Co., 217, 219. iEenkens v. Menkens, 181. Mentzer v. Telegraph Co., 104. Mercer v. Vose, 161. Mercer's Adm'r v. Beale, 156. Merest v. Harvey, 201. Merrick v. Brainard, 254. Y. Wiltse, 249. Merrifield v. Longmire, 174. JMerrill v. Dibble, 31. V. Men-ill, i;!l. MoniU V. Telegraph Co., 280. INIorrllls V. Manufacturing Co.. 201. Merrimack Manuf'g Co. v. Quintard, 243. Merrymau v. Criddle, 161. Moserve v. Ammidon, 198. Meshke v. Van Doren, 189. Messmore v. New York Shot & Lead Co., 60, 246. Metallic Compression Casting Co. v. Fitchburg R. Co., 14. Metcalf V. Baker, 71. Metropolitan Asylum Dist. v. Hill, 15. Metropolitan Bank v. Van Dyck, 195. Metropolitan El. R. Co. v. Kneeland, 181. Mexican Nat. R. Co. v. Finch, 347. Meyer v. Bohlfiug, 216. V. Roosevelt, 195. Michaelson v. Deuisou, 14. Michigan Land e^ Iron Co. v. Deer Lake Co., 358, 360. Michigan S. & N. I. R. Co. v. Caster, 253. Mickles v. Hart, 28. Middlekauff v. Smith, 69, 75. Middleton v. Jerdee, 30. Mihills Mauuf g Co. v. Day, 245. Milbank v. Dennistown, 166. Miles v. Edwards, 89. V. Miller, 242. Millard v. Brown, 211. Miller v. Bank of New Orleans, 155. V. Burroughs, 169. v. Edwards, 170. V. Grice, 110, V. Hall, 170. V. Hayes, 378. V. Jaunett, 186. V. Kempner, 171. V. Kirby, 209. V. Mariner's Church, 65. V. Melchoer, 353. V. Rosier, 373, 378. V. Roy, 99. V. St. Louis, I. M. & S. Ry. Co., 50. V. Trustees, 243. V. Weeks, 222. V. Wellman, 3.58. Mills V. Pox, 137. V. Paul, 135. V. Town of Jefferson, 173. CASES CITED. 413- [The figures refer to pages.] Milwaukee & M. R. Co. v. Finuey, 220. Milwaukee & St. P. Ry. Co. y. Arms, G, 201. 207, 295. V. Kellogg, 43, 50. Minard v. Beans, 144. Minor v. The Picayune, 72. Miservey v. Snell, 369. Mississippi Cent. R. Co. v. Kennedy, 257. Mississippi & R. R. Boom Co. v. Pat- terson, 178. Mississippi & T. R. Co. v. Ayres, 340. Missouri, K. & T. R. Co. v. City of Ft. Scott, 76. Missouri Pac. Ry. Co. -v Dwyer, 235. V. Henry, 333. V, Humes, 207. V. Kaiser, 98. V. Lee, 332, 344. y. Lebmberg, 314. y. Peay, 231. y. Peregoy, 327, 339. Mitcbell y. Billingsley, 358. y. Clarke, 47. V. Cornell, 76. y. Freedley, 355. y. Jenkins, 20. y. Mitcbell, 353. y. Railway Co., 94, 318, 346 y. Stanley, 370. Mize y. Glenn, 26. Mizner y. Frazier, 73. Mobile ct M. R. Co. y. Ashcraft, 210. y. Jurey, 164, 254. Mobley x. Dayega, 170. Moellering y. Eyans, 359. Mogul S S. Co. y. McGregor, 14, 20. MoUie Gibson Cousol. Mining & Mill- ing Co. y Sharp, 319. Mondel y. Steel, 247. Monmouth Park Ass'n y. Wallis Iron Works, 135. V. Warren, 125. Monnett x. Sturges, 170. Monroe v. Lattin, 76. Montana R. Co. v. Warren, 178. Montgoineiy y. Locke, 358. y. Reed, 3()7. V. Tutt, 174. Montgoin'M-y ic F. R. Co. x. Mallctte, \K>. .Monticc'llo, Tlif. v. Mollison, 118. Moody V. Whitney, 116, 163. Moore y. Aldrich. 185. y. Colt, 136, 130. V. Cross, 209, 210. y. Dayis, 44. y. Fleming, 198. y. Hall, 81, 177. y. Hopkins, 379. y- Hylton, 131. y. Patton, 162. y. Railroad Co., 166. y. Tracy, 222. y. Voughton, 146. Moore's Adm'r y. Minerva, 71. Morehouse v. Comstock, 247. Moreland v. Lawrence, 169. Morey v. Association, 113. y. Gaslight Co., 74. Morford y. Ambrose, 149. Morgan v. Curley, 96, 106. y. Durfee, 306. V. Gregg, 191. V. Kidder, 115. V. Negley, 59. y. Railroad Co., 232. V. Ross, 100. V. Southern Pac. Co., 303. y. Varick, 353. Morley v. Railroad Co., 315. Morrell y. Insurance Co., 142. Morris y. McCoy, 132. y. Phelps, 367. y. Piatt, 15, 22. y. Price, 89. V. Railroad Co., 328. Morrison x. Dayis, 44. y. Publishing Co., 112. V. Robinson, 353, 354. y. Steamship Co., 254, 255. Morse y. Sherman, 240. Morton v. Shoppeo, 101. Moseley y. Anderson, 184. Moses y. Rasin, 243. y. Wallace, 365. Mote y. Railroad Co., 164. Mott V. Mott, 134. Moulton V. Inhabitants of Sanford, 85,. 47. Mounson v. Redsliaw, 154. Miuintford v. Willcs, 146. .Mouse's Case, 14. ' Mowry v. liisho]), 172, 174. V. Telograitii ('o.. 288. Meyer v. Gordon, 93, 97. 414 CASES CITED. [The li&m'es refer to pages.] Mueller v, Kleine, 135. Muenchow v. Roberts, 3G4. Mulcahey v. Giveus, 50. Mulcairns v. Janesville, 315. Muldoou V. Rickey, 20. Muldowney v. Railroad Co., 95, 105. Mulford V. Clewell, 9U. Alullin V. Spangenberg, 212. Mundy v. Culver, 13G, 140. Munro v. Railroad Co., 303. Munroe v. Stickney, 359, 3(j2. Munsell v. Lewis, 3. Munson v. Munson, 115. Munter v. Baude, 209. Murdock v. Railroad Co., 258, 261. Murphy v. City of Fond du Lac, 11, 26, 116. V. Evaus, 222. V. Hobbs, 117, 206, 216. V. Larson, 211. V. Railroad Co., 97, 219, 305, 307, 309. Murray v. Buell, 231. V. Burling, 117. V. Stanton, ISO. V. Ware's Adm'r, 162. Musgrave v. BeckendorfC, 187, 193. Muskegon Curtain-Roll Co. v. Key- stone Manuf'g Co., 239. Musselman v. Barker, 102. Myer v. Hart, 126. V. Wheeler, 187. Myers v. Dresden, 17. V. San Francisco, 303. Mygatt V. Wilcox, 161. Mynning v. Railroad Co., 302. N Nagel V. Railway Co., 306, 323. Nagle V. MuUison. 212, 235. Nance v. Metcalf, 186. Nancy, The Amiable, 72. Nash V. Hamilton, 3. V. Hennosilla, 140. V. Sharpe, 71. V. Towne, 241. Nashville v. Comar. 80. Nashville & C. R. Co. v. Prince, 307. V. Smith, 307. V. Stevens, 307. National Copper Co. v. Minnesota Miu. Co., 82, 84, 85. National Provincial Bank v. Marshall, 142. Nauman v. Caldwell, 191. Needham v. Railroad Co., 302. Negley v. Cowell, 357. Negus V. Simpson, 163. Nebrbas v. Railroad Co., 303. Neiler v. Kelley, 193. Neiswanger v. Squier, 186. Nelson v. Elevating Co., 252. V. Felder, 150, 156. V. Railroad Co., 51, 317. 340, 347. V. Village of AVest Duluth, 359. V. Wallace, 111. Nessle v. Reese, 135. Nettles V. Barnett, 3. Newark Coal Co. v. Upson, 74. Newcomb v. Wallace, 26. Newell V. Houlton, 171. V. Keith, 162. V. Smith, 164, 256. V. Whitcher, 96, 214. New England Iron Co. v. Gilbert Ele- vated R. Co., 240. New England Mortg. Sec. Co. v. Va- der, 172. New Haven Steam-Boat Co. v. Mayor. etc., 44. New Haven ct N. Co. v. Haydeu, 90. New Jersey E.xp. Co. v. Nichols, 71. Newman v. Otto, 222. V. Stein, 99, 106, 208. V. Telegraph Co., 104. V. Wolfson, 135. New Orleans v. Gaines, 353, 355. New Orleans Draining Co. v. De Li- zardi, 163. New Orleans, J. & G. N. R. Co. v. All- britton, 89. V. Hurst, 213, 236, 259. New Orleans, :\L & T. R. Co. v. South- em & A. Tel. Co., 30. New Orleans, St. L. & C. R. Co. v. Burke, 212, 213, 235. Newson's Adm'r v. Douglass, 153. Newsum v. Newsum, 36. Newton v. Kennerly. 169. New York Academy of Music v. Hack- ett, 59. CASES CITED. 415 [The figures refer to pages.] New York Guaranty & Indemnity Co. V. Flynn, 1S5. New York Rubber Co. v. Rotliery, 27. New York .Sc C. Miuiug Syndicate & Co. V. Fraser, 44. Nicholl V. Allen, 19. Nichols V. Eddy, 102. V. Freeman, 304. V. Walter, 807. V. Winfrey, 300. Nicholson t. Couch, 229. v. Rogers, 212, 214. Nickerson v. Jtiigelow, 347. Nielson v. Read, 137. Nightingale v. Scauuell, 210, 211. Niles V. Board. 172, 174. Nith, The, 253. Nitro-Glycerine Ca.se, 22. Niver \\ Rossmau, 132, 139. Nixon V. Stilhvell, 358. Noble V. Allies Maiiuf'g Co., 59. Nobles V. Bates, 135. Noonan v. Ilsley, 194, 199. Nordhaus v. Peterson, 210. Norman v. Rogers, 115. V. Winch, 307. Normanuie, The. 220. Norris v. City of Philadelphia, 157. V. Hall, 155. Norristo^\n v. Moyer, 117. North V. .Johnson, 213. V. Phillips, 193. V. Turner, 3. Northam v. Hurley, 20. Northampton's Case, 112. North Chicago R. M. Co. v. Morris- sey, 344. North Chicago St. R. Co. v. Brodie, 349. Northern, J. & G. N. R. R. Co. v. AUbritton, 207. Northern Transp. Co. v. Sellick, 104. North Hudson County R. Co. v. Buo- raem, 107. North Missouri R. Co. v. Akers, 257. North Pennsylvania R. Co. v. Adaius, 173. V. Kirk, 330, 342. North River Meadow Co. v. Chi'ist Church, 154. Northrup v. McGill, 114. Northwest Traiisu. 0>. V. Bo.slou Ma- rine Ins. Co., 35. Norton v. Babcock, 309. Nossaman v. Rickert, 90, 21G. Notara v. Henderson, 254. Nottmg Hill, The, 50. Nova Scotia Tel. Co. v. American TeL Co., 197. Nowel V. Roake, 355. Noyes v. Phillips, 127, 134. V. Ward, 89. Nutter V. Railroad Co., 229. o Oakes v. Richardson, 149. Oakland Ry. Co. v. Fielding, 93, 90. Oakley Mills Manuf'g Co. v. Neese, 228. Obermyer v. Nichols, 149. O'Brien v. Anuiston IMpe-Works, 135. V. Young, 150. O'CaUaghan v. Bode, 332. O'Couner v. Forster, 251, 252. O'Connor v. Railroad Co., 301. V. Shannon. 358. O'Dounell v. Rosenberg, 135. O'Douoghue v. Carby, 181. Oelrichs v. Spain. 88, 89. Offutt v. Edwards. 87. Ogden V. Marshall, 252. Ogdon V. Gibbous, 225. Ogle V. Earl Vane, 243. O'llanlan v. Railway Co., 179. Ohio ii M. R. Co. v. Heclit, 37. V. Judy, 231. V. Tindall, 303. V. Voight, :U4. V. Wangelin, 349. Ohio ifc ^I. R. N. Co. V. Dickerson, 117. Old Colony It. Co. v. Evans, 306. V. Miller, 107. Oldlield V. Railroad Co., 302, 307. 321. O'Leary v. Rowan. 220. Oliphint V. .Mansheld, 90. Oliver v. Town of La Valle, 37, 40, 94. Ohiistead v. IJrusli. 27. Olson V. Sharpies, 242. V. Solverson, 373. Omaha & CJrant Smelting &, Reliuing Co. V. Tabor, 3.59. O'Malley v. Railway Co.. :V27\. O'.Mara v. i::iilro;i4. (Jwen V. Brockschmidt, 306, 309. Owens v. Kansas City, St. J. & C. B. R. Co., 37. I'acific Exp. Co. v. Black, 102. V. Darnell, 49. Packard v. Slack, 44, 49. Paducah Lumber Co. v. Paducah Wa- ter-Supply Co., 38. Page V. Ford, 43. V. Fowler, 185. V. Newman, 145-147. V. Wells, 366. V. Wiple, 20. Paine v. Caswell, 171. V. Railroad Co., 106, 263. V. Sherwood, 243, 245. Palfrey v. Railroad Co., 298. Palmer v. Andrews, 378. V. Crook, 108. V. Gallup, 28. V. Inhabitants of Andover, 47. V. :Mill, 222. V. Murray, 164. V. Stockwell, 162. V. Wylie, 222. Pana v. Bowler, 150, 173. Paposkey v. Munkwitz, 363. Parana. The. 255. 2.56. Pardee v. Kanady, 240. Parham v. McMurray, 114. Parish v. Wheeler, 120. Park V. Detroit Free Press Co., 111. V. Railway Co., 302. V. Wiley, 153. Parke v. Frank, 229. Parker v. Davis, 195. V. Griswold. 224. V. Hutchins n, 147. V. Meadows, 68. V. Monteith, 100. V. Russell, 80. V. Shackelford, 215. V. Thompson, 150. Parkhurst v. Masteller, 93, 98, 106,. 203, 207. 214. Parks V. City of Boston, 167. V. Marshall, 198. Parks V. Morris Axe & Tool Co., 250. V. Telegraph Co., 272. Parmelee v. Lawrence, 148. Parrott v. Den, 223. V. Ice Co., 165. v. Railroad Co., 164. Parshall v. Minneapolis & St. L. Ry. Co., 71. Parson v. Sexton, 247. Parsons v. Harper, 91, 98. V. Railway Co., 306, 325, 344. V. Sutton, 66, 67, 244. Paschal v. Owen, 315. Pasley v. Freeman, 8. Passenge v. Thorburn, 249. Passinger v. Thorburn, 75. Pastorius v. Fisher, 25. Patent Brick Co. v. Moore, 135. Patrick v. Colorado Smelting Co., 25. V. Greenaway, 29. Patten v. Libbey, 227. V. Railway Co., 235. Patterson v. Ely, 222. V. Stewart, 370. V. Wallace, 302. V. Westervelt, 28. Patton V. Garrett, 90, 206. Paul V. Dod, 240. V. Frazier, 374. V. Mayor, etc., of New York, 154. V. Slason, 17, 25. Panning v. Creagh's Adm'r, 172. Paulmier v. Railroad Co., 333. Pauska v. Dans. 1.50. 151. Pavey V. Insurance Co., 234. CASES CITED. 417 [The figures refer to pages.] Paxton V. Boyer, 15, 22. Payne v. Allen, 14. V. Morgan's L. & T. R. & S. S. Co., 75. Peace River Pbosphate Go. v. Graf- flin, 245. Pearce v, Hennessy, 169. V. Xeedliam, lO'J. Pearsall v. Telegraph Co., 274, 275. Pearse v. Coaker, 355. Pearson v. Carr, 80. T. Williams' Adm'rs, 142. Pease v. Smith, 1(54. Peck V. Small, 208, 211, 214. Peckham Iron Co. v. Harper. 89, 207. Pegram v. Stortz, 97, 206. Peirce v. Rowe, 174. Peltz V. Eicliele, 74. Pendergast v. McCaslin, 355. Pendleton St. R. Co. v. Rahmann, 234. Penley v. Watts, 371. Pennsylvania Coal Co. v. Nee, 323, 325. Pennsylvania Co. v. Bray, 98. V. Keane, 338. V. Lilly, 308, 319, 351. V, Marion, 117. V. Roney, 15. Pennsylvania R. Co. v. Adams, 330. V. Bantom, 308, 319. V. Butler. 302, 312. V. Connell, 97, 106, 261, 263. V. Dale, 71. V. Goodman, 303, 317, 318. V. Henderson, 307, 312, 323. V. Keller, 330. V. Kelly, 93, 96. V. Ogier, 343, 344. V. Rcicliert, 142. V. Spicker, 97. V. Titusville tickney v. Allen. 114. Stiles V. Tilford, 100. Still V. Hall, 162. Stillwell V. Temple, 138. Stilson V. Gibbs, 205. 208. Stilwell & Bierce Manuf'g Co. v. Phelps, 242. Stimpson v. The Railroads, 88, 202. Stimson v. Farnhaui, 28. Stirling v. Garritee, 185. Stockbridgf! Iron Co. v. Cone Iron Works, 3.")8. Stockton v. Frey, 95. Stodghill V. Railroad Co., 82, 83. Slohcr V. Raihvjiy Co.. :i(ti;. 316. Stokely v. Thompson. 171. Stollcnwerck v. Tli.*i«licr, 115. Stone V. Bennett, 150. Stone v. Codman, 47. Storey v. Early, 108. V. Wallace, 111. Storrie v. Marshall, 302. Stoudenmeier v. Williamson, 166. Stoughton V. Lynch, 173. Stout V. Prall, 6, 100, 374. Stowe V. Heywood, 100. Stowell V. Lincoln, 26. Stratton v. Dole, 373. Struwn V. Coggswell, 74. Streeper v. Williams, 134. Street v. Blay, 247. v. Nelson, 193. Streeter v. Rush, 135, 136. Streubel v. Railroad Co., 2. Stribley v. Welz, 373. Stringer v. Coombs, 197, 198. Strohm v. New York, L. E. & W. R. Co., 71. Strong V. City of Stevens Point, 326. V. Hooe, 234. Strutzel V. Railway Co., 325. Stuart V. Binsse, 153. V. Telegraph Co., 103, 296. Studabaker v. White, 130. Stull V. Graham, 356. Sturgeon v. Railroad Co., 256. Sturgess v. Bissell, 253. Sturgis V. Frost, 91. Stutz V. Railroad Co.. 98, 10."). 106, 263. Succession of Anderson, 150. Succession of Mann, 150. Sullens V. Railway Co., 357. Sullivan v. Navigation Co., 208, 2JS. 219, 225. V. Railway Co., 109, 298. V. Tuck, 189. Summerlield v. Telegraph Co., 99, 104. Sumner v. Beebe, 154, 156. V. Williams, 367, 368. Sunuyside Coal iV: Coke Co. v. Reitz, 359. Surocco v. Geary, 14. Sutherland v. Wyer, 64, 67. Sutro Tunnel i'o. v. Segregated Bol'-h- er Min. Co.. 150. Suttle v. llntchiiison. 219. Sutton V. Howard, 131. V. Town of Wauwatosa, 35. Snydani v. .[cnUiiis, 4, 184, 1S7-18U, 2 !_'. Swails V. Cis.sna, 157. 426 CASES CITED. [The figures refer to pages.] Swain v. Scbiettelin, 250. Swan V. Timmous, 89. Swanscot Mach. Co. v. Partridge, 154. Swarthout v. Steamboat Co., 225. Swartz V. Ballou, 369. Swett V. Hooper, 154. Swift V. Diclierman, 99. V. Plessner, 89. V. Powell, 138. Swinfin v. Lowry, 45. Sykes v. Pawlet, 47. V. Railway Co., 329. Symes v. Oliver, 189. T Taber v. Hutsou, 96, 97, 216. Talbot V. Whipple, 116. Talcott V. Marston, 137, 169, 171. Talladego Ins. Oo. v. Peacock, 153. Talliaferro's Ex'rs v. King's Adm'r, 174. Tally V. Ayres, 36. Tambaco v. Simpson, 117. Tapling V. Joneh, 9. Tarleton v. MGawley, 48. Tarpley v. Bldbey, 110. Tate V. Doe. 355. Tatnall v. Courtney, 96. Tatum V. Manning, 194. Taul V. Bveret, 131. Tayloe v. Sandiford, 135. Taylor v. Carpenter, 217. V. Coolidge. 109. V. Davis, 98. V. Ketchum. 185. V. Morgan, 215. V. Morton, 89. V. Plymouth, 15. V. Railway Co., 211. V. Shelkett, 100. V. Taylor, 353. V. Town of Monroe, 226. V. Wallace, 368. V. Whitehead, 15. V. Wing, 170. Taylor, B. & H. Ry. Co. v. Warner, 302, 347. Teagarden v. Hetfield, 51, 227. Telegraph, The, 253. Telegraph Co. v. Griswold, 286. Telfer v. Railroad Co., 325. Templemau v. Fauntleroy, 155. Tennessee Coal & R. Co. v. Roddy^ 231, 308. Tennessee Mauuf'g Co. v. James, 136. Tenuey v. Smith, 110. Tenth Nat. Bank v. Mayor, etc., of New York, 150. Terre Haute & I. R. Co. v. Brunker^ 10, 94. V. Buck. 37. 50. Terry v. Drabeustadt, 370. V. Jewett. 342. V. Mayor, etc., 118. TerwuUige:- v. Wands, 94, 99. Tetherow v. Railway Co., 315. Texas Mex. R. Co. v. Douglas, 95. Texas T. R. Co. v. Johnson, 217. Texas W. Ry. Co. v. Gentry, 181. Texas & P. Ry. Co. v. Geiger, 314. V. Hohu. 232. V. Hudman, 347. V. Lester. 331, 333. V. Levi, lis V. Robertson, 312. v. Tankersley, 164. Texas & St. L. R. Co. v. Young. 75. Thatcher v. Massey, 169. Thayer v. Brooks, 81. V. Wilmington Star Min. Co., 172:. Theiss v. Weiss, 242. Thew V. Miller, 186. Thibault v. Sessions, 111, 113. Thill V. Pohlman, 208, 213, 236. Third Nat. Bank of Baltimore v. Boyd, 195. Thirteenth & F. St. P. Ry. v. Bou- drou, 2. Thomas v. Brackney, 29. V. Railroad Co., 345. V. Sternheimer, 163. V. Thomas' Ex'i-, 354. V. W^eed, 149, 165. V. Wells. 161 Thomas, B. & W. Manuf'g Co. t, Wabash, St. L. & P. R. Co., 49, 59i. 06, 77. Thompson v. Alger, 239. V. Boston & M. R.. 155. V. Hoskins, 121. V, Hudson, 131. V. Improvement Co., 39. V. Johnstoa. 339. V. Lumley, 222. CASES CITED. 427 [The figures refer to pases.] Thompson v. Pickel, 170. V. Powning, S'J. V. Railroad. 16S. V. Riggs, 196. V. Shattuck. 64. V. Telegraph Co., 102, 104. Thorns v. Dingley, 249, 250. Thomson-Houston Electric Co. of New York Y. Durant Land-Imp. Co., 58, 371. Thorn y. Knapp, 6, 102, 213, 372, 375, 378, 379. Thome v. McVeagh, 60, 250. Thornton y. Turner, 2. Thorp V. Bradley, 26, 30, 224. Thrall y. Knapp, 109. Y. Lathrop, 164. Thrasher y. Tyack, 356. Thurston y. Hancock, 359. Thurston v. Martin, 233. Tice V. Munn, 37. Tidman v. Ainslie, 112. Tierney v. Whiting, 371. Tilley v. Railroad Co., 302, 309, 316, 344. Tillman v. Morton, 174. Tillotson V. Smith, 27 116. Tingley v. Cutler. 13« Titus Y. Corkins, 89, 207. 214. Tobin Y. Railway Co., 30G. Y. Shaw. 102, 372, 374. Todd Y. Botchford, 150. Tode V. Gross. 1.34. Toledo, P. dc W. Ry. Co. v. Johnston, 165. V. Patterson. 231. Toledo, W. & W. R. Co. V. Baddeley, 95. V. Bcals. 234. Y. McDonoueh. 97. Y. Roberts, 209. Toll Y. Hiller, 172 Tomlinson y. Derby, 226. V. Railroad Co., 210, 263. Tone V. Wilson, 367. Tootle V. Clifton, 3.59. Torp V. Gulseth, 120. Torry y. Black, 114. 'J'own of Fowler v. Linquist, 232. Town of Genoa y. Woodrnfl", 173. Town of Nappanoo v. Rufkm.iii. 95. Town of Royaiton v. Royallon &:. \V. Turnpike Co., 79. Town of Troy v. Cheshire R. Co., 82^ 83, 84. Town of Union y. Durkes, 235. Town of Wheatlauds y. Taylor, 141. Townsend v. Briggs, 96, 232. Y. Nickorsou Wharf Co., 61, 74. Tracy y. Gunn, 366. Y. Swartwout, 211. Trafford y. Express Co., 307. Trapnall v. ^McAfee, 89. Trauermau y. Lippincott, 300. Travers y. Railway Co., 21S. TraYis Y. DufL'au, 43. Trent & Humber Co., In re, 61. Trigg Y. Clay, 243. Y. Railway Co., 99, 261. Trimble y. Spiller, 96. Trinity Church y. Higgins, 371. Tripp Y. Grouner, 210. l"i-out Y. Kennedy, 180. Trowbridge v. Holcuiub, 199. Trower y. Elder, 139. True Y. Telegraph Co., 61, 274, Trull Y. Granger, 365. Truman y. Railway Co., 13. Trustees of First Orthodox Congrega- tional Church Y. Walrath, 139. Trustees of Howard College v. Turner,. SO. Tubbs Y. Van Kleek, 374. Tucker y. GroYcr, 161. Y. Newman, 362 Y. Parks 222. Y. Wright, 115. Tufts Y. Adams. 371. Y. Bennett, 238. l"^ller V. Carter, 163. Tullidge Y. Wade, 201. ■rally Y. Fitcliburg R. Co., 26. 'I'nnhridtrc Wells Dljiper's Case, 29. l\innicliffe v. Railroad Co., 101. Turner \. Dawson, 148. Y. Iladden, SO. Y. Miller. .368. 369. Y. Railroad Co., 219. 304. Y. Telegraph Co.. 273. Turner's Case, 14. Turney v. Smith, 356. 1 uriou Y. Reiunlcr Co., 111. 'I'ntcur V. Railroad Co., 338. I'ylfr Y. Ponieroy, 105. V. Saffonl, S'.i. V. Sallcy, ;'.72, 374. 428 CASES CITED. The ti.iriires i-ofer lO pajjes.] Tyler v. Telegraph Co., 104, 273, 286. Tyuer v. Hays, 221, 222. Tyng V. Commercial Warehouse Co. 1S5. Tyson v. Ewing, 200, 215. u Ulbricht V. Eufaula Water Co., 27. Uline V. Railroad Co., 81-83, 8G. Underwood v. Wolf, 247. Union Pac. Ry. Co. v. Dimdeu, 323, 325. V. Hause, 206. V. Shook, 228. Union Sav. Inst. v. Boston, 170. Union Trust Co. v. Cuppy, 81. U. S. V. Alden, 14. V. Magoon, 358. V. North Bloomfield Gravel Min. Co., 14. V. Taylor, 207. 210, 214, 360. U. S. Bank v. Chapin, 169. U. S. Exp. Co. V. Haines, 256. V. Meints, 119. U. S. Tel. Co. V. Gildersleve, 292. V. Wenger, 274, 287. U. S. Trust Co. V. O'Brien, 371. Upham V. Dickinson, 235. Upjohn V. Board, 22. Tallery v. State, 111. Vallo V. United States Exp. Co., 15. Valpy V. Oakeley, 243. Van Alen v. Rogers, 352, 353. Van Arsdale v. Rundel, 61. Van Benschooten v. Lawson, 172. Van Brocklen v. Smeallie, 241. Van Brunt v. Railroad Co., 348. Vandenburgh v. Truax, 38. Vanderpool v. Richardson, 103, 372, 373, 375. Vanderslice v. City of Philadelphia, 361. Van Derreer v. Sutphin, 112. Vandervoort v. Gould, 353. Van Deusen v. Young, 363. Van de Venter v. Railway Co., 95. Vanduzor v. Linderman, 20. Van Hoozler v. Railroad Co., 81. Van Husan v. Kanouse, 174, 195. Van Norden v. Robinson, 22. Van Orsdol v. Railroad Co., 82. Van Pelt v. McGraw, 120. Van Rensselaer v Dole, 17. V. Jewett, 161. V. Jones, 161. Van Rensselaer's Ex'rs v. Jewett, 161. V. Platner's Ex'rs, 222. Van Winkle v. Wilkins, 44. Van Winter v. Henry Co., 235. \'au Wyck v. Allen, 75, 249. Varco V. Raili\-ay Co., 165. Vaughan v. Kennan, 175. Vedder v. Hildreth, 44. ^'eiths V. Hdgge, 148. Vera Cruz, The, 299. Vermilya v. Railway Co., 359. Vermont State Baptist Convention v, Ladd, 153 Vette V. U. S., 167. Vicars v. Wilcocks, 47. Vickery v. McCormick, 61. Vicksburg & J. R. Co. v. Patton, 211, 218. Vicksburg & M. R. Co. v. Ragsdale, 257. V. Sea Ulan, 208. Victorian Railways Commissioners v. Coultas, 94, 260. Village of Carterville v. Cook, 46. Village of Sheridan v. Hibbard, 105. Vinal V. Core, 98. Voltz V. Blackmar, 109, 201. Von Hemert v. Porter. 173. Von Storch v. Griffin. 378. Vorse V. Phillips, 87, 90. Vosburg V. Putney, 37. Vosburgh v. Welch. 116. Vossen v. Dautel, 15. W Wabash, St. L. & P. Ry. Co. v. Locke, 19, 37. V. Rector, 212, 218, 235. Wabash W. R. Co. v. Friedman, 226. 232 Wabash & W. R. Co. v. :Morgau, 95. CASES CITED. 429 friif- fiETiires refer to pa pes.] Wade T. Leroy, 71. Wadsworth v. Telegraph Co., 93, 102. 104. V. Treat, 96. Waggoner v. Cox. 131. Wagner v. Peterson, 193. Wainwright y. Weske, 222. Wakefield v. Beckley, 141. Wakeman v. Manufacturing Co., 75. Waldo V. Goodsell, 307. Waldron v. Willard, 3. Walker v. Borland. 194. V. Cruikshank, 20. T. Engler, 135, 137. v. Erie Ry. Co., 71. V. France, 365. V. Fuller, 210. V. Railroad Co., 95, 233, 300. V. Smith, 228. Wall V. City of London Real Property Co., 4. Wallace v. Berdell, 354. V. Goodall, 358. V. Railroad Co., 95, 105. V. York, 90. Waller v. Long, 131. V. Waller, 210. Wallis V. Smith, 138. Walrath v. Redfield. 165. Walser v. Telegraph Co., 280. Walsh V. Railway Co., 92, 105, 260. Walter v. Post, 118. Walters v. Chamberlain, 359. V. Railroad Co., 328, 340. Walton V. Meeks, 305. V. Walton, 223. Walworth v. Pool, 67. Wanamaker v. Bowes, 210. Ward V. Ashbrook, 371. V. Benson, 114. V. Blackwood. 9(3, 211. V. Dean, 113. V. Deane, 99. V. Hudson River Bldg. Co., 135. V. .Tewett. 142. V. Manufacturing Co., 112. V. New Yoik C. R. Co., .56, 255. v. Smith. 74, 1.55. 227. V. Thompson, 97. Wardrobe v. Stage Co., 217. Ward's C. & P. L. Co. v. Elklns, 251. Ware v. Simmons. 156. V. N\'aler Co., 95. Warmouth v. Cramer, 17. Warner v. Bacon, 79. V. Chamberlain, 100. V. Juif, 170. V. Publishing Co., 99, 107. Warre v. Calvert, 26. Warren v. Boston & M. R. Co., 94. V. Cole, 88. V. Franklin Ins. Co., 197. Warwick v. Hutchinson, 49. Waters v. Greenleaf-Johuson Lumber Co., 4. v. Towers, 44. Watkin v. Hall, 112. Watkins v. Morgan, 147. V. Rist, 64. Watkinson v. Laughton, 149. Watson V. Ambergate, 73. V. Christie, 109. V. Fuller. 156. v. Harmon, 229, 233. V. Inhabitants of Needham, 245. Watt V. Hoch, 148. V. Potter, 185. Watterson v. Allegheny Val. R. Co., 76. Watts V. Camors. 139. V. Watts, 171. Watts' Ex'rs v. Sheppard, 140, 141. Weaver v. Bachert, 374. V. Page, 231. v. Penny, 49. Webb V. Oilman, 208, 210, 212, 214. V. Gross. 27. V. Portland Manuf g Co., 8, 12, 16, 25, 26, 29. V. Railway Co., 302, 333. Weber v. Anderson, 367. V. Citj-^ of Creston, 95. V. Morris & E. R. Co., 118. Webster v. Moe, 3.58. Weeks v. Barton, 369. V. Little, 135. V. Prescott, 47. Wegner v. Second Ward Sav. Bank, 150, 181. Wehle V. Butler. 114, 149. 164. V. Havilaiid, 76. V. Speliiijin, 114. Weir v. Allcglieny Co., 151. Wohli v. Aiidcrsnu, 59. v. Dnraiid, .S8. V. .lugt'iilieimer, 97. 430 CASES CIIED. [The figures refer to [lasos.] Welch V. McDonald, 135. V. Railroad Co.. 87, 89, 347. V. Ware. 71. Weld V. Reilly, 115. Weller v. Railway Co., 347. Wells V. Abernethy, 31)4. V. New Haven & Northamptuu Co., S3, 86. V. Padgett, 372-374. V. Railway Co., 302, 312. Wells, Fargo & Co. Exp. v. Fuller, 102. Welsh V. Cheek, 20. V. Railroad Co., 173. V. Stewart, 225. Wemple v. Stewart, 179. Wentworth v. Dows, 248. Wernwag v. Mothcrshead, 171. Wesson v. Iron Co., 3G2. West V. Forrest, 9G, 105. V. Telegraph Co., 104, 296. V. Wentworth, 190. Westcott V. Middleton, 33, 92. V. Railroad Co., 350. Western Manuf g Co. v. The Guiding Star, 254. Western Ry. of Alabama v. Mutch, 45. W. U. Tel. Co. V. Adams, 103- V. Andrews, 102. V. Bates, 272. V. Berdine, 106. V. Beringer, 103. V. Blanchard, 286. V. Bowen, 275, 281. V. Broesche, 103. V. Brown. 103. 271. V. Carter, 102. 103, 284. V. Clifton, 281. V. Cline, 104. V. Coggin, 104. V. Collins, 269. V. Cooper, 101, 105, 277, 279. V. Corn well. 284. V. Crall, 73, 282. V. Cunningham, 104. V. De .Tarles. 103. T. Du Bois, 273. V. Erwin. 103. V. Evans. 103. V. Eyser. 211, 218. V. Fatman, 275. 292. V. Feegles. 103 V. Fellner. 278. V. GrahaJi, 283. W. U. Tel. Co. V. Hall, 49, 73, 279, 292. V. Haman, 271, 287. V. Hearne, 294. V. Henderson, 104, 296. V. Ilobson, 273. V. Hopkins, 222. V. Hyer Bros., 271, 290, 292. V. .T. A. Kemp Grocer Co., 283, 284. V. .Tames, 270. V. Jobe, 273, 289. V. Johusou, 103. V. Keudzora, 277. V. Kirkpatric'k. 103. V. Lanilis. 269. V. Linn, 102. V. Linney. 269. V. Lively, 283. V. Longwill, 276. V. Lowrey, 288. V. Martin. 292. V. May, 103. V. Moore, 103. V. Motley, 102. V. Nations, 103. V. Newhouse, 104. V. Pai'ks, 278 V. Parlin & Orendorff Co., 284. V. Proctor. 273. V. Reynolds, 292. V. Robinson, 276. V. Rogers. 99, 104. 267. V. Rosen trcter, 103. V. Sheffield, 272, 289. V. Short, 285. V. Simpson. 103. V. Smith, 278, 286. V. Stephens, 102. V. Stevens, 270. V. Stone. 102. V. Valentine. 275. V. Ward, 103. V. Way, 291, 292. V. Williford, 269, 286, 288. V. Wilson, 292. V. Wingate, 102. V. Wood, 104. Western & A. R. Co. v. McCauley, 165. V. Meigs, 342. V. Young, 100, 163. 166. Westervelt v. Gregg. 2. Westfield v. Westfield. 170. Weston v. Railway Co.. 255. Wetzel V. Richcreek, 371. CASES CITED. 431 [The figures refer to pages.] "Whalley v. Pepper, 20. Wheatley v. Thorn, 216. Wheaton v. Pike. 174, 175. Wheelan v. Railway Co., 340. Wheeler v. Coimty of Newberry, 154. V. Hansou, 96. V. Pereles, 119 V. Randall, 43. Wheeler & Wilson Manuf'g Co. v. Boyce. 208, 218. V. Thompson, 249. Wheelock v. Wheelwright, 117. Wheelright v Beers, 253. Whipple V. Manufacturing Co., 17, 88, 233. V. Weauskuck Co., 360. White V. Ball )U. 50. V. Canuada. 221. V. Clack, 3.55. V. Dresser. 97. V. litis, 171. V. Lyons, 150. V. Miller. 75, 162, 249. V. Moseley, 360. V. Murtland, 100. V. Salisbury, 194. V. Stage Co., 222, 223. V. Stoner, 363. V. Webb, 120. Whitehall Transp. Co. v. New Jersey Steaoi Boat Co.. 166. Whitehead v. Kennedy, 235. Whitehouse v. Fellowes, 85. White Sewing- :Mach. Co. v. Richter, 37. Whiteside v. Jennings, 364, 365. Whitfield V. Westbrook, 211. V. Whitfield, 184, 194, 215. Whitford v. Railroad Co., 299, 307. W'hitham V. Kershaw, 4. "Whitmarsh v. Littlefield, 67. Whitmore v. Bischoff, 81, Whitney v. Allaire, 2, 27. V. liltchcock, 96, 215. V. Railroad Co., 164, 253, V. State, 154. V. Thacher. 197. Whiton V. Railroad Co., .302, 317. Whilson V. Gray, 76. Wliittemore v. Cutler, 25, 88. Whitten V. Fuller, 115. Wliitworth V. Hart, 1.53. Wibaux V. Live Stuck Co., 140. Wichita &. W. R Co. v. Beebe, 77. Wiggin V. Coffin, 202, 233. Wilbur V. Johnson, 102, 372, 374, WUcox v. Campbell, 69. v. Railroad Co., 92. Wilcus V. Kling, 135, 136. Wilds V. Bogau. 102, 374. Wiley V. Keokuk, 110. V. Railroad Co., 49. Wilhoit V. Hancock, 100. Wilkinson v. Collej', 136. V. Davies, 38. V. Drew. 211, 225. V. Searcy 211. Willard v. Holmes, Booth & Haydens, 99, 231. Wilier V. Navigation Co., 74. Williams v. Bank, 154. V. Burg, 368. V. Chicago Coal Co., 67. V. Crum. 186 v. Dakin, 134. V. Esling. 31. T. Hollingsworth, 376. V. Jones, 198, 239. V. Mostyn, 28, 31. V. Reynolds, 245. V. Sims, 198. V. Vanderbilt. 38, 259, 260. V. Water Co., 81. V. Williams, 215. Williams' Case. 18, 19. Williamson v. Broughton, 150. Williar v. Association, 2. Willinghani v. Hooven, 75. Willings V. Cousequa, 14Q, 155. Willis V. Branch, 74. V. City of Perry, 22. V. McNeill. 2.36. V. McNott, 164. AVilloughby v. Backhouse, 2. Wills V. Allison. 197. Wlllson V. Railroad Co.. 98. Wilsey v. Railroad Co., 98. Wilson V. Bowen. 205. 208. V. City of Troy, 165. V. Cobb, 150. V. Dean, 131. V. Duck Co.. 43, 55, 56, GO. V. Dunville. .38. V. <;porge. 198. V. (Juit, 99. 432 CASES CITED. [The figures reter to pages.] Wilson V. The Mary, 14. V. Matlle^YS, 190. V. Middleton, 216. V. Railroad Co., 38, 50, 255, 257. V, Keed}-, 250. V. Slopler, 100. V. Vaughn, 208, 210. Wiltse V. Town of Tildeu, 339. Winch V. Ice Co., 154. , Winchester v. Craig, 116, 163, 358. V. Stevens Point, 81. Winkler v. Kailroad Co., 50. V. Roeder, 87. Winn V. Pecldiam, 212, 214. Winne v. Kelley, 61. Winnt V. Railway Co., 330. Winslow V. Lane, 75. V. McCall, 371. V. Stokes, 77. Winstead v. Hulme, 87, 207. Winter v. Peterson, 6, 215. Winterbottom v. Derby, 18. V. Wright, 27. Winterburn v. Brooks, 14. Wintermute v. Cooke, 181. Wintz V. Morrison, 44. AVire v. Foster, 2-43. Wisdom V. Reeves, 354. Wise V. Teerpenning, 302. Witherow v. Briggs, 171. Withers v. Green, 247, 248, V. Henley, SO. V. Reynolds, 79. Wittich V. O'Neal, 89. Wolilenberg v. Melchert, 232. Wolcott V. Mount, 61, 70, 75, 249. Wolf V. St. Louis Independent Water Co., 69. V. Studebaker, 67. V. Trinlcle, 96, 106. Wolfe V. Railway Co., 320. Wolff V. Cohen, 216. Wolford V. Mining Co., 347. Womack v. Fudikar, 20. Wood V. BuUeus. 195. V. Lane, 101. V. Robbins, 148. V. Wand, 27. Woodbury v. Turner, Day & Wool- worth Manuf'g Co., 134. Woodger v. Railway Co., 255. Woodhull v. Rosenthal, 353, 354. V. Wagner, 198. Woodin V. Wentworth, 74. Woodman v. Nottingliam. 4. Woodmansie v. Logan, 20. Woodruff V. Cook, 222, 227. V. Webb, 169. Woods V McCall, 115. Woodward v. Glidden, 109. V. Railroad Co., 164. V. Woodward, 150. Worden v Railroad Co., 339. Work V. Bennett, 193. V. Glaskius, 155. Worrall v. Munn, 363. Worrell v. McCliuaghan, 135. Worster v. Bridge Co.. 232. Wright V. Bank, 188, 192. V. Compton, 225. V. Davenport, 248. V. Donuell, 209. V. Mulvauey, 74, 76. V. Nipple, 371. V. AVright, m. Wulstein v. Mohlman, 44, 51, 97. Wunderlich v. Mayor, etc., of New York, 231. Wylie V. Birch, 28. Wyman v. Leavitt. 94. Wynne v. Parsons, 17, 89, 207. Yale V. Saunders. 117. Yater v. Mullen, 185. Yates V. Joyce, 1. V. Railroad Co.. 210, 261, 263. V. Wliyte. 118. Yeager v. Weaver, 365. Yeates v. Reed, 17. Yellowby v. Commissioners of Pitt Co., 154. Yellow Pine Lumber Co. v. Carroll, 1.54. Yelton V. Slinliard, 164. Y'enner v. Hammond, 1.34. Yerian v. Linkletter, 211. Yetter v. Hudson, 125, 131. Yoakum v. Dunn, 92. V. Kroeger, 10, 94. Yokom V. McBride. 365. Yorton v. Railway Co., 70, 258. 261,'. 262. Young V. Courtney, 88. CASES CITED. 433 [Tbe figures refer to pages.] Young T. Cureton. 76. v. Godbe. 147. T. Hill. 172. 174. V. Johnson, 113. V. Mertens. 241. V. Polack. 147. T. Spencer, 31. V. Telegraph Co.. 03. T. Thompson. 170. T. White, 135. Yount V. Carnej-, OS. Yundt T. Hartrnnlt. 100. LAW DAM.— 3S Zabriskie v. Central Vt. R. Co.. 24S. V. Smith, 3, 121. Zeigler v. Wells, Fargo & Co., 181. Zeliff V. Jennings, 09. Zemindar Case, 13. Zenobia, The, 200. Ziebarth v. Nye. 82, 359, Ziegler v. Powell, 01. 216. Zogbaum v. Parker, 3. INDEX. [the figures refer to pages.] A ABDUCTION, of children, damages for mental suffering, 100 (note). AD DAMNUM, definition and nature, 222. ADMINISTRATOR, nominal damages for failure to settle accounts, 27 (note). ADMIRALTY, counsel fees in, not allowed as damages, 88 (note). ADVERTISEMENT. damages for negligent omission of, 74. AGENT, liability of principal for exemplaiy damages for act of, 217. AGGRAVATION AND MITIGATION. see "Exemplary Damages." deilnition of terms, 107. the question only as to the admissibility and effect of evidence, 108. province of court and juiy, 108. assault and batterj', 109. false imprisonment, 109. libel and slander, 110. provocation, 110. common-law retraction. 111. honest belief, rumors. 111. plaintiff's character and position, 113. of exemplary damages, 211. breach of marriage promise, circumstances of aggravation, 374. circumstances in mitigation, 376. ALIENATION OF AFFECTIONS, d:iiii:i-os for mental suffering of wife, 99 (note). LAW UAM. (485) 43(5 INDEX, [The figures refer to pages.] ALTERNATIVE CONTRACTS, defined, 141. damages for breach, 141. APrEAJL, interest as damages for vexatious appeal, 157. ASSAULT AND BATTERY, damages for mental suffering, 9G (note), 101. aggravation and mitigation of damages, lOi). exemplary damages, 214. AUTHORIZED CONDUCT, damage incident to, 12. damages for permanent structure, S3, AVOIDABLE CONSEQUENCES, not a proximate result of a wrong, 47, reasonable expenses recoverable, GU. the rule applied, illustrations, 06. limitations of rule, 08. rule of contributory negligence distinguished, 08. carrier's refusal to transport, duty to seek othtr mode of conveyance, 251. duty of passenger to pay fare to avoid ejection, 202. in actions against telegraph companies, 293. trespass to real property, 300. BILLS ANT) NOTES, value, 181 (note). BONDS. damages on penal bonds, 122. damages cannot be greater than penalty. 123. damages less than penalty, 123. value, 181. exemplary damages in action on statutory bond, 207. BREACH OF PROMISE OF MARRIAGE, liquidated damages for, 134. compensatory damages, 372. pecuniary losses, 373. nonpecuniary losses, 373. circumstances of aggravation, 374. circumstances in mitigation, 376. exemplary damages, 207, 378. INDEX. 437 [The figures refer to pages.] CARRIERS, damages in actions against, 251. carders of goods, damages for refusal to transport, 251. avoidable consequences, 251. damages for loss or nondelivery, 252. damages for injury in transit, 254. damages for delay, 255. consequential damages, 256. illustrations, 257. damages for injury to passenger, 257. damages for mental suffering of passenger, 259. exemplary damages for injury to passenger, 259. personal injury to passenger, 2G0. failure to carry passenger, 260. delay, 2G0. wrongful ejection, 261. mental suffering, 97 (note), duty of passenger to pay fare to avoid ejection, 262. CAUSE, see "Proximate and Remote Cause." CERTAINTY. the required certainty of damages, 70. amount of damage must be shown, 70. profits or gains prevented, 72. illustrations, 73. liquidated damages where damages are uncertain, 133. of damages in actions against telegraph companies, 268. remote and speculative damages in actions against telegraph companies, 277. CIPHER MESSAGES, consequential damages for delay, 59. damages for nondelivery, 289. abbreviations, 293. CIVIL DAMAGE LAWS, liability for death of person engaged In violating law, 46. damages for mental suffering, 96 (note). COMPENSATION, see "Couipensatoiy Damages"; "Value." for nonpayment of money, see "Interest." tlie theory of damages, 3. A'66 INDEX. [Tlae figures refer lo pages.J COMPENSATION— Continued, not restitution, tlie measure of dainagos, 3. exemplary damages, 3. for cousequeutial losses, 39. recoverable for natural and probable consequences, 49. elements of compensation, SG. pecuulaiy losses, 87. expenses of litigation, 87. counsel fees, S7. expenses of prior litigation, 89. physical pain and inconvenience, 91. mental suffering, 92. as the basis of a cause of action, 92. in actions of tort, 95. in personal injury cases, 95 (note), under civil damage laws, 9G (note), indecent assault, 96 (note), injury to child, recovery by parent, 96 (note) for injury to realty and personalty, 97 (note). for false imprisoument, 98 (note), 101. criminal conversation, 99 (note), seduction, 99 (note), abduction of children, 100 (note), prospective mental suffering, 100 (note). for indignities to corpse, 101. in actions of contract, 102. kinds of mental injury compensated. 105. damages for mental suffering compensatory, not exemplary, 103. reduction of loss, specific reparation, 114. reparation accepted, 110. reparation by third party, 117. Injuries to limited interests, 118. interests in real property in possession and in expectancy, 118. special property and ultimate ownersliip in personal property, 119. interest of mortgagors and mortgagees, 120. joint interests, 120. COMPENSATORY DAMAGES, defined, 32. nominal and substantial compensation, 32. compensation, the principle governing award of damages, 33, fall short of actual indemnity, 33. when amount a question of law, 33. when amount a question for jury, 3-L INDEX. 439 [Tho figures reiei to pages.] COMPENSATORY DAMAGES— Coutiuued, compensation recoverable only for proximate losses, 34. dii'ect and consequential losses, 34. proximate and remote consequences m general, 34. always recoverable for direct losses, 36. direct losses, 30. direct, but unexpected, consequences, 37. consequential losses, 3'J. proximate and remote consequential losses, 39. illustrations of proximate and remote consequences, 45. avoidable consequences remote, 47. intervention of third persons, 47. damages recoverable for natural and probable consequences, 48. consequential damages for torts, 48, 49. consequential damages for breach of contract. 48, 51. Hadley v. Baxendale, 53. damages arising under ordinary circumstances, 56. damages arising from circumstances not contemplated, 58. notice of special circumstances, 60. losses on subcontracts, 60 (note). general result of Hadley v. Baxendale, 63. motive inducing breach of contract, 63. contract to convey land, effect of bad faith, 64. avoidable consequences, 64. applications and illustrations, 66. rule of contributory negligence distinguished from thai of av liO.able consequences, 68. the required certainty of damages, 7\). amount of loss must be shown, 70. profits or gains prevented, 12. profits, illustrations, 73. loss of personal property, wliolesale market value, the measure of, 76. prospective gains from jjropeity totally destroyed, 76. entirety of demand, recovery in single action, 77. time to wliicli compensation iiiny be recovered, past and future losses, 78. repetition of wrong. 78. continuing torts and breaches of contract. 78. damages caused by permanent structures, 82. authorized conduct, 83. forbidden conduct, 83. trespass, 83. conduct neither authorized nor forbidden, 85. 440 INDEX. [The figures refer to pages.J COMPENSATOllY UAMAUES— Contiuuod, elements of compeusatiou, SU. pecuniary losses, 87. expenses of litigation. 87. counsel fees, 87. expenses of prior litigation, 89. physical pain and inconvenience, 91. uieutal suffering, 92. mental suftoring as the basis of a cause of action. 02. mental suffering iu actions of tort, 95. mental suffering iu personal injuiy cases, 93 luote). indecent assault, mental suffering, 9G (note), civil damage laws, 9G (note), assault aud battery, 9U (note), injury to child, recovery by parent, 96 (note), injuiy to realty and personalty, 97 (note), ejection of passenger, 97 (note), false imprisonment, 98 (note), 101. malicious prosecution, 98 (note), libel and slander, 99 (note), criminal conversation, 99 (note). Beduction. 99 (note). abJuction of children, 100 (note), prospective mental suffering, 100 (note), indignities to corpse, 101. mental suffering in actions of contract, 102. actions against telegraph companies, 103. kinds of mental injuiy compensated, 105. damages for mental suffering compensatory, not exemplary, 100. aggravation and mitigation of, 107. reduction of loss, 114. reparation preventing actual loss, 114. reparation accepted, 116. reparation by third party, 117. Injuries to limited interests, 118. interests in real property in possession and In expectancy, 118. special property and ultimate ownership iu personal properly, 119. interest of mortgagors and mortgagees, 120. joint interests, 120. on penal bonds, 122. li(iuidated damages aud penalties. 123. liciuidated damages, rules of construction, 127. for breach of alternative contract, 141. INDEX 441 [The figures refer to pas>»s.J COMrENSATORY DAMAGES— Continued, for nonpayment of money, interest, 144. Interest, 151. on nonpecuniary losses, 152. on pecuniary losses, liquidated demands, 153. interest on taxes, 15G (note;. on pecuniary losses, unliquidated demands, 157. interest where defendant not responsible for delay, 168. compound interest, 171. value, 176. peculiar to owner, 182. highest intermediate value, 186. medium of payment, legal tender, 195. contract to pay in commodities, 198. may be either general or special, 224. breach of contract for sale of goods, 237. in actions against carriers, 251. in actions against telegraph companies, 264. for wrongs affecting real property, 352. for death by wrongful act, 297. for breach of marriage promise, 372. COMPOUND INTEREST, when recoverable, 171. CONDEMNATION PROCEEDINGS, interest as damages, 167. value, time and place of assessment, 185. CONDUCT AT PERIL, liability for damage by conduct done at, 21, CONSEQUENTIAL DAMAGES, direct and consequential losses, 35. direct losses, 36. defined, 30. consequential losses in general, 39. proximate and remote consequential losses, 39. illustrations of proximate and remote consequences, 45. effect of intervention of third persons, 47. ■ avoidable consequences, 47. damages recoverable for natural and probable consequences, 48. consequential damages for torts, 48, 49. consequential damages for breach of contract. 48. 51. damages arising under ordinary circumstances. .^6. damages arising from circumstances not conteinpiated, 58. 442 INDEX. [The figures refer to pages.] CONSEQUENTIAL DAMAGES— Continued, tor delay in deliveriug cipher telegrams, 59 contraets, motive iudueing breaeh, 03. Hadley v. Baxendale, 63. avoidable consequences, 64. applications and illustrations, 66. limitations of rule, 68. In actions against carriers, 256. In actions against telegraph companies, 267. trespass to real property, 360. CONSTITUTIONAL LAW, exemplary damages for conduct which is also a crime, 204 (note), constitutionality of statutes giving action for death by wrongful act, 20!>. CONTEMPLATED CONSEQUENCES, damages for torts need not be actually contemplated, 50. of breach of contract, 51. Hadley v. Baxendale, 53. CONTINUING TORTS, damages for, 78. illustrations, 80. CONTRACTS, damages for direct losses always recoverable, 33. contemplation of consequences of breach, 48. consequential damages for breach, 51. Hadley v. Baxendale, rule of damage, 53. damages arising from ordinary circumstances, 56. damages arising under ordinary circumstances, 56. damages arising from circumstances not contemplated, 58. losses on subcontracts, 60 (note). notice of special circumstances, 00. general result of Hadley v. Baxendale, 63. motive inducing breach, 03. fraud in contract to convey land, effect, 64 damages for continuing breach of, 78. covenants for support and maintenance, damages for breach, 80 (note), for sale of goods, see "Sale of Goods." damages for breach, expenses of litigation, 87. mental suffering in actions of, 102. liquidated damages and penalties, 123. liquidated damages for delay in pei-formance of. 134. not to carry on business, liquidated damages for breach, 134, alternative contracts, damages for breach, 141. INDEX. 443 [The figures refer to pages.] CONTRACTS-Continued, interest by contract a debt, 145. payable in gold, damages for breach, 196. general and special damages for breach, 227. actions against telegraph companies tort or contract, 267. to sell real property, breach by vendor, 364. to sell real property, breach by vendee, 366. CONTRIBUTORY NEGLIGENCE, rule of, distinguislaed from avoidable consequences, 68, CONVERSION, see, also, "Trover." value, time, and place of assessment, 185. highest intermediate value, 186. sale of goods, damages as for, 246. CORPORATIONS, refusal to transfer stock, highest intermediate value, 187. liability for exemplary damages, 218. CORPSE, damages for mental suffering caused by mutilation of, lOL COSTS, nominal damages to carry costs, 30. of litigation not recoverable as damages, 88. of prior litigation as damages, 89. COUNSEL FEES, compensation for not recoverable, 87. expenses of prior litigation, 89. in prior litigation as damages, 89. recovery for, in action for breach of covenant, 368. COURT, see "Province of Court and Jury." COVENANTS, damages for breach, seisin, and right to convey, 367. warranty and quiet enjoyment, 368. against incumbrances, 369. in leases, 371. CRIMES, exemplary damages wlioro tort is also a crime, 207, 215. CRIMINAL CONVERSATION, damages for mental suffering, 99 (note), exemplary damages, 215. 444 INDEX. [The figures refer to pages.] CROP, damages for breach of warranty of seeds, 75. damages for loss of unmatured crop, 7G. D DAMAGES. see ''Compensatory Damages"; "Exemplary Damages"; "Nominal Damages." definition and nature, 1. a species of property, 2. assignability, 2. right to, protected by constitutional guaranties, 2. right to, vests immediately on commission of wrong, 2. common-law theory of, 3. compensation, not restitution, the measure of, 3. exemplary damages, 6. mixed question of law and fact, 7. recoverable only for violation of legal rights, 7. classification of, 23. nominal damages, definition and general nature, 24. awarded only when law presumes damage, 24. de minimus non curat lex, 24, 27. will not support action when damages are of the gist, 24. nominal damages against public oflacers for neglect of duty, 27 (note), nominal damages establish rights, 29. new trial and costs, 30. compensatory damages, defined, 32. when amount a question of law, 33. when amount a question for jury, 34. compensation recoverable only for proximate losses, 34. proximate and remote consequences in general, 34. direct and consequential losses, 35. direct losses, 36. compensatory damages always recoverable for direct losses, 36. consequential losses, 39. proximate and remote consequential losses, 39. illustrations, 45. avoidable consequences, 47. compensation recoverable for natural and probable consequences, 48. consequential damages for torts. 48, 49. consequential damages for breach of contract, 48, 51. INDEX. 445 [The figures refer to pages.] DAilAGES— Continued, Hadley v. Baxendale, 53. damages arising under ordinary circumstances, 56. damages arising from circumstances not contemplated, 58. notice of special circumstances, 60. losses on subcontracts, 60 (note), general result of Hadley v. Baxendale, 63. motive inducing breach of contract, 63. for avoidable consequences, 64. applications and illustrations, 66. the required certainty of damages, 70. amount of loss must be shown, 70. profits or gains prevented, 72. illustrations, 73. prospective gains from property totally destroyed, 76. entirety of demand, recovery in single action, 77. time to which compensation may be recovered, past and future losses, 78. repetition of wrong, TS. continuing torts and breaches of contract, 78. damages caused by permanent structures, S2. elements of compensation, 86. pecuniary losses, 87. expenses of litigation, 87. counsel fees, 87. expenses of prior litigation, 89. physical pain and inconvenience. 91. mental suffering. 92. mental suffering as the basis of a cause of action, 92, mental suffering in actions of tort, 95. personal injuiy cases, 95 (note), under civil damage laws, 96 (note), assault and battery, 96 (note). Indecent assault, 96 (note). Injury to child, recovery by parent, 96 (note). Injury to realty and personalty, 97 (note), ejection of passenger, 97 (note). false imprisonment, 98 (note), malicious prosecution, 98 (note), libel and slander, 99 (note), criminal conversation, 99 (note), seduction, 99 (note), abduction of children, 100 (note), prospective mental sutT'ering, 100 (nolo). 446 INDEX. [The figures refer to pages.] DAMAGES— Continued, lor assiiult, 101. indignities to corpse, 101. mental suffering in actions of contract, 102. actions against telegraph companies, 103. kinds of mental injury compensated, 105. for mental suffering compensatory, not exemplary, 100. aggravation and mitigation of, 107. reduction of loss, 114. reparation preventing actual loss, 114. injured party cannot be compelled to accept specific reparation, 114. reparation accepted, 116. reparation by third party, 117. Injuries to limited interest, 118. interests in real property in possession and in expectancy, IIS. special property and ultimate ownership in personal property, 119. interest of mortgagors and mortgagees, 120. joint interests, 120. on penal bonds, 122. liquidated damages and penalties, 123. rules of construction, 127. breach of contract of sale, 134. for breach of marriage promise, 134. for disclosure of trade secrets, 135. liquid;! ted damages for failure to abate nuisance, 135. stipulated sum where damages are certain, 137. for breach of alternative contract, 141. nonpayment of money, interest, 144. Interest, as a debt and as damages, 145. interest as damages, 147. interest, general rule, 151. interest on noupecuniary losses, 152. interest on pecuniary losses, liquidated demands. 153. interest on taxes, 156 (note), for vexatious appeal, inierest, 157. interest on pecuniary losses, unliquidated demands, 157. contracts, 160. torts, 162. interest where defendant not responsible for delay. 168. compound interest, 171. value, definition, 176. value of stocks, bonds, and other securities, ISl (uote). value peculiar to owner, 182. INDEX. 447 [The figures refer to pages.] DAMAGES— Contiuued, value of good will of established business, 182. time and place of assessment, 185. condemnation proceedings, 185. for conversion, 185. breach of contract of sale, 186. highest intermediate value, 186. medium of payment, legal tender, 195. contracts payable in gold, 196. foreign currency, value, 197. alternative medium of payment, damages for breach, 198. contract to pay in commodities, 198. mercantile securities, 198. exemplary damages, 200. liability of principal for act of agent, 217. pleading and practice, 221. allegation of, the ad damnum,. 221. cannot exceed amount pleaded, 221. form of statement, 223. general damages defined, 223. special damages defined, 223. excessive and inadequate damages, 230. remitting excess, 234. breach of contract for sale of goods, 237. see, also, "Sale of Goods." in actions against carriers, 251, see, also, "Carriers." In actions against telegraph companies, 264. see, also, "Telegraph Companies." for death by wrongful act, 297. wrongs affecting real property, 352, see, also, "Real Property." for detention of dower, 355. breach of marriage promise, 372. DAMNUM ABSQUE INJURIA, meaning of phrase, 7. damages not recoverable for, 7. damage incident to authorize conduct, 12-15. DEATH BY WRONGFUL ACT. the rule at common law, 297. history of rule, 297. reason of rule, 298. conslilutiouality of statutes, 299. •i-i^ INUEX. [Tlu> O^ures refer to pages.] DEATH BY WRONGFUL ACT— Continued, damages lor pecuuiarj' loss, '600. strict and liberal construction of statute, 300. no damages for solatium, 301. exemplary damages, 304. damages for iujuiy to deceased, 300. medical and funeral expenses, 308. meaning of pecuniary, 309. prospective pecuniary losses, 310. future care and support, 311. evidence showing value of future care and support, 312-314, action by widow, evidence of number of children, 315. loss of education and personal training, 31G. future services, 317. death of wife, 317. death of minor child, 319. expectancy of benefit after majority, 325. prospective gifts, 328. death of adult child, 328. death of parent of adult child, 333. death of collateral relative, 334. prospective inheritance, 334. evidence of pecuniary condition of beneficiaries. 338. expectation of life, life tables. 339. interest as damages, 341. interest in action for death of husband, 166 (note), reduction of damages, 341. discretion of jury, 343. New York rule, 344. excessive verdict, reduction of amount, 347. Inadequate verdict, 347. nominal damages, 348. allegation of damages, 349. DEFAMATION, words causing mental suffering alone are not actionable. 94. exemplary damages, 214. general and special damages. 226. injuiy to reputation in action for breach of marriage promise, 373. DELAY, in transportation, damages against carrier. 255. in carriage of passengers, damages for, 260. DE MINIMUS NON CURAT LEX, application of maxim, 24, 27. INDEX. 449 [The figures refer tc pages.] DEMURRAGE, when a natural consequence of broach of contract, 59. DETES'UE, highest intermediate value, 187. DOWEK. damages tor detention of, '6oo. E INJECTION, of passenger, damages for, 2G1. EJECTMENT, whether damages recoverable in, 352. EMINENT DOMAIN, interest as damages, 167. value, time and place of assessment, 1S3. ENTIRETY OF DEMAND, damages from single cause of action must be recovered in single ac- tion, 77. past and future losses, 78. EVIDENCE, to show value of future care and support, 312. of number of children in action for death by wrongful act, 31."). of pecuniaiy condition of beneticiaries, death by wrongful act. 338. expectation of life, life tables, 339. breach of marriage promise, defendant's financial and social ijositiou, 373. EXCESSIVE da:\iages, province of court and jury, 230. death by wrongful act, reduction of amount, 347. action for breach of marriage promise, 374. EXEMPLARY DAMAGES, defined, 200. exception to common-law theoiy, 3, G. nature and origin of doctrine, 200. conflict of authorities, 200. criticism of the doctrine, 203. jurisdiction in which not recoverable, 205. Jurisdictions, where recoverable, 200. damages for mental suffering compensatoiy, not exemplary, lOG. liability to does not survive, 207. when recoverable, 207. where tort is also a crime, 201, 207, 215. , I.AWDAM,— 29 450 INDEX. [The figures refer to pages.] EXEMPLARY DAMAGES— Continued, uot recoverable unless conduct otherwise actionable, 208. actual malice, 209. in action against joint wrongdoers, 209. fraud, 210. gross negligence, 210. oppression, brutality, and insult, 210, wantonness, 210. aggravation and mitigation, 107, 211. waived by coming into equity, 213 (note). in what actions recoverable, 213. assault and battery, 214. defamation, 214. false impi'isonment, 214. injuries to person or property, 214. libel and slander, 214. malicious prosecution, 214. trover, 215. for breach of marriage promise. 207, 378. in action on statutory bond, 207. in actions against carriers of passengers, 2.59. in actions against telegraph companies, 295. in action for death by wrongful act, 304. trespass to real property, 360. liability of principal for act of agent 21". liability of corporations, 218. need not be specially pleaded. 224. province of court and jury, 212, 235. setting aside excessive verdict, 236. F FALSE IMPRISONMENT, damages for mental suffering. 98 (note), 101. aggravation and mitigation of damages, 109. exemplary damages, 214. FINES AND PENALTIES, interest on, 150 (note). FLOWAGE, of lands, nominal damages for, 27. FORBIDDEN CONDUCT, damages incident to, 15. INDEX. 451 [The figures refer to pages.] FRAUD, ground for exemplary damages, 207. FRIGHT, damages for, 94 (note), 260. FUNERAL EXPENSES, as element of damage in action for death by wrongful act, 308. G GIFTS, loss of prospective gifts, death by wrongful act, 328. GOOD WILL, value of, 182. H HADLEY V. BAXENDALE, damages for breach of contract, 53. three rules deduced from, 55. criticism of rule declared, 55 (note). damages arising from circumstances not contemplated, 58. notice of special circumstances, 60. general result of, 63. HIGHEST INTERMEDIATE VALUE, see "Value." HUSBAND AND WIFE, damages for mental suffering for alienation of husband's affections, 99 (note). I IMPROVEMENTS, deductions for, in action for detention of real property, 354. INADEQUATE DAMAGES, province of court and jury, 230. death by wrongful act, 347. action for breach of marriage promise, 374. INCONVENIENCE, comix'nsation for, 91. INCUMBRANCES, covenants a>;ainst, damnges for broach. 309. INIIERITAXCE, loss of prospective inheritance, death by wrongful act, 334. 452 INDEX. [Tb'e figures refer to pages.] IX JURE NON REMOTA CAUSA SED PUOXIMA SPECTATUR, maxim explained, 34. INJURIA SINE DAMNO, meaning of phrase, 7. INTEREST, stipulations in evasion of usury laws, liquidated damages or penalties, 141. definition, 144. as a debt and as damages, 145. the English doctrine, 145. interest by agreement, 146. interest as damages. 147. discretion of jury, 147. on mercantile securities, 147. the American doctrine, 147. interest as a debt, 148. Interest as damages, 149. rate, 150. must be recovered with the principal, 150. general rule, 151. on nonpecuniary losses, 152. pecuniary losses, liquidated demands, 1.53. recoverable on notes after maturity, 154 (note), where defendant not responsible for delay, 154 (note). * between verdict and judgment, 156 (note), on fines and penalties, 156 (note), on judgments, 156 (note), on taxes, 156 (note), for vexatious appeal, 157. pecuniary losses, unliquidated demand, 157. contracts, 1(J0. damages made certain by computation or reference to recognized standards, 160. demand for accounting, commencement of suit, 161. torts. 162. on discretionary damages, 163. property destroyed, taken, converted, and the like, 163, province of court and jury, 163. destruction by negligence, 165. on property losses in general, 165. condemnation proceedings, 167. on overdue paper, contract and statute rate. 1(>S. where defendant not responsible for delay, 16S. INDEX. 4o3 [The figures refer to pages.] INTEREST— Continued, compound interest, 171. as damages in action for death by wrongful act, 341. as damages for detention of real property, 353. INTOXICATING LIQUORS, civil damage laws, damage for mental suffering, 96 (note), liquidated damages for breach of contract to abstain from, l-iO (note). J JOINT WRONGDOERS, liability to exemplary damages, 209. JUDGMENT, interest on, 156 (note). interest on verdict before, 156 (note). JURY, see "Province of Court and Jury." LAWFUL AND UNLAWFUL CONDUCT, analysis of, 12. damage incident to authorized conduct, 12. forbidden conduct, 15. conduct forbidden for benefit of public, 16. conduct neither authorized nor forbidden, 19. malicious conduct, 20. negligent conduct, 21. conduct at peril, 21. analysis of legal wrongs, 23. LEASES, covenants in, damages for breach, 371. LEGAL TENDER ACT, damages under, 195. result of decisions, 196. LEGAL WRONGS, see "Wrong and Damage." LIBEL AND SLANDER, words causing mental suffering alone not actionable, 94. damages for iiu'ntal suffering, !)!» (note). aggravation and mitigation uf damiiges, 110. 45-4 INDEX. [The figures refer to pages.] LIBEL AND SLANDER— Continued, provocation, 110. common-law retraction, 111, honest belief, rumors, 111. plaintiff's character and position, 113. exemplary damages, 214. general and special damages, 22G. LIFE TABLES, evidence of expectation of life, ooO. LIQUIDATED DAMAGES, in general, 122. defined, 123. penalties, 123. equity will not relieve against, 124, intent of parties, 124. distinction between intent to liquidate and intent that sum named shall be paid, 126. must be estimated on basis of just compensation, 126. contract for distinguished fi-om penal bond, 127. general rule of construction, form of contract, 127, 129. contract in the alternative, 129. contract in form of common-law bond, 129. contract providing for liquidated damages in terms, 130. contract providing for penalty in terms, 130. collateral sum in terrorem, 130. sum payable on nonpayment of smaller sum, 131. sum stipulated not proportioned to injury, 132. stipulated sum where damages are uncertain, 133. breach of agreement not to cari-y on business, 134. breach of contract of sale, 13-4. for breach of marriage promise, 134. for delay in performance of conti'act, 134. for disclosure of trade secrets, 135. for failure to abate nuisance, 135. stipulated sum where damages are certain, 137. sum deposited to be forfeited on breach, 138. sum stipulated for breach of contract for several things. 1.38. partial breach, 140. for breach of contract to abstain from intoxicating liquors, 140 (note), alternative contract not a contract for, 141. stipulations in evasion of usury laws, 141. interest on, 153. INDEX. 455 [The figures refer to pages.] LORD CAMPBELL'S ACT. death by wrongful act, 29'J. M MALICE, exeraplary damages recoverable for malicious torts, 207. MALICIOUS CONDUCT, liability for damage by, 20. MALICIOUS PROSECUTION, damages for mental suffering, 98 (note), exemplary damages, 214. pleading of special damage, 226. MARKET VALUE, defined, 178. evidence of real value, 178, 180. MARRIAGE. see "Breach of Marriage Promise." MASTER ANT) SERVANT, damages for discharge, duty to seek other employment, 67. MEDICAL EXPENSES, as element of damage in action for death by wrongful act, 308. MENTAL SUFFERING, compensation for, 92. as the basis of a cause of action. 92. in actions of tort, 95. action for personal injuries, 95 (note). indecent assault, 90 (note). assault and batteiy, 96 (note). injuiy to child, recovery by parent, 96 (note). ejection of passenger by carrier, 97 (note). for injury to realty and personalty, 97 (note). for malicious prosecution, 98 (note). for false imprisonment, 98 (note), 101. for libel and slander, 99 (note). criminal conversation, 99 (note). a1)duction of cliildren, 100 (note) for indignities to corpse, 101. In actions of contract, 102. in actions against telegraph companies, 103. kinds of mental injury compensated, 105. damages for, compensatory, not exemplary, 100. 4o6 INDEX. [The figures refer to pages.] MENTAL SUFFERING— Continued, damages for. in actions against carriers, 259. damages for, in action for death by wrongful act, 301. in action for breacli of marriage promise, 373. MERCANTILE SECURITIES, interest on, 147. MITIGATION OP DAMAGES, see "Aggravation and Mitigation." MONEY, damages for nonpayment measured by interest, 144. means "coin" in absence of statutes, 195. MOTIVE, inducing breach of contract immaterial, 63. MUNICIPAL CORPORATIONS, liability for interest, 154 (note). N NATURAL AND PROBABLE CONSEQUENCES, of torts and breaches of contract, 48. what are natural consequences, 48. NEGLIGENCE, causing mental suffering alone not actionable, 94. exemplary damages recoverable for gross negligence, 207. liability for damage by, 21. NEGOTIABLE INSTRUMENTS, interest on overdue paper, contract and statute rate, IGS. value, 181. value of promissory note, 180. maker cannot show his own insolvency, 181. NEW TRIAL, for error in regard to nominal damages, 30. for inadequate or excessive damages, death by wrongful act, 347. NOMINAL DAMAGES, definition and general nature, 24. awarded only when law presumes damage, 24. de minimus non curat lex, 24, 27. will not support action when damages are of the gist, 24. against public officers for neglect of duty, 27 (note). establish rights, 29. INDEX. 457 IThe figures refer to pages.] NOMINAL DAMAGES— Continued, new trial and costs, 30. need not be specially pleaded, 224. in action for death by wrongful act, 348. for nuisance to real property, 362. NONPECUNIARY INJURIES, province of court and jury, 229. NUISANCE, a continuing tort, damages for, 80. damages for nuisance by permanent structure, 85. liquidated damages for failure to abate, 134. to real property, damages, 361. when nominal damages recoverable, 362. O OFFICERS, public, nominal damages for neglect of duty, 27 (note). P PAIN, compensation for physical pain, 91. PARTNERSHIP, damages for breach of contract of partnership, 75. PASSENGERS, see "Carriers." PAST AND FUTURE LOSSES, time to which compensation may be recovered, 78. repetition of wrong, 78. continuing torts and breaches of contract, 78. illustrations, 80. damages for nuisance, 80. damages caused by permanent structures, 82. authorized conduct, 83. forbidden conduct, 83. trespass, 83. conduct neither authorized nor forbidden, 85. death by wrongful act, prospective pecuniary losses, 310. prospective mental suffering, 100 (note). PATENTS, counsel fees In patent suits, 88 (note). 458 INDEX. [The figures refer to pages.J PECUNIARY LOSSES, damages for, 87. expenses of litigation, ST. counsel fees, 87, 89. expenses of prior litigation, 89. damages for, in action for death by wrongful act. 300. meaning of "pecuniary" in action for death by wrongful act, 309. province of court and jury, 227. PENAL BONDS, see "Bonds." PEN.\LTIES, in penal bonds. 122. defined, 123. liquidated damages or, 123. intent of parties, 124. distinction between intent to liquidate and intent that sum named shall be paid, 126. rules of construction, 127. general rule of construction, form of contract. 129. contract in form of common-law bond, 129. contract in the alternative, 129. contract providing for liquidated damages in terms, 130. contract providing for penalty in terms, 130. collateral sum in terrorem, 130. sum payable on nonpayment of smaller sum, 131. sum stipulated not proportioned to injury, 132. stipulated sum where damages are uncertain, 133. stipulated sum where damages are certain, 137. sum deposited to be forfeited on breach, 138. sum stipulated for breach of contract for several things, 138. partial breach, 140. stipulations in evasion of usury laws, 141. trespass to real property, 360. PERIL. conduct at peril, 21. PERSONAL INJURY, damages for mental suffering. 95 (note), liability of carriers, 260. exemplary damages, 214. general and special damages, 225. PERSONAL SERVICES, damages for discharge, duty to seek other employment, 67. INDEX. 459 [The figures refer to pages.] PLEADING AND PRACTICE, allegation of damage, the ad damnum, 221. damages cannot exceed amount pleaded, but may be k . QSg (prof. C^cirfee (p. (Uorton. THIRD EDITION. TABLE OF CONTENTS. Chapter I. OF NEGOTIABILITY SO FAR AS IT RE- LATES TO BILLS AND NOTES : Cover- ing the oi-igin, ymposo, and indicia of neso- dability, distinction between negotiability and assignability, and payment by negotia- ble instrument. Chapter II. OF NEGOTIABLE BILLS AND NOTES, AND THEIR FOimAL AND ESSEN- TIAL REQUISITES : Covering definition, form, and essentials, the order, the promise, specification of parties, capacity of parties, delivery, date, value received, and days of srace. Chapter III. ACCEPTANCE OF BILLS OF EXCHANGE : Covering the various kinds of acceptance, and the rules relating thereto. Chapter IV. INDORSEMENT : Defining and explaining the various kinds of indorsements, and showing their requisites and effect. Chapter V. OP THE NATURE OF THE LIABILITIES OF THE PARTIES : Covering liability of maker, acceptor, drawer, iudorser. rights and liabilities of accommodation and accommo- dated parties, estoppel and warranties, and damages for breach. Chapter VI. TRANSFER : Covering definition, validity, and various methods of transfer, and status of overdue pai)er. Chapter VII. DEFENSES AS AGAINST PURCHASER FOR VALUE WITHOUT NOTICE : Cov- ering the subject generally and fully. Chapter VIII. THE PURCHASER FOR VALUE WITH- OUT NOTICE: Explaining who is, and discussing consideration, ^ood faith, notice, overdue paper, presumption, and burden of proof, etc. Chapter IX. OF PRESENTMENT AND NOTICE OP DIS- HONOR : Covering presentment for accept- ance and for payment, dishonor, protest, no- tice of dishonor, waiver, etc. Chapter X. CHECKS : Covering generally the law relating to checks. APPENDIX: The Negotiable Instruments Law. 1 VOL. 553 PAGES $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C'MV'- 1 iZ^ ^omBooS BttkB.) 5anb6ooft of Crimtnaf &(xw, qSs Tr>tn. a. Cforft, 3r., Author of a "Handbook of the Law of Contracts. *• TABLE OF CONTENTS. CHAPTER I. DEFINITION OF CRIME : The nature of crime and ground of punishment. CHAPTER II. CRIMINAL LAW : How the criminal law is pre- scribed; the common law: statutes, and the powers of state and federal legislatures. CHAPTER III. CLASSIFICATION OF CRIME S : As treason, fel- onies, misdemeanors, etc. ; merger of offenses. CHAPTER IV. THE MENTAL ELEMENT IN CRIME: Con- sidering the will, intention, motive, and crim- inal intention or malice. CHAPTER V. PERSONS CAPABLE OF COMMITTING CRIME: Covering also exemption from responsibility, and discussing infancy, insanity, drunkenness, ignorance or mistake of law or of fact, provo- cation, necessity and compulsion, married wo- men and corporations. CHAPTER VI. PARTIES CONCERNED: Covering effect of joining in criminal purpose, principles in first and second degrees, accessories before and after the fact, terms "aider and abettor "and "accomplice. " CHAPTER VII, THE OVERT ACT: Covering licitation and conspiracy. also attempts, so- CHAPTER VIII. OFFENSES AGALXST THE PERSON: Cover- ing homicide, murder, and manslaughter, with consideration of tbe different degrees, acci- dent, self-defense, etc. CHAPTER IX. OFFENSES AGAJNST THE PERSON (Contin- ued) : Covering abortion, mayhem, rape, sod- omy, seduction, assaults, false imprisonment, kidnapping, abduction. CHAPTER X. OFFENSES AGAINST THE HABITATION: Covering arson and burglary. CHAPTER XI. OFFENSES AGAINST PROPERTY: Covering larceny, embezzlement, cheating at common law and by false pretenses, robbery, receiving stolen goods, malicious mischief, forgery, etc. CHAPTER XII. OFFENSES AGAINST THE PUBLIC HEALTH, MORALS, ETC. : Covering nuisances in gen eral, bigamy, polygamy, adultery, fornication, lewdness, etc. CHAPTER XIII. OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY: Covering barretry, obstruct- ing justice, embracery, prison breach, mispri- sion of felony, compounding crime, perjury, bribery, misconduct in office, etc. CHAPTER XIV. OFFENSES AGAINST THE PUBLIC PEACE: Covering dueling, unlawful assembly, riot, affray, forcible entry and detainer, libels on private persons, etc. CHAPTER XV. OFFENSES AGAINST THE GOVERNMENT: Covering treason and misprision of treason. CHAPTER XVI. OFFENSES AGAINST THE LAW OF NA TIONS: As piracy. CHAPTER XVII. JURISDICTION: Covering territorial limits of states and United States, jurisdiction as deter- mined by locality, federal courts and the com- mon law, jurisdiction conferred by congress, persons subject to our laws, eta CHAPTER XVIII. FORMER JEOPARDY: In genoraL 1 VOL. 450 PAGES. S3. 75 DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. ('■'-) (t^ gomBocft ^crtee.) ^Pe San) of €on(racf0> QBj TTm. £. eferft, 3r., Author of a " Handbook of Criminal Law." CHAPTER I. CONTRACT IN GENERAL: Covering its defi- nition, nature, and requisites, and discussing agreement, obligation, promise, void, voidable, and unenforceable agreements, and the essen- tials of contract, etc. CHAPTER II. OFFER AND ACCEPTANCE: Covering im- plied contracts, necessity for communication and acceptance, character, mode, place, time, and effect of acceptance, revocation, and lapse of offer, etc. CHAPTER III. CLASSIFICATION OF CONTRACTS: Cover- ing contracts of record and contracts under seal, and their characteristics. CHAPTER IV, REQUIREMENT OF WRITING: Covering also statute of frauds, and discussing promise by- executor, promise to answer for another, agreements in consideration of marriage and in relation to land, and agreements not to be performed within a year, sufficiency of memo- randum, etc. CHAPTER V. CONSIDERATION : Covering the necessity for consideration, its adequacy, reality, and legal- ity, failure of consideration, etc. CHAPTER VI. CAPACITY OF PARTIES: Covering political and professional status, infants, insane and drunken persons, married women, and corpo- rations. CHAPTER VII. REALITY OF CONSENT: Covering mistake, misrepresentation, fraud, duress, and undue influence. CHAPTER VIII. LEGALITY OF OBJECT: Covering unlawful agreements in general, agreements in viola- tion of positive law and those contrary to pub- lic policy, effect of illegality, conflict of laws, etc. CHAPTER IX. OPERATION OF CONTRACT: Covering the limits of the contractual relation, assignment of contracts, whether by act of parties or by operation of law, joint and several contracts, etc. CHAPTER X. INTERPRETATION OF CONTRACT: Cover- ing the rules relating to evidence, proof of document, rules of construction, penalties and liquidated damages, etc. CHAPTER XI. DISCHARGE OF CONTRACT: Covering dis- charge by agreement, by performance, by breach, by impossibility of performance, by operation of law, etc., and remedies on breach of contract. CHAPTER XII. AGENCY : Covering the creation of the relation, its effect and determination, the capacity, rights, and liabilities of the parties, etc. CHAPTER XIII. QUASI CONTRACT: Covering obligations cre- ated by law upon which an action ex contractu will lie without proof of contract in fact, in- cluding judgments, obligations imposed by statute, acts of parties, etc 1 VOL.. 932 PAGES. $3.75 DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C4) it^ ^om6ooft ^eries.) (^ ^atib^oo^ of Common^ San) (pkaUn^. (§2 (S^njamin 3. ^^t^Mnan. SECOND EDITION. TABLE OF CONTENTS. Chapter I. FORMS OP ACTION: Covering the nature and classification of actions, real, personal, and mixed actions, assumpsit, special and general, debt, covenant, account or account rendered. Chapter II. FORMS OF ACTION (Continued): Covering trespass, -trover, case, detinue, replevin, eject- ment, virrit of entry, forcible entry and detain- er, etc Chapter III. THE PARTIES TO ACTIONS : Covering actions in form ex contractu and ex delicto, and the consequences of misjoinder or nonjoinder of parties plaintiff or defendant. Chapter IV. THE PROCEEDINGS IN AN ACTION: Cover- ing process, the summons, writ of attachment, appearance, the declaration, demurrer, and va- rious pleas, amendments, etc., the verdict, and proceedings after the verdict, the judgment, and proceedings thereafter to the writ of exe- cution. Chapter V. THE DECLARATION: Statement of cause of action In general ; form of declaration ; es- sential averments of declaration in special as- sumpsit or on common counts, in debt, cove- nant, account, case, detinue, trover, trespass, replevin, ejectment, and trespass for mesne profits after ejectment. Chapter VI. THE PRODUCTION OF THE ISSUE: Discuss- ing the rules, and covering the demurrer, the pleadings, the traverse, forms of the general issue and of the special traverse, protesta- tions, exceptions, issues in fact and law, etc. Chapter VII. MATERIALITY IN PLEADING: Covering the general rule, variance, limitation of traverse, etc. Chapter VIII. SINGLENESS OR UNITY IN PLEADING : Coy- ering the rules in general, duplicity, immato- rial matter, inducement, protestation, conse- quences of duplicity and of misjoinder, plea and demurrer, etc Chapter IX. CERTAINTY IN PLEADING: Covering the venue, time, quantity, quality, and value, names of persons, showing title and author- ity, with subordinate rules, and special re- quirements in different stages. Chapter X. CONSISTENCY AND SIMPLICITY IN PLEAD- ING : Covering insensibility, repugnancy, am- biguity, argumentative pleadings, pleadings In alternative, positive statements, legal effect, conformance to precedent, commencement and conclusion. Chapter XI. DIRECTNESS AND BREVITY IN PLEADING: Covering the rules generally, departure, pleas amounting to general issue, surplusage, eta Chapter XII. MISCELLANEOUS RULES: Covering con- formance to process, alleging damages and production of suit, order of pleading, defense, plea in abatomeut, dilaloi'y pleas, eto. APPENDIX: Forma. This book embodies such of the rules and principles of Common-Law Pleading as are still recognized and applied in this country. A knowledge of the common-law system is of advantage, ii indeed, it is not essential, to a thorough understanding of both code and equity pleading. ONE VOLUME, 615 PAGES, $3.75, DELIVERED. WEST PUBLISHINO CO., St. Paul, Minn. (5) (g ^anbBoog of ComtitUtiOMf fiCHI? Q0g Jq. CiXm^M (Sf(icft, TABLE OF CONTENTS. Author of Black's Law Dictionary, Treatises on Judgments, Tax Titles, etc. Chapter I. DEFINITIONS AND GENERAL PRINCIPLES: Considering the meiining of "Constitutional" and "Unconstitutional; " written and unwrit- ten constitutions, bills of rights, right of revo- lution, political and personal responsibilities, etc. Chapter II. THE UNITED STATES AND THE STATES: Considering the nature of the American Union, sovereignty and rights of the states and of the people, form of government, the Federal Constitution, etc. Chapter III. ESTABLISHMENT AND AMENDMENT OP CONSTITUTIONS: Containing an historical introduction, and considering the establish- ment and amendment of the Federal Constitu- tion and of State Constitutions. Chapter IV. CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS: Considering the office and duty of the judiciary in this direction. Chapter V. THE THREE DEPARTJIENTS OF GOVERN- MENT: Considering the division, limitations on the departments, political and judicial questions, etc. Chapter VI. THE FEDERAL EXECUTIVE: Considering the election, qualifications, impeachment, compensation and independence of the Presi- dent, his oath of office, veto power, pardoning and military power, and treaty-making power; vacancy in office, the cabinet, appointments to office, presidential messages, diplomatic re- lations, authority to convene and adjourn con- gress, execute the laws, etc. Chapter VII. FEDERAL JURISDICTION: Considering the jurisdiction, powers and procedure of Federal courts, removal of causes, the United States and the states as parties, etc. Chapter VIII. TDE POWERS OF CONGRESS: Considering the constitution, organization and government of congress, its powers, and the limitations thereon. Chapter IX. INTERSTATE LAW, as determined by the Con- stitution : Considering its general principles, the privileges of citizens, interstate extradi- tion, public acts and judicial proceedings, etc. Chapter X. REPUBLICAN GOVERNMENT GUARANTIED. Chapter XI. EXECUTIVE POWER IN THE STATES. Chapter XII. JUDICIAL POWERS IN THE STATES: Con- sidering the system of courts, judges, juris- diction, process and procedure. Chapter XIII. LEGISLATIVE POWER IN THE STATES : Con- sidering the organization and government of legislature, limitation and delegation of legis- lative powers, enactment of laws, etc Chapter XIV. THE POLICE POWER: Considering the police power as vested in congress and in the states, and its scope and limitations. Chapter XV. THE POWER OF TAXATION: Considering the purposes of taxation, ind'ependence of Federal and State governmeuts, limitations on power, taxation and representation, etc Chapter XVI. THE RIGHT OF EMINENT DOMAIN: Defini- tion and nature of the power, constitutional provisions, authority to exercise, public pur- pcs3, appropriation to new uses, etc. Chapter XVII. MUNICIPAL CORPORATIONS: The nature, control, powers, officers and by-laws of mu- nicipal corporations, etc. Chapter XVIII. CIVIL RIGHTS, AND THEIR PROTECTION BY THE CONSTITUTION: Considering rights in general, liberty, due process of law, vested rights, trial by jury, etc. Chapter XIX. POLITIC A.L AND PUBLIC RIGHTS: Consider- ing citizenship, right of suffrage, freedom of speech, right of assembly and petition, etc. Chapter XX. CONSTITUTIONAL GUARANTIES IN CRIM INAL CASES: Considering trial by jury, rights of accused, jeopardy, bail, ex post facta laws, liabeas corpus, etc. Chapter XXI. LAWS IMPAIRING THE OBLIGATION OF CONTRACTS: Considering the obligation and the impairment of the contract, power of legislature to contract, remedies on contracts^ etc. Chapter XXII. RETROACTIVE LAWS: Considering the validity of retroactive statutes, curative statutes, et^O0^ of Q0g (JXorman Softer. TABLE OF CONTENTS. Chapter I. NATURE AND DEFINITION OP EQUITY. Chapter II. PRIiSrCIPLES DEFINING AND LIMITING JU- RISDICTION : Considering jurisdiction over crimes, adequate legal remedy, complete re- lief, and multiplicity of suits. Chapter III. THE MAXIMS OF EQUITY: Definition and classification of maxims; the enabling and re- strictive maxims. Chapter IV. THE DOCTRINES OF EQUITY; Considering estoppel, election, satisfaction, performance, and conversion. Chapter V. THE DOCTRINES OF EQUITY (Coxtixied) : Considering conflicting rights of purchasers, assignees, notice, bona fide purchasers, priori- ties, etc. Chapter VI. THE DOCTRINES OF EQUITY fCoxTiNUKD) : Considering penalties and forfeitures, liqui- dated damages. Chapter VII. GROUNDS FOR EQUITAHLE RETJKF: Bidering accident, mi'^lako, fraud, etc. Con- Chapter VIII. PROPERTY IN EQUITY— TRUSTS: Covering definition, history, and classification of trusts, charitable trusts, duties and liabilities of trulE^ tees, remedies of cestui que trust, etc. Chapter IX. PROPERTY IN EQUITY — MORTGAGESv LIENS, AND ASSIGNMENTS. Chapter X. EQUITABLE REMEDIES : Covering accounting, contribution, exoneration, subrogation, and marshaling. Chapter XI. EQUITABLE REMEDIES (Coxtixuep) : Cov- ering partition and settlement of boundaries. Chapter XII. EQUITABLE REMEDIES (Continued): Cov- ering specific performance, and considering enforceable contracts, grounds for refusing re- lief, etc. Chapter XIII. EQUITABLE REMEDIES (CoxTixcEn^ : Cov- ering injunctions, and considering their juris- dictional principles, classes of cases, where remedj' may be used, etc. Chapter XIV. REFORMATION, CANCELL.^TION AND QUIETING TITLE. Chapter XV. ANCILLARY RIOMKDIES: (^ovorin? discovery, bills to perpetuate testimony, interpleader, receivers, etc. 1 VOL., 474 \'A(UiS, $375. DHLIVIIRni). WEST PUBLISHFNO CO., St. Paul, Minn. (7) (^f^ J5om6ooft ^crtee.) (§ '^ciMoo^ of Cviminai (pvou^nv taches for torts, the mental element, connec- tion as cause, damnum and injuria, common- law, contract and statutory duties, etc. Chapter II. VARIATIONS IN THE NORMAL RIGHT TO TO SUE: Covering exemptions based on privilege of actor, as public acts of states, of judicial and executive officers, etc., and private acts authorized by statute or common law, variations based on status or conduct of plain- tiff, etc. Chapter III. LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS: Covering liability by con- cert in action or joint torts, and liability by relationship, as husband and wife, landlord and tenant, master and servant, partners, etc. Chapter IV. DISCHARGE AND LIMITATION OF LIABILI- ITY FOR TORTS: Covering discharge or limitation by voluntary act of party and by operation of law. Chapter V. REMEDIES: Covering statutory and common- law remedies, judicial and extrajudicial reme- dies, damages, etc. PART II.— SPECIFIC WRONGS. Chapter VI. WRONGS AFFECT1N(; SAFETY AND FREE- DOM OF PERSONS; Covering false impris- onment, assault and battery, and the defenses, as justification and mitigation. Chapter VII. INJURIES IN FAMILY RELATIONS: Cover- ing the iamily at common law, master and servant, parent and child, husband and wife. Chapter VIII. WRONGS AFFECTING REPUTATION: Cover- ing libel, slander, and slander of title, together with the defenses. Chapter IX. MALICIOUS WRONGS: Covering deceit, mali- cious prosecution, abuse of process, interfer- ence with contract, conspiracy, etc. Chapter X. WRONGS TO POSSESSION AND PROPERTY: Covering the nature of possession and its ob- jects, trespass, waste, conversion, etc. Chapter XI. NUISANCE: Covei'ing kinds of nuisance, as pub- lic, private, and mixed, continuing and legal- ized, parties to proceedings against, remedies, etc. Chapter XII. NEGLIGENCE: Covering the duty to exercise care, what is commensurate care, common-law, contract and statutory duties, damages, con- tributor.y negligence, etc. Chapter XIII. MASTER AND SERVANT: Covering master's liability to servant for negligence, master's duty to servant, assumiJtion of risk by serv- ant, various kinds of risks, fellow servants, vice principals, etc. Chapter XIV. COMMON' CARRIERS: Covering the subject generally. 2 VOLS. 1.328 PAGES. $7.50. DELIVERED, WEST PUBLISHING CO., St. Paul, Minn. uu t^c j^ornfiooft ^erteg. (^ 35an&6ooR of . • • • 4pe ConsttucHon anb 3n^erj?re^a^ion of Sai»0t QwUi O'Aiv/iDcatriii DiAr^u- author of black-s law dictionary, and trea- C3Y n. ^Mivif dc:l.i_l. Di-A^^r\t tises on constitutional law. judgments. ETa 4* TABLE OF CONTENTS. Chapter I. NATURE AND OFFICE OF INTERPRE- TATION: Covering definition of terms, ob- ject of interpretation, rules of construction, and office of judiciary. Chapter II. CONSTRUOriON OF CONSTITUTIONS: Covering method and rules of construction, construction as a whole, common law and pre- vious legislation, retrospective operation, man- datory and directory provisions, preamble and titles, extraneous aids, schedule, stare decisis, etc- Chapter III. GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION: Covering literal and eq- uitable construction, scope and purpose of the act, casus omissus, implications in statutes, meaningless statutes, errors, misprints, sur- plusage, interpolation of words, etc Chapter IV. STATUTORY CONSTRUCTION; PRE- SUMPTIONS: Covering presumptions against exceeding limitations of legislative power, un- constitutionality, injustice, irrepealable laws, implied repeal of laws, etc., presumptions as to public policy, as to jurisdiction of courts, etc Chapter V. STATUTORY CONSTRUCTION; WORDS AND PHRASP:S. Covering technical and popular meaning of words, commercial and trade, general and special, relative and qual- ifjing, and permissive and mandatory terms; conjunctive and disjunctive particles, adopted and re-enacted statutes, computation of time, etc. Chapter VI. INTRINSIC AIDS IN STATUTORY CON- STRUCTION: Covering construction as a whole, context, title, preamble, interpretation clause, etc. Chapter VII. EXTRINSIC AIDS IN STATUTORY CON- STRUCTION: Covering admissibility of ex- trinsic aids, statutes in pari materia, con- temporary history, construction and usage, journals of legislature, opinions of legislators, etc. Chapter VIII. INTERPRETATION WITH REFERENCE TO COMMON LAW: Covering statutes af- firming, supplementing, superseding or in derogation of, common law. Chapter IX. RETROSPECTIVE INTERPRETATION: Covering definition, constitutional considera- tions, vested rights, remedial statutes, and statutes regulating procedure. Chapter X. CONSTRUCTION OF PROVISOS, EXCEP- TIONS, AND SAVING CLAUSES: Cov- ering the subject generally. Chapter XI. STRICT AND LIBERAL CONSTRUCTION: Covering penal and remedial statutes, stat- utes against common right, against frauds, and of limitation, legislative grauta, revenue and tax laws, etc Chapter XII. MANDATORY ANT> DIRECTORY PROVI- SIONS: Definitions and rules covering the subject generally. Chapter XIII. AMENDATORY AXD AMENDED ACTS: Covering construction of amendments and of statute as amended, identification of act to be amended, amendment by way of revision, etc Chapter XIV. CONSTRUCTION OF CODES AND RE- VISED STATUTES: Covering construction as a whole, reference to original statutes, change of language, previous judicial construc- tion, etc Chapter XV. DECLARATORY STATUTES: Covering defi- nition and construction in general. Chapter XVI. THE RULE OF STARE DECISIS AS AP- PLIED TO STATUTORY CONSTRUC- TION: Covering the general principle, re- versal of construction, federal courts follow- ing state decisions, construction of statutes of other states, etc. Chapter XVII. INTERPRETATION OF .JUDICIAL DECI- SIONS AND THE DOCTRINE OF PREC- EDENTS: Cohering the nature of prece- dents; dicta; stare decisis; the force of prece- dents as between different courts; the law of the case, etc 1 VOLUME. WEST PUBLISHING CO., C775 (12) 509 PAGES. $3.75, DELIVERED. St. Paul, Minn. (^0e ^om6oo6 ^criee.) (g ganbBooft of TABLE OF CONTENTS. Chapter I. IN GENERAL: Corering definition and gen- eral principles common to all bailments; classification of bailments. Chapter II. BAILMENTS FOR SOLE BENEFIT OF BAILOR: Covering depositum and man- datum, creation, rights and liabilities of parties, termination, etc. Chapter III. BAILMENTS FOR BAILEE'S SOLE BEN- EFIT: Commodatum, creation, rights and liabilities of parties, termination, etc. Chapter IV. BAILMENTS FOR MUTUAL BENEFIT- PLEDGES: Covering definition of pledge, creation, title of pledgor, rights and liabil- ities of parties before and after default, ter- mination, etc. Chapter V. BAILMENTS FOR MUTUAL BENEFIT- HIRING: Locatio or hiring defined; estab- lishment of relation; rights and liabilities of parties; hiring of things for use; hire of labor and services; warehousemen; wharf- ingers; safe-deposit companies; factors, etc.; termination of relation, etc Chapter VI. INNKEEPERS: Innkeeper defined; who are- guests; commencement of relation; duty to receive guest; liability for guests' goods; lien; termination of relation; liability a» ordinary bailee, etc. Chapter VII. CARRIERS OF GOODS: Common carriers, essential characteristics; when liability at- taches; discrimination; compensation; lien; liability as insurers and as ordinary bailees; carriers of live stock; carriers of baggage; contracts and notices limiting liability; ter- mination of liability; connecting carriers, etc.; post-ofl5ce department; private car- riers. Chapter VIII. CARRIERS OF PASSENCxERS: Who are passengers; when liability attaches; duty to accept passengers; furnishing equal ac- commodations: ticket as evidence of pas- senger's rights; right to make regulations; injuries to passengers; contracts limiting liability; termination of liability; ejection from vehicle: cnnnocting carriers, and cov- ering the subject generally. Chapter IX. ACTIONS AGAINST CARRIERS: Actions against carriers of goods and carriers of iiiissengprs; parties; form of action; plead- ing; evidence; damages. 1 VOLUME. 675 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. CU95 (13) Z^ l^omBooS ^eriee.) ♦ ♦(vV»» Q5g nrcifter ©enton ^mitg, Instructor in the Law Department of the University of Michigan. TABLE OF CONTENTS. Part I-ELEIVIENTARY JURISPRUDENCE. CHAPTER I. NATURE OP LAW AND THE VARIOUS SYSTEMS: Moral, divine, municipal, international, mari- time and martial law. CHAPTER n. GOVERNMENT AND ITS FUNCTIONS: Covering sovereignty, the state, the constitution, and the forms and functions of government generally. CHAPTER III. GOVERNMENT IN THE UNITED STATES: Its general character, sovereignty, distribution of powers, citizenship, etc. CHAPTER IV. THE UNWRITTEN LAW; The Roman, the Canon and the Common law. CHAPTER V. EQUITY: Nature and jurisdiction of equity; max- ims. CHAPTER VI. THE WRITTEN LAW: Relation to unwritten law; statutory law in general. CHAPTER VII. THE AUTHORITIES AND THEIR INTERPRETA- TION: The rank of authorities, rules of inter- pretation, statutory construction, etc. CHAPTER VHI. PERSONS AND PERSONAL RIGHTS: Legal rights, wrongs and remedies, rights In rem and in personam, status, personal security, liberty, property, constitutional guaranties, etc. CHAPTER IX. PROPERTY: Covering, ownership and possession; the Feudal system; corporeal and Incorporeal, real and personal, property ; fixtures, etc. CHAPTER X. CLASSIFICATION OF THE LAW: SubstanUve and adjective, public and private law, etc. Part II— THE SUBSTANTIVE LAW. CHAPTER XI. CONSTITUTIONAL AND ADMINISTRATIVE LAW: Written and unwritten constitutions, essentials and construction of constitutions; administra- tive law, etc. CHAPTER XII. CRIMINAL LAW: Covering its general nature, criminal capacity, classification of crimes, pun- ishment, etc. CHAPTER Xni. THE LAW OF DOMESTIC RELATIONS: Cover- ing marriage and its Incidents, parent and child, guardian and ward, master and servant, etc. CHAPTER XIV. CORPOREAL AND INCORPOREAL HEREDITA- ME.NTS: Covering the subject generally. CHAPTER XV. ESTATES IN REAL PROPERTY: Classification, estates in possession and in expectancy; free- holds and estates less than freehold; estates in severalty, in joint tenancy and in common; ab- solute and conditional, legal and equitable es- tates ; etc. CHAPTER XVI. TITLES TO REAL PROPERTY: Covering title by descent and by purchase, classification and forms of deeds, etc. CHAPTER XVTI. PERSONAL PROPERTY: Real and personal chat- tels, ownership of personal property, acquisition of title, etc. CHAPTER XVIII. SUCCESSION AFTER DEATH: TesUte and intes- tate succession, escheat, executors and adminis- trators, etc. CHAPTER XIX. CONTRACTS: Definition, validity and classification of contracts, quasi contracts, etc. CHAPTER XX. SPECIAL CONTRACTS: Covering contracts of sale, bailments, negotiable contracts, suretyship, insurance, etc. CHAPTER XXI. AGENCY: Covering the subject generally. CHAPTER XXII. COMMERCIAL ASSOCIATIONS: Covering part- nerships, joint stock companies, voluntary asso- ciations, corporations, etc. CHAPTER XXm. TORTS: Covering the nature and elements of torts, proximate and remote cause and specific torts. Part III— THE ADJECTIVE LAW. CHAPTER XXIV. REMEDIES: Extralegal and legal, penal and civil, common law and equitable, ordinary and extraor- dinary remedies. CHAPTER XXV. COURTS AND THEIR JURISDICTION: Covering the subject generally. CHAPTER XXVI. PROCEDURE: In general; outlines of common law, equity, code, and criminal procedure. CHAPTER XXVII. TRIALS: Early forms, trial procedure, evldenca. 1 VOL. 367 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C1112 (14) (t^ J^otnfiooft ^eriee.) (§ 5anb6ooft of CPe San) of ©amage^; . Author of "Bailments and Carriers." TABLE OF CONTENTS. CHAPTER I. DEFINITIONS AND GENERAL PRINCIPLES: Deflnitlon. nature and theory of damages; wrong and damage; analysis of legal wrongs; classification of damages. CHAPTER II. NOMINAL DAMAGES: Definition and general na- ture. CHAPTER III. COMPENSATORY DAMAGES: Definition; proxi- mate and remote consequences; direct and con- sequential losses; avoidable consequences; cer- tainty of damages; profits; entirety of demand; past and future losses; elements of compensa- Uon; aggravation and mitigation of damages; reduction of loss; injuries to limited interests, CHAPTER IV. BONDS, LIQUIDATED DAMAGES AND ALTERNA- TIVE CONTRACTS: Covering the subject gen- erally. CHAPTER V. INTEREST: Definition; as .a debt and as damages: interest on liquidated and unliquidated de- mands; on overdue paper, — contract and stat- ute rate; compound interest; etc. CHAPTER VI. VALUE: Definition; how estimated; market value; pretium affectlonis; value peculiar to owner; time and place of assessment; highest interme- diate value; etc. CHAPTER VII. EXEMPLARY DAMAGES: In general; when re- coverable; liability of principal for act of agent; CHAPTER VHI. PLEADING AND PRACTICE: Allegation of dam- age, the ad damnum, form of statement, prov- ince of court and jury, etc. CHAPTER IX. BREACH OP CONTRACTS FOR SALE OP GOODS: Damages in action by seller for non-acceptance and non-payment; damages in action by buyer for non-delivery, breach of warranty, and as for conversion. CHAPTER X. DAMAGES IN ACTIONS AGAINST CARRIER: Carriers of goods, — refusal to transport, non- delivery, injury in transit, delay, consequential damages; carriers of passengers, — injuries to passenger exemplary damages, mental suffering, delay, wrongful ejection, etc. CHAPTER XI. DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES: Actions by sender and by receiv- er; proximate and certain, remote and specula- tive damages; notice of purpose and importance of message; cipher messages; avoidable conse- quences; exemplary damages; etc. CHAPTER XII. DAMAGES FOR DEATH BY WRONGFUL ACT: Pecuniary losses; mental suffering: exemplary damages; injury to deceased; medical and fu- neral expenses; meaning of pecuniary, — care and support, prospective gilts and inheritances: in- terest as damages; discretion of jury; nominal damages, etc. CHAPTER XIII. WRONGS AFFECTING REAL PROPERTY: Dam- ages for detention of real property; trespass; nuisance; waste; contract to sell real property, — breach by vendor or vendee; breach of cove- nants, etc. CHAPTER XIV. BREACH OF MARRIAGE PROMISE: In general, compensatory damages, exemplary damages, etc 1 VOL. 476 PAGES. S3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. Cllll (15) {t^ j^omfi^ft ^erice.) • (^ ^aMoo%. of ] tf}C Eati? of (Heaf (properfj. Q?j 6arf (p. J^opRiuB, ^. (g., £E. (UV TABLE OF CONTENTS. Chapter I. WITAT TS r.EAL J'lii >ri:UTY: Real nnd pvi-soiiiil iiruiKTty. IJxiures. equitable couver- siou, personal interests in laud. Chapter II. ti:m la: and skisln. Chapter III. ESTATES AS TO QIANTITY— FEE STM- ri.K: Classiliiiuiiiii of estates, frceholil, fee-simole, creation, right of userand aliena- tion. Chapter IV. ESTATES AS TU UUA.NTITY (Continued)— ESTATES TAIL: Classes, oripin. crea- tion, incidents, duration, tenant in tail aft- er possibility of issue extinct, estates tail in the United States, quasi entail. Chapter V. ESTATES AS TO QUANTITY (Continued)— CUNVENTIONAE LIFE ESTATES: Life estates, creation, conventional life es- tates, incidents, estates per autre vie. Chapter VI. ESTATES AS TO (jrAXTI'PY (Continued)- LEtLAJ^ LIKE ESTATES: Estate during coverture, curtesy, dower, homestead, fed- eral homestead act. Chapter VII. ESTATES AS TO QEANTITY (Continued)— LI:SS THAN FHEEHOLD: Estates for years, lettinj: land on shares, tenancies at will, tenancies from year to year, lettinjr of lodgings, tenancies at sufferance, licenses. Chapter VIII. ESTATES AS TO QIAUTY ON CONDI- TION— ON LIMITATION: Estates on condition, estates on limitation, base fees. Chapter IX. ESTATES AS TO oiALITY (Continued)- MiiUTGAGES: Parties, nature, form, rights and liabilities of mortgagor and niort- griiTpe. n'^'^itrnment of the equity of redemp- •:.ii. .■i---i_-iinient of the nuirfgage, priority ef in"itL:ii:<'S and other conveyam-es. regis- Iraiion, discharge of a mortgage. Chapter X. EQUITABLE ESTATES: Statute of nses. classification of trusts, — express, implied, resulting, constructive, — incidents of equita- ble estates, charitable trusts. Chapter XI. i:STATES AS TO TIME OF EN.TOYMENT —FUTURE ESTATES: Reversions, possi- bilities of reverter, remainders, rule in Shel- ley's Ca.se, future uses, springing uses, shifting uses, executory devises, incidents of future estates. Chapter XII. ESTATES AS TO NUMBER OF OWNERS —JOINT ESTATES: Joint tenancies, ten- ancies in common, estates in coparcenary, estates in entirety, estates in partnership,, incidents of joint estates, partition. Chapter XIII. INCORPOREAL HEREDITAMENTS: Easements, creation, classification, inci- dents, destruction, rights of way, highways, light and air, lateral and subjacent sup- port, party walls, easements in water, prof- its a prendre, rents, franchises. Chapter XIV. LEGAL CAPACITY TO HOLD AND CON- VEY REALTY: Infants, per.sons of un- sound mind, married women, aliens, corpo- rations. Chapter XV. RESTRAINTS ON ALIENATION: Re- straints imposed by law. restraints in favor of creditors, restraints imposed in creation of estate. Chapter XVI. TITLE: Acquisition of title by state nnd pri- vate per.son.s, grant from state, conveyan- ces, common-law conveyances, conveyances under statute of uses, modern statiitory con- veyances, registered titles, requisites of deeds; covenants for title, seisin, against incumbrances, warranty, further assurance; estoppel, adverse possession, accretion, de- vise, descent, judicial jirocoss: conveyances under licenses, under dtiress; tax titles, em- inent domain. 1 VOL. 689 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. CI 101a (16) @v l^anbBoog of ^^e ^att? of ^eraone anb ©omeeftc (Refa^ioue, (10g nraffer €. itiffang. PART I. HrSBAXD AND WIFE. Chapter I. MARRIAGE: Covering definition and essen- tials; capacity of parties; reality of con- sent; formalities in celebration; annul- ment and avoidance; validating acts; con- flict of laws, etc. Chapter II. PERSONS OP THE SPOUSES AS AF- FECTED BY COVERTURE: Covering rights inter se; crimes and torts of married women; crimes and torts as between lius- band and wife; torts against married wo- men: actions for alienation of affections; crim. con., etc. Chapter III. RKUITS IN PKorEHTY AS AFFECTED P.Y COVER ri" RE: Covering wife's earn- ings; wife's clioscs in action and in posses- sion; wife's chattels real; administration of wife's estate; eiinitable and statutory separate estate; communily property; cur- tesy; dower; estates by the entirety, etc. Chapter I"V. CONTRACTS, COXVEY.WCES, ETC., AND QUASI-CONTRACTUAL OBLI- OATIONS: Covering, inter alia, husband's liability for wife's necessaries, antenuptial debts, and funeral expenses; wife as a sole trader; wife as husband's agent; convey- ances, sales, and gifts by the wife, etc. Chapter V. FIFE'S EQUri'.M'.LK AND STATd'oUV SEPARATE ESTATE: Covering ilieir natiue; jus disi)onendi: power to charge l)y contract, etc. Chapter VI. ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS: Covering the subject generally, in< billing marriage as a consid- eration; the statute of frauds; validity against creditors and purchasers, etc. Chapter "VII. SEPARATION AND Dl\(HM"i:: Coyerin;: agre<'inents for separation: jurisdiction to grant divorce; grounds for divorce; lie- fenses in actions for divorce; legislative di- vorce, etc. PART II. PAKFNT AM) CHILD. Chapter VIII. Li;<;iTIM.\(Y. ILPE(;iTLMA(JY. A N I> AlXiP'riO.V: (.'overiiig b-iiimacy of cliil dren; adoption of children; status ol' ille-iii matt; children. TABLE OF CONTENTS. Chapter IX. DUTIES AND l.I API 1.111 KS OF FAH- ENTS: Maintename. protection, and edu- cation of diild; allowance out of child's estate; child as parent's agent; parent's lia- bility for crimes and torts of child, etc. Chapter X. uKiirrs OF PARi:\Ts and of chil- DIJIOX: Right to custody: service aiiil earnings of child: correction of child; emancipation of children; action by parent for injuries to child; gifts, contracts, aiid conveyances between; advancements; duty to support parent; domicile of ehild, etc. PART III. GUARDIA.X AND WARD. Chapter XI. GUARDIANS DEFINllD — SELECTION AND APPOINTMENT: Covering natural guardians: testamentary guardians: statu- tory gtiarilians; guardians by est'ii>ix-l; guiirdians of insane pi'rsous; guardians sid litem, etc. Chapter XII. RIGHTS. DUTIES. AND LIABILITIES OF GUARDIANS: Riglit to custody and serv- ices of ward; maintenance of ward: change of ward's domicile: management of ward's estate; foreign gitardians; inventory and accounts; compensation of gttardian: trans- actions between guardian and ward, etc. Chapter XIII. T1:K.ML\AT1(>N nv (jrAKDI.VNSIIlP — ENFORCING <;UARDL\N'S LIABILI- TY: Covering the subject generally. PART IV. INFANTS. PI:KSoXS NON COMPOTES MENTIS. .\ND ALIENS. Chapter XIV. I.\'1".\.\"TS: Covering contracts of infants, in- cluding ratification and disatlirmaiice; lia- bilities for necessaries, etc.; capacity lo li()ld .ii:. iH\) \<;i:s. $:$. >i;i.i\ i;i;i:i» WEST PUBLISHING COMPANY. ST. PAUL. MINN. (IT) (3n t^ jEfOtnOocft ^encs.) the caw V." . (B)cuu(oxB attb (§i»tntni6^t:a^or0 By Simon Grecnkaf groswell, Aotlior «>f " Kleotricily," "I'alcut Cases," eto. TABLE OF CONTENTS. Part I.— DEFINITIONS AND DIVISION OF SUBJECT. Chapter I. DEFINITIONS AND DIVISION OP SUBJECT: Ex- ecutors and administrators defined; analysis of book. Part II.— APPOINTMENT AND QUALIFICATIONS. Chapter II. APPOINTMENT IN COURT: Necessity of adminis- tration; necessity of appointment by court; ju- risdiction; conciusiveness of decrees of probate courts, etc. Chapter III. PLACE AND TIME OF APPOINTMENT AND REQ- UISITES THEREFOR: Place of appointment; property necessary to give jurisdiction; time limit for application. Chapter IV. WHO MAY CLAIM APPOIXTMENT AS EXECU- TOR: Designation in will; appointment by dele- gation; executor of executor; non-assignability of office. Chapter V. WHO MAT CLAIM THE RIGHT TO ADMINISTER: Principle which governs the right; order of pre- cedence; creditors; preferences among kindred etc. Chapter VI. DISQUALIFICATIONS FOR THE OFFICE OP EX- KCUTOR OR ADMINISTRATOR: Infants, mar- ried women. Idiots, lunatics, convicts, corpora- tions; poverty and insolvency; absolute and dis- cretionary incompetency, etc. Chapter VII. ACCEPTANCE OR RENUNCIATION: Express or implied renunciation. Chapter VIII. PROCEEDINGS FOR APPOINTMENT OF EXECU- TORS AND ADMINISTRATORS: In general. Chapter IX. SPECIAL KINDS OF ADMINISTRATIONS: Admin- istration cum testamento annexe; dB bonis non; during minority; pendente lite; public adminis- trator; executor de son tort, etc. Chapter X. FOREIGN AND INTERSTATE ADMINISTRATION: validity of foreign wills; territorial limit of va- lidity of lettfTs; principal and ancillary adminis- tration; conflict of laws; comity, etc Chapter XI. JOINT EXECUTORS AND ADMINISTRATORS: Na- ture of estate; rights, powers and liabilities; rem- edies between, etc. Chapter XII. ADMINISTRATION BONDS: Covering the subject generally. Part III.— POWERS AND DUTIES. Chapter XIII. INVENTORY— APPRAISEMENT— NOTICE OP AP- POINTMENT: Covering the subject generally. Chapter XIV. ASSETS OF THE ESTATE: What are assets; fix- tures; emblements; animals; ownership at time of death, etc. Chapter XV. MANAGEMENT OF THE ESTATE: Rights and lla^ bilities of executors or administrators; collection and investment of assets, taxation, etc. Chapter XVI. SALES AND CONVEYANCES OF PERSONAL OR REAL ASSETS: Covering sales in general, sales of land to pay debts, power to mortgage, etc. Chapter XVII. PAYMENT OF DEBTS AND ALLOWANCES— IN- SOLVENT ESTATES: Covering priority of dohts, widow's allowance, expenses of funeral and last illness, costs of administration: presentation and allowance of claims, insolvent estates, etc. Chapter XVIII. PAYMENT OF LEGACIES: Legacies subordinate to debts; ademption and abatement of legacies; priority between legacies and contingent, future or unknown debts; payment of legacies. Interest, etc. Chapter XIX. DISTRIBUTION OF INTESTATE ESTATES: Order, time and mode of distribution; rights of husband, widow and next of kin, right of presentation, payment of distributive share, etc. Chapter XX. ADMINISTRATION ACCOUNTS: Time and manner of accounting, charges and allowances In account; commissions and compensation, etc. Part IV.— TERMINATION OF OFFICE. Chapter XXI. REVOCATION OF LETTERS— REMOVAL— RBSIO- NATION: Covering the subject generally. Part v.— REMEDIES. Chapter XXII. ACTIONS BY EXECUTORS AND ADMINISTRA- TORS: Power to sue before probate or grant of letters; survival of actions; actions in personal and representative capacity, etc. Chapter XXIII. ACTIONS AGAINST EXECUTORS AND ADMIN- ISTRATORS: Survival of actions: particular lia- bilities; attac^hmcnt and garnishment: judgments, executions and other proceedings; order of liabil- ity of assets; suits on bonds, etc. Chapter XXIV. STATUTE OP LIMITATIONS— SET-OFF: General and special statute of limitations, set-off, etc Chapter XXV. EVIDENCE AND COSTS: Covering the subject generally. I Vol. 696 Pages. $3-75. Net, Delivered. CI 395 me$i PuWi$bin9 Co., St. Paul, minn. (18) @ 35mtb6oo6 of i^t Bai» of (ptii>Cik Covpovaiions. By Wn. L. CLARK, Jr., Author of "Criminal Law," "Criminal Procedure," and '"Conlracts." TABLE OF CONTENTS. Chapter I. OP THE NATURE OF A CORPORATION: Definitiou and creation; limited powers; attri- butes and incidents; corporatioa as a person, citizen, etc. ; kinds of corporations, etc. Chapter II. CREATION AND CITIZENSHIP OF CORPO- RATIONS: Covering the subject general!}', in- cluding power to create; general and special laws; ratification of claim to corporate exist- ence; agreement between corporation and state — acceptance of charter; agreement between corp )rators and corporation ; purpose of incorpo- ration; corporate name, residence, and citizen- ship of corporation ; extension of charter ; proof of corporate existence, etc. Chapter III. EFFECT OF IRREGULAR INCORPORATION: Corporations de facto ; estoppel to deny corpo- rate existence; liability of stockholders as part- ners. Chapter IV. RELATION BETWEEN CORPORATION AND ITS PROMOTERS: Liability for expenses and services of promoters; liability on contract by promoters; liability of promoters to corporation and stockholders, etc. Chapter V. POWERS AND LIABILITIES OF CORPORA- TIONS: Express and implied powers; con- struction of charier; power to hold realty; con- tracts and conveyances, etc. Chapter VI. POWERS AND LIABILITIES OF CORPORA- TIONS (Continued) : The doctrine of ultra vires. Chapter VII. POWERS AND LIABILITIES OF CORPORA- TIONS (Continued): Responsibility for torts and crimes ; contempt of court. Chapter VIII. THE CORPORATIO.V AND THE STATE: Charter as a contract; police power of the state; power of eminent domain; repeal and amiMid- ment of charter; taxation of corporation. Chapter IX. DISSOLUTION OF CORPORATIONS: How ef- fected; equity jurisdiction; effect of dissolu- tion, etc. Chapter X. MEMBERSHIP IN CORPORATIONS: Capital stock and capital; nature of corporate shares; certificates of stock ; subscriptions to stock ; re- lease and discharge of subscriber, etc., covei-ing the subject generally. Chapter XI. MEMBERSHIP IN CORPORATIONS (Contin- ued) : Right to inspect books and papers; right to vote; profits and dividends; increase of cap- ital; preferred stock; watered and bonus stock; action by stockholders for injuries to corpora- tion ; expulsion of members, etc. Chapter XII. MEMBERSHIP IN CORPORATIONS (Contin- ued) : Covering transfer of shares. Chapter XIII. MANAGEMENT OF CORPORATIONS— OFFI- CERS AND AGENTS: Powers of majority of stockholders; by-laws; stockholders' meetings; election and appointment of ofiBcers and agents: powers and liabilities of officers and agents; re- moval of officers and agents, etc., covering the subject generally. Chapter XIV. RIGHTS AND RE.MEDIES OF CREDITORS: Relation between creditors and the corporation, coverinsr, inter alia, property subject to execu- tion ; assets as a trust fund for creditors; fraud- ulent conveyances; assignment for benefit of creditors; preferences; dissolution, injunction, and receivers; relation between creditors and stockholders, covering, inter alia, statutory lia- bility of stockholders; contribution between stocliholders, etc. ; relation between creditors and officers, covering preferences to officers who are creditors; statutory liability of officers. Chapter XV. FOREIGN CORPORATIONS: Covering the sub- ject generally. APPENDIX. The logical conception of a corporation. I Volume. 740 pages. $3.75, net, delivered. West Publishinjr Co , St. Paul, Minn. C1470 (!:•) He J^ornBooft ^criee. (g J5<:«nb6oo6 of t^t £af» of ^ar^nere^ip QSg n^iffiam (Beorge. TABLE OF CONTENTS. Chapter I. DEFIMTION AND ESTAIM.ISIIMKNT OF RELATION: Wlinl const initios :i luirtiuT- .shiir. tests of intention: sh:irinj.M>ivfif>^; P™' meters of corporiitions: defective corpora- tion; delectus iiersonaruni; subpartnersliips; holding: out, etc. Chapter II. RINDS OF PAUTXFUSIIII'S AND PAUT- NERS: Classitication of i)artiuTsliii)s and partners: universal, .general, and six'cial part- nerships: limited partnerships: joini-stock companies: niininji iiartnerships; trading and uontrading- partnerships, etc. Chapter III. CHARACTERISTIC FEATURES OF PARTNERSHIPS: Legal and mercantile view of a firm; partnersliip name: partner- ship property; partnership capital; shares in partnerships, etc. Chapter IV. IMPLIED RIGHTS AND LIABILITIES IN- TER SE: Participation in management; rights and powers of majority: dut.v to ex- orcise care, skill, and good iaith: right to comiwte with firm: compensation for serv- ices; interest on balances; partner's lien: division of profits, etc. Chapter V. ARTICLES OF PARTNERSHIP: Purpose and effect; rides of ct)nsti'uction: us\ia! clauses in arliclc^s. etc.; cov(>iing the subjeiM generally. Chapter VI. RIGHTS AND LIABILITIES AS I'i ) THIRD PERSONS: Express and implied authority of i)artner to bind firm; |)articu- lar powers: liability of partners to third persons: incoming partners; assumption of debts; rights in firm and separate [iroperty. etc. Chapter VII. ACTIONS BETWEEN I'ARTNERS: Action on partnership claim or liability, at law, in (>quity, or under the code: actions between firms with a common member: actions on individual obligations: equitable actions in general; accounting and dissolution: spe- cific iierform.anei'; iujnnetion; receivers, etc. Chapter VIII. ACTIONS BETWEEN PARTNERS AND THIRD I'eRSONS: Parties in actions by and against ))artners; effect of changes in firm: dis(iualification of one partner to sue; action in firm name, etc. Chapter IX. DISSOLUTION: Causes of dissolution; part- nerships for a definite and indefinite time; causes subject to stipulation; causes not sub- ject to stipidafion; causes for which a court will decree a dissolution: consequences of dissolution as to third persons and as to jiartners. Chapter X. LIMITED PARTNERSHIPS: Covering the subject exhaustively, including, inter alia, definition and establishment of relation; general and special members; certificate; contribution of general and special jiartners; name; sign: rights and liabilities: wilh- (h'awal, alteration, and interfeience; insol- vency; termination of rel.ition: change from limited to general liability; actions, etc. Chapter XI. JOINT-STOCK COMPANIFS: Definition and nature; transfer of shares: powers of mem- liers and officers; rights and liabilities; ac- tions, etc. I Volume, 6i6 pages. $3.75, net, delivered. West Publishing Co , St. Paul, Minn. C1471 ^'-^O) (3n tge |5orn6ooft §ttite.) (g 15an&6ooR of (Bcjutig (pfeabing. Author of " Shipman's Common-Law Pleading." TABLE OF CONTENTS. Chapter I. EQUITY PLEADING IN GENERAL: Cov- ering nature and scope of pleadings in eq- uity Chapter II. PARTIES: Giving general rules, and covering classification of parties as necessary, proper Itut not indispensable, formal, and parties with separable interests: parties complain- ant and respondent; joinder, etc. Chapter III. PROCEEDINGS IN AN EQUITABLE SUIT: Indicating the steps usually taken and the method of procedure, as the bill, appearance, proceedings on default; the modes of defense, by disclaimer, demurrer, plea, or answer; the replication; interlocu- tory proceedings, as amendment, injunc- tions, production of documents, interven- tion; the evidence, hearing, and decree; the correction, reversal, or enforcement of de- crees, etc. Chapter IV. BILLS IN EQUITY: Covering definition and classification, and discussing original bills, and bills not original, with a summary of the general rules covering the bill, etc. Chapter V. THE DISCLAIMER: Definition, nature, and use. Chapter VI. DEMURRER: Definition; form of demurrer, and grounds therefor; orders sustaining or overruling demurrer, etc. Chapter VII. THE PLEA: Definition, nature, and office of pleas, grounds for pleas, their form, support- ing answers, etc. Chapter VIII. THE ANSWER: Nature and office, substance and effect, of the answer, and the character- istics tln-reof. Chapter IX. THE REPLICATION. 644 PAGES. $3.75. NET, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. llt;;;(j (21) (Zic JB<5rn6ooil §cxm,) (^ ganb6ooft of CPe San) of (Et)ibence* Author of "Common-Law Pleading," etc. TABLE OF CONTENTS. CHAPTER I. INTRODUCTORY: Definitions; origin, place and function of the law of evidence, etc. CHAPTER II. JUDICIAL NOTICE: The doctrine in general; facts which may or must be noticed. CHAPTER III. QUESTIONS OP LAW AND QUESTIONS OF FACT: Definitions; province of court and jury. CHAPTER IV. BURDEN OF PROOF: Burden of proof never shifts; burden of proceeding may shift; ver- dict, etc. CHAPTER V. PRESUMPTIONS: Presumptions as rules of law; prima facie, conclusive, spurious, and conflicting presumptions. CHAPTER VI. ADMISSIONS: Direct and indirect admissions; admissibility; civil and criminal cases; ef- fect of admission, etc. CHAPTER VII. CONFESSIONS: Defined; voluntary or under influence; may be explained; evidence there- from, etc. CHAPTER VIII. MATTERS EXCLUDED AS UNIMPOR- TANT, OR AS MISLEADING, THOUGH LOGICALLY RELEVANT: Logical and le- gal relevancy, rule excluding; classification of matter; proof of diverse matters consid- ered. CHAPTER IX. CHARACTER: General rule; when material; how proved, etc. CHAPTER X. OPINION EVIDENCE: Matter of opinion dis- tinguished from matter of fact; general rule; exceptions; matters forming subject of ex- pert opinion, etc. CHAPTER XL HEARSAY: General rule; exceptions; real and appaient; classes of statements admit- ted because of tlie difficulty of other proof. CHAPTER XII. WITNESSES: Rules excluding witnesses; per- sons excluded; privilege distinguished from disqualification; privileged persons. CHAPTER XIII. EXAMINATION OF WITNESSES: Ordinary method; refreshing memory; direct and cross examination; leading questions; im- peaching witness, etc. CHAPTER XIV. WRITINGS: B<^st evidence rule; production of documents; authentication of documents; proof of handwriting; evidence affecting the contents of documents, etc, CHAPTER XV. DEMURRERS TO EVIDENCE: Definition; when joinder compelled; final form, etc. 1 vol. 480 pages. $3.75, net, delivered. WEST PUBLISHING CO., 5t. Paul, Minn. C1837 (22) (€5e ^otn$oo& §txkB,) (^ ganb6ooft of Cpe £an) of (Uegfigence^ TABLE OF CONTENTS. Chapter I. DEFINITION AND ESSENTIAL ELE- MENTS : Considering also proximate cause ; efficient, intervening, or co-operating cause, etc. Chapter H. CONTRIBUTORY NEGLIGENCE: Defini- tion and general rule ; degree of care ; as- sumption of risk and legal status of plain- tiff ; plaintiff's negligence ; negligence of third persons ; imputed negligence ; phys- ical condition as an element ; evidence, pleading, and questions of fact. Chapter III. LIABILITY OF MASTER TO SERVANT: Duty of master, as to appliances, selecting servants, rules, etc. ; limitation of master's duty ; ordinary risks, known dangers, fel- low servants ; concurrent and contributory negligence. Chapter IV. LIABILITY OP MASTER TO THIRD PER- SONS : Relationship ; independent con- tractor ; willful torts of servants, and inde- pendent torts. Chapter V. COMMON CARRIERS OF PASSENGERS: The relation of passenger and carrier ; ter- mination of relation ; who are passengers ; the contract, ticket, compensation, etc. Chapter VI. CARRIERS OF GOODS: Definition; liabili- ty for loss or damage ; liability for delay ; contracts limiting liability in spet-ial states; limiting time and manner of making claims; construction of limiting contracts ; actual notice; special classes of goods, as live stock and baggage ; beginning and termina- tion of liability ; excuses for nondelivery. Chapter VH. OCCUPATION AND USE OF LAND AND WATER : Duties, — general rule ; lateral support ; dangerous premises ; landlord and tenant, and condition of rented premises ; water courses ; dams ; obstruction of navi- gable streams, etc. Chapter VIII. DANGEROUS INSTRUMENTALITIES : Railroads ; degree of care exacted ; signals ; care required of persons ; collisions with persons and with animals ; fires ; inten- tional, accidental, and railroad fires; ani- mals ; communicating disease ; firearms, ex- plosives, poisons, etc. Chapter IX. NEGLIGENCE OP ATTORNEYS, PHYSI- CIANS, AND PUBLIC OFFICERS: Negligence of attorneys ; damage essential to liability ; negligence of physicians ; bur- den of proof, evidence, pleading, etc. ; negli- gence of public and governmental officers, ministerial officers, sheriffs and constables, notaries public, clerks of court, and registers of defeds. Chapter X. DEATH BY WRONGFUL ACT : Right of ac- tion ; instantaneous death, proximate cause of death, beneficiaries ; damages ; pleading and evidence; limitation of commencement of action. Chapter XI. NEGLIGENCE OF MUNICIPAL CORPO- RATIONS : Public and private corpora- tions ; right of action ; liability for inju- ries ; alteration of grades; acts of officers or agents; acts ultra viros; judicial or leg- islative duties; conflagrations and destruc- tion by mobs ; public health and sanitation ; quasi municipal corporations. 1 VOL. 634 PAGES. $3.75. DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. 0278>5-l (•_>:?) ^^e ^oxnioo^ ^trks. T HE Albany Law Journal, in a recent review of one of the volumes of the Hornbook Series, writes : "So much has been written upon the merits of the Hornbook Series that anything additional may seem superfluous; yet we cannot refrain from commenting, in passing, upon the general utility, merit, and scope of the series. * * » The series is of untold value to the practicing lawyer, enabling him to find and refresh his mind in an instant upon any fundamental principle or variation therefrom of which he may be in doubt, and furnishing an ever-ready and convenient digest of the law." This emphasizes the fact, which has also been practically recognized by the members of the bar who have examined the volumes issued under this name, that, although low in price, they are not, in consequence, cheap books. They are elemen- tary in the sense that they deal with the elementary branches of law, but they are not by any means elementary in the sense that they fail to give the compre- hensive handling which the practitioner, as distinguished from the law student, re- quires. In planning the style and character of this series, the controlling idea was that any principle of law could be stated in simple and intelligible terms, if the man who made the statement understood the principle, and knew how to express himself. It was to some extent an attack upon the old theory that a certain amount of obscurity in a legal document heightened the effect of learning. It was main- tained, instead, that any legal principle could be stated in simple and intelligible terms, and each separate branch of the law, if carefully studied with this in view, could be mapped out so that the fundamental principles involved could be shown in an orderly sequence, and in their relation to each other. The soundness of the theory has been shown by the success of the Hornbook Series. The several vol- umes have been prepared by different authors, carefully chosen from the field of legal writers, with the object of securing thorough and expert treatment of the particular subject assigned in each instance. The method of presentation was at first considered a novel one, but has now become so well known, through the seventeen works issued, that the Albany Law Journal could refer to it in the terms quoted at the beginning of this notice. The books have been found so exact in statement, so convenient in arrangement, and so unmistakably clear in style, that they have been adopted as the basis of instruction in over seventy law schools. At the same time, they have been found by practitioners to be exactly the kind of book that a prac- titioner needs to have on his desk for current reference. He presumably knows the law, yet he often desires to refresh his memory regarding some special branch before he takes up a case involving questions relating to it, and for that purpose the arrangement of black-letter paragraphs for the statement of principles is pecul- iarly convenient. At the same time, the exceptions and modifications of these principles are stated in a different type, so that it is possible for him to go into de- tails of any question when he desires to do so. The authorities are grouped in notes at the foot of the page, and their completeness is evidenced by such testi- mony as the following: "I found upon page 58 of this small volume [Clark's Criminal Law], in a small compass, a statement of the divergent views, and a collation of the authorities pro and con [on a certain ques- tion], all contained in a more condensed and satisfactory form than I have found in any other treatise."— Hon. J. M. Dickinson, Asst. U. S. Atty. Gen. "I found in Clark's Criminal Procedure, under ' Jurisdiction,' authorities regarding the ques- tion of asportation, for which I had on a previous occasion spent months of patient search. Fetter on Equity has also already paid for itself many times over." — U. S. G Pitzer, Prosecuting Attorney, Martinsburg, W. Va. C1328-6 (24) I UNIVERSITY OF CAUFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. JUL 1 9 1975 PSD 1916 8/77 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 821 088 2