\ 'i!^^>0' UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY I Fron ROOl ^^-<^ A* TREATISE ON The Law of Damages, BX GEORGE W. FIELD, AUTHOR OF "A TREATISE ON THE POWERS, DUTIES AND LIABILITIES OF COUNTY AND TOWNSHIP OFFICERS." DES MOINES, IOWA : MILLS & COMPANY, LAW PUBLISHERS. 1876. ^4551 i Entered according to Act of Congress, in the year eighteen hundred and seventy-six, By GEORGE W. FIELD, In the Office of the Librarian of Congress, at Washington. STEREOTYPED AND PRIXTED BY MILLS & COMPANY, DES M0IXE3, IOWA. TO THE Won. John F. Dillon , pp. p., JUDGE OF THE UNITED STATES CIRCUIT COURT. FOB THE EIGHTH CIBCUIT, THIS VOLUME IS RESPECTFULLY DEDICATED, AS AN EXPRESSION OF GRATITUDE FOR HIS KINDNESS AS A FRIEND, OF APPRECIA TION OF HIS PURITY AS A CITIZEN, AND ADMIRATION OF HIS DISTINGUISHED ABILITY AS AN AUTHOR AND A JURIST. THE AUTHOR. PEEFACE. It is perhaps unnecessary to call tlie attention of the pro- fession to the great variety of topics discussed, and the care and labor required in the preparation of a treatise of this kind. It will be apparent that a proper presentation of the subject must include, not only a careful statement of the rules, principles, and elements of damages, embracing a great variety of cases, but usually, at least some condensed state- ment of the law in general, relating thereto. Besides this, much conflict will be found in the decisions relating to the rules of damages ; different rules prevail in the same class of cases in different states, or some element of damages is recog- nized in one state not recognized in another, recpiiring some qualification or modification of the general rule, and fre- quently involving the necessity of stating the particular rules in the different states. Under such difticulties and compli- cations attending a treatment of the subject, it may, perhaps, be reasonably expected that some inaccuracy or incomplete- ness of statement has sometimes occurred. The field of our jurisprudence has been, within a few years past, greatly extended by the growth of several important com- mercial interests and the creation of many statutory rights. Thus has arisen most of the law relating to telegraphs; to damages, based upon statutes, resulting from death; from omission to fence; from the negligent setting of fires; and from the sale of intoxicating liquors. These topics have iv PEEFACE. severally received some consideration by me, and an effort has been made to furnish all the most important recent authori- ties bearing on them. The general plan of this work is as follows: The first chapter contains a general survey of the subject; the nine chapters following, a statement and illustration of elements, princij^les and rules relating to it; the next ten chapters the law of damages applicable in cases of breaches of con- tracts; the following fourteen chapters the law of damages in all the various classes of torts; the succeeding one relates to damages under various statutes; the next chapter discusses the subject of nominal damages; and the last treats of the power and discretion of the court to set aside verdicts for excessiveness or inadequacy. It has been my aim to furnish the practitioner with a useful and convenient treatise, embracing the latest statement of the law and the most recent authorities; and I entertain a hope that its general usefulness may be largely augmented by the system and method I have inirsued. ■^ G. W. FIELD. July, 1876. CONTENTS. CHAPTER I. Damages — Geneeal Peinciples — Elements. Section 1 . Definition — Maxims — Theory. 4. Mode of Enforcing Damages. 5. Importance of the Subject. 6. Recent Origin of much of the Law of Damages. 7. Difficulty of framing Rules; their Inadequacy. 8. Rules Arbitrary, do not Secure Indemnity. 9. The most Common Rule Defective. 10. The Maxim, causa proxima, etc., Considered. 11. PoUcy of Limitation of Liability. 12. Other Rules, Maxims and Doctrines. 13. Line of Limitation Difficult to Determine. 14. Effect of the Common Law Forms of Action. 15. Forms of Action Abolished. 16. Legal Reform. 17. Policy of Statutoiy Regulations. 18. The Anglo Saxon and Jewish Law. 19. Statutory Provisions for, on Contracts. 20. Circumstances which Affect the Amount of, etc. 21. Duty of Injured Party to Protect Himself. 22. Liquidated Damages. 23. Matters in Aggravation and Mitigation. 24. When the Injured Party Contributes, etc. 25. The Motives of the Wrongdoer. 26. Controversy as to the Proper Basis of Damages. 27. Law and Fact. 28. Illustration's. 30. Power of the Court. 31. Rules, Artificial and Arbitrary. 32. Elements, Principles and Rules. 33. Treatment of the Subject. vi CONTENTS. CHAPTEK II. Of the Right ok Intekest of the Plaintiff. Section 34. Essential Element of an Action. 35. Instances — Damnum Absque Injuria. 37. Non-Exercise of Powers by Municipal Corporations. 38. Other Cases where a Municipal Coi-poration is not Liable. 39. Publication of Uncalled-for Letters. 40. Where no Right Exists in Other Cases. CHAPTER III. Of the Injuky by the Defendant. Section 41. Legal or Actionable Injury. 42. The terms Injuria and Damnum, 43. Damnum Absque Injuria. CHAPTER IV. Of Compensation as a Rule — The Limitation of Damages. Section 45. Compensation — Consideration of the Maxim, Causa Proxima. 46. Application in case of a Breach of Contract. 47. In case of Failure to Deliver Property. 48. Not Always thus Limited in Torts. 49. Natural and Du-ect Consequences Explained and Illus- trated. 50. Injury from Fire — Where the Negligence too Remote and where not. 5L Conflict of Decisions — Irreconcilable. CHAPTER y. Illusteations of a Larger Rule of Damages. Section. 53. Rule in case of Officious Interference with the Property of others. 54. Gross Negligence and WiUful Wrongs. 57. Fraud Generally. 58. Fraudulent Breaches of Contracts. 59. Breaches of Contracts under Circumstances of Aggrava- tion. CONTENTS. Vll 63. Distinction between Tort and Contract as to Motives. 64. The Doctrine of the Common Law on the Subject— Statu- tory Reform. CHAPTEK YI. Aggkavated Tokts and Exemplary Damages. Section Gross Negligence, Fraud, Outrage and Insult. Conflicting Views of Mr. Greenleaf and Mr. Sedgwick. The Doctrine of Exemplaiy Damages Recognized in a Great Variety of Cases. Doctrine Not Universal — "When Qualified. Compensatory and Exemplary Damages — Controversy. The Intent of the Wrongdoer an Important Element. The Rule not AppHcable to Infants or Non-compoies. Nor to Municipal Corporations. Exemplary Damages Illustrated— EngUsh Cases. American Cases. Statement of the Rule. Negligence — The Rule in Case of. Liability of Principals for Exemplary Damages, for Acts of Agents. To Hold the Prmcipal Liable it Must Appear that he is Culpable. Degree of Gross NegUgence which Makes him Liable. Criminal Liabihty, or Prosecution and Punishment for the Wrong. Criminal Prosecution, etc., in Mitigation. Contraiy Doctrine. Where Exemplary Damages have been Refused. Principal— When not Liable to Exemplaiy Damages for the Negligence of an Agent. CHAPTEE VII. Mitigation of Damages. Section 97. Aggravating Circumstances on the part of the Plaintiff. 98. Libel and Slander. 99. General Suspicion. 100. General Bad Character of the Plaintiff— When it May be Shown in Mitigation. 102. Defendant Allowed to Rebut the Presumption of Malice. 69. 70. 71. 72. 73. 78. 79. 80. 81. 82, 83. 84. 85. 86. 90. 91. 92. 93. viii CONTENTS. 103. Criminal Conversation — Mitigation. 104. Seduction. 105. What May be Shown in Mitigation. 106. What Cannot be Shown. 107. Breach of Promise of Marriage. 108. What May be Shown in Mitigation. 109. False Imprisonment — Mitigation. 110. Mitigation in Cases of Conversion and Trespass. 112. Good or Bad Faith as Aftecting. 114. Trespass and Trover — Distinction, as to Measure of Dam- ages. 115. Personal Injuries — Assault and Battery. 120. Pecuniary Circumstances of the Defendant. 121. Bad Character of the Plaintiff— No Mitigation. 122. Indictment, Conviction or Fine for the Offense. 124. Malicious Prosecution. 125. Moral GuUt as Affecting Damages. CHAPTER YIII. Of the Duty of the Plaintiff to Prevent an Injury and THE Consequences of it. Section 126. Statement of the Rule — Apphcation. 129. Where the Injury is Aggravated by the Plaintiff. 130. Instances — Neglect of Reasonable means to Prevent. 132. Where the Plaintiff may Recover Notwithstanding his Negligence. 133, Application of the Doctrine to Contracts for Services. CHAPTER IX. Of the Effect of Stipulations in Reference to Damages. Section 134. Liquidated Damages. 135. Penalty or Liquidated Damages — Construction. 137. Where the sum Designated is Treated as a Penalty. 138. Where it is Treated as Liquidated Damages. 139. Instances in England — Where a Penalty. 142. Instances in England — Where Liquidated Damages. 145. English Doctrine Followed in this Countiy. 147. American Decisions — Liquidated Damages. 148. Where the Price of Property is Fixed. 149. Damages not to Exceed the Liquidated Sum. CONTENTS. ix 150. Cannot generally Exceed the Penalty. 153. Where the Amount clue is Certain — Usury, 154. Propositions Deducible from the Decisions — Penalty. 155. Where Treated as Liquidated Damages. 156. Rules of Construction. CHAPTER X. CONTEIBUTOKT NeGLIGENCE. Section 167. The Plaintiff can derive no Benefit from his o-\vn Wrong. 168. Application in cases of Negligence. 169. Where the Injury is Aggravated by want of Subsequent Care. 170. Wliere the Defendant could have Avoided the result of the Plaintiff's Negligence. 173. Instances of the Application of the Principle. 175. Contributory Negligence — Cases of. 177. Other cases of Negligence, per se. 178. Instructions — Erroneous — Correct. 179. Ordinary Care. 180. In case of Fire caused by Negligence. 181. Other Instances of Negligence. 182. Negligence not Imputed in the Act of Saving Life. 183. Where the Injury Cannot be Apportioned. 184. Limits of the Rule in case of Contributory Negligence. 185. Knowledge by Servants of Defects causing them Injury — When Contributory Negligence. 186. Whether the Question is one of Law or of Fact. 188. The Question, in General, one for the Jury. 189. Burden of Proof. 191. Presumption from the Instinct of Self-Preservation 192. Where the Injured Person is a Child. 193. Where an Infant is Incapable of Judgment. 194. Negligence of Parent no Defense to Action by the Infant. 195. Distinction where the Action is by the Parent. 197. Question for a Jury. 198. Intoxicated Persons. 199. Blmd Persons. 200. Persons Non Compos Mentis, CHAPTER XL Damages on Contracts foe the Non-Payment of Money. Section 210. Actual Compensation the Rule. X CONTENTS. 212. Interest as Damages — Civil Law. 213. Promissory Notes. 214. Interest at the Place of Payment. 215. Interest in Different States. 216. Money means Coin. 217. Legal Tender Acts — Constitutional. 218. Applied to Antecedent Debts — Constitutional, 219. Agreement to Pay in Gold or Silver Coin, etc. 222. Propositions Deducible from the Decisions. 223. Contracts of Affreightment— Sterling Money. 224. When Parties Stipulate for Interest at a Particular Place. 225. Exchange. 226. Protest. 227. Indorsee against Indorser or Surety. 228. Fraud in Transfer— Guarranty of Genuineness. 229. Notes Payable in Specific Articles. 230. Bills of Exchange. 232. Fixed Sum as Damages on Protest. 233. The Lex Loci Contractus. SCALING LAWS. 234. North Carolina — Scale of Depreciation. 235. Where Applicable. 236. Ordinances of Alabama and Georgia. 237. Where not Applicable. 238. The Scaling Laws of Virginia. CHAPTER XII. Damages on Conteacts for the Sale and Delivery of Per- sonal Property — Warranty — Fraud, etc. Section 244. Seller's Breach. 245. Where the Price is not Advanced— Rule. 246. Where the Price is Advanced — Rule. 248. Reason for the Highest Price as a Rule of Damages. 249. Reasons for a Fixed Rule. ^ 250. Where a Larger Rule Obtains. 252. The Doctrine of Hadley v. Baxendale. 253. General Application of the Rule. 254. English Cases Illustrating its Application. 255. Leading American Cases. 256- Damages for the Non-delivery of Stocks. CONTENTS. xi 257. Distinction between Stocks and other Property. 258. Rule Uniform in New York— Different in Pennsylvania. 359. No Distinction on Principle. 260. Time and Place of Delivery. 261. Distinction between an Ordinary Sale, and a Promise to Deliver in Payment of a Debt. 262. Form of Action as Affecting Damages. 263. Where the Property has Decreased in Value. 264. Market value. 267. The Rule the same in Torts as on Contracts. 268. Part Performance. 270. The new Departure. 272. Warranty and Fraudulent Representations. 277. Liability for more Damages in Certain Cases. 281. Price Paid — Former Doctrine. 284. The Price paid Governs m Illinois. 285. Reasons for the General Rule. 286. General Exceptions to the Rule, 287. Fraud — Rescission. 288. Damages in Case of. 292. Of the right to Rescind in case of a Breach of Warranty- Damages. 298. Failure of the Purchaser to Comply— Damages. 301. Warranty of Title— Personal Property. 302. Measure of Damages on Failure of Title. CHAPTER XIII. Contracts for Services— Specific Acts— Material. Section 323. Breach by the Employer. 324. Breach by the Employe. 326. Part Performance by the Party Hu-ed. 327. The Doctrine of Entire Contract Relaxed. 329. American Cases where the Stem Rule was Followed. 330. Middle Ground. aSl. The Liberal Rule in such Cases— Britton v. Turner. 332. Tendency of the Decisions in Harmony with Britton v. Turner. 334. States in which the Doctrine has been Recognized. 335. Construction of the Contract. 336. Application of the Rule. 337. Damages where the Work is Accepted. 338. Method of Computing Damages in such Cases. xii CONTENTS. 339. Refusal of the Employer to Accept of Services. 340. Duty of the Discharged Party to seek other Employment. 341. Under the Code of Louisiana. 342. Duty of a Party to use Reasonable Means to Prevent Loss. 343. Deviation by Consent. 344. Conclusions. CHAPTER XIY. Damages in Cases of Bailments. Section 359. General Principles. 360. Depositum. 361. Mandatiim. 362. Commodatum. 363. Pignus, or Pledging. 364. What the Pledgee may Recover for a Conversion. 365. Locatio, or Hiring for a Reward. 366. Where the Bailee is to bestow Care or Labor. 367. Warehouse-men. 368. Innkeepers. 369. Common Carriers — Insurers. 370. The Rule not Applied to Live Stock. 371. Interruption of Navigation. 372. Where the Negligence of the Carrier co-operates with Natural Causes. 373. The Doctrine of Contributory Negligence — Apphcation. 374. Non-Delivery — Measure of Damages. 375. Delay in the Deliveiy. 376. Responsibility Beyond the Terminus. 377. Market Value. 378. Partial Loss or Injury. 379. Sale of the Goods. 380. Interest as Damages. 381. Where the Carrier Refuses, or Fails to Transport Accord- ing to Contract. 383. Delay in Delivery, or Injury to Goods no ground for Refusal to Accept. ' 384. Failure to Deliver Machinery, etc. — Hadley v. Baxendale. 388. When the General and Limited Rule Prevails. 389. When the Larger Rule Prevails. 390. Agreement to Furnish Cargo or Freight. 391. Measure of Damages. 392. Notice of the Arrival of Goods — Damages for Failure. CONTENTS. xiu 393. Refusal to Deliver. 394. Contracts Limiting Liability.' 395. Injui7 to Passengers. 396. Reasons for the Difference of Liability between Merchan- dise and Passengers. 397. Delay of Passengers. 398. Injuiy Resulting in Death. 399. The Doctrine of Contributory Negligence. 400. Responsibility for Baggage. 401. Exemplary Damages. 402. Contracts Limiting Responsibility for Damages. CHAPTER XY. Liability of Telegraph Companies. Section 410. Importance of the Subject. 411. Are they Common Carriers? — Controversy. 412. At least Ordinary Care Required. 413. Measure of Damages — Order for Salt. 414. The Doctrine of Hadley v. Baxendale Explained and AppKed. 415. Mistake in a Message Ordering Bouquets— Damages. 416. Mistake in a Message Ordering a Shawl— Damages. 417. Delay in Sending a Message Ordering Property Attached — Damages. 418. Mistake in a IMessage Ordering Stock Sold and other Stock Purchased — Damages. 419. Mistake in a Message Ordering Wlieat Purchased, etc.— Damages. 420. Delay in a Message Directing the Sale of "Lepines"— Damages. 421. Where, by a Mistake, a Message is Wrongly Directed and Delayed. 422. Where Damages are Limited to Interest— Mistake— Delay. 423. Company Liable for Damages that Directly and Naturally Result, etc. 424. Damages Contemplated. 425. Limitation of Liability by Contract. 426. Not Insurers — Reasonable Rules. 427. Omission or Refusal to Send a Message— Rules. 428. Inferences. 429. Where there are Connecting Lines— Diversity of Decisions 9 as to Liability. xiv CONTENTS. 430. Can the Party to Whom the Message is Sent Maintain an Action ? 431. Conclusions Deducible from the Decisions. CHAPTEE XVI. Damages on Bkeaches of Conteacts and Covenants Eelating TO Eeal Estate. Section 442. General Principles — Damages on Covenants. 443. The Covenant of Seizin— Authority to Convey— Damages for a Breach — General Rule. 444. Where the Damages may be Less. 446. General Doctrine where there is no Seizin in the Grantor. 447. The EngHsh Piule — American Doctrine. 449. Where there is a Partial Breach of the Covenant of Seizin. 450. Damages for a Breach of the Covenant against Incum- brances. 451. Nominal Damages— When Recoverable. 452. When the Incumbrance cannot be Removed — Damages. 453. Where the Incumbrance has been Removed by the Grantee. 455. Where the Grantee Receives Money from the Grantor to Remove Incumbrances. 456. The Maximum Amount Recoverable. 460. Covenants for Quiet Enjoyment and Warranty. 461. The Damages on a Breach, Consideration and Interest. 462. States where the Value at the Time of Eviction Prevails. 463. Arguments in favor of the Consideration and Interest, as a Rule. 464. Arguments in Favor of the Value at the Time of Eviction. 465. The Duty of the Author— His Views of the Question. 466. Interest as Damages. 467. The Rule as to Costs and Counsel Fees in the Eviction Suit, as an Element of Damages. 475. Where the Eviction is only Partial. 477. Wliere the Grantee Purchases the Superior Title. 479. Executory Contracts for the Sale of Land. 4S0. Where the Breach is on the part of the Vendor. 481. Where the Vendor Acts in Good Faith— Rule. 482. General Doctrine. 484. Illustrations of the Rule of Damages in case the Vendor acts Fraudulently or in Bad Faith. 495. The Principles of Hadley v. Baxendale Applied. CONTENTS. XV 499. Delay in the Performance. 500. Partial Breach. 501. Rule in Special Cases. 507. Where a Third Party is to Make Title. 508. Where the Vendee Fails. 509. Damages where the Grantor Tenders a Deed. 510. Rescission when — and Damages on. 511. When the Purchaser has given Notes and has Possession. 512. Damages for False Representation and Warranty. . 513. Defense of a Purchaser on the Ground of Fraud. 514. Breach in the Stipulations in the Covenants of a Lease, 515. For Withholding Possession. 516. In Case of the Eviction of the Tenant. 518. Agreement to Repair. CHAPTER XYII. Damages on a Breach of Peomise of Maeeiage. Section 534. Damages in the Discretion of the Jury. 535. The Plaintiff Should be Indemnified. 536. Exemplary Damages Always Allowable. 537. Matters that Constitute no Defense. 588. Matters in Aggravation. 539. Mitigation. CHAPTER XVIII. Common, Statutoey and Othee Bonds. Sectiok 545. Damages on Bonds Generally. 546. When the Damages are Limited to the Penalty — When not. 547. Consequential and Remote Damages, 548. Common Law Practice. 549. Statutoiy Bonds — Attachment. 553. Mitigation of Damages. 554. Injunction Bonds — Elements of Damages on. 560. Delivery, Indemnifying and other Bonds, CHAPTER XIX. Damages on Policies of Insueance. Section 561. Definition — Division of the Subject. 562. Insurance of Ships and Cargoes. 563. General Rule of Damages. xvi CONTENTS. 564. Mode of Estimating the Value of the Thing Insured on Open Policy. 565. In Case of Partial Loss on an Open Policy. 566. Valued Policies — Abandonment. 567. Mode of Estimating Damages on. 568. General Average. 569. Underwi-iters may Repair. 570. Insurance of Freight and Profits. 571. Measure of Damages on. 572. Application of Maxim causa 2:>roxima, etc. 573. Fire Insurance — Damages. 574. Lessee's Interest. 575. Mortgagee's Interest. 576. Bailees and Trustees. 577. Vendor on a Contract of Sale. 378. Application of Maxim causa proxima, etc., to Fire Insur- ance. 579. Damages limited by Contract. 580. Rebuilding and Repairing. 581. Double Insurance. 586. Subrogation. 587. Life Insurance. 588. Damages on a Life Policy, 589. Creditor's Interest. CHAPTEE XX. Damages in Case of Torts — Injuries to the Person. Section 599. Damages for Injuries to the Person. 600. Assault and Battery — Elements of. 601. Aggravation. 602. Mitigation— Defense. 603. Character of the Plaintiff— Defendant. 604. The Defendant may Show Circumstances — Res gestce. 605. Whether the Acts done or the Words Spoken are Pai-t of the Res gestce. 607. Character — Knowledge of, may Mitigate Damages. 609. Pecuniary Circumstances. 611. Aggravating Circumstances — Conduct — Threats. 613. Aggravation Owing to Intemperance. 614. Permanent Injury. 615. Summary. 616. Complete Defense — What is. * 617. Injury by Infants and Non-compotes. CONTENTS. xvu CHAPTER XXI. Damages for Ixjcries Resulting in Death. Section 626. 627. 628. 629. 630. 631. 632. 634. 636. 637. 638. 639. 640. 641. 642. 643. 645. 647. 648. 649. 650. The Common Law Doctrine. English Legislation on the Subject. The New York Statute. Statutes of Yai-ious States — Similarity of. Damages Actual and Pecuniary— Not Exemplary— Noth- ing Allowed for Physical or Mental Suffering. Damages frequently Limited by Statutes — Construction of, when not. ■^Tiat it is Competent to Show — Expectation of Life. Instances. Legal Right to Benefit from the Life not Essential— Pre- sumiDtions. Value of an Annuity — Carlisle Tables. Statutes Have no Extra-Territorial Operation. Widow — Children— Wealth of the Defendant. Death of a Child — Limitation. In Pari Delicto. Damages in Other and Special Cases Resulting in Death. Distinction Between Injuries to the Person of Deceased and Injuries to Others from the Death— Death Instan- taneous or Otherwise. The Statutes of Iowa — Exemplary Damages under. California Statute — Exemplaiy Damages under. The Effect of a PoHcy on the Life of the Deceased. Who Entitled to Recover. Conclusions. CHAPTER XXII. Negligence — Gross JSTegligence. Section 659. Neghgence a Tort — Definitions. 661. Law and Fact. 662. When a Question for the Court. 663. The Question Usually one for the Jury. 664. For what Consequences the Negligent Wrongdoer is Answerable — Negligent Fires. 666. Successive NegUgence of Different Parties. 667. Damages in case of Negligence — Elements of. 668. Illustrations. 669. Damages to Real Property from Negligence. xviii CONTENTS. 670. Personal Property — Damages. 671. Damages in Other Cases. CHAPTER XXIII. False Impkisonment. Section 679. General Rule— Illustrations. 681. Matters in Aggravation — Exemplary Damages. 682. Mitigation. 683. What May be Shown in Defense. CHAPTER XXIY. Malicious Pkosecution. Section 685. Elements of Damages in Case of. 686. Elements of the Action. 687. . Measure of Damages. 688. Mitigation. 689. Conclusion. 690. Defense. CHAPTER XXY. Libel and Si.ander. Section 691. General Rule and Elements of Damages. 692. Contribution between the Wrongdoers. 693. Mitigation. 694. Aggravation and Exemplary Damages. 695. Pecuniaiy Condition of the Defendant. 696. Amount of Damages. CHAPTER XXYI. Seduction and Ckiminal Conversation. Section 697. Remedy for the Common Law. 698. Damages — General Rule. 699. Aggravation. 700. Mitigation and Defense. 702. Amount of Verdict. 703. Seduction of, and Enticing Away a Wife. C02^TENTS. XIX CHAPTER XXYII. Fraud axd Deceit. Section 704. General Principles Relating to Fraud. 705. Fraud in the Sale of Propeiiy. 706. Damages in Case of Fraud. 707. Defendant Answerable for Contemplated Damages. 708. False Representations in Reference to Land. 709. Waiver of Fraud. 710. What no Defense — Surety — Indorsee — Principal. 712. When the Buyer may Sell the Property and still Recover. CHAPTER XXVIII. Patents. Section 713. Power of Congress — Infringement a Tort. 714. Actual Damages. 716. Treble Damages. 717. What may be Allowed as Damages. 718. The Defendant may be Required to Account. CHAPTER XXIX. COPYEIGHTS AjSID TkADE-MaRKS. Section 720. Provisions of the Constitution — Power of Congress. 721. Damages — Books, etc. 722. Damages — Maps, Charts, etc. 723. Damages — Dramatic Compositions. 724. Different Remedies for an Infringement. 725. Literary Piracy. 726. Ti-ade-Marks. 727. Damages for Infiingement. CHAPTER XXX. Injuries to Property — Trespass. Section 730. Plan of Treatise — What it does not Embrace. 731. Trespass Defined. 732. Damages for Trespass to Property — General Principles. 734. Injury to Real Estate. 735. Injm-ies to the Possession of Real Property. 736. Damages for Injuries to Trees. XX CONTENTS. 737. Tenants — Injury to Rights of. 738. Limits to Tenant's Damages. 739. Profits — Sometimes an Element of Damages. 741. Aggravation — Exemplary Damages. 742. Water Rights and Injuries by Water — General Rule. 743. Limitation of Damages. 744. Where a Trespass Benefits as well as Injures. 746. Mining — Rule of Damages. 747. Nuisance. 748. Rule of Damages. 750. Statutory Provisions. 751. Waste — Damages. CHAPTER XXXI. Damages foe the Nonfeasance, Misfeasance and Malfeas- ance OF Public Officers. Section 760. Judicial Officers — Liability — General Principles. 761. Damages. 762. Ministerial Officers — General Rules. 764. Liability on Civil Process. 766. Presumptions. 767. Neglect to Levy and False Return. 768. Property Wrongfully Taken on Process. 769. Escape. 770. Consequential Damages. 771. Exemplary Damages. 772. Mitigation. 773. Board of Supervisors. 774. Sureties on Official Bonds. 775. Attorneys — Liability of. CHAPTER XXXII. Injuries to Personal Peopertt. Section 780. Trespass— The General Rule of Damages. 781. Where the Property is Taken or Destroyed. 782.. Where the Property is Only Injured. 783. Aggravation, and Exemplaiy Damages. 785. Mitigation. CHAPTER XXXIII. Trover and Conversion. Section 791. Distinction between Trespass and Trover— General Prin- ciples. CONTENTS. xxi 792. Damages for Conversion. 793. Cause of Controversy — Time and Place of Value. 795. Value at the Time of the Conversion. 796. Exception to the Eule. 797. Larger Rule of Damages. 799. New York— Rule of Fluctuating Value. 800. Pennsylvania — Rule in. 801. Mississippi — Rule Adopted. 802. California. 803. Other States. 804. The Rule Should be the Same as on a Breach of Contract to DeKver Personal Property. 805. Damages Varied with the Form of the Action. 806. Technical Doctrine in Different Actions. 807. Reform in Practice and Procedm-e. 808. Argument for the Fixed Rule. 811. Argument against the Rule of Fluctuating Value in case of Stocks. 812. Argument for the Rule of Highest Value. 813. The Distinction between Stocks and other Property Con- sidered. 814. The Sounder Rule Between the Extremes. 815. Where the Property is Returned — Rule. 816. Mitigation. 817. Pretium Affectionis — Articles of Virtu. 818. Accession. 820. Confusion. 721. Exemplary Damages for the Conversion. 822. Where the Interest is Qualified or Limited. 823. Conversion of Notes or other Choses in Action. CHAPTER XXXIY. Replevin. Section 825. General Principles — Damages. 826. Measure of Damages. 828. Tune of Valuation. 829. Where the Defendant Succeeds. 880. Exemplary Damages. 831. Detention, and Deterioration in the hands of the Plaintiff. 832. Property Lost or Destroyed. 833. Special Damages by the Plaintiff. 834. Special Damages by the Defendant. XXII CONTENTS. 835. Where the Defendant has Enhanced the Value of the Property. 836. Vindictive Damages where the Proceedings are Malicious or Willfully Wrong. 837. Extent of Interest. 838. Mitigation. CHAPTER XXXy. Damages Under SxATrTOEY Peovisioxs. Section 845. 846. 847. 848. 849. 850. 851. Private Property Taken for Public Purposes — Eminent Domain. Damages. Witnesses — Damages for Failure of. Double and Treble Damages. Statutes Against Setting Fires. Statutes Requiring Railroad Companies to Fence, etc. Damages under Statutes for Injury Resulting from the Sale of Intoxicating Liquors. CHAPTER XXXVI. Nominal Damages. Section 860. Wrongful Acts Import Damages. 861. Instances. 868. The Maxim de minimis non curat lex, Considered. CHAPTER XXXVII. Setting Aside Verdicts. Section 873. "When the Power Exercised. 874, Instances where Refused. 878. Instances where Verdicts have been set Aside. 881. Verdicts in cases of Criminal Conversation. 882. Reducing Verdicts — Excessive Damages. 884. When a Remittitur will not AvaU. 885. Excessive Verdicts in other Cases. 886. Setting Aside Verdicts for Inadequate Damages. 888. When Courts will Refuse to set aside Verdicts on the Ground of Inadequacy. INDEX TO CASES CITED. Aaron V. Second Av. R. Co. 165, 483 Absor V. French 36 Abraham v. Reynolds 17 J Abram v. Nunn 313 Abrams v. Kounts 13-5 Abbott V. Gatch 241 Seebor 454 Achburner v. Bachen 337 Ackley v. Chester 610 Ackerly v. Haines ■_• 561 Ackerson v. Erie R. Co 25, 92 Acton V. Blundell 36 Adams Exp. Co. v. Egbert 241 Carlise..l59, 183 Cordis 207 Smith 551 Wagoner . . . 478 Mid. R. Co.. 684 Adairs v. Wright 194 Adair v. Boyle 423 Adamson v. Rose 385 Adcock V. Marsh 554 Adius V. Smith 116 ^t. Ins. Co. V. Jackson 461 Ah Thaie v. Quan Wan 442 Ainsworth v. Bowen 630 Akerly v. Vilas 398 Ackron v. McCombs 41 Albert V. Bleeker Street etc. R. Co. 166, 520 Alden v. Dewey 577 Alderman v. French 114, 115 Aldrich v. Reynolds 442, 44-3 Palmer 68, 483 Algier v. Black 284 AUard v. Anderson 406 Allen V. Anderson 274 403 Atkinson 414 Brown 44-3 Blunt 578 Cmies 254, 298 Dewey 578 Fox.: 660 Tln-aU 302 PAGE Allen V. McKibbon 289 Jarvis 281 F. Ins. Co 4-58 M. Ins. Co 4-55 Alexander v. Milwaukee 41 Rintels 225 Thomas 685 Jacoby 439 Helber 615 Alexandria etc. R. Co. v. Burke. 315 Allison v. Chandler 9, 42, 51 Alna V. Plummer 419 Alsop V. Yates 175 Althorf V. Wolfe 515 Alyn V. Boston etc. R. Co 166 A. Oil Co. V. Richardson 429 Alpine v. Morton 115 Ames V. Longstreet 89 Amiable Nancy 100 Am. Ins. Co. v. Ogden 452 Am. L. & H. Ins. Co. v. Robert- shaw 469 Amoskeag etc. v. Spear 585 Amsdenv. Dubuque etc. R. Co.. 669 A. Mut. Ins. Co. V. Housmger. . 462 Amy V. Long 617 Anderson v. Davison 375 Tarpley 696 R.R.Co 100 Andree v. Stemkampler 275 Andrew v. Pearce 372 Andrews v. G. Woolen Co 442 Durant 29, 628 Askey 557 Pond 196, 206 Angel V. M. & M. R. Co. 320, .324, 325, 341 Angelrod v. Del. Ins. Co 465 Angier v. Taunton Paper Man. Co 648, 6-56 Annapolis & E. R. Co. v. Gantt. 531 Anthony v. Gilbert 24 Antoine etc. v. Ridge 621 Appel V. Woltman 201 Apps V. Day 702 Archer v. WiUiams 'i*^ XXIV CASES CITED. PAGE Archer v. Dunn 195 Ai-lington v. Will. R. Co 329 Armitage v. Haley 696, 700 Armory v. Delamire ....'. 311 Armstrong v. Percy 283, 284 Pierson, 550, 551, 553, 563 Arnold v. Commonwealtli ..... 610 Kelly 629 Potter 207 Suffolk Bk 233, 245 AiTOwsmith v. Gordon 15 Arthur v. Moss 268 Artz V. The Chicago etc. R. Co. 166, 174, 180 Ash V. Marlow 548 Pullman 573 Ashley v. White 3, 679 Ashe V. De Rossett 241 Ashley v. Harrison 45, 550 Ashworth v. S. E. R. Co 534 Astley V. Weldon 139 Aston V. Haven 340 Atkins V. Johnson 650 Atkinson v. Bell 280 Atkinson etc. R. Co. v. Sanford, 9 Atkyns v. Krinnier 145 Atlantic R. Co. v. Dunn. .25, 68, 93 Atlas Bk. V. Doyle 210 A. T. & S. F. R. Co. V. Sanford, 523 A. T. R. Co. V. McCen-en 544 Atwood V. Gilaspie 697 Un. Mut. Ins. Co.... 462 Anchmuty v. Harn 90 Auding V. Perkins 268 Aurick v. The Miss. etc. R. Co. . 162 O'Hara 621 Aurora (City of) v. Gillett 40 Reed . . . .37, 40 Aurora, etc., R. Co. v. Grimes . . 158 Austin V. HiUiers 700 Wilson 25, 69, 107 Averitt V. Merrill 673 Avery v. Ray 474, 475 Ayer v. Bartlett 687' Starkey 673 Ayres v. Hart. Ins. Co 460 Aylesworth v. Chic. etc. R Co 675 Ayliff v. Hardy 686 B Babcock v. Gill 651 Montgomery Co.Mut. Ins. Co .'^ Bacoc V. Keith 701 Bacon v. Bronson 56(5 Town 545, 546, 547 PAGE Backenstrossv. Stahler.125, 629, 655 Backhouse v. Bononi 32 Backus V. McCoy 372 Bachelder v. Heagan 49 Baden v. H. Ins. Co 458 Baddely v. Mortlock 434 Badge v. Hughs 678 Badgley v. Decker 557 Baggs V. N. Y. C. R. Co 323 Baker v. Bolton 491 Corbett 383, 398, 413 Drake 635 Freeman 61-5 Johnson 669 Mair 211 Martin 220 Taylor 592 Troy & Rutland R. Co. 393 Wheeler 655 Bailey v. Damon 337 Hide 551 Scott 375 Shaw 327 Bau-d V. Morford 159, 174 Tolliver 138, 147 Bank v. Burton 205 Green 221 Bankard v. Babcock 426 B 'k of Montgomery v. Reese. 224, 636 Rome V. Mott 614 State V. Burton 636 Bardwell v. CoUie 284 Baldwin v. Bennett 241 Munn 403, 405 U. S. TeL Co... 345, 355. 356. 359, 360, .361 West. R. Co 479 Bales of Cotton 453 BaU V. Bruce 68, 118, 557 Ballentine v. Robinson 280, 282 BaUow V. Farnum 483, 535 Balsley v. Holfman 436 Baltimore etc. R. Co. v. Bloch- er. 25, 90 Baltimore etc. R. Co. v. Bremg. 67 Baltimore etc. R. Co. v. Brown. . 325 Baltimore & 0. R. v. Fitzpat- rick 159, 180 Baltimore etc. R. Co. v. State 160, ISO, 503, 506, 519 Baltimore etc. Ins. Co. v. Dal- rymple 630 Bait. F. Ins. Co. v. Lovey 463 Baltimore v. State 180, 187 Bancroft v. Acton 579 Banders v. Banders 194 Bangor R. Co. v. McComb 669 Bk. V. Hook 220 Bannister v. Roberts 194, 195 CASES CITED. XXV Bannon v. Baltimore etc. R. Co 91. 482 Barber v. Corbert 370 Kelbum 69 Barben v. Police Jury 41 Barbour v. Nichals 57, 4Uo Barcus v. Hannibal etc. R. Co. and Paris Plank R. Co B05 B. & I. R- Co. V. Snider 486 Barker v. Green 609 Savage 167 Barlow v. McKinley. . .377, 382, 383 Barnard v. Haggis • • ■ 488 Poor 25, 49 Conger 232 Barned v. Hamilton 244 Barnes v. Martin 109 Allen 562 Barnet v. Cecil 230 Reed 610 Barnum v. Vandusen. . .56, 272, 591 Bamland v. Eidson. 5.>3 Barahard v. Bait. etc. R. Co b:>9 B. &S. R. Co 519 Barnwell v. Mitcliel 220 Bartlett v. Blanchard 2b2 Crozier 32 Crittenden 584 Kidder 666 Barrett v. Porter 374, 381 Barry v. Bennett 629 Ingles 47o Barrow v. Arnaud 620, 648 Robichaux 444 Barter v. Wheeler 326 Bartelle v. Lallande 304 Barthol V. Fox 661 Bartle v. Meritt 6bo Barton v. Fiske • • 44o 8t. L. etc. R. C0...I68, 181, 519 Kavanaugh 545 Barton's Hill Coal Co. v. Reid 176, 485 Barton's Hdl Coal Co. v. Mc- Guire 485 Hartley v. Ricbtmyer 118, 557 Bartramv. Stone •• ••• 4(^ Bassett v. Salsberrj' Man. Co. . . 680 Bassvs V. Ambrose 138, Id.i Batciielder v. Sturgess 37.5 Bates V. Courtright 1^^ J^rj^y 598 Steinall 630 Batliisill V. Reed • 59o B. & S. Ice Co. V. R. Ins. Co. . . . 4-39 Battey v. Holbrook 4-38 Bauer v. Clay 5o9 Baulien V. Parsons •■■•■■'o o-a Baxter v. Bradbury 367, obb, otO Baxter v. Ryerss 384 Bazin v. Steamship Co 322 Bagley v. Peddle 138, 155 Beach v. Miller 377 Beale v. Railway Co 684 Hayes 153 Beals V. Hoine Ins. Co 462, 463 Olmstead 262 Bean v. Simpson 247 Beardsley v. Swan 5^4 Maynard 114, 115 Bridgman 115 Beatty v. Gilmore 158 Beaupland v. McKeen 395 Becker v. Hooker 300 Beckford v. Hood 610 Beckwith v. The Trustees etc 158 Beecher v. Dennison 627 Bee Printing Co. v. Hickborn. . . 291 Beers v. Husatonic etc. R. .Co... 1-58 Behrens v. McKenzie 442, 448 Beisigel v. N. Y. C. R. Co 5-35 Belden v. Nicholay, 233, 245 Belfontame etc. R. Co. v. Sny- der 186 Belknap v. Boston etc. R. Co. 68, 78, 92, 128, 479, 5.54, 695 Belknap v. Railroad 691 Bellv. McCullough 579 Mid. R. Co 54,91, 622 Morrison 06, 90 Ryerson 567 Belts V. Burch 142 Beniamin v. Wheeler 40 Haney.. 428 Benjamin 6-52 Bement v. Smith 281 Bench v. Merrick 431 Benedict v. Bachelder 278 Bennett v. Alcott 5-58 Brown 440 Jenkins 385 Judson 566 Lockwood -54, 133, 620, 631, 663 Mathews 117 Smith 562, 563 Thompson 594 Benson v. N. J. R. & Tr. Co.. . . 336 Bent V. Dewey 283 Berge v. Gardner 1-59, 486 Berkshire Ins. Co. v. Sturges 566 Berrin v. Wright 206 Ben-T V. Da Costa lU Dwinell 248 Fletcher 593 Vantrico 655 Wisdom 139, 158 Bessey v. Oliott 484 Best V. Allen 67, 68 XXVI CASES CITED. PAGE Betts V. Lee 652 Bevard v. Hoffman 608 Beveridffe v. Welch 109, 688 Bever v. Tanner 669 Bickelv. Colton...233, 630. 636, 650 Bickford v. Page 368 Bidault V. Wales 573 Biddle v. Reed 428 Hussman 670 Bieseigal v. N. Y. Cent. R. Co. . 164 Bigelow V. Reed 158 Jones 385 Bill V. Mon-ison 685 Billings V. Yanderbeck 232 Bingham v. Richardson 155 Binns v. Stokes 114 Birchard v. Booth 68, 125, 473 Bn-cher v. Parker 445 Bishop V.Price 298 Pentland 456 Bislev V. Woods 256 Bissellv. N. Y. Cent. R. Co.... 319 Baker 489 Bissinger v. Dickinson 617 Bimey v. N. Y. & W. Tel. Co. . 358 Haun 372 Black V. Camden R. Co 328 Blackwell v. Justice of Lawrence County .... 386 Blake v. Bumham 368, 385 Daman 478 Ex. Mut. Ins. Co 464 Mid. R. Co. .. 343, 501 502, 503, 516 Blakelv v. De Due 159 Blanchard etc. v. Warner 579 Blasdalo v. Babcock 284 Blewittv. Evans 284 Bliss V. Ball 594 Blodgett V. Brattleboro 109, 610 Blofield V. Payne 587 Blossom V. Knox 368 Blood V. Saver 608 Bloodgood V. Mohawk 669 Blow V. White 226 Blumenthall v. Brainard 323 Blunt V. Little 696 McCormick 603 Blydenburgh v. Tliayer 210 Welch 248 Bh-the V. Thompkins 538 Boardman v. Keeler 303 Boust v. Frith 289 Bockman v. iJerryhiU 695 Bodley v. Reynolds 631, 655 Bodwell V. Swan 114 Osgood 555 Bogel V.Bell 611 Bohn V. Dunphy 625 Boice V. McAUister 114 PAGE Boice V. Vincent. 233 Boland v. Miss. R. Co 486 Bolton v. Crowther 41 Baxter 533 Bolles V. Beach 386 Bond V. Hilton 680 Boudurantv. Crawford, 271, 566, 563 Bonesteel v. Bonesteel, 538, 539, 544 Bonsall V. McKay 24, 88 Borter v. Bradley 381 Borradaile v. Brunton 240 Borrekins v. Bevau 266. 275 Bonies v. Hutchinson 234, 239 Botoler v. Bell 114 Boton V.Miller 118 Boorman v. Nash 242, 278 Booth V. Powers 656 Boucher v. Noidstrom 69 Boulard v. Calhoun 92 Bouton V. Reed 251 Bowen v. Stodard 208 L. E. Tel. Co 347, 352 Bower v. Merrill 599 Bowler v. Lane 92, 514 Bowlin V. Nye 311 Bowman v. Cornell 612 Teal 311, 332 Troy etc. R. Co 164 Bownin v. Elliott 550 Bowser v. Cessna 403 Boyce v. Anderson 319, 342 Cal. Stage Co 686 Boydv. Fritt 238 Boylan v. Huguet 630 Boyle V. Brandon 50 Boynton v. Philhps 702 Kellogg 119 Boys v. Ancel 139, 142 Bracegridle v. Bailey 114 Brackett v. McNair 330 Morse 293 Bradburn v. Gt. W. R. Co 515 Bradley v. Geisselman 620 Heath 115, 552 King 256 Mortlock 119 Rea 262,271, 569 Brady v. N. W. Ins. Co 463 Sparks •_• • 383 Brainard v. Jones 151, 436 Braman v. Bingham 375 Hess 209 Brand V. Schnectady etc. R. Co. 164 Troy etc. R. Co 310 Brandt v. Foster 372, 385, 395 Brasher v. Davidson 233 Brass v. Worth 634 Breese & Mumford v. U. S. Tel. Co 345 Breese v. U. S. Tel. Co 358, 359 CASES CITED. XXVI 1 PAGE Bmtenbacli v. Turner 201 Brewer v. Temple 63 Brewster v. Edgerly 138 Waketield 153, 194 Bridge v. Grand T. R. Co.. .134, 160, 517 Livingston 697 Bridger v. Pierson 397 Bridgeman v. Steamboat Emily, 327, 331 Hopkins 114 Brierly v. Kendall 628, 648 Briggs V. D"Aquin 109 Gleason 611 N. Y. C. R. Co 332 Brigham v. Hawley 286, 305 Bright V. Boyd 393 Rowland 1-53 Brinkmeyer v. The City of Evans- ville 32 Brinkerhoff V. Phelps . . .29, 392, 405, 414 Brinley v. N. Ins. Co 451, 657 Briscoe v. McElwean 621 Bristol etc. R. Co. v. Collins 360 Eastman. 488 British Columbia Saw. Co. v. Net- tleship 240 Britton V. S. W. R. Co 482 Turner 293,296, 297, 298, 299 Brizsee v. Maybee. . .25. 90, 631, 639, 655, 662, 663 Brobst V. Skillen 612 Bromby v. Wallace 561 Bron V. Roj'al Ins. Co 463 Bronson v. CofSn 377 Green 24 Rodes 203 Southbuiy 187, 486 Brooks V. Hubbard 211 Penn R. Co 92 Moody 375, 379 Brown v. Brewer 87 Brooks 114, 552 BrowTi 601 Chadsey 65, 541 Collins 489 Cotton Co 176 Cummings 50 Eagerton 262 Elliott 173 Emerson 681 European etc. R. Co. . 166 Foster 287 Foust 226 Hamilton 421 Han. k St. Joe R. Co. 162, 168, 180 Hayes 629 PAOE Brown v. Jones 442, 444 Kendall 175 Leach 270 Lynn 310 Maulsby 139, 1-53 Maxwell 158, 163 Robins 32 Sax 651, 652 Seymour 700 Tanner 689 Tyler 446 Warren 67 Bro%Amell v. Hawkins 315 Browner v. Davis 680 Brownwell v. Flayler 164 Bruce v. Davenport 278 Priest 128,477, 473 Brunt V. Foster ,368 Brushaber V. Stegemann... 539, 541 Bryam v. McGuire 26 Bryan v. Haixison 225, 226 Rick 341 Brj-ant v. Am. Tel. Co 347, 349, 352, 355 GMden 597 Hambrick .58, 418 Jackson 48-5 Rich 103, 104 Stilwell 254, 292 Buck V. Hermance 576 Buckley v. Dawson 401, 404 Knapp, 25, 66, 67, 89, 479, 550, 554, 555 Smith 544 Buckmaster v. Grundy 386 Buckwatter v. BJacki-ock B. Co. 669 Buddington v. Knowles ... 702 Buel V. Chapin 519 N. Y. Cent. R. Co 172 Buford V. Gould 259 Tucker 316 Bull V. Griswold 67 Bullard v. Harrison 36 Bullett v. Clement 608, 616 Bullock V. Baljcock 484 Burbanks v. Pillsbury 377 Burchard v. Booth 475 Burden v. Mayor of Mobile 601 Burdett v. Withers 425 Burdick v. Won-all 10, 592 Burgs V. Cedar Falls R. Co 277 Crump 155 Gardiner 168, 174 Burgen v. Sharer 444 Burgess v. A. Ins. Co 458 Burk v. Broadway R. Co 188 Burke v. Clements 376 Norwich etc. R. Co 177 Burlington v. Gilbert 40 Burly v. Bethune 608 XXVlll CASES CITED. PAGE Burr V. Beers 360 Burr 189 Todd 405 Burrage v. Crump 138 Burs V. Spoor. 311 Bumard v. Haggis 484 Burnap v. Wright 50 Burnett v. Hyde 5*3 Reed 68 Simpkins....l20, 431, 432, 434 Phalon • 587 New Orleans 32 Burt V. Dewey 268 Dutcher 638, 635 Foster 383 Burton V. Fulton 611 McCauley 434 McClelland 673 Reeds 379, 385 Thompson 702 Wilkinson 318 Bush V. Baldrey 204, 207 Canfield 248 Cole 406 Holmes 232 Pettibone 485, 487 Bassy v. Donaldson 3, 619 Buttv. Gould 473 Butts V. Olds 207 Butterfield v. Forester. . 134, 159, 175 Butler V. Collins 620 Eschleman 431 Horwitz 203 Kent 521 Mehrling 121, 659,660, 665 Mercer 107 Millett 698 St. B. Milwaukee 497 Yule 377 Buzzel V. Laconi Man. Co 176 Byran v. Jackson 116 Byrd v. The State 151 c. Cable V. Cooper 608 Cabot V. Christie 421, 566 Cady V. Allen 375, 377 Cahill V. Eastman 486 Calcraft v. Earl of Harborough 117, 563 Caldwell v. Brown 176 Kirkpatrick 383 Murphy 483 N. J. Steamboat Co. 91, 92, 100, 320, 340, 341, 690 Roberts 702 PAGE Caledonian R. Co. v. Cole 324 Calhoun v. O'Neil 702 California etc. R. Co. v. Wight. . . 154 Calkins v. Mathews 175 Callahan v. Bean 175, 185 Cafferta 68 Shaw 702 Warne 163, 164, 174 Callanan v. Brown 267, 274 Callendar v. Marsh 40 Caloway v. Middletown 114 Cameron v. Boyle 438 Camp V. W. U.'Tel. Co 357, 358 Campbell v. Chamberlain 86, 439 Hancock 697 Metcalf 443 Woodworth 619 Candee v. Deere 586 P. etc. R. Co 325 W. U. Tel. Co. 855, 356, 357 Cannell v. McLean 418 Canning v. Williamstown 481, 501, 535 Cannon v. Folsom. 232, 233 Cappen v. Braithwaite 88 Capuro V. Builders' Ins. Co.... 273 Carder v. Fonhand 118 Carhart v. Auburn Gas Co 604 Carey v. Gruman 265, 266, 208 Laer 155 Cary v. Bright 629 Hotaling 573 Moore 568 Garland v. New Orleans 300 Carlyon v. Lannon 630 Caq^enter v. Atherton 2i)4 Cummings 613 Lockhart 147, 155 Northfield Bk 201 Parker 475, 542 Sheldon 546 Stevenson 437, 441 Wash. Ins. Co.459, 460 Carson v. Marine Ins. Co 449 Carter v. Baker 578 Carter 430 Fcland 027 Stennel 275 Thorn 436 Tufts 109 Carrv. Moore. .. .256, 265, 271, 275 Carrier v. Carrier 247 Came v. White 234 Carroll V. M. V. R. Co 520 Carry v. Berkshire 491 Carson v. Harris 320 Casev. Hall •■• 2>*3 Marks 114, 117, 554 Wolcott 409 CASES CITED. XXIX PAGE Cash V. Kennion 207 Cassell V. Herror 270 Cassin v. Delanv 691 Marshall 627 Castle V. Pearce 393 Castner v. Sliker 127 478 Caswell V. Coare 265 Wendell 36S Worth 159 Gates V. Nichol 700 Catlin V.Hill 164 Lyman 195 Causae v. Andrews 472 Cayzer v. Taylor 178 Center v. Davis 428 Spring 548 Cent. R. Co. v. Copeland 325 Chaise v. Blasdell 627 Chamberlain v. Cobb 316 Farr 282 Parker 426 Scott 303 Shaw 656 Champaign Bank v. Smith. ... 609 Champlain v. Rowley 254 Champion v. Vincent 66. 88, 680 Chapin v. New Orleans R. Co. . . 25 Chapline v. Warner 258, 270 Chapman v. Chi. etc. R. Co — 660 Dodd 685 Holmes 372 Ingram.. 232, 249, 278 Pickersgill 543 Robertson.... 206, 207 Roth well 178 Thonibm-gh 614 Wacaser 225 Chappell v. Bull 374 Charles v. Haskins 617 Chase v. Allen 139 Monroe 612 N. y. Cent. R. Co. 132, 160, 600 Chasemore v. Richards 36 Ohatterton v. Fox. 61 Cheddicke v. Marsh 138 Chestei'man v. Lamb 258 Chemvith v. Hicks 684, 685 Chesley v. Chesley 77 C. & N. W. R. Co. V. .Jackson. . 694 Sweeney . 174 Swett. ... 501 Chi. & R. L R. Co. V. McKean.. 693 C. & A. R. Co. V. Burke 341 BauldaufF. ... 340 Fears 174 Filmore 693 Gregory 485 ^lurphy . .174, 177 Roberts 92 3 PAGE C. & A. R. Co. V. Shannon 501 C. & C. R. Co. V. Gregory 481 Chicago etc. Dock Co. v. Dun- lop 600 Chicago etc. R. Co. v. Dewey 164 Flagg ... 24 Garvey. . . 690 George . . 158 Gregoiy.. 174 Gretzner . 172 Harris . . . 164 Jackson . . 179, 685 Keefe .... 177 McAra... 692 McKean.. 108 Otts 685 Peacock.. 686 Pondrom. 164 Shultz ... 660 Van Patten 172 Ward 536 Wilson.... 690 Chicago So. Br. Dock Co. v. Dun- lap 600, 602 Chicago V. Starr 185 Chickering v. Robinson 616 Child V. Burton 421 Homer 113, 115, 552 Childs V. Drake 24, 68, 514 Chinery v. Vial 628, 633, 648 Chipman v. Hibbard 594, 653 Chisholm v. Arlington 201 Choteaux v. Leach ... 325 Choynsld v. Cohen 586 Christman v. Davenport 698 Christopher v. Austin 425 Christy v. Murphy 584 Chrysler v. Renois 204 Churchil v. Watson 67. 597 C. Ins. Co. V. Lawrence 458 Cin. & Chic. R. Co. v. Rogers. . . 20 Cin. R. Co. V. Ahr 605 Cin. Chro. Co. v. W. L. Tr. Co.. 333 City Council of Montgomery. ... 37 City of Chicago v. JDunn 692 Langlass 86, 482 Major 502 Martin 86 City of Cincinnati v. Rogers 134 City of Decatur v. Fisher ... .86, 685 City of Ijondon v. Van acker. . . . 485 City of Pontiac v. Carter 41 City of Ripon v. Bittel 483 City V. Rubv 486 Clapp v. H.'R. R. Co 684, 685 Walter 660 Clare v. Maynard, 242, 256, 258, 265 Clark V. BarnweU 320 Bales 24, 66 XXX CASES CITED. PAGE Clark V. Boardman 596 Bush 151, 436 Dearborn 123, 648 Eighth Av. R. Co 164 Gilbert 289 Hallock 615 Hannibal etc. R. Co... . 40 Inhabitants of Lebanon. 46 Kay 138, 153 Kirwan 164 Manchester 303 Marsiglia 302 McCloskey 228 Miller 610, 611 Moore 44 Nevada Land & M. Co.. 204 Neufville 257, 268 jSTewson 92 PaiT 393 Peckham 605 Pinney 233,236, 633 Rochester etc. R. Co.... 319 Smith 254, 290, 610 Swift 372 Uticaetc. R. Co 164 Wilson 459 Claycomb v. Munger 379, 395 Clayards v. Dethick 180 Clerk V. Udall 687 Cleveland v. Grand Trunk R. Co.. 49, 529 Cleveland etc. R. Co. v. Keary 175 Rowan.. 182, 501 Clifford V. Kimball 617 Clinton v. Mercer 681 Close V. Samm 601 Closson V. Staples 544 Clough V. Clough 256 C. Mut. F. Ins. Co. v. Woodbury. 459 Coates V. Coates 442 Cochran v. Ammon 480 Miller 24, 67, 91 Toher 542 Winbum 661 Cock V. Taylor 418 Cockbnrn v. Alexander 337 Coffoon V. Brunton 585 Coffey V. Nat. Bank 629 Coffin V. Field 624 Coffman v. Huck 385 Williams 234 Cohen v. Ward 228 Coil V. Wallace 434 Colburn v. Patmore 550 Cole V. Goodwin 357 Smith 289 Tucker 106, 107 Coleman v. Ballard. . . ..381, 382, 385 Collard V. South E. R. Co.. .238, 323 Collier v. Gamble 680 Collins V. Albany etc. R. Co 691, 700 Baumgartner 287, 304 Bristol R. Co 325 City of Council Bluffs. 86, 482 Evans 566 Sinclair 440, 442, iU, 445 Todd 126, 475 Colt v. Holbrook 587 Columbus etc. R. Co. v. Arnold... 177, 178 Colvin V. McFadden 233 Colwill V. Reeves 654 Com. Ins. Co. v. Sennett 457 Comins v. Little 375 Commissioners v. Withers 40 Commonwealth v. Allen 617 Lahey 560 Lighfoot . . ., 611 Meriam 560 Compton V. Compton 153 Comstock V. Hutchison 266, 268 Conant v. Griffin 502, 504, 507 Conard v. Pac. Ins. Co 620 Condict V. G. T. R. Co 326 Condon V. Gt. S. W. R. Co. 504, 507 Conger v. Chicago R. Co 320 Conkey v. Mil. R. Co 326 Conldin v. Thompson 484 Conling V. Coxe 670 Conor V. Dempsey, 256, 265 Connv. May 672 Connelly v. McNeil 696 Connor v. Henderson 277 Noonan 550 Converse v. Norwich R. Co 325 Prettyman 251 Conway v. Nicol 559, 560, 563 Fhnt 660 Cookv. Beal 700 Com. of Ham 242 Champlin 173 Clark 208 209 Ellis 90, 106,107, 472 Erie R. Co 338 Grace 66 Hartle 631, 648 Litchfield 195 Loomis 627, 629 Munstone 255 N. Y. C. R. Co 519 R. R. Co 98 Coolidge v. Brigham 261, 284 Choate 620 Coombs V. New Bedford etc. Co. 171, 177, 485 Coon V. Greenman 303 Syracuse etc. R. Co... 177 OASES CITED. XXXI Cooper V. Cliittv 62( Mallius 93 Newman 649 Randall 604 Utterback 68 Waldron 54G Young.. 322, 323, 328, 337 Copeland v. Copeland 680 Copelin V. P. Ins. Co 4-54 Copp3r Co. V. Copper Mining Co 234,241, 278 Corcoran v. Judson 442 Corley v. Carter ^.^. ■ 149 Cornell v. Jackson 370, 395 Corning v. Corning 126, 473 Cort V. Ambergate R. Co 282 Coi-tes V. Davenport City 669 Convin v. Daly 584 Wallace 298, 300 Walton 25, 108, 107 Cory V. B. F. & M. Ins. Co 456 Silcox 680 Cory V. Thames Iron Works 238 Coryel v. Coolbaugh. . . .68, 111, 431 Costigan v. Mohawk etc. R. Co 135, 338 Cotheal v. Talmage 155 Counter v. Couch 173 County of Mahaska v. IngaUs. . 617 Coursen v. Ely 164 Courtney v. Carr 270 Cowan V. Silliman 367 Co\vdore v. Martin 442 Cowing V. Cowing 5-58 Cowing and Molten. 562 Cowles V. Kidder 173 Cowley V. Davidson 329 Cox V. C. F. & M. Ins. Co 449 Henry 393, 405 Robuison 442 Smith 194 Vanderkleed 471, 483 Walker 265 Way 2-56 Coxe V. England 252, 594, 6-53 Coxe's heirs v. Strode 385 Coxon V. Ct. W. R. Co 325, 360 Coykendale v. Eaton 311 Crabtree v. Kile 268 Leavings 420 Craft V. Allison 70 Cragin v. N. Y. Cent. R. Co... 319 320 Craig V. Kline 67 Ward 566 Cram v. Dresser 425 Hadley 78, 88 Crater v. Binninger. . . .241, 272, 570 Crawfoi'd v. Delaware 41 Creed v. Fisher 685, 686 Creevey v. Carr 113 PAGE Criner v. Pike 121. 122, 624 Crisdee v. Bolton 144 Crist V. Armour 235 Cristie v. Griggs ;340 Critchfield v. StaiT 396 Cromie v. Ken. & Lou. M. Ins. Co 465 Cronk V. Cole 568 Crookshank v. Mallory 298 Cross V. Brown 629 Gutln-ay 491 U.S 671 Willrins 697 Crosby V. Wallrins .32 Crosset v. No. Mo. R. Co 690 Crouch V. London R. Co 324 Crow V. State 610 Crumb v. Oaks 629 Cude V. Redditt 114 Cuddy V. Mayor 44 Cuff V. Newark etc. R. Co 521 Cumberland v. Hoffman 445 Cummiugs v. Thompson 571 Curtis V. Brewer 154 Groat 651, 6-52 R. &S. R. Co .341, 481, 534, 535 Ward 624 Whipo 43 Cushings V. Drew 155 Longfellow.... 594, 620 Weils, Fargo & Co. 205, 322 Cushman v. Haines 630 Waddell 126, 471 Cutler, adm'r, v. Powell 290 Cutter v. Fanning 627, 630 Cutting V. G. T. R. Co 323 D. Dabovich v. Emeric 233 Daggett V. The 111. Cen. R. Co.. 174 Dakin v. WiUiams 139, 148, 149 Dalby v. I. & L. Ins. Co 469 R. R. Co 100 Dale V. Shively 368, 372 Daily V. Cowley 124 Dailey v . Litchfield 138, 155 Daly V. Benthusen 553 Daley v. Norwich etc. R. Co 174. 185 Railroad Co 486 DaUman v. Fitler 625 Dalton v. Beers 68, 90 Bowker 394, 395 Pillaret 204 S. E. R. Co 505, 507 Damon v. Moore 559 XXXI 1 CASES CITED. PAGE Dana v. Fiedler. . . .29, 200, 232, 282 Dane v. Kenny 114 Danforth v. Pratt 610 Daniels v. Ward 153 Danley v. Williams 303 Darbey v. Cassaway 660 Darling v. Banks 552 Davenport v. Wells 212, 233 David V. Conrad 697 So. W. R. Co 503, 506 Davidson v. Goodale 87 Nichols 509 Polyneux 685 Davis V. Burlington etc. R. Co. . 675 Burrington 256, 298 Burton 201 Catbush 113 Cook 544 C. H. & D. R. Co.. 328, 333 Detroit etc. R. Co 176 Fish 1.32, 298 Freeman 155 Garrett 9 Gillett 436 Griifitk 114 Han-ison 209 Lambertson 603 Le^vis 406 Mann 134, 169 Maxwell 254 Nest 125 N. Y. etc. R. Co 322 Oswell 631, 655 Penton 142 Sabita 421 Shields 233 Slagel 432, 434 Smith 385 Talcott 287, 304 Underwood 426 Daws V. Hawkins 36 Day V. Dox 232 Halloway 651 Leavenworth 43 Martin 444 Woodworth 26, 67, 579 Dean v. Blackwell 66. 90 Mason 576 White & Ilaight 423 DeBost V. Bushforth 125 DeCamp v. R. R. Co 98 Decker v. Biyant 540 DeCrispigny v. Wcllcsby 116 Degg V. Midland R. Co.'. 175 Deiiier v. Hold 4:55 Delafield v. Union FciTy Co 164 Delavei-que v. Norris 376 Delogal V. Higby 547 Nailor 207 Delhi V, Youmans 37 PAGE Delve V. Boardman 558 Dennis v. Barber 655 Cumins 155 Larkin 46 Demming v. G. T. R. Co 323, 335 Denslow v. Van Horn. . .24, 111, 119, 432, 434 Derby v. Gallup 619, 630 Gray 629 Johnson 303 Dermot v. Jones 298 DeRutte v. N. Y. A. & B. Tel. Co 347, 348, 360, 362 DeiTy Bank v. Heath 442, 443 Derwort v. Loonier 340. 684 Detroit Daily Post Co. v. McAr- ther 80. 100, 472 Detroit etc. R. Co. v. F. & M. Bank 825 Detroit etc. R. Co. v. Van Stein- burgh 181 Decosta v. Massachusetts 698 Devaughn v. Heath 24. 67 Devendorf v. Werf 680 Devine v. Himer 396 Devitt V. Pacific R. Co 16S Devore v. Sunderland 372 Dewey v. Chicago etc. R. Co.. . . 174 DeWitt V. MoiTis 122, 661 Dewing v. Sears 204 Dexter v. Spear 3 Dibble v. Moms. .24. 66, 67, 90, 620 Diblinv. Murphy 696 Dibold V. Minot 302 Dickerson v. Cook 436 Dickinson v. Barber.l 15. 116, 485, 552 Worcester 37 Dickson v. Caldwell 254, 290 Desh-e 385 Dillenbach v. Jerome 628 Dillon V. Anderson 277 Dimech v. Corlett 138 Dimmick v. Lockwood 379 Dingle v. Hare 256 Dix V. Brown 173 Dixon V.Bell 489 Caldwell 627 Dixon Crucible Co. v. Guggen- heim 586 Dock v. Snapp 232 Dobensplick v. Armel 697 Dodd v. Holme 32 MoiTis 560 Dodge V. Burlington etc. R. Co. 170 Doe V. Davis 544 Filliter 67 Doggett V. Pratt 195 Dolan V. Fagan 477 Doll V. Lyon...*. 116 Dolin V. Wilder 114 CASES CITED. XXXIU PAGE Don V. Fisher 276 Donahue's adm'r v. Ohio etc. L. &T. Co .••-.••••. 506 Donaldson v. Mississippi etc. R. Co... 162, 183, 369, 491, 502, 303, 506 Donnell v. Jones 50, 543 Sanford 482 Donnelly v. Harris 67 Donovan v. The City of New- Orleans 41 Doolev V. Smith 201 Doolittle V. McColough 301 Dougherty v. Shown 68 Drew V. Sixth Av. R. Co.. . .491, 505 Towle 385 Dreyer v. Myng 671 Driggs V. D wight 58, 423 Drusee v. Wheeton 597 Duberley v. Gunning 563 Dubois V. Glaub 252 DucWorth V. Johnson 501, 502 Duffield V. Tobin 685 DuFlow V. Powers 567 Duffy V. Shockey 157 Dufert V. Abadie 1:34, 549 Duggins V. Watson 1-58 Duke of Brunswick v. Slowman. 615 Dull V. Kathman 278 Dumars v. Miller 403 Duncan v. Brown 114 R. Co 316 S. C. R. Co 53 Duncombe v. Daniel 113, 552 Dung V. Parker 567 Dunlap V. Gregory 139 Snyder 125 Dunlop V. Higgins 238 Dunning v. Humphrey 441 Dunpe V. Gennin 428 Dunson v. N. Y. Cent. R. Co. . . 320 Dui-st V. Burton 249, 251, 256 Swift 138 Dustan v. Mc Andrew 280, 281 Dutro V. Wilson 595 Dutton V. Barnes 629 Solomonson 282 Dwinel v. Bro^vn 154 Doorman v. Jenkins 310 Dorchester V. Continental Mills. 293 Dorman v. Jacksonville 40, 41 Dorsey v. Manlove. . .24, 65, 67, 88, 619 Dorwin v. Potter 132 Doster v. Brown 289 Doty V. Rigour 696 Douglass V. Kraft 633, 636 Douglas V. Stevens 131 Downer v. Black 243 Smith 395 PAGE Downing v. Butcher .546 Doyle V. Dixon 691 Drake v. Baker 416 Hickley 421 Hudson etc. R. Co 39 Mount 162 Philadelphia etc. R. Co. 164 Draydon v. Knowles 432 Dreher v. Fitchburgh 173, 310 Dresser Man. Co. v. Waterson.. 65.3 Dye V. Mann 680 Dyer v. Jones 293 Wightman 670 Dynes v. Hoover 609 E Eagan v. Mut. Ins. Co 462 Eagle V. Swayze 427 Earl V. Sawyer 577, 579 Spencer 442 Earl of Leicester v. Walton 116 East Tenn. R. Co. v. Rogers .325 Eaton V. Lyman 375, 398 Melius 249 Eckex-t V. Long Island R. Co 172 Eden v. Lexington etc. R.Co.491, 5.35 Edgerton v. Payne 425 Edclington v. ISfix 375 Pickle 298 Edmonson v. MaclieU 562, 557 Yates 697 Edon V. Lexington R. Co 491 Edwards v. Bodine 442 Collson 256 Crock .563 Edwards 444 Pope 444 Sherratt 320 Williams 142 Eichar v. Kistler '. . 559 Ekins V. East Ind. Co 207 Elam V. Badger 702 Elcam V. Fawcett 563 Elder v. Allison 566 Trae 385 Eldridge v. Adams 310 Elfelt V. Smith 697 Ellav. Card 374 Ellington v. Ellington 118, 556 King 277 EUiott V. Fitchburg R. Co 601 Pray 178 Pybus 281 Therlekeld 209 Thompson 385 Ellis v. Am. Tel. Co.. .347, 357. 358, 362 Chinnock 258 XXXIV CASES CITED. PAGE Ellis V. HamHn 290 Iowa City 40 L. &S. W. R. Co 518 Wire 637 Elmore v. N. R. Co 324 Else V. Ferris 114 Elsworth V. Cent. R. Co 684 Elwood V. W. U. Tel. Co. . .361, 362 Emblem v. Myers ... .54, 87, 91, 622 Emmons v. Sheldon 699 Engle V. Fitch ■ 405 Jones 90, 621 Erie Bank v. Smith 314, 315 Erie R. Co. v. Ramsey 110 ErUnger v. The People 438 Esmary v. Fanning 311 Esmond v. Van Benschoten 153 Esterbrook v. Erie R. Co 600 Evans v. Edmonds 566 Edwards 566 Harris 550 Hettick 671 Matson 22 Evansville etc. R. Co. v. Baum.. 92 Ewing V. Blount 624, 637, 648 Eysser v. Weissgerber 298 F Faber v. D'Uttassey 587 Fail V. McRee 286 Fair v. L. & N. W. R. Co 482 Fairbanks v. Kerr 521 Fairchild v. Cal. Stage Co 482 Faith V. Bliss 228 Fales V. McKeon 265, 275 Falk V. Fletcher 630 Falkean v. Fargo 339 Faloy V. N. Tr. Co 357 Farall v. Bamett 538 Faris v. Lewis 268, 271, 569 Farle v. Adams 194 Farm. Bank v. C. Trans. Co. . • . 326 Glenn 368, 378 McKee 631, 639 F. & M. Bank v. C. Tr. Co 360 Farmers' Turnpike Co. v. Cov- entry 610 Farness v. Fergason 395 Farrar v. Barton 624 Christie 436 U. S 436, 617 Farrow v. Wilson 289 Farwell v. Price 650 Wan en ...66,90,91, 597, 621 Faulks v. Sclway 119, 434 Favor v. Philbrick 335 Fawcett v. Woods 375, 381, 383 PAGE Fay V. A. Ins. Co 455 Parker 25, 76,80, 472 Fayette v. Bush 41 Faxon v. Mansfield 254, 291 Feagin v. Beasley 259 Felkner v. Scarbet 557 Fellows V. Goodman 541 Feltb ridge v. Wells 586 Feltham v. England 177 Felton V. Fuller 613 Fent V. Toledo etc. R. Co.. . . 9, 529 Ferguson v. Davol Mills 586 Oliver 275 Fernander v. Dunn 384, 393 Ferris v. Comstock .... 260, 264, 268 Fero V. Buffalo & State L. R. Co., 49 Fidler v. McKinley 432, 434 Field V. Brackett 316 City of Des Moines 37 Kinnear 248 Runse 568 N. Y. C. R. Co 48. 527 Fielder v. N. Y. Ins. Co 450 StarMn 275 Fifield V. Railroad 176, 179 Filer v. N. Y. C. R. Co 482 Filley v. Fasset 586 Hudson R. R. Co 508 FHliter v. Phippard 484 Finkv. Potter 172 Finlay v. Langston 673 Finney V. C. R. & R. Co., 92, 100, 481 Finnity v. Sipper 552 Fishv. Cobb 311 Fowler 154 Gray 155 Roseberg 686 Fishback v. Williams 444 Fishell V. Winans 256, 273 Fisher v. Goebel 426 Kyle 316 Pattison 115 Prince 630, 655 Tice 551, 552 Fisk v. Hicks 256, 258 Tank 260 Fitzgerald v. Boulst 698 Caldwell 29, 193 Fitzgibbon v. Brown 546, 548 Fitzhugh V. Wyman 665 Fitzjohn v. McKiddcr 50 Fitzpatrick v. Bales of Cotton . . 453 Cottingham 153 Flagg v. Worcester 37 Flanagan v. People 526 Flanders v. Meath 700 Flash V. N. 0. etc. R. Co 339 Fleet V. Ilollonkemp 54 Flemington v. Slnithers 481 Fletcher v. Burrows 114, 551 CASES CITED. XXXV Fletcher v. Button 385, 403, 405 Dyclie 14u Randell 559, 560 Tayleur 242 Fleytas v. Ponchartraiu R. Co. . . 159 Flick V. Wetherbee 264 Flint V. Clark 551 Steadman 374, 393 Flogg V. R. Co 472 Floyd V. State 539 Flower v. Adam 132 Flureau v. Thornhill. . . .57, 400, 401, 408, 409 Foley V. McKe2:an. .21, 58, 137, 138, 146, 152, 406, 4-37 Follett V. Hunt 286 Forbes v. Murray 206 Ford V. Fitchburgli R. Co 1(9 Monroe.... 491, 508 Vv^ard 684, 702 Foote V Burnett 372, 37o Foot V. Nichols 68 Forsythe v. Hooper 177 Forsyth v. Palmer 615 Wells.. 125, 601,631, 639, 653 Fort V. Un. Pac. R. Co 171 Foster v. Eq. M. Ins. Co 450, 460 Foster 562 Nichols 24 Rogers . .256, 259, 265, 275 Thompson 368 Van Norman 697 Foshay v. Ferguson 544, 548 Fountain v. West 551, 553 Fowler v. Dorlon 173 Gilman 629,648, 656 Rathbones 453 Waller 304 Fox V. Glastinburgh 174 Harding 242 Sackett 176 Stevens 25 Webster 573 Foxworth V. Bullock 420 Foy V. Dabncy 303 Troy etc. R. Co o2-j Fraloff V. N. y. C. R. Co 329 France v. Gaudet 647 Franchot v. Leach 419 Frances v. Hastleman 195 Frank v. Cresswell 372 Pelter 341 Franklin v. Neale 315 S.E. R. Co 501, 505 Frankling v. Long 270 Frantz v. Hilterbrand 692 Eraser v. Berkley 4(4 Fraulin, adm'r, v. S. E. R. Co. . 507 Frazer v. Berkley 22, 113, 125 PAGE Frazer v. Gregg 286 Little 151 Frazier v. Fredericks 659 Penn. R. Co 176 Tubb 421 Freidenheit v. Edmonson 25 WilUamson 66 Freize v. Thompson 681 Freeland v. Muscatine 596, 669 Freeman v. Chute 277 Harwood 636 Rosher 70 The People 436, 438 Tinsley....ll3, 115, 551 Fremantle v. The London & N. W. R. Co 49 French v. Bent 681 Grindle 209 Kenedy 194 Snyder 611 Vining 131, 262 Frenzel v. Miller 566 Frmk v. Coe 67 Justh -. 117 Schroyer 482, 535 Tatman 232, 256 Frost V. Knight 432 Frothingham v. Morse 629, 640 Fry V. Bennett 549, 550, 554 Fuller V. Brown 289 Bowker 539 Edings 669 Fenner 549 Little 303 Fullman v. Steams 679 Fulton V. Dean 114 Staats 542 Fulwiderv. Wilford 563 Funk V. Caswell 375 Dillon 619 Furry v. Stone 698 Fyree v. King 404 G. Gadson v. Bank 443 Gage V. Parker 568 Gahagan V. Boston & L. R..159, 183 Gainstbrd v. Carroll 234 Gale V. Dean 418 Galena D. & M. Pack. Co. v. Van- dergrift 163, 173 Gales V. Bliss 278 Reynolds 396, 421 Gallagher v. Pifer 177 Gammon v. Hov.^e 1-j4 Gannon v. Hargadon 37 Granson v. Madigan 270 Garber v. Morrison 697 XXXVl CASES CITED. PAGE Gardner v. Bain 540 Field 620 Madinea 560 Niles 379 Garfield v. Williams 372 Garland V. Wlioledam 24, 107 Garlinghouse v. Jacobs 32 Garrett v. Log-an 442, 443 M. &L. R 159 L>nicli 420 Smith 224 AVood 661 Garretson v. Brown 620 Garretty v. Brazell 684 Garsed v. Turner 423 Gates V. Meredith 552 Reynolds 421, 570 Gaugh V. Farr 430 Gault V. Goldwait 445 Garcd v. Martin ... 36 Gavin v. Blocker 539 Gay V. Crosby 153 Franklin 43 Raines 697 Winter 159 Geddes v. Met. R. Co 341 Gee V. Lancashire etc. R. Co 238 Gellett V. Mason 36 Genay v. Norris 67 Gen. M. Ins. Co. v. Sherwood . . 456 George v. Cahawba etc. R. Co. . 302 Concord 201 Talman 421 Georgia R. Co. v. Wynn 507 Gerrish v. Newmarket Man. Co. . 600 Getty V. Rountree 262 Gibbs V. Chase 121 Gibbons v. 0"Connell 445 United States 278 Gibson v. Marquir 273 Gilbert v. Bertenshaw 685 Kenedy 249, 594 Gilbertson v. Richardson 620 Gile V. Stevens 600 Gilbreath v. Allen 550 Giles v. Dugrc 375 Gilrath v. Allen 25, 66, 67 Gillard v. S. & Y. R. Co 501 Gillett V. West. R. Co 537 Gillott V. Esterbrook 585 Kettle 586 GiUman v. Hall 293 GJson V. Wood 619 Gist V. McGuire 443 Glacius V. Black 254 Glazebrook v. Woodrow 419 Glinister v. Audley 372 Godard v. Grand Trunk etc. R. Co 68, 93,99. 103 Godison v. Nuun 419 PAGE Godwin v. Holbrook 247 McGehee 194 'Goetz v. Ambs 68, 685 Goldsbro v. Baker 129 Goldsmith v. Pickard 543 Goller V. Fett 601 Goodale v. Tuttle 37 Goodall V. Thurman. . .430, 687, 434 Goodard v. Barnard 305 Goodell v. Thurman 68 Goodenow v. Snyder 655 Goodloe v. Rogers 45 Goodno V. Oshkosh 691 Goodpasterv. Porter & Courtney. 419 Goodrich v. Foster 611 Warner *..... 546 Goodsell V. Hartf. etc. R. Co 514 Goodwin V. Francis 416 Gordon v. Brewster 303 Jenny 613, 659, 662 Jones 26, 63 Mass. Ins. Co 458 Norris 270, 280 Gore V. Brazier 385 Chadwick 68 Gormon v. Pac. R. Co 674 Goszler v. Georgetown 41 Goucher v. Cormack 595 Gould V. Bennett 544 Christianson...26, 108, 482 Gardner 129 Wead 114, 115 Governor v. Raley 618 Gower v. Carter. .21, 137, 150, 153, 435 Garish 138 Saltmarsh 138 Gowing V. Gowgill 617 Grable v. Margi-ave 24 Grady v. Wolsner 603 Graham v. Graham 286 Jackson 282 Keys 698 ]\Iaitland 249 Marshal 201 Slate 5^7 W. U. Tel. Co 355 Grainger v. Martin 450 Grant v. Hcaley 207, 212 Tallman 375 Townisend 386 Wiley 119, 431 Gray v. Bean 562 Briscoe 194 Darland 556 Kimbal 609 James 671 Portland Bank 629 Stevens..^ 620 Veirs 442, 445 CASES CITED. xxxvu PAGE Gray v. Waterman 625 Graynor v. Old Colony R. Co.180, 183 Gray's Gold 322 Graves v. Hartford etc. S. S. Co. 338 Otis 40 Great N. R. v. Harrison 159 Great Western R. Co. v. Miller, 92, 100 Great Western R. Co. v. Red- mayne 238, 240 Gregoiy v. Bro^vn 608 McDowell 248 Greggs V. Flieckstien 520 Green v. Biddle 393 Craig.66,67, 68, 90,91, 621 Farmer 648, 656 Hud. R. R. Co 502 ilann 426 Price 142 Reeding 40 Southern Exp. Co.. 685, 686 Spencer 431, 432 Tallman 379 Green, etc., R. Co. v. Partton ... 67 Greenby v. Wilcocks 372 Greenfield Bank v. Leavitt. .624, 628, 629, 648 Greenland v. Chaplin 45, 529 Greenleaf'v. Dubuque etc. R. Co. 176 111. Cent. R. Co. 176, 180, 533 McColly 77 Greening v. Wilkinson. 630, 633, 648 Greenville etc. R. Co. v. Partlow, 26, 88 Green wade v. Mills 545, 547 Greenway v. Gaither 420 Greer v. Mayor of N. Y 595 Powell 630 Greyon v. Sen-ell 578 Glider v. Clopton 421 Gridley v. Tucker 385 Griffin V. Chubb 544 Colver 240, 356 Creditors 153 Reynolds 395 Weatherspoon 697 • Griffiths V. Gidlow 159, 176 Grisrsrs V. Fleckenstien.162, 172, 173 " Foot 40 Grigsby v. Clear Lake Water Co . 60o Grimes' v. Martin 421 Grinnell v. Wells 556 Grippen v. N. Y. Cent. R. Co., 158, 159 Grist V. Hodges 384 Griswold V. Sabin 406 Grizzle V. Frost 178, 48o Groesbeck v. Lord 427 Gross V. Kierski 28o FA6E Groverv. DiU 559 Grund v. Pendergast 330, 331 Guard v. Risk 24, 67, 553 Guengerech v. Smith. .128, 478, 479, 554 Guille V. Swan 51 Guitemanv. Davis 222 Guthrie v. Blowers 472 CoUin 206 Pugsley 369, 395 Guy v. Gregory 553 Gwin V. Breedlove 200 H Hacker v. Blake 367 Hackett v. B. C. R. & M. R. Co., 332 Middlesex Man. Co., 178 Hadley v. Baxendale. . . .10, 287, 304, 332, 355, 405, 408, 409, 423, 424, 518, 570 Hagan v. Providence etc. R. Co., 70, 92. 100, 108 Hagar v. N. E. Ins. Co 454 Hagedom v. Whitniore 455 Hahn V. Cummings, 271, 413, 421, 570 Sweazea 699 Haines v. Leland 552 Hair V. Little 66, 619 Haldeman v. Jenkins 139, 153 Hale V. New Orleans 381, 405 RawHs 175 Hales V. L. & N. W. R. Co., 238, 336 Haley v. Chic. etc. R. Co 162 Dorch. Mu. F. Ins. Co., 466 Hall V. Bark Emily Bannmg 701 Cowley 155 Dean.. 374 Delapane 361 Jonathan 385 Pierce 232 Suydam 544, 547 WHes 575 York 405 Hallam v. Todhunter, 270, 395, 421, 571 Hallett V. Novion 121 Halloway v. Griffeth 432 Halsey v. Hurd 232 Hamaker v. Schroers 138, 139 Hambyv. Hulst 697 Hamer v. Hathaway 633, 636 Hamilton v. Ganyard 233, 234 March 610 McPlierson....l32, 292 Overton 155 Steel 445 T. A. R. Co 342 WHson 372 XXXVlll CASES CITED. PAGE Hamlin v. Grt. N. R. Co. . . .238, 343 Spaulcling 541 Haminer v. Breirlenbach . . 138, 155 Griffith 610 Hammond v. Hannin 414 Russ 592 Hampton v. Wilson 114 Hand v. Armstrong 194 Hanley v. Chambers 403 Hanna v. Cummings 396 Barter 248 Hanover R. Co. v. Coyle, 166, 483, 535 Hansford v. PajTie 511 Hanson v. Buckner -385 Hampton 254 Harbison v. Shook 553 Hard v. Vermont etc. R. Co 175, 176, 177 Harder v. Harder 606 Hardm v. Larkin 393 Harding v. Cowing 204 Townshend 515, 534 Hardy v. Howard 148 Harker v. Dement 595 Harlow v. Thomas 374, 375 Harmon v. Wiley 121 Harper v. Davis 698 Ind. etc. R. Co 176 Walker 558 Harrell v. Durance 695 Harrington v. Dall 692 Harris v. Coster -340 Elcbed 124 Harris 416 Northern etc. R. Co. . . 175 Panama R. Co 327 Protec. Ins. Co 463 Rathbum 254 Harrison v. Allen 697 Berkley 133 Harrison 24-3, 478 Swift 70, 472 Wright 437 Hart V. West. R. Co. . . .49, 529, 531 Hartfield v. Roper 486 Hartley v. Herring 550 Harvey v. Rickett 692 City of Rochester 86 Hasbrouck v. Tappen 148, 155 Haskell v. Hunter 2-33 ]\IcHeniy 282 Haskford v. New York etc. R. Co. 188 Haskens v. Lumsden 114, 115 Hassa v. Junger 132, 536 Hassell v. Nutt 303 Hastings v. .Johnson 697 Hatfield v. Cent. R. Co 604 Roper 164, 185 Towsley 616 Haumer v. Wilsey 624 PAGE Havemeyer v. Cunningham 2-34 Haven v. Wakefield 304 Havers v. Erie etc. R. Co 166 Haviland v. Parker 620 Hay V. Gronoble 242 Haycraft v. Creasy 619 Hayden v. Anderson 665 Bartlett 627, 629 Man. Co 176 Sample 441 Hayes v. Askew 109 Porter 610 Riddle 656 Haynes v. Sinclair 50 Stevens 378 Hayward v. Leonard 291, 301 L. & L. F. Ins. Co., 46 Haywood v. Foster 115, 552 Haywood 211 Hawke v. Ridgeway 24 Hawkins v. Case 135 RHey 66 Hazleton Coal Co. v. Buck Mount. Coal Co 252 Heagy v. Hill 630 Heastings v. McGee 565 Heath v. Lent 439 Heavilen v. Kramer 134 Hedgepath v. Robertson 88 Heebner v. Eagle Ins. Co 450 Hegan v. Eighth Avenue etc. R. Co 181 Heil V. Glanding 91, 109 Hein v. Wolf 303 HeuTi V. McCaughan, 60, 67, 68, 343 Helm V. Wilson 254 Hellman v. Halladay 322 Hence v. Cayuga etc. R. Co 160 Henderson v. Maid of Orleans. . 328 W.M.&F.Ins.Co. 456 Hendricks v. Decker 630 Hendrickson v. Kingsburv . . .24, 73, 106, 1(37, 471, 482 Henry v. Pittsburgh etc. R. Co.. 40 Henson v. Hampton 290 Hepburn v. Griswold 201 Herbert v. Easton 228 Herdic v. Young 664 Hemdeu v. Dalton 1:34 Harrison 369 Hertzogg V. Hertzogg 403 Hewey v. Nourse 49 Hewett V. Miller 232, 278 Prime 558 Hewlett V. Cnichley 685 Hibbard v. Stewart 121 W. U. Tel. Co 359 Hickey v. Boston etc. R. Co 175 Hicks V. Foster.' 549 Newport etc. R. Co.... 517 CASES CITED. XXXIX PAGE Hickslier v. McCrea 338 Higginson v. Martin 609 Hildebi-ant v. Brown 627 HiU V. Balls 271 Golden 395 Loomis 615 Maupin 431 New Orleans etc. R. Co.. 70, 92 Opelousas etc. R. Co 159 Smith 234, 278 Warren 163 Hillman v. Bamback 597 Hilton V. Woods 602 Hinckley v. Beck with 241, 242 Hiner v. Richter 403, 570 Hinman v. Borden 612 Chicago etc. R. Co. . . 674 Hirsch v. Patterson 693 Quaker City 338 Hise V. Foster 148, 150 Hisler v. Carr 636 Hitchcock V. Hunt 260 North 545 Hoadley v. Watson 68, 107 Hoag V. McGinnis 155 Hoard v. Hall 375 Hobbs V. Francais 584, 586 Hobert v. Kiniberly 43 Hoby V. Built 618 Hoctv. Reed 114 Hodges V. Kmg 154 HodsoU V. Stallebrass 462 Hodson V. Willdns 610 HoiFman v. Mt. Ins. Co 457 St. Louis 40 Hogan V. Kellum 611 Riley 681 Hogg V. Emerson 577 Hohannan v. Hammond 320 Holbrook v. U. & S. R. Co 482 Wright 311 Holcomb V. McLean 584 Holland V. Brooks 683 Fox 580 HoUenbeck v. Berkshire R. Co. . 510 Hollis V. Wells 560 Holly V. Boston G. L. Co 173 Holmes v. Clark _. 270, 421 Godwin 664 Holmes 150 Stummel 286 Watson 592 Holt V. Given 203 Holyoke v. Grand T. R. Co. . 78, 91, 482, 483, 534, 535 Home Ins. Co. v. Sherman 425 Thompson 462 W. Trans. Co., 332 Homer v. Hunt 195 PAGE Homer v. Marshal 485 Honigsberger v. Second Avenue R.Co 187 Hood V. N. Y. & N. H. R. Co. . . 324, 360 Townsend 228 Hook V. Stovall 268 Hooker v. Newton 26, 68 Hooksettv. Amoskeag Man. Co., 173 Concord R. Co 49 Hoot V. Spade 395 Hopkins v. Atlantic etc. R. Co., 66, 68, 78, 93, 95, 535 Crittenden 194 Grazebrook,404,408, 409 Lea 58 Westcott 339 Yowell 386 Hopple V. Higby 615, 619 Hord V. Chandler 62 Trimbale 441 Home V. Batchelder 256 Mid. R. Co 240 Homer v. Flintoff 142 Horr V. Parks 188 Horton v. Ipswich 173 Hoskin v. Phillips 592 Duperoy 282 Hosley v. Brooks 67, 553, 554 Hosmer v. True 138 Wilson 302 Hostetter v. Vowmkle 586 Hotchkiss V. Jones 665 Lathrop 114, 115 Oliphant 114, 552 Hough V. People's Ins. Co.. 460, 463 Houghton V. Bankhard 603 Carpenter 265 Rock 659 Houlten v. Smith 608 House V. House 385 Houston V. Noble 43 Hovey v. Mayo 40 How V. Perry 115 Howard v. Barnard 702 Beatty 225 Bowers 155 Miner 247 Howard Ins. Co. v. Scribner 464 Howe v. Mason 616 Oswego R. Co 332 Howel V. Graves 639 Howell V. Young 618 Howes V. Woolcock 208 Howland v. Vincent 39 Hoxie V. Lincoln 293 Hoyt V. Reed 699 Hubbard v. Belden 289, 293 Norton 374, 377 Hubbel V. U. S 580 xlii CASES CITED. PAGE Kenayde v. Pacific etc. R. Co 173 Kendall v. Stone 25, 65 Kendrick Cypert 545 McCrary 557 Kennedy v. Hammond 444, 445 Strong 627 Whitewell 629 Kenney v. Hosea 550 Kent V. Bonzey 552 Ginter 233, 245 H. R. R. Co 323 Kentucky etc. R. Co. v. Dills. 24, 108 Kepp V. Merwin 426 Keplinger v. Sherwick 558 Kerby v. Denby 615 Richardson 395 Kernochan v. N. Y. B. Ins. Co., 459, 460 Kems V. Snowden 167 Kerst V. Gender 419 Kerr v. Forgue 174, 187 Pa. R. Co 529 Kerwhacker v. The Cleveland etc. R. Co 163 Ketchum v. Am. Ex. Co 339 Dew 284 Keys V. Devlin 125, 473, 482 Keyesv. W. Vt. S. Co 427 Kidv. Mitchel 637 Kier v. Peterson 601, 653 Kilgore v. Powers 194 Kindred V. Stitt. 544 Kimmons V. Hmiter &Lockhart. 421 King V. Bemond 698 Gilson 370 Jones 372 Lyle 395 Orser 628, 630 Pyle 413 Root 25 St. Mut. Ins. Co.. 459, 460 Shepherd 322 Woodbiidge 32-3, 337 Kingdom v. Cox 254, 290 Kingdon v. Nottle 372 King&land v. Clark 670 Kinny v. Crocker 483 Kimpton v. Bronson 201 Rosevelt 201 Kinsey v. Wallace 698 Kirkpatrick v. Downing 407 Kirkscy v. Jones 439 Kirtland v. Leaiy ; 323 Kitchen v. Branch Bk. Mobile. . 194 Klein v. Thompson. . . .472, 475, 478 Kline v. Cent. Pacific R. Co. . . . 172 Klopferv. Bromme.107, 119, 557, 559 Kkiniph V. Dunn 553 Kluniiiyde v. I'ac. R. Co 519 Knapp V. Maltby 155 PAGE Kneeas v. Schuylkill Bank 577 Kniffen v. McConnell.431, 434, 478, 563 Knight V. Dunlop 254 Egerton 619 Faith 450 Foster 07, 78, 88 553 Ponchartrain R 159 Wilcox 50, 557 Knowles v. Nunns 262, 271, 559 Knox V. Lee 201 New York 602 Knuklev. State 478 Kolb v. Bankhead 67 Koeltz V. Bleckman 256, 699 Koester v. Ottumwa City 684 Kountz V. Brown 66, 67 Kreigv. Well 185 Kresler v. Smith 503 Kroener v. Calhoun 201 Krom V. Levy 241 Kroom v. Schoonmacker 485 Kupfer V. Bank of Galena 204 K. P. R. Co. V. Pointer 482 Lacy V. Straughan 256, 265, 275 Marion 368 Mitchell 548 Lacour v. New York 596 Ladd V. Lord 570 Lafayette etc. R. Co. v. Huffman 185 Laird v. Pirn 418 Lakeman v. Grinnell 326 Lamar Ins. Co. v. McGlashen, 451, 458 Lamar v. Thornton 228 Lamb v. Brolaski 256, 298, 300 Camden etc. R. Co 339 Lamonda v. Duval. 628 Lampman v. Cochran 155 Lampton v. Usher 444 Lancashire etc. R. Co. v. Gee. . . 240 Lamder v. Miles 542 Landsberger v. M. Tel. Co. .348. 356 Lane v. Cole 671 Crombie 183 Gluckauf 204 Lantz 275 Latiner 277 Wilcox 69 Lanebar v. St. Louis 34 Lang V. Hopkins 685, 686 LanghofF v. Milwaukee etc. R. Co 165, 180 Langridge v. Levy 56 Langworthy v. McKelvey 442 CASES CITED. xliii Lanin^ v. X. T. Cent. R. Co — 176, 178, 179 Lansing v. Yates 608 Lantiy v. Parks 254 Lanussee v. Baker 207 Laplace v. Aupaix 630 Larkin v. Saginaw •_• 34 Lamed v. Buifington. ..114, 115, 550, 552 Lasala v. Holbrook 32 Latham v. Brown 621, 656 Lattin v. Davis 251 Lauback v. Lauback 636 Laubenheimer v. Mann 155 Lauer v. Schatenburg 432 Laughlin v. Harvey 201 Laurent v. Chapman 458 C. Ins. Co 457 Vaughn 322, 335 Lawv. LL. P. Co 469 Lawless v. Collier 370, 375 Lawrence v. Chase 61 Cook 430 Fox 361 Gt. No. R. Co 597 Hagerman 439 H. R.Co 482 Laws V. Bycroft 225 Learv v. Laftin 148 Leather Cloth Co. v. Heichfield, 587 Leavenworth v. Parker 256 Leavenworth etc. R. Co. v. Rice, 24 Leavitt v. Dabney 442 Lebanthwait v. Halsey 193 Ledyard v. .Jones 611 Lee V. Ashbrook 256 Dean 413 How. Ins. Co 460 Wilcox 207 Woolsey 474, 475 Leffinwell v. ElUott 378, 379 Leggett V. Baker 124 Lehman v. Brooklyn 185, 502 Leighton v. Kendy 69 Wales 145 Leinpemone v. Moore 602 Leland v. Stone 44, 154 Lemon v. Clucago ete. R. Co. . . . 675 LeMott v. Archer 698 Lewes v. Ridge 372 Lendrick v. Huntington 194 Leonard v. Allen 551 Dunton 317 N. Y. TeL Co 349 Phoe. Ins. Co 461 Speidel 435 Lepper v. Xultman 571 Lessee v. Huntington 577 Lester v. French 697 Letton v. Young 685 PAGE Levi V. Brannan 692 Lewis V. Baltimore etc. R. Co. . . 181 Chapman 553, 554 Cook 697 Eagle etc 567 Greider 280 Harris 375 Ludwick 319 N. Y. Cent. R. Co 201 Niles 114 Peake 261 Ship Success 328 Lick V. Faukner 201 Liddy v. St. Louis R. Co 169 Lighter v. Menzel 154 Likes V. Baer, 256, 271, 396, 421, 570 LiUard v. Whitaker 629, 630 Lincoln v. Buckmaster 518 Saratoga & S. R. Co. 50, 480, 481 Linden v. Hooper 638 Lindsay v. Anesly 138 Lindsey v. DanviUe 175 Linford v. Fitzra 616 Linningdale v. Livingston 301 Linsley v. Bushnell 24, 66, 5-34 Lipe v. Eisenlerd 25, 557 Liscomb v. B. M. Ins. Co 457 Lisk v. Mathias 129 Little V. Tingle ... .24, 471, 619, 621 Littlefield v. Norwich 684 Littlehale v. Dix 128, 481 Little Miami R. Co. v. Stevens . . 176 Whitacre, 669 Living V. Miller 29 Livingston v. McDonald 37 Woodworth 576 Lloyd v. Godwin 656 Lobdell V. Baker 210 Stowell 635 Locke V. Furze 402, 405 St. Paul etc. R. Co. . . . 173 Taylor 406 Lockiidge v. Foster 566 Lockwood V. Sangamo Ins. Co., 4-50 Sturdevant 370 Lodge V. Spooner 207 Lofton V. Vogles 174 Logan V. Moulder 372, 385, 386 Logansport v. Wright 34 Loker v. Damon 132 Longv. Eakle 114 Lamkin 695 Rodgers 546 Towle 139 Loomis V. Shaw 454 Loonan v. Brackbury 176 London R. Co. v. Glyn 460 Lord V. Geddis 146, 153 Lord Cawdor v. Lewis 393 xliv CASES CITED. PAGE Lord EUenborougli in Baker v. Bolton 491 Loring v. Gurney 282 Loud V. Merill 208 Louisville &N.R.Co.v.Burke. .. 510 Campbell, 32." Cavens... 177 Lounsbery v. Snyder 42-5 Lovejoy v. Roberts 422 Lowe V. Harrison 671 Peers 145 Sinklear 300 Loyd V. Hicks 695 Lucas V. Pickel 194 Lucena v. Ci-awford 448 Luckey v. Roberts 629 Ludlow V. Village of Yonkers . . 596 Ludmcb v. Hutzinger 194 Luk-in V. Godsall 592 Luthv. Pope 545 Luther v. Winnisimmet Man. Co. 599 Lygo V. Newbold 159 Lyle V. Barker 656 Lyncli V. Knight 481 Nurdin...54, 168, 486, 529 Smith 183, 184 Lynd v. Pickett 67 Lyon V. O'Kell 420 M. I\Iaclean v. Dunn 281 Maclin V. N. J. S. S. Co 340 Mack V. Patchen 61 Macon & West. R. Co. v. Baber 159 Macy V. The City of Indianapo- lis 40, 41 Madison etc. R. Co. v. Taffee. . . 181 Madon v. McGinnis 544 Mad River R. Co. v. Barber 176 Magellan Pirates 323 Maguire v. Riggin 374 Mahan v. Brown 32 Maher v. Norwich etc. Tr. Co. . . 507 Riley 233, 248 Maignau v. N. 0. etc. R. Co 338 Main v. King 150 Maitland v. Goldney 552 Major v. Dunnavant 395 Malaun v. Ammon 403 Mallen v. Bloomer 412 Mallory v. Lord 279 Maloy V. N. Y. C. R. Co. . . .533, 690 Manahan v. Noyos 278 Manchan v. Smith 381 Manix v. Maloiy 692 Manger v. Baker 597 Mangum v. Brooklyn R. Co. 164, 185 Mann v. Grove 664 Mansfield v. Watson 270, 565 Manville v. W. U. Tel. Co. .356. 3-57 Man veil v. Thomson 558 Mapes V. Weeks 115 Marble v. City of Worcester. .7, 163 Marchesseau v M. Ins. Co... 60, 456 Mariani v. Daugherty 701 Mariolt V. Stanley 134, 175, 180 Mark v. Patchin 425 Markes v. Miller 125. 473 Marks v. Gray 547 Markham v. Gr. Nor. R. Co 536 Jaudon 314, 635 Marlattv. Clary 261 Marsh v. Billings -584, 587 Richards 2-56, 305 Smith .541 Webber 258 Marshall v. Gantt 261 Gunter 685 Haney 419 Simpson 610, 611 Whiter 443 Wood 265 Marston v. Hobbs 372 Martin v. Baker 372 Culbertson 313 Franklin 207 Gordon .385 Hardesty 545, 546 Hooker -551 Porter 601,602, 6-52 Powell 602 Scoehnberger 254 Taylor 151, 437 Wallace 508 Washburn 428 West. U.R. C0....49, 165 Maurice v. Brady 138 Mausler v. Harding .5.52 Maxwell v. Hipp 225 May V. Brown 552 Mayberry v. ClifFe.660, 662,664, 665 Maye v. Tappen 601 Mayer v. Rosevelt 201 Maynard v. Newman 201 ]\Iayo V. Temple 550 Mayor of Columbus v. Howard. 316 Mayor etc. N. Y. v. Ransom. 576, 577 Marquart v. La Farge 61 Maryland v. Bait. etc. R. Co. . . . 503 M ason v. Chandler 153 Masterton v. Mayor of Brooklyn, 242, 301 Masters v. Warren 534 Mather v. Butler Co 133 Matheson v. N. Y. C. R. Co. . • . 483 Mathews v. Colo 63o Criblsett 434 Mathewson v. West. Ass. Co... 460 CASES CITED. xlv PAGE Matteson v. Curtis 4:>4 Matson v. Buck 114 McAtfee v. Crofford 45, 623, 62o Hale 298 Mc Alexander v. Harris 114 McAleer v. Horsey 270 Mc Alpine v. Lee 256, 268 McAndrewv. E. Tel. Co.. ..347, 358 McAulev V. Birkliead. .118, 558, 559, 563 McAvoy V. Wright 271, 568 McBride v. McLaughlin 25 McCabe v. Plainer 551 McCalson v. Gregan 622 McCallv. McDowell. 67, 110, 121, 475, 541 McCeady V. Kail R. Co 49 McClelland v. Snider 286, 305 McClintock v. Crick 114, 581 Laiy "02 McClure v. Gamble 385 McColough V. Walton 68, 439 McCombs V. Alrron 141 Griffith 225 McComb V. Reed 204 McConaughy v. Mc Mullen 4b0 McCormic V. Kans. etc. R. Co. . 40 McCormick v. Pa. C. R. Co. 628, 629 Seymour 576 McCoy V. Chiles 444 Elder 436 Hedge 298 McCraig v. Q. C. Ins. Co 4-56 McCrea v. Brown 442 P n-mont 38(3 McDaniel v. Emanuel . 53 Strohecker 568 McDonald v. North .... 591 , 631 , 639, 663 Scaife 665 Snelling 509 Walter ..699, 700, 701 Woodruff 113, 116 Goble 601 N.J. S. S. Co 3-^9 McFadden v. Robinson 271 McGary- v. Hastings 370, 397 McGatrick v. Wesson • . • • 1*8 McGavock v. Chamberlain. .659. bbO McGehee v. Shaier 685, 657 McGinnis v. Hart 6->9 McGoon V. Shirk 20o McGoven v. Lewis • • 330 McGrew v. Stone 133, 4S:j McGregor v. Kilgore 322, o2b McGuu-e V. Grant 536, 5% The Golden Gate 9o Mclnrav v. Dver 121, 122, 123 McElroy v. McEntee v. PAGE McKee v. Brandon 386 Pope 62 McKeon v. Citizens R. Co 25 Lee 604 McKinley v. C. & N. W. R. Co., 91 McKinzie v. Allen 4 (.3 McKuiney v. Springer 298 McKnight v. Dunlop 2o2 Morgan ■J73 McLaren v. Long 569, 273 McLean v. Cook 542 McLeod V. Tutt 506 McMannus v. Cricket 70 McMasters v. Cohen 480 McMichael v. Mason. . .123, 615, 62o McMillan v. Saratoga etc. R. Co. 176 Vanderlip 254, 290 McMuUin v. Wooley 377 McNair v. Compton. . . .400, 405, 413 McNamara v. King 24, 472 jMcNaught V. Dodson 2(8 McNear v. McComber 393, o96 McNuttv. Young 551 McRae v. McNair 22) McWilhams v. Bragg 68, 87 Mead v. Dogolyer 2o4 Wheeler 148 Means v. Milliken 419 Meason v. Kaine 413 Mech. F. Ins. Co. v. Nichols. . . 462 Mecklain v. Blake 681 Medbury v. N. Y. etc. R. Co.. . . 322 Sweet 338 Meerson v. Hope ?'38 Memphisetc. R.Co.v. On- 6(4 Whitefield 67, 535 Mendelsohn v. Anaheim Lighter Co 60, 67,68,70,92, 100 Meneely v. Meneely 586 Mentz V. Morrison 2(2 Second Av. R 690 Menzies v. N. Brit. Ins. Co. . . . 461 Mercer v. Jones 627, 630, 648 Merchant v. Lewis old Mer. Mut. Ins. Co. v. N. 0. M. Ins. Co 4o0 Merick v. Bramard o'-J Germ. Ins. Co 463 Merrill v. Ithaca & Oswego R. Co 305 Merrill v. Merrill 155 Peaslee 77, 89 Tariff Man. Co 89 Merimack Man. Co. v._Quintard, 256 Meritt V. Benton " 208 IMerrow v. Hun ton ^00 Merst V. Heiwey 82, 83, 87, 689 Mcintyre y.^l^."Y. C. R. Co.', 501, 505 | Meroine v Saitor. 201 McKea v. Brown 443 I Messer v. Bingham 2bl 4 xlvi CASES CITED. Metcalf V. Yonnp: 441 Metropolitan B'k and Shoe & Leather B'k v. Van Dyck .... 201 Metz V. Albrecht 256 Meyer v. Amdon 567 Pacific etc. R. Co., 17-3, 188 Fareall 440 San Francisco 51-5 Meysenbury v. SchUeper 445 Michie v. Jeffries 230 Mich. etc. R. Co. v. Heaton 339 McDonough. 319 Lahey ..164, 173 Middlekauff v. Smith 426 Milbum V. Beach 68 Belloni 263, 264 Miles V. Harrigton..67, 114, 115, 5-50 551 Millard v. Bridge .' 311 Stone 119 MiUerv. Adsit 311 EUiott 1.54 Garling 54 Garrett 443 Goddard 254 Hays 119, 434 Keiley 125 Laubach 37 Mariner's Church 132 Roy 1S4 Sweitzer 474 Taylor 581 MiUison v. Hock 24, 67 Mills V. Brooklyn 40 Catlin 369 Gilbreath 611 ]\Iilton V. Rowland 275 Mil. & St. P. R. Co. V. Armes. . . 471 ]\Iihvaukee Belle 453 Milwaukee etc. R. Co. v. Finney, 70, 92, 108 Mingus V. Pritchet 247 Minty v. Morrison 259 Misner v. BuUard 442 Miss. C. R. Co. V. Whitfield. ... 173 Miss. Ins. Co. v. Ingram 457 Missouri, K. & T. R. Co. v. City of Ft. Scott 288 Mitchell V. Billingsly 24 Hawley 576 Hazen 374 Jenkins 547 Mallingly 544 Mills 395 Warner 372 WiscottaLandCo... 298 Moberly v. Alexander. .396, 421, 570 Preston 114 Mobile & M. R. Co. v. Ashcraft. 693 Moffat V. Strong 425 ]\Ipnell V. Bums 254 Monger v. Townawanda etc. R. Co 164 Monmouth etc. Ins. Co. v. Hut- chinson 467 Monroe v. Prichett 566 Leech 163 Stickney 680 Monsler v. Harding 551 Montague v. Papin 671 Montoyer v. L. Ins. Co 529 Moody V. McDonald 108 Osgood 534 Whitney 594, 653 Moone v. Republic 697 Mooney v. Kennett 68 Moore v. Aldrich 630 Anderson 681 Bowman 78 Cent. R. Co 159 Clav 551 Martin 691 Oastler 113 Platte County 155 Riff 211 Shultz 68, 441, 622 Webber 428 Moranv. Dawes 5.58 Morley v. Dunbar. . .26, 68, 476, 480 Morford v. Ambrose 301 Woodworth 108 Morgan v. Dudley 608 Gregg 633, 635 Hughes 608 Jones 194 Kegley 444 Powell 601 Railway Co 176, 177 Ryerson 268 Morgain v. Reynolds 659 Yarborough 431 Mon-ell V. Iiw. F. Ins. Co. . .457, 462 MoniU V. Graham 618 Mon-is V. Baker 114, -554, 613 Moses 480 Phelps 374, 39-5 Roman 385 Morris etc. R. Co. v. Haslan, 159, 165 Morrison V. Davis 46 Cornelius 159 Cummings 293 Lovcjoy 301 Momssev v. Wiggins Ferry Co., 167, 172 Morrow v. Walsh 573 Morse v. A. & S. R. Co 482. 534 Brackett 26-5, 275 Crawford 484,485, 486 Erie R. Co 173 HutchmS 270, 569 CASES CITED. xlvii PAGE Morse v. Ratlibum 139 Richards 300 Withenburgh 441 Mortimer V. Thomas. . . .120, 541, 691 Moses V. Stevens '254, 291 Mosely v. Dunbai- 125 Moss V. Johnson 176 Smith 4-50, 453 Mostey v. Hunter 681 Mote V. Chicago etc. R. Co., 195, 329, 660 Motley V. M'% F. Ins. Co 459 Mott V. Mott 150, 155 Moiilton V. Richardson 445 Mouslor V. Harding 113, 115 Mower v. Kipp 436 Mowry v. Home Ins. Co 469 Wood 67 Mowery v. Whitney 576 Moyer v. Pine 114 Mueller v. St. L. I. M. R. Co. 592, 599 Muler V. Boggs 698 Muller V. St. Louis etc. R. Co. . . 592 Fern 443 Mullett V. ChalUs 612 Mason.. 238. 258, 262, 271, 569 Hulton 114 Mumford v. Hallett 454 Munson v. Price 282 Murphy v. Chicago 40 City of Fond du Lac. 593 Dart 475 Dean 159, 183 N. Y.etc. R. Co.510, 514 Murray v. Hud. R. R. Co.. 691, 694, 695 Merideth 257 Murrellv. Whiting 337 Murry v. Currie 177 Muschamp v. Lancaster R. Co. 324, 325, 360 Musgrove v. Beckendorf' 636 Myers v. Bums 426 ExteU 42-<2 Ljmn 617 York etc. R. Co 302 Myltonv. M. R. Co 360 Nagle V. Mullison 26, 67 NaUyv. Shobe 660 Nassaman v. Rickert 107 Nash V. Harmosilla 139, 155 Nashua Lock C. v. Worcester R. Co 324, 325 Nashville etc. R. Co. v. Elkin. . . 507 Nations v. Cudd 303 PAGE Nanyatuck R. Co. v. Button Co. 325 Naumann v. CaldweU 635 Neai-nsT. Harbert 303 Nebraska City v. Campbell 483 Needham v. Frazer 670 San Francisco R. . . 159 Needles v. Howard 317 Neff V. Clute 210 Negley v. Lindsey 570 Negus V. Simpson 316 Neiler v. Kelly . 029, 636, 648. 655, 656 Nelson v. Evins 114 Neilv. Gillett 174 Nelson V. H. etc. R. Co 339, 345 Nendel v. North 396 Nesmith v. Calvert 576 Neville v. Frost 2-54 Nevins v. Bay State etc. Co 357 Peoria 40 Newcomb v. Cin. Ins. Co 468 Newell V. Downs 546 New Haven Steamboat Co. v. Vanderbilt 104, 174 Newhouse v. Miller 174 New Jersey Ex. Co. v. Nichols, 159, 182. New Jersey etc. R. Co. v. West. 688 Newman v. McGregor 298, 301 New Orleans etc. R. Co. v. Bailey 25,93, 99, 101 New Orleans etc. R. Co. v. Hurst, 68. 93, 95 New Orleans etc. R. Co. v. Stat- ham 66, 90, 91, 621 New Orleans etc. R. Co. v. Tyson 338 Newsam v. Carr 546 Newton v. Price 683 New York City v Ransom 579 N. Y. F. Ins. Co. v. Delaven.. . . 462 New York G. & I Co. v. Flynn.. 661 New York etc. R. Co. v. Story. . 287 N. Y. & W. P. Tel. Co. v. Dry- burg 347, 349,361, .362 Nibbe v. Brauhn 293 Niblo V. N. Am. Ins. Co.. . .458, 461 Nichol V. Bostwick 681 Nichols V. Freeman 58, 418 Hill 419 M. F. &M. Ins. Co.. 4-51 Nicholson v. N. Y. & N. H. R. Co 685 Night V. Foster 115 Nightengale V. Scannell. .24, 65, 67, 615 Nilson V. Gray 438 Nimick v. Holmes 451 Nixon V. Nixon 232, 247 Nobles V. Bates 155 Noble V. Googins 421 Walker 209 xlviii CASES CITED. PAGE Noonanv. Ilsley..211, 374, 375, 681 Norsaraan v. Recert 69 Northern etc. R. Co. v. State. 172, 183 North Mo. R. Co. v. Akers 537 North Penn. R. Co. v. Hielman. 166 Mahony 185, 486 Robinson 501, 516 Nor. Tr. Co. v. Selick 628 Northup V. Cook 233 Norris v. Litchfield 519 Norton v. Babcock 381 Sewall 509 Nosier v. Hunt 367, 370 Noves V. Rutland R. Co 325 Smith 178 Nudd V. Wells 698 Nutall V. Bracewell 36 Nutting V. C. R. R. Co 360 Herbert.. ..367, 368. 385 Nye V. Merriman 26, 67, 271 Nyes V. MoiTistown 164 o Oakland R. Co. v_. Fielding 535 Oberlander v. Spiess 567 O'Brien v. Copwell 428 O'Connor v. Foster 330 Pittsburgh 40 Odlin V. Grove 699 O'Donnell v. Alleghany Valley R. Co 166 Oslrichs v. Spain 443 Offutt V. Edwards 441 OTlaraty v. Union etc. R. Co. . . 187 Ogden V. Claycomb 478 East River Ins. Co 465 Lathrop 315 Marshall 330 N. E. Ins. Co 466 Ogg V. The City of Lansing 33 Ogletree v. State 480 Ohio V. Jones 615 Ohio etc. R. Co. v. Brubaker. ... 674 Evans 418 Gallott 174 Tindali 502 Shanefelt 47 O'Keefe v. Chicago etc. R. Co. .. 169 Oldfield V. Har. R. Co 502 New York etc. R. Co. 182, 502, 505, 685 Olivant v. Bayley 262 Oliver v. Chapman 67 O'Mara v. Hud. R. R. Co 505 O'Meara v. N. Am. Min. Co.. . . 630 O'Reilly v. McChesney 598 PAGE Crock V. M. F. Ins. Co 451 Orr V. Bigelow 282 Ortman v. Greenman 609 Osgood V. McConnell 43 Ottawa Gas Co. v. Graham. . . . 536 Otter V. Williams 630 Outcault V. Burling 121, 619 Ousleyv. Harding 66, 68 Owenv. O'Reiley 680 Routh 243 Willis 228 Owens V. Han. & St. Jos. R. C 180 Owsley V. Greenwood 193 Overhiserv. McCallister. . . .367, 370 Overton v. Phelan 262 Oviattv. Pond 620 Oxendale v. Wetherell 255 Paddock v. Com. Ins. Co 454 Pac. M. S. S. Co. V. Luting 443 Packard v. Slack 272, 569 Page V. Cole 563 Gushing 547 Dickerson 276 Ford 241 Fowler.. 593, 633, 637, 640, 642, 661 Marsh 256 Mitchell 483 Ott 254 Parker.70, 256, 271, 273, 568 Pavey 264 Fallen v. Leroy 280 Palmer v. Andrews 119, 434 Cook 117, 663 De Witt 581 Panton v. Holland 621 Park v. Bates 385, 386 Cheek 368 McDaniels 629 Norris Axe & Tool Co.. 264 O'Brien 174 Parker v. Adams 163, 173 Brown 386, 699 Carson 226 Corbin 576, 578 Davis 201 Eagle Ins. Co 462 Griswold 593 Hulme 576 Mil. etc. R. Co 338 Mise 24, 67 Tiffany 310, 311 Wheeler 620 Parks V. A. Tel. Co 347, 352 Boston..*. 628, 629 Parmelee v. W. Trans. Co 326 CASES CITED. xlix PAGE Parmelee v. Wilks 45 Parrott v. Wells 489 Parsons v. Hardy 320 Harper 538 Martin 629 M. Ins. Co 450 Sexton 277 Parton v. Honnor 129 Partridge v. Hatch 374 Pass. R. Co. V. Donahoe 482 Pasely v. Freeman 56 Passinger v.- Thorburn 262, 263 Patapsco Ins. Co. v. Southgate.. 451 Patnote v. Sanders 293 Patrick V. Clay 195 Putnam 289 Patten v. Chicago etc. R. Co 685 Thompson 685 Patterson v. N. C. R. Co 319 Stewart 382 Westervelt 210 Paul V. Slason 682 Paulmier v. E. R. Co.. .172, 502, 684 Paunsett v. Fuller 401 Pasme v. Clark 194 Pearson v. Lemaitre 67 Williams 139, 155 Pease v. Clayton 608 Peck V. Hiler 425 Hubbard 247 Mayo 207 Mayor of N. Y 507 Peddie v. Q. F. Ins. Co .'. . . 456 Pedrick v. Porter 568 Peele v. M. Ins. Co. . . .449, 451, 452 Peerce v. Atterv 445 Peet V. Chi. & N. W. R. Co . . . . 323 Pelburgh v. Gorham 613 Pellenz v. Bullerdick 544 Peltier v. Mict 454, 553 Pemberton v. N. Y. C. R. Co. . . 339 Pence v. Dozan 560 Pendleton etc. R. Co. v. Stall- man 175 Pennckill v. Sec. Av. R. Co 519 Penoyer v. Sagmaw 37, 603 Penrose v. Curran 484 Penn. Canal Co. v. Bentley, 182, 533 Graham 483 Penn. R. Co. v. Bantom 505 Beale 166 Books 26 Buffalo etc. R. Co 319, 320 Butler 501 Goodman 159, 505, 684 Henderson 502 Keller 502, 503 KeUey 501 PAGE Penn. R. Co. v. Kerr 46, 528, 529 McCloskey...501, 505 Ogier 506, 516 Vandever....501, 506 Zebe....501,502, 507 Pennell v. Woodbum 261 Pennyman v. Hartshorn 2S1 People V. Hayden 669 Love 155 Stryker 617 Peoria Bridge Asso. v. Loomis. 24, 68, 90, 100, 482. 534. 535, 691 Peoria M. & F. Ins. Co. v. Lewes.. 463 WUson. 467 Percival v. Hichbom 421 Perie V. Steele 451 Perkins v. Hackleman..594, 620, 621 Lyman 138, 154 Pitman 512 Portland etc. R. Co.. 322 Towle 25,67, 78 Periey v. Balch ■_73, 277, 284 Eastern R. Co. . .47, 49, 529, 531 Perry v. Johnson 540 Prov. Ins. Co 469 Smith 211 Peters v. M^Keon 58, 403, 405 Whitney 305 Peterson v. Aver 234, 242 Burn 273 Pettit V. Mercer 439 Petty V. OveraU 314 Phalan v. Andrews 241, 257 Phelin v. Kenderdine 557, 559 Phelps v. Foster 444 Hovle 557 McGee 248 Owens 611 Phenix v. Clark 661 Phil. Wil. & Bait. R. Co. v. Howard 242 Philadelphia etc. R. Co. v. Quig- ley 26,66, 67, 90 PhilUps v. KeUey 128 Lawrence 26, 89 Nock 576 Periy Co. Ins. Co. . . 466 Philips :.. 702 Reichert 395 Spevers 204 Williams 228 Philo v. m. C. R. Co 512 Philpots V. Evans 232 Phipps v. Tarpley 363, 384 Phiney v. Baldwin 194 Pickens v. Decker 520 Pickering v. Bard well 278 Truste 121 Pickets V. Bait. R. Co 339 CASES CITED. Picket V. Crook 26, 67, 91 Pierce v. Athey 436 Atwood 609 Benjamin.... 122, 624, 628 Fuller 154 Payne 696 Pierce 561 Wood 697, 699 Pierpont v. Fovvle 584 Pierson v. Eaarle Screw Co 577 Pike V. Dilling 25, 93 Hanison 539 Nichols 68 Piffgott V. Eastern Counties R. Co 49, 529 Pillsbury v. Moore 603 Pinckney v. Pulsife 697 Pinkerton v. Caston 138 Man. Sc L. R. Co . . 640 Pinney v. Andrus 258 Gleason 211 Piper V. Manifee 55 Pitcher v. Hazen 374 Livinsrston . .374, 384, 390 Pitkin V. Leavitt 368 Pitt V. Yalden 618 Pitts V. Hall 575, 587 Pitts. Coal Co. V. Foster 244 Pittsburgh etc. R. Co. v. Henniy-h, 684 Methuen, 159 Thompson 515 Pixler V. Nichols 297, 298 Piatt V. Brown 67 Playford v. U. K. Tel. Co.. . 361, 362 Plumb V. Ives 621, 622 Woodmansee 440 Plummer v. Hai-bert . . . .24, 475, 611 Polk V. Allen 627 Pollet V.Long 598 Pond V. Wyman 303 Pool V. Simons 311 Porter v. Banow . 15 Bradley 375 C.&N.W. R.Co., 324, -328 Seiler 66.68, 107, 129 St. Bt. New England. . 343 R. R. Co 100 Portman v. ]\Iiddleton 304 Posey v. Garth 254, 290 Post v. Hamp. Mut. Ins. Co 462 Williams 568 Potman v. Middleton 238 Potter V. C. & N. W. R. Co 173, 505, .507, 693, 699 Scale 544 Thompson 697 Pounsett V. Fuller 65 Powell V. Burrows 139 Deverny 529 Gudgeon 456 Powell V. Salesbmy 53 Powers V. Presgrove 114 Prader v. Grim 442 Pratt v. Battles 121 Gardner 608, 616 Stearns 204 Preble v. Baklwdn 378 Prentice v. Dike 264 Shaw 22, 127 Prescott V. Truman 374, 375 Wright 624 Pribble V. Kent 655 Price V. Powell 131 Reeves 204 Priestly v. Fowler 176 N. I. R. Co., 324, 332, 335 Prichard v. Martin 303 Pringle v. Spalding 405, 406 Prior V. Wilson 239 Pritchet V. Boevey 538 Prop. etc. v. Wood 319 Proteus V. Hazel 700 Pugh v. McRae 610 Pullman v. Corning 2-54, 292 Pulver v. Harris 476 PumpeUv v. Phelps 416 Pymv. E. R. Co 520 Great Nor. R. Co.. . .504. 516 Q. Quarles v. George. 246 Quin V. Moore 502, 503 Quick V.Holt 519 Quimby v. Carter 671 Quin ton v. Van Tuyl 473 K RadcUfF V. Brooklyn 34, 40 Railroad Co. v. Gladman.82, 182, 1S4, 485 Manufac. Co 339 Raves 320 Stout 486 Whitton 166 Raius V. Calaway 395 Ralson v. Donnovan 320 Rand v. White M. R. Co 232 Randal v. Everett 133 Raper 258 Ranger v. Goodrich 114 Ransom v. N. Y. iV' E. R 5:}4 Rathbones v. Fowler 453 Rathbnn v. Pavne 154 Ratlirt" V. Huntley. 623 Ranch V. Lloyd 486 Raver v. Webster 439 CASES CITED. U Rawdon v. Burton 232, %jo Rawlings v. Bell -^66 Rawlinson v. Clark 143, 173 Rawls V. Am. L. Ins. Co 469 Rawley v. Woorli-utf 256 Rawson v. N. Y. ^ E. R. Co. . • - 482 Raj-raond v. Hindman 520 Raynerv. Clark 436 Rea V. Minkler 377, 383 Tucker 117, 558, 560 Reab v. Moore 254, 290 Read v. Fairbanks 628, 630 Rami 255 303 377 Ream v. Watkins Rectors Trinity Church v. Hig- gins Reddie v. Scoot -560 Reed v. Hamilton 3tf3 Harper 552 Howe 62 Kelly 481 Phil. R. Co 320, 344 Reeder v. Purley. . . .24, 68, 471, 625 Reecling v. Keppleman 40 Reese v. Steams 204 Reeves v. Delaware etc. R. Co. . 158 Dickey 443 Reggio V. Braggiotti. . .2-59, 261, 275 Reiley v. Delatield 454 Jones 138, 145 Renck v. McGreggor 541 Reno V. Wilson 24, -544 Reus. Glass Factory v. Reid 195 Rex V. Ins. Co 460 Rexford v. Knight 669 Rej-nolds v. Chandler Riv. Co . . . 538 Haurahan 519 Shrevepoi-t 40 Tucker 115 Rice V. Benedict 314 Dwight Man. Co 254 Hollenbeck 651 Nickerson 620 Ontario Steamboat Co. 322, 327 Simms 684 Ponder 548 Johnson 374 Richards v. Sandford 700 Richardson v. Chynowith 241 Dunn 238 Edick 155 Kelly 385 Northmp • • • 113 Richmond v. Dubuque & Sioux CityR. Co 29 302 Richmondville v. Ham. Mut. Ins. Co 46-5 Ricker v. Freeman 17o Rickey v. McBean 548 Ricketson v. Richardson 155, 435 Rider v. Hathaway 654 Ridgely v. Hewitt 529 Rigby V. Hewitt.... 9, 144, 169, 591 Rignier v. Cabot 115 Ripley v. Davis 627, 6.30 Hazelton 278 Mosely 437, 439, 441 Rittenhouse v. 1. L. Tel. Co. -3.53, 3-56 Rixfbrd v. Smith 320 Rhodes v. Baird 242 Bunch 473 City of Cleveland 41 Thwartes 281 Woods 665 Roberts v. Carter 266 Chicago -34, 40 Connelly 5-58 Dast 444 Fleming 2-59 Mason. . . .25, 66, 68, 107 Robeson v. Brown 225 Robertson v. Kerby 673 Lemon 394 Robinson v. BaiTOws 629 Cone. 1-59, 168, 185, 486 Flmt 62 Harman 409 Hartridge 628, 630 Hud. R. R. Co 700 Hurley 621 Kenney 153 N. Y. Cent. R. Co. 182, 183 Rupert 22 Varel 4:3 Rockwell V. Allen 3 Third Av. R 689 Rodes V. Bronson 202 Rodrique v. Tadmire -545, 546 Rogers v. Beard 30l Hanson 275 Spence 655 Rollv. Augusta 40 Rolph V Crouch 238 Romaine v. Van Allen 6:34 Rome V. Omberg 40 Rome R. Co. v. Sloan 327 Sulivan 311 Roper V. Clay 431, 432 Root V. King 551 Punch 573 Rose V. Beattie 57 Boseman 235, 248 U.S. Tel. Co 362 Wallace 2-58, 2-59 Roseman v. Canovan 270 Ross V. Hill 310 Ross 5-55 Roth V. Smith 24, 120, 625 lii CASES CITED, PAGE Rounds V. Mumford 41 Rowan v. People 697 State Bank 625 Rowe V. Heath 394 St. City of Dublin 323 Rowland v. Shelton 283, 284 Rowley v. Gibbs 662 Lond. etc. R. Co.503, 506 Royce v. Duggenhetm 425 Rozet V. McClelan 314 Rubber Co. v. Goodyear 5*6 Ruddington v. Henry 421 Rudolphe v. Fuchs 519 Ruldesbarger y. McDaniels 445 Rundell v. Lackey 397 Runnells v. Webber 377 Russ V. S. S. War Eagle. . .482, 687 Russell V. Copeland 406 Huster 121 Mayor of N.Y 37 Palmer 618 Rush 428 Root V. King 114 Ruter V. M. C. R. Co 344 Ryan v. Anderson 442 N.Y. Cent. R. Co.. 46. 527, 529 Ryburn v. Pryor 627 Ryder v. Thayer 15 Rynear v. Neilen 563 s Safely v. Gilniore 422 Sainter v. Ferguson 143 Salle V. Light Salmon v. Valejo 372 Salsbury v. Hirshinroder 471 Sanborn v. Bachelder 273 NUson... ..77,87, 117 Chamberlain 419 Sanbum v. Emerson 699 Sandback v. Thomas 544 Sanders V. H.lns. Co 460 SanderHn v. Shaw 620 Sanderson v. Caldwell 89, 550 Sargent v. Denison 562 FrankUn Ins. Co.... 629 Pomeroy 617 Sarpy v. New Orleans 385 Sartup V. Cortazzi 232, 248 Saunders v. Brosius 631, 639 Chirk 250 Johnson 551, 555 Vance 630 Sanford v. Hayes 201 Sawyer v. Dulany 340 Han. & St. J. R. Co. 688 Sauer 175 PAGE Sawyer v. Vermont etc. R. Co. . 674 Savage v. Gunter 617 Savercool v. Farwell 250 Saville v. Roberts 129, 544 Sayre v. Sayre 551 Say ton v. Bacon 53 Scanian v . Cowley 548 Scha^fFer v. Hoges 209 Schattner v. Kansas City 40, 34 Schellv. Plumb 193 Schei-pf V. Szadeczsky 685, 695 Schierhold v. North Beach R. Co. 188. 486 Schindel v. Schindel. . . .67, 597, 670 Scofield V. Day 195, 207 Fen-eers 665 I. H. Co 372, 373 Schoraimer v. Palmer 562 Schley v. Lyon 656 Schanler v. Porter 692 Schmidt v. Milwaukee etc. R. Co. 185 Schnebley v. Shirtcliff 278 Schneider V. McCabe 686 Schnerr v. Lemp 254 Schrodder v. H. R. R. Co 325 Schuylkill Nav. Co. v. Fan- 597 Schuyler v. Sylvester 441 Schultz V Pac. Ins. Co 685 Schwabacker v. Wills 686 Schwazel v. Holemshade 579 Scofield V. Ferris 544 Scott V. Boston & N. 0. Steam- ship Co 323, 337 Scott V. Dublin etc. R. Co 162 Mavor etc 175 McKinish 115 Rogers... 635, 642, 643, 645 Shepherd.. 7, 9, 43, 51. 529 Scotthorn v. S. S. R. Co. . . .324. 360 Scovillv. Griffith 332 Scranton v. Tilley 262, 268 Security Ins. Co. v. Farrell 459 Seely v. Alden. . . .594, 598, 619, 621 Soager v. Slingerland 561 Seagrave v. U'. M. Ins. Co 455 Seger v. Barkhamsted 482,' 534 Seaman v. Luse 665 Seamore v. Harlan 368, 386 Sears v. Lyons 67, 83. 87, 622 Hathaway.... 129, 544, 546 Seaver v. Boston etc. R. Co 178 Seay v. Greenwood 439 Seldcn v. Cushman 109 Selkirk v. Cobb 629 Solloch v. French 194 Selma etc. R. Co. v. Lacy 607 Senclair v. Eldred 544 Sceting v. The Atlantic Mut. Ins. Co ■* 204 Severance v. Healy 78, 88 CASES CITED. liii PAGE Sewalls V. risk 596 Seaver v. Morse ^^J Sexton V. Brook 68-3 Zett 520 Seymour v. Maddox 175 R. R. Co 100 McCormick 574, 577, 578 Shandon v. Comstock 338, 419 Shallcnbai-ger v. Brmton 201 Shankland v. Cooper 221 Shai-on v. Mosier 65, 265, 2(o Rogers 256 Sharp V. O'Brien 699 Powell 483 Sbattuck V. Green 283 Shaw V. Boston etc. R. Co 686 Cunimiskey 604 Davis 542 Fellon 451 Hoffman 424 Holland 244 Wilkins 385, 405 Shearman v. Fall River Iron Works 131, 160 Shearman v. West. Stage Co 163, 169, 174, 180, 491, 502, 503, 505, 514, 516, 685, 695 Sheehan v. Collins 114 Sheets v. Andrews 386 Sheldon v. Can^enter.. .543, 544, 548 Shepard v. Milwaukee Gas L. Co 241, 242 Sherely v. Billings 341 Sherman v. Mitchell 684 Rawson 432 Rochester etc. R. Co. 176 Wells 123, 322 Sherrod v. Langdon 56, 258, 272, 275, 569 Shen-y v. Schuyler 624 Shiell V. MclNite lo5 Shields V. W. Tel. Co 356 Shipman v. Miller 211 Shipton V. Casson 25o Shirley v. Bilhngs 474 Shoffv. Wells 702 Short V. Stone 432 Shotwell V. Wendover 631, 6oo Shoultz V. Miller 552 Shreve v. Brereton 155 Shultz V. Morrison 443 Shuneman v. Pahner 562 Shute V. Ban-ett 555 Sieveking v. Litzer 567 Sikesv. Wild 401, 402 Sill V. Brown 159, 169 SilUnian v, Lewis • • • • 159 Silsbury v. McCoon 651, bo^ Silsbe V. Lucas 440, 445 Simmons v. Brown 601 Camden 41 Simpkins v. Low 266 Simpson v. Black 434 City of Keokuk .... 134 Griffin 220 McCaffrey 471 Wren 313 Sinclair v. Bowles 290 Talmage 298 Singer v. Farnsworth 304 Single V. Schneider 662, 665 Singleton v. Boone Co. Ins. Co., 462 Sisson V. Cleveland etc. R. Co.. . 823 Siter v. Mon-is 460 Sims v. Marryat 284 Skinner v. Bridge Co 40 Skipp V. Eastern etc. R. Co 175 Slater v. Emerson 254 Rink 472, 482 Shennan 68, 471 Slaughter v. McRae 266 Sledge V. Pope 480 Sleeper v. Sandown 189 Sloot V. Royal Ins. Co ■^■- 46-3 Smeid v. Foord 238, 332 Smith V. Alhson 560, 563 Brady 254, 292 Bristol 304 Clark 533 Cozart 275 Dunlop 211, 630 Gonder 596 Griffith 323 Holcomb 483 Huizar 681 Jefts 375 London &S.W.R. Co.. 48, 539 Hasten 694, 695 McGuu-e 337 Milburn 560 Newcastle 429 N. C. R. Co 339, 345 N. Haven R. Co 319 O'Conor 185 Overby 24, 483 Peat 426, 595 Pliillips 605 Proprietors of Meeting House 301 Railroad Co 472 Reevess 649 Shaw 207. 690 Sheppard 319, 320 Smith 154,155, 551 Sprague 394 Steinkamper 26d Strong 368 Hv CASES CITED. PAGE Smith V. Tooke.. 612 Wainwright 155 Washington 40 Whitaker 154 Wilburn 118 Woodbine Ill Yoram 36 Smithson v. U. S. Tel. Co 347 Smithurstv. Woolston 247, 629 Smithwith v. Ward 107, 481 Smyth V. Hyndman 546 Smoot V. Wetumpka 82, 33 Snelling v. Lynch 301 Snively v. Fahnestock 597 Snow V. Grace 109 Housatonic etc. R. Co. 175, 176, 178 Snyder v. Fulton 89, 550 Somer V. Wilt 25 Soper V. Hemy 32 Soulard v. St. Louis 669 Southard v. Rexfbrd. . .111, 431 432 South V. Dunston 558 Southerland V. Crawford 443 Southern R. Co. v. Kendrick.68, 519, 681 South Royalton Bk. v. Safford B'k 129 South Shields Water Works Co. V. Cookson 36 So-well V. Champion 615 Sowers v. Ernhart 225 Spafibrd v. Harlow 519 Spaid V. N. Y. etc. Steamship Co 319 Spain V. Arnott 290 Spoor V. Holland 656 Sparks V. Maseck 283 Purdy 648 Sparrow v. Paris 138 Spaulding v. Lord 194 Spedding v. Nevell 418 Spencer v. Long 625 McMaster 684 Nicaetc. R. Co 158 Prindle 204 Tilden 155 Sperry V. Wilcox 553 Spicer v. C. & N. W. R. Co. 535, 692 Spigelmeyer v. Walter 598 Spikes V. English 26 Spivey v. McGehee 439 Spoor V. Holland 315 Spottswood V. Clark 587 Sprague v. Craig 120, 430 McKenzie 625 Spring V. Chase 369 Haskell 322 Springdalc v. Smith 149 Springer v. Wise 544 Springle v. Spalding 414 PAGE Sproule V. Ford 629 Squib V. Hale 609 Squire v. HoUenbeck 122, 624 Stadler v. Parmelee 439, 440 Staley v. Murphy 421 Standard v. Eldridge 375 Stanley v. Webb .552, 553 Whipple 577 Stark V. Parker 254, 291 State V. Bishop 617 Freeman 611 King 247 Lynes 612 Manchester etc. R. Co. . 159 Martin 480 State of Md. v. B. & 0. R. Co.. 501 Powell 134 Queen 540 Sandusky 436 Smith 630 Thomas . . . .440, 441 State Bank v. Morris 439 Staats V. Ten Eyck. . . .368, 388, 390 Steadman v. Simmons 697 Steamboat New World v. King. 482 Steamboat Co. v. Parker 254 Whillden 24 Stearns V. McCullough 265, 275 Steele & Burgess v. Townseud. . 357 Steele v. Burkhardt 167 Thatcher 443 Sawyer 220 Steinburg v. Gebhert 303 Stellar v. Nellis 476 Sterling v. Garrittee 627, 630 Peet 385 SteiTett's Ex'rs v. Kaster 616 Stephens v. ^t. Ins. Co 458 Cady 584 Evans 419 Felt 577 Gladding 594 Wilkms: 609 Stephenson v. Harrison 406 Hart 311 Little 654 Price 232, 311 Stetson V. Croskey 271 Stevens v. Barringer 193 Elwall 311 Tassett 547 Tuite 663 Stevenson v. Belknap.. 68, 558, 559, 662 Greenlee 568 M. Tel. Co 348 Smith 663 Stewai-t V. Drake 375, 386 Noble.'. 403 State of Maryland.. 34, 444 CASES CITED. Iv Stewer v. Buhler 114 Stickney v. Allen ^-^f Stiles V. Geesey • • • • • • • li,'^ Stimpson v. Railroads.. .89, 5(b, b^y Stockbridcce Iron Co. v. Cone Ironworks 592,599. 602 Stockton V. Frey • •.• • 48-^ Stokes V. Saltonstall 1 <2, 341 Landgraff o84, 58o Stone V. Codman 50, 629 Crocker 547 Daney 566 Gilliam 247 Varney 551 Stonebreaker v. Stonebreaker . . . 586 Stoneman v. Erie R. Co b44 Stoneseifer v. Sheble 60 Stopp V.Smith 620 Stoi-m V. Smith ■■■ 28o Story V. M. Ins. Co 4o8, 4o9 MewYork&H. R. Co., 242 Wallace 554 Story's ex'rs v. Holcomb 582 Stout V. Jackson oSo Sioux City & Pac. R. Co. 166, 184 Prall Ill, 118, 4:31 Stover V. Bluehill 132 Stow V. Yarwood 122 StoweU V. Bennett oio Lonsola 680 Strader v. Marietta 168, 169 Strasbur£?h v. W. U. Tel. Co. . . . 3o4 Strawbridge v. Turner o3 Strawn v. Coargswell 287 Streeper V. Williams .. • • • • 138 Street v. Chapman 256, 265, 2 to Swain 286 Streeter v. Rush 154 Strett V. Launier 6 1 Strogan v. Knowles • 3^ Strohan v. Detroit etc. R. Co. . . . 318 Strong V. Campbell 3o Strong oob Struble v. Nordwift 69 Strunk v. Ocheltree 617 Stuart V. Martin 624 Sturgess v. Bissell o22 Sturges V. Keith • • • 6-^0 Knapp 442, 444 Sturtevant v. Phelps 3<5 St. John V. Am. M. L. Ins. Co. . Mayorof N. Y Van Santvoort St. Jo. & D. C. R. Co. V. Chase.. St. Louis V. Alexander 44o Bissell 3<8 St. Louis & Alt. R. Co. V. Dalby, 92 St. L. etc. R. Co. V. Todd 518 St. Martin v. Des Noyer obo St. Paul City v. Kuby 685 St. Peter's Church v. Beach. .24. Suffolk F. Ins. Co. v. Boyden .. .' 459 Sullivan v. Railroad Co 17b Un. P. R. Co 491 Summers v. Camden 40 Sussex Co. M. Ins. Co. v. Wood- ruff 459 Sutton V. Buck 311 Clark 484 Howard 148 Page 385 To\\iiof Wauwoutosa.. 173 Suvdam V. Jenkins. . 632, 633, 634, 639, 640, 647, 649, 650, 655. 660, 663 Swafford v. Whipple 385 Sweem v. Steele . . . 58, 149. 152, 406. 436, 437 Sweeney v. Old Colony etc. R. Co., 169, 177 Sweetland v. I. & M. Tel. Co. . . 357, 358 Swett V. Dodge 195 Patrick 38o Sprague 38o Swift V. Dickei-man 549 Harriman 293 .Oliver 630 Symes v Symonds v. Carter 88 469 596 325 531 Tabor v. Hudson 69 Taft V. WilUams 44 Tait V. Sherman 301 Talbot V. Wlupple 600 Talbutt V. Clark llf Tally V. Corrie -344 Tamvaco v. Simpson 1-1 TaiTley v. Blably Ho, 5o2 Tarlton v. McGarley 54, g92 Tarpy v. Shepard 204 Tarrant v. Webb 175 Tavis V. Barger 694 Tavoi-t V. Mitler 427 Taylor v. Cai-penter 584, 587 Colber 322 Dunbar 45o Godfrey 547 GmndT. R. C0....78, 341 Hall 497 Neri 4o Railway 67 Sanford 133 St. Louis 40 The Governor 617 West. etc. R. Co 515 Iviii CASES CITED. PAGE Walker v. Maitlancl 456 Martin 544, 545 Moore..242, 400, 404, 408 Post 134 Swayzee 427 Smith 26 Wilson 25 WalMn V. Hall 115, 116 Wallace v. Clayton 319 Finch 110 Ins. Co 457 MaYorofN.Y.86,90, 91 Saunders 319 Tumlin 242 Wren 268 WaUerstein v. C. Ins. Co 450 WaUis V. Cai-penter 138 Dilley 443 Wabath v. Redfield 521, 598 Walsh V. Miss. Yal. Tr. Co.. 159, 162, 173 Walls V. Johnson 659 Walterv. Post 595 Wetmore 651 Chicago etc. R. Co.... 187 Towers 304 Waltham v. Weaver 114 Walworth v. Pool 338 Wamibold v. Schlicting' 202 Wanamakerv. Bowes. .110, 441, 621 Ward V. Benson 630 Burr 233 N. Y. C. R. Co. 323, 335, 337 Weeks 46 Wardrobe v. Stage Co.. . .70, 91, 108 Ware v. Cartlege 554 Weatimall 268 Warfieldv. Walter 620 Warren v. Cole 271, 619, 620 Doolittle 671 Franklin Ins. Co. 204, 449 Wheeler 58 Warner v. Erie etc. R. Co. ...175, 177 Mathews 665 Robinson 692 Shed 609 Waring v.Ind. F. Ins. Co 460 Warring v. Mason 275 Warwick v. Chase 153 Warwicks v. Foucks 641 Washburn v. Gould 577 Washington v. Parks 443 Planters Bank.. 194 Wash. & N. 0. Tel. Co. v. Hobson 347 Wasson v. Mitchell 616 Waters v. Brown 126, 480 L. Ins. Co 456 Mon.F. Ins. Co 460 Towers 238 PAGE Waterman v. Frank 616 Watson V. Ambergate R. Co. . . . 325 Buch 115 Lisbon Bridge Co 537 Watt V. Potter 630 Watts V. Fraser 113, 114, 551 Sheppard....l38, 153, 154 Weatherby v. Marsh 114 Weaver v. Page 545, 685 Ward 484 Weber v. M. & E. R. Co 467 Webbv. Odell 270 Portland R. Co 159 Rome W. &0. R. Co.. 48 Webber v. Coussey 385 Nicholas 544 Wedonv. Timbril 563 Weeding v. Mason 700 Wehle V. Haviland 624 Weil V. Tyler 211 Welch v. Anthony 671 Board of Supervisors.. 36 Durand 60, 91 Welden v. Buck 208 Wellington v. Downer 509 Welsh V. Lewis 613 Wells, Fargo & Co.v. Van Sickle 251 Wells V. Selwood 256 Sawyer 685 Weltner v. Riggs 232 Wemple v. Stewart 248 Wenman v. Mohawk Ins. Co 195 West v. Cutting 277 Forest 53,472, 482, 534 Martin 164 Pritchard 233 Steamboat Berhn 320 Wentworth 233, 633 Westchester R. Co. v. McElwee 180, 188 Western v. Sharp.. 286, 298, 300, 302, 305 Western Bank v. Sherwood 438 Western College of Medicine v. City of Cleveland 33 Western R. Co. v. McElwee. . . . 325 Western Tr. Co. v. HaU 357 Western Un. Tel. Co. v. Bucha- nan 357, 359 Westena Un. Tel. Co. v. Graham 356, 357 Westfall V. Peacock 278 Weston V. G. T. R. Co 323, 337 Wetherbee v. Green 652, 653 Weymouth v. Chicago etc. R. Co. 6:33, 651, 665 Wharton v. Cunningham 228 Wlialon V. Aldiich. . . .287, 323, 337 Wheat v. Lowe. .,; 481 Wheatleyv. Thorn 128 CASES CITED. lix PAGE Wlieaton v. N. B. & M. R. Co. 381 Peters 581 "Wlieedon v. Fisk 277 Whetlock V. Crew 393 Whetmore v. Coats 282 Wheelock v. Boston & A. R. Co ,-. 159 Wheeler v. City of Cincinnati. . . 33 Nesbit 544, 546, 548 Provident L. Ins. Co. 173 Randall. 67, 272, 568 569 Styles 405 Westport 159, 173 "Worcester 37 Whetstone v. Colby 202 Whipple V. Cumberland Man. Co. 680, 685 Wliipple V. Walpole 25, 77 Whistler v. Brag 209 White V. Boulton 340 Campbell 431, 558 French 442 Suttle 596 Thompkins 211, 232 Webb 311, 656 Yazoo City 40 Whitaker v. Smnner 315, 611 Whitehouse v. Atkinson . . . 648, 655 Whiteside V. Jennings.. 58, 418, 419 Whitbeck v. N. Y. C. R. Co. 536, 594, 653 Whitfield V. Whitfield. 630, 636, 647, 649 Westbrook 545 Wliitford V. Pana. R. Co 501 Whiting V. Davey 371 Whitmore v. South Boston Iron Co 265, 275 Wliitney v. Beckford 648 Elmer 559 Emmet 577 Hill 421 Sweet 77, 87 Whittemore v. Cutter 577, 579 Whitting V. Dewey 370 Whitworth v. Carter 284 Hart 194 Wibert V. N. Y. & E. R. Co 323 Wiesenburgh v. City of Apple- ton 482 Wiger V. Pennsylvania R. Co. . . 177 Wiggetv. Fox 175, 177 Wiggins V. Coffin 685 Wigmore v. Jay 175, 177, 516 Wild V. Hud. R. R. Co.159, 160, 164 Wilde V. Clarkson 151 Wiley V. Belfast 46 Frac. Sch. Dist. No. 1, 298 Fredericks 298 Howard 395 FAGB Wiley V. Keokuk 24, 68, 471 Man-a-to-wah 24, 471 Smitherman 25, 66, 597 Wilcoxon V. Gateway 421 Wilcox V. Iowa Wes. Univ.. 271, 566 Parmelee 325 Wilhelm v. Fimple 419 Wilhoit v. Hancock 557 Wilkins v. Gilmore 597 Wilson V. Brett 312 Fitch 115, 117 Forbes 367 FuUer 566 Goit 549 Graham 301 Halifax 32 Hicks 700 L. & Y. R. Co... 238, 323, 337 Little 314 Mathews 633 Mayor etc 40 McEvoy 443 Middelton 106, 472 Newcastle R. Co 323 Noonan 551 Raybould 424 Spencer 406 Strayhon 421 Y. &M. R. Co 518 Wilson 375, 384 Wilton V. Webster 563 WiUardv. Bridge 317 Pinard 188 Stone 434 Twitchell 368 Willets V. Buffalo etc. R. Co. . . . 516 Williams v. Archer 244 Cameron 484 Chicago Coal Co. . . 303 Clinton 174 Currie 87 Dakin 154 Green 139, 154 Haines 367 Jones 281 Michigan etc. R Co. 173 Mostyn 682 Real 108 Reynolds 234, 238 Rockwell 225 Taylor 547 Vanderbilt 343 Woods 246 Williamson v. Moore 277 Test 386 West. Stage Co.. 24, 688 Willis V. Barnard 563 Forest 126, 475 Ix CASES CITED. PAGE Willitts V. Burgess 375, 376 Winne v. lU. Cent. R. Co. . .320, 329, 341 Kelly 422 Winship v. Enfield 164 Winsmore v. Greenback 3, 562 Winters v. Hannibal etc. R. Co. . 534 Winter v. Henn 563 Wroot 563 Wintlirop v. Carleton 195 Wintz V. Morrison 258, 569 Wintzel v. Robinson 445 Wirting v. Nissley 369 Witherow v. Witherow 254 Withey v. Mumford 373 Woert V. Jenkins 25, 89, 622 Wolf V. Cohen 128 H. Ins. Co 459 Howes 289 Lacy 329 Studebaker 241 Weiner 425 W.U.Tel. Co 359 Wood V. Barber 68 Barney 338 Bell 242 BuUens 201 Davis 609 Morewood 652 M. R. Co 326 U. S 546 Woodbome v. Scarborough 612 Woodbum v. Cogdale 660 Woodbury v. Jones 301 Woodger v. Great W. R. Co. . . . 238 WoodhuU V. Wagner 207 Woodman v. Nottingham 78, 86 Woodson V. Scott 685, 686 Woodward v. Bellamy 431 Powers 264 Thatcher 266, 572 Wooton V. Reed 254 Work V. Kellogg 648 Workman v. Gt. Nor. R. Co. . . . 600 Wormer's Case 135 Worster v. Prop. Can. Br 685 Worthen v. Wilmot. 248 Worthington v. Warrinton 412 Worthy v. Patterson 265, 275 PAGE Wright V. Chamberlain 261 Donnell 622 Falkner 303 Fhnin 571 Gray 9, 52, 591 lU. etc. Tel. Co 160 Maiden 175 Pole 461 Railroad Co 176, 179 Roach 570 Schrceder 551 Stone 680 Wilcox 70 Wyman v. Am. Powder Works. 629 Ballard .385 Cochran 1.53 Wyndham v. Wycourt 561 Yahola etc. Mining Co. v. Isby. . 594 Yale V. GUver 313 Saunders 624 Yarborough v. Nettles 619 Yater v. Mullen 627 Yates V. Dunster 426 Joyce 614 Lansing 616 Reed 116, 485 White 515 Yeatman v. Dempsey 670 Young V. Bennett 551 Spencer 595, 682 Stevens 277 Lloyd 599. 653 P.M. Co 342 Turing 451 W.U.Tel. Co 360 White 139 Willett&Bosw 659 Yokum V. Thomas 368, 394, 396 Youmans v. Padden 172 z Zachery v. Swanger 150 Zehnerv. Dale 232 Zerfing v. Mourer 118, 560 THE LAW OF DAMAGES. CHAPTER I DAMAGES— GENERAL PRINCIPLES— ELEME]S"TS. Section 1. Definition— Maxims—Theory. 4. Mode of Enforcing Damages. 5. Importance of the Subject. 6. Recent Origin of much of the Law of Damages. 7. Difficulty of framing Rules ; their Inadequacy. 8. Rules Arbitrary, do not Secure Indemnity. 9. The most Common Rule Defective. 10. The Maxim, causa proxima.etc. Considered. 11. Policy of Limitation of Liability. 12. Other Rules, Maxims and Doctrines. 13. Line of Limitation Difficult to Determine. 14. Effect of the Common Law Forms of Action. 15. Forms of Action Abolished. 16. Legal Reform. 17. Policy of Statutory Regulations. 18. The Anglo Saxon and Jewish Law. 19. Statutory Provisions for, on Contracts. 20. Circumstances which AflTect the Amount of, etc. 21. Duty of the Injured Party to Protect Himself. 22. Liquidated Damages. 23. Matters in Aggravation and Mitigation. 24. When the Injured Party Contributes, etc. 25. The Motives of the "Wrongdoer. 1 THE LAW OF DAMAGES. Definitions— Maxims— Theory. 26. Controversy as to the Proper Basis of Damages. 27. Law and Fact. 28. Illustrations. 30. Power of the Court. 31. Rules, Artificial and Arbitrary. 32. Elements, Principles and Kules. 33. Treatment of the Subject. § 1. Definition— Maxims— Theory.— Damages is a word that lias been variously defined, as " the estimated reparation in money for detriment or injury sustained";' " every loss or diminution of what is a man's own occasioned by the fault of another";" "the money given to a man by a jury as com- pensation or satisfaction for some injury sustained; as for a battery, for false imprisonment, for slander or for trespass";' "the pecuniary satisfaction which a plaintiff may obtain by success in an action "." The ^phraseology, though somewhat varied in form, is the same in substance, and sufficiently indicates the compensation or indemnity which the law gives an injured party, and which he may recover of the wrongdoer. § 2. It is a familiar maxim of the law that wherever the law gives anything to a person, it also gives a remedy for an injury thereto ; lex semper dahit remedium/ that there is no wrong without a remedy; uhijus ibi remedkiTYi. If a person has a right he must have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment ' "Webster's Dictionary. » Ruth. Inst. b. 1, Ch. 17, § 1, p. 200, Bait. Ed., 1832. 3 2 Black. Com., 438. The reparation or satisfaction which is due from those who are answerable for some damage. Domat. Civ. L., Part 1, b. 3, T. S., § 2. The Statutes of California provide: " Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called dama^'es." Civ. Code Cal., Vol. 2, p. 384, § 3281 (1874). The Code of California makes provision for and furnishes rules for damag-os, in a great variety of cases, which we shall hereafter more particularly notice. See x>ost, § 19, note. * Mayne on Dam., 1. * GENERAL PEINCIPLES. Mode of Enforcing— Importance of Subject— Kecent Origin, etc. of it.^ And it matters not whether the injury is to property, person or reputation, for a breach of contract or a tort, the party injured may recover of the wrongdoer damages there- for. § 3. There is also a theory of the law% that the remedy is commensurate with the injury sustained;" that, "compensa- tion should be equivalent to the injury";' and " that whoever does an injury to another, is liable in damages to the extent of that injury".' But this complete indemnity, as we shall hereafter notice, is seldom fully realized by the injured party. § 4. Mode of Euforciiig Damages.— The mode of enforc- ing damages from a wrongdoer, is by action or suit at law; for which purpose, at common law, various forms of action were furnished; and under these different forms of action, but the same facts, different rules were applied in the measure of damages. § 5. Importance of the Subject. — From the foregoing statements, the great importance of the law of damages will be apparent. The principal, if not the sole, object of every action at law, whether for a breach of contract, or for a tort, is the recovery of damages; and no branch of the law is of more universal use and application.' § 6. Recent Origin of much of the Law of Damages.— There is a familiar theory of the law, that the courts are the interpreters and expounders of the law as it is; but a careful study of the growth and structure of many branches s Per Holt, C. J., in Ashby v. White, 2 Ld. Raymond, 953 ; Willes, C. J., in Winsmore v. Greenbank, Willes, 577. "Damages may be awarded, in a judicial proceedmg-, for detriment resulting after the commencement thereof or certain to result in the future." Civ. Code Cal., p. 384, § 3283. * Rockwell V. Allen, 7 Mass., 254. 7 Shippen, C. J., in Bussy v. Donaldson, 4 DalL, 206. ^ Story, J., in Dexter v. Spear, 4 Mason, 115. 9 3 Black. Com., 118. THE LAW OF DAMAGES. Recent Origin of Much of the Law of Damages. of our jurisprudence, and especially tlie law of damages, must satisfy the inquirer that much of it has its origin, practically, in judicial decisions, which declare not always so much what the law is, as what it ought to be, and shall be. Much of the law of damages has thus originated in com- paratively recent times, and might properly be denominated modern common law; for, although many of its principles may be traced to the ancient civil and common law, a large portion of it is the result of modern adjudications. To this there can be no serious objection. The ancient common law was but a recognition by the courts, of rules principles and maxims, which received their assent and indorsement, as founded injustice and equity, and as applicable to the adjust- ment and security of human rights, and which thereby became a part of the common law. In the language of Sir Mathew Hale, the common law " is not the product of the wisdom of some one man or society of men in any one age, but the counsel, experience and wisdom of many ages of wise and observing men".' And, as we are greatly indebted to the sound judgment and comprehensive views of Anglo Saxon jurists for their approval of those sound maxims and princi- ples, which constitute the great body of the common law, and to Koman sages for the cultured elegance, subtle distinctions* flexible refinements and equitable principles of the civil law, we are not less so to our modern jurists whose broad and liberal culture, enlightened views, comprehensive wisdom, and sound judment, have contributed so much to the structure of our modern, and especially of our American, jurisprudence. For their decisions have reflected the light of ancient times, and been enriched by the civilization, the science and the philosophy of the present time; and ancient rules and maxims have been modified aiid applied to new cases, interests and relations, in the complicated and various pursuits of modern commercial life and act ivity. ' Preface to Rollc's Abridgment. GENERAL PRINCIPLES. Difficulty of Framing Rules— Inadequacy for Indemnity. Our modern jurisprudence thus established, may be fitly compared to a modern palace, whose gorgeous architecture, grace and beauty, have been enhanced by fragments from crumb- ling Gothic structures of the Middle Ages — from once graceful temples of ancient Baalbec and Palmyra, and by relics of exhumed cities of the old world — re-polished and re-fitted into the new edifice, the old material, however, forming but a small portion of the new structure. § 7. Difficulty of framing Rules; their Inadequacy for Indemnity. — It is found a difiicult task to frame rules relating to the measure of damages, based upon principles of justice and equity, that shall be definite, uniform and exact. Most of those now recognized are artificial and arbitrary; hence we find great conflicts, contradictions and fluctuations, in the decisions relating to the same. For instance, the measure of damages on a breach of contract for the pa^anent of money, is the amount agreed to be paid, with interest; the measure of damages on a breach of the covenant of seizin, is the value of the land at the time of the conveyance, and which is pi'esumed to be the amount of the consideration and interest, and the costs of the eviction suit, or in some states the value of the land at the time of the eviction, with the expenses incurred in defense of the suit for the eviction; and for a breach of war- ranty against incumbrances, the damage is the amount paid to remove the same, with interest, and perhaps costs of suit in any reasonable defense against the incumbrance. Now, it often occurs that the principal and interest as damages for the non-payment of money at the time agreed, or the consideration of a deed in case of a breach of the cove- nant of seizin, or the payment of the money advanced to remove an incumbrance, in case of tlie breach of covenant against incumbrances, is an inadequate sum to fully indemnify the party injured. Bj reason of a failure to receive money when due, a person THE LAW OF DAMAGES. KuJes Arbitrary— Do not secure Indemnity— Most Common Eule Defective. may fail to meet his pecuniary engagements, and be required to pay exorbitant rates of interest; or he may fail in business, become a bankrupt, and thereby be reduced from opulence to poverty. And so, in case of a breach of the covenant of seizin, or of title, the vendee may lose valuable improvements he has made on the premises, and thereby suffer losses and pecuniary ruin, for which the common rule of damages affords no adequate indemnity, except, perhaps, in those cases where the rule of the value of the land at the time of the eviction prevails. And, in case of a breach of contract against incumbrances, it may be impossible for the grantee to furnish the money necessary to remove the same, and the expense incurred for valuable improvements may therebj' be lost. § 8 . Rules Arbitrary— Do not secure Indemnity.— These rules cannot be defended as rules of indemnity to the injured party, but only as arbitrary rules of convenience and of policy. Practically, the injured party seldom receives complete indemnity. For, although this is the theory of the law, it fails fully to reach that aimx. This imperfection of the remedy is such that frequently it amounts only to a division of the loss by determining the j^ortion which must be borne by the offending party, and that which must be borne by the injured party .^ This failure of complete justice is another evidence of the imperfection of human institutions, and illustrates the diffi- culty of practically securing more than proximate justice. This will be further shown as we proceed. § 9. The most Common Rule Defective.— Tlie most common rule in relation to damages is, that the immediate, and not the remote, cause of the damage is to be regarded in determining the liability. In other words, a person is respon- sible only when he is the proximate cause of the injury. Causa proxima etnon remota spectatur is the familiar maxim, ' See Domat. Civ. L., b. 3, tit. 5, Sec. 11, § 2. GENERAL PRmCIPLES. The Maxim, Causa Proxima, etc., Considered. so-called, of the law of damages. This, however, is a very indetiiiite and imperfect rule of limitation of liability, or o-uide to indicate the injurious consequence of a wrongful act, for which the wrongdoer is responsible. § 10. The Maxim, Causa Proxima et iioii Remota Spectatur, Considered— Tliis maxim was undoubtedly the result of a conception of the necessity of some rule to limit responsibility in such cases, and the difficulty of drawing an arbitrary line of limitation, so as to embrace more remote con- sequences. Public policy seemed to require some limitation, and apparent necessity limited the liability to the natural, direct or proximate result. To trace remote effects of causes would often be a difficult, if not an impossible, task. It would require an infinite mind. Each cause produces results that in turn, alone or by com- bination with other causes, produces other effects, and so ad infinitum. It is a subject too abstruse and complicated for the human mind.' In the quaint languag e of Lord Bacon : " It ' See opinion, ShaAv, C. J., in Marble v. City of Worcester, 4 Gray, 395. In the case last cited the learned judge remarks: " The whole doctrine of causation, considered in itself metaphysically, is of profound difficulty, if it may not be said of mystery. It was a maxim, we believe of the schoolmen, causa causantis, causa est causanti. And this makes the chain of causation, by successive links, endless. And this, perhaps, in a certain sense, is true. Perhaps no event can occur, which may be considered as insulated and inde- pendent; every event is the effect of some cause or combination of causes, and in its turn becomes the cause of many ensuing consequences, more or less immediate or remote. The law, however, looks to a practical rule, adapted to the rights and duties of aU persons in society, in the common and ordinary concerns of actual and real life, and on account of the difficulty of unraveling a combination of causes and of tracing each result, as a matter of fact, to its true, real and efficient cause, the law has adopted the nile, before stated, of regarding the proximate, and not the remote, cause of the occurrence which is the subject of inquiry." On this subject Mr. Bigelow remarks : "There is no difficulty with those cases in which the chain of causation runs back through a series of (albeit human) machines. The law permits, or rather requires, that the chain should be traced back to him who set in motion the dangerous element. This has been settled ever since Scott v. Shepherd, 3 Wils., 403, was decided. This was the case of the lighted squib thrown by the defendant into the THE LAW OF DAMAGES. Limitation of Liability. were infinite for the law to consider the cause of causes, and their impulsion one upon another; therefore it contenteth itself with the immediate cause and judgeth of acts by that, without looking to any further degree.'" The maxim, injure non remota causa sed proxlma specta- tur^ thus paraphrased by Lord Bacon, although in common use, we shall find to be literally disregarded, as a limita- tion of liability or a rule of damages, especially in torts; that it has acquired a certain technical meaning; and that an understanding of its application can only be had by an examination of the cases. And we shall also find that it has been so modified, qualified and extended, as to include, many times, consequences very remote in fact from the original cause. §11. Policy of a Limitation of Liability .—Both pub- lic policy and necessity seem to demand a limit to liability. If there was no limit of liability in such cases, the responsi- bility would tend to paralyze the activity and energy of those market house on fair- day, which A., B. and C. had caught up convulsively, 9,s it were, from their booths and thrown out, until it at last struck the plaintiff in the eye. * * * "jij^g language of Chief Justice DeGray is often cited : * The throwing of the squib by the defendant, ' said he, ' was an unlawful act at common law; the squib had a natural power and tendency to do mischief indiscriminately, but what mischief, or where it would fall, none could know. The fault, egrediiur e persona, of him who threw the squib. It would naturally produce a defense to be made by every person in danger of being hurt thereby; and no line can be drawn as to the mischief likely to happen to any person in such danger. * * * jjq VLi^n contracts guilt in defending himself ; the second and third man were not guilty of any trespass, but all the injury was done by the prior act of the defendant. » * * j conceive all the acts of throwing the squib must be considered one single act, namely, the act of the defendant, the same as if it had been a, cracker made with gunpowder which had bounded and ro-bounded again and again before it had struck out the plaintiff's eye.' It follows, of course, that none of the intermediate persons could be liable." l)igrlow's Loading Cases, L. T., note, p. GOS, where many cases are cited illustrating the subject. =■ Bac. Max. Reg., 1; Babcock v. Montgomery Co. Mut. Ins. Co., 4 Comst., 326. GENEKAL PEIKCIPLES. other Kules, Maxims, aud Doctrines. engaged in the various pursuits and occupations of life. The general maxim we have considered, bj its letter, limits this to the proximate or immediate result of the wrong; but the courts have bj their construction, as we have noticed, extended it to cover more remote consequences — even those which are part of a " chain of effects " resulting from the wrong.^ This cause, in a judicial sense, may be remote so long as the causal connection is not broken by the interposition of another agency. § 12. Other Rules, Maxims and Doctrines. — There are other rules, maxims and doctrines, which seem to qualify the maxim we have been considering, and extend the liability of the wrongdoer to more remote consequences. Thus, " no WTongdoer can be allowed to apportion or qualify his own wrong ";' " every person who does a wrong is, at least, respon- sible for all the mischievous consequences that may reasonably be expected to result under ordinary circumstances from such misconduct";^ "a man who officiously presumes to interfere with, or make use of, the property of another, without his per- mission, is liable for all the consequences of such interference, whether he intended any injury or not";° "where one does an illegal or mischievous act in such a careless and improper manner that injury to a third person may probably ensue, he is answerable in some form of action for all the consequences which may directly and naturally result from his conduct";^ 3 DeGrey, C. J., in Scott v. Shepherd, 2 Wm. Black. R. 892. See also Vanderburgh v. Truax, 4 Denio, 464; Fent v. Toledo, etc. R. Co., 59 111., 349; Atkinson, etc. R. Co. v. Sanford, 12Kans., 354; 1 HiU on Torts, 85, 131. As to remote Kability of one who is the causa causans, see Mansfield, C. J., in Wadham V. Marlow, 1 H. Black., 439, and note, and cases cited; Broom's Leg. Max., p. 208, et seq. * Tindal, C. J., in Davis v. Gan-ett, 6 Bing., 716. s Pollock, C. B., in Rigby v. Hewitt, 5 Exch., 243. See also Allison v. Chandler, 11 Mich., 542.^ 6 Wright V. Gray, 2 Bay., 464. 7 Vandenburgh v. Truax, supra, and other cases cited in note 3, ante. 10 THE LAW OF DAMAGES. The Line of Limitation Difficult. " where the consequences of an unlawful act are immediate, he who does the unlawful act is considered as the active doer of all that directly follows";' and "where two j^arties 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 the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the con- tract, as the probable result of a breach of it.'" And the general maxim is said not to apply " to any trans- action originally founded in fraud or covin ; for the law will look to the corrupt beginning and consider it as one entire act according to the principle — dolus circuitu non jnirgatui' — fraud is not purged by circuity.'" But sufficient has been presented to sliow the qualification and extension of the general maxim. "We shall hereafter con- sider it more fully when we come to treat of damages in cases of aggravated torts. § 13. The Line of Limitation Dilficult— The subject of causation is too subtle to allow any definite line to be drawn, based upon principle, as a certain and fixed limit of liability in all cases. It is impracticable so to do. But there is a tendency to recognize a rule on this subject of liability for the consequences of a wrong, somewhat flexible and elastic; varying in cases of torts, as we shall have occasion to notice more fully hereafter, with the motives of the wrong(ber, and covering more or less extended and remote consequences, depending on the character, grade, or degree of the wrong done. 8 Burdick v. Worrall, 4 Barb. (N. Y.), 596; 1 HiU. on Torts, 85. 9 Hadlcy v. Baxendale, 9 Exch., 341. » Broom's Leg. Max., 228. * GENERAL PRINCIPLES. 11 Common Law Forms -Forms of Action Abolished. § 14. Effect of the Common Law Forms of Action.— The technicalities of the common law forms of action have prevented the application of uniform rules, as before stated, to the measure of damages. Thus, in the action of trover, the measure of damages was the value of the property at the time of the conversion; while in trespass, not only the value of the property might be recovered, but damages for the taking and deprivation of the use of the same, and even exemplary dama- ges, where the taking was under circumstances of outrage, insult or opj)ression. In assumpsit, the plaintilf could only recover the amount received on a sale of the jDroperty wrong- fully taken or converted by the wrongdoer. The facts in each case might be the same, and still the damages in each action diiferent; nor could these several causes of action be united in one, and the plaintiff claim the benefit of either or all on the same facts, in a single action. § 15. Forms of Action Abolished.— These forms, with all their technicalities, now fortunately prevail in onlj' a few of the States of the Union, and we may reasonably expect that the 'success which has attended the abolition of them, and of the common law modes of procedure in many states, will load others to follow the example thus set, and that in a short time the legal fictions and technicalities connected with actions at common law will be entirely abolished throughout the Union, and instead thereof there will be substituted, as now in many states, a right of action based on the facts of the case, in which the party seeking a remedy in court will only be required to set forth the facts entitling him thereto, and on the proof thereof he will secure the remedy which he may justly claim without the hazard of choosing between the different forms of action the one most beneficial to him, or the liability of loss, arising from a mistake in his choice, owing to the different rules for the measure of damages in the different actions at common law. 12 THE LAW OF DAMAGES. Legal Keform— Statutory Regulation. § 16. Legal Reform. — It is not strictly witliin the scope of tliis treatise to discuss tlie policy of legal reforms, but the author feels justified in making a brief allusion to it. The current of opinion, both in this country and in England, is strongly set in that direction. Since 1848, when New York adopted a code of procedure and abolished the common law forms, other states have followed in rapid succession until nearly all the states and territories have, either wholly or par- tially, adopted codes and discarded the technicalities of the common law forms. In view of this fact, it will be the aim of the author to consider rules an4_ princij^les of damages mainly with reference to facts, and to assist in tlie application of the same to substantial rights, rather than to these facts and rights as affected by the common law forms of action. §17. Policy of Statutory Regulation— It should not be surprising that there is a great want of uniformity of rules of damages in different states and countries, or that there is frequently a wide difference in the verdicts of juries on the same state of facts. The diversity in the rules is largely owing to the fact that these rules, from the necessity of the case, are artificial and arbitrary. They are adopted, frequently, as approximations to justice, and as being desirable for uniformity in the particular locality, and not from the sense of their being based on absolute justice or universal principles. The diversity in verdicts is the result of a great variety of causes — passion, prejudice and the ordinary frailties of human nature, will largely account for the many wide differences. This has been the prolific source of embarrassment and uncer- tainty, and suggests the importance of statutory enactments on the subject. A uniform measure of damages under the same substantial state of facts is desirable, even though tlie rule therefor may be arbitrary. The Tuaximum, if not the minimum amount could, especially in many torts, be fixed in this way with profitable results. GENERAL PRINCIPLES. 13 Anglo Saxon and Jewish Law. "Without such a limit the necessary discretion given to the jury in cases of torts will many times result in trifling or extravagant verdicts, and largely varying ones on the same state of tacts. Their discretion in such cases, as to the amount of damages, is almost unlimited; and the only remedy for excessive verdicts is the power of the court to set them aside where it is evident that they are the result of passion, preju- dice, corruption, partiality or mistake.' A limit to damages might be fixed, especially in actions for injuries to the person or character, and at the same time allow some latitude to the jury in fixing the amount. This has already been accomplished in England and in many of the States of the Union, in reference to injuries resulting in death, the maximum limit in such cases varying from $3,000 to 810,000. If it is desirable thus to limit the damages in cases of injury resulting in death, there would appear to be no reason why it might not be thus limited in case of the loss of a foot, or an arm, or an eye, or graduated according to the degree of disability to perform labor, as in cases of pensions. § 1 8. The Anglo Staxoii and Jewish Law.— According to Palgrave, the early Anglo Saxon Code contained minute provisions fixing the amount of damages for various offenses, such as cutting off" an ear, destroying a tooth, finger, nail, or toe.^ So, also, rude provisions may be found in the Jewish Law fixing the amount of damages for particular injuries;^ and at least a faint recognition of the doctrine of more extended liability, for wrongs willfully done or permitted to be done, or where the injury was the result of gross negligence, or where the wrong was of an aggravated character.'* ' 2 Greenl. Ev., § 255. See also, i^ost, Ch, 37. = Pal. His., 2 Vol., 107. 3 Bible, Exodus, Chap. 21, 22. 4 Bible, Exodus, Chap. 21, Verses 35, 36. 14 THE LAW OF DAMAGES. statutory Provisions. § 1 9. Statutory Provisions for the Amount of Dama- ges on Contracts.— Many states have provided by statute for damages to be be allowed and paid on the non-acceptance or non-payment of bills of exchange. But provisions of this character generally constitute the extent of the statutory pro- visions, of most of the states, in reference to damages on con- tracts. It is probable that the amount of damages for a breach of contract in many other cases might be made, to the great advantage of the public." s Civil Code of Lousiana, 1866. The State of Louisiana is an exception to the general rule. The Code of that State, to a large extent, regulates the subject of damages in actions on contracts. It provides as follows : "Art. 1928. Where the object of the contract is anything but the payment of money, the damages due the creditor for its breach are the amount of loss he has sustained, and the profit of which he has been deprived under the following exceptions and modifications : 1 . Where the debtor has been guilty of no fraud or bad faith, he is liable for such damages as were contemplated or may reasonably be supposed to have entered into the contemplation of the parties at the time of the con- tract. By bad faith in this and the next rule, is not meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will. 2. When the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable for such damages as were or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract; but even where there is fraud the damages cannot exceed this. 3. Although the general rule is that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniaiy loss or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intel- lectual enjoyment, whether in religion, morality or taste, or some conven- ience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule. In the assessment of damages under this rule, as well as in offenses, quasi offenses and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such dama- ges under the above rules as will fully indemnify the creditor, whenever GENEEAL PRINCIPLES. 15 Circumstances which AfEect Amount of Damages. § 20. Circumstances which Affect the Amount of Damages and the Right to Recover.— There are other principles which affect not only the amount of damages but the contract has been broken by the fault, neg-lig^ence or bad faith of the debtor. 4. If the creditor be guilty of any bad faith which retards or prevents the execution of the contract, or if, at the time of making' it, he knew of any facts that must prevent or delay its performance, and concealed them from the debtor, he is not entitled to damages. 5. Where the parties, by their contract, have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. But when the contract is not executed in part, the damages agreed on by the parties may be reduced to the loss really suffered, and the gain of which the party has been deprived, unless there has Ijeen an express agreement that the sum fixed by the contract shall be paid, even on a partial breach of the agreement." [See Ryder v. Thayer, 3 La., 149; Arrowsmith v. Gordon, Id., 105; Porter v. Barrow, Id., 140.] Since the text on the subject of statutory regulation of damages was writ- ten, the author has had access to the Code of California of 1872, as annotated by Haymond and Burch (1874). This Code provides, in great detail, rules for the assessment of damages in a great variety of cases, both on contract and for tort, and fully confirms the views of the author as to the possibility of such provisions. These provisions are mainly a declaration of the com- mon law as to the rules of damages applicable to particular cases, but they are not confined to the generally received doctrines of the common law in the various cases provided for; and they certainly make definite and certain many questions on which there is a diversity of opinion. In this respect California deserves the credit of inaugurating a reform which will, by reason of its palpable advantages and certain favorable practical results, commend it to her sister states; and the time is not distant when this policy will be generally, if not universally, adopted. Among many provisions of the Code of that State relating to damages, maybe found the following: "§3282. Detriment is a loss or harm suffered in person or property." * * " § 3294. In any action for the breach of an obhgation, not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant." "§3300. For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, of which the party in fault had notice at the time of entering into the contract, or at any time before the breach, and while it was in his power to perform the contract upon his part, would 16 THE LAW OF DAMAGES. Circumstances which Affect Amount of Damages. also the right of recov^ery; such as the duty of the injured party to use ordinary efforts and reasonable means to protect himself from the consequences of a wrongful act of another; be likely to result from such breach, or which, in the ordinaiy course of things, would be likely to result therefrom. ' ' § 3301 . No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin. " § 3302. The detriment caused by a breach of an obligation to pay money is deemed to be the amount due by the temis of obligation, with in- terest thereon. " § 3303. For the dishonor of foreign bills of exchange the damages are prescribed by sections 3235, 3237, 3238. " § 3304. The detriment caused by the breach of a covenant of ' seizin', of 'x'ight to convey', of 'warranty', or of ' quiet enjoyment', in a grant of an estate of real property, is deemed to be : 1. The price paid to the grantor; or if the breach is partial only, such proportion of the price as the value of the property afi'ected by the breach bore at the time of the grant to the value of the whole property. 2. Interest thereon for the time during which the grantee derived no benefit from the property, not exceeding five years. 3. Any expenses properly incurred by the covenantee in defending his possession. " § 3305. The detriment caused by a breach of covenant against incum- brances in a grant of an estate in real property, is deemed to be the amount which has been actually expended by the covenantee in extinguishing either the principal or interest thereof, not exceeding in the former case a propor- tion of the price paid to the grantor equivalent to the relative value at the time of the grant of the property affected by the breach, as compared with the whole, or in the latter case interest on a like amount. " § 3306. The detriment caused by the breach of an agreement to convey an estate in real property, is deemed to be the price paid, and the expenses properly incurred in examining the title and peparing the necessary papers, with interest thereon; but adding thereto in case of bad faith the difference between the piice agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach, and the expenses properly incurred in preparing to enter upon the land. " § 3307. The detriment caused by the breach of an agreement to pur- chase an estate in real property is deemed to be the excess, if any, of the amount which would have been due the seller, under the contract, over the value of the land to him. " § 3308. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has not been fully paid in ad- vance, is deemed to be the excess, if any, of the value of the property to the buyer, over the amount which would have been due the seller under the contract, if it had been fulfilled. GE^^EPvAL PRINCIPLES. 17 Circumstances which Affect Amount of Damages. a Stipulation of the parties with reference to the amount of damages; or tlie doing of a wrongful act under circumstances of outrage, aggravation, insult or oppression; or the perform- " § 3309. The detriment caused by the breach of a seller's ag-reement to deliver personal property, the price of which has been fully paid to him in advance, is deemed to be the same as in case of a wrong'ful conversion. " § 3310. The detriment caused by the breach of a buyer's agrreement to accept and pay for personal property, the title to which is vested in him, is deemed to be the contract price. " § 3311 . The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title to which is not vested in him, is deemed to be: 1. If the property has been re-sold, pursuant to section 3049 [relating to the lien of a seller of personal property], the excess, if any, of the amount due from the buyer, under the contract, over the net proceeds of the re-sale; or, 2. If the property has not been re-sold in the manner prescribed by section 3049, the excess, if any, of the amount due from the buyer, under the contract, over the value to the seller, together with the excess, if any, of the expenses properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof, if the buyer had accepted it. " § 3312. The detriment caused by the breach of a warranty of title of personal property sold, is deemed to be the value thereof to the buyer, when he is deprived of its possession, together with any costs which he has become liable to pay in an action brought for the property by the true owner. ' ' § 3313. The detriment caused by the breach of a warranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been complied with, over its actual value at the time. " § 3314. The detriment caused by the breach of a warranty of the fit- ness of an article of personal property for &, particular purpose, is deemed to be that which is defined by the last section, together with a fair compen- sation for the loss incurred by an effort in good faith to use it for such purpose. " § 3315. The detriment caused by the breach of a carrier's obligation to accept freight, messages or passengers, is deemed to be the difference be- tween the amount which he had a right to charge for the cai-riage and the amount which it would be necessary to pay for the same ser\ace when it ought to be performed. " § 3316. The detriment caused by the breach of a earner's obligation to deliver freight, where he has not converted it to his own use, is deemed to be the value thereof at the place and on the day on which it should have been delivered, deducting the freightage to which he would have been en- titled if he had completed the delivery. "§3317. The detriment caused by a carrier's delay in the delivery of 2 18 THE. LAW OF DAMAGES. Circumstances which Affect Amount of Damages. ance of a duty in a grossly negligent manner whereby injury results to another; or material contribution to the injury by the party injured. freight, is deemed to be the depreciation in the intrinsic value of the freight during the delay, and also the depreciation, if any, in the market value thereof, otherwise than by reason of a depreciation in its intrinsic value at the place where it ought to have been delivered, and between the day it ought to have been delivered and the day of its actual delivery. * ' § 3318. The detriment caused by the breach of a warranty of an agent's authority, is deemed to be the amount which could have been recovered and collected from his piincipal, if the warranty had been complied with, and the reasonable expenses of legal proceedings taken, in good faith, to enforce the act of the agent against his principal. " § 3319. The damages for a breach of a promise of marriage rest in the sound discretion of the jury." "§3333. For the breach of an obligation not arising from Contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. " § 3334. The detriment caused by the wrongful occupation of real prop- erty, in cases not embraced in sections 3335, 3344 and 3345 of this Code [the last two sections relating to tenants wrongfully holding over], or sec- tion 1174 of the Code of Civil Procedure [relating to treble damages in certain cases], is deemed to be the value of the use of the property for the time of such occupation, not exceeding five years next preceding the com- mencement of the action or proceeding to enforce the right to damages, and the costs, if any, of recovering the possession." " § 3336. The detriment caused by the wrongful conversion of personal property is presumed to be : 1 . The value of the property at the time of the conversion, with interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the prop- erty at any time between the conversion and the verdict, without interest, at the option of the injured party; and, 2. A fair compensation for the time and money properly expended in pursuit of the property." "§3:340. For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exem- plary damages may be given." " § 3353. In estimating damages the value of the property to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have suf- ficed, with reasonable diligence, for the seller to effect a re-sale." " § 3354. In estimating damages, except as provided by sections 3355 and 3356, the value of property to a buyer or owner thereof, deprived of its pos- GENERAL PRINCIPLES. 19 Duty of Injured Party to Protect Himself. - =5 § 21. Duty of the Injured Party to Protect Himself. — It is the duty of a party to protect himself from the injuri- ons consequences of the wrongful act of another, if he can do session, is deemed to be the price at which he might have bought an equiv- alent thing in the market nearest to the place where the propei-ty ought to have been put into his possession, and at such time after the breach of duty upon which his right to damages is founded, as would suffice with reasonable diUgence for him to make such a purchase. " § 3355. Whe'-e certain property has a peculiar value to a person recov- ering damages fur deprivation thereof, or injury thereto, that may be deemed its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wi-ongdoer. " § 3356. For the pui-pose of estimating damages, the value of a thing in action is presumed to be equal to that of the property to which it entitles its owner. " § 3357. The damages prescribed by this chapter are exclusive of exem- plary damages and interest, except where those are expressly mentioned." " § 3359, Damages must in all cases be reasonable, and where an obli- gation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered. ' ' § 3360. When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages." A valuable and interesting paper presented by David Dudley Field, Esq., the great law reformer, to the Association for the Reform and Codification of the Law of Nations, contains so many valuable suggestions in reference to this subject, in connection with greater safety at sea, and in reference to International Tribunals for the determination of questions in cases of col- lisions, that we cannot resist the desire of here referring to it. He says: "In the present state of the arts of constructing and navigating ships, it may be laid down as a fundamental proposition, that a loss at sea by col- lision, or otherwise, can hardly occur but through negligence. The problem is how to prevent this negligence. To prevent it stricter rules must be pre- scribed, and adequate penalties inflicted for violating them. "What should be these rules, and how should the violation of them be punishable ? These are the questions to be answered , if we would have the navigation of the ocean safe." Among the rules which he suggests for this purpose are : 1 . Government inspection before and during the voyage. 2. Increased responsibility. 3. More stringent rules of navigation. 4. An international tribunal to de- cide q^uestions arising out of collision. Each of these rules, which he thinks -should be established, he maintains by the most con\ancing arguments. And on the subject of the increased 20 THE LAW OF DAMAGES. Duty of Injured Party to Protect Himself. SO hy ordinary effort and care, or at a moderate expense, for which effort and expense he may charge the wrongdoer. And, where by the use of such means he may prevent loss, he can only recover for such loss as could not thus be prevented.' responsibility of the party guilty of negligence, by which loss of life at sea occurs, he says: '•This may be enforced by extending the limits of accountability and the presumptions of negligence. If I am correct in my theory, that in the pres- ent state of the arts employed in buildmg, equipping and working ships, no loss can occur without negligence somewhere, there is good reason for de- claring that such is the presumption, and the only question is how to fix or apportion the responsibility of the negligence. The builder is, in the first instance, responsible for the faulty construction of the ship, the iron worker for the faulty construction of the engines and boilers, and the master, en- gineers and mariners for the faulty navigation; but a secondary responsi- bility attaches to the employer of the builder and iron worker, and to the hirer of the ship's company, and this secondaiy responsibility centers in one person, the owner of the ship. He is the one most easily found, and he has given a pledge for his responsibility in the property of liis vessel. For these reasons he should be presumed negligent and held responsible for all losses until he excuses himself by proof that he had exercised the highest degree of diligence in respect to the employment of builders, iron workers and navi- gators. When he shows that, he shifts the burden of responsibility from himself upon some of the persons employed, and then they should be held to an accountabihty as strict as his would have been; and for the reason that they are not so easily found, and have given no pledges for their fidelity, registration should be required of all concerned in the construction and equipment, and some security for their good conduct. '• As to the limits of responsibility, there appears to be no reason why the rule of law now established in many of our states, providing for the recovery, by surviving relatives, of damages for wrongful death, should not be ex- tended to losses at sea. If these suggestions should find favor, a disaster would be sure to bring unpleasant consequences upon those who have caused it." Cent. L. J., 1875, pp. 698, 699. Caution, however, should be exercised that the maximum amount of damages recoverable for a wrong be not fixed too low, or we might unfor- tunately witness the repetition of the practice of the young Roman nobleman mentioned by Gibbon, who ran along the street, striking every one he met upon the cheek, while his slave followed, making a legal tender of the small amount of damages fixed by law therefor. Dec. and Fall of Rom. Emp., vol. iv., 360. ' .Jones v. Patten, 3 Ind., 107; The .Cincinnati & Chic. R. Co. v. Rogers, 24 Id., 103. See also, 2}ost, Ch. 8. GENEKAL PRINCIPLES. 21 Liquidation— Aggravation and Mitigation— Contributory Act. § 22. Liquidation of Damages.— Where the parties to a contract have stipuhited for the amount of damages, which they may do in all cases, this amount, in the absence of fraud by either party, will fix the damages whether the amount thus agreed upon be in fact more or less than the actual damages sustained. And, although the courts will not favor penalties, nor allow stipulated damages to be used as a means to evade the usury laws, nor allow damages on a contract for the payment of money beyond the principal and interest, they will regard the fair and reasonable stipulation of parties in respect to damages on ordinary contracts, which freqiiently cannot otherwise be well determined.^ § 23. Matters in Aggravation and Mitigation — AYhere the wrongful act, if a tort, is wanton and malicious, and attended with circumstances of insult, outrage or oppression, the party injured is not limited to the rule of actual compen- sation; but he may recover in addition thereto such exemplary or punitive damages as the jury in their discretion may give, and as, under the circumstances of the case, may be warranted. And, where the injury is the result of fraud or gross negli- gence, the injured party may also recover, not only for the remote consequences of the wrong, actual damages, but be allowed such punitive or exemplary damages as not only to punish in some degree the wrongdoer, but also to have a salu- tary influence in preventing others from perpetrating similar wrongs. Certain matters may also be shown in mitigation of damages, which we shall hereafter consider.' § 24. When the Party Injured Contributes Thereto. — When the plaintiff, in some material manner, contributes to the injury, it is sufficient to defeat the right of recovery. ' Story Eq. Juris., § 318; Gower v. Carter & Shattuck, 3 la., 244; Foley V. McKegan, 4 Id., 1. See also, post, Ch. 9, for a full consideration of the law on this subject. 3 See, 2)ost, Chaps. 6 and 7, for a full statement of the law and authorities on these subjects. 22 THE LAW OF DAMAGES. Motives of Wrongdoer— Proper Basis of Damages. If some part of the loss is attributable to the contributory act or negligence of the plaintiff, and a portion not, he can only recover for such loss as accrued without his fault; for no one can be permitted to derive an advantage from his own wrong. And, where the wrong is equal, the condition of the defendant is the best, and the plaintiff cannot recover. The defendant may always show, in defense of an action, that the plaintiff brought, or materially contributed to bring, the injury upon himself.* § 25. The Motives of the Wrongdoer.— The good or bad motives of the wrongdoer, especially in torts, has an influ- ence on the amount of damages that may be recovered of him. Thus, where one does an injury without any evil intent, as by mistake, or throuoch the mere want of ordinarv care, no more damages can be recovered than mere compensation for the injury, nor can this compensation extend beyond the more immediate consequences; but, as we have remarked, where the wrong is willful and malicious, or arises from such gross negligence as to warrant the imputation of malice, then the injured party may not only recover those pecuniary losses resulting from even more remote consequences of the wrongful act, but also exemplary or punitive damages.^ § 26. Controversy as to the Proper Basis of Dama- ges. — Much controversy has arisen in reference to the true basis of the law of damages, in cases of malicious and aggra- vated torts. On one side, it is maintained that the true prin- ciple in all cases is that of compensation; that this principle is adequate in every case to furnish a remedy for even the most aggravated wrongs; that proper allowance for insult, outrage or indignity — for suffering of mind as well as pain to *Frazer v. Berkley, 7 Car. & Payne, 621; Robinson v. Rupert, 23 Pa. St., 554; Evans v. Matson, 56 Id., 54; Prentice v. Shaw, 56 Me., 427. See also, x>ost^ Ch. 10. 5 See. post, §§ 63, 64. But see §§ 73, 74, 75, 76, 77, and notes. GENERAL PRINCIPLES. Proper Basis of Damages. the body, is entirely consistent with that principle — and that they are proper as elements in estimating damages in accord- ance therewith; that the plaintiff should not be allowed to recover more damages than the loss he has sustained; and that the uncontrolled discretion of the jury in such cases, to allow what are called exemplary or j^unitive damages, without regard to actual loss, is at variance with the general principles of the law. On the other hand, it is claimed that the jury, in such cases, should not only be allowed to assess such damages as directly result from the wrong, including losses more or less remote from the injurious cause, and for which a pecuniary estimate can be made; but, in addition thereto, in aggravated cases, such further damages in their discretion, as will furnish an example to others and punish the wrongdoer; that many of the elements considered proper under the other rule, in estimating damages, such as suffering of mind and pain to the body, are not really capable of any definite proof, or of any certain pecuniary estimate; that practically the same result is attained by either method; that for many wrongs there would be no punishment, except such as is imposed by the jury in this Avay; that the interests of society are thereby promoted, and that this doctrine is sustained by much re- spectable, if not the decided weight of, authority. The former propositions have been ably maintained by Professor Greenleaf, and the latter by Mr. Sedgwick, both distinguished for their great learning and ability, and re- nowned as authors.' Whatever ought to be the rule in such cases, it seems settled, at least by the weight of authority, that the jury may, in aggravated cases of tort, allow exemplary or punitive damages.* I 2 Greenlf. on Ev., §§ 266, 267; Sedg. on Dam., 3 Ed., appendix and note. ' See Ch. 6, where may be found a full citation of authorities. This 24 THE LAW OF DAMAGES. Law and Fact. § 27. Law and Fact- — It is a recognized doctrine of the law that questions of law should be determined by the court, and questions of fact by the jury; and the courts now hold great control over the jury on the question of damages, by instructions as to the proper principles and rules to be ob- served in assessing them, and as to the essential elements of the action to recover them, as questions of law, although it appears that the earlier practice was to leave the whole matter, with little or no restraint, to the discretion of the jury. Except in cases proper for assessing exemplary damages, the doctrine has been distinctly recognized in nearly every State of the Union : Alabama.— Mitchell v. Billingley, 17 Ala., 391; Ivey v. McQueen, 17 Id., 409; Parker v. Mise, 27 Id., 480; Devaughn v. Heath, 37 Id., 395. Arkansas. — Clark v. Bales, 15 Ark., 452. Connecticut. — Lindsley v. Bushnell, 15 Conn., 225; Huntley v. Bacon, 15 Id., 273; Dibble v. Morris, 26 Id., 426; St. Peters Church v. Beach, 26 Id., 365; Bartram y. Stone, 31 Id., 162. California. — Nightengale v. Scammell. 18 Cal., 315; Dorsey v. Manlove, 14 Cal., 554; and it has become a part of the Statute law of that State. See, ante. § 19, note. Delaivare. — Steamboat Co. v. Whillden. 4 Harring., 228; Jefferson v. Adams, 4 Id.. 321; Bonsall v. McKay, 1 Houston, 520. Georgia. — The doctrine of actual compensation seems to be adhered to in Georgia, Smith v. Overby, 3 Geo., 241. Illinois. — The doctrine of the text is followed in, Grable v. Margrave, 3 Scam.. 372; McNamara v. King. 2 Gillm., 432; Hawke v. Ridgeway, 33 III, 473; Chicago, etc. R. Co. v. Flagg, 43 Id., 364; Peoria Bridge Ass. v. Loomis, 20 Id., 235; Foster v. Nichols, 28 Id., 486; Reeder v. Purdy, 48 Id., 261; Reno v. Wilson, 49 Id., 95; Johnson v. Camp, 51 Id., 219; Roth V. Smith, 54 Id., 4:31. Iowa. — Hendrickson v. Kingsbury, 21 la., 379; Plummerv. Harbut, 3 Id., 308; Cochran v. Miller, 13 Id., 128, which was an action for damages against a physician for malpractice; Denslow v. Vanhorn, 16 Id., 478; Williamson V. Western Stage Co., 24 Id., 171; Garland v. Wholeham, 26, Id., 185. Indiana. — Anthony v. Gilbert, 4 Blackf., 348; Guard v. Risk, 11 Ind., 156; Millison v. Hock, 17 Id., 227; Little v. Tingle, 26 Id., 168. Kentucky. — Jennings v. Maddox, 8 B. Mon., 430; Childs v. Drake. 2 Met., 146; Bronson v. Green, 2 Duvall, 234; Kentuclcy, etc. R. Co. v. DUls, 2 Bush., 593. A'ansa-s. —Wiley v. Keokuk, 6 Kans., 94; Wiley v. Man-a-to-wah. Id., Ill; Leavenworth, etc. R. Co. v. Rice, 10 Id.. 466. Mississippi. — Against a R. R. Co. for wUlful wrong-doing, or the gross GENERAL PRINCIPLES. 25 Illustrations. amount of damages, even in tort, is subject to rules, the observ- ance of which is enjoined by the courts; and for breaches of contracts, as well as in many cases of torts, it is frequently laro-ely, if not entirely, a mere matter of law and of computa- tion. Hence, the question of damages is ordinarily one of law and fact. The rules to be applied to the facts and the essential elements of the action, are questions of law to be determined by the court. The facts necessary to authorize a recovery under the law as given, and the amount to which the plaintifl' may be entitled under the law and the facts, must be found by the jury. § 28. Illustrations.— Thus, in an action for damages for the conversion of property, if the claim is controverted, two distinct questions of law and of fact are presented. The negligence of an employe, Chappin v. New Orleans R. Co., 38 Miss., 242; and the same doctrine was held in New Orleans, etc. R. Co. v. Bailey, 40 Id., 395. i»/«r//?aMfZ.— Baltimore, etc. R. Co. v. Blocker, 27 Md., 277. 3/tssown.— Freidenheit v. Edmunson, 36 Mo., 226; Buckley v. Knapp, 48 Id., 152; Corwin v. Walton, 18 Id., 71; McKeon v. Citizens' R. Co., 42 Id.', 79. ' Maine.— lu trespass vi et armis. Pike v. Billing, 48 Me., 539. Massachusetts.— The rule of actual compensation is adhered to in this State, even in cases of aggravated torts. Barnard v. Poor, 21 Pick., 378; Austin V. Wilson, 4 Cush., 273. Michigan.— The doctrine of the text sustained, Hyatt v. Adams, 16 Mich., 180. ' Minnesota.— Fox v. Stevens, 13 Minn., 272; Jones v. Rahilly, 16 Id., 320. AKoi-th Carolina.— Wiley V. Smitherman, 8 Ired., 236; Gihreath v. AUen, 10 Id.. 67. New rorA\— TiUotson v. Cheetham, 3 Johns., 56; Woeii v. Jenkins, 14 Id., 352 ; King v. Root, 4 Wend., 513 ; Brizsee v. Maybee, 21 Id., 144; in an action of replevin. Tift v. Culver, 3 Hill., 180; Lipe v. Eisenlerd, 32 N. Y., 229; Kendall v. Stone, 1 Seld., 14; Walker v. Wilson, 8 Bosw., 586. New Ham2)shire.—Whipi,le v. Wallpole, 10 N. H., 130; Perkins v. Towle, 43 Id., 220. But see Fay v. Parker, 53 Id., 342. New Jersey.— Ackerson v. Erie R. Co., 3 Vroom, 254. 07wo.— Against a Railroad Co. for gross negligence, Atlantic, etc., R. Co. V. Dunn, 19 Ohio St., 162; Roberts v. Mason, 10 Id., 277. Pennsylvania.— SommeiY. Wilt, 4 S. & R., 19; McBride v. McLaughlin, 5 26 THE LAW OF DAMAGES. Illustrations. questions of law relate to what in law is a conversion, and the proj^er rule for estimating the amount of damages. The ques- tions of fact for the jury are: first, as to whether the acts done by the defendant constitute a conversion inlaw; and secondly, if so found, the amount of damages which, under the rules of law, should be assessed. In regard to the amount of damages, the court would in- struct the jury that it should be the value of the property at the time of the conversion, with interest, and perhaps expen- ses incurred in searching for the same, where search was made; or, the highest value of the property between the conversion and the commencement of the suit, or the time of trial, with expenses, etc., as one or the other rule might be regarded as the proper one by the court. It would be the duty of the jury to observe the rules of law thus given; the control of the court over the jury for a disre- gard of the law thus given, being enforced by its power to set aside the verdict and grant a new trial. § 29. So, in an action for a sum claimed to be due on a promissory note: if there should be a denial of the execution of the same, or an admission of the execution, but a plea of payment in whole of in part, which is denied, the jury would Watts., 375; Phillips v. Lawrence, 6 W. & S.. 154; Nagle v. Mallison, 34 Pa. St., 48; Peunsylvania R. Co. v. Books, 57 Id., 339. South Carolina. — Spikes v. English, 4 Strobh., 34; Greenville, etc. R. Co. V. Partlow, 14 Rich. L., 237. Texas.— Gordon v. Jones, 27 Tex., 620. Tennessee. — Byram v. McGuire, 3 Head., 530; also recognized in Jones v. Turpin, 6 Heisk., 181 (1871). Vermont. — Nye v. Merriman, 35 Vt., 438. TTiscojism.— Picket v. Crook, 20 Wis., 358; Morley v. Dunbar, 24 Id., 183; Hooker v. Newton, Id., 292. And the doctrine is fully and distinctly asserted by the United States Courts. Day v. Woodworth, 13 How., 363 (1851); The Yankee v. Gallagher, 1 McCall, 467 (1859); Philadelphia, etc. R. Co. v. Quigley, 21 How., 202 (1858); Gould V. Christianson, Blatchf. & H., 507; Walker v. Smith, 1 Wash. C. C, 153 (1804). GENERAL PRINCIPLES. 27 Power of Court— Rules, Artificial and Arbitrary. find on these issues as questions of fact; and these being found in favor of the plaintiff, they would, under the instructions of the court, as to the proper measure of damages in such cases, calculate the amount due on the note as the amount of dama- ges; or, in case of part payment, such amount, less the amount of payment, would be the damages. § 30. Power of the Court. — It will be seen that what- ever may have been the earlier practice of the courts, they now have, to a large extent, a restraining and controlling power over juries, the only qualification being in cases of aggravated torts, where exemplary damages are proper. And even in tliose cases, although there are no definite rules to control the amount which they may assess, the court still has to some extent, control of the verdict, by its power to set it aside where it is evident from the amount or otherwise that the jury were influenced by passion or prejudice, or where the verdict is the result of a mistake of the law or the facts in the case.' § 31. Rules, Artificial and Arbitrary. — Amidst the conflicting decisions in reference to rules of damages, on the same facts, the diSiculty, if not impossibility, of deducing uniform, exact and just rules from them, will be apparent; and the nature of the subject is such that general reasoning and principles will not entirely relieve it of embarrassment. For, in many instances, in the verj' nature of things, they must be more or less artificial and arbitrary. But the tendency of the decisions on many questions heretofore conflicting, is towards harmony and unity; and after a survey of this field of discord and conflict, and a study of the principles and elements of the subject, that are recognized by reason and the weight of authority, we present the following classification and state- ment of elements, rules and principles, relating thereto, as the most clear, concise, and definite, which the present state of the law enables us to offer: » See, post, Ch. 37. 28 THE LAW OF DAMAGES. Elements, Principles, and Rules. §32. Elements, Principles and Rules.— 1. It is an essential element in an action for damages that the plaintiff have a legal right, or interest, subject to, or susceptible of, damage. 2. That to such right, or interest, there be an injury by the defendant, cognizable by law. 3. The general principle, recognized in the measure of damages, is that of compensation. 4. The general rule of damages is, that the injured party may recover for all losses sustained of which the injury is the proximate cause; such as the principal and interest due on the failure to pay money according to contract; the value of prop- erty conveyed on a breach of the covenant for title; the value of property on the failure to deliver it when sold and paid for; the value of property converted, and the amount of loss sus- tained by an injury to the person, reputation, or property of another. But this rule, in cases of torts, is extended to cover losses more or less remote, which directly and naturally result from the wrong, depending upon the motives of the wrong- doer, or the character or degree of the wrong. 5. In cases of officious interference with property, willful wrongs, frauds, or gross negligence, the liability may extend to remote effects and losses, even to those that are the result of a natural chain of effects, produced and caused by the original wrong. 6. For torts, under circumstances of great aggravation, the jury, in addition to such actual damages as they may iind the injured party entitled to under the foregoing rules, may further allow, for an example to others and a punishment of the wrongdoer, exemplary or punitive damages.'' » Although the author has felt compelled, from the preponderance of authority, to thus state the rule, he would also express his convictions that the adoption of the doctrine was a departure from the true principles of the law of damages and of pubhc policy, and a flaw in the structure of our jurisprudence, involving much controversy, and resulting in confusion and uncertainty. Nor is the doctrine by any means so deeply rooted, in the common law, as to be placed beyond the bounds of controversy. See, post, §§ 73, 74, 75, 76, 77, and notes. GENERAL PRINCIPLES. 29 Elements, Principles, and Rules. 7. In cases of torts the defendant may show, in mitigation of damages, that the tortious act was without malice; and especially in actions for injuries to the person, or reputation, he may show any aggravating circumstances on the part of the injured party, tending to provoke the injury. 8. It is the duty of a person to use ordinary and reasona- ble care and means to prevent an injury, and the consequences of it, and he can only recover damages for such losses as could not, by such care and means, be avoided, 9. Where the parties have stipulated as to the amount of damages, that will ordinarily hx the amount recoverable, whether the actual damages be greater or less than the amount thus fixed. 10. If a party, in any material manner, contributes to the injury, he cannot recover for such losses as result from his own, or from his own and another's fault. 11. In an action on a contract the plaintiff should recover any actual damages, sustained by a breach thereof, that may fairly and reasonably be considered as naturally arising there- from, or such as was contemplated, or that may reasonably be presumed to have been in the contemplation of the parties, at the time of the contract, as the probable result of a breach of it.' 3' Interest may be referred to as an element of damaores. As a general rule, where the right to recover damages is certain, or where they are capa- ble of being made certain by calculation, and a right to recover them is vested in the party on a certain day, he is also entitled to recover interest thereon from that day, except during such period as the debtor is prevented from paying by law, or the act of the creditor. Dana v. Fiedler, 12 N. Y., 40; Living v. Miller, 11 Id., 406; BrinkerhoofF v. Phelps. 24 Barb., 100; Fitzgerald V. Caldwell, 2 Dallas, 215; annotated Civil Code Cal., (Raymond & Burch, 1874), Vol. 2, p. 385, and note; and this rule is applied to wrong- ful injuries. Id. See, also, Richmond v. The Dubuque etc. R. Co., 33 la., 422, and cases there cited; Andrews v. Durant, 18 N. Y., 496; Jackson v. Wood, 24 Wend., 443. 30 THE LAW OF DAMAGES. Treatment of the Subject Indicated. § 33. Treatment of the Subject Indicated—The chap- ters immediately succeeding will be devoted to an examination and illustration of the foregoing elements, principles and rules, relating to and affecting damages, after which we shall con- sider the application of the same in actions for breaches of contracts in various cases, and finally in various actions for torts. INTEREST OF PLAINTIFF. 31 Essential Element of an Action. OHAPTEE II OF THE RIGHT OR IN;;rEREST OF THE PLAINTIFF. Section 34. Essential Element of an Action. 35. Instances — Damnum Absque Injuria. 37. Non-Exercise of Powers by Municipal Corporations 38. Other Cases where a Municipal Corporation is not Xiiable. 39. Publication of Uncalled-for Letters. 40. Where no Eight Exists in Other Cases. § 34. Essential Element of an Action.— The plaintiff can sustain no legal damage, unless lie has a riglit, or interest, subject to, or susceptible of, damage or injury; and it is an essential element of an action for damages, that the plaintiff have such a right ^r interest. It is not sufficient that an unauthorized act, or injury, be done; but the plaintiff must sustain a loss bj the wrong. This he cannot suffer unless he has a legal interest or right that can be impaired ; and with- out this, where there is injuria, it is injuria sine damno and the party is without remedy. The plaintiff must show not only injuria^ but an invasion of some right or interest, which he is entitled to enjoy, to the exclusion of the defendant and every other person. And if the wrong consists in non- performance, or mis-performance, of a duty, it is essential for the plaintiff to show that he was entitled to the performance of the duty, and not some other party, otherwise he can re- cover no damages. No one can recover damages unless some right is infringed. 32 THE LxVW OF DAMAGES. Damnum Absque Injuria-Municlpal Corporations. § 35. Instances— Damnum Absque Injuria.— Thus, the defendant is not responsible for obstructing the liglits of the owner of adjoining premises, unless they are ancient lights, to which the owner of the adjoining premises may have acquired a right by prescription, or otherwise.' So, at common law, if a person built a house on th^ edge of his land, and the pro- prietor of the adjoining land, within twenty years, digs on his own lands so near the house that it tails down, as the owner of the house had acquired thereby no right to the support of the adjoining land by prescription,»he had no rights in that respect to be injured, and is without remedy. It is damnum absque injuria? § 36. So, it was held that a statute, which required the overseers of highways to repair and keep in order the highways within their road districts, did not impose an absolute duty so as to make the overseers liable in a civil action for the non- performance of it.' § 37. Non-Exercise of Powers by Municipal Corpo- rations.— So, the power which may be possessed by munici- pal corporations, to act through their agents in respect to any jDarticular matter, such as to provide sanit*y regulations, and for the arrest of infectious diseases, or of conflagrations, does not make them liable for negligence in not executing these powers. Thus, in an action in Iowa, against a city for neglecting to take precautions to prevent the spread of small pox whereby the plaintiff was exposed to the contagion, and communicated the disease to his two children who died thereof, it was held, » Malian v. Brown, 13 Wend., 261. = Brown v. Robins, 4 H. & N., 186; Strogran v. Knowles, 6 Id., 4-J-4; Dodd V. Holme, 1 A. & E., 493; Backhouse v. Bononi, 9 H. of L. Cas., 503; s. c.', E. B. & E., 422, (96 E. C. L. R.); Lasala v. Holbrook, 4 Paige (N. Y.), 169. 3 Bartlett v. Crozier, 17 John., 438; Garlinghouse v. Jacobs, 29 N. Y., 297. See, also, Wilson v. Halifax, Law R., 3 Exch., 114; Burnett v. New Orleans, 14 La. An., 120; Smoot v. Wetumpka, 24 Ala., 112; Sopor v. Henry Co., 26 la , 264. INTEEEST OF PLAINTIFF. 33 Municipal Corporations. that, altliougli the oreneral laws of the state, rekting to cities, constituted the major and council a board of health, with power to make " regulations in relation to cleansing the streets, alleys, and drains of the city or town; in relation to commu- nication with houses where there is any infectious disease; to establish pest-houses or hospitals; and, when deemed expe- dient and necessar}' to prevent the spread of any contagious disease, to remove to said pest-house or hospital any person sick with the Asiatic or malignant cholera, or other malio-. nant or infections disease"; the neglect to exercise such powers, or make such regulations, would not render the city liable for any losses resulting therefrom to a citizen. Day, J., in delivering the opinion of the court in this case, remarks: "The principle w^hich would hold the defendant liable for the negligent acts here complained of would compel a city to respond in damages for the neglect of its police to suppress a riot, the failure of its firemen to arrest a conflagra- tion, and the negligence of its physician in prescribing for a patient. It is impossible to conceive of the endless complica- tions and embarrassments which such a doctrine would in- volve, and the extent to which the public interests would thereby suffer. It is safe to assume that, if such were recog- nized as the law, no town would voluntarily assume corporate functions, and every industrial and commercial interest would become paralyzed. The true doctrine is that the powers con- ferred, in the sections we have been considering, are of a leg- islative and governmental nature, for a defective execution of which the city cannot be held liable. In discharging these legislative functions, the city acts as a quasi sovereignty and is not responsible for a neglect or non-performance of its offi- cers or agents."* 4 Og-g V. The City of Lansing, 35 la., 495. See, also, Wheeler v. City of Cincinnati, 19 Ohio St., 19; Brinkmeyer v. The City of Evansville, 29 Ind., 187; Western College of Medicine v. City of Cleveland, 12 Ohio St., 375; Smootv. Wetumpka, 24 Ala., 112. 3 34 THE LAW OF DAMAGES. Where Municipal Corporation not Liable -Uncalled-for Letters. And where an ordinance of a citj provided for the opening of a street through the hinds of two parties, and one of them obtained a temporary injunction restraining the same; but on a final hearing it was dissolved, and the street was opened, and a suit was brought on the injunction bond by the other party, claimino- damages thereon on account of a depreciation in the value of the land and of loss sustained by the delay in the opening of the street, caused by the injunction, and loss thereby of sales of lots thereon, which he might have made, it was held, that the injunction operated to deprive him of no legal right which the bond was intended to protect — that he had acquired no fprivilege or right to the use of the street, and that he had sustained no injury for which he could claim redress by an action on the bond/ § 38. Other Cases where a Municipal Corporation is not Liable. — Nor is a municipal corporation ordinarily liable for damage sustained by the owners of proj)erty adjoining streets, by reason of grading, or otherwise improving the same, under a power so to do conferred by the charter of the city or by statute. Where land is condemned for public purposes compensation tlierefor may be recovered ; but where a party suffers injury by an excavation, or a filling of the street, according to a grade established by authority, no damage can be recovered, if the work is carefully and skillfully done; it is damnum absque injuria. Kor can a party recover conse- quential damages by reason of the establishing of a highway/ § 39. Publication of Uncalled-for Letters.— An action was brought by the publishers of a daily paper at Rochester, N. Y., against the postmaster of that city, in which the plain- tiffs claimed that they were the publishers of a paper having s Stewart v. State of Maryland, 20 Md.. 97. 6 Shearman & Redf. on Neg.. §§ 129, 370; Radcliff v. Brooklyn. 4 N. Y., 195; Lanebarv. St. Louis, 15 Mo., GIO; Larkin v. Saginaw, 11 Mich., 88; Logansport v. Wright, 2-5 Ind., 512; Roberts v. Chicago, 26 111., 249; Schattner v. The City of Kansas, 53 Mo., 162. INTEREST OF PLAINTIFF. 35 Uncalled-for Letters. the largest circulation of any published in that city, and that it was the duty of the defendant, under an Act of Con- gress, to advertise uncalled-for letters in their paper and that the defendant had refused so to do, whereby they had been deprived of profits which would otherwise have accrued to them therefrom. There was a demurrer to the plaintiffs' pleading, on the ground " that it did not appear that the plaintiffs had any vested right in the advertising of the letters uncalled-for in the postoffice at Rochester, nor that the duty on the part of the defendant to advertise the letters uncalled- for at the postoffice at Rochester, was a duty to the plaintiffs, or in the due performance of which the plaintiffs had any exclusive interest or right." The demurrer was sustained. The court, on appeal, held that there was no foundation whatever for an action for such a cause; that wlienever an action is brought for a breach of duty, the party bringing it must show that he had an interest in the performance of the duty, and that the duty was imposed for his benefit; that when the duty is imposed for the benefit of another, or for the public benefit, and his own advantage is merely incidental and no part of the design of the statute, no such right is crea- ted as forms the subject of an action; that the Act of Congress, providing for the advertising of uncalled-for letters, was not passed to confer profitable employment upon publishers, but to benefit persons likely to receive communications through the postoffice; that the statute secures to publishers no fixed and absolute right, and imposes on them no duty, and that they have no such interest as gives them a right of action under the statute.' The same doctrine is further illustrated by a recent case in Iowa. Thus, the statute in that state provided that the boards of supervisors, of the several counties, should select two news- papers having the largest circulation, in which to publish the 7 Opinion by Jolinson, J., in Strong v. Campbell, 11 Barb., (N. Y.), 135. 36 THE LAW OF DAMAGES. Where no right exists in other Cases. proceedings of the board, and the laws of the general assembly of the state. It was held, nnder this statute, that the proprie- tor of a newspaper had no such private or personal interest in the publication of such laws and proceedings, as that he could, in his own name, maintain an action to compel the board by mandamus to order such publication in his paper." § 40 . Where no Right Exists in other Cases. —Where, by the working of a mine or the digging of a well on the lands of the owner, the subterranean veins and channels which supply the well of another on adjoining lands are cut off, and the supply of water to the latter thus prevented, this is damnum absque injuria^ and affords no ground for dama- ges.' So, where a stream is caused by artificial means and is an artificial stream, and the works at its source which caused it are suspended, whereby the supply of water below is cut off and ceases; the party benefitted by the flow through his lands can maintain no action against the party thus causing it's suspension, as he has no legal right to the water thus suspended.' So, a person cannot maintain an action for damages on ac- count of animals /erfls naturcB^ or for an entry upon his lands from necessity, as where a traveler in a highway is prevented from proceeding therein, by reason of an overflow of water or drifts of snow, or the like, and he enters upon the adjoining lands to avoid the obstruction,^ or for the pulling down of a 8 Welch V. The Board of Supervisors, etc., 23 la., 199. See, also, Smith V. Yorara, 37 Id., 89. 9 Acton V. Blundell, 12 M. & W., 324; Chasemore v. Richards, 2 H. & N., 168. S. C; 7 H. L. Cas., 349; South Shields Water Works Co. v. Cookson, 15 L.J. Exch., 315. ■ Gavel V. Martyn, 19 C. B. N. S., 732, (115 E. C. L. R.) ; Nutall v. BraceweU, L. R., 2 Ex., 1. » 2 Black. Com., 389; Gellett v. Mason, 7 Johns., 16; 1 Hill, on Torts, 479. 482. 3 Absorv. French, 2 Show., 28; Daws v. Hawkins, 8 C. B. N. S., 848, 856, (98 E. C. L. R.); Mansfied, C. J., in Taylor v. Whitehead, 2 Dough, 749; Ellenborouffh, C. J., in Bullard v. Harrison, 4 Mr& S., 393. INTEREST OF PLAINTIFF. 37 Where no right exists in other Cases. house, when necessary, to arrest the progress of a fire/ In such cases the maxim salus popioli suprema lex applies and it is damnum absque injuria. So, a person has a right to carry off the surface water from his land, by filling wet or marsliy places, and if damage is thereby sustained by the adjoining owner it is damnum alsque injuria!" 4 Russell V. Mayor of New York, 2 Den. (N. Y.), 461; The Mayor, etc. v. Lord, 17 Wend., 285; 2 Kent's Com., 333; Field v. City of Des Moines, 39 la., 575. 5 Goodale v. Tuttle, 29 N. Y., 459; Wheeler v. Worcester, 10 Allen, 591; Gannon v. Hargadon, Id., 106; Dickinson v. Worcester, 7 Id., 19; Delhi v. Youmans, 50 Barb., 316; Livingston v. McDonald, 21 la., 160; Flagg v. Worcester, 13 Gray, 601 ; City Council of Montgomery v. Gilmer, 33 Ala., 116; Imlar v. Springfield, 55 Mo., 119. Miller v. Laubach, 47 Geo., 260; Aurora V. Reed, 57 111., 30; Penoyer v. Saginaw, 8 Mich., 534. From an able article in The Southern Law Rev., New Series, Vol. 1, p. 210, by Henry E. Mills, Esq., of the St. Louis Bar, on the subject of the " ResponsibiHty of Municipal Corporations for unperfect sewerage and drain- age," we copy the following clear statement of the law on this subject: " An individual may fill up low places on his lot, or erect buildings which divei-t the surface water from his own lands, and the city may divert surface water, and no compensation can be recovered further than that considered in the original condemnation of the street. But neither the individual nor the corporation can interfere with the natural flow of water, and make drains and collect the water in a body, and precipitate it in a greatly in- creased or unnatural quantity upon an adjoining proprietor, to his injury." For a fuU citation of authorities on this subject, see 1 Smith's L. Cas., (H. & W.'s notes), 361, &t seq. THE LAW OF DAMAGES. Actionable Injury— Injuria and Damnum— Damnum, etc. CHAPTEK III. OF THE INJURY BY THE DEFENDANT. Sectional. Legal or Actionable Injury. 42. The terms Injuria and Damnum. 43. Damnum Absque Injuria. § 41. Legal or Actionable Injury.— We have already observed that there is no wrong without a remedy, and that the remedy which the law aims to give is commensurate with the loss sustained. This applies not only to breaches of con- tracts and personal injuries, but generally to the misfeasance, nonfeasance, and malfeasance, of those having a duty to per- form, and by reason of which an individual sustains a loss. But there is a class of cases in which, although damages may be sustained by the plaintiff, it is not through anything which in law is considered an injury, and therefore no action can be maintained therefor. Such damages are dainnum absque injuria^ for which no compensation can be recovered. § 42. The terms Injuria and Damnum.— In a strict leo-al sense, injuria is a wrongful act or tort, that relates to the defendant. Damnum is the loss sustained, or liarm done, as a consequence of an injury, and relates to the phaintiif. But these terms are frequently, if not generally, used in a different sense. § 43. Damnum Absque Injuria.— The injury must, as we have shown, not only be a violation of a right, which the plaintiff is entitled to enjoy, but it is essentilil to the main- mJUEY BY DEFENDANT. 39 Damnum Absque Injuria. tenance of an action for the same that the plaintiff suffer legal damages thereby. Tliere are a large number of moral acts clone, and accidents and casualties occurring, and there may be a lawful use of one's own property by which losses occur to others, but for which the law affords no remedy. They are damum absque injuria. For, though loss may be sustained in such cases, it is the result of no legal wrong or injury. " Thus," remarks Mr. Herbert Broom, in his valuable work on Leo-al Maxims, " the establishment of a rival school, which draws away scholars from a school previously established, is illustrative of such a loss. So, a man may lawfully build a M'all on his own grounds in such a manner as to obstruct the light of his neighbor, who may not have acquired a right thereto by grant or adverse use; he may obstruct the prospect from his neighbor's house; he may build a mill near thfe mill of his neighbor, to the grievous damage of the latter by loss of custom; he may, by digging in his own land, intercept or draw off the water collected from under-ground springs in his neighbor's well. In these and similar cases, the incon- venience caused to his neighbor, falls within the description oi damnum absque injuria, which cannot become the grounds for an action." ' So, where neither party is in fault, and an accident to one occurs through the acts of both, it is damnum absque injuria, and the party damaged cannot recover." So, no action will lie ao-ainst a railroad or turnpike company, for building a road with proper care and prudence, which is authorized by statute, thouffh property in the vicinity is damaged thereby, as the act in either case is lawful, and any damages arising from its proper construction on its own land, would be damnum absque injuria.^ ' Broom's Legal Maxims, 197, et seq. = Howlancl v. Vincent, 10 Met., 571. 3 Drake v. Hudson, etc., R. Co., 7 Barb., 508. 40 THE LAW OF DAMAGES. Damnum Absque Injuria. And it has been held that, in tlie absence of any negligence, nnskillfulness or mismanagement of a railroad company, in the construction of an embankment for the bed of its railroad, over land through which the railroad passed, and through which there was no natural channel for the passage of water, the injury done by such embankment in causing water to overflow the land of the adjoining proprietors, must be con- sidered as the natural consequence of what the railroad com- pany had a lawful right to do, by the condemnation of the land and the payment of damages therefor, and that subse- quent damage sustained thereby, by the adjoining proprietors, must be treated as damnum absque injiirm* So, where an incoporated town or city grades its streets, or changes its grade so as to leave the lots of the adjoining pro- prietor either above or below the grade, and thereby greatly depreciates their value, it is damnum absque injuria, for which no damages can be recovered/ 4 Clark V. Hannibal, etc., R. Co., 36 Mo., 202. See, also, McCormic v. The Kas. C, etc., R. Co., 57 Id., 433. s Callender v. Marsh, 1 Pick., 418; Griggs v. Foot, 4 Allen, 195; Benja- min v. Wheeler, 8 Gray, 409; Green v. Reading, 9 Watts, 382; approved 20 How. (U. S.), 149; Reading v. Keppleman, 61 Pa. St., 233; Henry v. Pitts- burgh, etc., Co., 8 W. & S. (Pa.), 85; O'Conor v. Pittsburgh, 18 Pa. St.. 187; approved in Smith v. Washington, 20 How. (U. S.), 135; Macy v. The City of Indianapolis, 17 Ind., 267; Terre Haute v. Turner, 36 Id., 522; Hoffman V. St. Louis, 15 Mo., 651; Radcliffe v. The Mayor of Brooklyn, 4 Comst., 195; Graves v. Otis, 2 Hill., 466; Wilson v. Mayor, etc., 1 Den., 595; Mills v. Brooklyn, 32 N. Y., 489; Waddellv. Mayor, etc., 8 Barb., 95; Reynolds V. Shreveport, 13 La. An., 426; Rome v. Omberg, 28 Geo., 46; Roll v. Augusta, 34 Id.. 326; Skinner v. Bridge Co., 29 Conn.. 523; Summers v. Camden. 26 Ark., 276; Ellis v. Iowa City, 29 la., 229; Dorman v. Jacksonville, 13 Fla., 538; BurHngton v. Gilbert, 31 la., 356; White v. Yazoo City, 27 Miss., 327; Commissioners v. Withers, 29 Id., 21; Murphy v. Chicago, 29 111., 279; Roberts v. Chicago., 26 Id.. 249; Humes v. Mayor, etc., 1 Humph. (Tenn.), 403; Hovey v. Mayo, 4:3 Me., 322; Taylor v. St. Louis, 14 Mo., 20; Schatt- ner v. Kansas City, 53 Id., 162. But see Kevins v. Peoria, 41 111., 502; Aurora, etc., v. Reed, 57 Id., 29; Aurora (City of) v. Gillett, 56 Id., 132, where the doctrine would appear to be somewhat qualified. In a recent case in Michigan, in an action for damages against a city for an injury to property, caused by changing the grade of a street, the learned INJURY BY DEFENDANT. 41 Damnum Absque Injuila. § 44. Where an act authorized by law gives rise to dama- ges, it is generally, as we have seen, dainnum, absque injuria; and wherever an unauthorized act results in detriment or loss to another, if it is not a legal damage, it is injuria sine damno.^ The injury to the plaintiff must be such as the law regards as an injury, and as we have already noticed, it is not every loss that results to the plaintiff through the act of the defendant, for which damages may be recovered. Judge Cooley remarks: "The weight of authority against this action is overwhehning." City of Pontiac v. Carter, Am. Law Times, Aug., 1875. See, also, The Plate Glass Co. v. Meredith, 4 T. R. 794; Bolton v. Crowther, 2 B. c^: C, 703; The King v. The Corns, of Sewers, 8 Id., 355; Macy v. Indianapolis, 17 Ind.. 267; Fayette v. Bush, 19 Id., 326; Rounds v. Mum- ford, 2 R. I., 154; Keasy v. Louisville, 4 Dana, (Ky.), 154; Alexander v. Milwaukee, 16 Wis., 247; Derman v. Jacksonville, 13 Fla., 538; 7 Am. R., 233; Simmons v. Camden, 26 Ark., 276; 7 Am. Rep., 820; Goszler v. George- town, 6 Wheat., 593. The only exception to this general rule in this country is in Ohio, (and perhaps as we have noticed in Illinois), where a qualification of the rule has been made, giving the right of action for injuries in such cases, especially by the later decisions, where improvements have been made in accordance with an established grade, and the damage arises from a change of grade, in which case the injured party has been allowed to recover. McCombs v. Akron, 15 Ohio, 474. But this case is made to rest on Rhodes v. City of Cleveland, 10 Id., 159, which relates to the flooding of land by a city. See, also, Akron V. McComb, 18 Id., 229; Crawford v. Delaware, 7 Ohio St., 459. In this last case, the right to recover is limited to cases of injury arising from a change of the grade. In Iowa, the general doctrine has been recognized in several cases. But a recent Statute provides: " Where any city or town shall have established the grade of any street or alley, and any person shall have built or made any improvements on such street or aUey, according to the estabUshed grade thereof, and said city or town shaU alter said estabUshed grade in such a manner as to injure or diminish the value of said property, said city or town shall pay to the owner or owners of said property so injured the amount of such damage or injury." * * * Sec. 469, Code of Iowa, 1873. In view of the frequent hardships that result from the change of the grades of streets in our cities and towns, some statutory provisions on this subject seems to be demanded, and the provision of the Iowa Statute is commended, as affording an adequate remedy and a just protection in such cases. * Barbin V. Police Jury, etc., 15 La. An.. 559; Donovan v. The City of Kew Orleans, 11 Id., 711. 42 THE LAW OF DAMAGES. Compensation— Causa Proxima. OHAPTEE lY. OF COMPENSATIOI!^ AS A EULE— THE LIMITATION" OF DAMAGES. Section 45. Compensation — Consideration of the Maxim, Causa Proxima. 46. Application in case of a Breach of Contract. 47. In case of Failure to Deliver Property. 48. Not always thus Limited in Torts. 49. Natural and Direct Consequences Explained and Illustrated. 50. Injury from Fire — "Where the Negligence too Remote and where not. 52. Conflict of Decisions — Irreconcilable. §45. Compensation— Consideration of the Maxim Causa Proxima. — We Lave stated that compensation is the general principle in the measure of damages. The party who has sustained loss from the injury of another, should be indem- nified for the same.' The main difficulty is in the application of the maxim, in determining what near or remote losses, occur- rino- or caused by the injury, the defendant is responsible for. In a great majority of cases, especially in actions for torts, the maxim, in its literal sense, is much too restricted. Even in actions for breaches of contracts, for the non-payment of money, it has application only on the theory that the principal and interest is the loss sustained, and that that is the proximate consequence of the wrong. But, under the decisions of the courts, the maxim has acquired a technical juridical meaning, and serves a purpose in determining questions of damages, ' Allison V. Chandler, 11 Mich., 542. COMPENSATION. 43 Breach of Contract. which cannot be entirely ignored in a treatise on the subject of damages. The maxim has been thus construed, as we have suggested, to give compensation to a party sustaining loss by an injury, where the injury is not strictly the proximate cause of the loss; but the loss is the direct and natural result of the injury, or part of a chain of results. This is illustrated by the famous squib case, where the defendant threw a squib into a market house, which fell on the stall of a vendor of gingerbread, and he, to save himself from injury, threw it off, and it fell on an- other stall in the market house, the proprietor of which also threw it off, and it struck the plaintiff and put out his eye. Here were two intervening distinct acts, and causes of the final loss and damage, between the original wrong and the damage ; but it was held to be the direct act of the defendant.' The original act, in this case, could hardly be considered either the proximate cause, in any strict sense, of the loss, nor would the loss appear to be the direct and natural result of the act. It is true the relation of cause and effect existed, in one sense, between the original wrong and the loss; but the damage may more i>i'operly be considered a result of a chain of causes and effects, of which the wrongdoer was the original active cause, and without which wrongful act the loss would not have occurred. . § 46. Application iu case of a Breach of a Contract for the Payment of Money.— When applied as a limitation of damages for a breach of contract for the payment of money, the maxim and general rule are understood to mean the actual pecuniary loss directly sustained; and that is the principal and interest due.' And, in such cases, the contract itself fur- = Scott V. Shepbard, 2 W. Black, 892, s. c. 3 Wils. 403 3 Gay V. Franklin, 5 Cal., 416; Robert v. Kimberly, 1 Root, (Conn.) 491; Day V. Leavenwortb, Id., 519; Osgood v. McConnell, 32 IU., 74; Houston v. Noble, 4 J. J., Mon. (Ky.) 130; Thayer v. Hedges, 23 Ind.. 141; Robinson V. Varell, 16 Texas, 382; Curtis v. Whipo, 1 Root ., (Conn.) 445. Edwards on Bills and Notes, 708, et seq. See also for a full consideration of this subject, post, Chap. 11. 44 THE LAW OF DAMAGES. Failui-e to Deliver Pi-operty— Proximate and Natural Consequences, etc. nishes the data from which damages under this rule can be estimated ; and the question of damages is practically a ques- tion of law. § 47. In Cases of Failure to Deliver Property.— In cases of the failure to deliver property, where the consider- ation has been paid, the purchaser may rescind the contract and recover the amount of the consideration paid, or recover the value of the property, at his option, as we shall hereafter notice." § 48 . Damages not always limited to Proximate or Natural Consequences in cases of Torts— According to our fourth rule of damages, in the analysis and classification we gave in the introductory chapter," the liability for loss, is not always confined literally to the proximate or immediate consequence of the wrong. But, in torts, the wrong doer may be liable for remote conse- quences, provided they were probable to result from the wrong, or are the direct and natural results of it; the limit of such lia- bility depending upon the aggravation, and the motives of the wrongdoer, or the degree of negligence or malice manifested by the circumstances connected with the tort.^ §49. Natural and Direct Consequences Explained and Illustrated. — The term natural consequences, in the legal sense here used, signifies according to the usual course of things. The extended rule in such cases was recognized in Bigly V. Ileivett. The action was for an injury to the plaintiff, caused by the negligent driving of the defendant's omnibus. Pollock, C. B., in delivering the opinion of the court remarks: "I am disposed not quite to acquiesce, to the full extent of the proposition, that a person is responsible for all the possible 4 ^QQpost, Chap. 12. Also Leland v. Stone, 10 Mass., 459; Taft v. Williams, 15 Ohio, 123; Clark v. Moore, 3 Mich., 55; Cuddy v. Mayor, 12 Id., 368. s § 32. *See, post, Chaps. 5 and 6. COMPENSATION. 45 Natural and Direct Consequences. consequences of liis negligence. I wish to guard against lay- ing down a proposition so universal; but of this I am quite clear, that the person who does a wrong is at least responsible for all the mischievous consequences that may reasonably be expected to result, under ordinary circumstances from such misconduct.'" And where, in an action of trespass for forcibly invading a plantation and carrying away slaves, a jury found that by rea- son of the wrongful abduction of them, a neighbor's cattle de- stroyed the plaintiff's corn, and a flood in the river swept away a quantity of his wood, it was held proper to include the value of these things in the damages assessed.' But where a singer in the plaintiff's theater had been libelled, and a suit was brought by the proprietor of the theater against the publisher, and it was alleged that, by reason of the libel, the singer had been deter- red from singing, whereby his profits were lost, it was held by Lord Kenyon, that the damages were too remote; that if dam- ages had thereby occurred, it was occasioned by the vain fear or caprice of the actor.^ So where a horse, being driven with due care, became frightened by the striking of the vehicle he was drawing against a defect in the highway, which it was the duty of the defendant to keep in repair, and freeing him- self from the control of the driver, at a distance of fifty rods from the defect, injured the plaintiff who was on foot in the highway, and who was using due care; it was held, that the defendant was not responsible for the injury.' 7 5 Exch., 240. See also Greenland v. Chaplin, 5 Id., 243; Poth. on Ob. fby Evans), Part 1, C. 2; 2 Parsons on Con., 457, (4 ed.) and notes. Goodloe V, Rogers, 10 La. An., 631. - 8 McAfFee v. CrofFord, 13 Howard, (U. S.), 447. See also Parmlee v. Wilks, 22 Barbour, (N. Y.), 539. 9 Asliley V. Han-ison. Peak. N. P., 193, s. c, 1 Esp., 48. See also Taylor v. Neri, 1 Esp., 386. But should not this question have been submitted to a jurj'? ' Marble v. Worcester, 4 Gray, 395. But, in a recent case where a horse became frightened by the striking of the carriage to which he was attached 46 THE LAW OF DAMAGES. iDjury from Fire— Where Negligence too Kemote— "Wliere not. And, in an action for slander, wliere special damage was claimed, it was held, that the action could not b*e sustained by proof that the damage was caused bj the repeating of the slan- derous words, by a third person, as the words of the defend- ant, but without his authority/ So, where a drafted man deserted before being mustered into the service, and the plaintiff, in consequence, was drawn and obliged to serve in the army in place of the deserter, and brought a suit against him for the damages sustained thereby, it was held, that the damages were too remote and contingent to sustain the action/ § 50. Injury from Fire— where Negligence too Remote — wh^re not. — And where, by the mere negligence of another, a building was burned, and the fire spread to and destroyed an adjoining house, the negligence was held too remote to give the owner of the latter house a remedy for his loss against the party by whose negligence the tire originated.^ against an obstruction in the hig-hway, and became uncontrollable and ran away throwing the driver out and injuring him, at a point over one hundred and twenty-five feet from the obstructions, it was held that the obstruction was the proximate cause of the injury, and a verdict of $900 therefor in the court below was sustained. Clark v. Inhabitants of Lebanon, Pacific Law Reporter, Aug. 24, 1875. See also, Wiley v. Belfast, 61 Me., 569. In Marble v. Worcester, 4 Gray, supra, it was a stranger who was injured by the accident; but it was conceded that if the injury had been to "the driver or one riding in the sleigh," there would have been no question of the liability of the defendant. » Ward V. Weeks, 7 Bing., 211. 3 Dennis v. Larkin, 19 Iowa, 434. * Ryan v. N. Y. Cent. R. Co., 35 N. Y., 210; Penn. R. Co. v. Kerr, 62 Pa. St., 353. See also, Morrison v. Davis & Co., 20 Id., 171. In the latter case LowRiE, J., remarks: "There are often very small faults which are the occasion of the most serious and distressing consequences. Thus a momen- tary act of carelessness set fire to a little straw, and that set fire to a house, and by an extraordinary concurrence of very dry weather and high winds, with this fault, one-tliird of a city, Pittsburg, was destroyed. Would it be right that this small act of carelessness should be charged with the whole valueof the property consumed?" Should the careless act of the woman COMPENSATION. 47 Injury from Fire— Where Negligence too Eemote— Where not. But, in Massacliusetts, where under a statute making rail- road corporations responsible for fires communicated from their locomotives, it was held, in a case where the fire was originally caused by a locomotive engine and the fire, on its way to the plaintiff's premises, passed over the premises of three or four different persons, being fed by grass, stubble, and wood-land, until it reached the plaintiff's premises where it burned a large quantity of wood, that the company was liable for the damages." And, in New York, where through the carelessness of the defendant, (a railroad company,) coals were dropped from its locomotive engine, which set fire to the ties of the track, and from thence spread to the adjacent premises of the plaintiff and burned wood thereon, it was held, that the owner of the wood ■who originated the great fire at Chicago, make her liable in damages for all the losses that resulted therefrom? In Illinois, the question of negli- gence in such a case, and whether the loss is too remote, is deemed proper to be left to the jury, as a question of fact. Toledo, Peoria & Warsaw R. Co. V. Pindar, 53 111., 447. See also, Ohio & Miss. R. Co. v. Shanefelt, 47 Id., 497; 111. Cent. R. Co. v. Nunn, 51 Id.. 78. And the same doctrine seems to be held in Wisconsin, Kellogg v. Chicago & N. W. R. Co., 26 Wis., 223; post, § 664. 5 Perley v. Eastern R. Co., 98 Mass., 414. See also, IngersoU v. Stock- bridge & Pittsfield R. Co., 8 Allen, 438. The statute referred to provides: " Every corporation shall be responsible in damages to any person or corpo- ration whose buildings or other property may be injured by fire, communi- cated by its locomotive engines." Gen. Stat. Mass. C, 63. § 101. In Periey v. Eastern Railroad Co., supra, the court say: "If when a cinder escapes, the effect which it produces upon the first combustible substance against which it strikes is proximate, the effect must continue to be proximate as to every thing which the fire consumes in its direct course. This must be so, whether we regard the fire as a combination of the burning substance with the oxygen of the air, or look merely at its visible action and effect. As a matter of fact the injury to the plaintiff was as immediate and direct as an injury would have been which was caused by a bullet fired from the train, passmg over the intermediate lots, and wounding the plaintiff as he stood upon his own lot." From this language it may be inferred that the statute, in the opinion of the court, did not affect the general rule limiting liability to the proximate cause. 48 THE LAW OF DAMAGES. Injury from Fire— Where Negligence too Eemote— Where not. might recover against the railroad company for damages thus caused.' And in the Court of Exchequer Chamber in England, where it appeared that a railroad company's servants had cut grass and trimmed the banks and hedges at the side of the railway, and had collected the grass and hedge trimmings into heaps at the road side, where they remained during extremely hot weather for fourteen days, and were then ignited by sparks or cinders from the company's locomotive engine in passing, and the fire after burning the heaps and the adjoining hedge, passed over a stubble field and public road, in spite of all efforts of the company's servants to subdue it, and at a distance of two hundred yards from the raili-oad, communicated with the plaintiff's cottage and destroyed it with the furniture it con- tained, a majority of the court held that these facts constituted evidence of negligence to go to the jury, but the question was not raised whether the loss was too remote to be recovered.' § 51. In a recent case in Wisconsin the question of liabil- ity of a railroad company for a loss by fire, not directly occa- sioned by the negligence of the company was discussed, and the doctrine oi Byan v. New York Central R. Co., ^nil Penn- sylvania Pl. Co. v. Kerr, above cited, was disapproved; and, after a thorough examination of the question, a majority of the court held, that the questions of negligence and contributory negligence were properly for the jury to determine, and that "the maxim causa proxima et non remota spectatur, is not limited by time or distance, nor by the succession of events;" that an efficient adequate cause being found, it must be deemed the true cause, unless some other cause, not incidental to it but independent of it, is shown to have intervened between it 6 Field V. The N. Y. C. R. Co., 32 N. Y. 339. See also, Webb v. The Rome, Watertown & Ogdensburg R. Co., 3 Lans., (N. Y.,) 453. 7 Smith V. London & Southwestern R. Co., 5 L. R. C. P., 68; 18 W. R., 343; 21 L. T., n. s., 668; affirmed on appeal, 19 W. R., 230. Exch. Cham. COMPENSATION. 49 Conflict of Decisions Irreconcilable. and the result; and that the maxim includes liability for all actual injuries which are the natural and probable result of the wrongful act or omission complained of, or were likely to ensue from it under ordinary circumstances. The court further held, that drought and high wind, which the evidence showed were prevailing at the time, were not extraordinary but ordinary circumstances within the meaning of the rule; and that the fact that the property destroyed was distant from the defendant's road, and that the fire reached it only by passing through intervening fields, did not make the loss too remote to allow a recovery therefor.* § 52. Conflict of the Decisions Irreconcilable.— It is diflicult to reconcile these latter cases on principle, with the cases oi I^yan v. The N. Y. Central R. Co.^ supra, and Penn. M. Co. V. Kerr^ supra. In those cases the court determined as a question of law, that the loss was too remote; that it was the result of secondary causes and not the direct and immediate result of the negligence; while in the subsequent cases referred to, on facts that could not be considered as materially difiBrent, or as distinguishing them from these cases, so far as principle is concerned, the courts refused to hold that, as a matter of law^, the losses were too remote^ And in Perley v. Eastern P, Co., siipra, Chapman, C. J., who delivered the opinion of the court, did not concur in the reasoning of the court in Ryan v. JV. Yi Central Railroad Coinpany, and it is also, as we have seen, disapproved in 8. Kellogg V. The Chicago & N. W. R. Co., 26 Wis., 223. See also, Mar- tin V. West. U. R. Co., 23 Id., 437; Piggott v. Eastern Counties R. Co., 54 E. C. L., 228; Vaugh v. Manlove, 7 C. & P., 525; 32 E. C. L., 613; Hewey V. Nourse, 54 Me., 256; Bachelderv. Heagan, 18 Id. 32; Barnard v. Poor, 21 Pick. 378; Fero v. Buffalo & State Line R. Co., 22 N. Y., 209; Fremantle v. The London & N. W. R. Co., 100 E. C. L., 88; Hart v. Western R. Co., 13 Met., 99; Ingersol v. Stockbridge & Pitts. R. Co., 8 Allen, 438; Perley v. Eastern R. Co., 98 Mass. 414; Hoofoett v. Concord R., 38 N. H., 242; McCready v. Railroad Co., 2 Stobh., (L. R.) 856; Cleveland v. Grand Trunk R. Co., 42 Vt., 449. See also, post, Chap. 22. 4 50 THE LAW OF DAMAGES. Conflict of Decisions Irreconcilable. the cases we have cited in Illinois and Wisconsin; and the weight of authority, if not of reason, would seem to sustain the docti-ine of liability for such losses, as direct and natural, and not too remote consequences of the original act, as a mat- ter of law. In the following cases the damages were held to be too remote as a matter of law. Thus, in an action for seduction, loss of service resulting from illness of the woman seduced, caused by distress of mind, owing to the desertion of the seducer, or of illness in consequence of being threatened with exposure in a suit against the defendant for the seduction;' and in an action for a malicious prosecution, whereby the plaintiff was driven to an assignment, and loss occurred in the sale of goods under the assignment,^ and in an action for damages resulting from a railroad collision where it appeared from the character of the fracture of the plaintiff's leg, that it was probable that a second fracture would take place;' these consequences and probable results were held too remote to entitle the plaintiff to recover therefor. § 53. The most diflBcult and perplexing question relating to damages is the one under consideration. For what conse- quences of a negligent act shall the wrongdoer be held respon- sible? What is the rule based upon principle which shall, under all circumstances, be uniform, definite and just? It is impossible to deduce one from the conflicting decisions. On the one hand there is a sentiment, perhaps in accord with a « Knight V. Wilcox, 14 N. Y., 413; Boyle v. Brandon, 13 M. & W., 738. See also, Haynes v. Sinclair, 23 Vt., 108, where the probable expense of sup- portinpr an illegitimate child was excluded. = Donnell v. Jones, 13 Ala., 490. See, also, the same rule as recognized in cases of perjury, forgery and fraud. Fitzjohn v. McKidder, 2 L. T. (N. S.), 374; Bumap v. Wright, 14 111., 301. 3 Lincoln v. Saratoga & Schenectady R. Co., 23 Wend., 425. See, for an exposition of the law on this subject, Stone v. Codman, 15 Pick., 397; Brown V. Cummings, 7 Allen, (Mass.), 507. COMPENSATIOI^. 51 Conflict of Decisions Irreconcilable. sound public policy, that the mere negligent tortfeasor should not be held for all those remote, but direct losses which may result from his negligence. While the doctrine of the court in Iiy an v. The New York Central Railroad Co.^ would hold a company responsible for a fire directly caused by its negli- gence, as where a house should be ignited by sparks blown directly from the company's locomotive, still if the sparks first ignite combustible substances belonging to the company, and from thence fire is communicated to another's property and he sustains loss, no recovery can be had of the company. In case of the willful firing of one's own or another's building, a more extended rule of damages would be applicable, and the willfnl wrongdoer would be held on general principles to con- template all the damages which legitimately follow, and be liable for all the consequences of his wrongful act, however remote the results or overwhelming the disaster.' And, per- haps, we may say, in the light of the adjudications on this subject, that the rule seems to vary in different cases and to be limited or extend to losses more or less remote, depending upon the motives, or degree of negligence." ♦ Allison V. Chandler, 11 Mich., 542. s Scott V. Shepherd, 2. Wm. Bla., 893; Vandenbur^h v. Truax, 4 Denio, 464; Guille v. Swan, 19 Johns., 381. See, also, i;>os«, Chap. 22. 52 THE LAW OF DAMAGES. Officious Interference witli Froperty of Others, OHAPTEE T. ILLUSTRATIONS OF A LAEGER RULE OF DAMAGES. Section 53. Rule in case of Officious Interference with the Property of Others. 54. Gross Negligence and "Willful "Wrongs. 57. Fraud Generally. 58. Fraudulent Breaches of Contracts. 59. Breaches of Contracts under Circumstances of Aggravation. 63. Distinction between Tort and Contract as to Motives. 64. The Doctrine of the Common Law on the Subject — Statutory Eeform. § 53. Rule in Case of Officious Interference witli tlie Property of Otliers.— The ^tended rule of liability where there is an officious interference with the property of others, may be illustrated by the following cases: Thus, in South Carolina, where the defendant prevailed upon a slave belonging to the plaintiiF to ride a race, without the consent of the owner, and the slave was thrown, while so doing, against a tree and killed, it was held, that the plaintiff was entitled to recover the value of the slave, " on the ground that a man who officiously presumes to interfere with, or make use of, the property of another without his permission, is liable for all the consequences of such interference whether he intended any injury or not.'" So, wliere the plaintiff's slave had been employed by the defendant's agent on his steamboat, without the consent of the « Wright V. Gray, 2 Bay (S. C), 464. ILLUSTRATIONS— LAEGER RULE. 53 Gross Negligence and Willful Wrongs. plaintiff, and the slave fell overboard and was drowned; it was held, that the defendant was liable for the value of the slave even though it happened without any misconduct or negligence on the part of defendant.^ And where the plaintiff's negro boy was carried on a rail- road car, without the consent of the owner, and in jumping off the car when it was in motion, was killed, it was held, that the railroad company was liable for the loss.' So, in Louisiana, where the owners of a steamboat suffered a slave to be employed as a hand on board, without the authority or consent of the owner, and the slave was acci- dentally drowned, it was held that the owners of the boat were liable for the value of the slave.* § 54. Gross Negligence, and Willful Wrongs.— Where plaintift''s horses escaped into the fields of defendant through a defective fence, which it was his duty to repair, and were killed by the falling of a hay-stack, which was kept in an improper and dangerous condition, the defendant was held liable for the value of the horses.^ So, where a statute provided that a party, neglecting to keep his part of a fence in repair, should be liable for all dam- ages done or suffered by the adjoining proprietor in conse- quence of such neglect, and the plaintiff's horses escaped into the defendant's pasture through a defective fence, which it was the duty of the defendant to maintain, and were gored by a vicious bull of the defendant, the damages sustained by the injury were held to be not too remote.' 2 McDamel v. Emanuel, 2 Rich. (S. C), 455. 3 Duncan v. The S. C. R. Co., 2 Id., 613. 4 Strawbridge v. Turner, 9 La.. 213. sPoweU V. Salsberry, 2 Yonnge & J., 391. ^ Saxton V. Bacon, 31 Yt., 540. So, where the defendant, in whipping a female slave, unintentionally, but recklessly, inflicted blows upon her mis- tress, the Liability of the defendant, in an action by the mistress therefor, was held not to be limited to the damages to her person, but that the jury might take into consideration the mental anguish and wounded feehngs of the plaintiff. West v. Forest, 22 Mo., 344. 54 THE LAW OF DAMAGES. Officious Interference with Property of Others. § 55. In an action for the wrongful taking of a horse and wagon, where the plaintiff spent four days and expended money, in the search for the same, it was held proper to include these items as proper elements of damages.' So, where natives on the coast of Africa were deterred from trading with the plaintiff by the defendant's firing on tliem, the plaintiff was held entitled to recover damages for a loss of sales to them.' So, where the defendant's servant left his horse and cart in a public street, where children were playing, and the plaintiff's child, six years old, got into the cart and another child led the horse on, and as the plaintiff's son was getting out he fell and a wheel of the cart ran over him and broke his leg, the defendant was held responsible for the damages.^ This could only be justified on the ground of gi'oss negli- gence, and that would appear in this case, from the opinion of Lord Denman, C. J., who, in delivering the opinion of the court, remarks: " The most blameable carelessness of his (the defendant's) servant having tempted the child, * * * lias been the real and only cause of the mishap." And where a dealer in drugs and medicines carelessly labels a deadly poison as a harmless medicine, and sends it so labeled into market, he will be liable to all persons who, without fault on their part, are injured by using it as such a medicine as it purports to be.' Injury to some one must be expected in such a case, and a party acting with such gross negligence is responsible for all the probable consequences of his act, and ^ Bennett v. Lockwood, 20 Wend., 223; MHler v. Garling, 12 How. Pr. R., 203. See, also, post, §§ 838, 852, et seq. 8 Tarlton v. McGarlcy, Teak, N. P., 205. See, also, 111. Cent. R. Co. v. Hutchinson, 47 111., 408. 9 Lynch v. Nurdm, 1 Q. B., 29; 41 Eng. C. L. R., 422. See, also, Emblen V. Myers, 6 H. & N., 54; 30 L. J. Exch., 71; 8 W. R., 665; BeU v. Mid. R. Co., 9W. R., 612. ' Thomas v. Winchester, 2 Seld. (N. Y.), 397. Sce.^also, Fleet v. Hollen- kemp, 13 B. Mon., 219. ILLUSTRATIONS— LARGEK EULE. 55 Fraud Generally. even though the drug may have passed through many inter- mediate hands and sales before it reaches the hands of the injured person.^ § 56. This principle seems recognized in a great number of cases, besides those referred to, which we shall have occasion hereafter more fully to notice. Mr. Sedgwick, in his valuable work on damages, in reference to the subject, says: "In regard to cases of deliberate or malicious wrong, we have already seen that the law applies very liberal relief, and in cases of reckless or mischievous acts injurious to others — even where exemplary damages are not claimed — the party in the wrong is often made answerable for consequences very remote from the original act.'" The foregoing is, perhaps, sufficient to illustrate and show the foundation for the rule as laid down, but no rule can definitely fix the limit of responsibility in such cases. This fact is recognized by Professor Parsons, in his valuable Treatise on Contracts, where he uses the following language in reference to this subject: " Not only is there no definite rule or precise principle given, by which we may measure the nearness or remoteness of effects in this respect, for which the defendant is liable, but the highest judicial authorities are so directly antagonistic, that they scarcely serve as a guide to lead us to a conclusion.'" Again, he says: " It is diflicult to lay down a definite rule which shall have, in all cases, prac- tical value and efficiency in determining for what consequences of an injury a wrongdoer is to be held responsible.'" § 57. Fraud Generally.— Where the plaintiff purchased sheep of the defendant, who fraudulently concealed the fact that they were infected with a contagious disease, and the = Piper V. Menifee, 12 B. Mon., 465; 2^ost, § 664. 3 Sedg. on Dam., 79 and 88. 4 2 Pars, on Con., 456. s 2 Pars, on Con., 457. 56 THE LAW OF DAMAGES. Fraud Generally. plaiiitiflP, without knowled<;je of the tact, mixed them with other sheep that thereby became diseased, it was held that the plaintiff could recover, not only the difference between the value of the sheep sold as sound and the diseased sheep, but also the damages sustained by the communication of the disease to the other flock.' So, where a gun had been purchased of the defendant, and he had fraudulently represented it to be made by a particular maker and to be well made, when in fact it was not well made, nor was it made by the gunsmith represented, and the gun exploded in the hands of the plaintiff's son and injured him, the damages thereby sustained were held to be not too remote.' And, in South Carolina, in an action of assumpsit, to recover damages upon the sale of cotton alleged to have been fraudu- lently packed, by having the center of the bales wet; the cotton was sent to Liverpool, sold as sound cotton at the then current price, the fraud discovered, and the cotton returned and resold at Liverpool as damaged cotton, and at considera- ble loss. The court, Nott, J., remarked: "Assumpsit, is nomen generalissimum, under which a great variety of special cases are embraced. The damages to be recovered must always depend on the nature of the action and the circumstances of the case. In an action for money had and received, the actual amount of money received, with interest in some cases, should * Jeffrey v. Bigelow, 13 Wend., 518. See, also, Sherrod v. Langdon, 21 la., 518, where there was a sale of sheep with a fraudulent representation that they were free from " scab " or "foot rot," and other sheep of the pur- chaser became diseased by contact with the diseased sheep purchased of defendant. 7 Langridge v. Levy, 2 Mees. & Wells, 519 ; 4 M. & W., 337. But this decis- ion was placed on the ground that malice should be imputed to the defend- ant, as the result might have been contemplated by him. See, also, Paseley V. Freeman, 3 T. R., 51; MuUett v. Mason, 1 C. P. JL. R.), 559; Barnum V. Vanduzen, IG Conn., 200. ILLUSTRATI0:N"S— LAKGEE RULE. 57 Fraudulent Breaches of Contract. be the measure of damages; in an action for goods sold and delivered the value of the thing sold; and so on in all other cases, which furnish a standard hy which the jury can be governed. But in cases of fraud, and in other cases merely sounding in damages, the jury may give a verdict for the whole amount of injury sustained, or imaginary damages.'''' After commenting on the rule of damages in actions for a breach of promise, and various English cases, he further said: " I apprehend, after all these cases, it can no longer be con- sidered, as has been somewhat confidently asserted in this case, that even vindictive damages may not be given in an action of assumpsit; and surely it will not be denied, that the plaintiff may recover the amount of the loss which he has actually sustained.'" § 58. Fraudulent Breaches of Contract.— The doc- trine of extended liability in cases of willful and aggravated torts, has been applied to breaches of contracts, where the breach occurs through the fraud or want of good faith of the oblio-or; and a distinction is made in the measure of damages on the failure by the vendor to convey lands according to his contract, where he is unable to convey for want of title, between his good and bad faith in the matter. If there has been no fraud on his j)art, and he has acted hona fide, the usual measure of damages, where the consideration money has been paid, is the consideration money and interest.'' But, if the vendor is chargeable with fraud or bad faith in the matter, the vendee may recover larger damages, including the value of the land at the time the conveyance should have been made, or for the loss of his bargain.' ' Rosev. Beattie, 2 N. & McC. (S. C), 538 (1820). The intimation by the court, " that even vindictive damages " maybe given in an action of assumpsit, is evidently a mere dictum. = See, post, § 481, et seq. 3 Flureau v. ThomhiU, 2 W. BL, 1078; Barbour v. Nichols, 3 R. I., 187. See, post, § 484, for a full consideration of the subject. 58 THE LAW OF DAMAGES. Breaches of Contract under Circumstances of Aggravation. Thus, in Iowa, in an action for damages for a breach of an agreement to convey land, Wright, C. J., in delivering the opinion of the court in the case, uses this language: "We believe the measure of damages should depend upon the cause of the failure. If the person selling is honest, and is prevented from making the conveyance by unforeseen causes which he could not control, the plaintiff should recover only nominal, damages ; if he has paid the price or any part thereof, then of course in that case lie should recover that sum with interest. But, if the person selling is in fault, and either did or should have known that he could not comply with his under- taking; or having the title, refuses to convey; o? having the title at the time of the agreement afterwards disables himself from completing it by a sale to a third person; or at the time of the agreement knew he had no title; in these, and in all cases where the inability arises from fraud in the covenantor, the purchaser should recover substantial damages, including compensation for any actual loss, as by the increased value of the land at the time the contract should have been execu- ted." ' § 59. Breaches of Contracts under Circumstances of Aj^gravation. — Tlie proposition is further illustrated by the Eno-lish case of Coppin v. Braithwaite^ where an action was brought for a breach of contract to carry the plaintiff, on a steamship, from London to Sheerness. The defendant on the way caused the plaintiff to be disembarked at an intermediate port without just cause, and in a scandalous and disgraceful manner. These circumstances were held proper to be shown to increase the damages. Park, B., remarking: "Suppose, instead of a man landed at Gravesend from a steamboat, ♦Foley V. McKegan, 4 la., 1. See, also, Sweeme v. Steele, 5 Id., 352; Hopkins V. Lea, 6 Wheat., 109; Nichols v. Freeman, 11 Ired., 99; Bryant V. Hambiick.D Ga., 133; Whiteside v. Jennings, 19 Ala., 7S4; WaiTon v. Wheeler, 21 Me.. 584; Driggs v. Dwight, 17 Wend., 71; Peters v. McKeon, 4 Denio, 564; 2 Pars, on Con., 505. ILLUSTRATIONS-LARGER RULE. 59 Breaches of Contract under Circumstances of Aggravation. this bad been the case of a passenger in a ship bound to the "West Indies, and be were put asbore on a desert island witli- out food, and exposed to tbe burning sun, and the danger of wild beasts, or even landed among savages, would not evidence be receivable to show the state of the island where he was left, and the circumstances attending the violation of the contract?"' § 60. A similar case was recently before the Supreme Court of California. The action was for damages for the wrongful breach of a contract to transport the plaintiff, a female passenger, from San Francisco to San Juan del Sur, in Nic- arao-ua. The evidence showed that on the arrival of the steam- ship Cortes, (the defendant in the action,) at San Juan, the plaintiff was not permitted to land, but was taken to Panama against her will, and there landed in an unhealthy country; and after a detention there in a destitute condition for ten days, there being no direct means of transportation between Panama and San Juan, the plaintiff was compelled to go to Kew York, in order to reach Nicaragua. The court held, that the whole case should go to the jury, the Code of California permitting all matters forming part of one transaction to be united in one suit; that the plaintiff might recover not only the pecuniary loss directly resulting from the breach of the contract, but also exemplary damages for any deceit practiced by the owners and agents of the steamer, including damages for her distress of mind. The court remarks: "The injuries complained of are of such a character that redress may undoubtedly be obtained in some form, and under our practice there is no reason why the plaintiffs sho'uld be compelled to resort to different actions for the relief, to which the law entitles them. We have but one form of action, and nothing more is required than a statement, in ordinary language, of the facts relied upon for a recovery. s 8 Jur., 875. 60 THE LAW OF DAMAGES. Breaches of Contract under Circumstances of Aggravation. The statute makes no distinction, in matters of form, between actions of contract and those of tort, and relief is administered without reference to the technical and artificial rules of the common law upon this subject. Different causes of action may be united in the same complaint; and the only restric- tions upon the pleader in this respect are those imposed by statute. Our system of pleading is founded upon the model of the civil law, and one of its principal objects is to discour- age protracted and vexatious litigation. It is the duty of the courts to assist, so far as practicable, in the accomplishment of this object, and it should not be frittered away by the application of rules which have no legitimate connection with the system. The provisions for avoiding a multiplicity of suits are to be liberally and beneficially construed; and we see no reason why all the matters arising from and constituting part of the same transaction, should not be litigated and determined in the same action. Causes of complaint differing in their nature, and having no connection with each other, cannot be united; but the object of this rule is to prevent the confusion and embarrassment which would necessarily result from the union of divers and incongruous matters, and it has no application to a case embrac- ing a variety of circumstances so connected as to constitute but one transaction."" But the claim in this case might have been properly sustained, perhaps, on the ground of fraud. § 61. This doctrine of more extended liability in cases of fraud or willful breaches of contract has frequently been recognized. Thus, in a recent case in New York, Matson, J., remarks: " I understand this distinction to be recognized and settled, that if the executory vendor has it in his power to perform 6 Jones V. Steamship Cortes, 17 Cal., 487. See also, Stoneseifer v. Sheble, 31 Mo., 243; Heirn v. McCauglaan, 32 Miss., 17, where such a wrong was held to be a violation of public duty and founded in tort. ILLUSTRATIONS— LAEGEK RULE. CI Breaches of Contract under Circumstances of Aggravation. his contract, and refuses to do so, or has wrongfully put it out of his power so to do, he takes himself without the arbitrary rule of damages, {i. e. the rule that the measure of damages upon a breach of covenant, etc., is the price paid with inter- est,) and becomes liable for the value of the estate at the time it was to have been conveyed." ' The doctrine of an enlarged rule of damages in such cases was recognized by Mr. Chitty, in his valuable work on Con- tracts. He says: "There are instances in which the defend- ant may be regarded in the light of a wrongdoer in breaking his contract, and in such cases a greater latitude is allowed the jury in assessing the damages." * And in support of his position he refers to the case of an action brought on a bond given to resign a living, and a refusal of the defendant to per- form ; and where the court held that the defendant, being a wrongdoer, the damages were not limited to the value of the living to him.' § 62- Mr. Sedgwick regards these cases as exce]3tions to the general rule of damages. And he remarks in reference to the failure of a vendor to convey, as follows : " In these cases, the line has repeatedly been drawn between parties act- ing in good faith, and failing to perform because they could not make a title, and parties whose conduct is tainted with fraud or bad faith. In the former case the plaintiif can only recover whatever money has been paid by him, with interest and expenses. In the latter he is entitled to damages resulting from his loss of his bargain. This exception cannot, I think, be justified or explained on principle, but is well settled in practice." ' 7 Mack V. Patchen, 29 How. (N. Y.) Pr., 20; 42 Id., 167. Ste also, Chat- terton v. Fox, 5 Duer. (N. Y.), 64; Marquart v. La Farge, 5 Id., 559; Hall v. Delaplane, 5 Wis., 206; Lawrence v. Chase, 54 Me., 196. 8 Chit, on Con., 684. 9 Sondes v. Fletcher, 5 B. and Aid., 835. ' Sedg. on Dam., 209. 62 THE LAW OF DAMAGES. Distinction between Tort and Contract-Statutory Reform. § 03. Distinction between Tort and Contract as to Motives. It has been maintained that the general principles of the common law forbade any inquiry into the motives of the defendant in failing to comply with his contract; and that while the anim.us of the wrongdoer was properly a mat- ter of consideration in cases of torts, in actions ex contractu, the motive, intent or animus of the defaulting party was con- sidered wholly irrelevant to the issue joined. This was so considered on account of the technicalities of the common law forms of action, and the principles of evidence adapted to them. At common law but one cause of action could be embraced in the same suit. But under the reforms inaugurated in many, if not most, of the States of the Union different causes of action may be united in the same suit, and even actions, for torts may be united with those for breaches of contract and injuries to the person and character with those on covenants, if they are between the same parties, in the same rights, and have the same venue.^ § 64. The Doctrines of the Common Law— Statutory Reform.— The artificial and technical doctrines of the com- mon law were, many times, hinderances rather than aids to absolute justice; but the reforms referred to are calculated to avoid delay and expense, prevent circuity, and secure with equal or greater certainty the rights of parties. We have noticed the extent to which the courts have gone in considering motives on breaches of contracts; and there would seem to be a tendency to allow an inquiry into the motives generally in such cases. And, when the question is ' Iowa Code (1873), Sec. 2844; Gen. Statutes Mo., Ch. 165, §2; The Code of Maryland and the English act of 1857, are substantially the same. See, also, Robinson V. Flint. 16 How. (N. Y.), Pr. 240; Turner v. The First Nat. Bank of Keokuk, 26 Iowa, 562; Reed v. Howe, 28 Id., 250; Hord v. Chan- dler, 13 B. Mon. (Ky.), 404; McKee v. Pope, 18 Id., 555; Jones v. Steam- ship Cortes, 17 Cal., 487. ILLUSTRATIONS— LARGEK RULE. 63 Doctrines of the Common Law— Statutory Keform. freed from the technical and formal objections we have referred to, there can be no sound reason why a plaintiff may not recover as ample damages for a willful breach of a contract as for a willful tort." 3 The benefits and advantages of the reform akeady inaugurated, is illus- trated by a recent case under the Code of New York, where the facts stated in the complaint were sufficient to sustain an action for damages for both assault and battery and for slander. The court say: ''The complaint, in fact, contains but a single cause of action; the alle- gations relate to a single transaction; the complaint purports to give the history of one occurrence and no more. The liistory embraces what was done on the occasion, and what was said on the occasion; each constitutes a part of the res gestce; what is alleged to have been done would, if estab- lished upon the trial, sustain an action for personal injury; what is alleged to have been said, would, if estabUshed upon the trial, sustain an action for injury to the reputation. The whole together constituting, as it does, but a single transaction, makes but a single cause of action. The plaintiff brings his action upon the whole case, to recover damages for the compound injuries he has sustained. * * * When it comes to trial all that was said, and all that was done, become the proper subjects of investigation, and a single verdict adjusts the rights of the parties." Brewer v. Temple, 15 How. Pr. (N. Y.), 286. 64 THE LAW OF DAMAGES. Gross Negligence, Fraud, Outrage and Insult. OHAPTEE YI. AGGEAYATED TOKTS AND EXEMPLARY DAMAGES. Section 69. Gross Negligence, Fraud, Outrage and Insult. 70. Conflicting Views of Mr. Greenleaf and Mr. Sedgwick. 71. The Doctrine of Exemplary Damages Kecognized in a G-reat Variety of Cases. 72. Doctrine Not Universal — "When Qualified. 73. Compensatory and Exemplary Damages — Controversy. 78. The Intent of the "Wrongdoer an Important Element. 79. The Rule Not Applicable to Infants or Non-Compotes. 80. Nor to Municipal Corporations. 81. Exemplary Damages Illustrated — English Cases. 82. American Cases. 63. Statement of the Rule. 84. Negligence — The Rule in Case of. 85. Liability of Principals for Exemplary Damages, for Acts of Agents. 86. To Hold the Principal Liable it Must Appear that he is Cul- pable. 88. Degree of Gross Negligence which Makes him Liable. 89. Criminal Liability, or Prosecution and Punishment for the "Wrong. 90. Criminal Prosecution, etc., in Mitigation. 91. Contrary Doctrine. 92. "Where Exemplary Damages have been Refused. 93. Principal— ^Vhen not liable to Exemplary Damages for the Negligence of an Agent. 94. Breach of Promise of Marriage. § 69. Gross Negligence, Fraud, Outrage and Insult. — The extended rules ot' damages we have been considering, are rules of law, and the measure of damages in^sueh cases are more EXEMPLARY DAMAGES. 65 Conflicting Views of Greenleaf and Sedgwick. or less under the control of the court, as the rules governing in such cases are given by the court; but there are a class of cases of a^orravated wronsrs where there can be no definite rule of damages. Thus, according to our sixth rule,' in cases of gross negli- gence, or fraud, or where circumstances of gross outrage, oppression, or insult accompany the wrong done, the damages are not limited to actual compensation, but may be increased so as to punish the wrongdoer and afford a salutary lesson of admonition to others. In such cases the amount of damages by way of punishment or example, are necessarily largely within the discretion of the jury; the only check, as we shall hereafter more fully consider, being the power of the court to set aside the verdict where it is manifest that the jury were unduly influenced by passion, prejudice, partiality, or corruption, or where it clearly evinces a mistake of the law or of the facts in the case.'' § 70. The Conflicting Views of 3Ir. Greenleaf and Mr. Sedgwick. — The doctrine of exemplary or punitive damages is entirely ignored by Mr. Greenleaf, who, in his valuable Treatise on Evidence, remarks: " Damages are ' See, ante. § 32. Mr. Mayne, in his valuable Treatise on Damages, observes: "Torts are divided into three classes: injuries to the property, person, or character. Those of the former class may be mingled with ingre- dients which mil enhance the damages to any amount. For instance, a man's goods may be seized under circumstances which involve a charge of a criminal nature, or a trespass upon land may be attended by wanton insult to the o^vner. Any species of aggravation will, of course, give ground for additional damages." Mayne on Dam., 12. = Kendall v. Stone, 2 Sanf. (S. C. R.), 269: Teanor v. Donalin. 9 Cush., 228; Day V. Halloway, 1 Jur., 794; 2 Greenlf. on Ev., § 255. See, also, as to set- ting aside verdicts, post, Chap. 37. Where damages may be given for example and punishment, see, ante, § 26, note 2; Hunt v. Bennett, 19 N. Y., 173; Johnson v. Jenkins, 24 N. Y., 252; 1 Abb. Pr., 289; 4 Duer, 247; Brown v. Chadsey, 39 Barb., 253; Sharon v. Mosier, 17 Barb., 518; Nightengale v. ScannelL 18 Cal., 315; Dorsey v. Manlove, 14 Cal., 553; 8 Pars, on Con., 169, et seq.; Pounsett v. Fuller, 17 C. B., 660. But, see, post, §§ 76, 77, and notes. 5 ee THE LAW OF DAMAGES. Conflicting Views of Greenleaf and Sedgwick. given as compensation, recompense, or satisfaction to tlie plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury, neither more nor less, and this, whether it be to the person or estate.'" While on the other hand, Mr. Sedgwick, in his valuable work on Damages, denies the limited rule laid down by Mr. Greenleaf; and maintains the doctrine of exem- plary or punitive damages. He says : " Whenever the elements of fraud, malice, gross negligence, or oppression, mingle in the controversy, the law, instead of adhering to the Fystem, or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitive, vindictive, or exemplary damages; in other words, blends together the interests of society and the aggrieved individual, and gives damages, not only to recom- pense the suffer, but to punish the offender."* And this doctrine seems to be sustained by at least a great preponder- ance of authorities, both in England and in this country.^ 3 2 Greenlf. on Ev., §§ 253 and 273. ♦ Sed^. on Damages, 38. s Philadelphia, etc., R. Co. v. Quigley, 21 How., 212; Dibble v. Moms, 26 Conn., 416; Dean v. Blackwell, 18 111., 336; Ousey v. Hardin, 23 111., 403; Bell V. Morrison, 27 Miss., 68; Hopkins v. Atlantic, etc., R. Co., 36 N. H., 9; Kountz v. Brown, 16 B. Mon. (Ky.), 579; Hawkins v. Riley, 17 Id., 101; Hair v. Little, 28 Ala., 236; Roberts v. Heime, 27 Id., 678; Porter v. Seller, 23 Pa. St., 424; Cook v. Grace, 9 Tex., -358; Champion v. Vincent, 20, Tex., 811; Clark v. Bales, 15 Ark. (Barb.), 452; Wilie v. Smitherman, 8 Ired., 236; Gilreath v. Allen, 10 Id., 67; Lindsley v. Bushnell, 15 Conn., 236; Beecher v. Derby Bridge & Ferry Co., 24 Id., 491; Welch v. Durand, 36 Id.. 182; Farwell v. Warren, 51 111., 467; Green v. Craig, 47 Mo., 90; New Orleans, etc., R. Co. v. Statham, 42 Miss., 607; Hoadly v. Watson, 45 Vt., 289; Buckly v. Knapp, 48 Mo., 151; Fredcnheit v. WiUiamson, 36 Id., 152; Roberts v. Mason, 10 Ohio St., 277; 11 Ohio St., 457. See, also, ante, §§ 26, 32; Mayne on Dam., 13. The authorities on this point are numerous, and, except perhaps, in Massachusetts, uniform. We shall have occasion to cite them in the special treatment of various topics and hence deem a fuller citation here unnecessary. EXEMPLAEY Dx^^MAGES. 67 Doctrine of Exemplary Damages Recognized. § 71. The Doctrine of Exemplary Damages Recog- nized in a great variety of Cases.— This doctrine lias been recognized in almost every variety of injuries. Thus, it has been recognized in cases of trespass to real estate, quare daiisum f regit f' in trespass to personal property;' in actions for gross negligence;' gross breaches of duty;' false imprisonment;'" replevin;" trover;" slander;" libel;" fraud;'' assault and bat- 6Devaughn v. Heath, 31 Ala., 595; Perkins v. Towle, 43 N. H., 220; Green, etc., R. Co. v. Partton, 14 Rich. (S. C), 237; Kolb v. Barkhead, 18 Tex., 228; Schindel v. Schindel, 12 Md., 108; Ellsworth v. Potter. 41 Vt.. 685; Sears v. Lyons, 2 Stark. (N. P.), 317; James v. Campbell, 5 Car. & P., 372; Doe v. FiUiter, 13 M. & W., 47. 7 Dibble v. Morris, 26 Conn., 416; Churcbil v. Watson. 5 Day (Conn.). 140; Trent v. Barber. 7 Conn., 274; Nagle v. Mullison, ;34 Pa. St., 48; Brown V. Green, 2 Dev. (Ky.), 234; Dorsey v. Manlove, 14 Cal., 553; Farwell v. Warren, 51 lU., 467; Green v. Craig, 47 Mo., 90; Best v. Allen, 30 111., 30; Bull V. Griswold, 19 Id., 631; Parker v. Mise, 27 Ala., 480. 8 Cochran V. Miller, 13 Iowa, 128 (an action for malpractice by a physician); Kountz V. Brown, 16 B. Mon. (Ky.), 577; Baltimore, etc., R. Co. v. Breing, 25 Md., 378: Frink v. Coe, 4 Greene (la.), 555; Vicksburgh, etc., R. Co. v. Patton, 31 Miss., 156; Heim v. McLaughlin, 32 Miss., 17; Pickett v. Crook, 20 Wis., 358 (an action for an injury from a vicious ram, and where it was held that gross and criminal negligence was equivalent to malice); Genay v. Norris, 1 Bay. (S. C), 6; Vance v. Vanarsdale, 1 Bush. (Ky.), 504; Taylor v. Railway, 48 N. H., 304; Memphis, etc., R. Co.. v. Whitfield, 44 Miss., 466. 5 Mendelsohn v. Anaheim Lighter Co., 40 Cal., 657; Lynd v. Picket, (an action against an officer for attaching property kno^ving it be exempt.) 7 Minn.. 184; Nightengale v. Scannell, 18 Cal., 315. where it is held that an oflicer is liable for exemplary damages, for a malicious trespass though act- ing under color of law. " Donnelly v. Harris, 41 111., 126; Wanizer v. Bright, 52 lU., 35; McCall V. McDonald, 1 Abb. (U. S.), 212; Huckle v. Money, 2 Wils., 205. " Craig V. Kline, 65 Pa. St.. 399. where it is held that exemplary damages may be given in replevin where there has been outrage in the taking or vexation or oppression in the detention. " Mowry v. Wood, 12 Mo., 413. '3 Knight V. Foster, 39 N. H., 576; Hosley v. Brooks, 20 111., 115; Guard V. Rick, 11 Id., 156; Gilreathv. Allen, 10 Ired. (N. C), 67; Miles v. Haning- ton. 8 Kans., 425. u Buckly V. Knapp, 48 Mo., 152; Hunt v. Bennett, 19 N. Y., 173; Phila- delphia, etc.. R. Co. V. Quigley, 21 How. (U. S.), 202; Day v. Woodwoith, 13 How. (U. S.), 363; Pearsons v. Lemaitre, 5 Man. k Gr., 700. »5 Oliver v. Chapman, 15 Texas. 400; Kye v. Meniam, 35 Vt., 438; Piatt V. Brown, 30 Conn., 336; MiUison v. Hoch, 17 Ind., 227; Wheelecv. Ran- del, 48 111., 182. 68 THE LAAY OF DAMAGES. Doctrine of Exemplary Damages Eecognized. tery, and willful and malicious injuries to the person;" trespass de honis as_portatls;''' breach of promise of marriage;" malic- ious prosecution;" seduction ;"' for the willful wrongful suing out of an attachment;" and for willful wrongs, and gross breaches of dut}- bj (common carriers." For a full citation of authorities, reference may be had to that portion of this treatise where these several topics are particularly treated. 16 Porter V. SeUer, 23 Pa. St., 424; Foot v. Nichols, 28 111., 486; Pike v. Dilling, 48 Me., 539; Roberts v. Mason, 10 Ohio St., 277; McWilliams v. Brags, 3 Wis.. 424; Birchard v. Booth, 4 Wis., 67; Hooker v. Newton. 24 Wis., 292; Wade V. Thayer, 40 Cal., 578; Dougherty v. Shown, 1 Haskell (Tenn.). 302; Wadsworth v. Treat, 43 Me., 163; Reader v. Purdy. 48 III, 261; Willey V. Keokuk, 6 Kan., 94; Wilson v. Middleton. 2 Cal., 54; Outley v. Harden, 23 111., 403; Green v. Craig, 47 Mo., 90; Hopkins v. Atlantic, etc., R. Co.. 36 N. H., 9; Slater v. Sherman, 5 Bush. (Ky.), 206; Childs v. Drake, 2 Met. (Ky.), 146; Hoadley v. Watson, 45 Vt., 289; Goetz v. Ambs, 27 Mo., 28; Mooney V. Kennett. 19 Id., 551; Aldrich v. Palmer, 24 Cal., 513; Gore V. Chad\vick. 6 Dana (Ky.), 477; Moreley v. Dunbar, 24 Wis., 183; Hooker V. Newton, 24 Wis., 292. '7 More V. Shultz, 31 Md., 418; Thomas v. Harris, 27 L. J. Exch., 353; Best V. Allen, supra, 30111., 30; Gordon v. Jones, 27 Tex., 620, though in this case fraud was a prominent element, and the decision seems to have rested on that ground; Milburn v. Beach, 14 Mo., 104. '8 Goodell V. Thurman, 1 Head. (Tenn.), 209; CoryeU v. Coolbaugh, 1 N. J. L. (Coxe), 77; Stout v. Pratt, Id., 79. »9 Burnett v. Reed, 51 Pa. St., 190; Cooper v. Utterback, 37 Md., 282; Malone v. Murphy, 2 Kansas, 250; Calaham v. Catferta, 39 Mo., 136. '° Goodell V. Thurman, 1 Head. (Tenn.), 209, stipra; Ball v. Bruce, 21 111., 161; Stevenson v. Belknap, 6 Iowa, 97; Tulledge v. Wade, 3 Wils., 18. •' Campbell v Chamberlain, 10 Iowa, 337; McCullough v. Walton, 11 Ala., 492. See same rule recognized in Wood v. Barber, 37 Ala., 60. The stat- utes frequently provide for the recovery of exemplary damages in such cases. " Heim v. McLaughlin, .32 Miss., 17; Peoria Bridge Ass., etc., v. Loomis, 20 111., 235; New Orleans, etc., R. Co. v. Hurst, 36 Miss. (7 Geo.), 660; Dal- ton v. Beers, 38 Conn., 529; Southern R. Co. v. Kendrick, 40 Miss., .374; The Atlantic, etc., R. Co. v. Dunn, 19 Ohio St., 162; Mendelsohn v. Ana- heim Lighter Co., 40 Cal., 657; Godard v. Grand Trunk, etc., R. Co., 57 Me., 202, where it is held that a railroad company is responsible for the willful and malicious acts of its agents, and that they do not form an exception to the rule; Belknap v. Boston, etc., R. Co., 49 N. H., 858; Cald- well v. New Jersey Steamboat Co., 47 N. Y., 282, * EXEMPLAEY DAMAGES. G9 Doctrine not Universal— When Qualified. § 72. Doctrine not Universtal— When Qualified.— But the doctrine of exemplary damages is not universally recognized in such cases, and in some instances only in a qualified measure. Thus, doubts have been expressed as to the application of the doctrine in cases of fraud, esj)ecially M'hen the damages have only been nominal," and it has been denied in such cases in Xew York." And, in Indiana, it has been held that the damages for torts, which may also be jDunished criminally, must be limited to compensation for the injury, and must not be exemplary." And in Massachusetts, where, following the rule of Mr. Greenleaf, damages in all cases seem to be limited to the loss sustained, although they may, in aggravated cases, reach to such remote consequences as to be hardly distinguished from exemplary or punitive damages. Thus, in that state it has been held, in an action for a breach of promise of marriage, which is generally an excep- tion to the rule of compensation, that damages should be "computed on the principle of indemnity and reasonable compensation, and not in any event as vindictive damages:" that loss from the disappointment of expectation, including the money value of a marriage which would have given a jDermanent home and an advantageous establishment to the plaintiff ; wounds and injuries to the affections, and the morti- fication and distress of mind resulting to the plaintiff from '^ Barber v. Kelburn, supra, 16 Wis., 485. ^* Lane v. Wilcox, 55 Barb. (N. Y.), 615. See, also, Lighton v. Kenday, 9 B. Mon. (Ky.), 222. But see, ante, § 26, and notes. =s Tabor v. Hutson, 5 Ind.. 322; Norsaman v. Recert, 18 Id., G-50; Hum- phries v. Johnson, 20 Id., 190. See, also, Struble v. Nodwift, 11 Id., 64. And in Massachusetts it has been held, that if exemplary damages are ever recoverable, they cannot be recovered for an injury which is also punishable by indictment. Austin v. Wilson, 4 Cush., 273. 70 THE LAW OF DAMAGES. Compensatory and Exemplary Damages. the defendant's failure to fulfill his promise, are all to be taken into consideration in computing actual damages." And it has been held that the principal is not liable for exemplary damages for the acts of the agent," especially if they be neither authorized nor ratified by the principal.'' § 73. Compensatory and Exemplary Damages. - The line between compensatory and exemplary damages is frequently indistinct, and in many cases practically unimport- ant. Compensation may, in aggravated cases of gross neg- lio-ence or fraud, or where the wrong is inflicted maliciously or wantonly, or with circumstances of contumely and indignity, or under any circumstances of aggravation, be extended to cover all losses and injuries thereby received, including injury to the feelings, to paternal affections and rights, loss of time, bodily suffering, mental agony, lacerated feelings, disap- pointed hopes, loss of services, and expenses of nursing and curino-. These are elements which it is conceded, in most cases, are proper to be considered by the jury, in estimating damages in such cases, under the rule of compensation. But what check is there on the discretion of the jury in fixing the damages in these cases, even according to the theory of compensation ? What rule is there by which an estimate in money maybe accurately made, for "injured feelings," "paternal affection," "bodily suffering," "mental agony," ^ Harrison v. Swift. 13 Allen. (Mass.), 144. See, also, 2 Greenlf. Ev., §§ 89 and 267, where the doctrine of exemplary damages is denied; but the doctrine that the degree of compensation should be varied, according to the circumstances of the wrong done, is recognized. ^ Wardrobe v. Stage Co., 7 Cal., 118; Mendelsohn v. Anaheim Lighter Co., 40 Id., 657; Turner v. North Beach R. Co., 34 Id., 594; Hill v. The New Orleans, etc., R. Co., 11 La. An., 292. =8 MUwaukee, etc., R. Co. v. Finney, 10 Wis., 388. See also, post, § 93, Story on Agency, Chap. 12, § 308, et seq., and § 456; Wright v. Wilcox, 19 Wend., 34'.}; Hagan v. Providence, etc., R. Co., 3 R. I., 88; Craft v. Allison, 4 Barn. & Aid., 590; McMannus v. Crickett, 1 East., 106; Broucher v. Noidstrom. 1 Taunt., 568; Freeman v. Rosher, 13 Q, B., 780; 18 L. J. Q. B., 340; 2 Roll., Abr., 553. EXEMPLARY DAMAGES. 71 Compensatory and Exemplary Damages. "lacerated feelings," or "disappointed hopes?" Can proof be made of the exact amount of such injuries, or is there any rule to guide the jury in determining them? It seems to me that there would, ordinarily, be little difference in the result, whichever rule may be adopted, and that the controversy is one which relates more to the use of terms than to practical results. Mr. Justice Cole, in delivering the able opinion of the Supreme Court of Iowa, in Ilendrlckson v. Kingsbury, which was an action for an aggravated assault and battery, thus clearly sets forth his views on the merits of the controversy on the subject of damages. He says: " The controversy on this subject between Prof. Greenleaf and Mr, Sedgwick, may perhaps, after all the attention and discussion it has excited, be found to be a controversy as to the terminology of the law, rather than as to the extent of the right of recovery, or the real measure of damages. Prof. Greenleaf holds, that while the plaintiff can only recover compensation, he is not confined to the proof of actual pecuniary loss, but that the jury may take into consideration every circumstance of the act which injuri- ously affected the plaintiff, not only in his property, but in his person, his peace of mind, his quiet and sense of security in the enjoyment of his rights; in short, his happiness. But it must affect his happiness and not his neighbor's ; and therefore to this question alone the jury should be restricted. While Mr. Sedgwick holds, that, ' whenever the elements of fraud, malice, gross negligence or oppression mingle in the controversy, the law, instead of adhering to the system or even the language of compensation, adopts a wholly different rule. It permits the jury to give wdiat it terms punitory, vindictive, or exemplary damages; in other words, blends together the interests of society and the aggrieved individual and gives damages not only to recompense the sufferer, but to punish the offender.' * •5«- * * * * 72 THE LAW OF DAMAGES. Compensatory and Exemplary Damages. " It is perhaps true that the broad and general language of the rule, as stated by Mr. Sedgwick, tends more to convey to a jury the idea of unlimited and unrestrained power, jurisdiction or control over the amount of their verdict, than the rule as stated by Prof. Greenleaf, and that under that rule, jurors would more frequently return verdicts based more or less npon their passions and prejudices, than under the other rule. For instance, the instructions as given in this case, (omitting the objectionable clause heretofore considered), would tend to convey to the jury the idea of complete control over the amount of their verdict, unrestrained by any legal rule whatever. But suppose they had been instructed that, in estimating the amount of the plaintiff's damages, they would ascertain and give: First. The actual pecuniary loss directly sustained, as the value of the clothing destroyed. Second. The consequential pecuniary loss, as the value of the time lost by the plaintiff, the expenses (if any) incurred for medicines, physician's bills, compensation to the attendant, and board while sick, and the like. Third. The physical suffering consequent upon the injury, including any temporary, protracted, or permanent deformity, disability, or disfiguring, as by scars or the like. Fourth. The mental anguish, loss of honor and sense of shame, caused by the act of the defendant, as by the exposure of her nailed person to the public, the sense of wrong infiicted, insult effected, the degradation felt, and the like. Fifth. The injury to the business, reputation, social stand- ing, and the like. It is not unreasonable to suppose that such an instruction would more certainly exclude passion and prejudice, and that a jury wo'ikl feel themselves more constrained to limit their verdict to the compensation to plaintiff for the injuries inflicted by the defendant, and at the same time, would render EXEMPLAKT DAMAGES. 73 Compensatory and Exemplary Damages. a verdict which would amply compensate for the injury in every phase and manner wherein it could operate. And, indeed, it seems to us that under such an instruction the ver- dict would be far more likely to approximate to justice, and to exclude passion and prejudice, than under the loose and general instruction as given by the court in this case, and jus- tified by the rule laid down by Mr. Sedgwick, and sustained by the general current of the authorities. And yet, it is doubtless true, that such an instruction might mislead and confuse a jury, and that they would not in any event, have any pecuniary standard by which to measure the damages, under the third, fourth and fifth subdivisions of the instructions, as specified." " The impossibility, under either rule, of fixing any absolute standard of pecuniary loss in such cases is manifest, and the damages must be to a great extent, " imaginary," " presump- tive," and "speculative." And it may be remarked, in the language of Pratt, C. J., in an early English case, " that the law has not laid down what shall be the measure of damages in actions of tort; the measure is vague and uncertain, depending upon a vast vari- ety of causes, facts and circumstances; torts or injuries which may be done by one man to another, are infinite ; in cases of criminal conversation, battery, imprisonment, slander, mali- cious prosecution, etc., the state, degree, quality, trade, or pro- fession of the party injured, as well as of the party who did the injury, must be, and generally are, considered by the jury in givincj damages. The few cases found in the books, of new trials, show that the courts of justice have most commonly set their faces against them. * * * It is very dangerous for the judges to intermeddle in damages for torts ; it must be a glaring case indeed of outrageous damages in tort, and =!» Opinion, Cole, J., in Hendrickson v. Kingsbury, 21 Iowa, 379. 74 THE LAW OF DAMAGES. Compensatory and Exemplary Damages. which all mankind must at first blush think so, to induce a court to grant a new trial for excessive damages.'"" The cases to which the learned judge refers are evidently those of an aggravated character. § 74. On this subject Mr. Kutherford observes : " By dam- age we understand every loss, or diminution of what is a man's own occasioned by the fault of another. * * * * The definition of damage extends the notion of it beyond a man's goods. His life, his limbs, his liberty, an exemption from pain, his character or reputation, are all of them his own, in a strict and proper sense, so that the loss or diminution of any of them, gives him a right to demand reparation from those by whose fault they have been lost or diminished. * * The person who is maimed, has a right to freedom from causeless pain, and he who has hurt him, has injured him in this right. He may, therefore, demand smart money ^ or some consideration in amends for the pain which he has unjustly sufiered. Now, under this head, we may fairly include any blemish which remains after the first smart or pain is over; for, as the injured person had a right to be free from such blemishes, or from the uneasiness which any deformity will occasion him, he has a right to be paid for having them brought upon him. If the person who has been ill-treated should escape without losing his limbs or the use of them, yet, if he has been wounded, the expense of cure, the loss of time, the pain which he has felt, are all of them damages for which reparation is due. Or, if he has been only beaten, so that there has been no expense of cure and no loss of time, he has still a demand of smart money ^ or of satisfaction for the pain that he has felt. What has been said concerning maiming, wounds or blows, will be sufiicient to show what sort of amends is due to a man who has been deprived of his liberty by unjust imprisonment. His loss of time is one article in the account, 3» Iluckle V. Money, 2 Wils., 206. EXEMPLARY DAMAGES. 75 Compensatory and Exemplary Damages. but it is not the only one; the mere uneasiness of such a situ- ation, under which we may inchide the disgrace attending it, is a damage to him." ' We may here discover the origin of the tenn smart money, which was evidently used in England over a hundred years ago, and especially by this distinguished author, in a different legal sense from the one now conveyed by its use, in connec- tion with damages. It was then used to convey the idea of mere compensation for suffering, or smarts — physical or men- tal — which an injured person suffered, and not to indicate a punishment of the wrongdoer, neither to make him smart for his wrong done, nor to deter others from a repetition of similar wrongs. The doctrine, even in cases of aggravated wrongs, was that of reparation and compensation, and not that of punishment or example. And such was the rule of the Civil Law. i although the amount of damages depended much upon the motives of the wrongdoer and the character and quality of the injury. § 75. Domat held, that if the injury w^as innocently or accidentally done, it should moderate the reparation to be made, but that a willful wrong cut off all pretentions to any mitigation of damages caused thereby. " Thus for example," he remarks, " if a creditor causes his debtor to be thrown into jail, when he has no right to use the said constraint, whether it be thai* his debt does not give him that power, or that the age of his debtor or some other cause does make the said imprison- ment to be unjust, and the said debtor is a day laborer or other person who by his labor maintains his family, which, for want of his assistance suffer likewise other losses, it will depend on the prudence of the judge to regulate a reparation both for the loss of the day's work of this prisoner, and for the other damages, according as the injustice of the said » Rutherford's Inst., B. 1, Chap. 17, §§ 1, 10. 76 THE LAW OF DAMAGES. Compensatory and Exemplai-y Damages. creditor may deserve, upon consideration of the circum- stances.'" § 76. In a recent case in New Hampshire, in an action for an assault and battery, it was held, that the damages should be limited to full compensation; and that they could not be increased to punish the defendant. The whole question of exemplary damages, in that case, was fully and exhaustively considered by the court, and the authorities critically reviewed.' It will be evident from an examination of the cases relating to actual as well as exemplary and punitive damages, that there is much confusion in reference to the elements proper for consideration by the jury in determining the same. Under the theory that actual damages only should be allowed, a large number of cases, as we have seen embrace, as proper elements, j)hysical suffering, mental agony, a sense of humilia- tion, wounded feelings, etc. ; while, in cases where the doctrine of exemplary damages is recognized, such damages are practi- cally limited, under the power of the court to set aside ver- dicts, if not by its instructions, to such damages as are sup- posed to result from physical suffering, mental agony, a sense of humiliation, wounded feelings, etc., which injuries are not capable of any definite pecuniary estimate. While other cases, recognizing the doctrine of exemplary damages, not only allow for all such damages as are capable of some certain and definite pecuniary estimate, as loss of services, medical and other attendance, and the like, but physical and mental sufifer- ing, including wounded pride, a sense of shame and humili- ation, as actual damages; and in addition thereto a certain further amount, as the jury in their discretion may allow, to punish the offender for the wrong done, or to furnish an example to deter others from repeating similar wrongs. It is ' Domat's Civ. Law, (by Strahan), Pt. 1, B. 3, Tit. 6, §1935; See, also, Id., Pt. 1,13. 3, Tit. 5,§1968, e^seg. 3 Fay V. Parker, 53 N. H., 342. EXEMPLARY DAMAGES. 77 Compensatory and Exemplary Damages. evident that tliis last element is at variance with the original idea of damategUf/enf habits of the servant, or if he left the servant without control or supervision in the work.' There are, however, authorities that hold to the contrary. Perhaps the leading case is R. R. Co. v, Bailey, 40 Miss., 395. The decision is based upon the maxim, ' qui facit per aUum, facit per se.' A more total perversion of a maxim cannot well be conceived. That the doctrine of principal and agent has no reference to criminal, malicious acts by servants or agents, is too elementary to talk about. The whole opinion in this case is devoid of any legal learning, and perhaps the most conspicuous example of judicial prejudice against railroads to be found in the books. It asserts the doctrine squarely, however, that railroads are liable for the malicious acts of their servants, and that exemplaiy damages may be given, although the company was guilty of no fault in the selection of the servant, and in no manner authorized or ratified the act. There are several other cases in Mississippi holding the same doctrine. R. R. Co. V. Blocker, 27 Mo., 287, holds a similar doctrine also. The foregoing are the only cases that we have found that, in fact, sup- port the doctrine. There are many cases cited as supporting it, but they do not. Among them the following: R. R. Co. v. Dunn, 19 Ohio St., 162; Goddard v. R. R. Co., 57 Me., 202; Bryant v. Rich, 106 Mass., 180. Dunn's case was an action for expelling him from the cars — verdict $125. The judge charged the jury, that if they found the plaintiff was entitled to recover, they should allow him for loss of time, expense and inconvenience suffered. If the conductor treated him in an insolent and insulting man- ner, he may be compensated for the mjuries to his sensibilities. If there were circumstances of ' insult and indignity' they might allow him whatever was a fair and reasonable attorney's fee for procuring and paying counsel. It appeared in the pleading and evidence that the conductor was required by the rules of the company, in like cases of non-payment of fare, to stop the train and expel the passenger, and that the compamj justified the act in this case. Three of the judges held that the company was Hable for exemplary damages and that the charge to the jury was right; the other two judges dissented. Welch, J., who delivered the dissenting opinion, says •there is no English case to support any such doctrine, as to hold a party criminally Liable in any sum, for the acts of his agent, unless where the busi- ness in which he was employed was criminal in itself, or unlawful. The only American case which can be cited in support of it is that of R. R. Co. v. Bailey, 40 Miss., 453, decided in 1866, and that the American doctrine is that 104 THE LAW OF DAMAGES. Degree of Gross Negligence. thereupon award such damages as in their judgment the circumstances may require. Says Prof. Greenleaf: '' The jurj-, in tlie estimation of damages, are to consider, not only the direct expenses incurred by the phiintiif, but the loss of time, his bodily suffering, and if the injury was willful his mental agony also; the expressed by the court in the case of 'Amiable Nancy,' 3 Wheaton 546." Two thmgs will be noted in this case : 1. That the company had ratified the act of the conductor, and therefore, if it was a case for exemplary damages, the company would be liable for them. 2. The Supreme Court of Ohio treats ^injuries to sensibilUks,'' the same as exemplary damages, and if exemplary damages could not be given, noth- ing could be given for insidt and indignity. So the case is not an authority for exemplary damages, but is an authority that insult and mdignity are in the nature of exemplary damages and not compensatory. Goddard's case, 57 Me., 202, was an action for a gross assault by a brakeman, plaintiff being a passenger and sick, for not j)resenting a ticket when called for, when in fact he had given up his ticket to the conductor, and so told the brakeman. A verdict was rendered for near $5,000, and was put upon two grounds: 1. A breach of contract to cany safely. 2. Tort and exemplary damages. It appeared in evidence that the defendant was notified of the conduct of the brakeman and retained him in its service, and the court holds tliis a rati- fication and approval of the assault. It is true the court held that exemplary damages were recoverable, if the act had not been ratified by the company; but as no such case was before the court, it was dictum. In Bryant v. Rich, the steward of a steamboat assaulted and beat a passen- ger without provocation. The extent of mjury is not shown. No instructions were given on the subject of damages, and none were asked, nor was the sub- ject discussed in the trial court. Tlie plaintiff recovered $8,000.00. No motion for a new trial was made on the ground of excessive damages, and for that reason the Supreme Court refused to entertain the question. The trial court instructed the jury that defendant was not liable for ttie assault made by the steward, because he was not in the line of his duty; but the tes- timony showed that the assault lasted from ten seconds to ten minutes, and he submitted it to the jury to say whether it lasted so long that the officers of the boat had time to have stopped the assault, and were guilty of negligence because they did not; and if they so found, then the defendant was Uable for all the injury inflicted, after the assault and beating might have been stopped. The Supreme Court, instead of affiiiuing the case as well tried below, put the right of recovery on the ground that defendant was Uable as for a breach of contract to carry safely, and also that defendant was iikble for the criminal EXEMPLARY DAMAGES. 105 Criminal Liabiliti', Prosecution and Punishment. injury to his reputation, the circumstances of indignity and contumely under which the wrong was done, and the conse- quent public disgrace to the plaintiff, together with any other circumstances belonging to the wrongful act, and tending to the plaintiff's discomfort.'"' § 89. Criminal Liability or Prosecution and Punish- ment for the Wrong. -It frequently occurs that the wrong- doer is prosecuted, or liable to prosecution and punishment for the offense to the public, as well as civilly for the injury done thereby to an individual. The principles of the common law prevented a recoverj' in a civil suit in such cases, or at least imtil the wrongdoer was criminally prosecuted.' But such is no longer the case ; and although the defendant may have been prosecuted and punished for the public offense, it will not even prevent the recovery of exemplary damages. Nor is the right acts of the steward, committed without the authority or approval of the defendant. The questions decided by the court were never raised, or argued by counsel in either court. The whole opinion is dictum. They cite the Goddard case, and base their opinion upon it. Railways are held to the highest degree of care of which human foresight is capable; that their track, and machinery, and trains shaU be safe and road- worthy ; but they are not insurers of safety of their passengers against unavoid- able casualties, or the acts of God. In like manner they undoubtedly ought to be held to the liighest degree of care in the selection of sober, peaceable and gentlemanly employes who shall have charge of their passengers. If a single rail out of a hundred ndles of new iron rails, should break by reason of a latent defect, no one would think of holding the railway responsible (if this was the only fault) for the death of a passenger caused thereby. Until the doctrine of ' total depravity ' shall be overthrown, it will be easier to find absolutely perfect iron rails enough to span the continent, than to find one conductor or brakeman whose Christian meekness shall always be adequate to live peaceably ^vith the average American 'bummer.' But, conceding that the employe is wholly at fault and, without provoca- tion, is guilty of a mahcious assault, or wantonly iU treats a passenger, ought the company to be liable beyond actual damages, unless the company has been guilty of some neglect in the employment of the servant, or authorized, approved, or ratified the act? Both authority and reason answer no." »2Gr. Ev., §267. 3 Hill, on Torts, 59 and 61. 106 THE LAW OF DAMAGES. Criminal Liability, Prosecution and Punishment. to recover such damages prevented by the constitutional pro- vision which prohibits more than one punishment for the same offense. A leading case bearing on this question, is that of Childs v. Drake, in which the court say: "Every recovery for a personal injury, with or without vindictive damages, operates in some degree as a punishment, but it is a punishment which results from the redress of a private wrong, and does not, therefore, violate either the meaning or spirit of the constitution. * * The damages are allowed as compensation for the loss sus- tained, but the jury are permitted to give exemplary damages on account of the nature of the injury. It is, therefore, the increase of the damages resulting from the character of the defendant's conduct, that is denominated punitive or vindic- tive damages."^ So, in the Court of Appeals of New York, in an action for assault and battery, the court remarked: "In vindictive actions, (and this is agreed to come within that class,) jurors are always authorized to give vindictive damages when the injury is attended with circumstances of aggravation, and the rule is laid down without the qualification that we are to regard either the probable or the actual punishment of the defendant by indictment and conviction at the suit of the peo- ple. We concede that smart inoiiey allowed by a jury, and fines imposed at the suit of the people, depend on the same principle. Both are penal and intended to deter others from the commission of like crimes. The former becomes inciden- tally compensatory for damages, and at the same time answers the purpose of punishment."^ The same doctrines have been held in California," Iowa' and other states.' 4 2 Met. (Ky.). 14G. s Cook V. Ellis, 6 Hill, 466. 6 Wilson V. Middleton, 2 Cal., 54. 7 Hendrickson v. Kingsburj-, 21 Iowa, 379; Garland v. Wliolebam, 28 Id., 185. 8 Corwin v. Walton, 18 Mo., 71; Cole v. Tucker, 6 Tex., 266. EXEMPLARY DAMAGES. 107 Criminal Prosecution— Mitigation— Contrary Doctrine. §90. Criminal Prosecution, etc., in ^litigation. — In some of the states evidence of a conviction and punishment for the same offense for which damages are claimed in the civil suit, may be given in mitigation of exemplary damages. Thus, in North Carolina, evidence of conviction for the crime and payment of a fine may be given in mitigation of exem- plary damages in an action for the injury, but it does not bar the right of a civil action, or the claim for punitive damages altogether, as a matter of law.' And this doctrine is also held in Pennsylvania;' and should be sustained as founded in prin- ciples of justice and in common sense. § 91. Contrary Doctrine.— A contrary doctrine is, how- ever, held, or to be inferred, from the decisions in some of the states ;'' and in a recent case in Vermont, it is distinctly repu- diated.* In Massachusetts and Indiana, the right to exem- plary damages in such cases is denied, and it is held, that to allow damages as a punishment to the offender, where he might be prosecuted for the offense as a crime, would suijject him to a double punishment for the same offense; and in such cases, therefore, punitive damages cannot be recovered.* Nemo debet his vexari jpro eadetn causa. But this, as we have seen, is not the general rule. » Smithwitli v. "Ward, 7 Jones, (N. C.) L., 64; Johnston v. Crawford, Phelps (N.C.)L., .342. ^ Porter V. Sieler, 23 Pa. St., 424. 3 Roberts v. Mason. 10 Ohio St., 277; Corwin v. Walton. 18 Mo., 71; Cook V. Ellis, 6 HiU, 466; Klopfer v. Bromme, 28 Wis., 372; Hendrickson v. Kings- bury, 21 Iowa, 379; Garland v. Wholeham, 26 Id., 186; Cole v. Tucker, 6 Texas, 266. * Hadley v. Watson. 45 Vt., 289 (1873), in wliich the court held, in an action for an assault and battery, that a conviction and fine for the offense, in a criminal proceeding, was neither a bar nor matter in mitigation of exemplary damages. s Austin V. Wilson, 4 Cush., 273; Tabor v. Huston. 5 Ind., 322; Butler v. Mercer, 14 Id.. 479; Nassaman v. Rickert, 18 Id., 350; Humphreys v. John- sons, 20 Id., 190. 108 THE LAW OF DAMAGES. Exemplary Damages Refused— When Principal not Liable. § 92. Where Exemplary Damages have been Refused. — The consideration of this subject would hardly be complete without some reference to cases where exemplary damages have been denied by the courts. It must be apparent that there is a large class of cases that lie close upon the border line of the rule which allows or excludes such damages; and many times it is difficult to determine, from the facts of the case, even where the rule of exemplary damages is recognized, whether or not the case is one to which it should be applied. And especially is this true in many cases of negligence, where it tarns upon the question whether or not there is that gross negligence which, under the rule, holds a party to exemplary damages. Thus, it has been held, that in cases of negligence unaccom- panied by willful intent and malice, the award of smart money should not be allowed.* § 93. The Principal: When not Liable to Exemplary Damages. — As we have seen, the principal is not liable to exemplary damages for the negligence of his servant or agent, unless there was express or implied authority of the principal for the negligence, or an approval or indorsement of the same by the principal.' So, it has been held that a plaintiff cannot have exemplary damages in an action for a nuisance, if the defendant exercised 6 Moody V. McDonald, 4 Cal., 297; St. Peter's Church v. Beach, 26 Conn., 355; WiUiams v. Real, 20 111., 147; Allison v. Chandler, 11 Mich., 542; Goetz V. Ambs, 27 Mo., 28. See, also, ante, § 79. 7 Wardrobe v. Stage Co., 7 Cal., 118; Kentucky, etc., R. Co., v. Dills, 4 Bush (Ky.), 593; Hagan v. Providence, etc., R. Co., 3 R. I., 88; Milwaukee, etc., R. Co. V. Finney, 10 Wis., 388; Chicago, etc., R. Co. v. McKean, 40 111., 218. See, also, ante, §§ 85, 86. So, vindictive damages will not be awarded against the master of a vessel for whipping a seaman, unless the punish- ment has been wantonly inflicted by the master, with the view of the dis- grace and mortification of the libelant, and not for the enforcement of discipline. Gould v. Christianson, 1 Blatch. & How. (U. §. C. C), 507. EXEMPLARY DAMAGES. 109 When Principal not Liable. due care and prudence himself, and the damage occurred by the nefflect of his workman to follow directions/ So, where a party attempts by force, to take property from one who lias acquired peaceable possession of the same, and the party resists such efltbrt, the latter should not be punished by exemplary damages, unless he was guilty of excess, and acted from motives of malice." So, in an action for damages caused by a collision, whereby the plaintiff lost a foot, and a horse and truck; the court held, that as the injury was not willful, compensation was all that the plaintiif could claim, and that it was not a proper case for vindictive damages.' And where execution was issued on a void judgment, the party in whose favor it was issued not suspecting its invalidity, and acting on the advice of counsel, caused the seizure of property under it, in the ordinary manner; it was held, that as there was an absence of any apparent malice, a refusal to allow exemplary damages was proper.'' So, a sheriff or constable who is not guilty of a gross and willful neglect in not serving process, but acts in good faith, though erroneously, is only liable for the actual damage which a party sustains by reason of his neglect.' And where a person built a house on the land of another, supposing it to be his own, and so near the house of the owner as to darken it and otherwise greatly impair its value; it was held, in an action therefor, that the jury should be confined to the actual pecuniary injury and could not give exemplary damages.* 8 Morford v. Woodworth, 7 Ind., 83. 9 Barnes' V. Martin, 15 Wis., 240. ' Heil V. Glanding, 42 Pa. St., 493. ^ Selden v. Cushman, 20 Cal., 56. 3 Blodg-ett V. Brattleboro', 30 Vt., 579. See, also, Big^s v. D'Aquin, 13 La. An., 21 ; Carter v. Tufts, 15 Id., 16; Beveridge v. Welch, 7 Wis., 465. See, also. Snow v. Grace, 25 Ark., 570. t Hayes v. Askew, 7 Jones (N. C.) L., 272. 110 THE LAW OF DAMAGES. Breach of Promise of Marriage. So, in actions for false imprisonment, exemplar}^ damages can only be given where it appears that the wrong done, of which the plaintiff complains, was done with evil intention or bad motives." So, where one disobeys an injunction order, acting lona fide, under the advice of counsel, punitive damages should not be awarded." So, they should not be allowed in an action for the illegal seizure and asportation of goods, when there is no evidence of wanton or malicious wrong on the part of the defendant/ And, where it appeared, in an action for trespass upon lands, that the defendant had accepted, by letter, an offer for the sale of the lands, which had been received by mail, but that owing to the unavoidable detention of the mails, the letter of acceptance was not received by the vendor, until the lands were sold to a third person, and the acts of trespass were committed after the mailing of the letter of acceptance, and before the defendant had received notice of the sale to the third party, it was held, that while these facts constituted no defense to an action for single damages, yet if the defendant acted in good faith and in the belief that the offer would secure him the legal title to the land, the case was not within the puni- tive operation of the statute, awarding treble damages for willful trespass on lands.* § 94. Breach of Promise of Marriage.— There is one exception, at least generally recognized to the doctrine, that in actions for breaches of contract, nothing can be claimed 5 McCall V. McDowell, 1 Abb. (U. S.), 212. 6 Erie R. Co. V. Ramsey, 3 Lans. (N. Y.), 178 (1872). 7 Wanamaker v. Bowes, 36 Md., 42 (1873); Engle v. Jones, 51 Mo., 316 (1873). 8 Wallace v. Finch, 24 Mich., 255, in which the court held, that the penal application of the statute should be confined to cases marked by wantonness, willfulness, or evil design, such as to remove them somewhat nearer the domain of crime, than common civil trespasses. EXEMPLARY DAMAGES. Ill Breach of Promise of Maniage. beyond actual damages — or, in other words, that exemplarj damages cannot be claimed in actions ex contracUi. And this occurs in case of a breach of contract to marry. In this action exemplary damages have always been held proper, but this was considered an exception to the general rule. The damages in this action rest in the sound discretion of the jury, under the circumstances of each particular case; and they can be measured by no known standard.' 9 But this, as we have seen, is not irreconcileable with the theory of com- pensation only, as maintained by its advocates. See, ante, § 72, and^^os^, Chap. 17. But see, also. Southard v. Rexford, 6 Cow., 254; Coryel v. Col- baugh. Coxe (N. J.), 77; Stout v. Prall.Id., 79; Dinslow v. Van Horn, 16 la., 476; Berry v. Da Costa, 1 H. & R., 291; 1 L. R., C. P., 331; 12 Jur. N. S., 588; 35 L. J., C. P., 191; 14 W. R., 279; Smith v. Woodbine, 1 C.B., N. S.. 660. 112 THE LAW OF DAMAGES. Aggravating Circumstances on Part of Plaintiff. CHAPTER YII. MITIGATION OF DAMAGES. Section 97. Aggravating Circumstances on the part of the Plaintiff. 98. Libel and Slander. 99. General Suspicions. 100. General Bad Character of the Plaintiff— "When it May bo Shown in Mitigation. 102. Defendant Allowed to Rebut the Presumption of Malice. 103. Criminal Conversation— Mitigation, 104. Seduction. 105. What May be Shown in Mitigation. 106. "What Cannot be Shown. 107. Breach of Promise of Marriage. 108. "What May be Shown in Mitigation. 109. False Imprisonment— Mitigation. 110. Mitigation in Cases of Conversion and Trespass. 112. Good or Bad Faith as AfiTecting. 114. Trespass and Trover— Distinction, as to Measure of Damages. 115. Personal Injuries— Assault and Battery. 120. Pecuniary Circumstances of the Defendant. 121. Bad Character of the Plaintiff— No Mitigation. 122. Indictment, Conviction or Fine for the Offense. 124. Malicious Prosecution. 125. Moral Guilt as Affecting Damages. § 97. Aggravating Circumstances on the part of the Plaintiff. — Our seventh rule, in the introductory chapter,' relates to the mitigation of damages. » Ante, § 32. The subject of mitigation will be hereafter fully considered in connection with our treatment of damages in cases of vaiious torts. MITIGATION OF DAMAGES. 113 Libel and Slander. The law views the imperfection of human nature with such tender regard that, in an action against a tortfeasor for an injury, it permits him to show, in mitigation of damages, any- aggravating circumstances on the part of the plaintiff or injured party, and constituting a part of the res gestcB, tend- ing to provoke the defendant to the commission of the wrong. And the defendant may always be permitted to show that the wrong was done without malice. § 98. Libel and Slander.— Thus, in an action for libel, the defendant may show, in mitigation of damages, that recently, before the publication of the libel, the plaintiff had also published one on the defendant.^ And it may be shown in mitigation of damages, in an action for slander, that the plaintiff provoked the anger which resulted in the use of the slanderous words, or the publication of the libel.' So the defendant may show in mitigation of damages, that he copied the libelous matter from another newspaper, and omitted several passages contained in that paper, which reflected on the character of the plaintiff.* And it may be said generally, that the fact, that slanderous words were spoken in the heat of passion or under excitement, may properly be shown in mitigation of damages, but not in bar of an action for such slanderous words.* » Watts V. Fraser, 7 Car. & P., 369; Child v. Homer, 13 Pick., 503. 3 Freeman v. Tinsley, 50 111., 497. See also, Richardson v. Northrup, 56 Barb. (N. Y.), 105; Frazer v. Berkley, 7 C. & P., 623. In many cases, under the modem practice, these matters of mitigation could be made the subject of a counter-claim. Richardson v. Northrup, 56 Barb. (N. Y.), 105, (1867). See also, "Watts v. Fraser, 7 A. & E., 223; 1 M. & Rob., 449; 7 C. & P., 369; Moore v. Oastler, 1 M. & Rob., 451; Duncombe v. Daniell, 2 Jur. (Q. B.), 32; Tarpley v. Blably, 7 C. & P., 395; 2 Bing., 437; 2 Scott, 642; Hodges, 414. 4 Creevey v. Carr, 7 C. & P., 64. See also, Davis v. Catbush, 1 F. & F., 487. sMousler v. Harding, 33 Ind., 176. (1870). And aggravating circum- stances and the heat of passion of the speaker, although not a defense to an 114 THE LAW OF DAMAGES. General Suspicions. So it may be shown in mitigation, that from the conduct of the plaintiff the defendant believed, and that it was reasonable to believe, that the charge was true; or that the charge was made under a mistake and was retracted in a public and proper manner/ § 99. General Suspicions.— It has been frequently, though not universally, held that the defendant in an action for slander may show, in mitigation of damages, general suspicions and common reports of the guilt of the plaintiff of the crime charged by the defendant, and for which the action is brought.' action for slander, may be considered in mitigation of damages; and whether exemplary damages should be allowed, is a question for the jury under all the circumstances of the case. Miles v. Harrington, 8 Kans., 425, (1871); Jarni- gan V. Fleming, 43 Miss., 710. See also, in support of the text, Hotchkiss v. Lathrop, 1 Johns., 286; Beardsley v. MajTiard, 4 Wend., 336; 7 Id., 560; Gould V. Wead, 12 Id., 12; Dolevm v. WQdcr. 34 How. Pr., 489; Lamed v. Buffington, 3 Mass., 546; McClintock v. Crick, 4 la., 453; Ranger v. Good- rich, 17 Wis., 78; Brown v. Brooks, 3 Ind., 518; Powers v. PresgTOves, 38 Miss., 227; Duncan v. Brown, 15 B. Men.. 186; Steever v. Buhler, 1 Miles, 146; Else V. Ferris, Anthony (N. P.). 23; Wakeley v. Johnson, Ry. & M., 422; Watts v. Fraser, 34 Eng. C. L., 82; Thomas v. Dunnaway, 30 111., 373; Botolor V. Bell, 1 Md., 173; Long v. Eakle, 4 Id., 454; Davis v. Griffith, 4 GUI & J., 342. 7 Lamed V. Buffington, 3 Mass., 546; Mapes v. Weeks, 4 Wend., 663; 2 Stark, on Slan., 95; Hotchkiss v. Ohphant, 2 Hill, 510. 8 2 Stark, on Slan., 84 and 88, note; 2 Gr. on Ev., § 275;Hoct v. Reed, 1 B. Mon,, 166; Treat v. Browning, 4 Conn., 408; Walcott v. Hall, 6 Mass., 514; Alderman v. French, 1 Pick., 1; Mullett v. Hulton, 4 Esp., 248; Bodwell v. Swan, 3 Pick., 376; Root v. King, 7 Cow., 613; Matson v. Buck, 5 Id., 499; McAlexander v. Harris, 5 Mumf., 465; Boice v. McAHster, 3 Fairf., 310; Ful- ler V. Dean, 31 Ala., 654; Morris v. Baker, 4 Har., 520; Fletcher v. Burrows, lOIa., 557; Moyerv. Pine, 4 Mich., 409; Bradley v. Gibson, 9 Ala., 406; Sheehan v. CoUins, 20 111., 325; Walthman v. Weaver, 1 D. & R., 10; Nelson V. Evans, 1 Dev., 9; Caloway v. Middleton, 2 A. K. Marsh., 372; Binns v. Stokes, 27 Miss., 239; Weatherby v. Marsh, 20 N. H., 561; Case v. Marks, '20 Conn., 248; Bridgman v. Hopkins, 34 Vt., 532. But see, Waithman v. Weever, 11 Price, 257, note; Bracegirdle v. Bailey, 1 F. & F., 123; Talbutt V. Clark, 2 M. & Rob., 312; Hampton v. Wilson, 4 Dev., 468; Haskins v. Lumsden, 10 Wis., 359; Moberly v. Preston, 8 Miss., 462; Cude v. Redditt, 15 La. An., 492; Dane v. Kenny, 5 Foster (N. H.), 318; Lewis v. Niles, 1 mitigatio:n' of damages. 115 General Character of Plaintiff. And it is proper to show in mitigation of damages, any- thing indicating that the defendant did not act wantonly or nnder the influence of malice; or the character and degree of the malice; such as misconduct of the plaintiff giving rise to the charge, and causing it to be believed that it was true; or opprobrious words addressed hj the plaintiff to the defendant, either verbally or in writing; or that the j^laintiff, in any manner, provoked such anger as resulted in the use of the slanderous words, or that they were spoken in the heat of passion or under excitement.* So the extreme youth, or even partial insanity, of the defendant may be shown in mitigation, not only as tending to show a want of malice, but as lessening the effect of the slander." But the defendant cannot show his own want of veracity for the purpose of mitigation." § 100. General Bad Character of the Plaiiititf in Mitigation. — The j^laintiff's general bad character may also be shown in mitigation of damages, in an action for slander, for the reason that to slander one of bad character is of less damage than one of good character; and it may be especially Root, 346; Night v. Foster, 39 N. H.. 576; Woolcott v. HaU. 6 Mass., 514; Alderman V. French, 1 Pick., 1; Walkin v. Hall, Law R., 33 Q. B., 396; Innman v. Foster, 8 Wend., 602; Kennedy v. Gifford, 19 Id., 296; Mapes v. Weeks, 4 Id., 659; Watson v. Buck. 5 Cow., 499; Fisher v. Pattison, 14 Ohio, 418; Scott V. McKinish, 15 Ala., 662; Haskins v. Lumsden, 10 Wis., 359; Beardsley v. Bridgman, 17 la., 290; Regnier v. Cabot, 2 GHin., 34. See also, Townsend on Slan. and Libel, § 410, et seq; Wilson v. Fitch, 41 Cal., 364. 9 Jlousler V.Harding. 33 Ind., 176 (1870); Alpine v. Morton, 21 Ohio St., 536 (1871); Hotchkiss v. Lathrop, 1 Johns.. 286; Child v. Homer, 13 Pick., 503; Lamed v. Biffington, 3 Mass., 546; Beardsley v. Maj-nard, 4 Wend., a36; Miles V. Harrington, 8 Kan., 425 (1871); Go'old v. Wead, 12 Wend., 12; 2 Gr. Ev., § 275; Freeman v. Tinsley, 50 111., 497; Huson v. Dale, 19 Mich., 17, where there is a review of many cases; Reynolds v. Tucker, 6 Ohio (N. S.), 516; Bradley v. Heath, 12 Pick., 163; HajTvood v. Foster, 16 Ohio, 88. '" Dickinson v. Barber. 9 Mass., 225; 2 Gr. Ev., § 275. " How V. Perr}-, 15 Pick., 506. 116 THE LAW OF DAMAGES. Defendant Allowed to Rebut Presumption of Malice. shown that it was bad in reference to the charge that was made bj the defendant, or tliat the plaintiff had been suspected of the crime charged, and that in consequence thereof his relations and acquaintances had ceased to visit him.'' § 101. The same general principles apply in mitigation of damages in an action for a libel, as in slander. Thus it may be shown, in mitigation of damages, that the plaintiff was generally suspected and commonly reputed to be guilty of the particular offense imputed to him; that the character of the plaintiff was bad; that the charge was occasioned by the misconduct of the plaintiff, leading to the belief that he was guilty; or that the libel was the result of a mistake; or that it was received from a third person;" or that it was copied from another paper, and credit given therefor;'* or that the defendant was at the time non-com.po8 meniisj^^ or matters of a like character. § 102. The Defendant Allowed to Rebut Presump- tion of Malice. — The defendant is allowed, in mitigation of damages, the fullest opportunity, in an action either for slander or libel, to rebut the presumption of malice. And for this purpose he may show the circumstances under which the publication was made, the source of his information, and the motives which induced the publication. And public interest, and due freedom of the press, demand that the conductors of public journals should not be liable for '= 1 Hill on Tort, 403; Tovrasend on S. & L., § 406, et seq; Earl of Lieces- ter V. Walton, 2 Camp., 251; 2 Stark, on Slan., 77, 88; Walcott v. Hall, 6 Mass., 514. But see, as to what extent damages may be affected in an action for slander by the good or bad character of the plaintiff, Adins v. Smith, 48 111., 417 (1872). '3 Dole V. Lyon, 10 Johns., 447; De Crespigny v. Wellesby, 5 Bing., 392. '* Dickinson v. Barbour, 9 Mass., 225. But this would be no justification. McDonald v. Woodruff, 2 Dill., 244 (1871). isTobarfcv. Tipper, 1 Camp., 350; Dickinson v. Barbour, 9 Mass., 225. And see, Yates v. Reed, 4 Blackf., 463; Byran v. Jackson, 6 Humph., 199. MITIGATION OF DAMAGES. 117 Criminal Conversation— Seduction. punitive damages, on account of publications made, wliere thej are influenced by laudable motives, and where the same is published after due inquiry and care to ascertain the truth of the facts stated, and in the honest belief that they were true.'" § 103. Criminal Conversation— Mitigation. — The basis of this action is the loss of comfort, fellowship, society, and assistance of tlie wife; and in such an action it is competent to show, in mitigation of damages, any facts tending to establish that the damage in this respect is but little, as that the plaintiff and his wife did not live together as husband and wife; or that he ill treated his wife before the criminal inter- course; or that he suffered her after their marriage to remain with lier mother as though she was single, and to continue theatrical performances in her maiden name; or other facts, tendmg to show that there was inharmony between the parties and but a trifling injury to the relations of the plaintiff to his wife." So it has recently been held proper to show the condition in life and pecuniary circumstances of the respective parties, as matters properly affecting the amount of damages.'* § 104. Seduction. — The common law action of case for seduction, is based upon the legal fiction of loss of service of '« Wilson V. Fitch, 41 Cal., 363. See, also, Bennett v. Mathews, 64 Barb. (N. Y.), 410 (1872); Frink v. Justh, 14 Abb. (N. Y.), Pr. N. S., 107 (1872). '7Calcraftv. Earl of Harborough, 4 Car. & P., 499; Palmer v. Cook, 7 Gray (Mass.), 418; Bennett v. Smith, 21 Barb., 439. See, also, Sanborn v. NeUson, 4 N. H., 501; Rea v. Tucker, 51 111., 110. »8 Rea V. Tucker, 51 111., 110 in which case it was also held admissible to prove, in mitigation of damages, that the wife had been guilty of adultery with other men before her connection with the defendant. But in Con- necticut, it was held that the defendant could not show his own poverty in order to diminish damages. Case v. Marks, 20 Conn., 248. 118 THE LAW OF DAMAGES. Wliat Shown in Mitigation— What Cannot be Sliown. the seduced, by the parent or master, and the jury have a dis- cretion to award exemplary damages.'* There is no right of action given to the parent at common law for seduction, as such, but the right, founded on " loss of services," is, in reality, mainly to punish the seducer in dam- ao-es for the wrono; done, as well as to afford some redress to the parent for tlie dishonor and distress wliich follows it.^" § 105. What May be Shown in Mitigation.— But, in an action for seduction, the defendant may show, in mitigation, that the daughter had had intercourse with other men." And evidence of careless indifference on the part of the parent, in affording opportunities for criminal intercourse with the daughter," or any facts bearing on the relations of the persons whose conduct is in question, and which constitute a part of the res gestm, may be shown in mitigation." And in Iowa, under a statute providing for an action by the female for lier own seduction, it was held, that the bad character of the female before the seduction may be shown in mitigation but not as a complete defense." § 106. AVhat Cannot be Shown in Mitigation.— But it is held incompetent in an action by the parent, to show the parent's insensibility to the daughter's disgrace;" or that the female consented willingly to the seduction; or even that she in fact seduced the defendant; her consent not depriving the parent of a right to damages.^" «Ballv. Bmce, 21 111., 161; Bartley v. Riclitmyer, 4 Cow., 38; Stout v. Prall, Coxe, 79. =° Ellington v. Ellington, 47 Miss., 329. =' Verry v. Watkins, 7 C & P., 308. Also, general bad character for chastity may be shown. Carder v. Fonhand, 1 Mo., 704. « Zerfing v. Mowrer, 2 G. Greene (la.), 520. =3Threadgood v. Litogot, 22 Mich., 271 (1871). =4 Smith V. Wnbum, 17 la., 30. =s Bolton V. Miller, 6 lud., 262. ^ McAuley v. Birkhead, 13 Ired. (N. C), S. 28. MITIGATION OF DAMAGES. 119 Breach of Promise of Marriage -What may he Shown in Mitigation. But these circumstances it seems to me would be proper in mitigation, where the action is broui^-ht by the seduced party. It has also been held that the defendant's liability to a crim- inal prosecution for the seduction, and for procuring an abor- tion upon the female seduced, is not proper matter to be con- sidered in mitigation of even exemplary damages." § 107. Breach of Promise of M.irri.age— We have seen that in this action, although for a breach of contract, the meas- ure of damages has never been limited to those rules govern- ing actions on contracts generally. The claim is usually based upon injury to the feelings and affections; for wounded pride, as well as for pecuniary loss, caused by the breach; and no precise rule for the measure of the loss can be giyen in such a case.'^* § 108. What may be Shown in ^litigation .— But cir- cumstances, such for instance as the Kmited time during which the engagement has existed,"' and want of yirtue and sobriety of the seduced and her dissolute conduct after the engage- ment, or before, if unknown to the defendant at the time," may be shown in mitigation of damages. So, it is competent to show the fact that the plaintiff had an illegitimate child, if unknown to the defendant at the time of the promise;"' or that she had connection with other men, before or after the promise, and this notwithstanding the engagement was formed or continued after knowledge of the fact by the defendant; on =7 Klopfer V. Bromine, 26 Wis., 372. =8 Thom V. Knapp, 42 N. Y., 474. See, j^ost, § 534. =9 Grant v. Wiley, 101 Mass., 356. 3° Boynton v. Kellogg, 3 Mass., 189. But see, Johnson v. Smith. 3 Pitts. (Pa.), 184, where it is held, that improprieties and lewdness between the pai-ties betrothed, should not be received.eitherin aggravation or mitigation of damages. See also. Miller v. Hays, 34 la., 496. 3t Denslow v. Van Horn, 16 la., 476; Johnson v. Calkins, 1 Johns. Cases, 116; Millard v. Stone, 7 Cow., 22; Palmer v. Anckews, 7 Wend., 14:3; Foulks V. Selway, 3 Esp., 236; Bradly v. Mortlock, 1 Holt, N. P., 151; 3 Eng., C. L., 59. 120 THE LAW OF DAMAGES. False Imprisonment— Mitigation. the ground that an unchaste woman cannot be injured, by a breach of promise of marriage, to the same extent as a vir- tuous one.^'' So, in this action, it mav be shown in mitigation of damages, that tlie defendant was afflicted with an incurable disease;" or, that the breach proceeded from no change of feelings on the part of the defendant, but was the result of a deference to the feelings and wishes of the defendant's mother, a person of infirm health.^^ But, it is evident that these various matters can only go in mitigation of exemplary damages, and not of such actual damages as may be shown, and which we shall hereafter refer to as recoverable in such cases. § 109. False Imprisonment — Mitigcation.— In an action for false imprisonment, in which the defendant was charged with illegally procuring the plaintiff's arrest and imprison- ment for discouraging enlistments, on an affidavit to that effect made before a federal officer, the defendant was allowed to show in mitigation of damages, that the plaintiff had in fact discouraged enlistments.^^ So, in an action for false imprisonment, the inexperience of the attorney who advised and instituted the proceedings, while it does not justify the arrest, may be given in evidence in mitio^ation of damao:es.^° And seditious language, of a gross and violent character, and which influenced the defendant to order the arrest com- 3= Burnett V. Simpkins, 24 111., 264. 33 Sprague v. Craig, 51 111., 288. 34 Johnson v. Jenkins, 24 N. Y., 252. See also., Sprague v. Craig, 51 111., 288. 3s Roth V. Smith, 54 111., 431. And the defendant may show that he was persuaded by others to make the affidavit upon wliich the arrest was made, as indicating the animus with which he acted, and to avoid or mitigate vin- dictive damages. 41 lU., 314. 36 Mortimer v. Thomas, 23 La. An., 165. MITIGATION OF DAMAGES. 121 Cases of Conversion and Trespass. plained of, was allowed as proper evidence in mitigation of damages." But where a party was arrested on suspicion, and an action for false imprisonment therefor was brought, it was held, that the bad character of the plaintiff could not be shown in mit- igation of damages.'^ This doctrine should, however, be limited to the actual damages. Strong and general suspicion ought to go in miti- gation of exemplary damages.^^ § 110. Mitigation in Cases of Conversion and Tres- pass- — In an action for the conversion of property, the fact that the property has been returned to the plaintiff, may always be shown in mitigation of damages. And, generally, where there is a wrongful taking, and the jDroperty has been re-delivered to the owner or party entitled to possession, or he lias become re-possessed of the same, the measure of damages is the expenses necessarily incurred by reason of the tort; the value of the time required to recover it; the value of the use of the property, and the amount of the injury thereto, if any." And in such actions evidence, tending to repel the presump- tion of malice in the taking or conversion, is always admissible in mitigation of damages. The rule in mitigation of damages, should, on general 37 McCaU V. McDoweU, 1 Abb. (U. S.), 212. 38 Russell V. Huster, 8 Watts & Sarg., 308; Jones v. Stevens, 11 Price, 283. 39 See, ante, § 99, et seq. *° Tamoaco v. Simpson, 19 C. B. (N. S.), 453. See also, opinion by Strong, J., in Mclnroy v. Dyer, 47 Pa. St., 118; Bac. Ab., 628; Vosburgli v. Welch, 11 Johns., 175; Gibbs v. Chase, 10 Mass., 126; Harmon v. Wiley, 17 Wend., 91; Hibbard v. Stewart, 1 Hilt., 207; Pratt v. Battles, 28 Vt., 685; Hurburt V. Green, 41 Vt., 490; Criner v. Pike, 2 Head. (Tenn.), 398; Outcault v. Bur- ling, 25 N. J. L., 443. See also, Keene v. Dilke, 4 Exch., 388; 18 L. J. Exch., 440; Pickering v. Truste, 7 T. R., 53; Butler v. Mehrling, 15 111., 488; Odel V. HaU, 25 Bl., 204. 123 THE LAW OF DAMAGES. Go^l or Bad Faith as Affecting. principles, be the same, whether tlie action be for the wrong- ful conversion or for the wronijfnl takinj;." § 111. And where property wrongfully taken by the tres- passer, has been appropriated to the owner's use hij his consent, ex'press or implied, it goes in mitigation; and such consent is always implied where the property has been seized and sold under process against the owner and in favor of a third party, who is innocent of the trespass and who pur- chases the property in good faith." And where the property, though taken from the jjlaintiif 's possession, did not belong to him, and it went to the use of the true owner, either by being restored to him in specie or taken upon legal process in payment of his debt, the defendant lias been allowed to shovv these facts in mitio-ation of damag-es/* § 112. Good or Bad Faith as Aifecting— The distinc- tion has been recognized in actions of trespass de bonis asportatis, between good and bad faith — good and evil motives — on the part of the wrongdoer." Accordingly, where property was tortiously taken from the possession of the owner, and subsequently levied upon in tlie hands of the tortfeasor by a third person, under a warrant of distraint for rent due from the owner, it was held that these facts might be shown in an action by the owner against the original Avrongdoer, and that if the latter took the property under an honest belief that he had title to it, and not for the 4= See, post, §§ 840, 872, Opinion of Strong, J., in Mclnroy v. Dyer, 47 Pa. St., 121. 43 Bates V. Courtright, 36 III., 518. See also, Kaley v. Shed, 10 Met. (Mass.), 317; Stow v. Yarwood, 14 111., 424. See also, where the plaintiff purchases the property. Mclnroy v. Dyer, supra. 44 Squire v. Hallenbeck, 9 Pick., 551; Criner v. Pike, 2 Head (Tenn.), 398; DeWitt V. Morris, 13 Wend., 496; Pierce v. Benjamin, 14 Pick., 356; Hallett V. Novion, 14 Johns., 273. 45 Criner v. Pike, 2 Head (Tenn.), 398. MITIGATION OF DAMAGES. 123 Good or Bad Faith as Affecting. purpose of subjecting it to the landlord's lien, it would go in mitigation of damages." So, where an officer had paid freight on goods attached by him and afterwards, on demand of a person who had a lien on them for advances, refused to pay the amount of the lien, or to release the attachment, or to deliver the goods to the demandant, in an action by him against the sheriff for the conversion, it was held, that the amount paid by the defend- ant for the freight must be deducted from the value of the goods." And in an action of trespass vi et armis^ for taking away certain property belonging to the plaintiff, and it appeared that the plaintiff had bought the property at a sale made by the constable on an execution against him, but which was unlawfully levied upon, the measure of his damages was held to be, not the value of the property, but what it cost him to regain possession of the same, what he had lost by the depri- vation of the same, and such other damages as were commen- surate with his actual injury." But where the sheriff wrongfully attached and sold goods of the plaintiff he was not permitted, in an action for the same, to show in mitigation that he had voluntarily applied the proceeds to the plaintiff's indebtedness; for every person has a right to adjust his own liabilities in his own way and with- out the unq,uthorized interference of others." And where a sale of goods, was made by a debtor in viola- tion of the State insolvent laws, and the goods, while in the hands of the purchaser, were attached by a creditor who held them till an assignee was chosen, and then delivered them to 4« Higgins V. Whitney, 24 Wend., 379. But see, Otis v. Jones, 21 Wend., 394, where the property was subsequently taken on execution in favor of the wrongdoer. See, also, Sherry v. Schuyler, 2 Hilt, 204. 47 Clark V. Dearborn, 103 Mass., 335. 48 Mclnroy v. Dyer, 47 Pa. St., 121. 49 McMichael v. Mason, 13 Pa. St., 214. 124 THE LAW OF DAMAGES. Distinction at Common Law Between Trespass and Trover. the assignee, these facts were allowed to be shown in mitiga- tion of damages in an action by the purchaser against the attaching creditor/" § 113« And in an action for unlawfully taking and carry- ing away the plaintiff's goods, where it appeared that the defendant had induced the plaintiff's wife to leave her hus- band and had aided her in clandestinely removing the prop- erty, but that she had afterwards returned with the goods to the neighborhood of the plaintiff's residence, and handed him the railroad checks therefor, which he received and delivered to a third person with instructions to take charge of the prop- erty, it was held that there was sufficient acceptance of the property to be considered in mitigation of damages." § 114, Distinction at Common Law between Tres- pass and Trover in respect to the Measure of Dama- ges. — In some of the States the old rule of law prevails, that no malice or any aggravating circumstances can be shown in the action of trover for a conversion; and a distinction in this respect is made between the common law action of tres- pass and trover. In the former action matters in aggravation and punitive damages were held proper, but in the latter these were not so held." Thus, in Yermont, it was held in an action of trover for a pair of oxen, which had been stolen from the plaintiff and were found in the defendant's possession in New York, that the expenses incurred by the plaintiff in regaining possession of the cattle by legal proceedings in l^ew York, could not be included in damages for the conversion." But this is not the general doctrine in this country; and there is a tendency to allow exemplary damages in such cases, and all those remote so Leggett V. Baker, 13 Allen, (Mass.), 470. SI DaHy v. Cowley, 5 Lans. (N. Y.), 301. s» Bacon Abr. Tit. Trover A., A., 3. S3 Harris v. Eldred, 42 Vt., 39. MITIGATION OF DAMAGES. 125 Personal Injuries. losses which are proper to be shown in cases of aggravated trespasses." In an action for the killing of a dog, the defend- ant may show in mitigation the worthlessness of the animal." § 115. Personal Injuries— Assault and Battery.— In actions for assault and battery, the regard of the law for the infirmities of human temper is particularly manifested, and it is proper to show that the plaintiff by his own impru- dence and folly brought the injury upon himself. "^ Thus, in this action it has been held, that the conduct of the plaintiff at the time, being part of the res gestw, and even the character of the plaintiff, may be shown in mitigation of damages. But the declarations or conduct of the plaintiff at other and former times, or any antecedent facts, not constituting part of the res gestcB^ cannot generally be shown in mitigation." Provoking words will not justify an assault and battery, but they may be shown in mitigation.'* And, in an action where an altercation grew out of a question of veracity between the parties, the defendant was allowed to show, in mitigation, that the truth of the matter in dispute was as claimed by him.'' But no provocation will reduce the damages, in an action for assault and battery, below the actual damages, unless it amounts to a justification.^" 54 See opinion of Lowrie C. J., in Forsyth v.Wells, 41 Pa. St., 291; Miller V. Kelley, 69 Pa. St., 403; Backenstross v. Stabler, -3.3 Pa. St., 251. See, also, DeBost v. Bushford, 2 Camp., 511; Davis v. Nest, 6 Car. & P., 167. 55 Dunlap v. Snyder, 17 Barb., (N. Y.), 561. 56 Frazer v. Berkley, 7 Car. & Pay., 621; Mosely v. Dunbar, 24 Wis., 183; Tlirall V. Knapp, 17 la., 468. See, also, ante, § 97, et seq. 57 Mosely v. Dunbar, 24. Wis., 183; Jarvis v. Manlove, 5 Harring. (Del.), 452. 58 Keys V. Devlin, 3 E. D. S. (N. Y.), C. P. R., 518. 59 Marker v. MiUer, 9 Md., 338. «° Berchard v. Booth, 4 Wis., 67. 126 THE LAW OF DAMAGES. Personal Injuries. § 1 16. Any facts and circumstances occurring at the time of the assault, and connected with it, tending to establisli that the defendant was provoked or excited by the plaintiff, or any language on the part of the plaintiff tending to fan the angry passions of the defendant, are admissible in evidence in mitiga- tion of damages; provided, the provocation occurs at the time, or has been so recent and immediate as to induce a presump- tion that the act was committed under the immediate influence of the passions thus wrongfully excited. But, where the offense was committed so long after the words or acts of provocation claimed, as to afford time for cool- ness and reflection, or under circumstances leadinff to the presumption that the battery was done for revenge, the assail- ant stands in the position of an original trespasser, and with- out provocation, and these acts cannot be shown in mitiga- tion.^' § 1 17. In an action by a schoolmaster, against a father for an assault and battery, it was held, that no provocation could excuse the defendant from making full compensation for the actual injury; but if the jury were satisfied that the defend- ant had no previous malice towards the plaintiff, and no design to injure him in the estimation of the public; that he acted in the heat of passion caused by the appearance of his son, who had received severe corporeal punishment from the plain- tiff, and on the statements of his son in relation to his treat- ment by the plaintifl"; these were circumstances to reduce the damages from exemplary to such as were compensatory." § 118. And, generally in actions for willful injuries to the person, where vindictive damages are claimed, the defendant «' Ireland v. Elliott, 5 la., 478; Waters v. Brown, 3 A. K. Mar., 559. See, also, Willis v. Forest. 2 Duer. (N. Y.), 310; Collins v. Todd, 17 Mo., 537; Tyson V. Booth, 100 Mass.. 258; Jacobs v. Hoover, 9 Minn., 204; Coming v. Coming, 2 Seld. (N. Y.), 97. «» Cushman v. WaddeU, 1 Bald. { U. S. C. C), 59. MITIGATION" OF DAMAGES. 127 Pecuniary Circumstances of Defendant. should not be restricted, in proving matters which took place at the very time of the injury complained of. But he has a right to show the jury the true relations of the parties, and any facts and circumstances relating to the act, in order that they may determine how far it was wanton, malicious, vindic- tive or unprovoked, or how far extenuated by the conduct, declarations or provocations of the plaintiff."' And, although the general rule is that the defendant cannot show, in mitigation, provocations not strictly part of the res gestce; yet where the provocation of an assault and battery consisted of a combined attack, in which the plaintiff took part as a confederate, it was held admissible to show that he took part in previous threats and attacks." § 1 19. And, in an action for an assault and battery, it may be proper to show the attending circumstances, as they fre- quently characterize the transaction and are a part of it, though not the act of either party. Thus, in such an action, it was held proper to show whether the defendant, Avhen attacked, was alone or surrounded by persons who could aid him; whether his life or personal safety were in peril; and whether persons, if present at the time, were friendly or unfriendly to him, and declarations made by them at the time. And, in such a case, it was held proper to show that a bystander interfered by act or speech, and what such act or speech was. But proof of the words spokei> is evidence only of the fact, and not of the truth of the words." § 120. Pecuniary Circumstances of the Defendant. — In a recent case, in New Hampshire, it was held that where punitive damages are proper to be awarded, it is also proper for the jury to inquire into the pecuniary circumstances of the defendant, because what would be a severe punishment for a «3 Prentiss v. Shaw, 56 Me., 427 (1869). «4 Tyson v. Booth, 100 Mass., 258 (1868). 6s Castner v. SUker, 33 N. J. L., (4 Vr.,) 507. 128 THE LAW OF DAMAGES. Bad Character of Plaintiff no Mitigation— Indictment— Conviction— Fine. poor man by way of punitive or exemplary damages, might not be felt by one who was rich." This doctrine, however, is not generally accepted and • it may be questioned whether it is sound in principle. If the wealth of the defendant may be shown to increase damages, the correlative of the proposition should also be accepted and the defendant allowed to mitigate his damages by showing his povert3^" Under such a rule, the amount of a recovery for a tort might be exceedingly uncertain. One day a man might recover a large amount of damages, for the same injury, for which the next day he could only recover a much smaller amount, depending upon the pecuniary ability of the defend- ant on the day of trial. § 121. Bad Character of the Plaintiff— no 3Iitiga- tion* — The general bad character of the plaintiff in such an action, or his association with persons of ill repute, cannot palliate the offense or mitigate the damages.** Nor can the defendant show that the injury was more aggravated by the intemperate habits of the plaintiff than it would have been if his habits had been temperate."' § 122. Indictment, Conviction or Fine for the Of- fense. — It has also been held in some states that the defend- ant cannot show, in mitigation of damages, that he has been indicted, convicted or fined for the same offense," although this was formerly a defense to a civil action." But in Penn- « Belknap v. Boston & Maine R. Co., 49 N. H., 358. «7 See Hunt v. Chicago & N. "W., etc., R. Co., 26 la., 363, and Guenge- rech V. Smith. 34 la., 848, where the doctrine of Belknap v. Boston, etc., R. Co., supra, is questioned if not repudiated. See also, Kamey v. Pailsey, 13 la., 89. ^ Bruce v. Priest, 5 Allen, (Mass.), 100. 69 Littlehale v. Dix, 11 Gush. (Mass.), 364. 7° Wolff V. Cohen, 8 Rich., 144; Wheatley v. Thorn, 23 Miss., 62; Phillips V. Kelley, 29 Ala., 628. 7' 1 Hill, on Torts. 58. 59. MITIGATION OF DAMAGES. 129 Malicious Prosecution— Moral Guilt. sylvania the record of a trial on an indictment for the same offense, was held admissible in evidence in mitigation." And we have already noticed that a conviction or payment of a fine, for the same ofi'ense, is held in North Carolina to be proper matter in mitigation of exemplary damages.'^ And we have fully' indorsed this doctrine as founded on the soundest principles. § 123. In an action by the husband and wife for an assault and battery committed on the wife, previous miscon- duct of the husband cannot be shown in mitigation. Nor wliere the act complained of consists in forcibly turning the plaintiff out of premises, which lie is fraudulently occupying, can the fraudulent possession be shown in mitigation of the real and actual damages sustained. But it would be compe- tent to show such facts in mitigation of exemplary damages, where the fraud had been recently discovered, and the defend- ant acted under an excitement produced thereby.'" § 124. Malicious Prosecution.— In actions for4amages for malicious prosecutions it must appear, not only that there was malice but a want of probable cause," and as we shall hereafter have occasion more fully to notice, a termination of the prosecution, either civil or criminal, in favor of the plaintiff.'" § 125. Moral Guilt— And where the plaintiff has incur- red the moral guilt of the crime of which the defendant sought to convict him, and he escaped conviction merely on technical grounds, if he can recover anything in the action it can only be actual damages." 72 Porter v. Seiler, 23 Pa. St., 424. 73 Ante, §§ 85, 86. 74 Jacobs V. Hoover, 9 Minn., 204. 75 Savil V. Roberts, 1 Salk., 14; Parton v. Honnor. 1 Bos. & P., 205; Van Duszer V. Lendeman, 10 Johns., 106; The South Royalton Bk. v. Safford Bk., 27 Vt., 505; Gould v. Gardner, 11 La. An., 289; Lisk v. Mathias, 11 La. An.', 418. 76 See, x>ost, § 542, et seq. 77 Sears v. Hathaway, 12 Gal., 277. 9 130 THE LAW OF DAMAGES. statement of Kule— Application. CHAPTER VIII. OF THE DUTY OF THE PLAINTIFF TO PREVENT AN INJURY AND THE CONSE- QUENCES OF IT. Section 126. Statement of the Bule — Application. 129. "Where the Injury is Aggravated by the Plaintiff. 130. Instances — Neglect of Reasonable means to Prevent. 132. "Where the Plaintiff may Recover Notwithstanding his Negligence. 133. Application of the Doctrine to Contracts for Services, § 126. Statement of the Rule— Application.— The eighth proposition stated in tlie classification and summary contained in the introductory chapter, is as follows: "It is the duty of a person to use ordinary and reasonable care and means to prevent an injury and the consequences of it. And he can only recover damages for such losses as could not, by such care and means, be avoided." This qualification of the rule of general liability, we will proceed to illustrate. The principle is clearly recognized by the adjudications. It is the plaintifPs own fault if he tails to use reasonable eiforts, care and diligence to protect himself from injury or loss; and where he fails so to do he wall not be permitted to say that the loss that might have been thus avoided, was caused by the wrong of the defendant; for it is against the policy of the law, as well as common principles of justice, to permit a party to reap any advantage from his own DUTY OF THE PLAINTIFF. 131 statement of llule— Application. negligence or want of ordinary care, or from his own wrong, or from his own and another's neglect or wrong. In such cases, the maxim, nullus commoduvi capere potest de injuria 5?/aj9rr//?na, applies; and the rule is applicable in cases of contracts as well as in torts.' § 127. The principle applies, whether the plaintiffs neg- ligence contril)uted to the injury, or whether by his subse- quent negligence and failure to use reasonable means to pre- vent the consequences of an injury, the loss is greater than it would otherwise have been. In either case he cannot recover for the loss sustained by liis own fiiult. But for whatever loss is the sole consequence of the defendant's fault and which could not be avoided by the care and diligence which we have indicated, the plaintiff may properly recover damages." § 128. Thus, in an action where it appeared that the defendant had, in the niontli of November, broken down the plaintiff's fence, and the plaintiff failed to repair the same until the following May, and in the meantime cattle got in through the opening, and destroyed the crop on the land, planted the year next following the injury to the fence, and the action was for the loss of tlie subsequent year's crop, as well as for the expense of repairing the fence, in the Supreme Court of Massachusetts, Siiaw, C. J., uses the followino- language, illustrating the application of the rule: "Sup- pose a man should enter his neighbor's field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees^the gate open, and passes it frequently, ' Douglas V. Stevens, 18 Mo., 362; Illinois C. R. R. Co. v. Finigan, 21 111., 646; Broom's Leg. Max., 279. » State ex rel. Price v. Powell, 44 Mo., 4;j6; Shearman v. Fall River Iron Works, 2 Allen, 524; Wright v. 111. etc., R. Co., 20 la., 195; French v. Vin- ing, 102 Mass., 132, (1869). See, for full consideration of damages as affected by contiibutory negligence, post, Chap. 10. 132 THE LAW OF DAMAGES. Where Injury Aggravated by Plaintiff. and willfully or obstinately, or through gross negligence, leaves it open all summer and cattle get in, it is his own folly. So, if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damages. But if the owner suffers the window to remain without repair- ing, a great length of time after notice of the fact, and his furniture or pictures or other valuable articles sustain dam- ao-e, or the rain beats in and rots the window, this damage would be too remote. We think the jury were rightly instructed, that as the trepass consisted in removing a few rods of fence, the proper measure of damage was the cost of repairing it, and not the loss of the subsequent year's crop, arising from the want of such fence." ' § 129. Where tlie Injury is Aggravated by the Plaintiff.— The general rule is, that the defendant is respon- sible for all losses that are the direct and natural consequences of his wrong; such as by a wound inflicted, and sickness, dis- ability, and expenses incurred in consequence thereof. But where the consequences have been aggravated by the gross neglect or the want of ordinary care on the part of the plain- tiff, the defendant is not responsible for such damages." " It is easy to imagine," says Justice Wadow, " some trivial misconduct or slight negligence, which shall do no direct harm, but setting in motion some second agent shall move a third, and so on until the most disastrous consequences shall 3 Loker v. Damon, 17 Pick. (Mass.), 284. See also, Thompson v. Shattuck, 2 Met. (Mass.), 615; 3 Parsons on Con., 177; 2 Id., 457, note ; Flower v. Adam, 2 Taunt., 314; Miller v. Mariner's Church, 7 Greenlf., 51; Hamilton v. McPherson, 28 N. Y., 72; Davis v. Fish, 1 Greene (la.), 407; Chase v. The New York, etc., R. Co., 24 Barb., 273. See, also, Hassa v. Junger, 15 Wis., 598, which was an action for damages to plaintiff's crop, by the defendant's cattle getting on to it through the removal of a fence by the defendant some time before the crop was sown. 4 Walker v. EUis, 1 Sneed (Tenn.), 515; Davis v. Fish, 1 Greene (la.), 406; 3 Pars, on Con., 177; Dorwin v. Potter, 5 Denio, (N. Y.), 306. See, also, Stover v. BlueMl, 51 Me., 439. DUTY OF THE PLAINTIFF. 133 Neglect of Reasonable Means to Prevent Loss. ensue. The first wrongdoer, unfortunate rather than seri- ously blamable, cannot be made answerable for these conse- quences. He shall not answer for those which the party aggrieved has contributed by his own blamable negligence or wrong to produce, or for any which such party by proper dil- igence might have prevented.^ § 130. Instances of Neglect of Reasonable Means to Prevent Loss. — In an action against a county, upon a quantum Tneruit^ for work done in the erection of a court house, the defendant, for cross-claim, set up damages alleged to have been sustained by defective work and materials. There was evidence on the trial tending to show, that owing to the imperfect manner in which the belfry was constructed the roof leaked, and this caused the plastering, sometime afterwards, to fall off, and that it would cost one hundred dollars to make good the damage by re-plastering the same The plaintiff, on the trial, asked the court to give the following instructions: "That if the defendant could have protected itself from damage which would naturally result from the alleged defects in the construction of said court house, it was bound to do so, if practicable, at a moderate expense or by ordinary efforts, and it can charge the plaintiff for . such expense and efforts only, and for the damages which could not be prevented by the exercise of due diligence." This instruction was refused. On appeal, Dillon, J. said: "It is our opinion that the instruction asked was pertinent, and the case one to which the doctrine asserted (which should be cautiously applied) was applicable." ° § 131. So, in an action against a city for damages to the plaintiffs' lot in consequence of a flow of water thereon, caused s Harrison v. Berkley, 1 Strobh. (S. C), 548. But an injured person is not bound to take extraordinary care to avoid damage. Shear. & Red. on Neg. § 598. See, also, McGrew v. Stone, 53 Pa. St., 436; Bennett v. Lockwood, 20 Wend., 223. • 6 Mather v Butler County, 28 la., 253. 134 THE LAW OF DAMAGES. Where PlaiutifE may Recover Notwithstanding Negligence. bj the negligent manner of constructing the gutters of a street, it was held, that they could not recover if it appeared that they conld have prevented the injury by the use of ordinary means or at a moderate expense; and that an instruction given in the court below on the trial, that the jury "must find for the plaintiffs, unless a slight expense and slight effort would have j^revented the injury," was accordingly erroneous.' § 132. AVhere the Plaintiff may Recoer Notwith- standing his Negligence.— In the Court of Exchequer in England, it was held, that although "there may have been negligence on the part of both parties yet the plaintiff may be entitled to recover. The rule is, that although there may have been negligence on the part of the plaintiff, yet, unless he might by the exercise of ordinary care have avoided the consequences of the defendant's negligence, he is entitled to recover. If, by ordinary care, he might have avoided them, he is the author of his own wrong." * We shall have occasion hereafter to consider the subject of contributory negligence, as connected more particularly with the original injury in cases of torts." 7 Simpson & Simpson v. The City of Keokuk, 34 Iowa, 253. See, also. The Cmcinnati, etc., R. Co. v. Rogers, 2-4 Ind., 103; Heavilon v. Kramer, 31 Ind., 24; State v. PoweU, 44 Mo., 4.36; Miller v. Roy, 10 La. An., 231; Dufort v. Abadie, 23 Id., 280. 8 Bridge v. Grand J. R. Co., 3 Mees. & Wels., 244. See, also, Davis v. Mann, 10 M. & W., 546; Marriot v. Stanley, 1 Man. & Gr., 568; Lord EUen- borough, in Butterfield v. Forrester, 11 East, 60; Starkie on Ev., Vol. 2, 741; Horndem v. Dalton, 1 Car. & Payne, 181. In actions against tortfeasors the loss of profits may be taken into view in estimating the damages, though in an action for a breach of contract, the general rule is otherwise. This does not necessarily embrace the right to recover purely contingent or speculative profits, but will warrant the recovery of such as are proved to be the direct consequence of the wrong which is to be redressed. Walker v. Post, 6 Duer (N. Y.), 363. Shear. & Red. on Neg., § 599. Speculative and merely pos- sible profits are never allowed. Id., § 599 a. And nothing can be allowed for loss of profits in an illegal business. Id. 9 See, Chap. 10. DUTY OF THE PLAI:N"TIFF. 135 Doctrine of Contracts for Services. § 133. Application of the Doctrine to Contracts for Services. — The principle we are considering is also applicable to breaches of contracts for personal services; as, where one party agrees to work for another for a certain time and for a certain sum, which the latter agrees to pay, and the employe . is discharged, without any sufficient cause, before the period for which he was employed expires. The employe, in such a case, cannot recover the full amount, pro rata^ of the unexpired term, provided he could have found other suitable emiDloyment elsewhere; or, if after the dismissal he was otherwise profitably employed. In either case, whatever he might have thus earned or has earned, during the balance of the period of the engagement, if less than the pro rata amount contracted to be paid, should be deducted from said amount. And when the amount thus earned, or that might have been earned, exceeds the amount contracted to be paid, nothing can be recovered. And it is the duty of a party thus dismissed to use at least ordinary effort to obtain employment, and thereby lessen the damages." But, we shall consider this subject more fully in treating of damages on breaches of contracts relating to personal ser- vices.'' So, where an executory contract is renounced before the performance by the party undertaking to perform, the other party cannot needlessly increase the damages arising from the breach.'^ " Jones V. Van Patten, 3 Ind.. 107. See, also. Hunt v. Crane, 4 George (Miss.), 669; Costigan v. Mohawk & Hud. R. Co., 2 Den. (N. Y.), 609. " See, po^t, § 340. " Wormer's case, 4 Ct. of CI. R., 258. See also, Hawker's case, Id., 651, 136 THE LAW OF DAMAGES. Liquidated Damages. OHAPTEE IX. OF THE EFFECT OF STIPULATIONS IN REFER- ENCE TO DAMAGES. Section 134. Liquidated Damages. 135. Penalty or Liquidated Damages— Construction. 137. "Where the sum Designated is Treated as a Penalty. 138. Where it is Treated as Liquidated Damages. 139. Instances in England— Where a Penalty. 142. Instance in England— Where Liquidated Damages. 145. English Doctrine Followed in this Country. 147. American Decisions— Liquidated Damages. 148. Where the Price of Property in Fixed. 149. Damages not to Exceed the Liquidated Sum. 150. Cannot generally Exceed the Penalty. 153. Where the Amount due is Certain— Usury. 154. Propositions Deducible from the Decisions -Penalty. 155. When Treated as Liquidated Damages. 156. Kules of Construction. § 134. Liquidated Damages.— It is not unusual for the parties to a contract to stipulate tlierein, in reference to the amount of damages, in case of a breach thereof.' The sum thus fixed upon is generally called liquidated damages. x The right of parties to thus stipulate is unquestionable. In many cases it is the only practicable way of obtaining redress ' See rule 9, ante, § 32. EFFECT OF STIPULATIONS. 13T Liquidated Damages— Construction. in case of a breach. Public policy and private interests niaj be thereby promoted. And where such a contract is fairly made and for the legitimate purpose of determining the dam- ages, either for a breach of the whole or any particular provis- ion of the contract, the amount thus fixed will control and limit the damages recoverable, whether the actual damages be greater or less than the sum stipulated. Hence, liquidated damages constitute an element, which affects the amount which may be recovered. §135. Penalty or Liquidated Damages— Construc- tion. — Controversies in relation to this subject usually grow out of the phraseology used in contracts and the construction of them, and frequently turn upon the question whether the sum stated is intended as a penalty or liquidated damages. The courts do not usually favor forfeitures or penalties for breaches of contracts. And especially, were penalties odious to courts of equity, even when they were enforced in the courts of law. Courts of equity came finally to regard the penal sum in bonds, as only intended to secure the principal sum due, or the performance of the contract, and recovery thereon was limited to the actual damages sustained by a breach thereof. This practice of the courts of equity, has been followed by the courts of law, and, it is now well settled, both in law and equity that, where a penalty is named, the party in fault shall not be required to pay more on a breach thereof than if the penalty had not been named."^ Hence the importance of the question, whether the designated amount is a penalty or liqui- dated damages, will be apparent. § 136. The weight of authority seems to support the posi- tion, that the sum fixed upon will be regarded as a penalty or liquidated damages according to the intention of the parties, ' Gower & Holt v. Carter & Shattuck, 3 la., 244; Foley v. McKegan, 4 la., 1; 3 Parsons on Con., 156, 157; 2 Gr. Ev., § 257, et seq. 138 THE LAW OF DAMAGES. Where sum Designated is Treated as Penalty. and that this intention may be gatliered from the whole instru- ment, the subject matter of the contract, and extraneous facts and circumstances. It will not depend upon the mere use of the words, " pen- alty," "forfeiture," or "liquidated damages," in the instru- ment, whether the sum named be construed as a penalty or liquidated damages. They are not conclusive in determining the intention.^ The tendency of the courts is to treat the sum named as a penalty, and not as liquidated damages for, under the modern doctrine, liquidated damages, like the penalty formerly, may be unjust and oppressive and far exceed or fall short of the actual damages sustained." § 137. Where the sum Designated is Treated as a Penalty.— Where a large sum is mentioned in an instrument as a forfeiture on failure of payment of a small amount,' or where in a contract for the performance of divers things of very different degrees of importance and value, a certain sum is fixed, as "liquidated damages" for the failure to perform, the amount fixed has been held to import a penalty and not to be liquidated damages.' 3 Perkins v. Lyman, 11 Mass., 76; Foley v. McKegan, 4 la., supra; Gower V. Saltmarsh, 11 Mo., 271; Brewster v. Edgerly. 13 N. H., 275; Lindsay v. Anesley, 6 Ired. (N. C), L. 186; Maurice v. Brady, 15 Abb. (N. Y.) Pr., 173; Hosmer v. True, 19 Barb. (N. Y.), 106; Streeper v. Williams, 48 Pa. St., 450; Durst v. Swift, 11 Tex., 273; Gowen v. Garish, 15 Me., 273; Ran- dal V. Everett, 1 Mood. & M., 42; 2 Car. &. P., 577; Pinkerton v. Gaston, 2 B. & A., 704; Dimech v. Corlett, 12 Moore (P. C.), 199; Reiley v. Jones, 1 Bing.. 302; Sparrow v. Paris, 7 H. & N., 594; 8 Jur. N. S., 391; 31 L. J. Exch., 137; Hamaker v. Schroers, 49 Mo., 406; Jaquith v. Hudson, 5 Mich., 123; Clark v. Kay, 26 Geo., 403; Basye v. Ambrose, 28 Mo., 39. * WaUis V. Carpenter, 13 Allen (Mass.), 19; Cheddicke v. Marsh, 21 N'. J. L., 463; Baird v. ToUiver. 6 Humph. (Tenn.), 186. s Watts V. Sheppard, 2 Ala., 425. 6Dailey V. Litchfield, 10 Mich., 29; Bagley v. Peddie, 5 Sandf. (N. Y.), 192; Basye v. Ambrose. 28 Mo., 39; Hammer v. Breedenback, 31 Mo., 49. See also, Taylor v. Sandford, 7. Wheat., 13; Van Buren v. Digges, 11 How. (U. S.), 461 J Burrage v. Crump, 3 Jones (N. C), L. 330; Abrams v. Kounts, EFFECT OF STIPULATIOIs"S. 139 Liquidated Damages— English Cases. § 138. Where the sum Expressed is Treated as Liquidated Damages.— Where there is uncertainty as to the extent of the injury, and the stipulated sura seems reasonable and proper under all the circumstances of the case, and espec- ially, where it is clearly expressed to be the liquidated dam- ages to be paid on a breach of the whole contract, or, on the breach of any certain provision of the contract, then, it will be regarded as liquidated damages.' § 139. English Cases where the sum was held to be a Penalty. — A leading English case construing an agreement of this kind was that of Astley v. Weldon. By articles of agreement between the plaintiff and defend- ant it was stipulated, in substance, that the plaintiff should pay the defendant for her services as a performer at his theatres, £1 lis. 6d., per week, for the period of three years; and also to pay all her traveling expenses when remov- ino- from one theatre to another. The defendant agreed that she would perform at the theatres, attend rehearsals, comply with the rules and regulations adopted at them, and pay such lines and penalties as might be imposed for a failure to observe them. And, it was further agreed by the parties, that if either of 4 Ohio, 214; Goldsboro v. Baker, 3 Cranch, (C. C), 48; Haldeman v. Jen- kins, 14 Ark., 329; Kash v. Hermosilla, 9 Cal., 584; Berry v. Wisdom, 3 Ohio St., 241; 2 Gr. Ev., §258; Hamaker v. Schroers, 49 Mo., 406; Long v. Towl, 42 Mo., 545; Morse v. Rathburn, Id., 594; Boys v. Ancel, 7 Scott, 364; 5 Bing. (N. C). 390 In Basye v. Ambrose, sujyra, Scott, J., remarks: "Where the agreement secures the performance or omission of various acts which are not measurable by any exact pecmiiary standard, together with one or more acts in respect of which the damages on a breach of contract are readily ascertainable by a jury, and there is a sum stipulated as damages for a breach of any one of the covenants, such sum is held to be a penalty merely." 7 Pearson v. Williams, 26 Wend., 630; Dakin v. WiUiams, 17 Wend., 447; Powell V. Burrows, 54 Pa. St., 329; Brown v. Maulsby, 17 Ind., 10; Chase V. Allen, 13 Gray, (Mass.), 42; Dunlap v. Gregory, 10 N. Y., 241; Kembel v. Farren, 6 Bing., 141; 3 M. & P., 425; WiUiams v. Greene, 14 Ark., 315; Young V. White, 5 Watts (Pa.), 460. 140 THE LAW OF DAMAGES. English Cases. them neglected to perform tlie agreement the party failing should pay to the other £200. There was a failure to perform by the defendant, and a suit brought for the £200 as liquidated damages. The court held the sum designated a penalty, and not liquidated damages. Lord Eldon remarked: "Where a doubt is stated, whether the sum inserted be intended as a penalty or not, if a certain damage less than that sum is made payable upon the face of the same instrument, in case the act intended to be prohibited be done, that sum shall be construed to be a penalty. * * * It would be absurd to hold that because the £1 lis. 6d., is a liquidated sum, therefore, the plaintiff could not be called upon for more and yet, that in consequence of his non-payment of the defendant's traveling expenses, he should be liable to the whole sum of £200 because those expenses are unascertained.'" § 140. And in a subsequent case, there was an agreement that the defendant should act as principal comedian at Covent Garden, for four seasons, and to conform to the regulations of the theatre, and the plaintiff was to pay the defendant £3 8s. 8d., every night the theatre should be open. There were sev- eral other stipulations of various degrees of importance on each side, some sounding in damages and others relating to the payment of money. It was further provided, that if either party failed to fulfill his agreement or any part thereof, or any stipulation therein contained, such party should pay to the other £1,000, to which sum it was agreed the damages would amount, and which sum was declared by the parties to be "liquidated and ascertained damages, and not a penalty or penal sum or in the nature thereof." The defendant refused to act, and a suit was brought for the £1,000. There was a verdict for £750 for the plaintiff, and a motion was made to increase it to £1,000, on the ground that the parties had fixed that sum as liquidated damages, but this 8 2Bos. &PuU., 346. EFFECT OF STIPULATIONS. 141 English Cases. was refused. Tindal, C. J., remarking: "It is undoubtedly diffi- cult to suppose any words more precise or explicit than those used in the agreement; the same declaring not only affirma- tively that the sum of £1,000 should be taken as liquidated damages, but negatively, also, that it should not be consid- ered as a penalty or in the nature thereof. And if the clause had been limited to breaches which were of an uncertain nature and amount, we should have thought it would have had the effect of ascertaining the damages upon any such breach at £1,000. For, we see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages uncertain in their nature, at any sum upon which they may agree. In many cases such an agreement fixes that which is almost impossible to be accurately ascertained, and in all cases it saves the expense and difficulty of bringing a witness to that point. But in the present case the clause is not so confined; it extends to the breach of any stipulation by either party. If, therefore, on the one hand the plaintiff had neglected to make a single payment of £3 6s. 8d. per day, or, on the other hand the defendant had refused to conform to any usual regulation of the theatre, however minute or unim- portant, it must have been contended that the clause in ques- tion, in either case, would have given the stipulated damages of £1,000. But that a very large sum should become immedi- ately payable in consequence of the non-payment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction of terms; the case being precisely that in which courts of equity have always relieved, and asainst which courts of law have in modern times endeav- ored to relieve, by directing juries to assess the real damages sustained by a breach of the agreement.'" § 141 . And where it appeared that a surgeon had agreed not to carry on business at a certain place, in consideration of 9 Kemble v. Farren, 6 Bing., 141. 142 THE LAW OF DAMAGES. Liquidated Damages in England. a purchase by the plaintiff of a house and certain furniture of the defendant and the good will of his business, and a portion of the purchase money was paid, and the balance was to be paid in a short time; and each party was bound to the fulfill- ment of the contract in the penal sum of £500 as, and by way of, liquidated damages, and an action was brought for a breach of the surgeon's agreement not to carry on business at the place designated, it was held, that the sum named was a pen- alty.- § 142. Instances in Enisland where the sum Desig- nated has been Treated as Liquidated Damages — Where a party bound himself not to carry on the business of a perfumer within a certain district, in the sum of £5000, "as and by way of liquidated damages, and not of penalty," the case was held not to be within the rule in Kenihle v. Farren. While recognizing the rule that where the agreeinent contains several stipulations of various degrees of importance, and merely designates a sum to be paid on a breach of the agree- ment, it will be construed as a penalty; Alderson, B., said: " But when the damage is altogether uncertain, and yet a definite sum of money is expressly made payable in respect of it by way of liquidated damages, those words must be read in the ordinary sense and cannot be construed to import a penalty." " So, where the defendant contracted not to practice as a sur- geon or apothecary, at or within seven miles of a certain place, under a penalty of £500, and failed to keep his contract, it was held, that the £500 was liquidated damages, and not a " Davies v. Penton, 6 Barn. & Cres., 216. See, also, Horner v. Flintoff, 9M. & W. 679; Edwards v. Williams, .5 Taunt., 247; Boys v. Ancell, 7 Scott, 364; 5 Bing., 390; 2 Am., 9; 3 Jur., 316; Belts v. Burch, 4 H. & N., 506; 28 Exch., 267; 1 F. & F., 485. See, also, Maj-ne on Dam., 66. " Green v. Price, 18 Mees. & Wels., 695; 14 L. J. Exch., 225, atErmed in the Exch. Cham.; Price v. Green, 16 M. & W., 846; 16 L. J. Exch., 108; 9 Jur., 880. EFFECT OF STIPULATIONS. 143 Liquidated Damages in England. penalty, although so designated in the instrument. Coltman, J., in his opinion, said: " Although the v^ord penalty which y^owlA, prima facie., exclude the notion of liquidated damages, is used here, we must look at the nature of the agreement and the surrounding circumstances to see whether the parties intended the sum mentioned to be a penalty or liquidated damages. Considering the nature of the agreement and the difficulty the plaintiff would be under in showing what spe- cific damage he had sustained from the defendant's breach of it, I think we can only reasonably construe it to be a contract for stipulated and ascertained damages." '' § 143. And, where the plaintiff purchased the lease of an eating-house of the defendant, and the latter agreed not to set nj) another Avithin one mile of it, under the penal sum of £500, as and for liquidated damages. Best, C. J., said: " In this, and in most other cases of this sort, it would be impossi- ble to give such evidence as would enable juries to do com- plete justice. The claim for damages must depend not only on tilings which have been done, but on what may be done, which it is impossible to prove; on the value of the customers which the conduct of the vendor of the lease has attached to him, and what numbers his future conduct in the house that he has taken is likely to draw to him. We can have no safer guide to go by, in deciding on the amount of compen- sation for a breach of contract in such cases, than that estimate which the parties, each knowing all the circumstances of the case, and anxiously taking care of their respective interests, have agreed on. * ''^ "^ In this case the sum of £500 is to • be paid for the doing of one thing only, namely, setting up a victualing-house within one mile of the house transferred to the plaintiff. It is called a penal sum, and I will admit that " Sainter v. Ferguson, 62 Eng. Com. Law R. (7 C. B.), 716. See, also, on the subject of liquidated damages, under an agreement not to practice as a surgeon, Rawlinson v. Clark, 14 Mees. & Wels., 187, where the doc- trine of Green v. Price was affirmed. 144 THE LAW OF DAMAGES. Liquidated Damages in England. the parties considered it as something more than compensa- tion; but tliey have expressly agreed that this penal sum siiall be recovered as and for stipulated damages. When the defend- ant has so unequivocally agreed, that if he ever did what it has been proved that he did, he would pay £500, what right has he now to say that the verdict against him ought not to be of this amount?" " § 144. So, in a subsequent case in the English Court of Exchequer, Park, B., remarks as follows: "The rule of law, as laid down in KemUe v. Farnn, (which I cannot help thinking was somewhat stretched,) was, that although the parties used the words liquidated damages^ yet if when the contract was looked at it was impossible to say that they intended that the amount named would be other than a penalty, inasmuch as the agreement contained various stipulations, some of which were capable of being measured by a precise sum, and others not, as for instance, where the defendant was to pay the plaintiff a certain weekly salary, which was capable of being strictly measured, * -h- * therefore, upon a reasonable construction of the covenant, the words 'liquidated damages,' were to be rejected, and the amount treated as a penalty. " That decision has since been acted upon in several cases, and I do not mean to dispute the authority. " Therefore, if a party agrees to pay £1000, on several events, all of which are capable of accurate calculation, the sum must be construed as a penalty and not as liquidated damages. But, if there be a contract consisting of one or more stipula- tions, the breach of which cannot be measured, then the parties must be taken to have meant that the sum agreed on was to be liquidated da7nages, and not a penalty. In this case there is no pecuniary stipulation for which a sum certain, of less amount than £1,000, is to be paid, but all the stipula- «3 Crisdee v. Bolton, 3 Car. & P., 240. EFFECT OF STIPULATIONS. 145 The English Doctrine Followed in this Country. tions are of uncertain value. Possibly this may have been a very unfortunate contract for the defendant to make; but with that we have nothing to do. Upon the true construction of the deed the amount is payable by way of liquidated damages^ and not as penalty."" § 145. The English Doctrine Followed in this Country. — The doctrine of the foregoing English cases has also been adopted in this country. Thus, an action was brought upon a written agreement which read as follows: "Conditions of agreement between John McKeegan, on the one part, and Michael Foley, on the other. May 5th, 1853. I, John McKeegan, have this day agreed and sold 200 acres of land, the same more or less [here follows a description of the land], for which I am to receive $880; $50 of which I am now to receive, and the same is to be forfeited by Michael Foley, if he does not pay the balance on or before ihe 10th day of April, 1854; and then I will give the deeds of the aforesaid places at the time the money is paid. I, the said John McKeegan, promise to give the said Michael Foley, next April, together with the land [here follows several items of personal property], and to put 500 rails on the fence of the field. I also bind mvself, under the penalty of $50, to be paid to the said Michael Foley, if I fail in the fulfillment of the aforesaid agreement, and to the aforesaid we both sign our names." It was held, by the Supreme Court of Iowa, that the sum inserted in the contract to be paid on non-performance, was designed by the parties as a penalty, and not as liquidated damages. Wright, C. J. in delivering the opinion of the Court, said: " "We are of opinion that the sum inserted in this contract '•♦Atkins V. Krmner, 4 Exch., 776. See, also, Lowe v. Peers, 4 Burr., 2225, where the defendant stipulated to pay £1.000 within three months next after he should marry any one else but the plaintiff, this was held to be liqui- dated damages. Fletcher V. Dyche, 2 T. R., 32; Reiley v. Jones, 1 Bing., 302; 8 Moore, 244; Leighton v. Wales, 3 M. & W., 545. 10 116 THE LAW OF DAMAGES. The English Doctrine Followed in this Country. to be paid on its non-fulfillment, was designed by the parties as a penalty, and not as liquidated damages. In the first place, the parties have so expressly denominated it. And while the construction is not to be conclusively determined by their having so styled it, yet, in the language of Ch. J. Marshall (in 7 Wheaton 13), ' the inference is much stronger in favor of its being a penalty where it is expressly reserved as one.' In the next place, the agreement contains more than one stipulation, or the defendant binds himself to do more than one act. And these stipulations differ materially in their importance. He binds himself to make a deed to two parcels of land (or places as they are called in the agreement). He also undertakes to put on the fence of the field five hun- dred rails, and to deliver to plaintiff various articles of per- sonal property. Suppose he performed his agreement as to the land, and delivered all the personal property except the five bushels of potatoes, or the two pigs therein named, it would be manifestly unjust and oppressive to require him to pay the fifty dollars named. On the other hand, suppose he had performed the unimportant parts of the agreement, and failed to convey the land, is the measure of the plaintiff's damages the same? The answer must readily be, that in one instance it would be too high, and in the other it might be too low. But a2:ain,if he fails entirely to perform either of his covenants or stipulations, the reason is still stronger why the damages should be different, than if he failed in an unimportant or any one important particular. * * * We therefore con- clude that the sura named in this agreement is not the measure of the plaintiff's damages, but must be treated as a penalty," And it was held that the plaintiff might recover his actual damages whether more or less than the penalty named," 's Foley v. McKeegan, 4 la., 1, See, also. Lord v. Gaddis, 9 Id., 265. EFFECT OF STIPULATIONS. 147 The English Doctrine Followed in this Country. § 140. So, in an action on an agreement containing a num- ber of stijjulations, damages for a breach of some of wliich ■would be certain, and of others uncertain, and containing a mutual covenant, that if either should fail "in any particular to abide by, observe and perform the above written agreement, or any article, clause, covenant, or promise therein contained, by or on his or their part to be observed, kept, etc., the party so failing shall pay the other ]>arty $10,000, and no greater or smaller sum, as and for damages occasioned by such failure," the Supreme Court of Indiana-regarded the sum thus fixed as a penalty, and not as liquidated damages.'" So, where a contract, for the delivery of a large number of railroad ties, provided that monthly estimates should be made, by the engineer of the road, of the ties delivered, and that on presentation of such estimate, certified by the engineer, the defendants were to pay the same to the plaintiff, less ten per cent which was to be retained as security for the completion '* Carpenter v. Lockhart. 1 Ind., 4:34. In case of doubt the courts will generally regard the sum fixed as a penalty, and hold the defendant to the payment only of the amount of actual damages. Baird v. Tolliver, 6 Humph. (Tenn.), 186. In Carpenter v. Lockhart. supra, the Supreme Court of Indiana, (per Perkins, J.,) remark: '"Where an agreement contains various stipulations of different degrees of importance, the damages for the breach of some of wliich would be certain and others uncertain, and a large sum is expressed in the agreement as payable on the breach of any of the stipula- tions, such sum is always to be regarded a penalty and not liquidated dam- ages. Tliis case falls clearly within that rule. For instance, stipulation five is, that the individual accounts, etc., of each party shall be brought into set- tlement. Stipulation seven, requires each party to account for all moneys received. Stipulation nine, is that mistakes shall be corrected when discov- ered. Now, for a violation of either of these stipulations the damages would be certain. The amount of the accounts or money withheld, or of the mis- take, the correction of which should be refused, would enable a court or jury to detennine them. So of other of the stipulations. On the other hand, stipulation one, requiring a dismissal of the chancery suit. Stipulation six, requiring notes, to the acceptance of A. Warner, to be given. Stipulation fifteen, for the giving of a bond, etc., may sound in uncertain damages. So may some others. The various stipulations in the agreement are also of vastly different degrees of importance and damages for a violation of some of them would be verj' trifling." 148 THE LAW OF DAMAGES. American Decisions— Liquidated Damages. of the contract; and it further provided that when in the opin- ion of the engineer the contract had been fully performed on the part of the plaintiff, and the same was certified by the encrineer in writing, together with his estimates aforesaid, then the defendants should within twenty days after the receipt of such certificate, pay to the plaintiff the sum which according to the contract was due, it was held, that the ten per cent reserved should be treated as a penalty, securing the damages actually sustained, and not as liquidated damages." § 147. American Decisions Regarding the sum named as Liquidated Damages.— In a recent case in Mas- sachusetts, in an action on a bond for the payment of $1,000, "as liquidated damages," given by a lessee to the lessor of a stable, and conditioned that the lessee should keep it in a cer- tain satisfactory manner, and at the end of the term surren- der " said demised premises and good-will in as good repute and run of custom as now thereto pertain; " it was held, that the sum named was to be considered liquidated damages and not a penalty." So, where one agrees in writing to pay a certain sum as compensation in case he fails to perform the obligations of a previous contract, at the time specified therein, such sum if not excessive, will be regarded as liquidated damages and not a penalty." So, where a note is payable at a specified day for a certain sum, but which by its terms may be discharged by the pay- ment of a less sum at an earlier day, the greater sum is not in the nature of a penalty, but is the debt actually due, and is '7 Jemison v. Grey, 29 la., 537. See also, Hise v. Foster, 17 la., 23. '8 Leary v. Laflin, 101 Mass., 334. See, also, Dakin v. Williams, 19 Wend., 447; Hasbrouck v. Tappen, 15 Johns., 200; Mead v. Wheeler, 13 N. H., 351. '9 Hardee v. Howard, 33 Geo., 533; Sutton v. Howard, Id., 536. EFFECT OF STIPULATIONS. 149 Where Price of Property is Fixed. recoverable if the less sum be not paid according to the terms of the note."" § 148. Where the Price of Property is Fixed.— AVhere the parties fix a price on property to be delivered, that price and not a quantum valebat^ is usually the measure of damages. Thus, where there was an agreement to deliver » Corley v. Carter, 23 Ala., 612. In Dakin v. Williams, cited above, the parties executed under seal an instrument in writing whereby the defendant, in consideration of $3,500 to be paid to liim sold and transferred to the plain- tiffs a newspaper estabhshment, and all his interest in the subscriptions, good will and patronage of the paper, and the defendants covenanted that they would not estabhsh, set up, or commence the publishmg of any paper in the village of Utica or county of Oneida, during the time that the plaintiffs should continue to there pubHsh any paper. And the defendants obhgated and bound themselves to the faithful performance of their contract ui the sum of $3,000, in the following terms : " It is hereby mutually and expressly agreed by, and between the said parties to these presents, that the aforesaid sum ol $3,000 shall be and hereby is fixed and settled, as Uquidated damages, and not as a penal sum, for any violation of the preceding covenant, or any of its terms or conditions." The action was brought against the defendants for printing another paper in the village of Utica, cl aim i n g the $3,000 as Uqui- dated damages. Chief Justice Nelson, in dehvering the opinion of the Supreme Court of New York, in the case, after referring to many English and American cases relating to the question, remarks as follows: " From a critical examination of all these cases, and others that might be referred to, it will be found that the business of the court, in construing this clause of the agreement, as in respect to every other clause thereof, is to inquire after the meanmg and intent of the parties, and when that is clearly ascertained from the terms and language used, it must be carried mto effect. A court of law possesses no dispensing powers, it cannot inquire whether the parties have acted wisely or rashly, in respect to any stipulation they may have thought proper to introduce mto their agreements. If they are competent to contract within the prudential rules the law has fixed as to parties, and there has been no fraud, circumvention or illegality in the case, the court is bound to enforce the agreement. Men may enter into improvident contracts where the advantage is know- ingly and strikingly against them, they may also expend their property upon idle or worthless objects, or give it away if they please without an equivalent in spite of the powers or interference of the court, and it is difficult to see why they may not fix for themselves by agreement in advance, a measure of com- pensation, however extravagant it may be, for a violation of their covenant, (they surely may after it has accrued) without the intervention of a court or jury. Can it be an exception to their power to bind themselves by lawful 150 THE LAW OF DAMAGES. Damages can never Exceed Liquidated Suin-Cannot Exceed Penalty. 100 bushels of corn on a certain day, and the agreement con- tained the clause, "this corn is estimated at twenty dollars;" it was held that the damages should be assessed at the sum named in the agreemejit, and not at the value of the corn on such day."' § 149. Damages can never Exceed the Liquidated Sum. — The question whether the sum designated in the con- tract to secure its fuliillment, is a penalty or liquidated dam- ages, is frequently a matter of interest to the parties. If it is regarded as a penalty, the party injured by the breach may recover his actual damages, sometimes extending even beyond the sum named, as we shall hereafter notice; if, as liquidated damages, the right to recover is limited in all cases to the amount designated, and is conclusive upon both parties. § 150. Cannot (jlenerally Exceed the Penalty.— It is the generally received doctrine that the recovery of damages cannot exceed the penalty named in the contract but tliis rule is not a])plicable in all cases." "The American rule," says Mr. Sedgwick, "to be deduced from all the cases, seems to be that, against a surety in debt on hond, nothing shall be recovered beyond the penalty; that against the principle, in that form of action, interest may be contract? We suppose not, and re^^arding the intent of the parties, it is not to be doubted but that the sum of $3,000 was fixed upon by them ' mutually and expressly,' as they say, ' as the measure of damages for a violation of the covenant or any of its terms or conditions.' If it be said that the measure is a hard one, it may be replied, that the defendants should not have stipulated for it, or having been thus indiscreet they should have sought the only exemp- tion which was still within their power, namely the faithful fulfillment of their agreement." 21 Hise V. Foster, 17 la., 23. See, also, Springdale, etc., v. Smith, 24 111., 480; Ii-win v. Tanner, 1 Mo., 210; Mott v. Mott, 11 Barb. (N. Y.), 127; Holmes v. Holmes, 12 Id., 137; Zachary v. Swanger, 1 Oreg., 92. » Gower V. Carter, 3 la., 244; Sweem v. Steele, 5 Id., 352; 10 Id., 374, where it was held that in the absence of bad faith, fraud or willfully cxilpa- ble neglect, a recovery beyond the penalty of. the bond ought not to be had. See, also. Main v. Kmg, 10 Barb. (N. Y.), 59. EFFECT OF STIPULATIONS. 151 Cannot Generally Exceed Penalty. recovered beyond the jDenalty; while in England, the penalty appears in all cases, except perhaps in equity, to be the absolute limit. But in neither country can damages in gross be recovered against principal or surety beyond the penalty." " In Martin v. Taijloi\ Justice Washington remarked : '' Where there is a penalty in an agreement under seal, the party injured mav sue at common law for the whole penalty and must be satisfied with it; or he may bring covenant and recover in damages more or less than the penalty."" § 151. In an action on a bond, wherein the obligor bound himself to the plaintiff in the sum of $100, to be void on condition that he would, at the earliest practical period, pro- cure a deed of conveyance of certain lands, to be made to the plaintiff, of much greater value than the amount of the penalty, the jury found a verdict for $224, that being the average value of the land as testified to by the witnesses, and a judgment was rendered for that amount. On the trial the defendant requested the court to instruct the jury: "That the jury cannot find for the plaintiff a greater amount than that specified in the bond given for, or to secure, a deed of the =3 Sedg. on Dam., 425. See, also, Frazer v. Little, 13 Mich., 195, where on a replevin bond it was held no recover}' could be had exceeding the penalty of tlie bond. But after the default of a surety in a bond for the payment ol money, mterest may be recovered against him with the principal, although it exceed the penalty. Brainard v. Jones, 18 N. Y.. 35. *♦ 1 Wash. C. C. R.. 1. And it has been questioned whether in an action of debt on bond, the damages can be carried beyond the penalty. Byrd v. The State, 2 Barb. (Ark.), 175; Tice v. Turrantine, 13 Ired. (N. C.)L., 212; Sedg. on Dam.. 525. It has also been doubted, if covenant can be maintained upon a common bond, upon an implied promise contained in the conditions; and if so, whether damages can be recovered beyond the penalty. Sedg. on Dam., 425. Mr. Sedgwick incUnes to the opinion that there is no implied agree- ment in such cases. But see, contrary. Clark v. Bush. 3 Cow., 151. See, also, English case of Wilde v. Clarkson, 6 T. R., 303, where Ld. Kenyon, i-eferring to a contrary decision, said: " I cannot accede to the authority of the case. According to that, an obhgor who became bound in a penalty of £1.000, conditioned to indemnifj- the obUgee. may be called upon to pay £10,000, or any other sum, however enormous." 152 THE LAW OF DAMAGES. Cannot Generally Exceed Penalty. land." This was refused. On appeal, the court saj: "The second instruction asked by the defendant, that the plaintiff could not recover beyond the penalty of the bond, involves the question whether the plaintiff may sue in covenant on the condition of the bond. If he may thus sue, we understand all the books which treat of damages recoverable on bonds and penal obligations to mean that, he may recover without respect to the penalty. And after a pretty full examination of the subject, yet with some hesitation on the part of one of the court, it is our opinion that an action as for covenant broken, will lie upon a penal bond of the nature of the one before us. * * * The distinction to be made, is between covenant and the action of debt on the bond, making use of the former names of actions. In the latter, or an action for the penalty specifically, or on the penal part of the bond, the penalty is the limit of recovery." " § 152. So, where an action was brought on a contract, whereby the plaintiff agreed to sell, and the defendant to pur- chase, a stock of hardware. The property was to be inven- toried, and the defendant to pay the original cost and the cost of transportation, in four equal installments, due in six, nine, twelve, and eighteen months, with ten per cent interest; and for the performance of said contract, the parties bound them- selves, each to the other, in the penal sum of five hundred dollars, as fixed damages. The plaintiff averred a full performance on his part, and claimed $1,000 damages for the non-performance of the con- tract, on the part of the defendant, in refusing to receive said stock or execute the notes, and for entirely disregarding said contract on his part. Wright, J., said: "Defendant admits that the $500, mentioned in the contract, is not to be treated as liquidated damages, but as a penalty. This granted, then how can we know $1,000 is more than the damages actually 's Sweem v. Steele, 5 la., 354. See, also, Foley v. McKeegan, 4 la., 1. EFFECT OF STIPULATIONS. 153 Wnere Amount due is Certain— Usury— Propositions Deducible, etc. sustained by the plaintiff. There is nothing in the case to negative the position that he has been injured to that amount." ^° We shall have occasion to consider the subject of damages on common, statutory, and official bonds, more fully here- after." § 153. Where the Amount Due is Certain— Usury.— The doctrine of liquidated damages, is not applicable to agree- ments for the payment of money. The amount due, and interest, is the true measure of damages in such cases. And if, from the nature of the contract, it appears that the actual damages may be accurately estimated by computation, and are much less than the sum stipulated, the stipulated amount will be considered a penalty." • Kor can the parties stipulate for liquidated damages, so as to evade the provisions of the law which establish the rate of interest." § 154. Propositions Deducible from the Decisions.— The sum expressed should be treated as a penalty: 1. Where a small sum of money is secured by a large one. 2. Where it is expressed to secure a certain sum of money, or a sum with interest, exceeding the legal rate. ^ Lord V. Gaddis, 6 la., 67. See, also, 2 Gr. Ev., § 263. *7 See, post. Chap. 18. »8 Fitzpatrick v. Cottingham, 14 Wis., 219; Warwick v. Chase, 23 Md., 154; Watts V. Sheppard, 2 Ala., 425; Berry v. Wisdom, 3 Ohio St., 241 Gray v. Crosby, 18 John., 219; Halderman v. Jennings, 14 Ark., 329 Griffin v. Creditors, 6 Rob. (La.), 216; Compton v. Compton, 5 La., 618 Bright V. Rowland, 3 How. (Miss.), 898; Hughs v. Fisher, Walk. (Miss.), 616. =9 Gower v. Carter, 3 la., 244; Clark v. Kay, 26 Geo., 403; Brown v. Maulsby, 17 Ind., 10; Mason v. Callender, 2 Minn.. 350; Daniels v. Ward, 4 Id., 168; Brewster v. Wakefield, 22 How., 118; Robinson v. Kinlay, 2 Kans., 184. See, also, Wyman v. Cochran, 35 111., 152; Beckwith v. The Trustees, etc., R. Co., 29 Conn., 268; Esmond v. Van Benschoten, 12 Barb., 366; Beale v. Hayes, 5 Sandf., 640. 154 THE LAW OF DAMAGES. When Tieated as Liquidated Damages— Rules of Construction. 3. Where it is doubtful whether the parties intended the specified sum as a "penalty," or "liquidated damages." 4. Where the agreement contains stipulations or covenants for the performance of several things of varying degrees of importance, and a sum is specified in general terms to be paid on a breacli of the contract; and even though it be designated as "damages," or "a fixed amount," or " specified damages," or " liquidated damages." 5. Where the payment of the sum named would be mani- festly unjust and oppressive, and enable the parties to evade the laws. § 155. When Treated as Liquidated Damages.— The sum expressed will be treated as liquidated damages: 1. Where the^ agreement is in the alternative, to do some particular thing or pay a particular sum of money, unless it shall appear unconscionable. 2. Where the actual damages wull be difficult or impossi- ble of ascertainment; especially, where the sum is not so unreasonably large as to induce the presumption that the parties did not contemplate its payment.^" § 156. Rules of Construction.— 1. Whether the sum specified in a contract shall be considered as a penalty or liqui- 30 See able opinion of Collier, C. J., in Watts v. Sheppard, 2 Ala. (N. S.), 426. In addition to the cases already cited, the sum designated was held to be liquidated damages in the following cases in diiFerent States : California. — Fish v. Fowler, 10 Cal., 512. On a contract to go into the butchering business, etc., Streeter v. Rush, 25 Cal., 67; California, etc., Co. V. Wright, 6 Id., 258; Lighter v. Menzel, 35 Id., 452. Arkansas. — Williams v. Green, 14 Ark., 315. Connecticut. — Tingley v. Cutler, 7 Conn., 295. Illinois.— ^m\ih v. Whitaker, 23 lU., 367. Jnrfmna.— Duffy v. Shockey, 11 Ind., 70; Miller v. Elliott, 1 Id., 484. Maine. — Dwinel v. Brown, 54 Me., 468; Gammon v. Howe, 14 Id., 250. Massachusetts. — Pierce v. Fuller, 8 Mass., 223; Perkins v. Lyman, 11 Id., 76; Curtis v. Brewer, 17 Pick., 513; Hodges v. King, 7.JV[et., 583; Leland v. EFFECT OF STIPULATIONS. 155 Rules of Construction. dated damages, is a question of construction, and althougli the language used in the writing is the principal guide, the court may be aided by the subject matter of the contract, the situa- tion of the parties, the usages to which they may be supposed to refer, and by a consideration of the question whether there is one or several stipulations of varying degrees of import- ance, or whether the damages are easy or difficult of ascer- tainment, or whether the sum designated is reasonable or disproportionate to the actual damages sustained. 2. The name given to the sum designated, though entitled to some weight, especially in doubtful cases of construction, will not conclusively determine the construction in this respect, which should be put upon the instrument. And although the parties may designate it " penalty," or " stated damages," or " liquidated damages, and not a penalty," the court will treat Stone, 10 Mass., 462; Merrill v. Men-ill, 15 Id., 488; Howard v. Bowers, 23 Pick., 455; Gushing v. Drew, 97 Mass., 445; Hall v. Cowley, 5 Allen (Mass.), 304. New For^•.— Bagley v. Peddie, 16 N. Y., 469; Williams v. Dakin, 22 Wend., 201; Nobles v. Bates, 7 Cow., 307; Cotheal v. Talmage, 9 N. Y., 551; Smith v. Smith, 4 Wend., 468; Knapp v. Maltby, 13 Wend., 587; Has- brouck V. Tappen, 15 .Johns., 200; Pearson v. Williams, 26 Wend., 630; Mott V. Mott, 11 Barb., 127. In the following cases the sum designated, was treated as a penalty: Ricketson v. Richardson, 19 Cal., 330; People v. Love, 19 Id., 676; Nash v. Hermosilla, 9 Id., 584; Hamilton v. Overton, 6 Blackf., 206; Carpenter v. Lockhart, 1 Ind., 434; Lord v. Gaddis, 9 la., 265; Daily v. Litchfield, 10 Mich., 29; Jaquith v. Hudson, 5 Mich., 123; Davis v. Freeman, 10 Id., 188; Hammer v. Breidenbach, 31 Mo., 49; Moore v. Platte County, 8 Mo., 467; Richardson v. Echck, 17 Barb., 260; Cotheal v. Talmage, 9 N. Y., 551; Den- nis V. Cummins, 3 Johns. Cas., 297; Jackson v. Baker, 2 Edw., 471; Lamp- man V. Cochran, 16 N. Y., 275; Spencer v. Tilden, 5 Cow., 144, ShieU v. McNite, 9 Paige, 101; Hoag v. McGinnis, 22 Wend.. 163; Fish v. Gray, 11 Allen, (Mass.), 22; Thoroughgood v. Walker, 2 Jones, (N. C), 15; Burrge V. Crump, 3 Jones, (N. C), 330. It is competent to fix the amount of damages, in order to avoid difficulty. Bingham v. Richardson, 1 Winst (N. C), 217; Carey v. Laer, 7 Pa. St., 470; Shreve v. Brereton, 51 Pa. St., 175; Smith v. Wainwright, 24 Vt., 97; Laun- benheimer v. Mann, 19 Wis., 519. 156 THE LAW OF DAMAGES. Kules of Construction. the same as one or the other, according to the intention gathered from the nature, terms, and character of the instru- ment— the subject matter of the stipulations, and the circum- stances of the case, guided by principles of justice and equity. CONTRIBUTORY NEGLIGENCE. 15^ Contribvitory Negligence. CHAPTEE X. CONTRIBUTORY NEGLIGENCE. Section 167. The Plaintiff can derive no Benefit from his own Wrong. 168. Application in cases of Negligence. 169. "Where the Injury is Aggravated by want of Subsequent Care. 170. "Where the Defendant could have Avoided the result of the Plaintiff's Negligence. 173, Instances of the Application of the Principle. 175. Contributory Negligence— Cases of. 177. Other cases of Negligence, per se. 178. Instructions— Erroneous— Correct, 179. Ordinary Care. 180. In case of Tire caused by Negligence. 181. Other Instances of Negligence. 182. Negligence not Imputed in the Act of Saving Life. 183. "Where the Injury Cannot be Apportioned. 184. Limits of the Rule in case of Contributory Negligence. 185. Knowledge by Servants of Defects Causing them Injury— "When Contributory Negligence. 186. "Whether the Question is one of Law or of Fact, 188. The Question, in General, one for the Jury. 189. Burden of Proof. 191. Presumption from the Instinct of Self-Preservation. 192. Where the Injured Person is a Child. 193. "Where an Infant is Incapable of Judgment. 194. Negligence of Parent no Defense to Action by the Infant. 195. Distinction where the Action is by the Parent. 197. Question for a Jury. 198. Intoxicated Persons. 199. Blind Persons, 200. Persons Non Compos Mentis. THE LAW OF DAMAGES. Plaintiff can Derive no Benefit from his own Wrong— Application, etc. § 167. The Plaintiff can Derive no Benefit from his own Wrong.— 2Vulltis commodum capere potest de injuria sua propria, is a familiar maxim of the law, and applicable where a party materially contrihntes to his own injury. lie cannot recover for such losses as result from iiis own, or iVoiu his own and another's fault.' This doctrine is founded in the soundest ])rinciples of justice and equity, and is universally recognized. Xo one should be permitted to take advantage of his own wrong, and, in pari delicto potior est conditio defendentis. Whether the contribution to the injury, on the part of the plaintiff, was willful, or merely the result of his negligence— whether it consisted in doing what he ought not to have done, or not doing what he should have done— if his negligence, or wrong, "proximately contril)uted to produce the injury ot which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him," he cannot recover therefor.' As between the parties, the injury must be caused by the defendant's fault.' Nor can the ])laintiff recover if the injury is the result of the want of ordinary care on the part of both, or if, by the use of ordinary care, he might have avoided the injury.'' § 168. Application in Cases of Negligence —The principle finds most usual application in cases of negligence, where, practically, much difficulty exists in framing certain and definite rules on the subject, and in their application, ' Ante. § 32. Aurora, etc., R. Co. v. Grimes, 13 111., 585; Chicago, etc., R. Co. V. George, 19 Id.. 510. =» Shear. & Red. on Neg., § 25, and notes. 3 Spencer v. Utica, etc., R. Co.. 5 Barb. (N. Y.), 337; Brown v. Maxwell, 6 Hill. (N. Y.), 592; Grippen v. N. Y. Central R. Co., 40 N. Y., 34; Bigelow V. Reed, 51 Me., 325. * Reeves v. Delaware, etc., R. Co., 30 Pa. St., 454; Duggins v. Watson. 15 Ark., 118; Beers v. Housatonic R. Co., 19 Conn., 566; Beatty v. Gilmore, 16 Pa. St., 463. CONTRIBUTORY KEGLIGENCE. 159 Application in Cases of Negligence. owing, frequently to tlie complicated character of the mutual negligence of the parties.' It may be said that the defendant is, in all cases, liable for the losses of which his negligence is the primary and proxi- mate cause; and, although there may have been negligence 8 The proposition that a person cannot recover damages where, by his own negligence, he has exposed himself to injury, is sustained by the following English and American cases : Butterfield v. Forrester, 11 East., 60; Sill v. Bro\\Ti. 9 C. & P., 601 Vanderplank v. MUler, 1 M. &. M., 169; Lygo v. Newbold, 9 Exch., 302 Great N. R. v. Harrison. 10 Id., 376; Caswell v. Worth. 5 E. & B., 549 Griffiths V. Gidlow, 3 H. & N., 648; Kennard v. Bui-ton, 25 Me., 49; Webb V. Portland R. Co., 57 Id.. 117; State v. Manchester k L. R. Co., 52 N. H., 528; Robinson V. Cone, 22 Vt., 213; Gahagan v. Boston & L. R., 1 Allen, 187; Adams v. Carlisle, 21 Pick, 146; Garrett v. M. & L. R , 6 Gray, 64; Berge v. Gardner, 19 Conn.. 507; Murphy v. Dean, 101 Mass., 455; Whee- lock V. Boston & A. R. Co.. 105 Mass., 403; Wilds v. Hud. R. R., 44 N. Y.. 430; Grippen v. New York C. R., 40 Id., 34; Silliman v. Lewis, 49 Id., 255; Blakely v. De Due, 19 Minn., 187; 111. Cent. R. v. Baches, 55 111., 379; Pittsburgh & F. W. R. v. Methuen, 21 Ohio St., 583; Moore v. Cent. R., 4 Zabr.. 284; Morris & E. R. v. Haslan, 33 N. J. (4 Vr.), 147; New Jersey Ex. Co. V. Nichols, Id., 434; Penn. R. Co. v. Goodman, 62 Pa. St.. 329; Baltimore & 0. R. v. Fitzpatnck, 35 Md.. 32; Kelly v. Hendric, 26 Mich., 255; Gay V. Winter, 34 Cal., 153; Ne^dham v. San Francisco R., 37 Id., 400-, Baird v. Morford, 29 la., 531; Wheeler v. Westport, 30 Wis.. 392; Macon & West. R. Co. v. Baber, 42 Geo., 327; Morrison v. Comehus, 63 N. C, 346; Kahn V. Love. 3 0reg., 206; Union Steam, etc., Co. v. Nottingham, HGratt.. 115; Walsh v. Miss. Val. Tr. Co.. 52 Mo.. 4:34; Fleytas v. Pon- chartrain R. Co., 18 La. An.. 3:39; HiU v. Opelousas, etc., R. Co., 11 Id., 292; Knight v. Ponchartrain R.. 23 Id., 462. Mr. Whai-ton, in his Treatise on Negligence, after stating the general rule in relation to contributorj- negligence, remarks : " The true ground for the doctrine is that, by the interposition of the plaintiff 's independent will, the causal connection between the defendant's negligence and the injury is broken. The principle, however, must be accepted, with the following qualifications: There must be a causal connection between the plaintiff's negligence and the injury. The plaintiff, as a rule, must be a person to whom the alleged contributory negligence is imputable; excluding, therefore, persons distracted by sudden tenw; persons of unsound mind, and drunk- ards ; persons deprived of their senses ; and infants. If the defendant is guilty of gross neghffence. he cannot set up a trifling negligence, or inadvertence of the plaintiff, as a defense." Whart. on Neg., §§ 300, 301, and cases cited. See, also, ante, Chap. 8. 160 THE LAW OF DAMAGES. Injury Aggravated by want of Subsequent Care. on the part of tlie plaintiff, yet, unless he might, by the exer- cise of ordinary care, have avoided the consequenoes of the defendant's negligence, he is entitled to recover the loss sus- tained thereby.' But, if by ordinary care he might have avoided the conse- quences of the defendant's negligence, he is the cause of his own injury." § 109. Whore the Injury is Affsravato^kill would adopt or sanction, and the plaintiff negligently failed to observe such direction, or purposely disobeyed the same, and that such neglect or disobedience proximately contributed to the mjunes of which he complains, he cannot recover in this action, although he may prove that the defendant's neghgence and want of skill also contributed to the injury This grows out of the doctrine that a party who has directly, by his own negligence or disregard of duty, contributed to bnng an injury upon himself cannot hold other parties, who have contributed to the same, responsible for any part thereof; nor does it make any cUfference that one of the parties contributed in a much greater degree than the other; the injured partv must not have contributed at all." The court! per Rix, J., on appeal, said: "'We are of opinion that the court did not err in so modifying the instructions requested by the p aintifi, whether the action be regarded as based upon the imphed contract ot the surgeon or upon tort. It is a weU settled principle of law, that a party seek- ing to recover for an injury must not have contributed to it m any degree, either by his negligence or cUsregard of duty imposed upon him by a party who by "his neghgence or want of care or skiU. may also in some degree have contributed to the injurj'." Cent. L. J.. 1875, p. 708-Geiselman v. Sco t. But in the Ught of some recent decisions, the doctrine in this case is rather strongly stated by the learned judge, and perhaps would require some modification. 11 162 THE LAW OF DAMAGES. Where Defendant could have Avoided result of PlaintUI's Negligence. iieo-liffence at the time, he minrlit have escaped the conse- quences of the defendant's ne*^ligence, he cannot recover." The phraseology used to expi-ess the doctrine, varies witli the different cases, though substantially tlie same. Thii-. Chief Justice Lowe, in ILth u v. The Cldcwjo c& NortJnoefst- ern Railroad Company^ after referring to several authorities, remarked as follows: " The leading principle here laid down is, that the plaintiff cannot recover for an injury resulting from the negligence of the defendant, if, notwithstanding such negligence, his own want of care and prudence, or that of the party injured, in any way contributed directly to the injury.'" § 171- Where there has been mutual negligence, and the negligence of each party was a proximate cause of the injury, no action whatever can be sustained. In such a case there can be no apportionment of the damages, and no action can be maintained by either party. And where the negligence of the plaintiff, is proximate and that of the defendant remote, or consists of some other matter than what occurred at the time of the injury, in such case no action 8 Scott V. Doublin etc., R. Co., 11 Irish Com. L. R., 377. See, also, Don- aldson V. The Mississippi, etc., R. Co., 18 la., 2S0, where Mr. Justice Cole commends the above rule as one which has the merit of much fairness, and as a statement of abstract truths, whatever may be the difficulty of the applica- tion. McAunickv. The Mississippi, etc., R. Co. 20 la., 338; Drake v. Mount, 33 N. J. L. (4 Vr.), 441 (1869); Griggs v. Fleckenstien, 14 Minn., 81. 9 Haley v. The Chicago, etc., R. Co.. 21 la., 15; which was an action by the plaintiff 's intestate for wrongful treatment of the deceased, and for inju- ries received through negligence, whereby the death of the deceased was occasioned. It appeared that the deceased got upon the cars after dark; that he was very drunk; that he did not pay his fare when demanded by the con- ductor, and for this reason he was thrown or dragged from the train about 4 o'clock A. M. Six hours or more thereafter, at a point nearly one-half mile from the depot where he had been left, he was run over by another train. The jury rendered a verdict for the plaintiff for $1500, and the Supreme Court awarded a new trial. See also, Redfield on Railways, 330, et seq.; Brown v. Han. & St. Joe R. Co., 50 Mo., 461; Walsh v. Miss. Val. Trans. Co., 52 Mo.. 434. CONTRIBUTORY NEGLIGENCE. 163 Where Defendant could have Avoided result of Plaintiff's Negligence. can be maintained, for the reason that the immediate cause was the act of tlic plaintiff.'" But, where the proximate cause of the loss was the defend- ant's fault or negligence, the plaintiff may recover though there was ne^lisrence on his part remotely connected with the loss." And where negligence of the defendant is the proximate and that of the plaintiff the remote, the action may well be sustained although the plaintiff is not entirely without fault.'^ »<> Justice Isham in Trow v. The Vermont, etc., R. Co., 24 Vt., 487. See. also, Callahan v. Warne, 40 Mo.. 131; The Galena, Dunleith & Minn. Pack. Co. V. Vander^ift, 34 Mo., 55; Redtield on Railways, 330. " The Vicksburg, etc., R. Co. v. Patton, 31 Miss., 156. See, also, Ker- whacker v. The Cleveland, etc., R. Co.. 3 Ohio St.. 172; Shaw, J., in Mar- ble V. Worcester. 4 Gray, 397. "Hill V. Warren. 2 Stark, 377; Monroe v. Leech, 7 Met., 274; Parker v. Adams, 12 Id., 415; Brown v. Maxwell, 6 HiU, 592; Sherman v. Western Stage Co., 24 la., 515, which wa.s an action by the husband to recover damages for the death of his wife, who was a passenger on the defendant's stage and whose death was caused by drowning whde being conveyed across a swollen stream in a small boat, and which was upset through the want of care and skill of defendant's sen-ants, as alleged by the plaintiff. The jury gave the plaintiff a verdict for $>!,0r<)ximatL'ly onrrihutiiig to the injury, it will be presiunt-d that he was free from such negli- gence. On the other hand where it is disclosed by the plaintiff's evidence, that he has been guilty of such negligence, he can- not recover.*' • The "natural instinct of self-presorvarion would stanacity and maturity of the child, and this is to be determined by the jury from all the circum- stances of the case.*' Thus, where the parents of a child permitted him to cross a street, and while crossing he was injured by the negligence of a traveler, it was held sutlicient to entitle the chihl to recover for the injury, that he was using that degree of care, of which he was capable, though a less degree than would l)e apjtropri- ate for an adult to use under like circumstances; and that even if the parents were negligent in permitting him to cross the street alone, their negligence was not contributory, and the child was entitled to recover, if in crossing the street he did no act which prudence would have forbidden, and omitted no act which prudence would have dictated, according to the best judgment of one of his physical and intellectual capac- ity/' § 193. Where un Infant is Incapable of Judgment. If the infant is so young as to be entirely destitute of any judgment, and entirely incapable of exercising any care, pru- dence or caution in any matter, he is not chargeable with con- tributory negligence. Thus, in an action in behalf of a child eighteen months old, for injuries sustained through the negligence of a railroad company, it was held, that the defense of contributory negli- 48 Railroad Co. v. Gladman, 15 Wall., (U. S.), 401. See, also, Stout v. Sioux City, etc., R. Co., 2 Dill., C. C, 294. « Lynch v. Smith, 104 Mass., 52 (1870). CONTRIBUTOET NEGLIGENCE. 185 Negligence of Parent or Guardian no Defense to Action by Infant. gence could not be maintained against a recovery for the injuries ; that sucli a child was incapable of comprehending the immi- nent danger of remaining upon a railroad track, when a train of cars was appioaching; that he could neither apprehend the danger to which he would be exposed in such a situation, nor take suitable means to protect himself against it; and that neo-ligence could not be properly imputed to him since he could know nothing of care, diligence, or danger/" To claim that such a child is bound by the same legal rules, in reo-ard to the exercise of care and dilgence in avoiding danger and escaping the consequences of other's neglect, which are applied to persons of full age and capacity, would be unreas- onable; and all that is demanded under such circumstances, is a degree of care and diligence, equal to the capacity of the child. § 194. Negligence of Parent or Guardian no De- fense to Action by the Infant.— Some conflict has occurred in the decisions of courts on the question whether, in an action for the infant or on his behalf, the negligence of the parent can be imputed to the child and thereby defeat the action on the ground of contributing negligence." The weiglitof authority is against such imputed negligence. Thus, in a recent case in Ohio, where the action was on so Schmidt v. Milwaukee, etc., R. Co., 23 Wis., 186. In this case the rail- road company neglected to build a fence required by the statute, and the child strayed upon the track and was injured by a passing train. The jury found there was no want of ordinary care on the part of the custodians of the infant, and that a proper fence would have prevented the child from getting upon the track. A verdict for damages therefore was sustained. See, also. Robinson v. Cone, 22 Vt., 213; Daley v. Norwich, etc., R. Co., 26 Conn.. 561; North Penn. R. Co. v. Mahoney, 57 Pa. St., 187; Smith v. O'Conor, 48 Id.. 218. 5' That the infant is personally chargeable with the negligence of the guardian, is supported by the following authorities: Hartfield v. Roper, 21 Wend., 615; Mangum v. Brooklyn, etc., R. Co., 36 Barb., 530; 38 N. Y., 455; Lehman v. Brooklyn, 29 Barb., 2:34; Kreig v. WeU, 1 E. D. S., 74; Callahan V. Bean. 9 Allen. 401; Lafayette, etc., R. Co. v. Huffman, 28 Ind., 287; Chicago V. Star, 42 lU., 174. 186 THE LAW OF DAMAGES. Distinction where Action is by I'arent. behalf of a child of tender years, for injuries sustained by the negligence of the defendant, and the defendant set up as a defense to the action, the negligence of the custodian in allowing the child to go unattended wiiere the injury was received, and that it was therefore a case of contributory neg- ligence. The child was too young to understand the care required to avoid injury under the circumstances. The court say: "No action can be maintained against him for the negligence of his parent or custodian; and it is difficult to perceive what ]>rinciple of public policy is to l>e subserved., or how it can be reconciled with justice to the infant, to make liis personal rights dependent upon the g(;od or bad conduct others." " § 105. DistiiK'tiou where the Action is by the Par- ent. — A distinction is drawn between actions, by or on behalf of the infant, and actions by the parent or representatives of deceased persons, or other persons authorized by statute to recover for injuries resulting in death. We have noticed in the former case that contributory neg- ligence is not chargeable against a plaintiff to defeat a right of recovery, where he is too young to exercise any care, or where he exercises care and discretion according to his understand- ing and capacity; and on the preponderance of authority he is not to suffer from the negligence of the parent or guardian. But in the latter case, many authorities hold that the want of care or negligence on the part of the parent may be shown, and that their contributory negligence would be a defense to an action for an injury. Thus, in an action brought by a father for damages sustained by injuries to a child five years old, who w'as run over and injured by a horse car, and from which injury he died, the s» Belfontaine, etc. R. Co. v. Snyder, 18 Ohio St., 399 (1868). The opinion of the court in this case cites and reviews many authorities relating to this question. See, also, post, § 617, note. CONTKIBUTOEY NEGLIGENCE. 187 Distinction where Action is by Parent. court instructed the jury, that, if the death of the child resulted from the want of ordinary care and caution on the part of the driver employed by the defendant, the plaintiff was entitled to recover, provided the jury found that the accident could not have been avoided by the exercise of such care and caution by the child, as ought under the circumstances to have been reasonably expected from a child of that age, or, by the exer- cise of ordinary care and caution on the part of the father of the child, or the person accompanying the child, at the time of the accident. And it was held that the instruction was not erroneous. § 196. And where plaintiff allowed his son six years old to go to and from school through the streets of a crowded city without a protector, and he was run over by the defendant; it was held, that if the boy neglected to exercise the care and caution which an adult of ordinary prudence would use, and that this contributed to the injury, the plaintiff could not recover. And it was further held, that the plaintiff's negli- gence in such a case would defeat his right of action the same as though the injury had been to himself." 53 Baltimore, etc., R. Co. v. State, etc., 30 Md., 47 (1868). But compare, OTlaraty v. Union, etc.. R. Co., 45 Mo., 70 (1868). See also, Bronson v. Southburj-, 37 Conn., 199; Kerr v. Forgue, 54 lU., 482. In a recent case in Missouri where an action was bi ought by the father for the negligent killing of his infant son, the court on the trial refused to give the following instruction: " If the jury beheve from the evidence that the child was kiUed by reason of the negligence of the person who was in charge and had custody of said chUd at the time it was killed, or if they beUeve from the evidence that the carelessness and want of care of said person matenaUy contributod to the death of said chUd, they wiU find the for defendant." The Supreme Court of that State held, that the refusal to so instruct wa^ not errone- ous. Opinion of Wagner, J., inlsbel v. The Hannibal, ete., R. Co., May Term, 1875, Cent. L. J., Vol. 2, p. 590. See also, Walters v. Chicago, ete., R. Co., 41 la 71 where it was held that it is sufficient care of an infant, where the father is a laboring man and the mother is sick, that they have plaxied the chdd in the care of a proper person. 54 Honigsberger v. Second Avenue, ete., R. Co., 2 Abb. (N. Y.), App. Dec , 378; 33 How. (N. Y.), Pr., 193; Reversing s. c, 1 Daly 89; Burk v. Broad- 188 THE LAW OF DAMAGES. Question for Jury -Intoxicated Persons— Blind Persons. § 197. Question for the Jury.— lu an action by the parent of a child, it was held to be a question of fact fur the jury wliether there was negligence on the part of the j)arent in allowing the child to go unattended in the streets, where lie was injured; and that it de])ended, not only upon his age, but his intelligence and physical ability." § 198. Intoxicuted Persons-— The effect of contributive negligence to defeat a right of action, is not affected by tlie fact that the injured party was intoxicated at the time. For, while he may not be held to that liigh degree of care that would be exacted of sober persons, still he is not excused from diligence and care." § 199. 15Iin(l Persons. — It seems that blind persons are placed on the same ground as infants, in respect to those acts of contribution to the injury, which arise from the want of the faculty of seeing; and they are only required to exercise the faculties they may have, according to the best of their abilities and understanding. Thus, where a man, in the day time, walked off the side of an unobstructed bridge sixteen feet wide, which was defective for want of a rail, and suffered an injury which would not have happened but for his blindness, the court refused to say that, as a matter of law, his fault contributed to the injury, way R. Co., 49 Barb., 529; 34 How. (N. Y.), Pr., 239. Unless there is unusual exposure to danger, there is no negligence whatever in allo^ving a child between ten and twelve years old, of ordinary activity and intelligence to be in the streets. Hon- v. Parks, 40 Cal., 188 (1870). ss Schierhold v. North Beach R. Co., 40 Cal., 447. See, also, Westchester, etc., R. Co., V. McElwee, 67 Pa. St., 311 (1870); Willard v. Pinard, 44 Vt., 34; Haskford v. New York, etc., R. Co., 43 How. Pr. (N. Y.), 222; Ihl v. Forty Second St., etc., R. Co., 47 N. Y., 317 (1872). The wrongdoer is always liable for the result of his willful and malicious acts, although the acts of the plaintiff contributed to the injury. 111. Cent. R. Co. v. Hutchin- son, 47 lU., 408. s6 111. Cent. R. Co. v. Hutchinson, 47 lU., 408, (1868). But see, Meyer V. Pacific R. Co., 40 Mo., 151. CONTEIBUTORY NEGLIGENCE. 189 Persons Non Compos Mentis. but held, that it was for the jury to say, after considering his familiarity with the road, his ability arising from the increased acuteness, fidelity, and power of his other senses, or otherwise, and all the circumstances of the case, whether he was guilty of carelessness in attempting to pass the bridge without a guide." § 200. Persons Non Compos Mentis.— The same rule, on the question of contributory negligence, we have noticed as applicable to infants of tender age, would undoubtedly be ap])licable to idiots, lunatics, and others, non compos mentis.'"' 57 Sleeper v. Sandown. 52 N. H., 244 (1872). 58 See many cases already cited relating to infants. 190 THE LAW OF DAMAGES. Damages on Contracts for Non-Payment of Money. CELAPTEE XL DAMAGES ON CONTRACTS FOR THE NON-PAY MENT OF MONEY. Section 210. Actual Compensation the Rule. 212. Interest as Damagea— Civil Law. 213. Promissory Notes. 214. Interest at the Place of Payment. 215. Interest in Different States. 216. Money means Coin. 217. Legal Tender Acts— Constitutional. 218. Applied to Antecedent Debts— Constitutional. 219. Agreement to Pay in Qold or Silver Coin, etc. 222. Propositions Deducible from the Decisions. 223. Contracts of Affreightment— Sterling Money. 224. When Parties Stipulate for Interest at a Particular Place 225. Exchange. 226. Protest. 227. Indorsee against Indorser or Surety. 228. Fraud in Transfer— Guaranty of Genuineness. 229. Notes Payable in Specific Articles. 230. Bills of Exchange. 232. Fixed Sum as Damages on Protest. 233. The Lex Loci Contractus. SCALING LAWS. 234. North Carolina— Scale of Depreciation. 235. Where Applicable. 236. Ordinances of Alabama and Georgia. 237. WTiere not Applicable. 238. The Scaling Laws of Virginia. NON-PAYMENT OF MONEY. 191 Actual Compensation the Eule § 210. Actual Compensation the Rule.— Having con- sidered the essential elements and general principles which aftect damages, we now proceed to consider the subject more fully in connection with particular contracts. We have remarked that the general rule of damages on the breach of a contract, as well as for a tort, whether the action be ex contractu or ex delicto^ is actual compensation for the wrong done. The damages for the non-payment of money according to contract, is the amount agreed to be paid with interest accord- ing to its terms; or, in the absence of any provisions as to interest, the legal rate of interest from the time it becomes due.' This is considered the loss from the non-payment of money, which is a proximate result of the non-payment. The rule is arbitrary and artificial. But some certain and uniform rule is convenient and desirable, if not necessary. And it may be reasonably assumed, that the one recognized is as just and equitable as any which could be adopted. § 211. The rule of the civil, as well as of the common law, causa proxima non remota spectatur, is here more strictly observed, than in cases of torts, as we have already noticed. And the reasons for this limitation of liability, in cases of a breach of contract for the payment of money, have equal force in such cases, as in torts. Besides the convenience of a uni- form rule in these cases, it is important that the limit of liabil- ity be fixed. It would be impossible, practically, to trace the remote consequences of a failure to pay money when due. It may bring pecuniary embarrassment to the payee, and subject him to extortion from usurers; loss of valuable and profitable contracts and undert^ings— prospective gains and '3 Parsons on Con., 155; Sedg. on Dam., 232; Curtis v. Innerarity, 6 How., 146; Hyman v. Sanders, 12 Cal., 107; Edwards on Bills and Promis- sory Notes, 608. 192 THE LAW OF DAMAGES. Interest as Damages— Civil Law on the Subject. profits; to the importunity of creditors; suits at law and in equity, and consequent costs and expenses, and finally, bank- ruptcy and pecuniary ruin. It may cause not only loss of business, but of reputation, of comfort, peace of mind, and happiness. And, moreover, it may cause sufTerin^;^, sickness, insanity, and destroy the social standing and relations, not only of himself, but of his family. But these possible, nay, perhaps, common results, are too remote and intangible to be considered as legal losses resulting from the non-payment of money when 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 appal the most heroic, and paralyze the energies of the most enterprising business man. §212. Interest as Dani.iges— Civil Law on the Subject. — The rule allowing interest as damages M-ould appear just and equitable, as the payee, on non-payment of money due him, would, in case he was compelled to raise the amount, ordinarily be compelled to pay the legal rates of interest, and would, in theory at least, be indemnified by receivin<>: the same, as dama^res for money withheld from him. But, however this may be, the rule is as well calculated to promote justice as any which could be adopted. This accords also with the rule of the civil law. Pothier remarks, in ref- erence to this subject, as follows: ''As the different damages which may result from the failure to perform this kind of obligation vary infinitely, and, as it is as difficult to foresee as to excuse them, it has been found necessary to regulate them by a sj)ecies of penalty, and fix them at a precise sum."" And Domat says: "Interest is the reparation or satisfac- tion which he, who owes a sum of money, is bound to make « Pothier on Obli., Part 1, Ch. 11, Art. 3, 170. NON-PAYMEKT OF MONEY. 193 Promissory Notes. to his creditor for the damage which he does him by not paying iiim the money he owes him.'" The Code of Louisiana, based upon the general doctrines of the civilLaw, also provides on this subject as follows: "The damages due for delay in the performance of an obligation to pay money, are called interest. The creditor is entitled to these damages without proving any loss and, whatever loss he may have suffered, he can recover no more." ' § 2 1 3. Promissory Notes . — The damages recoverable on a promissory note is the principal, and the interest stipulated to be paid therein, provided it does not exceed the legal rate of the country where payable. And the general rule is, that where the note contains no stipulation for the payment of interest, still interest may be recovered at the legal rates, from the time it becomes due." The rate of interest fixed by the contract controls in this respect, if it does not exceed that limited bylaw. And where it provides for the payment of interest annually or semi-annu- 3 Domat, Book 3, Tit. 5 (Cush. Trans.), Vol. 1, p. 741. * Louisiana Code (1867). Art. 1929. the loss referred to is particular loss. Loss is implied by the non-payment. Although interest is generally referred to as the damges for a failure to pay money when due, we have considered not only that, but the principal sum equally so, as being an element in its assessment and coming \nthin our definition of the term. The creditor cannot be indemnified until he obtains his principal a.s well as interest. "And if the creditor is obliged to resort to the courts for redress he ought, in all such cases, to recover interest in addition to the debt, by way of damages." Edwards on Bills and Notes, 712. See, also, as to inter- est generally, Van Rensselaer v. Jewett, 5 Denio., 135; 2 N. Y., 135. But if the debtor is prevented from paying without his fault, as by injunction, he is not liable for interest; Stevens v. Barringer, 13 Wend., 639; Fitzgerald V. Caldwell, 2 Dall., 215; Le Branthwait v. Halsey, 4 Halst., 3. See. also, 2 Pars, on Con., 523. Upon a total breach of an agreement by one party to support another during Ufe, the latter may recover full and final damages including not only expenses of support to the time of trial but the prospec- tive expenses during life. Schell v. Plumb, 55 N. Y. 592. 5 Edwards on BiUs and Notes, 708, et seq.; United States Bank v. Chapin, 9 Wend., 471; 19 John., 246; Owsley v. Greenwood, 18 Minn., 429. 13 194 THE LAW OF DAMAGES. Promlssorj' Notes. ally, the time and mode of payment is governed by the agree- ment.' When the principal and interest specified in a bond or note is not paid when it falls due, whether the payee is entitled to the legal rate of interest thereafter, or the rate specified in the instrument, is a question on which the decisions do not appear to be uniform. But the weight uf argument, if not of author- ity, would seem to be in favor of allowing the stipulated rate of interest ill such cases, especially where it exceeds the rate which is otht'rwi>t' pi-ovid»'4; Payne v. Clark, 23 Mo., 259; Phiney v. Baldwin, 16 111., 108. But see contra, Kitchen v. Branch Bk. of Mobile, 14 Ala., 233; Spalding v. Lord, 19 Wis., 533. ^ Ludwich V. Hutzinger, 5 Watts & S., 51 ; Washington v. Planter's Bank. 1 How. (Miss.), 2.30; Jones v. MaUory, 22 Conn., 386; Selloch v. French, 1 Conn., 33; Whitworth y,. Hart, 22 Ala., N. S., 343; Godwin v. McGehee, 19 Ala., 468, where it is held a just compensation and to follow as an incident. See, also, in Illinois Ford v. Hixon, 49 111., 142. 9 Van Rensselaer v. Jewett, 5 Denio., 135. NOX-PATAIENT OF MOXET. 195 Interest at Place of Payment. So in Iowa, interest is allowed on unliquidated suras due.'" "Where a note specifies no time of payment, it is due imme- diately, and draws interest from date;" where it is payable on demand it draws interest from the time the demand is made, unless it provides for the payment of interest from date in case of failure to pay on demand, in which case it draws inter- est from date.'= And parties may stipulate for interest from the date of a note, as a penalty for the non-payment of money at a specified time, even where the note would otherwise draw no interest;" or for tlie payment of interest before the matu- rity of the obligation." § 214. Interest at the Place of Payment —The inter- est in cases where none is specified in the contract is calcu- lated according to the rate at the place where the obligation is made payable;" but if no place of payment is designated, the interest at the place where it is made governs." And where an indorser is compelled to advance money on account of the indorsement, he is entitled to interest at the rate which prevails at the ])lace where the advance is made." And where a note, signed and indorsed in one state and sent to the agent of the maker, to be delivered in another state in payment of a debt due by the maker, is legally made in the latter state, the contract of the indorser is governed by the law of that state; " and the interest is governed accord- ingly- '° Mote V. Ttie Cicago, etc.. R. Co.. 27 la., 22. " Wenman v. Mohawk Ins , Co., 13 Wend., 267; Rens. Glass Factory v Reid, 5 Cow.. 587. " Rens. Glass Factory v. Reid. 5 Cow.. 600, opinion by Spencer, senator; Francis v. Hastleman, 4 Bibb, 282; Patrick v. Clay, Id., 246. '3 Daggett V. Pratt. 15 Mass.. 177; Homer v. Hunt, 1 Blackf , 213; WU- son V. Dean, 10 la., 432. '* Catlin V. Lyman. 16 Vt., 44; Bannister v. Roberts, 35 Me., 75. 's Scofield V. Day, 20 John., 102; Archer v. Dunn, 2 Watts & S., 327. '«Swett V. Dodge, 4 Smedes & M., (Miss.), 667. Edwards on Bills, 714. '7 Winthrop v. Carleton, 12 Mass., 4. '8 Cook V. Litchfield, 5 Sand., 3:30; Hyde v. Goodnow, 3 Comst., 266. 196 THE LAW OF DAMAGES. Interest In Different States. On tliis subject Chancellor Kent, remarks: " The law of the place where the contract is made, is to determine the rate of interest where the contract specifically gives interest; and this will he the case tliongh the loan be secured by a mortgage on lands in another State, unless there be circumstances to show that the parties had in view the law of the latter jjlace in respect to interest. When that is the case the rate of interest of the ])lace of payment is to govern." " Although the law of the place where the contract is made limits the rate of interest below the law of the place where the ])ayinent of the money is to be made, and even makes the contract void for usury, ^Yhen it stipulates for more than the legal rate; still, the weight of authority sustains a contract made in such a case, payable in another state, where a higher rate is allowed, when such higher rate of interest is provided for in the contract."" So, again, it was held that where the instrument contains no stipulation in reference to interest, but oidy ]»rovides for the payment of money, interest may be allowetl by way of damages for a foilure to pay, and the law of tbe place of pay- ment furnishes the rate of interest whicb is allowed in such cases."' These general principles apply as well to checks, bills of exchange, and all other contracts for the payment of money. § 215. Interest in Different St.ites. — It will be per- ceived that the amount recoverable as damages on account of •9 2 Kent's Com., 460. See, also. Story on Conf. of Laws, § 305. =» Andrews v. Pond, 13 Peters (U. S.), 65; Peck v. Mayo, 14 Vt.. 33; Par- son's Merc. L.. 321; Butters v. Olds, 11 la., 1; Arnold v. Potter. 22 Id.. 194; where it is held that citizens of different states may contract for the payment of a rate of interest allowed by the law of the state in which thq maker resides, and in which property mort^ged to secure the note is situated, even if the rate would be usurious in the state where the note was made, or in the state where the note is by its terms made payable. ^' Story's Conf. L., § 296; Peck v. Mayo, 14 Vt., 33; Bushly v. Camac, 4 Wash. C. C, 296; Gordon v. Phelps, 7 J. J. Mar., 619. NON-PAYMENT OF MONEY. 197 Interest iu DifEerent States. interest in such cases, would depend on the rate of interest at the place of payment," These rates vary in difierent states, and hence it is necessary to understand the legal interest at the place of payment, in order to determine the measure of damages. Besides this, it ^ We annex for the convenience of the profession, the follovdn^ condensed statement of the rates of interest in the various States and territories, and the penalties imposed for usury : Arkansas. — The legal rate of interest, where no rate is mentioned, is six per cent. Parties may contract for any rate not exceeding ten per cent. Usurious contracts are void. Dig. Ark. Stat., 1858, p. 622. Alabama. — Interest eight per cent. Contract for higher rate not void except as to interest. Rev. Code, 1867, p. 406. Arizona. — Where no rate is agreed upon interest is ten per cent. Parties may stipulate for any rate. Compiled Laws 1871, p. 538. California.— U there is no contract fixing a higher rate, ten per cent is allowed. But parties may contract for any rate, and even for compound interest. Judgments can draw only seven per cent under any circumstances. Civil Code, §§ 1917, 1918, 1919, 1920. Connecticut. — Legal rate seven per cent. In usurious contracts, the prin- cipal can be recovered with seven per cent interest, and all in excess of legal interest that has been paid is forfeited to any party who may sue therefor within one year. Revision 1875, p. 351. Delaware. — Legal rate six per cent. Whoever takes more forfeits a sum equal to the amount loaned — half to the state, half to the prosecutor. Rev. Code, 1852, p. 18:1 District of Columbia.— Contracts for more than six per cent are void, and the \'iolation of the law subjects the party to a penalty of treble the amount of money lent or contracted for; one-half to go to the United States, and the other to any person who shall sue for it. Florida. — Interest under express contract eight per cent. Usuiy is pun- ishable by indictment and forfeiture of all the interest. Where no interest is stipulated for, six per cent. Thompson's Dig., p. 234-5. Georgia.— Legal interest seven per cent where no stipulation is otherwise made. Parties may contract for any rate in writing. Code 1873, p. 362. Illinois. — Six per cent is allowed, where no rate is specified. Parties may contract for the payment of not exceeding ten per cent. Usury forfeits inter- est. Rev. Stat, 1874, p. 614. Indiana. — Interest allowed six per cent. Usury does not vitiate the con- tract. The principal can only be recovered. Gavin & Hord, Stat. Ind , p. 406, 407. Iowa. — Legal rate where no other is agreed upon six per cent; but parties may agree upon any rate not exceeding ten per cent. Illegal interest paid, 198 THE LAW OF DAMAGES. Interest in DifEeient States. is important to know the provisions of the statute hiw on this subject in the different states, as in several of them the conse- quences visited upon the payee in case of usurious interest, is the forfeiture of the interest, and sometimes even of the prin- cipal. We therefore deem it advisable to state in a note tlie rate of legal interest in different states, with the penalties that may be recovered back and judgments bear the same rate of interest as^ the contract on which they are rendered not exceeding ten per cent. If the execution is stayed, even where it provides for a less rate of interest, it draws ten per cent. If more than ten per cent interest has been contracted for, there is a forfeiture of ten per cent per annum to the school fund, of the county in which the suit is brought, and the plaintiff can recover only for the principal, without interest or costs. Code 1873, p. 377, 378. Kentucki/.—Legdl rate six per cent, unless otherwise contracted for. Par- ties may contract in writing for any rate not exceeding ten per cent. Usury is attended with a forfeiture of all interest. Gen. Stat. 1873, pp. 562, 565. Louisiana.— Interest five per cent. By agreement not exceeding eight per cent. Bank rates six per cent. Penalty for usury, forfeiture of all the interest. Usurious interest when paid may be recovered back within twelve months. Civ. Code (Fuqua). p. 393. Maine.— Legal rate of interest in the absence of any agreement, is six per cent. Rev. Stat., 1871, p. 391. Mari/land.— The constitution as well as the statute provide for six per cent interest, and any excess only is forfeited. Code (1865), Vol. 1, p. 696. Massachusetts.— Legal interest six per cent. But parties may contract in writing for any rate of interest. Sup. Gen. Stat. (1873), p. 539. Michigan.— Interest seven per cent, with authority to agree upon any rate not exceeding ten per cent. Contracts are only void for the excess. Com- piled Laws (1871), p. 540. Montana.— Legal rate ten per cent. But parties may stipulate in writing for any higher rate. Codified Stat., 7 Sess., pp. 497, 498. Minnesota.— Legal rate seven per cent where no other rate is agreed upon. But parties may contract in writing to pay any rate not exceeding twelve per cent. Stat, at Large (1873), p. 711. Mississippi.— Legal interest six per cent. But parties may contract in writing to pay any rate not exceeding 10 per cent. Rev. Code (1871), §§ 2279, 2282. Missouri.— Legal rate six per cent. Parties may agree upon any other rate not exceeding ten per cent. Usury works a forfeiture of the interest to the use of the county in which the suit is brought. Wagner's Mo. Stat., Vol. 1, pp. 782, 783. New Hampshire.— Legal rate six per cent; and if more is taken the party ^^ON-PAYMENT OF MONEY. 199 Money means Coin. are imposed in case of a violation of the statutes in this respect. § 216. Money means Coin. — When a note or other in- strument for the payment of money expresses a definite sum to be paid in money, this is understood to mean payment in coin; as this is, in the absence of express statutes on the sub- • receiving it forfeits three times the araount taken. Gen. Stat. (1867), p. 4313. New Jersey. — Legal rate seven per cent. The amount of the principal can only be recovered. Rev. Stat. (1874), p. 356. New York. — Legal rate seven per cent. All contracts for more are void. The usurer forfeits both principal and interest. . Statutes at Large (Edmonds), Vol. 1, pp. 725, 726. North Caroliana. — Legal rate 6 per cent. Eight per cent may be con- tracted for in ■ttT.'iting for the loan of money. No recovery can be had of more than these rates. Brattle's Revisal, p. 835. Nebraska. — Legal rate 10 per cent. But any rate not exceeding 12 per cent may be stipulated for by contract. In case of usury only the principal ^vithout interest can be recovered. Gen. Stat., pp. 446. 447 (1873). Ohio. — Legal rate 6 per cent. Excess of interest paid may be recovered back. Rev. Stat., pp. 742, 744. Pennsiflvania. — Legal rate 6 per cent. Usurious interest cannot be recov- ered; and if paid can be recovered back, if sued for within 6 months. Canal and railroad companies may borrow money at higher rates. Br.'s Purd.'s Dig., p. 803. Rhode Island. — Interest 6 per cent when not otherwise stipulated. Gen. Stat. (1872), p. 270. South Carolina. — Legal i-ate 7 per cent. Former acts relating to usury repealed, and it would appear that parties may make any contract in refer- ence to interest. Rev. Stat. (1873). p. 318. Tennessee. —Interest generally 6 per cent. But by agreement in writing, parties may contract for any rate of interest not exceeding 10 per cent. The usurer is Hable to a penalty of one himdred dollars. Act 1869-70, Ch. 69, §§ 1. 2, 3, 4. Texas. — Legal rate 8 per cent. But parties may agree upon any rate as high as 12 per cent. When more is stipulated for, no interest can be recov- ered. Pascal's Dig., pp. 665, 666. Vermont. — Legal rate 6 per cent. Interest paid beyond that rate may be recovered back. Usury forfeits the excess of legal interest. Gen. Stat. (1863), pp. 507, 579. Virginia. — Legal rate 6 per cent, or 8 per cent by contract in writing. AU contracts for more are void for the excess. But banks may take interest 200 THE LAW OF DAMAGES. Legal Tender Acts Constitutional. ject to the contrary, the only legal tender." Hence, the lawful holder of a promissory note or any other agreement for the payment of money, may at common law require the payment of the principal and interest in gold or silver coin. But where the instrument provides for payment in currency or Lank notes, the holder can only recover according to its terms; and a tender of currency or bank notes as stipulated, to the nominal amount, would be a good tender; and the measure of damages on a breach would be the value of currency or notes measured by the standard of a dollar in coin. § 217 . Le^al Tender Acts Constitutional.— By an Act of Congress of February 25, 1862, it was declared that certain treasury notes to be issued by the United States by virtue of the Act, should be a legal tender in payment of debts." And a similar provision was incorporated into the subse- quents acts of Congress relating to the currency, of March 3, 1863," and June 30, 1864." These are usually denominated the "Legal Tender Acts." Soon after the passage of these acts numerous controversies arose in various States in refer- ence to their constitutionality, and the power of Congress to make such laws. And the State courts generally on this on loans, at the rate of two-thirds of one -per cent., for thirty days, and this may be received in advance. Code (1873), p. 977. Wisconsin. — When no other rate is agreed upon, 7 per cent is the legal rate; but parties may contract for any rate not exceeding 10 per cent. If more is taken three times the excess, so paid, may be recovered back, if suit is brought therefor within one year, and all notes, bills, bonds, etc., providing for a larger rate of interest are void. Taylor's Stat., Wis. (1871), p. 838. West Virginia. — Legal interest generally 6 per cent. Contracts for more are void. If a person takes more he forfeits double the amount taken. Code (1860), pp. 624, 625. « Gwin v. Breedlove, 2 How. (U. S.), 29. =3 Rev. Stat., U. S. (187.5), p. 712, Ch. 39, § 8589; Chap. 33, U. S. Stat, at Large, Vol. 12, p. 345, Id., § 3590. 24 U. S. Stat, at Large, Vol. 12, p. 709. »5 U. S. Stat, at Large, Vol. 13, p. 218. NON-PAYMENT OF MONEY. 201 Antecedent Debts— Constitutional— Agreement to pay Gold or S ilver, etc. question, sustained the constitutionality of the several acts, in respect to the legal tender clauses."" § 2 1 8. Applied to Antecedent Debts— Constitutional. — These decisions were authoritatively sustained by the Supreme Court of the United States after a very full con- sideration of the question; and the constitutionality of these statutes was affirmed by the highest tribunal in this coun- try." And they not only settled the general question of the consti- tutionality of the legal tender clauses, in said acts; but also that such clauses were constitutional so far as the same related to antecedent debts, and that they applied to contracts made before as well as after the passage of the acts."' § 219. Agreement to pay in Gold or Silver Coin; or U. S. Gold or Silver.— Another question presented to the courts about the same time as the foregoing one, was in refer- ence to contracts to pay in gold or silver coin; and whether the provisions of the legal tender acts, applied to such cases. In Iowa, in 1864, the question was presented to the Supreme ^ See elaborate opinions in the cases of The Metropolitan Bank and Shoe & Leather Bank v. Van Dyck; and Mayer v. Roosevelt, 27 N. Y., 400; Kunpton v. Bronson, 45 Bai-b. (N. Y.), 618; Lewis v. The N. Y. Cent. R. Co., 6 Am. L. Reg. (N. S.), 703; Lick v. Faulkner, 25 Cal., 404; Maynard v. Newman, 1 Nev., 271; Shallenbarger v. Brmton; Mervine v. Saitor; Davis v. Bm-ton; Kroener v. Calhoun; Sanfbrd v. Hayes; Graham v. Marshal; and Laughhn v. Harvey. 52 Pa. St., 9; Wood v. Bullens, 6 Allen (Mass.), 516; George v. Concord, 45 N. H., 434; Breitenbach v. Turner, 18 Wis., 140; Van Husen v. Kanouse, 13 Mich., 303; Carpenter v. Northfield Bank, 39 Vt., 46; Appel v. Woltmann, 38 Mo., 194. =7 Knox V. Lee; Parker v. Davis, 12 WaUace (U. S.), 457; Dooley v. Smith, 13 WaUace (U. S.) 604. =^8 The Supreme Court while differently constituted a short time before the decisions of the cases last cited, had held that the clause making the currency provided for by the acts a legal tender, did not apply to contracts made before the passage of the statutes, and that as to such, they were unconstitu- tional and void. Hepburn v. Griswold, 8 Wallace, 603; affinnmg Hepbm-n V. Griswold, 2 Duval, 20. 202 THE LAW OF DAMAGES. Agreement to pay iu Gold or Silver Coin, etc. Court of that State. The action was based upon a note paya- ble in " U. S. gold." "Wright, C. J., in delivering the opinion of the court, remarks: "The incorporation of the words ' U. S. gold' into the note or contract did not change or increase the obligation of the maker to pay in the medium or currency declared by- law to be a legal tender in the payment of debts. That is to say, if these words had not been used, the maker, but for the Act of Congress making treasury notes a legal tender, [Act Feb'y 25, 1862,] would have been compelled to pay gold or silver; and this would have been his legal duty, whether he received from the creditor gold, silver, bank paper, horses, or other consideration. For, prior to such legislation, all debts public and private, had to be paid in what was called the hard money medium; and no creditor was bound to receive anything else.'""^ It was held in this case that a tender of the United States Treasury legal tender notes, in payment of the debt was a good tender. But, this decision, with others of the same kind,^" seems to have been overruled in the Supreme Court of the United States as we shall presently see. § 220. In an action in JS'ew York, on an agreement to pay " iu gold or silver coin, lawful money of the United States;" it was held by the Court of Appeals of that State, that such an obligation would be satisfied by the tender of legal tender notes at their nominal value." But the case was taken to the Supreme Court of the United States, and reversed on two grounds : 1. Because by various acts of Congress the contract paya- ble in gold and silver coin lawful money of the United States, =9 Wamebold v. Schlicting, 16 la., 243. 30 Theyer v. Hedges, 23 Ind., 141; Whetstone v. Coleby, 36 111., 328; Humphrey v. Clement, 44 111., 299; Troutman v. Gowiiig, 16 la., 415, where it was held that a contract to pay in gold and silver coin, would be satisfied by a payment of legal tender notes. 3» Rodes V. Bronson, 34 N. Y., 649. NON-PAYMENT OF MONEY. 203 Agreement to pay in Gold or Silver Coin, etc. was equivalent to one to deliver an equal weight of bullion of the same fineness as required by law for the coin. 2. Because, as there were two kinds of money at the time the tender was made, both of which were by law a legal ten- der, but which were in actual value, far from equivalent to each other, a contract stipulating for payment in the most valuable kind, namely, gold and silver, could only be satisfied by such a payment." An action was brought for a breach of the covenant to pay rent, contained in a lease of property in the City of Balti- more. The covenant provided for the payment of an "annual rent of fifteen pounds current money of Maryland, payable iu English golden guineas, weighing five pennyweights and six grains, at thirty-five shillings each, and other gold and silver, at their present weights and rates, established by act of Assembly." In delivering the decision of the majority of the Supreme Court of the United States, Chase, C. J., said : " When it appears to be the clear intent of a contract that payment or satisfaction shall be made in gold and silver, damages should be assessed and judgment entered accordingly. It follows that in the case before us the damages should have been assessed at the sum agreed to be due, with interest, in gold and silver coin; and judgment should have been entered in coin for that amount.'"^ And in a subsequent case in the same court, where in an action on a lease for rent, the lease provided for the payment of an annual rent of a specified number of ounces, penny- weights and grains of pure gold, in coined money; it was held, that the judgment should be entered for coined dollars y Bronson v. Rodes, 7 WaU. (U. S.), 229. See. also, Trebilcock v. Wil- son, 12 Wall., 687, where the same principle is applied to a promissory note payable in specie. See, also, Chisholm v. Arrington, 4^3 Ala. (N. S.), 610; McGoon V. Shirk, 54 111., 408; Holt v. Given, 43 Ala., (N. S.), 612. 33 Butler V. Horwitz, 7 Wall., (U. S.), 258; Miller, J., dissenting. 204 THE LAW OF DAMAGES. Agreement to pay in Gold or Silver Coin, etc. and parts of dollars, instead of treasury notes equivalent in mar- ket value to the value in coined money of the stipulated weights of pure gold.'* § 22 1. In most civilized countries there are different kinds of money, having different relative values. And where there is a contract for the payment of a particular kind of money, it will be enforced by the courts. And where an action was brought on a bill of exchange, payable in the United States in gold dollars, it was held that a judgment thereon should be for gold dollars.'' So, the almost uniform current of decisions in California, under statutes wdiich required judgments .to be satisfied in the coin, or currency stipulated in the contract, is in harmony with the decisions of the United States courts above referred to.'" And the same doctrine is held in l^evada." But, in California, where the defendant had wrongfully sold real estate belonging to the plaintiff, and of the value of $5,200 in gold; it was held, that the specific money act did not apply, and that a judgment in such a case would be satis- fied by the payment of the amount in legal tender notes.-* In Massachusetts, it has been held, that, where coin is paid on an ordinary debt, without any special contract as to the rate at which it is to be received, it will pay no more than an equal nominal amount in legal tender currency.'' And, in 34 Dewing v. Sears, 11 WaU., (U. S.), 379. 35 Kellog'g V. Sweeney, 46 N. Y., 291. See, also, Chrysler v. Renois, 43 N. Y., 209; Philips v. Speyers, 49 N. Y., 653; Independent Ins. Co. v. Thomas, 104 Mass., 192; Warren v. Franklin Ins. Co., 104 Mass., 518; Kup- fer V. The Bank of Galena, 34 lU., 328; Dalton v. Paillaret, 52 Pa. St., 109; Seeling v. The Atlantic Mut. Ins. Co., 45 Barb., 510. 36Carpentier v. Atherton, 25 Cal., 564; Lane v. Gluckauf, 28 Cal., 288; Spencer v Prindle, 28 Cal., 276; McComb v. Reed, 28 Cal., 281 ; Harding v. Cowing, 28 Cal., 212; Reese v. Steams, 29 Cal., 273; Tarpy v. Shepard, 30 Cal., 180; Pratt v. Stearns, 31 Cal., 78. 37 Clarke v. Nevada Land & Mining Co., 6 Nev., 203. 38 Price V. Reeves, 28 Cal., 457. 39 Bush V. Baldrey, 93 Mass. (11 AUen), 367. NOIiT-PATMENT OF MONEY. 205 Propositions Deducible from Decisions— Contract of Affreightment, etc. an action for the conversion or negligent loss of United States coin, it is a controverted question whether the judgment should be for the value of the coin in legal tender notes, or for the amount of the coin itself in specie. On this question it seems the courts of New York and Massachusetts differ. The former holding in favor of a judgment for the coin itself;" the latter, its value computed in treasury notes." § 222. Propositions Deducible from the Decisions.— From the foregoing the following propositions are deducible: 1. That where a contract provides for the paj-ment 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 payment 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 such 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 judgment can only be satisfied by specie payment!''' § 223. Contract of AflPreightment— Sterling Money. — And, where a contract of afifreightment provided for the 40 Kellogg V. Sweeney, 46 N. Y., 291. 4' Gushing v. Wells. Fargo & Co., 98 Mass., 550. 42 Where gold and silver coin are converted, the measure of damages is the market value of the coin, and the bailor may recover what has been realized on a sale by the bailee. Bank v. Burton, 27 Ind., 426. 206 THE LAW OF DAMAGES. When Parties Stipulate as to Interest at a Particular Place. payment of so many pounds, shillings, and pence, in the ster- ling money of Great Britain, in coin in New York, on the delivery of the property there, it was held, that tlie owners of the vessel might recover, on a libel in personam, what the amount as specified of British coin, was worth in New York, in gold and silver coin of the United States, on the day of the arrival."' § 224. When Parties Stipulate as to Interest at a Particular Place.— We have stated that the damages recov- erable for the non-payment of a promissory note is the prin- cipal and interest therein stipulated to be paid, not exceeding the legal rates, and excepting those cases where there may be a forfeiture of interest or principal under the statutes against usury; and that in the absence of any stipulation in reference to interest, then the legal rate of interest at the time and place of payment should govern from the time it became due; and where no place of payment is specified, then interest at the rate provided at the place of making the contract. But it should be further stated that the parties may stipulate for the legal rate of interest at either place, and thus determine the inter- est that may be recovered." And where a suit is brought on a contract in another State than the place where the contract is payable, the rate of inter- est expressed in the note, not exceeding the rate where pay- able, may be recovered though it exceeded the rate of interest where the suit is brought. And where the defendant, a resident of Iowa, executed his promissory note in that state, and dated there, payable in New York, for a loan of money in Massachusetts, and payable to one B., who indorsed it to the plaintifiT in Iowa; and to 43 Forbes v. Murray, 3 Benedict's (U. S. Dist. Court) R., 497 (1869). See, also, Guthrie v. CoUin, 3 Daly (N. Y.), 125, (1869). 44 Berrien v. Wright, 26 Barb., 208; Andrews v. Pond, 13 Pet., 65; Chap- man V. Robertson, 6 Paige Ch., 627; Story on the Conf. of Laws. § 296. NON-PAYMENT OF MONEY. 207 Exchange. secure the note the defendant and his wife executed a deed of trust of real estate in Iowa, to a trustee residing in that state, and the note was delivered by the defendant to the plaintiff's indorser in Massachusetts, and the money loaned thereon received there, pursuant to an agreement entered into when the loan was negotiated ; it was held in an action to foreclose the trust deed, that if the plaintiff and defendant in good faith and without intent to evade the usury laws of Massachusetts, stipulated for the rate of interests allowable in Iowa, which was greater than the legal rate of either Massachusetts or New York, the stipulated interest was recoverable and the contract should be enforced accordingly." § 225. Exchange. — The question often arises whether a debt, payable in one country and sued upon in another, entitles the plaintiff to the difference in exchange between the two coun- tires, in addition to the ordinary damages. And on this ques- tion there seems to be a diversity of decisions. In New York and Massachusetts, it is held that this amount cannot be recov- ered.*' While the United States, and otlier courts, have held that, in addition to the ordinary damages, the plaintiff might recover the exchange between the two countries." And in an action on a note made by the defendant in Canada, and payable in Canadian currency, which was at a premium over United States currency, and where the suit was brought on the same in Wisconsin, it was held by the Supreme Court of that state, that the premium might be recovered, and that it should be 45 Arnold V. Potter, 22 la., 195. See, also, Butts v. Olds, 11 la., 1 ; Towns- end V. Reily, 46 N. H. 300 (1867); Am. L. Reg., Feb., 1867, p. 251; Chap- man V. Robertson, 6 Paige Ch., 627; Peck v. Mayoi 14 Vt., 33. 46 Martin V. Franklin, 4 John., 124; Scofield v. Day, 20 John., 102; Adams V. Cordis, 8 Pick., 260. See, also, Lodge v. Spooner, 8 Gray, 166; Hussey v. Farlow, 91 Mass., (9 Allen), 263; Bush v. Baldrey, 93 Mass., (11 AUen), 367. 47 Smith V. Shaw, 2 Wash., U. S., C. C, 167; Grant v. Healey, 3 Sumner, 523; Lanussev. Baker, 3 Wheat., 101; Woodhull v. Wagner, 1 Bald. (U. S.), 296; Story on Notes, § 396, et seq.; Delegal v. Nailor, 7 Bing., 460; Ekins V. East Ind. Co., 1 P. William, 395; Lee v. WiUcox, 5 Serg. & R., 48; Cash V. Kennion, 11 Vesey, 314. 208 THE LAW OF DAMAGES. Protest. estimated at the rate current at the date of tlie judgment, and which sliould be for the amount required to purchase Cana- dian currency to the amount found due on the note; and that any paj^ment previously made on tlie note in the currency of the United States, should be credited at the rate of premium, current at the time of the payment, between the two countries."^ But the general rule in reference to payments made as we have seen, is different; and where currency is received with- out objection or any special contract, in payment of a note payable in a particular kind of money, it has been generally held, that the payee must credit the nominal amount of the money received. The doctrine holding the maker responsible in damages for the difference in exchange in such cases, seems to rest on the soundest reasoning and is supported by analogy in other cases. To make the plaintiff whole, he should receive the money promised at the place of payment and in the specific coin or currency agreed to be paid, or at least its equivalent in other money at the place where the suit is brought. This doctrine is applied to breach of contracts to deliver property. The measure of damages in such a case, being the value at the time and place stipulated for delivery, or in some states the highest price between that time, and the time of trial, when the price has been paid."' § 226. Protest. — In case of the protest of the note or bill the expenses of protest are also legitimate damages and should be added to the ordinary damages and included in the judgment.'" The amount of damages in such cases is usually regulated by statute. 48 Hawes v. Woolcock, 26 Wis., 629. Story on Prom. Notes, § 397. 49 See rule in such cases, jjost, § 246. • 50 Welden v. Buck, 4 John., 144; Bowen v. Stodard, 10 Met., 375; Cook v. Clark, 4 E. D. Smith, 213; Chitty on BiUs, 683; Bayley on BHls, Ch. 9, p, 388; Meritt v. Benton, 10 Wend., 117. But in Maine it seems in the absence of statutoiy provisions on the subject that such damages are not allowed. Loud V. Merm, 47 Me.. 351. NON-PAYMENT OF MONEY. 209 Indorsee against Indorser or Surety— Fraud in Transfer— Genuineness, etc. § 227. Indorsee against Indorser or Surety on the j»j-Q^g _;\fp. Chitty, in his valuable treatise on Bills, remarks: "In general, between the original parties or a holder who has not p-iven fall value, the defendant is at liberty to show tliat he drew, acce^^ted, indorsed, or made the bill or note, for the accommodation of the plaintiffs or one of tliem, or of a person for whom he is a trnstee, who either expressly or impliedly engaged to provide for the bill; or the defendant may show that he received no consideration, or none that was in point of law adequate, and thus may entirely defeat the action or reduce the claim." " The measure of damages in an action by an indorsee against an accommodation indorser, is the amount paid by the indor- see with interest, subject however to the limitation of the amount due on the note, which it can never exceed though it may fall short.'" And where the law permits the assignment of a non-nego- tiable promissory note or bill of exchange and owing to the insolvency of the maker, or other sufficient cause, the assignee has failed to recover the amount from the maker, in an action against the assignor, where he is liable, all the damages would be the consideration paid by the assignee, and interest.'' §228. Fraud in Transfer — Genuineness of Sig- natures Warranted.— So, in an action for damages for fraudulently transferring to the plaintiff a promissory note, as a valid subsisting demand, when in fact it had been previously paid and canceled; the measure of damages, ^n'/na /«c«e, is 5' Chitty on Bills, 70. 5= Scliaeffer v. Hoges, 54 111., 337. 53 EUott V. Therelkeld. 16 B. Mon., 343; Whistler v. Bragg, 31 Mo., 124; Braman v. Hess, 13 John., 52; Cook v. Clark, 4 E. D. S. (N. Y.), 213, Hutchins V. McCann, 7 Porter (Ala.), 94; Noble v. Walker, 32 Ala., 456; French v. Grindle, 15 Me., 163; Davis v. Harrison, 2 J. J. Marsh (Ky.), 189. 14 210 THE LAW OF DAMAGES. Notes Payable in Specific Articles. the face of the note and interest. The ability of the maker to pay the note will be presumed." And in an action by the holder against the assignor of a note, where it appeared that the defendant had procured a minor to indorse it, and then put it in circulation, it was held, that the holder could recover the amount of it, of the wrongdoer, on the ground of an implied warranty that the parties whose names appeared on the note were able to make a valid contract.^* But where the plaintiff holds an accommodation note only as pledgee, he can only recover of the accommodation maker the amount of the debt secured by the pledge.'" § 229. Notes Payable in Specific Articles— Where notes are made by their terms payable in specific articles and there is a failure to pay in the articles specified, or in any manner, should they be treated as notes or as ordinary con- tracts for the delivery of property? On this question there is a diversity of decisions. In New York and several other states, a note in which the amount is payable in a certain desio-nated article of merchandise on demand, is held to be a note for the payment of money or in the article designated; and not a contract to deliver the article or its market or cur- rent value. And if the defendant has neglected to pay, in the specified article payment may be required in money and the measure of damages is the amount due in money and inter- est, and not the value of the article, or the loss of profits arising from the non-delivery of the property. It is also held, in such cases, that the option is with the defendant to pay the amount designated in the article specified, and at the price, if any, designated in the instrument, and if 54 NeflF V. Clute, 12 Barb. (N. Y.), 466. See, also, Patterson v. Wester- velt, 17 Wend., 543. 55 LolxleU V. Baker, 3 Met., 469; ThraU v. Newall, 19 Vt., 202. 56 Blydenburgh v. Thayer, 1 Abb. (N. Y.), 156 (1807); Atlas Bk. v. Doyle, 9 R. I., 76. NON-PAYMENT OF MONEY. 211 Notes Payable in Specific Articles. none is designated, then at the current price at the time and place provided for payment. But where there is a faihire to pay in this way at the time and place designated, and thus to make the election, the note becomes a naked agreement to pay the money .°' And, in Illinois, where a note was given for $300 payable in cattle, in an action npon the note, it was held that by the non-payment of the note in cattle when it became due, it became an obligation to pay in cash; and that in default of a successful defense to the note, the clerk might assess the damages due upon the same as upon a note payable in money.^^ So in the same state where a party undertakes to pay a cer- tain number of dollars in specific articles, such as grain, cattle, or other commodities, he must deliver the articles on the day named in the contract or he becomes absolutely bound to pay the sum stated in money."' But in Wisconsin, in an action on an instrument in the fol- lowing form : " Due to J. A. Noonan $300 in Watertown R. K. Stock," the value of stock of the nominal amount of $300 and not that amount of money, was held to be the measure of damages."" And in Iowa, in an action on a due-bill payable in flour on a specified day, it was held, that the value 57 Pinney v. Gleason, 5 Wend., 393; Chit, on Con., 35; Parsons on Con., 163, and notes; White v. Thompkins, 52 Pa. St., 363; Moore v. Riff, Supreme Court Pa., March 29th, 1875, not yet reported; Trobridg'e v. Hol- comb, 4 Ohio St., 38; Brooks v. Hubbard, 3 Conn., 58; Weil v. Tyler, 38 Mo., 545; Perry v. Smith, 22 Vt., 301; Haywood v. Haywood, 42 Me., 229; Baker v. Mair, 12 Mass., 121. 58 Van Hooser v. Logan, 3 Scam. (111.), .389. 59 Smith V. Dunlap, 12 111., 184. But where a note was given in that state, payable in state of Illinois indebtedness; in an action on the note, it was held that the state indebtedness should be received at its nominal value, and that the measure of damages was the specie value of the state indebtedness on the day it was due, with interest to the day of trial. Id. *» Noonan v. Ilsley, 17 Wis., 314. 212 THE LAW OF DAMAGES. Bills of Exchange. of the flour on the day when payment should have been made was the measure of damages."^ § 230 Bills of Exchange— Damages.— The holder of a bill of exchange is entitled to full indemnity from the other parties to the bill on its dishonor. The damages recoverable may embrace the amount for which the bill was drawn, inter- est from the time of its maturity, costs of protest, exchange and re-exchange.'^ But the liabilities of drawers, indorsers, guarantors and acceptors, as between themselves, vary. They are governed by the laws of the respective countries where their respective contracts are made, and they seldom incur an equal responsibility. But the holder is entitled to recover the damages indicated against any or all of the parties. The principal sum, of course, is ascertained by its par value at the place of payment; interest is allowed according to the law of the place of pay- ment; and the re-exchange allowed should be the amount required to purchase a bill in the country where the bill was payable or accepted, drawn upon the drawer or indorser of the original bill in the countrj^ where he resides, which will give the holder of the original bill the sum he should have received on the bill, together with the interest and necessary expenses." «^ Davenport v. Wells, 1 la., 598. But see, Edwards on B. & N., 723. *3 Edwards on Bills and Notes, 714, et seq. 64 Story on Bills, § 397, et seq. ; 3 Kent's Com., 116, et seq. On this sub- ject Justice Story, in an opinion delivered by him, makes the following sound statement: " I take the general doctrine to be clear, that whenever a debt is made payable in one country and is afterwards sued for in another country, the creditor is entitled to receive the full sum necessary to replace the money in the country where it ought to have been paid with interest for the delay; for then and then only is he fully indemnified for the violation of the contract. In every such case the plaintiff is therefore entitled to have the debt due to him first ascertained at the par of exchange between the two countries, and then to have the rate of exchange between those two coun- tries added to or subtracted from the amount, as the case may require, in order to place the money m the country where it ought to be paid. It seems to me that this doctrine is founded on the true principles of reciprocal justice." Grant v. Healey, 3 Sumner, 523 (1839). See, also, Story on Notes, § 898. NON-PAYMENT OF MONEY. 213 Bills of Exchange. The amount of damages recoverable on the dishonor of bills of exchange, is now generally the subject of statutory regula- tion in this country. We therefore append a note containing a summary of those provisions in various states."' 65 The follo^vdng is a brief summary of the provisions of the statutes of vari- ous states, relating to damages in such cases. Arkansas. — Every Bill of Exchange expressed to be for value received, drawn or negotiated within the State, payable after date to order or bearer which shall be duly presented for acceptance or payment and protested for non-acceptance or non-payment, is subject to the following per centum as damages, on the amount expressed in the bill: 1. If payable within the state at the rate of two per cent. 2. If payable in Alabama, Louisiana, Mississippi, Tennessee. Kentucky, Ohio, Indiana, Illinois or Missouri, or any point on the Ohio river at the rate of four per centum. 3. If payable at any place in the United States not before expressed at the rate of five per centum. 4. If payable at any port or place beyond the limits of the United States, at the rate of ten per centum. If accepted and protested for non-payment the following is the damages: 1 . If drawn by any person within the state, at the rate of two per centum. 2. If drawn by any person without the state, but within the United States, at the rate of six per centum. 3. If drawn by any person without the United States, ten per centum. In addition to which expense of protest, and interest at the rate of ten per centum per annum on the amount specified in the biU, is added thereto. Gould's Dig. Ch. 25, pp. 208, 210. Alabama. — Damages on protested bills, inland or foreign, protested for non- payment are five per cent on the sum drawn for, and the holder may recover costs of protest and interest. The same rule of damages applies in case of non-acceptance. Rev. Code, (1867), §§ 1845, 1846, 1849. Arizona. — Damages on protest for non-payment of bills of exchange, if drawn on a person in the United States or Territories east of the Rocky Mountains, fifteen per centum of the amount. If drawn upon any person in any place in Europe or any foreign country, twenty per centum. Such damages are in lieu of interest, charges of protest and all charges incurred previous to and at the time of giving notice of non-payment. Inter- est is also recoverable on the amount of the principal and of the damages, from the time of the protest. Compiled Laws, (1871), Ch. 70. California. — Damages in full compensation for interest accrued before notice of dishonor, re-exchange, expenses, and all other damages, in favor of 214 THE LAW OF DAMAGES. Bills of Exchange. But a failure of a defendant to accept a draft for the accom- modation of the plaintiff, does not entitle the plaintiff to recover the amount of the draft as damages, but only for the holders for value only, for non-acceptance or non-payment of any bill drawn or negotiated in the State are as follows : 1. If drawn upon any person in the State, two per centum of the prin- cipal sum. 2. Drawn upon any person out of the State, but west of the Rocky Mountains, five per centum. 3. If drawn upon any person east of the Rocky Mountains, ten per centum. 4. If drawn upon any person in a foreign country fifteen per centum. Besides, interest is allowed upon the amount of the bill, and the foregoing damages, from the time of the dishonor. Civil Code, §§ 3234, 3235, 3236. See Annotated Civ. Code, (Raymond and Burch), (1874), p. 372. Colorado.— On foreign bills, as damages on non-acceptance or non-pay- ment, the drawer or indorser is required to pay the bill with legal interest from the time it ought to have been paid, with ten per centum, and the costs of protest. If the bill is drawn upon any party out of the territory but within the United States or her Territories, the damages are the same as on a foreign bill. Rev. Stat. (1868), Ch. 10, §§ 1, 2. Connecticut. — The damages allowed on protest of a bill of exchange with- out the State, on a bill drawn or negotiated in the state, include, in addition to the principal sum and interest on the same and on the damages hereafter specified from the time at which notice of such protest shaU have been given, and payment of such sum demanded, a further sum as follows : If such bill shall have been drawn on any person in the city of New York, two per cent on the principal sum. If upon any person in the states of New Hampshire, Vermont, Maine, Massachusetts, Rhode Island, New York [except the city]. New Jersey, Pennsylvania, Delaware, Maiyland, or Vir- ginia, or in the District of Columbia, three per cent. If upon any person in the states of North Carolina, Oliio, Illinois, Indiana, Michigan, Ken- tucky, or Georgia, five per cent. If upon any person in any other state. Territory, or District of the United States, eight per cent. Such damages stand in the place of interest and aU other charges to the time when notice of the protest is given and demand of payment made, and such damages shall be determined without reference to the rate of exchange. Rev. 1875, p. 344. Damages on protest of a foreign bill is governed by the rate allowed in the place where it was drawn. Shipman v. Miller, 2 Root, 405. Delaware. — Damages on bills of exchange, drawn on any person beyond the seas, and returned unpaid with legal protest, as to the drawer, indorser, and aU concerned, is at the rate of twenty per centum on the contents of the bills, in addition thereto. Rev. Code, p. 183, § 1. Georgia. — The holder of any bill protested for non-payment or non-ac- ceptance, payable out of the State but within the United States, is entitled NON-PAYMENT OF MONEY. 215 Bills of Exchange. loss sustained from the defendant's promise to accept, and liis failure so to do, § 231. The acceptor is not generally liable for the extra to recover five per cent on the principal as damages, in addition to the principal, interest, and protest fees. If the hUl is payable at any place without the United States the holder may recover as above ten per cent. Illinois. — Damages on protested bills, payable without the United States, ten per cent in addition to principal, interest, and costs of protest. Where payable at any place within the United States, but out of the state, five per cent in addition to principal, interest, and costs of protest. Rev. Stat. (1874), 718. Indiana. — Damages payable on protest in the United States, but out of the State five per cent without the United States ten per cent, on the prin- cipal of the bill, together with interest from the date of the protest, but no other interest. No account to be taken of rate of exchange of blUs payable within the United States. Gavin & Hord's Stat., 1862, pp, 658, 659. Iowa. — On bills drawn or indorsed in the state, upon a person at any place without the United States, or in California, Oregon, or Nevada, or any of the Territories, five per cent on the principal sum with interest on the same from the time of protest. If drawn upon any person in any other place in the United States, except in this State, three per cent with interest. Code 1873, § 2096. Kentucky. — Bills drawn on any person out of the United States, and pro- tested for non-payment or non-acceptance bear ten per cent per annum inter- est from the day of protest, for not longer than eighteen months. Such interest to be recovered to the time of judgment, which draws sis per cent thereafter. Damages on all other bills disallowed. Gen. Stat., 1874, 250. Louisiana. — Damages on protest of biUs, for non-payment or non-accept- ance, where drawn or negotiated in the state, drawn on and payable in foreign countries, ten per cent of the principal. If payable in any other State in the United States, five per cent. Such damages are in lieu of inter- est, charges of protest, and all other charges incurred up to the time of pro- test. But the holder is entitled to interest upon the aggregate sum from the time notice of protest is given. Maine. — Damages on protested bills of one hundred dollars or more, if pay- able at a place seventy-five miles distant, one per cent; if payable in the state of New York or any state northerly of it and not in Maine, three per cent; if in any Atlantic state or territory southerly of New York, and northerly of Florida, six per cent; in any other state or territory, nine per cent. Massachusetts. — The holders of bills drawn or indorsed in the State and payable without the States, (excepting places in Africa beyond the Cape of Good Hope, or any place in Asia or the islands thereof,) duly protested for non-acceptance or non-payment, are entitled to the current rate of exchange at the time of the demand, and five per cent upon the contents thereof, and 216 THE LAW OF DAMAGES. Bills of Exchange. charges on re-excLange; he is only liable for the sum specified in the bill with interest, according to the rate at the place of payment. The drawer is liable for re-exchange, as he under- interest on the contents from the date of the protest. The amount of con- tents, damages and interest, is in full of all damages, charges and expenses in the above cases. If the bill is payable at any place in Africa beyond the Cape of Good Hope, or any place in Africa or the islands thereof, twenty per cent is allowed in full of all damages, interest and charges as aforesaid. If the bill is payable within the State of Maine, New Hampshire, Vermont, Rhode Island, Connecticut, or New York, two per cent; New Jersey, Penn- sylvania, Marj'land, or Delaware, three per cent; Virginia, North Carolina, South Carolina, or Georgia, or in the District of Columbia, four per cent; if in any other of the United States, or the Territories thereof, five per cent. If the bill is for a sum of not less than one hundred dollars, and payable within the state at a place not less than seventy- five miles from the place where drawn or indorsed, one per cent in addition to the contents thereof and interest on the contents. Gen. Stat. (1860), p. 294. Michigan. — Damages on bills duly protested, in addition to the contents of the bill and interest and costs; on bills payable at any place without the state, but vnthin the Territory of Wisconsin, or either of the states of lUi- nois, Indiana, Pennsylvania, Ohio, or New York, three per cent on the con- tents of the bill; if payable within either of the states of Missouri, Kentucky, Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Marjiand, Virginia, or the District of Columbia, five per cent; and if payable elsewhere within any other of the United States, or the Territories thereof, ten per cent. If the bill is payable without the limits of the United States, the holder may recover the same, with the current rate of exchange at the time of the demand, and damages at the rate of five per cent upon the contents thereof, together with interest on said contents from the date of protest; said sum to be in fuU of damages, charges and expenses. Comp. Laws, 1871, p. 516. Minnesota. — Damages on protested bills payable without the limits of the United States, are the bill with the current rate of exchange at the time of the demand, and ten per cent on the contents, with interest on the contents, from the time of protest, to be in full of all damages, charges and expenses. If the bill is drawn on any person m the United States but out of the state, five per cent damages together with costs and charges of protest besides the amount of the bill and legal interest. Stat, at Large, (1873), p. 714. Mississippi. — Damages on bills drawn on any person out of the state but within the United States, five per Cent on the amount, besides interest on the same; out of the United States, ten per centum, besides interest, and the holder is also entitled to all costs and charges of protest. No damages, on domestic bills. Rev. Code, p. 484. NON-PAYMENT OF MONEY. 217 Bills of Exchange. takes to indemnify the holder, if the bill is not paid ; and the holder should be indemnified for the purchase of a new bill in the country where the original bill was payable, on the place Neiv York. — Damages on protest of bills of exchange drawn or negotiated within the State, ai-e as follows : 1. If the biU is drawn upon any person at any place in the states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Pennsylvania, Ohio, Delaware, Maryland or Virginia, or in the District of Colimibia, three per cent upon the amount. 2. If it is drawn upon any person at any place in either of the states of Noi-th Carolina, South Carolina, Georgia, Kentucky or Tennessee, five per cent. 3. If drawn upon any person in any other state or territory of the United States, or in any other place on or adjacent to this continent and north of the equator, or in any place in the West Indies or elsewhere in the Western Atlantic Ocean, ten per cent. 4. If drawn upon any person in Europe, ten per centum. Such damages to be in lieu of interest, charges of protest and all other charges incurred previous to and at the time of giving notice of non-pa-vment, but the holder may recover in addition to such damages, interest upon the aggregate amount of the principal sum, and the damages aforesaid, from the time notice of protest shall have been given, and payment demanded. 5. If the contents of the bill are expressed in the money of the United States, the amount due thereon and the aforesaid damages shall be deter- mined without reference to the rate of exchange. 6. If it is expressed as payable in the money or currency of a foreign country, then the amount due, exclusive of the damages aforesaid, shall be ascertained by the rate of exchange, or the value of such foreign currency at the time of the demand of payment. 7. Damages on non-acceptance are the same as above stated in reference to non-pajTuent, and are in lieu of interest, charges of protest, and all other charges previous to and at the time of giving notice of non-acceptance. But the holder shall be entitled to recover interest upon the aggegate amount of the principal and damages thereon, from the time of protest. 8. The damages above specified are only recoverable by the holder of a biU, who shall have purchased the same or some interest therein for a valu- able consideration. Statutes at Large, (Edmonds 1863), pp. 723, 724. Pennsylvania. — Damages on bills drawn or indorsed in the state, upon any party in any other state or territory of the United States, excepting the state of Louisiana, besides the principal sum, damages and charges of pro- test, and interest on the principal sum, five per cent; if upon any person in the state of Louisiana, or any other place in North America, or the islands thereof, except on the northwest coast of America and Mexico, or the West India or Bahama Islands, ten per cent; on any person in the Island of 218 THE LAW OF DAMAGES. Bills of Exchange. where it was drawn, and on which he can realize the amount which should have been paid on the dishonored bill. The Madeira, the Canaries, Azores, the Cape de Verde, the Spanish Main, or Mexico, fifteen per cent; if upon any person in Europe, or the islands thereof, twenty per cent; if upon any party in any other part of the world, twenty-five per cent. These damages are in lieu of interest and other charges, except charges of protest, to the time of demand and notice; the amount to be determined by the rate of exchange or the value of the money or currency mentioned in such bill at the time of protest and demand of payment. Dunlop's Laws of Penn. (1849), pp. 357, 358, Act, March, 1821; 1 Brightley's Purdons Dig., p. 158, § 1. Rhode /sZa«(Z.— Damages on protested bills for non-acceptance or non- payment, returned from any place without the United States, ten per cent., besides charges of protest. The bill also draws six per cent per annum, from the time of protest. On inland bUls, drawn on parties out of the state, five per cent damages, and charges of protest, and interest at six per cent from the time of protest. Gen. Stat., 1872, pp. 270, 271. South Carolina. — Damages on protested bills drawn upon persons resident in the United States, but out of the state, ten per cent; on all bills in like manner drawn on persons resident in any other portion of North America, or within any portion of the West India Islands, twelve per cent; on all biUls drawn on persons resident in any other portion of the world, fifteen per cent, besides the charges incidental thereto, and lawful interest until the sum is paid. Rev. Stat., 1873, p. 321. Tennessee. — Damages on protested bills drawn on persons out of the state, but within the United States, three per cent. If drawn on any person in any other state or place in North America bordering upon the Gulf of Mexico, or in any of the West India Islands, fifteen per cent. If diuwn on any per- son in any other part of the world, twenty per cent. These damages are in lieu of interest, and aU other charges except charges of protest, to the time when notice of the protest and demand of payment shall have been given; but interest is to be computed from that time on the principal, together with the damages and charges of protest. Thompson & Steger's Comp. S. L., 1871, §§ 1963, 1964. Teicas.— Damages on protested bUls drawn on persons Hving beyond the limits of the State, are ten per cent upon the amount of the biU, together with interest and costs of suit. This does not embrace drafts drawn by persons other than merchants upon their agents or factors. Paschal's Annot. Dig., Art. 236, p. 151 (1870). Vermont. — There are no statutory provisions in Vermont in reference to damages on protests of bills of exchange. In all such cases the rule of dam- ages is such as may be established by the law merchant. Edwards on BiUs, etc., 728, et seq. Virginia. — Damages on protested biUs, drawn or indorsed within the state no:n'-payment of money. 219 Bills of Exchange. amount thus required to be paid for a new bill, is called re-excliange." Nor can the indorser of a note, who is sued on bis indorse- ment and compelled to pay costs, recover tbose costs against and payable without the state but within the United States, three per centum; if payable without the United States, ten per centum. Code, 1873, p. 987. West Virginia.— Biimages on protest of bills of exchange if payable out of the state but in the United States, three per centum; and ten per centum, if payable out of the United States. Code 1868, p. 537. Wisconsin. — Damages on protested bills, drawn or indorsed in the state, but payable without the state, the current rate of exchange and five per cent on the contents, and interest on the same from the date of protest, in full of all damages, charges and expenses. If payable out of the state but in some state or territory adjoining the state, but in the United States, five per cent together with charges of protest. If payable in the United States or territories but not adjoining the state ten per cent, besides costs and charges of protest. Taylor's Rev. Stat., 1871, p. 835. Missouri. — When any bill of exchange is expressed to be for value received, drawn or negotiated witlain the state, is duly presented for accept- ance or payment and protested for non-acceptance or non-payment, the drawer and indorsers having due notice of the dishonor, are required to pay damages as follows : 1. If drawn on any person at any place within the state, four per cent on the principal sum. 2. If drawn on any person out of the state but within the United States or the territories, ten per cent. 3. If drawn on any person at any place without the United States or the teiTitories thereof, twenty per cent. If accepted and not paid, the damages allowed are four per cent if drawn by any person within the state; and if drawn by any person without the states or territories, ten per cent. If it is expressed to be paid in the money of the United States the amomit due and damages are to be determined without reference to the rate of exchange existing between tliis state and the place on which it is drawn. If in the money or currency of any foreign country, then the amout due, exclusive of damages is to be ascertained by the rate of exchange or of the value of such foreign currency at the time of payment. Wagner's Mo. Stat., pp. 215, 216. ^ 3 Kent's Com., 115, et seq., and notes, 12 ed. The acceptor is not, upon non-payment of a bill, ordinarily liable to the holder for anything more than the principal sum, and expenses of protest and interest from the time of the maturity of the bill. He is not liable for re-exchange. Story on Bills, § 398. 220 THE LAW OF DAMAGES. Fixed sum as Damages on Protest. the maker, as he should have paid the note without suit. He can only recover as damages, the note and interest and expenses of protest.'^ The same rule applies to an acceptor of a hill, with funds^ who has failed to pay the acceptance. If suit is brought against the drawer and costs paid by him, the acceptor is not liable therefor." E"or is the indorser of a bill liable to the acceptor for the costs of a suit by the holder against him." But it has been held that an accommodation acceptor can recover costs of the drawer," and that an accommodation indorser may recover such costs against the maker." § 232. Fixed sum as Damages on Protest.— Many arguments have been adduced for and against fixing any arbitrary sum or per centum as damages, in case of the non- acceptance or non-payment of a bill. On the one side it is claimed that the frequent sudden fluctuations of exchange, render the proof of actual damages in that respect difficult to determine; and that the interests of the maker as well as the holder require the amount of damages to be fixed in such cases; and that the injustice sometimes done to parties by an arbitrary rule, is more than balanced by advantages secured to them thereby. On the other side it is said, that the only just rule of dama- ges in such cases is that of actual re-exchange — that this is " the only one which can perfectly and under all circumstan- ces and fluctuations of exchange, secure a fair compensation for the loss sustained by the holder of a dishonored bill — that it avoids the hazard of one party being sometimes but par- 's Simpson v. Griffin, 9 John., 131; Steele v. Sawyer, 2 McCord, 459. 7° Barnwell v. Mitchell, 3 Conn., 101. 71 Bangor Bank v. Hook, 5 Greenlf. (Me.), 174. 7=* James v. Brooke, 4 Taunt., 464, Mansfield, C. J. 73 Hubbly V. Brown, 16 John., 70; Baker v. Martin, 3 Barb. (N. Y.), 634. :n'o:n'-payment of mo:n"ey. 221 Lex Loci Contractus Generally Governs. tially paid, or the other opj^ressed with the payment of unequal and ruinous damages.'"* § 233. The Lex Loci Contractus , generally Governs . — The general rule is, that the rights and liabilities of the parties to a negotiable instrument, are governed by the law of the place where the contract is made. Mr. Justice Story, in his valuable work on the Conflict of Laws, illustrates the rule thus: '• Suppose a negotiable bill of exchange is drawn in Massachusetts on England, and is indorsed in Xew York, and again by the first indorsee in Pennsylvania, and by a second in Maryland, and the bill is dishonored; what damages will the holder be entitled to? The law of damages in these states is different. In Massa- chusetts it is ten j^er cent; in New York and Pennsylvania twenty per cent, and in Maryland fifteen per cent. What rule then is to govern? The answer is, in each case, the lex loci contractus. The drawer is liable on the bill according to the law of the place where the bill was drawn; and the successive indorsers are liable on the bill according to the law of the place of their indorsements, every indorse- ment being treated as a new and substantial contract. The consequence is, that the indorser may render himself liable upon a dishonored bill, for much higher damages than he can recover from the drawer. But this results from his own voluntary contract, and not from any collision of rights arising from the nature of the original contract." " Li a recent case, in an action upon a draft for a certain num- ber of pounds sterling, drawn in London, and accepted by the 74 Mr Verplanck's Report to the House of Representatives of the United States, March, 1826, in favor of a uniform rule. 3 Kent's Com., 159, 7 Ed.; Edwards on B. & N., 749, 750. 75 Storj' on the Conf. of L., § 314; 3 Kent's Com., 115, et seq., and notes; Story on Prom. Notes, §§ 172, 173; Shankland v. Cooper, 8 Blackf., 4; Huse V. Hamblm, 29 Iowa, 501; Tliorp v. Craig, 10 Id., 461; Bank v. Green, 33 Id., 140. See, also, 1 Par. on Con., 288. 222 THE LAW OF DAMAGES. Scaling Laws— North Carolina— Scale of Depreciation. defendant in New York, it was held, that as the laws of the United States do not determine the value of a pound sterling for commercial purposes, resort must be had to the custom of merchants, and that the plaintiff was entitled to the price of exchange between New York and London, at the real and not the nominal par." It is not within the proper scope of this treatise to consider fully the general liability of parties to bills and notes, liefer- ence on these questions may be had to those treatises espec- ially devoted to this subject. SCALING LAWS. In various states that formed a portion of the Confederate States during the late war, ordinances and statutes have been adopted and enacted for the adjustment and liquidation of contracts made during the war. These enactments have been adopted to meet an emergency caused by the war, and on the theory that such contracts were generally made and entered into with reference to the currency then in use in those states, and were based upon that currency as the standard of values, which during the continuance of the war was more or less depreciated. § 234. Nortli Carolina— Scale of Depreciation.— The statutes of North Carolina provide as follows: " Whereas, By an ordinance of the Convention, entitled ' An ordinance declaring what laws and ordinances are in force, and for other purposes,' ratified on the 18th day of October, in the year of our Lord, one thousand eight hundred and sixty-five, it is made the duty of the General Assembly to provide a scale of depreciation of the Confederate currency, from the time of its first issue to the end of the war, and it is furthermore therein declared that ' all executory contracts solvable in money, whether under seal or not, made after the depreciation of said 7« Guiteman v. Davis, 3 Daly (N. Y.), 120; 45 Barb., 756. KON-PATMENT OF MONEY. 223 North Carolina— Scale of Depreciation currency before the first day of May, one thousand eight liun- dred and sixty-five, and yet unfulfilled, (except official bonds and penal bonds payable to the state,) shall be deemed to have been made with the understanding that they were solvable in money of the value of said currency,' subject, nevertheless, to evidence of a difierent intent of the parties to the contract; therefore, " 5. Be it enacted hy the General Assembly of the State of North Carolina, And it is hereby enacted by the authority of the same, That the following scale of depreciation be and the same is hereby adopted and established as the measure of value of one gold dollar in Confederate currency for each month, and the fractional parts of the month of December one thousand eight hundred and sixty -four, from the first day of November, one thousand eight hundred and sixty-one, to the first day of May, one thousand eight hundred and sixty-five, to-wit: " Scale of depreciation of Confederate currency, the gold dollar being the unit and measure of value, from November first, one thousand eight hundred and sixty-one, to May first, one thousand eight hundred and sixty-five: ■ MONTHS. 1861. 1862. 1863. 1864. 1865. January $1.20 $3.00 $21.00 $50.00 February 1..30 3.00 21.00 50.00 March 1.50 4.00 23.00 50.00 AprH 1.50 5.00 20.00 60.00 May 1.50 5.50 19.00 100.00 June 1.50 6.50 18.00 July 1.50 9.00 20.00 August 2.00 14.00 23.00 September 2.00 14.00 25.00 October $1.10 2.50 14.00 26.00 November 1.15 2.50 15.00 30.00 December 20.00 Dec. 1st to 10th, inclusive 35,00 Dec. 11th to 20th, inclusive 42.00 Dec. 21st to 31st, inclusive 49.00 " 6. The scale of depreciation of Confederate currency herein established, shall be construed to apply to debts herein men- tioned at the date of contracting the same, and not at the time said debts became due. 224 THE LAW OF DAMAGES. Where Applicable. "7. In all civil actions which have arisen or may arise in courts of justice, for debts contracted during the late war, in which the nature of the obligation is not set forth, nor the value of the property for which such debts were created is stated, it shall be admissible for either party to show on tlie trial by affidavit or otherwise, what was the consideration of the contract, and the jury in making up their verdict shall take the same into consideration and determine the value of said contract in present currency, in the particular locality in which it is to be performed and render their verdict accord- inglj."" § 235. Where Applicable —The provisions of the ordin- ance and statute were held not applicable to a contract made in 1864, bartering hats for cotton. The purchaser of hats, agreed to give for each hat, thirty pounds of lint cotton, and in an action for damages for the non-delivery of the cotton, the court held, that the true measure of damages was the value of the cotton in gold at the time and place of the contract. The court remarked: " As United States Treasury Notes were not used as a medium of exchange within the limits of the insurrectionary states during the war, gold must be adopted as the standard of value. Where the gold value of the contract is ascertained by evidence, the jury in adding the depreciation of treasury notes, should be governed by the market value of such currency at the time of the verdict, and judgment should be rendered for the amount." " Where a bond was given for one thousand dollars, dated l^ovember 18th, 1862, and payable one day after date, the consideration thereof being a tract of land; in an action on the bond, it was held, that it was competent for the plaintiff to rebut the presumption as to the currency in which it was 5* Battles Rev., 1873, pp. 348, 349. 53 Garrett v. Smith, 64 N. C, 93. See, also, Mitchell v. Henderson, 63 N. C, 643. ]S'ON-PAYMENT OF MONEY. 225 Where Applicable. solvable under the ordinance, by proof that it was expressly agreed by the parties at the time, that it was to be paid in good money after the war." And a bond given January 2d, 1865, for the hire of a slave for 1865, was held to entitle the holder to the value of the slave for that year in lawful money, and not subject to be scaled according to tlie legislative table of the values of Confederate currency." But the ordinance and statute were held applicable to a note given for purchase at an administrator's sale in 1864, notwith- standing the administrator gave notice that he would receive in payment only such currency as would pay the debts of his intestate. " By presumption of law the note sued on was solv- able in Confederate currency."" So, where a judgment was rendered in North Carolina, in 1864, on a note given for Con- federate money lent in 1862; it was held, in an action in 1870, by the surety against the principal, the surety having paid the judgment in 1867, that the claim was subject to the same scale as the note." But the scaling laws were held not applicable to a note payable ten days after peace, etc., in current money at that time.'' 54 Sowers v. Eamhart, 64 N. C, 96. See, also, Robeson v. Brown, 63 N. C, 554, where it was held that the presumption of law was that such an obligation was solvable in Confederate money. 55 Maxwell v. Hipp, 64 N. C, 98. 56 Laws V. Rycroft, 64 N. C, 100. See, also, Williams v. Rrockwell, Id., 325. A note payable in "good bankable currency," held subject to the scal- ing law. Green v. Brown, Id., 553. So it was held applicable to a bond dated April 3, 1865, payable at 12 months "in current money." Howard v, Beatty, Id., 559. 57 Alexander V. Rintels, 64 N. C, 634. See. also, Williams v. Rockwell, Id., 325. But see, McCombs v. Griffith. 67 Id., 83, where it was held not applicable to a note given for an amount due in good money. 58 Chapman v. Wacaser, 64 N. C, 532. In a suit on a bond given in Jan- uary, 1864. the value of the property for which the bond was given, was held to be the rule to be appHed under the Act of 1866, Ch. 38, in ascertaining the amount to be recovered, and that the rule could not be varied by the fact that the parties agreed at the time that it might be paid in Confederate money. McRae v. McNair, 69 N. C, 12. So notes payable "in cvun-ency" 15 226 THE LAW OF DAMAGES. Ordinances of Alabama and Georgia— Construction. § 236. Ordinances of Alabama and Georgia— Con- struction. — An ordinance adopted by the State Convention of Alabama on the 28th day of September, 18C6, provided as follows: "In all suits upon contracts made between the 1st of September 1861 and the 1st of May 1865, parol evidence shall be admissible to prove what was the consideration thereof, and whether or not the parties thereto understood or agreed that the same should be discharged by a payment in Confederate currency or treasury notes, and if so, or if it appears so from the contract, then to show what was the real or true value of the consideration of the said contract, and what amount the plaintiff is legally, justly and equitably enti- tled to receive according to the contract by the judgment of said court." In Herbert v. Easton, the questions presented to the Supreme Court of that State were as to the validity of the ordinance, as impairing the obligation of contracts, and as to its proper construction. The facts of the case were as follows: On the 20th day of October, 1864, the defendants purchased of the plaintiffs cer- tain lots in the city of Mobile, and gave therefor their five promissory notes, the payment of which they secured by a mortgage on the lots. In the mortgage it was stipulated that were given for land in 1862, the value of the land, and not Confederate cur- rency according to the scale, was held to be the amount which the plaintiff could recover. Bryan v. Harrison, 69 N. C, 151. So a bond given in 1863, for land, though payable in currency was held liable to be scaled by reference to the value of the land, not that of Confed- erate money. Parker v. Carson, 64 N. C, 563. And where a bond had been given in 1863, for the price of a slave and partial payments had been made thereon in Confederate money, it was held, that in order to ascertain how much was due thereon in National currency, the jury should estimate the value of the slave when purchased in gold, and deduct therefrom an amount bearing the same proportion to that value which the payments did to the sum specified in the bond, and add to the remainder the depreciation of United States Treasury notes at the time of the verdict. Brown v. Foust, 64 N. C, 672. liTON-PATMENT OF MONET. 227 Ordinances of Alabama and Georgia— Construction. these notes mi^^ht be paid at any time before the maturitj of tlie last one, in Confederate treasury notes. All the notes were paid within the time specified except the last one for $3,500, due Api-il 1st, 1865. The suit was on this note and to foreclose tlie mortgage. The court held, that the ordinance only established a rule of evidence respecting certain past transactions and that it could not be said to impair the obligation of contracts. And tlie court further held, that the obligation of the purchaser was not to pay in specie or its equivalent; and that if the contract did not show this, proof aliunde, might be supplied under the ordinance without constitutional objection. SaiFold, J., in delivering the opinion of the court refers to a similar law of Virginia, passed in 1781, made for a similar exigency, and with very similar phraseology and provisions, and proceeds to remark as follows: " Chief Justice Marshall in the lucid and conclusive interpretation of this act, in the case of Faw v. Marstelh7\ which his great knowledge of the law, and accurate perception of justice so eminently qualified him to give, says: 'The act is applied directly to the date of the contract, and the motive for making it was, that contracts entered into during the circulation of paper money, ought in justice to be discharged by a sum differing in intrinsic value from the nominal sum mentioned in the contract, and that when the legislature removes the delusive standard, by which the value of the thing acquired has been measured, they ought to provide that justice should be done to the parties.' " He says further: "In enquiring w^hat judgment will be just and equitable, the court can perceive no other guide by which its opinion ought in this case to be regulated, but the real value of the property at the time it was sold. Faw v. Marsteller, 2 Cranch, 10. * ->fr * I apprehend that the law of the contract would have been the same without the ordinance, under the doctrine of usage and perhaps of the 228 THE LAW OF DAMAGES. Whei-e not Applicable— Scaling Laws of Virginia. lex loci. Evidence of usage or custom is received for the pur- pose of ascertaining the sense and understanding of parties by their contracts which are made with reference to such usagfe or custom. Reiiner v. Bank of Columbia., 9 Wheaton, 581. For the purpose of the argument we may assert that at the time this contract was made the usage of the people of Ala- bama, in temporary contracts at least, was to contract in view of payment in Confederate currency. The term 'dollar' at that time in this State was more commonly used to designate confederate currency, than specie or United States treasury notes. If this is so, the third sec- tion of the ordinance [above set out] does not even change the rule of law which precludes the admission of parol evi- dence to contradict or substantially vary the legal import of a written instrument." "' § 237. Where not Applicable. — But a similar act of Georgia was held, not to apply to a note given in 1866, in settlement of a contract made during the war, as it was a new contract."^ But the statute of that state is applicable to a note given for rent, made in 1864; and to a note given in 1865, for confederate treasury notes loaned."' § 238. The Scaling Laws of Virginia. — The statutes of Virginia relating to contracts made during the war, pre- scribe no arbitrary scale by which damages on such contracts 59 Herbert v. Easton, 43 Ala., 547; Fath v. Bliss, Id., 512. See, also, under the Georgia Relief Act, which is similar to the Alabama Act, Philips V. Williams, 39 Geo., 597. See, also, Hood v. Townsend, 40 Id., 70; Lamar V. Thornton, 41 Id., 48. In estimating the amount of damages in Alabama, on a contract for the payment of a sum of money in Confederate currency or treasury notes, the true criterion is the value of the property sold in lawful money at the date of the sale, and not the value of the Confederate currency at the time the debt becomes due. Wharton v. Cunningham, 46 Ala., 590. «° Owen v. Willis, 41 Geo., 82. «• Clark V. McCroskey, 41 Geo., 137; Blow v. Wliite, Id., 293. See, also, Thomas v. Knowles, 40 Geo., 263; Cohen v. Ward, 42 Geo., 337, adjusting the equities of the parties in such cases. Under the scaling laws the damages are largely in the hands of the jury. NON-PAYMEKT OF MONEY. 229 Scaling Laws of Virginia. shall be estimated, bat leaves it to the jury to adopt a rule in each case upon the evidence before them." Where a debt was contracted in that State in January, 1861, and a note was given therefor by the debtor, secured by another as indorser, and was subsequently indorsed by the payee, and discounted by a bank and afterwards protested for non-payment, and was in August, 1862, paid in Confederate currency and taken up by the payee, who brought suit thereon against the maker and original indorser, it was held not ^' The provisions of the statute are as follows : 1 . In any action or suit or other proceeding for the enforcement of any contract, express or impUed, made or entered into between the first day of January, eighteen hundred and sixty-two, and the tenth day of Apiil, eighteen hundred and sixty-five, it shall be lawful for either party to show- by parol or other relevant testimony, what was the true understanding and agreement of the parties in reference thereto, either express or to be implied, in respect to the kind of currency in which the same was to be fulfilled or performed, or with reference to which as a standard of value it was made or entered into; and, in an action at law or suit in equity, it shall not be neces- sary to plead the agreement specially in order to admit such evidence ; pro- vided that when the cause of action grows out of a sale, or renting or hiring of property whether real or personal, if the court (or where it is a jury case, the jur}'), think that under all the circumstances, the fair value of the prop- erty sold, or the fair rent or hire of it, would be the most just measure of recovery m the action, either of these principles may be adopted as the measure of recover}^ instead of the express terms of the contract. 2. Whenever it shall appear that any such contract was, acording to the true understanding and agreement of the parties, to be fulfilled or per- formed in Confederate States treasury notes, or was entered into with refer- ence to such notes as a standard of value, the same shall be liquidated and settled by reducing the nominal amount due or payable under such contract, in Confederate States treasury notes, to its true value at the time they were respectively made and entered into, or at such other time as may to the court, or if it be a jury case, to the jury, seem right in the particular case; and upon the payment of the value so ascertained, the party bound by such contract, shall be forever discharged of and from the same; provided that in all cases where actual payment shall have been made of any sum of such Confederate States treasury notes, either in full or in part, of the amount payable under such contract, the party by or for whom the same was paid shall have full credit for the nominal amount so paid, and such payment shall not be reduced. Code (1873), pp. 979, 980. 230 THE LAW OF DAMAGES. Scaling Laws of Virginia. subject to be scaled under the statute relating to Confederate contracts. Justice Moncure, in delivering the opinion of the court in the case, remarks: "The counsel for the plaintiff in error contends that the judgment ought to have been rendered only for the value of the Confederate money aforesaid, upon the ground that the defendant in error, Cecil, paid the money as a mere surety, and that a surety can recover of his principal no more than he has to pay for the principal. It is certainly true, as a general rule, that the contract which the law implies between a principal and his surety, is merely a contract of indemnity; and that the measure of the liability of the prin- cipal to the surety is the amount which the latter has to pay for the former on account of the suretyship; so that if the discount at the bank had been the origin of the transac- tion in the case, and the note had been made, indorsed and dis- counted for the accommodation of the maker and first indorser, the last indorser, Cecil, would have been a mere surety of the other parties, and could have recovered of them only the value of what he had to pay for them. But such was not the case. The debt was due to Cecil by a negotiable note made by Dyerle and indorsed by Barnett, and it was a special debt. * * * The bank might have released the obligation of Cecil as indorser to it, upon any terms it chose to accept. It might have given the note back to him for nothing, and Cecil might still have enforced its payment by the original debtors, as a specie debt."" 63 Barnett v. Cecil, 21 Gratt. (Va.), 93, (1871). See, also, Michie v. Jef- fries, Id., 334. PEPwSO^'AL PEOPERTY. 231 Personal Property. CHAPTEE XII. DAMAGES ON COKTEACTS FOE THE SALE AND DELIYEEY OF PEESOKAL PEOPEETY — WAEEANTY— FEAUD, ETC. Section 244. Seller's Breach. 245. "Where the Price is not Advanced— Rule. 246. Where the Price is Advanced— Kule. 248. Reasons for the Highest Price as a rule of Damages. 249. Reasons for a Fixed Rule. 250. "When a Larger Rule Obtains. 252. The Doctrine of Hadley v. Baxendale. 253. General Application of the Rule. 254. English Cases Illustrating its Application. 255. Leading American Cases. 256. Damages for the Non-delivery of Stocks. 257. Distinction between Stocks and other Property. 258. Rule Uniform in New York— Different in Pennsylvania. 259. No Distinction on Principle. 260. Time and Place of Delivery 261. Distinction between an Ordinary Sale, and a Promise to Deliver in Payment of a Debt. '262. Form of Action as Affecting Damages. 263. "Where the Property has Decreased in Value. 264. Market Value. 267. The Rule the same in Torts as on Contracts. 268. Part Performance. 270. The new Departure. 272. "Warranty and Fraudulent Representations. 277. Liability for more Damages in Certain Cases. 232 THE LAW OF DAMAGES. Seller's Breach— Price uot paid in Advance. 281. Price Paid— Former Doctrine. 284. The price paid Governs in Illinois. 285. Reasons for the General Rule. 286. General Exceptions to the Rule. 287. Fraud— Rescission. 288. Damages in Case of. 292. Of the right to Rescind in case of a Breach of ■Warranty- Damages. 298. Failure of the Purchaser to Comply— Damages. 301. Waranty of Title— Personal Property. 302. Measure of Damages on Failure of Title. § 244- Seller's Breach.— The principle generally recog- nized in the measure of damages on a breach of an executory contract to deliver personal property sold, in the absence of fraud or of stipulations to the contrary, is that of actual com- pensation. The party injured thereby, may recover his actual loss sustained. § 245. Where the Price is not Paid in Ad\'ance.— In case the price has not been paid, this actual loss is con- sidered, at least in ordinary commercial transactions and where the value has advanced, the difference between the con- tract and the market price of the property, at the time and place the delivery should have been made.' ' 3 Par. on Con., p. 205, et seg. ; Phnipotts v. Evans, 5 M. & W., 475; Rand V The Wliite Mountains R. Co., 40 N. H., 79; Cannon v. Folsom, 2 la., 101; Jemmison v. Gray, 29 Id., 537; Deere v. Lewis, 61 lU., 2-54; Day v. Dox, 9 Wend., 129; Crosby v. Watkins, 12 Cal., 85; Bartlett v. Blanchard, 13 Gray (Mass.), 429; Zeliner v. Dale, 25 Ind., 433; White v. Tompkins, 52 Pa. St., 363- Bu'shv. Holmes, 53 Me., 417; Doak v. Snapp's Exrs., 1 Cold. (Tenn.), 180; Daila V. Fiedler, 12 N. Y. (2 Ker.), 40; McKnight v. Dunlop, 1 Seld. (N. Y.), 537- Billings V. Vanderbeck, 23 Barb. (N. Y.), 546; Baxnai-d v. Conger, 6 McLean (U. S.), C. C, 497; Halsey v. Hm-d, Id., 102. See, also, Rawdon v. Barton. 4 Tex., 289; Chapman v. Ingram, 30 Wis., 290; Hewitt v. MiUer, 61 Barb. (N. Y.), 568; Hall v. Pierce, 4 W. Va., 107; Weltner v. Riggs, 3 Id., 445; Prink v.' Tatman, 36 Ind., 259; Nixon v. Nixon, 21 Ohio St., 114; Ma^Tie on Dam., 81, et seq. And for a failure to deliver at the time, but a dehveiy afterwards, the damages are the difference between the property at the time agreed to be delivered and when it was actuaUy deUvered. Startup V. Cortazzi, 2 Cr. M. & R., 165; 6 Tyr., 697. PEKSONAL PKOPERTY. 233 Price paid in Advance. § 246. Where the Price has been Paid in Advance. — But where the price has beeu full3'^ paid in advance, a dif- ferent rule prevails, at least in some states, and the vendee may recover the highest market price of the article at the place -where it should have been delivered, between that time and the bringing of the suit, and even, in some states, to the time of trial, provided there is no unreasonable delay in the institution and prosecution of the action. This seems to be the doctrine in Isew York,' lowa,^ Texas," Indiana," California,^ and other states. This doctrine is based upon the reason that the plaintiff, if he had received the property, might have disposed of it at the time when it commanded the highest price and that, as against the vendor, he is entitled to the benefit of such a presumption,* This rule, however, has not beeu universally adopted. On the contrary, the rule prevails in various states, that the measure of damages even where the price has been paid, is the value of the property at the time and place of delivery, or, whether the price is paid or not, the difference between the contract price and the market value of the article at the stipulated time and place of delivery, when the price has advanced, together with the amount paid on the contract. And where the price is not paid or only partly paid, the same rule is uniformly and everywhere recognized.* 3 West V. Wentworth, 3 Cow., 82; Davis v. Shields, 24 Wend., 322; Arnold V. Suffolk Bank, 27 Barb., 424; Clark v. Pinney. 7 Cow., 681. * Davenport v. WeUs, 1 Iowa, 598; Cannon v. Folsom, 2 Id., 101; Boice & BaiTett V. Vincent, 24 Id., 287. 5 Randen v. Barton, 4 Tex., 289; Colvin v. McFadden, 13 Id., 324; Brasher V. Davidson, 31 Id., 190. See, also. Stephenson v. Price, 30 Id., 715, where the same doctrine was appUed in an action for a convei-sion. 6 Kent V. Ginter, 23 Ind., 1. 7 Dabovich v. Emeric, 12 Cal., 171; Maher v. Riley, 17 Id., 415. 8 West V. Pritchai-d, 19 Conn., 212. sBickel V. Colton, 41 Miss., 368; Ha.skell v. Hunter, 23 Mich., 305; Northrup v. Cook, 39 Mo., 208; Ward v. Burr, 5 Black. (Ind.), 116; Belden v. Nicholay, 4 E. D. S. (N. Y.), 14; HamHton v. Gajiyard, 34 Barb. (N. Y.), 234 THE LAW OF DAMAGES. Price paid in Advance. But a distinction has been made in some cases between goods and chattels generally and stocks, which we shall here- after notice." § 247. And where, between the time of making the con- tract and the delivery of the property, the vendee makes a contract for a re-sale of the same property, at a higher price than the value of the same at the time and place of delivery under the original contract, he cannot, as a general rule, recover for the profits he would have made on the re-sale." Nor would the rule be varied by an ofier of the defendant to sell to the plaintiff like property, at a price below the value, on the day of delivery.'^ And where a portion of the goods are not delivered, the same rule would apply on the portion not delivered." If the vendor puts it out of his power to comply with his contract, by a sale of a portion of the goods to another party before the time stipulated for the delivery, the vendee, where he has received none of the property, is entitled to the differ- 204; Carrie v. White, 37 How. Pr., 330; York v. Ter Plank, 65 Barb., 316; Copper Co. v. Copper Mining Co., 33 Vt., 92; HiU v. Smith, 32 Vt., 433; Rose V. Bozeman, 41 Ala, (N. S.), 678; CofFman v. Williams, 4 Heisk., (Tenn.), 233. See, also, 2 Kent's Com,, 480; Sedg. on Dam., 261, where the limited rule is approved in all cases. Gainsford v. Carroll, 2 B. & C, 624; 9 Eng. C. L., 204; Mayne on Dam., 83; Peterson v. Ayer, 13 C. B., 353, where it was also held that the vendee might recover the price for which the vendee has sold the goods. Josling v. Irvine, 6 H. & N.,512; 30 L. J. (N. S.) Exch., 78; 4 L. T. (N. S.), 251, where the rule was adhered to, although the vendee had re-sold the goods at an advance of cost to him, but at a much less price than the market value at the time they should have been delivered. See, also, WilUams v. Reynolds, 11 Jur. N. S., 973; 6 B. & S., 495; 34 L. J. Q. B., 221; 13 W. R., 940; 12 L. T. (N. S.), 728; Borries v. Hutchinson, 18 C. B. (N. S.), 445; 34 L. J., C. P., 169; 13 W. R., 386; 11 L. T. N. S., 771. »° See, post, § 257. " Wilhams v. Reynolds, 11 Jur. (N. S.), 973; 6 B. & S., 495; 34 L. J. (N. S.), Q. B, 221; 13 W. R., 940; 12 L. T. (N. S.), 728. " Havemeyer v. Cunningham, 35 Barb. (N. Y.), 515, which also affirms the doctrine that the value of the property at the time the goods should have been delivered, should control where the price has not been advanced. '3 Valpy V. Oakley, 16 Q. B. (A. & E.), 941; Id., 71 C. L. R. PEESONAL PROPEETY. 235 Eeason for Highest Price as a Rule of Damages. ence between the contract and the market price of all the goods purchased, and not merely on those which the vendor had thus put it out of his power to deliver." And where a party had agreed to deliver to another a crop of corn, at the time growing in the field, at a stipulated time and price and in merchantable order, and had received fifty dollars thereon, and only one-third of the crop turned out sound, and he refused to deliver that portion, but insisted on delivering the wdiole, if any; the court held a refusal to deliver the merchantable corn a breach of the contract, and that the vendee should recover the difierence between the contract and the market price of the sound corn, at the time it should have been delivered, together with the amount advanced on the contract, and interest thereon.'"* § 248 . Reason for the Highest Price as a Rule of Damages .—The reasons assigned for allowing the purchaser the benefit of an advance in the price of property when the vendor has tailed to deliver according to contract, where the purchaser has paid the price, are, that on the failure to deliver, the purchaser being deprived of his money, may not be able to purchase at that time. Besides, the defendant should not be allowed to take advantage of his own wrong, and by refusing to deliver the property, enjoy the benefit of an advance upon it; and if an advance occurs he has had, or might have had, the benefit of it, and the law should presume that he had enjoyed the benefit of the best price which the property has com- manded ; that the plaintiff*, if the defendant had observed his contract, could have enjoyed the benefit of the advance; that as against the w^rongdoer, it should be presumed that he would have improved the opportunity ; and that being deprived of both the property and the price, every presumption should be made in his favor. 's Crist V. Armour, 34 Barb. (N. Y.), 378. »^ Hamilton v. Ganyard, 34 Barb., 204. 236 THE LAW OF DAMAGES. Reason for fixed Rule— Larger Rule— Hadley v. Baxendale. § 249. Reasons for a Fixed Rule.— The reasons for the general rule, where no portion of the price has been paid, are, that the plaintiff in order to receive full indemnity should receive only such a sum as, united with the price agreed to be paid for the article purchased or contracted for, would enable him to go into tlie market and secure the same at the time of the breach. This, it is claimed, would make him whole. And the theory is, that the vendee would thereby be placed in the same condition as though the vendor's agreement had been fully complied with. § 250. When a Larger Rule Obtains.— But this lim- ited rule does not apply where the property has no general market value and is not purchased, as an article of commerce, for sale; " or, where the property is purchased, or to be manu- factured and delivered for a particular purpose, which purpose is known to the vendor, and the vendee sustains a damage by the non-delivery at the time stipulated, which was natural and probable to result from the non-delivery; nor to cases where the actual loss, though remote, was contemplated or may be reasonably supj)osed to have been contemplated by the parties at the time of making the contract, as the probable result of a breach of it, in which cases the defendant is liable for such damages. § 252. The Doctrine of Hadley v. Baxendale.— The doctrine alluded to is sometimes called the doctrine of Hadley V. Baxendale and has a wide application to the great variety of contracts. This leading and famous case, was determined in the English Exchequer Court; and as it was one of the earliest cases in which the doctrine was distinctly declared as the common law, and has since been followed by numerous decisions both in England and in this country, and is now universally regarded as the settled law of both countries, a »7 Clark V. Pinney, 7 Cow., 681. PERSONAL PROPERTY. 237 The Doctrine of Hadley v. Baxendale. brief statement of the facts of the case and a portion of the opinion of the court may be proper. The defendant, who was a common carrier, contracted with the plaintiff, a miller, to carry a broken shaft of the plaintiff's mill, and deliver the same to an engineer to serve as a model for a new one. The plaintiff's mill necessarily remained idle while the new shaft was being made, of which however the defendant at the time was ignorant. The defendant did not deliver the broken shaft to the engineer within a reason- able time, in consequence of which there was a delay in the manufacture and delivery of the new shaft. It was held that the plaintiff could not recover as damages, under the circum- stances, the loss of profits incurred by the stoppage of the mill during the unnecessary delay. Alderson, B. said: "We think the proper rule in such a case as the present, is this: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract, should be either such as may fairly and reasonably be considered as arising naturally, that is, according to tlie usual course of things from such breach of contract itself, or such as may reason- ably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made, were communi- cated by the plaintiff to tlie defendant, and were thus known to both parties, the damages resulting from the breach of such contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from the breach of the contract under those special circumstances so known and communicated. But on the other hand, if those special circumstances were wholly unknown to the party breaking the contract, he at most could only be supposed to have had in his contemplation the amount of injuries which 238 THE LAW OF DAMAGES. General Application of Rule in Hadley v. Baxendale— English Cases, etc. would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For, had the special circumstances been known, the parties might have especually provided for the breach of contract, by special terms as to the damages in that case, and of this advantage it would be very unjust to deprive them.'"* § 253. General Application of the Rule in Hadley v. Baxendale. — The case oi Hadley v. Jjaxendale, related to a failure to deliver by a common carrier; but the principle as stated by the court, is equally applicable to a failure to deliver goods on a contract of purchase, or to manufacture and deliver personal property, on a special contract to that effect. § 254. English Cases, in which the Rule is Hlustra- ted. — Where the defendant had contracted to deliver a thresh- ing machine to a farmer within three weeks, knowing it was needed to thresh wheat in the field, but did not deliver it at the time agreed, and after reasonable efforts to secure the crop the plaintiff's wheat was injured by the necessary delay in saving the crop, and in consequence of a rain, and he sus- '8 9 Excli., 341; 26 Eng. L. & E., 398. This doctrine is followed and approved in the folio-wing- English cases: Woodger v. Great Western R. Co., 2L. R., (C. P.), 318; Hamlin v. Great Northern R. Co., 1 H. & N., 408 Hales V. London & North Western R. Co., 4 B. & S., 66 (116 E. C. L, R.) Gee V. Lancaster, etc., R. Co., 6 H. & N., 211; Wilson v. L. & Y. R. Co. 9 C. B. (N. S.), 632 (99 E. C. L. R.); Smeed v. Foord, 1 El. & EL, 602 Boyd V. Fitt, 14 Irish L., 43; Dunlop v. Higgins, 1 H. & L. Cas., 381 Waters v. Towers, 8 Exch., 401; Mayne on Dam., 82, 83; Potman v. Mid- dleton, 4 C. B. (N. S.), 322 (93 E. C. L. R.); CoUard v. South E. R. Co., 7 H. & N., 79; Smeed v. Foord, 1 E. & E., 602. See, also, Engle v. Fitch, L. R., 3 Q. B., 314, where the rule, supra, was applied in an action against the vendor of realty, for breach of contract. Cory v. Thames L-on Works Co., L. R., 3 Q. B., 181; Rolph v. Crouch, L. R., 3 Exch., 44; Richardson v. Dunn, 8 C. B., N. S., 655 (98 E. C. L. R.); Great Western R. Co. v. Red- mayne, 1 L. R., (C. P.), 329, and cases there cited: WilUamsv. Reynolds, 6 B. & S., 495 (118 E. C. L. R.) And the same doctrine applies to actions founded upon tort; so far as relates to the natural and probable consequences of the wrong; MuUett v. Mason, 1 L. R., (C. P.), 559. PERSONAL PEOPERTY. 239 English Cases— Kule Illustrated. tallied a further damage from a fall in the market price which occurred before it could be kiln-dried and got ready for sale, he was held entitled to recover the loss by the injury to the wheat, but not to the change in the market, as the former loss might well have been in the contemplation of the parties, but not the latter," So, where the plaintiff purchased caustic soda of the defend- ant to be shipped from England to Russia, part in June, part in July, and the balance in August and the defendant knew, at the time of the purchase, that it was purchased for ship- ment and re-sale abroad, but did not know that it was intended to be shipped for this purpose to Russia, until sometime before the end of August. The defendant neglected to deliver any of the soda until the month of September; a portion was also delivered in October. There was then no market, and the plaintiff lost the profits of a re-sale which he had made in Rus- sia on what was not delivered there, and was obliged, owing to the lateness of the season, to pay increased freights and insurance on what was shipped to Russia. It was held, that he should recover the loss of profits on the re-sale in Russia, and the additional cost of freight and insurance, but not damages paid by the purchaser in Russia, on account of a sub- sale made by his vendee there, as the latter was too remote to fall within either branch of the rule in Hadley v. Baxen- dale:' '9 Smead v. Foord, 1 E. & E., 602; 28 L. J. (N. S.), 178; Prior v. Wilson, 1 L. T. (N. S.), 549. =0 Bonies v. Hutcliinson, 18 C. B. (N. S.), 445; s. c. 34, L. J. (N. S.), C. P., 169, supra. The doctrine is also illustrated by a recent case. The plaintiffs, manufacturers of shoes, contracted with a company in London to furnish them with a quantity of military shoes for the use of the French army, at a very high price— the shoes to be delivered in London by February 3, 1871. The shoes were delivered at the defendant's station at Ketternig for carriage to London, in time to be dehvered in the usual course that day, and notice was given to the company's station agent at the time, that the plaintiffs were under a contract to deUver the shoes the same day to the con- signees in London, and that if not so delivered they would remain on their 240 THE LAW OF DAMAGES. Leading American Cases. § 255. Leading American Cases. — In Griffin v. Colver, the doctrine is stated by Selden, J., as follows: "The party injured is entitled to recover all his damages, including gains prevented, as well as losses sustained, and this rule is subject to but two conditions; the damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, they must be such as might naturally be expected to follow its violation; hands. The shoes were not dehverecl by the defendant in London, until the 4th of February, and in consequence the vendees refused to accept the same, and the plaintiffs were obliged to sell them for much less than the contract price, but in consequence of the suspension of the war the price received was as much as could have been obtained for them in the market on the 3d of February. In an action against the common carrier for the damages sustained by the non-delivery of the shoes in time, it was held by the court that the plaintiffs could not recover the difference between the price at which they had con- tracted the shoes and that received on the sale. And this decision was placed on the ground that the damage was not such as naturally arose from the breach, or as might be reasonably supposed to have been in the contem- plation of the parties at the time they made the contract. Home v. Mid. R. Co., 8 C. P. L. R., 131; 28 L. T. (N. S.) Ex., Ch. 312. See, also. Great W. R. Co. V. Redmayne, 1 L. R. (C. P.), 329. So, where the plaintiffs, who were cotton spinners, having rented a mill and employed hands to run it, caused to be delivered to the defendants, at Liverpool, to be carried to Oldham, some bales of cotton, which were unrea- sonably delayed in the carriage, whereby the plaintiffs, having no other cotton to work, lost the use of their mill and their laborers were unem- ployed. The necessity of the plaintiffs having the cotton to enable them to operate their mill, was not communicated to the defendants at the time of the delivery of the freight, but was communicated immediately on the non- arrival of it in proper time, after which there was also an unreasonable delay on the part of the carrier in delivering the same. It was held, that the defendants not having notice, at the time of the delivery, that the mill was waiting for it, were not liable for the expenses caused by the stoppage, and that the wages paid and loss of profits, under the circumstajices, were not the measure of damages. The Lancashire & Yorkshire R. Co. v. Gee et al., 6 H. & N., 211; 30 L. J. (N. S.), 11 Exch., 11; 3 L. T. R. (N.S.), 328. See, also, British Columbia Sawmill Co. v. Nettleship, L. R., 3 C. P., 499; 37 L. J. C. P., 235; 16 W. R., 1046. Tlie first branch of the rule in Hadley v. Baxendale, is further illustrated in its application to warranties, by the case of Borradaile v. Brunton. The perso:n'al peopektt. 241 Leading American Cases. and they must be certain, both in their nature and in respect to the cause from which they proceed."" The foregoing statement is assumed to embrace the proposi- tion under the two alternative heads, in the opinion in the English case, both those damages that arise naturally in the usual course of things, and those that have been contemplated by the parties. This doctrine is sustained and approved by many American cases cited in the annexed note.°° In Wisconsin, where the seller had knowledge, that goods were ordered by the purchaser for a particular occasion, and they were to be delivered in time for that occasion, and there was a failure of the vendor to so deliver, and no sufficient time remained after the breach, for the purchaser to purchase the goods elsewhere to supply the demand for that occasion, the vendor was held liable for such damages as directly and natur- ally arose from the breach, although beyond the difference between the contract and the market value." From the anal- defendant sold to the plaintiff a chain cable as a substitute for a rope cable, and wan-anted it good as a rope cable of sixteen inches for two yeaj-s. The cable broke withni that time, whereby the plaintiff 's anchor was lost. It was held that the value of the cable and anchor lost was the proper measure of damages, as this must have been contemplated by the parties as the result of a failure of the cable as warranted, and that it was witliin the rule in Hadley V. Baxendale, 8 Taunt. 535. The cases we have furnished in this note to illus- trate the application of the rule, relate to other matters than the special subject under consideration. We shall have occasion to consider it further when we come to treat of those matters. =s 16 N. Y., 489. ^Hanulton v. McPherson, 28 N. T., 72; Krom v. Levy, 48 N. Y., 679; Crater v. Binninger, 33 N. J., (4 Vr.), 513, a case of fraud; Richardson v. Chynoweth, 26 Wis., 656, where the doctrine was applied to a breach of con- tract to cleUver personal property; Shepard v. Milwaukee Gas-Light Co.. 15 Wis., 318; Hinckley v. Beckwith, 13 Wis., 31; Abbott v. Gatch, 13 Md., 314, Copper Co. v. Copper Mining Co., 33 Vt., 92; Ashe v. De Rossett, 5 Jones (N. C), 299; Baldwin v. Bennett, 4 Cal., 392; Page v. Ford, 12 Ind., 46; Adams Express Co. v. Egbert, 36 Pa. St., 360; Pittsburg Coal Co. v. Foster, 59 Id., 365; Wolf v. Studebaker, 65 Id., 459; Phalan v. Andrews, 52 111., 486. =7 Richardson v. Chynoweth, 26 Wis., Go6, supra. 16 242 THE LAW OF DAMAGES. Leading American Cases. ogies in otlier cases, tlie profits that might have been made on the goods would be a proper element of damages in such a case. For although merely imaginary profits, anticipated from some collateral transactions, entered into on the expectation of a performance of the original contract, are too uncertain and remote to be considered as an element of damages,''^ still those direct benefits and profits which are the immediate result of the contract and constituting a part of its direct object, may well be considered as proper elements of damages, and usually perhaps, may be considered to have entered into the contemj)lation of the parties as the probable or certain results of a breach of it. And it seems now well established that such profits may be allowed as damages."" A recent case illustrates what probable profits will be rejected as damages. The defendant had agreed to make the plaintifi" a lease of certain lands for the purpose of planting a peach orchard and raising peaches, for ten years. The plaintiff took posses- sion, but the defendant refused to make the lease, and within two years caused the plaintiff to be ejected therefrom. It was held incompetent to show the probable future profits of the leased premises, and that the measure of damages was the value of the lease at the time of the eviction, subject to the performance of the contract on the plaintiff's part.^" =8 Clare v. Maynard, 6 Ad. & E., 519; Walker v. Moore, 10 B & C, 416; 2 Kent's Com., 5 ed., 480, notes. =9 Masterton v. Mayor of Brooklyn, 7 HiU, 62; United States v. Speed, 8 WaU. (U. S.), 77; Booi-man V. Nash, 9 Bam. & Cress., 145; WaUace v. Tumlin, 42 Geo., 462; Shepard v. Milwaukee Gas-Light Co., 15 Wis., 318; Hinldey v. Beckwith, 13 Wis., 31; Story v. The New York & Harlem R. Co., 6 N. Y., 85; Fox V. Harding, 7 Cush. (Mass.), 516; The PHla., Wil. & Bait. R. Co. V. Howard, 13 How. (U. S.), 307; Thompson v. Jackson, 14 B. Mon. (Ky.), 114; Cook V. Coms. of Hamilton, 6 McLean, C. C, 612; Hay v. Gronoble, 34 Pa. St. 9; Fletcher v. Tayleur, 17 C. B., 21 ; 25 L. J., C. P., 65. See, also. Wood V. Bell, 5 El. & Bl., 772; 2 Jur., N. S., 349; 25 L. J., Q. B., 148; and s. c, 6 El. & BL, 355; 25 L. J., Q. B., 321, Ex. Cham. 3° Rhodes v. Baird, 16 Oliio, 573. See, also, Patterson v. Ayre, 13 C. B., 353. PERSOI^AL PEOPERTT. 24a Damages for Non-Delivery of Stocks— Stocks and Other Property. § 250. Damages for the Non-Delivery of Stocks.— On general principles the rule of damages for the non-deliv- erj^ of goods and chattels generally, in ordinary commercial transactions, or, in the language of the court in Clark v. Pinney, supra, " where the article is intended for sale," would equally apply to the sale of stocl's/ although, as we shall hereafter notice, a distinction in some states has been made in such cases, and, in favor of the fluctuating rule in case of stocks, where the price of the stocks, after the purchase of the same, to be delivered at a future day, has advanced. Mr. Sedgwick, makes the following observations on this subject: " There appears to be no solid reason for making any difference between stocks and any other vendible com- modity. Where stocks are loaned, or the price of the stocks or article is paid for, the party entitled to the delivery, parts with his property on the faith of the contract; and in either case, is prevented from using it, up to the time of trial. The question is whether, in either case, the law should act on the assumption that the plaintiff would have retained the prop- erty if the contract had been complied with, till the period of the highest value, and have realized that price, and thus give damages which are purely conjectural." ' § 257. Distinction Between Stocks and Other Prop- erty. — But there seems to be a strong tendency to make a distinction between stocks and other property both in England and in this country. And perhaps, we may consider this the general rule. Where stocks have been borrowed with a promise to replace them, or where they have been purchased and the price paid, and there has been a failure to return or deliver, the general rule is to give its highest value up to the time of trial.'' ' Sedg. on Dam., 273. ' Lord Ellenborough, in Downer v. Black, 1 Stark., 318; Harrison v. Har- rison, 1 Car. & P., 412; Owen v. Kouth, 14 C. B. (5 J. Scott), 327. But in England the general rule prevails in relation to stocks, where the price has 244 THE LAW OF DAMAGES. Uniform Kule in New York— Different in Pennsylvania— No Distinction, etc. § 258. Uniform Rule in New York— Different in Pennsylvania. — In New York, the same rule now prevails in tlie case of stocks as of other property, where the price has been advanced, and that is the highest value up to the time of trial. ^ But the distinction alluded to, is made in Penn- sylvania, where the rule of fluctuating value, generally, is rejected, but is adopted in reference to stocks. Thus, in The Banh of Montgomerxj v. Reese, cited above, where the action was for the value of stock wrongfully withheld from the plaintiff, the court held, that "the measure of damages if the consideration for the stock has been paid, is the highest market value between the breach and the trial, together with the bonus and dividends which have been received in the meantime; but, if the consideration has not been paid, the plaintiff should be allowed the difference between it, and the value of the stock, together with the difference between the interest on the consideration and the dividends on the stock."* § 259. No Distinction on Principle.— If there is any good reason for a departure from the general rule of damages not been advanced. Shaw v. Holland, 15 M. & W., 136; 4 Railw. Cas., 150; 10 Jur. 100; Van D. L. Co. v. CockeviUe, 1 C. B., N. S., 732, Exch. Cham.; Williams v. Archer, 5 Man., Gran. & Scott; 5 C. B., 318; Archer v. Wil- liams, 2 Car. & Kir., 26; Mayne on Dam., 81, et seq.; Van Allen v. The 111. Cent. R. Co., 7 Bosw., 515; Belden v. Nicholay, 4 E. D.S. (N.Y.). 14, where the same doctrine was applied to stocks as other property, where the price had not been paid; Arnold v. Suffolk Bank, 27 Barb., 424; The Bank of Montgomery v. Reese, 26 Pa. St., 143; Kent v. Ginter, 23 Ind., 1, where the distinction between stocks and ordinary merchandise is distinctly stated. 3 Van Allen v. The III. Cent. R. Co., supra; Arnold v. Suffolk Bank, supra. 4 26 Pa. St., 143. But in England, where a note was given for the price of stocks to be deUvered at a future day, in an action for the non-dehvery of the shares according to a contract of sale, the value of the stocks in the market at the time of the breach, was held to be the measure of damages. Bamed v. Hamilton, 2 Railw. Cas., 624. See, also, Shaw v. Holland, 15 M. & W., 136, where the difference between the contract price and the market price at the time stipulated for delivery,where the price was not paid, was held to be the measure of damages. PEESONAL PKOPERTY. 245 No Distinction on Principle. in such cases, on account of advance payment of the price of the property, there would appear to be no sound reason or principle, why a distinction should be made between commer- cial transactions in reference to merchandise generally, and stocks; and much less for adopting the fluctuating rule, in the case of stocks, where the price has not been paid. The distinction, based upon the the fact of a common prac- tice of speculating, or what is sometimes called "gambling in stocks," is hardly tenable. The operation by which stock operators effect what is called "a corner," is the same whether it relates to stocks or ordinary articles of merchan- dise. It is no uncommon thing for such a result to be effected in respect to manufactures or the agricultural products of the country. Nearly all operations in merchandise, are in one sense speculations, the success of which depends upon the wisdom of the operator, to forsee the supply and demand, in reference to the merchandise that is the subject of the spec- ulation. If he is able to calculate correctl}^ in these respects, he is likely to be successful. By his own efforts he may affect the market, and others may aid him materially, to be success- ful. But, if the speculator in stocks, produces results not entirely legitimate or consistent with a golden rule, it is no worse than similar acts of operators in general merchandise, or the similar practices of men in the various pursuits of trade and commerce. The law does not attempt to regulate the conduct of business men by a fine moral standard, nor should it attempt to enforce one code of ethics for the stock speculator, and a different one for the produce or merchandise speculator. The distinction, if any, is one of degree and not of quality or essence. Besides, the parties to the contract, if either are in moral fault, are equally in fault — in pari delicto. If one seeks to advance prices, the other seeks to depreciate the same. And it would be a fruitless task to attempt to discover 246 THE LAW OF DAMAGES. Time and Place of Delivery. the effect wliicli cither, by immoral means, has produced on the market. The successful operator is generally no worse than the unsuccessful one; and these things must be left to tlie forum of the conscience of each individual, and not to our judicial tribunals. There can certainly be no moral dis- tinction drawn between the small oj^erator in merchandise and common products of the country, and the extensive operator in the same, or in stocks. Tliere should be a uni- form rule applicable to all cases of the kind. And attempts to investigate and determine the effects of individual efforts to advance or depreciate prices of stocks or products in the market, would be " embarking upon a vague search after facts impossible, in most cases, to be proved with any degree of satisfaction." § 260. Time and Place of Delivery.— Tlie time and place of delivery are matters of frequent importance and con- troversy, as questions which affect the amount of damages. A brief consideration of the subject may, therefore, be proper. "Where no time is fixed for delivery, damages will generally, as we have seen, be fixed according to tlie value of the prop- erty at the time when the defendant refuses to ]3erform.' If no time is fixed by the contract, the article is deliverable in a reasonable time; and what is a reasonable time must depend on the circumstances of each particular case; and the difference, in ordinary cases, between the stipulated price and the market value when it should have been delivered, is the measure of damages.* And in the absence of any stipulation on the subject, or any statutory regulation, the article should be delivered at the place where it is at the time of the contract.' 5 Williams V. Woods, 16 Md., 220. 6 Thompson v. Woodruff, 7 Cold. (Teim.), 401; Quarles v. George, 23 Pick., 400. See, also, authorities, §§ 244, 264. 7 2 Kent's Com., 662, 8th ed., and notes. PERSON'AL PROPERTY. 247 Sale— Promise to Deliver— Payment of Debt— Action— Decrease in Value. § 261. Distinction between a Sale and a Promise to Deliver Property in Payment of a Debt.— But a distinc- tion has been made between the ordinary case of a sale, and a contract to pay a debt in specific personal property. In the latter case the property should be delivered at the residence or place of business of the creditor or payee, if the article be portable; but if it be ]3onderous and bulky, and not portable, it is the duty of the debtor to seek the creditor in such a case, and ascertain what place he will appoint to receive the prop- erty, and to comply with any reasonable request in that respect." But if the payee fails to elect where he will receive the article, or designates an unreasonable place for the deliv- ery, then the better opinion seems to be, that the obligor may deliver the articles at a place which circumstances show to be reasonable and convenient for the purposes intended, and pre- sumptively in the contemplation of the parties, when the con- tract was made." § 262. Form of Action, as Affecting Damages.— The amount of damages sometimes depends upon the form of the action at common law, and the purchaser usually may, on a foilure of the vendor to deliver property according to con- tract, elect to rescind the contract, and recover the money advanced and interest,'" § 263. Where tlie Property has Decreased in Value. In an action by the vendee for a breach of contract to deliver property, the same rule applies, at least where there has been no payment, whether the property advances or sCarrierv. Carrier, 2N.H., 75; Godwinv.Holbrook, 4 Wend., 377; Bean v. Simpson, 16 Me., 49; Howard v. Miner, 20 Id., 325; Mingus v. Pritcliet, 3 Dev., 78. 9 Admr. of Peck v. Hubbard, 11 Vt., 612; Howard v. Miner, 20 Me., 325; Stone V. Gilliam, 1 Show., 149. See, also, as to a contract to deliver in a "reasonable time," State v. King, 44 Mo., 238; Nixon v. Nixon, 21 Ohio St., 114. " Smithurst v. Woolston, 5 Watts. & S., 106. 248 THE LAW OF DAMAGES. Market Value. declines in value; and if it is worth less at the time and place of delivery than the plaintiff agreed to pay for it, he can recover nothing; or, at most, only nominal damages." § 2G4. Market Value. — It will be apparent that the ques- tion as to the market value of the property is frequently an important one, in determining the amount of damages. The general rule limits the damages to the market value at the time and place fixed for the delivery, in the absence of any stipulation or agreement fixing the value. The general rule is, that the value must be confined to the time and place designated for the delivery," But it is easy to conceive of cases where the article at the time and place designated may have no market value as, for instance, shingles in a forest, or logs in a river, remote from market and from places of general business; and, consequently, it may be impossible to show at the place designated a market value. But the law does not require impossible things — ?da? non cogit ad impossihilia. The rule in such cases must be modified to suit the circumstances, or it will be discarded if necessary to promote justice and afford the injured party a remedy. And if there is no market value, or but an uncertain one, the value of the property may be shown by such prices on sales as took place at or near the time and place; and recourse, for this purpose, may be had to sales which were made at the nearest market.'' Thus, in Massachusetts, on a question of value of property " Sartup V. Cortazzi, 2 Cr., Mees. & Roscoe, 165; Rose v. Bozeman, 41 Ala. (N. S.), 678; Bush v. Canfield, 2 Conn., 485; Maher v. Riley, 17 Cal., 415. '2 In addition to authorities already cited, see, Blydenburgh v. Welsh. 1 Bald., 331; Gregory v. McDowell, 8 Wend., 435; Hanna v. Harter, 2 Ark., 397; Worthen v. WHrnot, 30 Vt., 555; Phelps v. McGee, 18 111., 155; Field V. Kinnear, 4 Banks (Kan.), 476; Sedg-. on Dam., 6th ed., 333, note. '3 Berry v. Dwinel, 44 Me., 255; Wemple v. Stewart, 22 Barb. (N. Y.), 154. See, also, Young v. Lloyd, 65 Pa. St., 199. PERSONAL mOPERTT. 249 Market Value. at a certain time and place, under such circumstances, it was held proper, with other evidence, for the plaintiff to introduce evidence of the cost of the goods in the market where they were purchased, adding the expenses of transportation, the duties, and a fair allowance for profits; and also evidence of the sale of like articles for months before and after the sale in question, and of the purchase of some of the goods for cash by the plaintiff at advanced rates within two months after- wards."" So, in Michigan, it has been held, that damages in trespass, quare clausumf regit, will not be denied because their nature is such, that they cannot be accurately measured. If they cannot be ascertained by a fixed rule, it was held that, all the facts and circumstances tending to show the amount of the damages, should be submitted to the jury;'' and the same doctrine would be applicable in other cases. But the value at another time and place is not material, unless it tends to prove the value at the place of delivery, and other evidence :s usually necessary to arrive at this, such as the expenses of transportation to the place where the market is shown, or a sale of some similar article at or near the place and time of delivery. g 265.— Where the value is shown at the time and place of delivery, evidence showing its value elsewhere is not usually competent.'' And proof of a single sale is not usually suffi- cient to establish a market value." In relation to market value, Mr. Justice Strong, in Trout v. Kennedy, uses the fol- lowing language: "If at the particular time there be no market demand for an article, it is not, of course, on that account, of no value. What a thing will bring in the market =° Eaton V. MeHus, 7 Gray, (Mass.), 566. « GHbert v. Kennedy, 22 Mich., 117. = Durst V. Burton, 47 N. Y., 167; Chapman v. Ingram, 30 Wis., 290. =3 Graham v. Maitland, 1 Sweeny (N. Y.), 149. 260 THE LAW OF DAMAGES. Market Value. at a given time, is perhaps a measure of damages then, bnt not the only one.""* Kor can the defendant, in order to reduce the damages, show a conjectural or possible state of things, as the probable effect which the article contracted to be delivered would have had on the market if placed there at the time.'" Nor is it proper to consider the conjectural or probable effect upon the market prices, if the plaintiff had gone into the market at the time, to purchase the property which the defendant failed to deliver."^ Nor would the fact, that the number of railroad ties, which the defendant had failed to deliver according to contract, could not have been purchased for immediate delivery, at the time and place and when and where they were to be delivered by the defendant, establish of itself that there was no market price of such ties, at the time and place designated." So, in an action for the non-delivery of lumber at Detroit, Michigan, it was held proper for a witness, who was a dealer in lumber at "Wayne, eighteen miles from Detroit, and who knew the value of lumber at Wayne but not at Detroit, but knew it was higher at Detroit than at Wayne, to testify as to its value at Wayne." And where an action was brought on the defendant's prom- ise to pay for logs, which were converted by him while they were floating down the river to plaintiff's mill some distance below, it was held proper for the j^laintiff to show the value of the logs at the mill and the expense of getting them there from the place of conversion."' § 266. And where a quantity of pork, though contracted for delivery at one place, was known by the vendor to be =4 47 Pa. St., 387. =5 Dana v. Fiedler, 12 N. Y. (2 Kernan), 40; 1 E. D. S. (N. Y.), 463. ^ Jemmison v. Gray, 29 la., 537. »7 Jemmison v. Gray, Id. =8 Savercool v. Farwell. 17 Mich., 308. =9 Saunders v. Clark, 106 Mass., 331. PEESOITAL PKOPERTT. 251 Kule the same in Torts as on Contracts. intended for use in another, and for a particular purpose, the difi'erence in value at the latter place, between the pork con- tracted, for and that received, was held to be the measure of damages.'" These elements of damages might, in many cases, well be placed on the ground that thej were contemplated by the parties, as the result of a breach of warranty, or the natural and direct result of the breach of the contract. And, where cheese had been fraudulently represented to be of good mar- ketable quality in the Kew York market, but proved to be inferior and unmarketable there, it was held inadmissible to show that it was shipped to London and what it netted the plaintiff there, to reduce the damages to which he was enti- tled, which was the difference between the value as repre- sented and warranted, and the actual value at New York, at the time it was contracted to be delivered." In ISTevada, where a contract was made to pay a certain amount in gold coin or its equivalent in legal tender notes, and no place of payment was designated, it was held that the relative values of the coin and the currency, should be deter- mined at the place and time of trial.'^ But, the value of the articles promised to be delivered on a sale for a specific use, is generally immaterial, unless they are warranted suitable for such purpose.^^ § 267. The Rule the same in Torts as on Contracts. — The general rules as to market value in cases of breaches of 3° Converse v. Prettyman, 2 Minn., 229. But see, Lattin v. Davis, Lalor's Supp. to Hill. & Den., 9, which was an action for a breach of warranty of the quality of apples purchased for the Canada market, but to be deHvered at Barre, in the state of New York, and where, it was held, that the meas- ure of damages was the difference between the apples actually dehvered the«e and those which should have been delivered at Barre, and not in the Canada market. 31 Durst V. Burton, 2 Lans. (N. Y.). 137; 47 N. Y., 167. 3= WeUs, Fargo & Co. v. Van Sickle, 6 Nev., 45. 33 Bouton V. Reed, 13 Gray (Mass.), 530. If purchased for a special pur- pose, it would be different. Id. 252 THE LAW OF DAMAGES. Part Performance. contract to deliver property, is the same on general principles as in trespass or for a conversion. And the same doctrine has been generally, if not universally, adopted. Thus, in Pennsylvania, where the defendants were sued for damages to the plaintiff's rafts caused by an artificial flood, produced by a dam illegally constructed by the defendants on a creek, below which lay the rafts; but there was no definite value of rafts on the creek where they were injured, it was held proper to show the price of similar rafts at the nearest market, as some guide in determining the value.'* So, in an action of trover, where the property had little or no market value, it was held proper to show its actual value to the owner." But we shall consider this question further when we come to treat of conversion.'* §268. Part Performance . — "Where there is a contract to deliver property and a part performance, the question fre- quently arises as to the measure of damages, in an action by the seller against the purchaser, for the value of the property delivered. If the contract is entire, as where the seller agrees to deliver a certain quantity of produce for a certain sum, and there has been no acceptance of what has been performed, or waiver of performance, the general rule is that there can be no recovery, either upon the contract, or a quantum valebat. But, where one party contracts to deliver to another a certain quantity of produce or merchandise at a certain place and within a certain time, and delivers a portion according to contract, but neglects, or refuses to deliver the balance, the better opinion would seem to be, that if the purchaser retains the property delivered, and refuses to pay for the same, the seller may 34 Dubois V. Glaub, 52 Perm., 238. See, also, the rule on a breach of con- tract to deliver, Hazleton Coal Co. v. Buck Mountain Coal Co., 57 Pa.*St., 301. But, in order to justify a reference to a distant market, there must really be no other nearer. Coxe v. England, 65 Pa. St., 212. 35 Stickney v. Allen, 10 Gay (Mass.), 352. 36 See, post, § 847, et seq. PEKSONAL PEOPEETT. 253 Part Performance. recover its value, less the damages sustained by the purchaser by reason of the non-fulfiliment of the entire contract. But if the purchaser should proffer a return of the property- delivered, no action could be maintained, but the purchaser in that case could recover, as damages, the loss sustained by the breach of the contract on the part of the seller. These conclusions are fairly deducible from the current of modern decisions, although the preponderance of authorities was formerly against a right of recovery by the seller, where he had failed of a complete performance, and even at the present time there is considerable conflict in the decisions relating to the question. The earlier authorities, both in this country and in Eng- land, adopted a stern rule, and held the party contracting to deliver merchandise to the letter of his contract, and refused to allow a recovery in such cases, either on the contract, or a quantiim, valehat. and there was practically a forfeiture of the property delivered. § 269. The same principles, applicable in case of part performance of a contract to deliver merchandise, are appli- cable where there is a part performance of a contract for service for a certain time and price, which we shall hereafter consider." Chancellor Kent takes the sterner rule, as the one sanctioned by reason and authority. In his valuable com- mentaries he observes: "With respect to part performance of an entire contract for the sale and delivery of personal property, of a given quantity, at a specified price and time, or for the performance of certain labor and services, a delivery of a less quantity than that agreed on, or for a refusal or omission to perform the entire labor and services, without any act or consent of the other party, will not entitle the party who has delivered in part, or performed in part, to recover any compensation for the goods which have been 37 See, post, § 331, et seq. 254 THE LAW OF DAMAGES. The New Departure. delivered or the service which has been performed. The entire performance is a condition precedent to the payment of the price, and the courts cannot absolve men from their legal engagements or make contracts for them." ^* This doctrine was undoubtedly sustained by the general current of authorities at the time when the learned author wrote the foregoing.^* And the principle has been repeatedly recognized by the courts of New York, Massachusetts, Ohio, and other states, that where a party enters into a special con- tract, for the sale and delivery of certain property at a specified price, a full performance on his part is a condition precedent to his right of action against the vendee, for the price of any part of the property delivered under the con- tract."" § 270. The New Departure.— But the injustice fre- quently resulting from the application of this severe doctrine has led to the adoption of a more liberal rule, and recent 38 2 Kent's Com., 509. 39 Waddington v. Oliver, 5 Bos. & Pull., 61, but in this case the time of deliveiy had not expired. See, also, McMillan v. Yanderhp, 12 Johnson, 165; Jennings v. Camp, 13 Id., 94; Champhn v. Rowley, 13 Wend., 258; 18 Id., 187; Mead v. Dogolyer, 16 Id., 632; Stark v. Parker, 2 Pick., 267; 01m- steadv. Beale, 19 Id., 528; Steamboat Co. v. Wilkins, 8 Vt., 54; Helm v. Wilson, 4 Mo., 41; Wooton v. Reed, 2 S. & M. (Miss.), 585; Walker v. Dixon, 2 Stark., 281; Kingdom v. Cox, 5 C. B., 522. *> In addition to cases cited in the last note, see, also, the same doctrine, in Knight v. Dunlop. 4 Barb. (N. Y.), 36; 5 N. Y., 537; Lantry v. Parks, 8 Cow., 63; MoneUv. Bums, 4 Denio, 121; Clark v. Smith, 14 John., 326; Page V. Ott, 5 Den., 406; Reab v. Moore, 19 Jolm., 337, And so when the work is not done according to contract. Pullman v. Coming, 9 N. Y. 93; NeviUe v. Frost, 2 E. D. S. (N. Y.), 62; Smith v. Brady, 17 N. Y., 173; Harris v. Rathbum, 2 Abb. (N. Y.), 326; Glacius v. Black, 50 N. Y., 145. See, also, Witherowv. Witherow, 16 01iio, 238; Allen v. Carles, 6 Ohio St., 505; Faxon v. Mansfield,- 2 Mass., 147; Moses v. Stevens, 2 Pick. 232; Han- son V. Hampton, 32 Mo., 408; Posey v. Garth, 7 Id., 94; Dickson v. Cald- well, 17 Id., 575; Schnerrv. Lemp, 19 Id., 40; Slater v. Emerson, 19 How. (U. S.), 224; Hutchinson v. Wetmore, 2 Cal., 310; Martin v. Schoenberger, 8 Watts. & S. (Pa.), 367; Bryant v. StiUwell, 24 Penn., 314; Thayer v. Wadsworth, 19 Pick., 349; Davis v. Maxwell, 12 Met. (Mass.), 286; Rice v. Dwight Man. Co., 2 Cush. (Mass.), 80; Miller v. Goddard, 34 Me., 102. PEESONAL PEOPEETY. 255 The New Departure. authorities of great respectability and weight, have adopted a more just and equitable one; and while they do not change the original contract, or make a new one for the parties, imply a new contract from the circumstances and furuish an adequate remedy." Tlie leading English case on this new departure from the original rule, is Oxendale v. Wetherell, which was an action of indebitatus assumpsit, to recover the price of 130 bushels of wheat sold and delivered by the plaintiff to the defendant, under a contract to deliver 250 bushels at 8 shillings per bushel. It was contended that the plaintiff had not fully performed his part of the contract, and was not therefore entitled to recover anything. But Lord Tenterden said: " If the rule contended for were to prevail, it would follow, that if there had been a contract to deliver 250 bushels of wheat, and 249 liad been delivered to and retained by the defendant, the vendor could never recover for the 249 bushels, because he had not delivered the whole." And Bagley, J., said: "The defendant having retained the 130 bushels, after the time for completing the contract liad expired, was bound by law to pay for the same." And Park, J., said: "While there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, within a specified time, and the seller delivers a part, he cannot, before the expiration of the time, bring an action to recover the price of the part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered, after the seller has failed to perform his contract, the latter may recover the value of the goods which he has so delivered."" The same doctrine has, in England, been fre- quently recognized in other cases." 4° 2 Parsons on Con., 35. 4' Oxendale v. WethereU, 9 B. & C, 386. *» Read v. Rann, 10 B. & C, 441; Shipton v. Casson, 5 Id., 378; Cooke v. Munstone, 4 B. & P., ^51. 256 THE LAW OF DAMAGES. Warranty and Fraudulent Representation. § 271. In this country there have recently been numerous recognitions of this doctrine. And the tendency of modern decisions seems to be in its favor, as based on principles of justice and equity, not only in cases of a failure to deliver property, but of failure fully to perform contracts for per- sonal services, or to manufacture, repair, or construct any specific article or building, or do a certain specific piece of work, or to perforin any specific act." § 272. Warranty and Fraudulent Representation.— It may be aflBrmed as a general, if not the universal rule, that the measure of damages for a fraudulent representation, or on a breach of warranty, as to the kind or quality of property sold, is the difference between the actual value of the property and its value as represented or warranted.** To this measure, however, there is frequently added such incidental losses to the plaintiff as naturally and actually result from the fraud or breach of warranty. 43 Home V. Batchelder, 41 N. H., 86; Bradley v. King, 44 lU.. 339. If there is no time fixed for the payment, the inference is that payment is to be made on delivery. Metz v. Albrecht, 52 111., 491. See, also, Cox v. Way, 3 Blackf. (Ind.), 143; Lamb v. BrolasM, 33 Mo., 51; Marsh v. Richards, 29 Id., 99; Bailey v. Woods, 17 N. H., 367; Davis v. Burrington, 30 Id., 517; Page V. Marsh, 36 Id., 309; Clough v. Clough, 26 Id., 27; Lee v. Ashbrook, 14 Mo,. 378; Koeltz v. Bleekman, 46 Id., 320; Fishell v. Winans, 38 Barb., 228; Leavenworth v. Parker, 52 Barb. (N. Y.), 132. The reasons in support of this rule are particularly appUcable to cases of contracts, for services or material to be furnished, where this is a part performance. See, post, § 327, et seq. 44 Durst v. Burton, 47 N. Y., 167; Rawley v. Woodruff, 2 Lans., 419; Wells v. Selwood, 61 Barb. (N. Y.), 238 (1872); Edwards v. CoUson, 5 Lans. (N. Y.), 324 (1871); Memmack Man. Co. v. Quintard, 107 Mass., 127; Prink v. Tatman, 36 Ind., 259; Lacy v. Straughan, 11 la., 258; Likes v. Baer, 8 la., 368; Street v. Chapman. 29 Ind., 142; Conor v. Dempsey, 49 N. Y., 665; Tuttle V. Brown, 98 Mass., 205; Poster v. Rogers, 27 Ala., 602; Sharon v. Mosher, 17 Barb., 518; Carr v. Moore, 41 N. H., 131; Page v. Parker, 40 Id., 47; Fisk V. Hicks, 31 Id., 538; Page v. Parker, 43 Id., 363; Clare v. Maynard, 7 Carr. & P., 741. And it makes no difference if the actual value of the property is more than the price paid; McAlpine v. Lee, 12 Conn., 129. See, also, Dingle v. Hare, 7 C. B. N. S., 145; 6 Jur. N. S., 679; 29 L. J. C. P., 148; 1 L. T. N. S., 38. PERSONAL PROPERTY. 257 Warranty and Fraudulent Kepresentation. Thus, in an action for the breach of warranty of the sound- ness of a horse, where expenses had been incurred in conse- quence of the unsoundness, it was held, that the measure of damages was not only the diflference between the actual value of the animal and its value if it had been sound, but the rea- sonable expenses incurred by the plaintiff in consequence of the unsoundness." So, in an action against a manufacturer for a breach of war- ranty of a contract to construct in a proper manner and deliver two steam boilers, repairs being necessary, it was held, that the necessary expense of repairing them, the loss of time while so engaged, and the increased quantity of fuel necessa- rily consumed to generate steam, owing to defects in the same covered by the warranty, were natural and proximate results of the failure, and proper elements of damages which the plaintiff might recover." But, in Georgia, the measure of damages for a breach of warranty was held to be the difference between the price paid and the real value of the article at the time and place of the sale, together with such consequential damages, if any, as came within the rule, excluding indirect and speculative dam- ages." In an action for fraud in the sale of diseased sheep, where there was a warranty of soundness, it was held, that the pur- chaser could either rescind the contract, and, on a return of the property, recover back the price paid, or retain the same and recover damages; and that these damages should not only embrace the difference between the value of sound sheep and the sheep received, but also the loss resulting from the com- munication of the disease to other sheep of the plaintiff, « Murray v. Meredith, 25 Ark., 164. 46 Phelan v. Andrews, 52 111., 486 (1869). » Clark V. Neufville, 46 Geo. 261 (1872). 17 258 THE LAW OF DAMAGES. Warranty and Fraudulent Representation. with which, without the fault of the plaintiff, they were mingled."* § 273- So, in Vermont, in an action for a breach of war- ranty of the soundness of an animal, it was held proper to allow, in addition to the ordinary damages, reasonable expenses incurred in taking care of and trying to cure the animal."' And, in England, in a similar action, it was held that the expenses of keeping the animal for such a reasonable time as was necessary to effect a sale at the best advantage, and the expenses of selling, were proper items to allow as damages."" And in Wisconsin, in an action for a breach of warranty of an article, where the consideration given for the warranted article consisted of another article, exchanged for it, evidence of the value of the exchanged article was held proper, as tend- ing to show the value of the article warranted, if it had cor- responded with the warranty." So, in Massachusetts, it is held that where there has been a sale with warranty, and a re-sale of the property by the ven- dee with a similar warranty, the sum paid on a judgment obtained on said latter warranty, is prima facie evidence of the amount he can recover of his vendor. And, for the pur- pose of determining the value of the property, the jury may 48 Marsli V. Webber, 16 Minn., 418 (1871). See, also, Jetferey v. Bigelow, 13 Wend., 518; Slierrod v. Langdon, 21 la., 518. So, in Texas, if the vendee sustains additional injury whicli is the immediate consequence of the breach of warranty, or a material incident thereto, he may recover such damages in addition to the difference in value. Wintz v. Morrison, 17 Tex., 372. See, also, RandaU v. Raper, 1 E. B. & E., 84; 4 Jur. N. S., 662; 27 L. J. Q. B., 266; Mullett v. Mason, 1 L. R. C. P., 559; 12 Jur. N. S., 547; 35 L. J. C. P., 299; 14 W. R., 898; 14 L. T. N. S., 558; Rose v. Wallace, 11 Ind., 112; Paris V. Lewis, 2 B. Mon., 375. * Pinney v. Andrews, 41 Vt., 631. 5° Clare v. Maynard, 7 C. & P., 741. See, also, Ellis v. Chinnock, 7 C. & P., 169; Chesterman v. Lamb, 4 Nev. & M., 195; Sedg. on Dam., 289. s' Chapline v. Warner, 23 Wis., 448. See, also, Fisk v. Hicks, 31 N. H., 535. PEESONAL PROPERTY. 259 Warranty and Fraudulent Representation. consider the price for which it sold.*^ And, in an action for a breach of warranty of the soundness of a slave, the reasonable medical and other expenses sustained, by reason of the unsoundness, were held properly included as damages/^ And such damages are allowed in Alabama, with interest from the time of the payment of the price/^ ]^or does the right of recovery for medical attendance and care depend upon the fact of the payment of the amount of expenses thus incurred." § 274. So in Texas, in an action for fraudulent represen- tations of the soundness of horses sold to plaintiff, it was held that the defendant was responsible not only for the value of the horses that died by reason of the unsoundness but for the difference in value between the living horses and the price paid for them, with interest on said sums from the date of sale, and in addition thereto, for any injury directly resulting from the breach of warranty, such as disease imparted to other animals without the fault of the vendee, and the value of the care and expense of the buyer in preserving the herd.^*' And the same doctrine has been held in Indiana." And in an action for the breach of a contract to construct and set up on a steamboat, within a specified time, engines of a certain quality and power, and the engines were not delivered within the time stipulated, and did not comply with the stipulation, as to quality, the damage was held to be, not only the differ- ence between the articles furnished and those contracted for, but in addition thereto, the expenses actually incurred by the plaintiff as a consequence of a breach — and that these dama- sk Reggio V. Braggiotti, 7 Cush., 166. See, also, Foster v. Rogers, 27 Ala., 602. 53 Feaginv. Beasley, 23 Geo. 17. 54 Roberts v. Fleming, 31 Ala., 683. 55 Kelly V. Cunningham, 36 Ala. (N. S.), 78. See, also, Buford v. Gould, 85 Ala. (N. S.), 265. 56 Minty v. Morrison, 17 Tex., 372. If the contract is rescinded the dama- ges are the money paid and interest. Id. 57 Rose V. Wallace, 11 Ind., 112. 260 THE LAW OF DAMAGES. "WaiTanly and Fraudulent Representation. ges properly included the wages of the officers and crew on the steamboat, while they remained idle in consequence of the delay of the defendant to furnish the machinery, and such farther time as was consumed in testing the machinery fur- nished, and the exj)ense of repairing, and procuring other machinery in its stead, to which interest might also be added/* In Connecticut, barreled pork was sold at the price of pork well packed and in good barrels, with a warranty that the barrels would not leak. After the purchase the barrels were found to leak, and thereupon the plaintiff re-filled the barrels with new brine, thereby expecting in good faith to save the pork, but the barrels continuing to leak, a portion of the pork was either spoiled or injured to such an extent that the loss exceeded the amount of the balance due on the price of the same. The vendor was not notified of the leaking, nor did the vendee offer to return the pork or re-pack it in new barrels, as it appeared it was customary and necessary to do in such cases. Both parties were free from fraud. In an action for the unpaid balance of the purchase money, it was held, that the vendee was entitled to no reduction on account of the loss of the pork, but only what it would have cost to procure new and tight barrels and the expenses of re-packing the same.^' This might well so be held, on the ground of a familiar principle of law, which we have already fully considered, namely: that the wrongdoer is not responsible for such inju- ries as might have been avoided by the injured party with reasonable expense and care.^" § 275. In Alabama where a slave was sold with warranty of soundness, and a short time after the sale he received a gunshot wound from which he died; and it appeared that the wound proved fatal in consequence of a disease existing at 58 Fisk V. Tank, 12 Wis., 276. i9 Hitchcock V. Hunt, 28 Conn., 343. See, also, Ferris v. Comstock, 33 Conn., 513. *° See, ante; § 126, et seg. PERSONAL PEOPERTY. 261 Liability for more Damages in Certain Cases. the time of the warranty, and that but for such disease he would have recovered ; it was held that the vendor was liable for the difference in the value of the slave at the time of the sale, as warranted, and as he was in fact, and refused to allow as damages the full value of the slave, or for a loss caused by the disease and wound combined." § 276. And where a vendee of a chattel with warranty, has sold the same with a like warranty, and a judgment has been recovered against the vendee for a breach of the same, and he has been compelled to pay taxable costs in the suit, this is at least j^'rima facie evidence of the amount which he should recover; and he may recover the same as damages in a suit against his vendor, provided he gave notice to the vendor of the action against himself. But he cannot recover counsel fees." § 277. Liability for More Damages in Certain Cases. — The liability in certain cases, for more extended losses than the mere difference between the value of the article as it is with its defects, and what its value would be if as war- ranted, may be illustrated by numerous decisions. Thus, where goods are ordered for a particular purpose known to the seller, there is an implied warranty that they are, or will be reasonably fit and suitable for that purpose, and the vendee may frequently recover such loss as he has sustained by the breach of warranty in this respect, and which was, or may be reasonably supposed to have been, contemplated by the parties, as a result of the breach, or in case of fraud such 6' Marshall v. Gantt, 15 Ala., 682. «2 Regio V. Braggiotti, 7 Cush., 166; Lewis v. Peake, 7 Taunt., 153; "Wright V. Chamberlain, 7 Scott, 598; PenneU v. Woodbum, 7 Car. & P., 117; Mar- lattv. Clary, 20 Ark., 251; Coolidge v. Brigham, 5 Met. (Mass.), 68, which was an action for the breach of warranty of the genuineness of a signature to a note sold to plaintiff, where same doctrine was held. 262 THE LAW OF DAMAGES. Liability for more Damages in Certain Cases. damages as directly and naturally result from the fraud or breach/^ § 278. In the English Court of Queen's Bench, in an action on a warranty of oxen, which had the rinderpest at the time of the sale, it appeared that the plaintiff had told the defend- ant that he intended to put them with his other stock, and would not take them if they were afflicted with that disease, on which the defendant gave the verbal warranty that they were free from that disease. The oxen were placed with the plaintifi''sothercattle, nine of which took the disease and in consequence died. The court held the defendant liable, not only for the value of the oxen but also for the nine other cattle, on the principle laid down in Hadley v. Baxendale.^* So, where the defendant had sold the plaintiff hay on which white lead had been accidentally spilled. The defendant sup- posed he had removed all the hay in which there was lead, and under this wrong impression sold the hay to plaintiff whose cow died from the eating of it. Here was an implied warranty that the hay was suitable for the purpose for which it was purchased; and it was held by the court, that the defendant was liable in damages for the value of the cow." So, where the plaintiff contracted for the purchase of cer- tain specified bales of manilla hemp to arrive. The shipping papers of the hemp were delivered and the price paid. The bales arrived in a damaged condition. It was held that the 63 Passenger v. Thorbum, 35 Barb. (N. Y.), 17; 34 N. Y., 634; Jones v. Bright, 5 Bing., 533; Olivant v. Bayley, 5 Q. B., 288; Getty v. Rountree, 2 Chand. (Wis.), 28; Bird v. Mayer, 8 Wis., 362; Beals v. Olmstead, 24 Vt., 114; Overton v. Phelan, 2 Head (Tenn.), 445; Brown v. Edgerton, 2 Man. & G., 279. Story on Sales, 454; Scranton v. Tilley, 16 Tex., 183. See, also, in support of last proposition, ante, § 272, et seq. 64Knowles v. Nunns, 14 L. T., N. S., 592, Q. B. See, also, MuUett v. Mason, 1 L. R., C. P., 559; 12 Jur., N. S., 547; 35 L. J., C. P., 299; 14 W. R., 898; 14 L. T., N. S., 558. 65 French v. Vining, 102 Mass., 132. See, also, Bradley v. Rea, 14 AUen (Mass.), 20. PEESONAL PKOPEETT. 263 Liability for more Damages in Certain Cases. contract implied that the heinp should be in a merchantable condition; that as the buyer could not determine its quality by a personal inspection, he could have no judgment about the same ; that the doctrine of implied warranty was applicable ; and that the measure of damages against the vendor was the difference in value between what the hemp was worth when it arrived, and what it would have been worth if it had been shipped in the state in which it ought to have been shipped."' § 279. But where coal dust was warranted to contain no dust of soft or bituminous coal, and was sold by the vendor with knowled^re that it was intended for the manufacture of brick, for which soft coal dust was unfitted, and there was a breach of the warranty, the Court of Appeals of Kew York, held, that the measure of damages was not necessarily limited to the diiference in value of the coal as warranted and its actual value, but would extend to loss arising from its want of fitness for the, purposes for which it was warranted, and the losses sustained by the vendee by its use in the manufactures for which it was purchased." So, v%'here cabbage seed was sold with a warranty that it would produce Bristol cabbages, and there was a breach of the warranty; it was held, that the measure of damages, was the value of the crop such as warranted, less the expense of raising the crop and the actual value of the crop, raised from the seed sold."' The same doctrine was recognized in Wis- consin, where the lessor of land having covenanted to supply seed, and the seed having proved inferior, there was a partial failure of the crop. The court held, that the lessor was bound to furnish good seed, and that the measure of damages for the breach of the contract, was the difference in value between a ^ Jones V. Just. 9 B. & S. 141; 3 L. R. Q. B., 197; 37 L. J. Q. B., 18; 18 L. T. (N. S.), 208. «7 Milbum V. Belloni, 39 N. T., 53; reversing, 34 Barb., 607. 68 Passinger v. Thorburn, 34 N. Y., 634, affirming, 35 Barb., 17. 264 THE LAW OF DAMAGES. Liability for more Damages in Certain Cases. crop which good seed would have produced, and that which was produced bj the seed furnished/' But in Connecticut in an action for a breach of warranty on the sale of seed, that it was "fresh and warranted to grow," it was held, that the measure of damages was the cost of the seed, the value of the labor in preparing the ground for it, the value of the labor in planting it, and the interest on the several amounts, less the general benefit of the labor to the land." And where there was a sale of wool to be made into hats, with a warranty that it contained no cotton, it was held, that although the vendor was aware of the purpose of the vendee in purchasing, and that the wool was unfit to make into hats, still, the express warranty, excluded the implied one that it was fit for the manufacture of hats, and the vendor was held not liable for damages in that respect, but only for the differ- ence between the value of the wool in the market, as it was, and what it would have been worth if it had contained no cotton, with interest on that diflerence." § 280. And in Massachusetts, where the defendant sold the plaintiff shares of stock of an express company, with a warranty that they would be " worth $700, market value, within one year," and the highest market value during the year was $500; and the value of the stock at the end of the year, when the plaintiff sold it, was only $330; it was held, that the measure of damages was the difference between the $700, and the highest market value during the year." «9 Flick V. Wetherbee, 20 Wis., 392. See, also, Park v. Norris, Axe & Tool Co., 60 Bai-b., 140; Page v. Pavey, 34 Eng. Com. L., 628. 7° Ferris v. Comstock, 33 Conn., 513. 7' Prentice v. Dike, 6 Duer (N. Y.), 220. This case seems to oveiTule the case of Milbum v. Belloni, supra, and is inconsistent with the current of authorities above cited. T Woodward v. Powers, 105 Mass., 108. PEESONAL PKOPERTY. 265 Price Paid— Former Doctrine. § 281. Price Paid— Former Doctrine.— A doctrine formerly held, was that on a breach of .warranty of quality, the price paid should be considered the actual value of the prop- erty sold, and that the measure of damages was the difference between the price paid or contracted to be paid, and the actual value of the property with the defects." And this rule still prevails in some states, as we shall hereafter notice. But the measure of damages where the property has not been returned, is generally held to be the difference between its value as it is, with the defect warranted against, and its value as it would have been without the defect, to which difference interest on the amount has sometimes been allowed.'^ In an action in Iowa, for a breach of warranty in the sale of bonds of the City of Memphis, Tennessee, with semi-annual interest coupons attached thereto, the petition alleged that " the defendant agreed that the principal of the bonds was, or should be, guaranteed and provided for by a sinking fund, set aside for that purpose." And it was averred, "that said interest coupons on said bonds as delivered to the plaintiff, were not paid at maturity, and that neither the defendant nor the City of Memphis aforesaid, have provided for the pay- ment of the principal of said bonds, and that neither the " Caswell V. Coare, 1 Taunt., 566; Mayne on Dam., 88. 7* Foster V. Rogers, 27 Ala., 602; Worthy v. Patterson, 20 Id., 172; Lacy v. Strauglian, 11 la., 258; Morse v. Brackett, 98 Mass., 205; Tuttle v. Brown, 4 Gray (Mass.), 457; Stems v. McCullough, 18 Mo., 411; Smith v. Steinkam- per, 16 Mo., 150; Can- v, Moore, 41 N. H., 131; Sharon v. Mosher, 17 Barb. {'S. Y.), 518; Conor v. Dempsey, 49 N. Y., 665; Street v. Chapman, 29 Inch. 142; Fales v. McKeon, 2 HHt. (N. Y.), 53; Whitmore v. South Boston Iron Co., 2 Allen (Mass.), 52; Clare v. Maynard, 6 A. & E., 519; Cox V. Walker, Id., 523; Majme on Dam., 88. But the price paid may some- times be strong, though not conclusive, evidence of the value of the property. Hughton V. Carpenter, 40 Vt., 588; Carey v. Gruman, 4 Hill., 625; Marsh V. Wood. 10 Ala., 806; Thornton v. Thompson, 4 Gratt., 121. And where the article has been re-sold by the purchaser, before the breach of warranty has been discovered, evidence of the price obtained on the re-sale may be proper as a mode of estimating its value as a sound article. Clare v. May- nard, supra; Cox v. Walker, supra. 266 THE LAW OF DAMAGES. Price Paid— Former Doctrine. defendants nor the City of Mempliis have set aside any sink- ing fund, or any fund for the payment therefrom of the interest on said bonds, or whereby the ultimate payment of the principal of said bonds should be paid." Miller, J., in delivering the opinion of the Supreme Court of that State, after deciding that the agreement constituted a warranty, proceeds to the question of the measure of damages in the case, and remarks as follows: "The plaintiff claims as dama- ges the difference between the market value of the bonds, such as were in fact delivered, and the market value of bonds secured by a special fund for their payment, in accordance with defendant's warranty. He says the bonds would, in the market, have been worth one hundred cents on the nominal dollar thereof, if the defendants had kept their agreement good; and the bonds actually delivered are worth only half that sura in the market, and he asks for a judgment for the difference, with interest. While there has been great fluctuations of judicial opin- ion on the question of the measure of damages, in cases of a breach of warranty in the sale of personal property, Mr. Sedgwick states as a result of the cases, that ' the true measure of damages is the difference between the value the thing sold would have had at the time of the sale, if it had been sound or corresponding with the warranty, and its actual value with the defect.' Sedg. on Meas. of Dam.^ 324. See, also, in support of this rule. Van Allen v. 111. Central R. Co.., 7 Bosw., 515; Simpkins v. Low., 49 Barb., 382; Carey v. Gru- man, 4 Hill, 625; Comstock v. Hutchison, 10 Barb., 211; Thornton v. Thompson., 4 Gratt, 121; Woodward v. Thataher, 21Vt., 580; Marshal v. Wood, 16 Ala., 806; Slaughter v. JfcHae, 3 La. An., 455; Borrekins v. Bevan, 3 Eawle, 23; Boherts v. Carter, 28 Barb., 462. There are many other cases holding the same rule, while some of the earlier cases hold the measure of damages to be the difference between the PEESONAL PKOPERTY. 267 Price Paid— Former Doctrine. price paid, or to he paid, and the real value. The rule, as stated by Mr. Sedgwick, and contended for by the plaintiff, has been adopted by this court. In RaJin v. Cummings, 3 Iowa, 583, the defendant pointed out and pretended to sell plaintiff one tract of land, and fraudulently conveyed to him another; and it was held that the measure of damages was the difference between the two pieces of land. In Lncey v. Straug/tan, 11 Iowa, 258, which was an action upon a breach of warranty of the soundness of a horse, the measure of dam- ages was held to be the difference between the value of the horse answering the warranted character, and its value at the sale in the condition in which it really was. Likes v. Baer, 8 Iowa, 368; Gales v. Eeynolds, 13 Id., 1; and Moherly v. Alexander, 19 Id., 162, affirms the rule laid down in Hahnv. Cunnnings, svpraP '^ The opinion in the foregoing case not only shows tliat the doctrine that t\\Q price paid, is disregarded in determining the rule of damages, but also illustrates the general rule of dam- ages in such cases. § 283. So, in ISTew York, in an action for a breach of war- ranty of the soundness of a horse, sold by the defendant to the plaintiff, for $90 ; the breach alleged was a disease of the eyes at the time. The court on the trial ruled that the measure of damages was the difference between the price paid, and the value of the horse with the defect. But the Supreme Court of that state held that this was error. The court say: "The warranty cannot be satisfied except by pay- ing to the vendee such sum as, together with the cash value of the defective article, shall amount to what it would have been worth if the defect had not existed. ■«•*■«■ 'pj^g rule undoubtedly is that the agreed price is strong evidence of the actual value; and this should never be departed from 78 CaUanan v. Brown & Co., 31 la., 333. 268 THE LAW OF DAMAGES. Price Paid Governs in Illinois— Pieasons for General Kule. unless it be clear that such value was more or less than the sum at which the parties fixed it." " § 284. Tlic Price Paid Governs in Illinois.— But in Illinois the courts still adhere to the rule making the measure of damages in such cases, the difference between the price paid, and the value of the property with the defect.'" And the same doctrine prevails in Connecticut,*' and Georgia.*'* § 285. Reasons for the General Rule.— The reason in support of the general rule, namely: that the measure of damages is the difference between the value of the property with the defect, and its value as represented, is, that the par- ties should not be deprived of the benefits of a good bargain, which would sometimes be the case under the other rule, namely: that the measure of damages is the difference between the price paid or contracted to be paid for the prop- erty, and its actual value with the defect warranted against. The argument for the former rule is, that if the vendor secures a large price for property, even as warranted, or the vendee buys the property for much less than its value, as warranted, they should not, in the absence at least of fraud, lose the benefits of a good bargain, by any rule of damages for a breach of the warranty, which they might do under the rule which makes the damages the difference between the price 79 Gary v. Gruman, 4 Hill, 625. See, also, Comstock v. Hutchinson, 10 Barb., 211. 8° Morgan v. Ryerson, 20 111., 343; Crabtree v. Kile, 21 lU., 180. 8' McAlpin V. Lee, 12 Conn., 129; Ferris v. Comstock, 33 M., 513. 8» Clark V. NeufviUe, 46 Geo., 261. But see, Hook v. Stovall, 26 Id., 704. In case of the breach of the warranty of title, which we shall more fully consider hereafter, the measure of damages is the same as on a breach of •warranty of title to real property, namely: the price paid with interest. Burtv. Dewey, 31 Barb., 540; Ware v. Weathnall, 2 McC. (S. C), 413; Arthur V. Moss, 1 Oreg., 193; Auding v. Perkins, 29 Tex., 348; Scranton v. Tilley, 16 Id., 183. But tliis rule is held not to apply where there has been an exchange of property, and the price of the articles exchanged has not been fixed. In such a case in lUinois the general rule prevails. Walace v. Wren, 32 lU., 146. PERSONAL PROPERTY. 269 General Exception to Rule. paid or received for the property and its actual value as war- ranted. Thus, if a vendor warrants a horse sound which is unsound, and for which he receives $150, and the value of the horse if sound, is onlj $100, and its actual value, with the defect, is only $75; here the vendor has received $50 more than the horse would be worth if sound. And if the measure of dam- ages is the difference between the actual value and the value as warranted, the damages would be only be $25. But if he must pay the difference between the price received and the actual value, the damages would be $75; and the vendor would lose all benefits of his good bargain. On the other hand, if the value of the horse as warranted, is $150, but the vendee pays for it only $1C0; and its actual value is $75; if the measure of damages is the difference between the actual value and the value as warranted, the vendee should recover $75 ; but if it is the difference between the price paid and the actual value, he could recover only $25; and he would thereby lose the benefits of his good bargain. The reason for the general rule under all circumstances would seem to be the best in principle, and is sustained by the best arguments, as well as by a preponderance of authori- ties. § 28G. General Exception to the Rule.— There is also a distinction made between ordinary wares and merchandise, and paintings and statuary; and in relation to the latter, mar- ket values do not govern. In the case of paintings and statu- ary, in esse, or manufactured to order, and probably articles of virtu generally, a distinction may well be made, on the ground that frequently great intrinsic value and merit may exist where there could not be said to be a market value, and no method of determining the market value, as there would be in the case of ordinary merchandise. In such cases it has 270 THE LAW OF DAMAGES. Fraud— Eescission. been held proper to treat the price paid as its true vahie and the measure of damages.'* And when property has been exchanged and it does not appear that tlie money vahie of the article warranted, or the article given in exchange, was settled upon by the parties at the time of the exchange, evidence of the value of the exchanged goods may be given, to show the value of the arti- cle as warranted. ^^ § 287. Fraud— Rescission. — In order to rescind a con- tract of sale on the ground of fraud, it must appear that the party rescinding would not have made the contract but for the fraud, or would not have made it in the same way if the fraud had not been practiced. '* Fraud in sales usually consists in misrepresentation or con- cealment of a material fact, and as a defense to an action for the price of the property sold, or to enable a plaintiff to recover in an action for the fraud, it must appear that he was influ- enced by the fraud," and that he was not negligent, but exer- cised reasonable vigilance in relation to the matter, for it is the vigilant and not the careless that the law protects; vigi- lantibus^ non dormlentibas, jura suhveniunt.^^ But the maxim has no application to a case where the vendor resorts to tricks and artifice to divert the purchaser from the facts and the line of inquiry open to him, and which he might have followed but for such artifice, and have thereupon refused to purchase.'" 84 Gordon v. Norris, 49 N. H., 376 (1870). ^s Chaplin v. Warner, 23 Wis., 448. See, also, ante, note 74. ^2 Pars, on Con., 677, et seq, and 780, et seq; Courtney v. Carr, 11 la., 295. 8? McAleer v. Horsey, 35 Md., 439; Brown v. Leach, 107 Mass., 364 (1871). 88 Webb V. Odell, 49 N. Y., 583; Mansfield v. Watson, 2 la., Ill; Holmes V. Clark, 10 la., 423; Hallam v. Todhunter, 24 la., 166. 8? Roseman v. Canovan, 43 Cal., 110 (1872). See, also, Cassell v. Herron, 5 Pa. L. J. Rep., 250, which was the case of the sale of a horse with a known PEESONAL PROPERTY. 271 Damages in Cases of. § 288. Damages in Case of— The measure of damages in case of fraudulent representations to the purchaser, of the quahtj or quantity of the property, where there is no negli- gence on the part of the purchaser, is generally the same as in case of a breach of warranty, namely: the difference between the actual value of the property with the defect, and its value as it was represented to be at the time of the sale; the price paid, being considered strong, but not conclusive evi- dence of its value as represented." But where the fraud and deceit was willful and character- ized by gross malice, the measure of damages may be extended to cover all such consequential losses as naturally flow from the wrong, and may, in aggravated cases, be even exemplary.^" Thus, where a dealer in cattle sold a cow, fraudulently rep- resenting her as free from infectious disease, knowing that she was not, and the plaintiff placed her with other cattle which caught the disease and died, the plaintiff, in an action for the fraud, was held entitled to recover as damages, not only the loss on the cow sold, but the value of all the cows that died." And in a similar case in Iowa, where the defendant sold the plaintiff a lot of sheep, falsely representing them to be free from "scab " or "foot rot," and they were placed with other defect— "glanders," which the defendant rendered latent by the use of pow- ders and concealed it thereby from plaintiff ; held, to avoid the contract, or any note given for the purcKase money. See, also, McFadden v. Robinson, 35 Ind., 24. 9' Page V. Parker, 40 N. H., 47; 43 Id., 363; Morse v. Hutchins, 102 Mass., 439; Carr v. Moore, 41 N. H.. 131; Warren v. Cole, 15 Mich., 265; Hahn V. Cummings, 3 la,, 583; Wilcox v. The Iowa Wesleyan University 32 la., 367; Bondurant v. Crawford, 22 la., 40; Mayne on Dam., 88. 9^ Thompson v. Burgey, 36 Pa. St., 403; Stetson v. Croskey, 52 Pa. St., 230; Nye v. Merriman, 35 Vt., 438; Likes v. Baer, 8 la., 368; McAvoy v. Wright, 25 Ind., 22. 93 MuUett V. Mason, 1 Law R. (C. P.), 559; 14 L. T. N. S., 558; 12 Jur. N. S., 547 See, also, Knowles v. Nunn, 14 Law T. R., N. S., 592; 1 L. R. C. P., 559; 12 Jur. N. S., 547; 35 L. J. C. P., 299; Paris v. Lewis, 2 B. Mon. (Ky.), 275; Bradley v. Rea, 14 AUen, 20; Hill v. Balls, 2 H. & N., 299; 27 L. J. Ex., 45. 272 THE LAW OF DAMAGES. Damages in Cases of. sheep of the plaintiff's, whereby they became diseased, the damage thereby sustained being in consequence of the fraud- ulent acts of the defendants, they were held liable for the same." And the same doctrine has been held in a similar case in Yermont; the defendant being presumed to anticipate that the animals he sells will be placed with others, and that such losses are not only a natural consequence of the wrong- ful act, but may well be presumed to have been contemplated by the parties as a result of the breach of warranty or of the fraudulent representation." And so in Texas, in Mentz v. Morrison^ where the defend- ant sold to plaintiff a lot of horses, which he knew to be infected with a contagious disease, and concealed the same from the plaintiff, who gave a fair price for sound horses; it was held, that the plaintiff might elect to rescind the contract, in which case he could recover the price paid; but, that in case he did not so elect, he was entitled to recover the value of the horses that died and the difference in value of the sur- viving horses and the price paid for them, with interest on these sums from the time of sale; also the value of his time spent in the care and preservation of the horses and the expenses incurred therein. The court further held the defendant liable for the injury to, and loss of, the other horses, to which the disease was communicated from those purchased, without the fault of the vendee." § 290. And where there are several false representations, the rule of damages is the difference between the actual value of the property, and its value estimated by such of the rep- resentations as were most falsely and fraudulently made; or, in ^* Sherrod v. Langdon, 21 la., 518. 5s Packard v. Slack, 32 Vt., 9. See, also, Barnum v. Vandusen, 16 Conn., 200; Jeffrey v. Bigelow, 13 Wend., 518; Crater v. Binninger, 33 N. J. L. (4 Vr.), 513. 97 Mentz V, Morrison, 17 Tex., 372. See, also, Wheeler v. RandaU, 48 111., 182. PERSONAL PROPERTY. 273 Eight to Rescind in Case of Breaeli of Warranty— Damages. other words, the vendee has tlie benefit of the highest rate of damages, to w^hich tlie most favorable warranty or the most fraudulent acts of the defendant may entitle him. "' But it is evident that in an action to recover back the price paid, on the ground of fraud or for the deceit, where the plaintiff retains the property purchased, and it has any value, such value should be allowed the defendant.*' It is difficult to present the law of damages fully in cases of fraud in the sale of personal property, without some consid- eration of the law relating to the general subject of fraud. But a full presentation of it would carry us beyond the proper limits and scope of a treatise of this kind. We shall hereafter refer to the subject in its connection with covenants and contracts, relating to the sale of lands. The reader is also referred to the cases cited in treating of the extended liability of parties in cases of torts and aggravated wrongs."" §291. In conclusion of the subject we would say, that allowance for damages of this character, is frequently made by way of setoff or counter-claim, under the modern practice, in an action by the vendor for the price. The same principles are applicable in such cases in the measure of the defendant's damages, and he may setoff the same against the amount due on the consideration." § 292. Of the Right to Rescind in Case of Breach of Warranty — Damages. — Some diversity of opinion exists in reference to the right to rescind a contract of sale of ^ Page V. Parker, 43 N. H., 363. See, also, in case of fraudulent war- ranty of soundness of a slave. Johnson v. Johnson, 2 La. An., 67; Petterson V. Bum, 3 Id., 655. 99 McLaren v. Long. 25 Geo., 708. '°° See, Ante, § 69, et seq. '° Jackson v. Jackson, 47 Geo., 99; Capuro v. Builders' Ins. Co., 39 Cal., 123; FisheU v. Winans, 38 Barb. (N. Y.), 228; Gibson v. Marquis, 29 Ala., 668; Perley v. Balch, 23 Pick., 284. 18 274 THE LAW OF DAMAGES. Eight to Eescind in Case of Breach of Warranty— Damages. personal property where the sale is unconditional but there is a breach of an express warranty of the quality of the property. The right so to do, even in the absence of fraud, has been maintained in Massachusetts," Maryland,'^ Iowa," and other states. But the general doctrine is that a simple breach of war- ranty gives the vendee no right to rescind. Where, however, fraud accompanies the warranty, it is generally, if not uni- versally, held to warrant a rescission of the sale and a recovery of the price paid by the vendee." In Dorr v. J^isher, supra, Shaw, C. J., said: "A warranty is not strictly a condition, for it neither suspends nor defeats the completion of the sale, or the vesting of the thing sold in the vendee, nor the right to the purchase money in the ven- dor. And notwithstanding such warranty, or any breach of it, the vendee may hold the goods, and have a remedy for his damages by action. But to avoid circuity of action, a war- ranty may be treated as a condition subsequent, at the election of the vendee who may, upon a breach thereof, rescind the contract and recover back the amount of his purchase money as in cases of fraud." " Perley v. Balch, 23 Pick., 284; Conner v. Henderson, 15 Mass., 319; Kimble v. Cunningham, 4 Mass., 502; Dorr v. Fisher, 1 Cush., 271; Bartlett V. Drake, 100 Mass., 176; Bryant v. Isburgh, 13 Gray, 607 (1859). '^ Taymon v. Mitchell, 1 Md. Ch., 496; Hyatt v. Boyle, 5 GiU & J., 121; FrankUn v. Long, 7 Id., 407; Rutter v. Blake, 2 Harr. & J., 353. '3 Rogers v. Hanson, 35 la., 283. •4 Thornton v. Wynn, 12 Wheat., 193; Withers v. Greene, 9 How. (U. S.), 213; Lyon v. Betram, 20 Id., 149; Voorhees v. Earl, 2 Hill, 288; Gary v. Gruman, 4 Id., 626; Muller v. Eno, 14 N. Y., 601; Lightburn v. Cooper, 1 Dana., 273; Ease v. John, 10 Watts, 109; Allen v. Anderson, 3 Humph., 581; West V. Cutting, 19 Vt., 536; Mayor v. Dwinell, 29 Id , 298; Matteson V. Holt, 45 Id., 336; Hoodly v. House. 32 Id., 180; Milton v. Rowland, 11 Ala, 732; Scranton v. Mechanics' Trading Co., 37 Cal., 130; Marston v. Knight 29 Me., 341; Cutler v. Gilbreth, 53 Id., 176; Campbell v. Fleimng, 1 Adol. & E., 40; Kellogg v. Denslow, 14 Conn., 411; Towers v. Barrett, 1 Term., 133; Pateshall v. Tranter, 4 Nev. & Man., 649. PEESOXAL PKOPERTY. 275 Right to Rescind in Case of Breach of 'Warranty— Damages. § 293. In such cases the purchaser has a choice of two remedies: he may rescind the contract and return the article purchased, and recover the price paid, or may stand by the bargain and recover on the warranty the damages he may have sustained, which would be the difference between the value of the property as it is, with the defects, and as it should have been according to the warranty," to whidi interest is sometimes added.'* § 294. Fraud often accompanies a warranty of quality on the sale of property, as where there is a knowledge on the part of the vendor of defects covered by the warranty." And where fraud authorizes a rescission of a sale, but a simple war- ranty does not, if the warranty is also fraudulently made, and with knowledge of defects warranted against, then the vendee may rescind, as well as where there is an exjDress stipulation to that effect, and recover the price paid.'' § 295. The right of the vendee to rescind for a breach of warranty of quality, was recentlv affirmed by the Supreme Court of Iowa, after a full examination of the authorities.'* Day, J., in a well reasoned opinion in the case, says: "The 's See authorities cited, supra, note; also, Callanan v. Brown, 31 la., 333; Sharon v. Mosher, 17 Barb. (iN". Y.). 518; Reggio v. Braggiotti, 7 Cush. (Mass.), 166; Tuttle v. Brown, 4 Gray (Mass.), 457; Morse v. Brackett, 98 Mass., 205; Street v. Chapman, 29 IncL, 142; Foster v. Rogers, 27 Ala., 602; Worthy v. Patterson, 20 Id., 172; Stearns v. McCullough, 18 Mo., 411; Andrea V. Steinkampler, 16 Mo., 150; Verdier v. Trowell, 6 Rich. (S. C), L., 166; Lane v. Lantz, 27 Md., 211; Fielder y. Starkin, 1 H. Black., 17; Kellogg V. Denslow, 14 Conn.. 411; Warring v. Mason, 18 Wend., 425; Thompson v. Botts, 8 Mo., 710; Bon-ekins v. Bevan, 3 Rawle, 23; Carter v. Stennel 10 B. Mon., 250; Milton v. Rowland, 11 Ala., 7.32; Ferguson v. Oliver, 8 Smeed & M., 332; Franklin v. Long, 7 Gill. & J., 407. '6 Smith V. Cozart, 2 Head. (Tenn.), 526; Fales v. McKeon, 2 Hilt. (N. Y.), 53; Lacy V. Straughan, 11 la., 258: Tuttle v. Brown, 4 Gray (Mass.), 457; Whitmore v. South Boston Iron Co., 2 Allen (Mass.), 52; CaiTV. Moore, 41 N. H., 131; Foster V. Rogers, 27 Ala., 602. '7 Sherrod v. Langdon, 21 la., 518; 2 Kent's Com., 480, et seq. '^ See authorities cited, ante, note 14. '9 Rogers v. Hanson, 85 la., 283 (1872.) 276 THE LAW OF DAMAGES. Right to Rescind in Case of Breach of Warranty— Damages. authorities are irreconcilably in conflict as to the right of a purchaser with warranty, upon a breach of warranty to rescind the contract and recover the purchase price. As a result of the authorities, Parsons states, that the purchaser may return the goods forthwith, and if he does so without unreasonable delay, this will be a rescission of the sale, and he may sue for the price, if he has paid it, or defend against an action for the price, if one be brought by the seller.'" At the same time he concedes that some authorities of great weight, limit his right to return the goods for a breach of warranty to cases of fraud, or where there is an express agreement to that effect between the parties." " And the learned judge, after setting forth the contrary doctrine, as stated by Mr. Story in his work on the Law of Sales,"* and the opinion of Shaw, C. J., in Don v. Fislier^^ and other authorities, in favor of the doctrine, proceeds to say: "The doctrine of the Massachu- setts cases, though perhaps not sustained by the greater number of authorities, is, to our minds, the more reasonable and just. We know of no satisfactory reason why one who desires a good article and is willing to pay a price which will command it, should be required to keep an inferior article at a lesser price. Such a construction of the law substitutes for the party's contract, an agreement which he did not make, and requires him to accept an article which he would not have purchased if he had known of its defects. The true rule, it seems to us, is to give the vendee his option to retain the purchased article and recover the damages sustained, or to restore it within a reasonable time, and recover the price paid." " '°1 Par. on Con., 5 ed., 592. " 1 Pars, on Con., 593. « Story on Sales, § 421. '3 1 Cush. (Mass.), 271. •■» See, also. Page v. Dickerson, 28 Wis., 694, where the purchaser of a patent was induced to purchase it by false representations as to its novelty and value, the purchaser being entirely ignorant of the matter, and the seller PEPwSONAL PKOPERTY. 277 Eight to Kescind in Case of Breach of Warranty— Damages. §296. On this subject Chancellor Kent says: "If the sale is absolute, and the contract remains open and unre- scinded, and without any agreement to rescind, the vendee of the unsound article must resort to his warranty, unless the vendor knew of the unsoundness, and the vendee tendered a return of the article within a reasonable time." '^ It is evident that respectable authorities are ranged on either side of the question. It seems to be generallj^ conceded that fraud in the sale warrants a rescission of the contract, and as we have suggested fraud, is common where there is warranty. For where there is knowledge on the part of the vendor at the time of a sale, that the goods are not as war- ranted by him, there is also fraud; and in such cases at least, it may be said in accordance with the almost uniform decis- ions, that the contract may be rescinded, § 297. The rescission of a contract of course, requires a return or offer to return, of the property, if of any value, forthwith or as soon as the defect is discovered, and that the vendor be placed in statu quo; or the plaintiff must furnish some good and sufficient excuse for not so doing.'" And although notice of the rescission is generally necessary to be given, still it is necessary only when the party rescind- ing has derived some benefit from the contract, and which an expert, and the patent of very little value; it was held, that the purchaser was entitled to a rescission of the contract of sale, and a return of the personal property transferred by him to the defendant in payment, or to the value of such property if the defendant refused to return the same. 's 2 Kent's Com., 480; Thornton v. Wynn, 12 Wheat., 183; Parsons v. Sexton, 4 M. G. «fe S., 899; West v. Cutting, 19 Vt., 536; Freeman v. Chute, 3 Barb., 424. 'sPerley v. Balch, 25 Pick., 283; Connor v. Henderson, 15 Mass., 314 Johnson v. Walker, 25 Ark., 196; EUington v. King, 49 111., 449 (1870) WiUiamson v. Moore, 2 Dis. (Ohio), 30; Lane v. Latiner, 41 Geo., 171 Underwood v West, 52 111., 397; Young v. Stevens, 48 N. H., 133; Dillon v. Anderson, 43 N. Y., 231; Burge v. Cedar Falls R. Co., 30 la., 244, consent of parties to a rescission may be implied, Wheedon v. Fisk, 50 N. H., 125; Janets v. Morton, 44 Mo., 275. 278 THE LAW OF DAMAGES. Failure of Purchaser to Comply— Damages. benefit, as we have seen, he must restore to the other party; and where he cannot do this, but must contine to enjoy some advantaire from the contract he cannot rescind.' § 298. Failure of the Purchaser to Comply— Dam- ages. — Where the contract fixes the price of the article sold and delivered, this settles the question of damages in a suit for the price, and where the price is not fixed by the contract, the amount recoverable w^ould generally be the market value. In an action for damages for the vendee's failure to receive and pay for the goods, the vendor may always, where he has fulfilled on his part and where the value has declined, retain the same, and recover the difi'erence between the market value at the time and place stipulated for delivery, and the contract 23rice.° And when the vendor retains possession of the article, and the vendee refuses to receive it, the vendor is the agent of the vendee, at least he may so elect to consider himself, and may proceed to re-sell the property, or any part thereof which the vendee refuses to receive, and the vendee is charge- able with any difference in price agreed to be paid by him, and the actual price realized on a re-sale, which was fairly conducted, if less than the contract price." And in such cases it has been held, that in order to have this rule apply, the sale should be made in a reasonable time, ' See further on this subject, Ripley v. Hazelton, 3 Daly N. Y., 320; Dall V. Kathman, 23 La. An., 486; Manahan v. Noyes, 52 N. H., 232; Bene- dict V. Bachelder, 24 Mich., 255; Sanborn v. Bachelder 51 N. H., 426; Bruce V. Davenport, 1 Abb. (N. Y.), 233; Gales v. BUss, 43 Vt., 299. ' Hewitt V. Miller, 61 Barb. (N. Y.), 567, (1872); Chapman v. Ingram, 30 Wis., 290; Schnebley v. Shirtcliff, 7 Phil. (Pa.), 236, (1869); Hull v. Pierce, 4 W. Va.. 107, (1870);" McNaught v. Dodson, 49 lU., 446. (1869); Gibbons v. United States, 8 Wall. (U. S.), 269. See, also, Boorman v. Nash, 9 B. & C, 145. And the rule in Vermont is not varied by pa"yment itr advance, Hill v. Smith, 32 Vt., 433: Rider v. Kelly, 32 Id., 268; Copper Co. v. Copper Mining Co., 33 Id., 92. Where the price in such cases has been advanced, this, of course, constitutes an element of damages. 3 Tompkins v. Hass, 2 Pa. St., 74; Pickering v. Bardweil, 21 Wis., 562; Westfall V. Peacock, 63 Barb. (N. Y.), 209, (1872); Hughes' Case, 4 Ct. of CI., 64. PEKSONAL FKOPERTY. 279 Failure of Purchaser to Comply— Damages. and on notice to the vendee. And where the sale is executory onlv, and the title remains in the vendor, in an action against the vendee for his breach of the contract, the measure of dam- afres is the diflerence between the real value and the contract price." This real value, however, would ordinarily be deter- mined by a sale of the property fairly made, and especially if the vendee had notice of the same and an opportunity to purchase. §299. The prevailing rule seems to be that when the vendor has actually taken all the steps necessary to vest the title of goods pnrchased in the vendee, he may sue for the value of the goods, and the rule of damages would be the con- tract price. And that where he is ready and willing to per- form, and oifers to do so, but the vendee refuses to receive the goods, the vendor has his right of action on the contract for his damages, even though the title to the goods is not vested in the vendee. But the damages in such a case would be the actual injury sustained; which, as we have stated, would ordi- narily be the difference between the value of the property, at the time of the refusal, and the price agreed upon." Thus, in a recent action against the vendee for not taking and paying for property according to contract, the court said: "The vendor of personal property in a suit against the vendee for not taking and paying for the property, has his choice of either one of three methods of indemnifying himself: 1. He may store or retain the property for the vendee and sue him for the entire purchase price. 2. He may sell the property, acting for this purpose as the ao-ent of the vendee, and recover the difference between the contract price and the price obtained on such re-sale. 3. He may keep the property as his own, and recover 4 Mallory v. Lord, 29 Barb., 454. 5 Ganson v. Madigan, 13 Wis., 67. On the subject of rescinding contracts of sale, see Story on Sales, § 415, etseq^. 280 THE LAW OF DAMAGES. Failure of Purchaser to Comply— Damages. tlie difference between the market price at time and place of delivery, and the contract price."" But the first proposition above stated has been questioned in a recent case in New Hampshire, And it is there claimed that the rule in such cases is that the vendor can only recover the difference between the contract price of the article sold, and its market value at the time when it should have been received by the defendant.' But in the same case the doctrine of Dustan v. McAndrew^ su])ra^ seems to be indorsed where there is an agreement for the sale of property not in existence at the time of the contract, but is to be manu- factured by the vendor for the vendee in a particular way. In such a case, when the article is made according to the contract and delivered or duly tendered to the vendee, and he declines to receive or pay for it, it was held that the vendor might recov^er as damages the full contract price, although he retained possession of the manufactured article.* § 300. Where the plaintiff, having engaged to build a sulky for the defendantfor $80, manufactured and tendered it to the defendant, who refused to receive or pay for the same, and the plaintiff' sued for the contract price, the court remarked in reference to the measure of damages, as follows: "Where there has been a valid contract of sale, the vendor is entitled to the full price, whether the vendee receive the goods or not. I cannot see why the same principle is not applicable to this case. Here was a valid contract to make and deliver a sulky. The plaintiff performed the contract on his part; the defendant refused the sulky. The j^laintiff ^ Dustan v. McAndrew, 44 N. Y., 72; Ballentine v. Robinson, 46 Pa. St., 177; 3 Pars, on Con., 208-210; Seclg. on Dam., 282; Lewis v. Greicler, 49 Barb.. 606; Pallen v. Le Roy, 30 N. Y., 549. See, also, Story on Sales, §§ 436, 437 and citations. 7 Gordon v. Norris, 49 N. H., 376. But see, Atkinson v. Bell, 8 B. & G., 277. See, also, Story on Sales, § 438, et seq; Benj. on Sales, § 794. ^ Gordon v. Norris, supra. PEKSONAL PROPERTY. 281 Failui'e of Purchaser to Comply— Damages. might, upon notice, have sold the sulkj at auction; and if it sold for less than $S0, the defendant must have paid the bal- ance. The reason given for this rule by Kent, C. J., is, that it would be unreasonable to oblige him to let the article perish on his hands, and run the risk of the insolvency of the buyer. But if, after tender or notice, whichever may be necessary, the vendor chooses to run that risk and permit the article to perish, or as in this case, if he deposits it with a third person for the use of the veadee, he certainly must have a right to do so, and prosecute for the price. Suppose a tailor makes a garment, or a shoemaker a pair of shoes, to order, and performs his part of the contract, is he not entitled to the price of the article furnished? I think he is, and that the plaintiff in this case was entitled to his verdict."* And in Connecticut, in an action to recover the price of l^roperty sold, where it was an ordinary sale of property in esse, it was held, that the measure of damages was the actual amount of injury sustained by the plaintiff in consequence of the non-acceptance and non-payment; and that this was the difference between the price agreed to be paid and its actual value, where the price agreed upon exceeds this value. And that if it is actually worth the price agreed to be paid, the damages should be only nominal. But where the property is worthless in the hands of the vendor, the price agreed to be paid should be allowed as damages.'" In order to give the vendor more complete indemnity in such cases, he should receive the difference between the price agreed upon, and the value of the same on the day on which it was tendered and the vendee was bound to receive and pay for it, and interest, 9 Bement v. Smith, 15 Wend., 493. See, also, Dustan v. McAndrew, 10 Bos. (N. y.), 130; 44 N. Y., 72. " Allen V. Jarvis, 20 Conn., 88; Williams v. Jones, 1 Bush. (Ky.), 621. See, also, Rhodes v. Thwartes, 6 B. & C, 392; EUiott v. Pybus, 10 Bing., 572; Messer v. Bingham, 22 N. H., 117; Pennyman v. Hartshorn, 13 Mass., 87; Maclean v. Dunn, 4 Bing., 722; Story on Sales, § 438. 282 THE LAW OF DAMAGES. Failm-e of Purchaser to Comply— Damages. less the amount of any payments made tliereori." And where a quantity of straw was sold, a portion of which only was taken away by the purchaser, and he subsequently refused to take the remainder, which having become damaged the next spring, the vendor threw into a barnyard to his cattle; it was held that the measure of damages against the vendee for refusing to comply with his contract, was the contract price of the straw, less the value of the remainder of the same to the vendor for the use to which it was applied.'^ But, where the plaintiff agreed to supply to the defendants 3,900 tons of cast-iron chairs, in certain quantities per month, and payments were to be made by the defendants therefor within one month after each monthly delivery, and the defend- ants received a portion of the chairs but refused to accept or receive the balance of the same, and discharged the plaintiff from the further performance of the contract; and it further appeared that the plaintiff had contracted with other parties for the supply of some of the chairs at a price rather above the average price contracted to be paid to him by the defend- ants, and that he was obliged to pay 500^. to get released from his sub-contract; and it also appeared that the plaintiff had made arrangements with iron founders for the supply of iron, and had built a foundry for the manufacture of the chairs ; it was held, that these losses and expenses were proper elements of damages, and that they should be taken into consideration by the jury in assessing tliem.'^ " Danav. Fielder, 12 N. Y. (2 Kern.), 40; Haskell v. McHenry, 4 Cal.,411; Whetmore v. Coats, 14 Mo., 9. " Chamberlain v. Farr, 23 Vt., 265. See, also, Graham v. Jackson, 14 East., 498; Orr v. Bigelow, 14 N. Y., 556; Ballentine v. Robinson, 46 Penn., 177. See, also, rule in various cases, Munson v. Price, 4 East., 147; Button V. Solomonson, 3 Bos. & Pull., 582; Hoskins v. Duperoy, 9 East., 498; Hutchinson v. Reid, 3 Camp., 329; Loring v. Gm-ney, 5 Pick., 16. '3 Cort V. Ambergate R. Co., 17, Q. B., 127; 15 Jur., 877; 20 L. J. Q. B., 460. PEESOISTAL PKOPEETT. 283 "Warranty of Title -Personal Property— Damages on Failure of Title. § 301. AVarranty of Title— Personal Property.— Chancellor Kent, on the subject of warranty of title, observes: " In every sale of a chattel, if the possession at the time be in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril. But if the seller has possession of the article, and he sells it as his own and not as agent of another, and for a fair price, he is understood to warrant the title. A fair price implies a warranty of title, and the purchaser may have satisfaction from the seller, if he sells the goods as his own and the title proves deficient." " Mr. Sedgwick affirms, that the old English authorities sus- tain the doctrine that there is, in a contract of sale, no more implied warranty of title than of quality." But he admits that, " according to the Koman law, and in France and in Scotland, and generally in the United States, there is always an implied contract that the vendor has a right to dispose of the subject which he sells." '° § 302. Measure of Damages on Failure of Title.— It would appear reasonable that the measure of damages on the failure of title, where the price has been paid, should be at least the value of the article. But even where this rule is recognized, in case of a failure to deliver property sold, the measure of damages on the failure of title is not always its value. On the contrary, the general rule of damages on the failure of title, is the price paid and interest, and the costs recovered against the purchaser in the suit by the owner to recover the same, where the vendor has due notice of the suit." '4 2 Kent's Com., 478; Storm v. Smith, 43 Miss., 497. »5 And in North Carolina, where there was a written bill of sale which contamed no warranty of title, it was held that there was no implied war- ranty of title, and that it could not be proved under such circumstances; Sparks v. Maseck, 65 N. C, 440. '^ Sedg. on Dam., 393, et seq.; Gross v. Kierski, 41 Cal., 111. '7 Armstrong v. Percy, 5 Wend., 535; Case v. Hall, 24 Id., 102; Bent v. Dewey, 31 Barb., 540; Shattuckv. Green, 104 Mass., 42; Rowland v. Shelton, 284 THE LAW OF DAMAGES. Measure of Damages on Failure of Title. The weight of authority would authorize the vendee to make any defense in good faith to a claim of title, and if he fails in such defense and loses the property, and is required to pay costs therein, he may recover such costs and expenses of the suit, together wath the price paid for the property, or its value and interest, as the different circumstances of the case and rules of law may authorize, and especially where notice of sucli suit is given to the vendor." Thus, in New York, where the vendee was sued in trover for the horse he had purchased of the defendant, and he had given notice of the suit to his vendor, and a judgment was obtained against him for the value of the horse and costs, it was held in an action by the vendee against the vendor, that the judgment in the trover suit was strong, but not conclusive, evidence of the title of the plaintiff in the suit, and if not rebutted the plaintiff was entitled to recover, as damages, the amount recovered against him in the trover suit, and the costs." . 25 Ala. (N. S.), 217. This seems, also, to accord with the Civil law, Domat., Book 1, Title 2, Art.. 3; and with the provisions of the French Code, Civil Code, Chap. 4, Sec. 1, Art. 1603. In England, Lord Campbell, C. J., said, that " on that point the law is not in a satisfactory state." Sims v. Marryat, 17 Q. B., 290. "Every sale of chattels contains an implied warranty that the title of them is in the vendor." Perley v. Balch, supra. 18 This doctrine was apphed where the signatures of a transferred note were forged. Coolidge v. Bringham, 5 Met. (Mass.), 68; Rowland v. Shel- ton, 25 Ala. (N. S.), 217; Johnson v. Blank, etc., 34 Mo., 255; SaUe v. Light, 4 Ala. (N. S.), 700. See, also, Bardwell v. ColHe, 45 N. Y., 494. «Blasdale v. Babcock, 1 Johns., 517. See, also, Armstrong v. Percy, 5 Wend., 535. And in case of a breach of the warranty of the genuuaeness of the signatures to a note or bill of exchange, which we have heretofore considered, the assignee or indorsee is entitled to recover the difference between the amount of the note or bill and its actual value. Coolidge v. Bringham, 1 Met. (Mass.), 547. And a warranty of title to a chattel, has reference to the status of the chattel at the time of the warranty, and is not intended to protect the title against future events. Thus, where slaves were sold, with warranty of title, their subsequent emancipation by the gov- ernment of the United States, constituted no breach. See, Blewitt v. Evans, 42 Miss., 804 (1869); Whitworth v. Carter, 43 Id., 61 (1870). But, compare Algier v. Black, 32 Tex., 168; Ketchum v. Dew, 7 Caldw. (Tenn.), 532 (1870). CONTRACTS FOE SERVICES. 285 Breach by the Employer. CHAPTER XIII. CONTRACTS FOR SERVICES— SPECIFIC ACTS- MATERIAL. Section 323. Breach by the Employer. 324. Breach by the Employe. 326. Part Performance by the Party Hired. 327. The Doctrine of Entire Contract Relaxed. 329. American Cases where the Stern Rule was Followed. 330. Middle Ground. 331. The Liberal Rule in such Cases— Britton v. Turner. 332. Tendency of the Decisions in Harmony with Britton v. Turner. 334. States in which the Doctrine has been Recognized. 335. Construction of the Contract. 336. Application of the Rule. 337. Damages where the Work is Accepted. 338. Method of Computing Damages in such Cases. 339. Refusal of the Employer to Accept of Services. 340. Duty of the Discharged Party to seek other Employment. 341. Under the Code of Louisiana. 342. Duty of a Party to use Reasonable Means to Prevent Loss, 343. Deviation by Consent. 344. Conclusions. § 323 . Breach by the Employer.— Where work is done under a special contract, fixing the price to be paid therefor, the contract will ordinarily control the price, whether it be 286 THE LAW OF DAMAGES. Breach of Contract by Employe. reasonable or not;' and in an action therefor, the measure of damages would be the amount stipulated to be paid, or the unpaid balance due by the terms of the contract. But if there is no agreement as to the price of the services, then the employe my recover so much as the services are reasonably worth. '^ § 324. Breach of Contract by the Employe.— It is a general rule tliat the employer, on the breach, by the employe, of an executory contract to do a specific thing, is entitled to indemnity for the loss which has been occasioned by the non- performance of the obligation, and for tlie gain of wliich it has deprived him. But the gain referred to is only that which would have been the direct and immediate fruit of the contract. Thus, the measure of damages for the breach of a con- tract to saw all the timber on tlie plaintiffs land, is the difiTer- ence between the value of the timber left unsawed, and the profits which the plaintifif would liave received if the timber so left had been sawed.' So, where the defendant contracted to build tlie sea wall of a wharf, and failed so to do, he was held liable for the loss of the rent of the wharf during the delay in its construction." And the measure of damages, for failing to put into a steamboat certain machinery within the time and of the quality stipulated, was held to be the ordinary hire of such a boat for the period the contractor was in default; and to which the necessary cost of repairs of the defective machinery put in, and the hire or value of the use of the boat during said ' Brigham v. Hawley, 17 111., 38; McClelland v. Snider, 18 111., 58. If the work is abandoned for justifiable reasons, the stipulations of the contract usually control the price of the work done. Follett v. Hunt, 21 Id., 655; Holmes v. Stummel, 17 Id., 455; Street v. Swain, 21 Ind., 203. « Frazer v. Gregg, 20 111., 299. See, also, Graham v. Graham, 34 Pa. St., 475; Western v. Sharp, 14 B. Mon. (Ky.), 177. 3 Fail V. McRee, 36 Ala., 61. * Wiley V. Fredericks, 10 Gray (Mass.), 357. COKTKACTS FOR SERYICES. 287 Breach of Contract by Employe. repairs, should be added.' And where there was a breach of conn-act to carry coal, the additional expense of procuring other carriao-e, and if that could not be obtained, the conse- quent loss in business by a deficient supply and increased cost and expenses incurred on account of the expected receipt under tlie contract to carry, were held, to constitute proper el- ements of damages." And especially would this be the case, where the parties at the time of the contract knew, or had reason to expect, that such consequences would result from the breach. Where the defendant contracted to furnish a shaft and other machinery for a mill, and they were not furnished according to contract, the plaintiff was allowed as damages, the differ- ence between the article furnished and such as the contract required, together with the loss of the use of the mill during the period of time necessary to make the change to conform to what it should have been under the contract.' And it has been held that a contract for drawing logs from one point to another, which did not specify the time at which they should be delivered, sliould be construed so as to require them to be delivered within a reasonable time, and that the measure of damages for an unreasonable delay in delivering them, was the difference between the market value of the logs at the time when they were delivered, and at the time they should have been, delivered, provided they were more valuable at the latter period.* s Brown v. Foster, 51 Pa., St., 165. fi Collins V. Baumgartner, 52 Pa. St., 461. See the doctrine of Hadley v. Baxendale, 9 Exch., 341; ante, § 252. ^ Strawn v. CoggsweU, 28 111., 457; Davis v. Talcott, 14 Barb., (N. Y.), 611. 8 Whalon v. Aldrich, 8 Minn., 346. See, also, New York, etc., R. Co., v. Story, 6 Barb., (N.Y.), 419. In a recent case in Kansas, where the City of Fort Scott subscribed $75,000 in stock to the Missouri, Kansas & Texas Railroad Company, and issued bonds to the amount of $75,000 in payment therefor, and also issued bonds to the 288 THE LAW OF DAMAGES. Part Performance on part of Party Hired. § 326 . Part Performance on the Part of Party Hired. — The question frequently arises as to the measure of damages in a suit for services, and where there is onlj a partial per- formance of the services under the contract. It may be observed, that where a party engages to render personal ser- vices and is prevented from completing the contract by the act of God, as by death after a part performance, the law excuses the non-performance, and allows his representatives to recover fro rata for the time employed, or for the amount of service done, according to the price stipulated to be paid, or, if no price is stipulated for, then on a quantum meruit; with a deduction of the damages sustained by his employer in con- sequence of his not being able to complete the full term of service; for in su(;li cases, or in case of personal disability from sickness, disease or otherwise, arising from no fault of the employe, but from natural or unavoidable causes, or, as it is said company for $25,000 to purchase the right of way of said company through the city, and for machine shops, engine houses, etc., and tlie sub- scription was made upon the condition that the company should construct within six months, araih'oad from Sedaha, Missouri, through Fort Scott, to connect with a line running from Junction City in a southeasterly direction; and construct no other line of road south of Fort Scott iu the same direction, and that it should make Fort Scott the end of a division, and erect engine houses and machine shops at or near said place, before doing so at any other place southwest of SedaUa, on the through line of the road; and the com- pany complied with the contract, except that it did not make Fort Scott the end of a division, and did not erect the engine house and maohine shops there, but erected them at Parsons, and said city brought an action against said company for damages for its failure to comply with its contract; it was held, that testimony tending to show a decline in the population of Fort Scott and a depreciation iu the value of real estate through the city during the period subsequently to the construction of the road and prior to the building of the engine houses at Parsons was improper, as damages based on such testimony would be speculative, and not the certain, direct and im- mediate fruits of a breach of the contract, but remote and uncertain. And it was held, that in such a case the value of the improvements if made, for the purposes of taxation, would be the measure of damages. M., K. & T. R. Co., V. The City of Fort Scott, West. Jur., Vol. 10, p. 184, et. seq. CONTRACTS FOR SERVICES. 289 The Doctrine of Entire Contract Relaxed. called the act of God, no one should be injured; actus Dei nemini facit injuriam.^^ Thus, where a party was employed to superintend the con- struction of a work, under a contract, by which he was to re- ceive as comjiensation a third of the profits of the undertak- ing, besides a salary, and after the greater part of the work was done he died. The work was afterwards completed at a great profit. In action by the executors of the deceased to recover the amount due under the contract, it was held that they should recover j^y^ rata, under the contract, and that the profits were to be measured by taking one-third of such a proportion of the whole profits, as the cost of the work done at the time of the testator's death bore to the whole under- taking." But when no such excuse existed, and there was no waiver of full performance, the contract was formerly considered as an entire one, and required a complete performance in order to entitle a party to recover. § 327. The Doctrine of Entire Contract Relaxed.— But this stern rule, has been relaxed in many of the states; and the doctrine now generally recognized in case of part per- formance of a contract for personal services is, that if the employer accepts of the benefit of what has been done, wheth- er voluntarily or from the necessity of the case, the employe may recover according to the contract price, for what has been done; or, where he is to receive a fixed sum for the whole work, then, in the proportion which the work done bears to the '0 Farrow v, Wilson, 4 L. R. C. P., 744; Boast v. Frith, Id., 1; Wolfe v, Howes, 20 N. Y., 197; Jones v. Judd, 4 N, Y., 412; Doster v. Brown, 25 Geo., 24; Fuller v. Brown, 11 Met. (Mass.), 440; Seaver v. Morse, 20 Vt., 620; Hubbard v. Belden, 27 Id., 645; Cole v. Smith, 4 Ind., 79; Allen v. McKibben, 5 Mich., 449, whereit is affirmed that the employe cannot be permitted to gain by his sickness, nor the employer to lose by it. See, also, the same doctrine in Patrick v. Putnam, 27 Vt., 759; Clark v. Gilbert, 26 N, Y„ 279. " Clark V. Gilbert, supra, 19 290 THE LAW OF DAMAGES. American Cases in wliicli the Sterner Kule was Followed. whole work; or, where there is no price fixed, then upon a quantum meruit, from which, however, there must be de- ducted whatever damages may have resulted to the employ- er from the failure to fully perform the contract by the employe. These propositions will be best illustrated by the following decisions. And first, we will consider those sustaining the former rule.'^ § 329. American Cases in which the Sterner Rule was Followed. — Among the early American cases in which this rule was distinctly declared was, in New York, in McMillan v. Vanderlip. The plaintiff had agreed to work for the defendant ten and a-half months, and spin yarn at 3 cents per run, but left the service of the defendant before the expiration of the time, and brought an action against him for spinning 845 runs, at three cents per run. It was held that the contract was entire and must be fully performed, as a con- dition precedent, before a recovery could be had.'^ '2 For English authorities, see, Ellis v. Hamlin. 3 Taunt., 52; Sinclair v. Bowles, 9 B. & C, 93; Spain v. Arnott, 2 Stark, 256; Waddington v. Oliver, 5 B. & P., 61; Walker v. Dixon, 2 Stark, 281; Kingdom v. Cox. 5 M. G. & S. (C. B.), 522; Mayne on Dam., 106, et seq. See, also. Cutler, Adm'r. v. Pow- ell, 6 T. R. (Dum. & East.), 320, where a master of a vessel had given the mate a note promising to pay him 30 guineas, "provided he proceeded, con- tinued, and did his duty, as mate," etc., on a certain voyage to Liverpool; and the mate died during the voyage. It was held, that nothing could be recovered either on the contract or on a quantum meruit. '3 12 John., 165. See, also, Thorpe v. White, 13 John., 53; Jennings v. Camp, 13 John., 94; Clark v. Smith, 14 Johns., 326, which was an agreement to take charge of a certain brick yard, and make a certain quantity of bricks for a specified sum, and where the same principle was recognized. And where the plaintiff agreed to work for the defendant eight months for $104, or $13 per month, and left before the time expired; Held, that he could not recover in an action for work and labor. Reab v. Moore, 19 John., 337. See, also, Henson v. Hampton, 32 Mo., 408; Posey v. Garth, 7 Mo., 94; Dickson v. Caldwell, 17 Mo., 575; Hutcliinson v. Wetmore, 2 Cal., 310; Schnerr v. Lemp, 19 Mo., 40. But the action in some of these cases was on the contract, and the decisions rest on technical grounds. CONTRACTS FOR SERVICES. 291 American Cases in which the Sterner Rule was Followed. And in Massachusetts where the plaintiff had agreed with the defendant to erect a barn and finish it, for a specified sum and bj a certain time, and abandoned tlie work before it was finished; it was held, that the plaintiff could neither recover on the contract, nor on a quantum meruit}^ But where the plaintiff had contracted to build a house for the defendant, and on his land in a certain specified manner, and within a certain time; and the house was bnilt of the dimensions specified and within the time specified, but in workmanship and materials inferior to that called for by the contract; and it appeared that the defendant was present almost every day during the ^^rogress of the work giving direc- tions, and directing variations from the contract, although he at times objected to parts of the materials and work; and the defendant after the work was done refused to accept it, but the plaintiff had not before been informed of his intention to do so; it was held, that the plaintiff might recover on a quan- tum meruit^ for his labor, and quantum valehat for his mate- rials; but, that in such cases one of three things must be shown in order to entitle the plaintiff to recover; either a substan- tial execution of the contract, or an assent to variations; or, an express or implied acceptance of the work.'^ In this case there was sufficient evidence of an acceptance of the work as it progressed to warrant a recovery. But in INTew York, in a case where the plaintiff erected a building on the defendant's land, it was held, that such an enforced and necessary possession did not, of itself, constitute an acceptance of the work or a waiver of the conditions of the contract; and, that where there was under such circumstances a breach of the condition on the part of the plaintiff, the '4 Faxon v. Mansfield, 2 Mass., 147; Stark v. Parker, 2 Pick., 267; Moses V. Stevens, 2 Pick., 232. 's Hayward v. Leonard, 7 Pick., 181. See, also. Bee Printing Co. v. Hick- born, 4 Allen (Mass.), 63. The riofht of recoveiy in these cases was evidently placed on the ground of acceptance of the work. 292 THE LAW OF DAMAGES. Middle Ground. defendant was not obliged to pay for it nor was lie obliged to tear down the building.'" § 330. Middle Ground.— In Yermont a sort of middle ground seems to be maintained, and the motives of the party in fault, and the benefits conferred have, in some cases, been considered proper matters for consideration. In Kelly v. The Town of Bradford,, the Supreme Court of that state, (per Addis, J.,) say: "The doctrine is firmly estab- lished in this state that, where a contract has been substantially, though not strictly performed — where the party, failing to per- form according to the terms of the contract, has not been guilty of a voluntary abandonment or willful departure from the contract, has acted in good faith, intending to perform it according to its stipulations, but has failed in strict compli- ance with its provisions, and where from the nature of the contract and of thelul)or performed, tlie parties cannot rescind and stand in statu quo,, but one of them must derive some benefit from the labor or money of the other; in such cases, the party failing to perform his contract strictly, may recover of the other, as upon a quantum meruit, for such a sum only as the contract, as performed, has been of real and actual bene- fit to the other party, estimating such benefit by reference to the contract price of the whole work. * * '" The party failing to perform, must deduct from the contract price : 1. Such sum as will enable the other party to get the con- tract completed according to its terms; or, where that is impos- sible or unreasonable, such a sum as will fully compensate him for the imperfection in the work and insufficiency in the materials so that he shall, in this respect, be made as good pecuniarily as if the contract had been strictly performed. '8 Smith V. Brady, 17 N. Y., 173. See also, Biyant v. Stillwell, 24 Penn., 314; Pullman v. Coming, 9 N. Y., 93, where it was held, that to maintain a recovery without a full performance, there must be a waiver or an acceptance of the work done, or an equivalent of this. CONTRACTS FOR SERYICES. 293 Liberal Kule in such Cases— Britton v. Turner. 2. Whatever additional damages liis breach of contract may have occasioned to the other."" So, in that state, the terms of the contract to be j^erformed by the employe are not usually construed as conditions pre- cedent, and while the courts do not change the original contract, or make one for the parties, they sometimes impl}^ a new one from the circumstances and give an adequate remedy." "Where an infant contracts for a definite period of service and leaves before the time expires, the general rule is, that he may recover so much as the services are worth, taking into consideration the injury to the employer, from the breach.'' And if he is discharged, even for a sufficient cause, he may recover on a quantum meruit?" § 331. The Liberal Rule in such Cases— Britton v. Turner. — One of the earliest, clear and distinct recoo-nitions of the more liberal rule, to which we have referred, was in the case of Britton v. Turner, in the Supreme Court of New Hampshire. The action was for work and labor performed. The plaintiff had contracted to work for one year for the sura of one hundred dollars, and left after remaining about nine months, without the consent of the defendant and without any good cause. The court below held, on these facts, that the plaintiff was entitled to recover on a quantum meruit count, as much as the labor performed was reasonably worth. The Supreme Court sustained this view of the law. Parker, C. J., in delivering the opinion of the court, referred to sev- eral cases where this rule had been held in cases of contracts to build; and said: "The cases of building, etc., are not to be '7 33Vt., 35. ~ '8 Dyer v. Jones, 8 Vt., 205; GiUman v. HaU, 11 Vt., 510; Brackett v. Morse, 23 Vt., 554; Morrison v. Cummiiigs, 26 Vt., 486; Hubbard v. Belden, 27 Vt., 645; Baker V. The Troy & Rutland R. Co., 27 Vt., 645; Swift v. Harriman, 30 Vt., 607; 2 Pars, on Con., 35; Patnote v. Sanders, 41 Vt.. 66. '9 Hoxie V. Lincoln, 25 Vt., 206; Thomas v. Dike, 11 Id., 273. See, also, Dorchester v. Continental Mills, 50 Me., 217. =° Jones V. Jones, 2 Swan. (Tean.), 605. 294 THE LAW OF DAMAGES. Liberal Rule in such Cases— Britton v. Turner. distinguished in principle from the present, unless it be in the circumstance that where the party has contracted to fur- nish materials, and do certain labor, as to build a house in a specified manner, if it is not done according to the contract, the party for whom it is built, may refuse to receive it, elect to take no benefit from what has been performed and, there- fore, if he does receive, he shall be bound to pay the value; whereas, in a contract for labor merely from day to day, the party is continually receiving the benefit of the contract, un- der the expectation that it will be fulfilled and cannot, upon a breach of it, have an election to refuse to receive what has been done, and thus discharge himself from payment. * * * But we think this difiference in the nature of the contracts does not justify the application of a different rule in relation to them. The party who contracts for labor merely, for a certain period, does so with the full knowledge that he must, from the nature of the case, be accepting part performance from day to day, if the other party commences the perform- ance, and with knowledge, also, that the other party may eventually fail of completing the entire term. It is said that in those cases where the plaintiff has been permitted to re- cover, there was an acceptance of what had been done. The answer is, that where the contract is to labor from day to day for a certain period, tlie party for whom the labor is done in truth stipulates to receive it from day to day as it is perform- ed; and, although the other may not eventually do all that he has contracted to do, there has been necessarily an acceptance of what has been done in pursuance of the contract, and the party must have understood, when he made the conti'act, that there was to be such an acceptance. * -x- -ie In case of a failure to perform such special contract, by the default of the party contracting to do the service, if the money is not due by the terms of the special agreement, he is not entitled to recover for his labor or for the materials fur- CONTKACTS FOR SERVICES. 295 Liberal Eule in sucli Cases— Britton v. Turner. nished, unless the other partj receives what has been done or furnished and, upon the whole case, derives a benefit from it. But if, where a contract is made of such a character, a par- ty actually receives labor or materials, and thereby derives a benefit and advantage over and above the damage which has resulted from the breach of the contract by the other party, the labor actually done and the value received^ furnish a new consideration, and the law thereuj^on raises a promise to pay to the extent of the reasonable worth of such excess. This may be considered as making a new case, one not within the original agreement, and the party is entitled to recover on his new case for work done not as agreed, yet accepted by the defendant. ****** And the rule is the same whether it was received and accepted by the assent of the party, prior to the breacli, under a contract by which, from its nature, he was to receivQ labor from time to time, until the completion of the whole .contract; or, whether it M-as received and accepted by an assent subse- quent to the performance of all which was in fact done. If he received it under such circumstances as precluded him from rejecting it afterwards, that does not alter tlie case; it has still been received by his assent. * •'^ * The amount however for which the employer ought to be charged where the laborer abandons his contract is only the reasonable worth, or amount of advantage which he receives upon the whole transaction, and in estimating the value of the labor the contract jirice of the service cannot be exceeded. * * * The benefit and advantage which the party takes by the labor therefore is the amount of value which he receives, if any, after deducting the amount of damage; and if he elects to put in this defense he is entitled so to do; and the implied promise which the law will raise, in such case, is to pay such amount of the stipu- lated price for the whole labor as remains after deducting what it would cost to procure a completion of the residue of the 296 THE LAW OF DAMAGES. Tendency of Decisions in Harmony with Britton v. Turner. service, and also any damage wliicli has been sustained by rea- son of the non-fuliillraent of the contract." '' § 332. Tendency of the Decisions in Harmony with Britton v. Turner.— We have set forth the opinion of the learned judge thus fully, in Britton v. 2urner, not only because it may be considered a leading case, relating to dam- ao-es on part performance of a contract for labor, and because it applies as vrell in cases of special contracts to build, whether the contractor is to furnish material or not; but also, on account of the able argument contained therein in support of the conclusions of the court. The tendency of the decisions seem to be in harmony with the views thus ably set forth. Thus, in Iowa, in an action for work done and performed, it appeared that the plaintiff was hired by the defendant to work for him for six months, and he left the services of the defend- ant after thus laboring four months. On the trial the defend- ant asked the court to instruct the jury that if the plaintiff hired to the defendant for six months, and left his service without reasonable cause before the expiration of the terni, he had no claim upon the defendant for the services rendered. The court refused so to instruct, and there was a verdict and judgment for the plaintiff. In the Supreme Court of that state the judgment was affirmed. Stockton in delivering the opinion of the court said: "We think the instruction was rightfully refused. If the parties had expressly agreed, that if the plaintiff left the services of the defendant before the expiration of the time limited, nothing was to be considered as earned by him, there could be no doubt that the plaintiff could not recover. But all that is shown is, that upon an agreement to labor for six months, the plaintiff labors four months and refuses to labor any longer, and sues for the value of the labor performed. We think he is entitled to recover as upon a quantum iiieruit, and need not, as a condition prece- « Britton v. Turner, 6 N. H., 495, 481. CONTRACTS FOR SERYICES. 29T Tendency of Decisions in Harmony with Britton v. Turner. dent, first sliow that he had performed his entire contract, or that he left the services of his employer upon good cause. We are satisfied with the rule established in Britton v. Turner, 6 N. H.j 481, giving its full weight for the protection of the employer in such cases, with the qualifying rule that where the contract is broken by the fault of the party employed, after part performance has been received, the employer is entitled if he so elect, to put the breach of contract in defense for the purpose of reducing damages, or showing that nothing is due; and to deduct what it will reasonably cost to secure a completion of the whole service, as well as any damage sus- tained by reason of the non-fulfillment of the contract. If, in such a case, it is found that the damages are equal to, or greater than, the value of the labor performed and that the employer, having a right to the performance of the whole contract, has not received any beneficial service, the plaintiff is not entitled to recover."" § 333. The same doctrine is recognized in that state as applicable to building contracts. The plaintiff agreed to build for the defendant a barn, shed, and corn crib, under a special contract, for one hundred and five dollars, and have it completed by a specified time. The plaintifi' failed to complete the job in the specified time, and also failed to do all of said job in a good and workmanlike manner. And the referee to whom the case was referred, found that it would cost the sura of twenty-seven dollars to make the work comply with the contract, and that the defend- ant had paid fifty-five dollars to apply on the contract; and, that there was due to the plaintiff twenty-three dollars; which report was confirmed and judgment rendered accordingly. The learned Justice Dillon, in delivering the opinion of the Supreme Court, on appeal, observed as follows: "This question was settled in this state by the case of Pixler =» Pixler V. Nichols, 8 la.. 106. 298 THE LAW OF DAMAGES. states in which the Doctrine has been Recognized. V. Nicliols^ 8 Iowa, 106, whicli distinctly recognized and expressly followed the case' of Brltton v. Turner, 6 X. H., 481. That celebrated case has been criticised, doubted, and denied to be sound. It is frequently said to be good equity, but bad law. Yet its principles have been gradually winning their way into professional and judicial favor. It is hottotned on justice and is right upon principle, however it may be upon the technical and more illiberal rules of the com- mon law as found in the old cases. With the known and natural disposition of courts and juries to disfavor the cause of him who has broken his contract and yet seeks a recovery, and with the limitations stated in Pixler v. Nichols, the appli- cation of this rule will not be found practically to work injus- tice to the employer or contracting party who is without fault. The rule will a2:>ply to such cases as the one under considera- tion, i. e., formal acceptance of the work or an acquiescence in the breach, is not necessarily essential to a recovery." " § 334. States in which the Doctrine has been Recog- nized. — The doctrine of Britton v. Turner, is also now fully or partially recognized in Michigan, Wisconsin, Indiana, Illi- nois, Pennsylvania, Maine, Texas, Tennessee, Missouri, I^qw York, and other states."^ In each class of cases the integrity of the original contract *3 McCoy V. Hedge, 18 la.. 66. See, also, the same doctrine in that state, in Davis v. Fish, 1 G. Greene (la.), 406; Crookshank v. Mallory, 2 Id., 257; Eyserv. Weissgerber, Id., 463; Mitchell v. Wiscotta Land Co.. 3 Id., 209; Tice & Mcintosh v. Sherman, 10 Id., 60; Convin v. Wallace, 17'Id., 374; Mc- Affeev. Hale, 24 Id., 355. =4 See, Wiley v. Frac. Sch. Dist. No. 1, 25 Mich., 419; Bishop v. Price, 24 Wis., 480; Trobridge v. Barrett, 30 Wis., 661; Jones v. Jones, 2 Swan (Tenn.), 605; Edgington v. Pickle, 1 Smed. (Tenn.), 122; Allen v. McKibbon, 5 Mich., 449; Davis v. Barrington, 10 Frost (IST. H.), 517; Sinclair V. Talmage, 35 Barb. (N. Y.), 602; Nibe v. Brauhn, 24 111., 268, relating to a case of waiver in respect to time; McKinney v. Springer, 3 Ind., 69. See, also, Dermot v. Jones, 23 How., 220; Western v. Sharp, 14 B. Mon. (Ky.), 177; Lamb v. Brolaski, 38 Mo., 51; Newman v. McGregor, 5 Ohio St., 349. But, see, AUen v. Curies, 6 Id., 505. CONTRACTS FOR SERYICES. 299 Construction of Contract— Application of Rule. and the riglits and obligations of the parties under it, are generally maintained. In each, the courts disclaim any pur- pose of making contracts for the parties. But the difference in the result is owing chiefly, if not entirely, to the diverse views of facts and circumstances, relating to the performance, or part performance of the contract, as a waiver of strict com- pliance therewith, and to a* difference in construction of the original contract. § 335. Construction of the Contract. — In Britton v. Turner^ and like cases, the courts have considered that the jDarties entered into the contract with the understanding that, from day to day the work would go on and be accepted, with the possibility that it might not be fully completed; and, in cases where there is a failure of full performance, the party receiving a benefit, and continuing to enjoy it, without an offer to return or the possibility of returning the benefit thus received, and thereby placing the other party in atata quo^ should pay to the other so much as he is reasonably entitled to. The hardship of the other, and what may be termed the rigid rule, would in many cases be so manifest that it has per- haps driven the courts to some ingenuity for arguments to overcome mere technical objections to the liberal doctrine. But the reasons, in view of these circumstances of great hard- ship and injustice, wliich must otherwise frequently occur, generally prove acceptable. And the doctrine, in view of its manifest justice, is likely to grow in favor until it becomes universally recognized. § 336. Application of the Rule— In Missouri, where the plaintiff abandoned the written contract for labor and services, and in au action claimed on a quantum meruit^ it was held, that the plaintiff could recover for the value of the benefit and advantage which the defendant received from the work done under the contract, if any, after deducting the amount of damage the defendant sustained by reason of the 300 THE LAW OF DAMAGES. Damages where Work is Accepted— Method of Computing, etc. failure of the plaintiff to do the work as agi'ced; but that the allowance for the work must not exceed the contract price." And, in Louisiana, where the plaintiff had been in default so that he could not sue upon the contract, but the other party had stood by and had seen hira prosecute the work with- out objection, and had been benefitted by his labor and mate- rials, he was held entitled to compensation to the extent of such benefit.^' § 337. Damages where the Work is Accepted.— The measure of damages in an action for work accepted, but which was not done according to the contract, would generally be the contract price, less the payments made, and any dam- ages sustained by the defendant by reason of a failure of the plaintiff' to fully perform." The contract price should control in assessing the damages so far as they can be followed, where the special contract was not strictly fulfilled by the plaintiff.''' And where the plaintiff cannot sue on the contract, and sues on a quantum meruit, his recovery for the work done, must be limited by the contract price. ^' § 338. Method of Computing Damages in such Cases. — In all cases where the plaintiff, without having fully per- formed his contract, is entitled to recover for the actual benefit which the defendant has received from his labor, the method of estimating such benefit is to deduct from the contract price such sums as will enable the other party to get the contract 2S Lamb v. Brolaski, 38 Mo., 51. See, also, Lowe v. Sinkleaj.-, 27 Mo., 308; Lee V. Ashbrook, 14 Mo., 378. The decisions on this question in Missouri may not appear in harmony. See, ante, § 329, note 13; but this may be referred to technicalities relating to the forms of action. It is usually neces- sary in such cases to sue on a quantum meruit, and not on the contract itself. And apparent conflicts in decisions may be accounted for on this ground. =* Garland v. New Orleans, 13 La. An., 43. =7 Becker v. Hecker, 9 Ind., 497; Corwin v. Wallace, 17 la., 374; Morse v. Richards, 29 Mo., 99; Merrow v. Hunton, 25 Vt., 9. =8 Walcott V. Yeager, 11 Ind., 84. » Western v. Sharp, 14 B. Men. (Ky.),' 177. CONTKACTS FOR SERYICES. 301 Refusal of Employer to Accept Services. completed according to its terms; or, where that is impossible or uureasonable, such sum as will fully compensate him for the work and the insufficiency of the materials; and, also, to deduct from the contract price, whatever additional damages the breach of contract has occasioned him." And where the plaintift entered into a special contract to build a house for the defendant, and it was built, but not according to contract, and the defendant objected from time to time to parts of the work and materials; not, however, ordering the builder to desist, but acquiescing in the progress of the work, aud finally refusing to accept it when Unished; it was held, that if the work was beneficial to the defendant, lie was liable for the materials and labor, not on the contract, but on the general counts in assumpsit." The measure of damages in such cases is the contract price, deducting as much as the house is worth less by reason of the defects and varia- tions from the contract." And, in a suit for the price of labor in repairing a vessel, where the defendants claimed damages for the delay in completing the repairs within a reasonable time, it was held, that the measure of damages was the value of the rent or charter of the vessel during the delay, but not the probable profits of the vessel." § 339. Refusal of Employer to Accept of Services.— Where the employer refuses to accept of the services, or to have the work contracted for performed, or prevents the 4° Kelly V. Bradford, 33 Vt., 35; ante, § 334, and note. 41 Hayward v. Leonard, 7 Pick. (Mass.), 181. See, also. Smith v. Proprie- tors of Meeting-House, 8 Pick., 187; Wadleigh v. Sutton, 6 N. H., 15. 12 Ibid. See also. Linningdale v. Livingston, 10 John. (N. Y.), 36; Jewell V. Schroeppel, 4 Cow., 564; Morford v. Ambrose, 3 J. J. Marsh. (Ky.), 690; Kewman v. McGregor, 5 Ohio, 351. 43 Rogers v. Beard, 36 Barb. (N. Y.). 31. See, further on this subject, Wilson V. Graham, 14 Tex., 222; SneUing v. Lynch, 5 Allen (Mass.), 443; MoiTison V. Lovejoy, 6 Minn., 319; Woobury v. Jones, 44 N. H., 206; Mastertonv. Mayor, etc., 7 Hill (N. Y.), 62; DooUttle v. McColough, 12 Ohio St., 360; Tait v. Sherman, 10 la., 60. 302 THE LAW OF DAMAGES. Refusal of Employer to Accept Services. employe from performing the same in any manner, the usual measure of damages, where the contract relates to the manu- facture of an article or the construction of a building, or the performance of some other specific act, is the difference between the price agreed to be paid and what it would have cost the employe to complete it, provided such cost would be less than the contract price." And if he is prevented by the employer from completing a contract to build, or to do any other specific act, it has been held that he could recover only the contract price for the work done; and in addition, such damages as he has sustained according to the foregoing rule, by not being allowed to finish the job." But in Vermont where a party to a special contract for labor, for which an entire sum was to be paid, performed a part of the labor according to the terms of the contract, and was pre- vented from performing the balance, by the act or default of the other party, it was held that the party performing the labor might sue, either on the contract to recover the damages for the breach of it or in general assumpsit, to recover for the value of what he had done. And that if he claimed for a breach of the contract the damages would be regulated by the contract price, and he could recover such a proportion of the whole contract price as the work done bore to the whole work, and the profit he could have made if allowed to complete the unperformed work, and the loss he may have incurred in employing labor and means to perform the residue; but if he 44 Myers v. York, etc., R. Co., 2 Curt., 28; George v. Caliawba, etc., R. Co., 8 Ala., 2:34; Dibold v. Minot, 9 la., 503; Richmond v. Dubuque & Sioirx City R. Co., 26 la., 191; 33 Id., 423. 45 Western v. Sbarp, 14 B. Mon. (Ky.), 177. See also, Clark v. Marsiglia, 1 Den. (N. Y.), 317; UnderMll v. North Am., etc., Co., 36- Barb., (N. Y.), 354. See also, Hosmer v. Wilson, 7 Mich., 294. See also AUen v. ThraU, 86 Vt., 711. CONTRACTS FOE SEEYICES. 303 Duty of Discharged Party to seek other Employment. sued oil a quantum meruit, he might then recover a reasona- ble compensation for the work performed." § 340. Duty of Discharged Party to Seek other Emi)loymeDt. — In an action by an employe to recover for personal services where he has been dismissed by the employer without sufficient cause, and prevented from completing the ser- vices according to the contract, the employer is liable for such damages as the employe may sustain. And where the contract provides for service for a definite time and for a specified price, the employe may recover for the whole time at the contract rate or price, unless the plaintifif has or could have obtained other proper employment by the use of reasonable diligence; in which case the measure of damages would be the contract price for the whole time, less the amount received in such other employment, or that could have been earned by the use of such diligence in securing such employment." But where suit is brought before the time of service con- tracted for expires, the plaintiff can only recover pro rata, to the time suit is brought." « Chamberlain v. Scott, 33 Vt., 80; Derby v. Johnson, 21 Vt., 18; Board- man V. Keeler, 21 Vt., 77. See, also, Smith's L. Cas. (H. & Ws notes), Vol. 2, p. 38, et seq. But in New York in such a case he was limited in the recov- ery to the contract prices; Coon v. Greenman, 7 Wend., 121. 44 Hunt V. Crane, 33 Miss., 669; Prichard v. Martin, 27 Miss., 306; Danley V. Williams, 16 Wis., 581; Steinburg v. Gebhert, 41 Mo., 520; Thompson v. Wood, 1 HUt. (N. Y.), 93; Gordon v. Brewster, 7 Wis., 355; Hein-v. Wolf, 1 E. D. S., N. Y., 70; Clark v. Manchester, 51 N. H., 594, (1872). The price of the services agreed upon is, prima facie, the amount of damag-es. ' Nearns v. Harbert, 25 Mo., 352; Pond v. Wyman, 15 Mo., 175; Nations v. Cudd, 22 Tex., 550. And he may under certain circumstances recover dam- ages beyond the value of Ms wages; Hassel v. Nutt, 14 Tex., 260; Fuller v. Little, 61 111., 21; Smith's L. Cas. (H. & W.'sN.), 45, et seq. See also, ante, § 133, where this subject is considered. 45 Wright V. Falkner, 37 Ala., 274; 1 Ala. Sel. Cases, 231; Foye v. Dabney, 1 Sprague 212; Hunt v. Colbum, Id., 215; Ream v. Watkins, 27 Mo., 516. See, also, WUUams v. The Chicago Coal Co., 60 111., 149, where it was held that if the employe thus discharged engages in business of a different char- acter requiring harder labor and more capital, the full amount of his earnings should not be deducted. 304 THE LAW OF DAMAGES. Code of Louisiana— Duty of Party to use Reasonable Means to Prevent Loss. § 341. Under the Code of Louisiana.— And in Louisi- ana, under her civil Code, which provides that, " if without any serious ground of compkint a man shoukl send awa_y a laborer, whose services he had hired for a certain time, before that time had expired, he shall be bound to pay the laljorer the whole of the salary he would have been entitled to receive had the full term of his service arrived;" it was held, that the statute is in the nature of a penal statute, and must be strictly construed, and cannot be applied to the case of a contract for lettin^i^ and hireing, entirely unperformed in all its parts; and that in such cases only the actual damages sustained by the non-performance of the contract can be recovered." And under the Code of that state, the employe who leaves the services of the employer before the time of his engage- ment expires, without reasonable cause, can recover nothing.'" It will be readily inferred that the employe or employer may frequently be responsible, under the rnle in Hadley v. Baxendale, for remote and extended consequences that are the natural and direct result of his breach of the contract, and to such losses as the parties contemplated, or had reason to con- template, as the consequences of a breach of it." § 342. Duty of the Party to use Reasonable 3Ieans to Prevent Loss . — But the right to recover consequential damages is subject to the qualification, in all cases, that the plaintiff shall not be permitted to recover for such losses as might have been j) re vented by the expenditure of a small sum or by the exercise of reasonable care. 47Trefetlien v. Lock, 16 La. An., 19. 48 Barbell v. Lallande, 23 La. An., 317 (1871). •♦9 See, ante, § 252, also, Hadley v. Baxendale, 9Ecli., 341; Singer v. Farns- worth, 2 Ind., 597; Fowler v. WaUer, 25 Texas, 695; CoUins v. Baumgartner, 52 Pa. St., 461; Haven v. Wakefield, 39 lU., 509; Smith v. Bristof, 33 la., 24; Johnson v. Mathews, 5 Kans., 118; Davis v. Talcott, 14 Barb., N. Y., 611 ; 12 N. Y., 184; Walters v. Towers, 8 Exch., 401; Portman v. MidcUeton, 4 C. B. N. S., 322; 4 Jur., N. S., 689; 27 L. J. C. P., 431. See also, collec- tion of English cases, 2 Smith's L. C, (H. & W. notes), 491, et seq. CONTKACTS FOE SERYICES. 305 Deviation by Consent— Conclusions. Thus, where the defendant contracted with plaintiff to " make a tight roof for the terra of five years," and there was a breach; it was held, that the plaintiff could only recover the cost of putting the roof in the condition required by the con- tract, and nothing for the injury to the contents or interior of the building in consequence of the defects which might have been avoided with reasonable care/" But even in such a case, if the defendant contracted with the knowledge that such losses would accrue from a breach, he should at least he liable for snch losses as occurred, before the necessary repairs could be- made, § 343. Deviation by Consent.— In cases of deviation from the stipulations of the original contract by mutual agreement between the parties, the contract prices govern, so far as they are apj^licable, or so far as the work can be traced according to the stipulations of the original contract; but if extra work is done, not provided for in such contract, and to which its provisions as to prices cannot be applied, the em- ploye may recover therefor, as on a quantum Tueruit. A deviation by consent may be treated as a new contract, so fiir as the deviation is concerned, and a modification of the orig- inal in that respect, where the circumstances require it."' §344. Conclusions. — The following conclusions are, we think, fairly deducible from the authorities: 1. In case of a contract to do a specific work or service, and a failure to fully complete the same as stipulated, if, from the circumstances there is an acceptance of the work; as, where the employer sees the work as it progresses and makes no ob- jection at the time, or, where he directs as to the manner of 5° Goodard v. Barnard, 82 Mass. (16 Gray), 205. See, also, Peters v. Whit- ney, 23 Barb. (N. Y.), 24; ante, Chap. 8. SI Merill v. The Ithica & Owego R. Co., 16 Wend., 586; Marsh v. Rich- ards, 29 Mo., 99; Barcus v. Hannibal, etc., R. Co., and Paris Plank R. Co., 26 Id., 102; Sedg. on Dam., 221; McClelland v. Snider, 18111., 58; Western v. Sharp, 14 B. Mon. (Ky.), 177; Brigham v. Hawley, 17 lU., 38. 20 306 THE LAW OF DAMAGES. Conclusions. executing the work, after objections made to parts of the work as it was being done, and permits the same to go on; this is a waiver of a strict fulfillment of the contract in respect to such defects, and an acceptance of what is done under it, and the employe may recover at least so much as the work and material are worth, less the damages sustained by reason of the incomplete performance. 2. In contracts for personal services, for a definite time and price, if the employe fails to work for the whole time stipulated, he may recover so much as the work is reasonably worth, less the damages sustained by the employer for the failure of a full performance on the part of the employe ac- cording to the contract. 3. That in all of these cases the defendant, if he claims damages for the breach of the contract on the part of the plaintiff, should be allowed, by way of recoupment or counter- claim, all such damages as he may hav-e sustained by a fail- ure of the plaintiff fully to perform the contract on his part. BAILMENTS. 307 Damages in case of Bailments. CHAPTER XIT. DAMAGES m CASES OF BAILMENTS. Section 359. General Principles. 360. Depositum, 361. Mandatum. 362. Commodatum. 363. Pignus, or Pledging. 364. What the Pledgee may Recover for a Conversion. 365. Locatio, or Hiring for a Eeward. 366. Where the Bailee is to bestow Care or Labor. 367. Warehousemen. 368. Innkeepers. 369. Common Carriers— Insurers. 370. The Eule not Applied to Live Stock. 371. Interruption of Navigation. 372. Where the Negligence of the Carrier co-operates with Natural Causes. 373. The Doctrine of Contributory Negligence-Application. 374. Non-Delivery- Measure of Damages. 375. Delay in the Delivery. 376. Besponsibility Beyond the Terminus. 377. Market Value. 378. Partial Loss or Injury. 379. Sale of the Goods. 380. Interest as Damages. 381. WTiere the Carrier Refuses, or FaUs to Transport Accord- ing to Contract. 383. Delay in Delivery, or Injury to Goods no ground for Re- fusal to Accept. 308 THE LAW OF DAMAGES. General Principles. 384. Failure to Deliver Machinery, etc.-Hadley v. Baxendale. 388. "Wlien the General and Limited Rule Prevails. 389. "WTien the Larger Kule PrevaUs. 390. Agreement to Furnish Cargo or Freight, 391. Measure of Damages. 392. Notice of the Arrival of Goods— Damages for Failure. 393. Refusal to Deliver. 394. Contracts limiting Liability. 395. Injury to Passengers. 396. Reasons for the DifTerence of Liability between Merchan- dise and Passengers. 397. Delay of Passengers. 398. Injury Resulting in Death. 399. The Doctrine of Contributory Negligence. 400. Responsibility for Baggage. 401. Exemplary Damages. 402. Contracts Limiting Responsibility for Damages. § 359. General Principles.— Mr. Storj defines bailment as "a delivery of a thing in trust for some special object or purpose and upon a contract, express or implied, to conform to the object or purpose of the trust.'" And this learned author, as well as Sir William Jones, divided bailments into five classes, as follows: 1. Depositum; or naked deposit without reward. 2. Mandatum; or commission, which is gratuitous, and by which the manditary undertakes to do something about the thing bailed. 3. Commodatum; or loan for use without pay, and when the thing is to be restored in specie. 4. Pignus; a pawn or pledge; as when the thing is bailed to a creditor as security for a debt. 5. Looatio; or hiring for a reward. They also sub-divide this last class into: 1. Locatio rei; a hiring, by which the hirer gains a tem- porary use of the thing. ' Story on BaU., § 2. BAILMENTS. 309 General Principles. 2. Locatio ojperis faciendi; when something is to be done to the thing delivered; and, 3. Locatio operis rnercium 'oeliendarumj where the thing is merely to be carried or transported from one place to an- other. The duty and liability of the bailee, and the measure of damages, differ in these various kinds of bailments. And they are sometimes classified into three kinds, to correspond with the three degrees of liability, which appertain to these classes. In relation to such a classification, Professor Parsons remarks: "The first of these is, where the bailment is for the benefit of the bailor alone. In this class, but slight care is required of the bailee, and he is responsible only for gross neo-liwence. The second, is where the bailment is of benefit to the bailee alone. In this class, the greatest care is required of the bailee, and he is responsible for slight negligence. The third, is where the bailment is for the benefit of the bailor and bailee. In this class, ordinary care is required of the bailee, and he is responsible for ordinary negligence." '^ Although the liability of the bailee in these various kinds of bailment depends upon the degree of care bestowed, or its correlative, the degree of negligence with which he is charge- able, it is difficult to define and clearly distinguish between them in many cases. The most precise statement that has been made in reference to this subject is, that ordinary care is the care which persons of ordinary prudence bestow upon their own property of like description and under like circumstances; and the want of this would be ordinary negligence. Slight care is that which " is usually exercised by persons under circumstances similar to those of the particular case in which the question arises, and where their own interests are to be protected from a similar injury, by men of common sense, but below the average pru- » 2 Pars, on Con., 88. JIO THE LAW OF DAMAGES. Depositum. dence of the community in which they live; " and a want of this would be gross negligence. Great care is such as is exer- cised under such circumstances by men of unusual prudence; and the want of this would be slight negligence.' So, ordinary negligence includes slight negligence; and gross negligence includes both ordinary and slight negligence.' It may be further observed, in reference to bailments in general, that the bailor, when entitled to recover at all, may recover such actual damages as he may have sustained. And, in the absence of i3roof of the actual amount, he may recover at least nominal damages." The law raises a presumption that the bailee will safely and securely keep the property, which means due care in all cases. But the degree of care and diligence, as we have seen, varies according to the nature of the bailment.^ The bailee may be said to be liable in all cases for losses occurring through his gross negligence, which sometimes bears so closely to fraud that it has been said to be equivalent to, or presumptive evidence of it, or at least to imjDute fraud. The character of this treatise will not warrant any further con- sideration of the subject of bailments in general. Sufficient has been said to enable us to present the subject of damages, in the various species of bailment, and to render intelligible this particular question. We will, therefore, proceed to con- sider the measure of damages, under various circumstances, in the various classes of bailments. § 360. Depositum. — In this class of bailments, the bailee has, strictly speaking, no general or special property in the 3 Shear. & Red. on Neg., §§ 18, 19, 20, et seq.; Story on Bail., §§ 16, 17. 4S. & R. on Neg., § 18; Brand v. Troy, etc., R. Co., 8 Barb., 368; Brown V. Lynn, 31 Pa. St., 512; Dreher v. Fitchburgh, 22 Wis., 675; John- son V. Hudso* Riv. R. Co.. 20 N. Y., 65; 6 Duer, 633; Tracy v. Wood, 3 Mason, 132; Doorman v. Jenkins, 2 A.. & E., 256. s Eldridge v. Adams, 54 Barb., 417; Parker v. Tiffany, 52 111., 286. « Ross V. Hill, 2 Man., Gr. & S., 877. BAILMENTS. 311 Depositum. thing bailed, but only a naked possession; and, if he disposes of the article, the bailor, in an action therefor, would be entitled to its actual value, as for a conversion. But the bailee's right of possession would give him a right of action against any party, except the lawful owner, for a disturbance of the possession and to recover the goods or their value.' Thus, an action for the goods or their value will lie, by a mere receiptor of goods taken on execution, against a party who wrongfully converts them*. In case of a sale of the goods bailed, by the bailee, or of non-delivery of the same on a demand by the bailor, he could ordinarily recover damages, as for a conversion.' And, in cases where circumstances seem to require it, the bailor would be liable for the use of the property, or interest on its value.'" But provision is usually made, in actions for a conversion, by rules of damages, that furnish adequate compensation in such cases." And where the circumstances of the case or the form of the action prevents a measure of damages as for a conversion, the bailee may be at least liable in damages for the value of the property, on a failure to execute the trust. In case of a deposit, the bailee is also bound to return it with the increase, or profits, such as young animals brought forth during the period of the deposit, and interest on money 7 Armory v. Delamire, 1 Str., 505; Fish v. Cobb, 6 Vt., 622; Sutton v. Buck, 2 Launt., 302; Red. on BaU, §§ 709, 711; White v. Webb, 15 Conn., 302. 8 Miller v. Adsit, 16 Wend., 335; Story on BaU, §§ 93, 99; Thayer v. Hutch- ins, 13 Vt., 504; Pool V. Simons, 1 N. H., 239; 2 Parsons on Con., 117. 9 Holbrook v. Wright, 24 Wend., 169; Stephenson v. Price, 30 Tex.. 715; Jones on Bail., 70, et seq.; Story on BaH., § 123; Red. on Bad., § 707; Par- ker V. Tiffany, 52 111., 286. See, also, cases relating to different kinds of bailments, and illustrating the doctrine of the text. Stephenson v. Hart, 4 Bing., 476; Stevens v. Elwall, 4 Maule & Selw., 259; Millard v. Bridge, 4 (N. Y.), 361; Esmaiy v. Fanning, 9 Barb. (X. Y.), 189. >o Story on Bad., § 123. See, also. Burs v. Spoor, 22 La. An., 16, where the deposit, was of gold coin. " See, damages in case of conversion, post. Chap. 33. 312 THE LAW OF DAMAGES. Mandatum. deposited, where such was the purpose of the trust." And it is evident on general principles, that a failure of the bailee so to do, would subject him to the same damages as though it were part of the original deposit. And where a bailee of any kind has failed in any case to exercise the care and diligence required by the character of the bailment, and by which an injury has occurred to the prop- erty bailed, he is liable to the bailor therefor, and the measure of damages would ordinarily be the ditierence between the value of the property as it is in its damaged state, and its value in the condition it would have been in, if it had not beea injured." § 361. Mandatum.— This is where the bailee undertakes, as we have seen, to do some act for another in respect to the thing bailed, without recompense; and he is liable only for gross negligence in respect to it. But he is sometimes held responsible for negligence for misfeasance where he would not be for non-feasance.'' So, a further distinction has been made, where one volun- tarily profters to perform some act for another in relation to the thing bailed; in which case greater care is imposed on the bailee than where the request came from the bailor.'-' The measure of damages would be the same, in such cases, as we have indicated in cases of depositum. '^ Coykendale v. Eaton, 55 Barb. (N. Y.), 188; s. c, 37 How. Pr., 438; Bowlin V. Nye, 10 Cush., 41G; Rome Railway Co. v. Sulivan, 14 Geo., 283. See, also, Parker v. Tiffany, 52 111., 286. '3 Red. on Bail., § 314; Bowman v. Teal, 23 Wend., 306. The doctrine of the text may be further illustrated by cases of trespass and for a conversion, where the property is returned to the owner, but is damasked by the wrong- doer. See, post, §§ 378, 837, 871. "* 2 Kent's Com., 569, et seq. 'S 2 Kent's Com., 571, et seq. And where the profession or situation of a gratuitous bailee is such as to imply skill, he is liable for all damages caused by liis neglect to use it. Wilson v. Brett, 11 Mees. & W., 113; Red- field on Bail., § 690. BAILMENTS. 313 Commodatum— Pignus, or Pledging. § 362. Commodatum. — The same general principles above set forth apply, also, as to the measure of damages, where there is a loan for the use and benefit of the bailee without reward to the bailor. But here, the bailee is responsible for slight neglect. "What this neglect is, must depend upon the nature and character of the article bailed, and the circum- stances of the case. The ordinary expenses of the thing loaned must be borne by the borrower. But if the expenses are extraordinary, and arise from the inherent infirmity of the article, or are requisite for its preservation without any neg- lect on the part of the borrower, the lender must bear them ; and in case they are incurred by the bailee, he has a lieu on the same for his reimbursement of such extraordinary expenses. But, where there is a departure from the terms of the bail- ment, as where a horse dies on a trip to another place than the place stipulated, the bailee may be absolutely liable for the value of the horse." But, an action in case of such a bailment, could not be maintained by the bailor for the goods or their value, where they, without the fault of the bailee, have been taken by an armed force." Nor, will the bailee be permitted to set up a title in himself to justify a failure to return it.^' § 363. Pignus, or Pledging.— This is a bailment of per- sonal property as security for some debt or engagement. The j)awnee is required to bestow only ordinary care, for the bailment is for the benfit of both parties. The pawnee is usually responsible for all damages done by the use of the thing pawned. But where the thing pawned would not be injured by use, or would be benefitted by it, or where the tiling pawned is a charge upon the pawnee, as a cow or horse, here the pawnee may usually make a reasonable use of the pawn. '9 Martin v. Culbertson, 64 N. C, 328. »<» Abram v. Nunn, 42 Ala., 51; Yale v. Oliver, 21 La. An., 454. « Simpson v. Wren, 50 lU., 222. 314 THE LAW OF DAMAGES. Pignus, or Pledging. In case of loss of the property througli the want of ordi- nary care, the measure of damages would generally be its value, or for damages as for a conversion, according to circumstances. And in case of injury thereto, under like circumstances, the actual loss sustained thereby would be the damao-es. And in case of a sale of the property to satisfy the debt for which the same was pledged, the pledgor could recover the balance of the amount remaining, less any extra- ordinary expenses incurred by the pledgee, in the care and preservation of the pledged property, and the expenses of the sale. And the pledgor would be entitled to any increase and income of the pawn, unless the bargain or circumstances of the case, would prevent."'' In case of the loss of the property through theft, if it was owing to the negligence of the bailee, he would be responsible therefor; if not, he would not be liable." And where the bailee sold pledged stocks, without a demand of the debt for which the same was pledged, or notice to the pledgor, it was held, that the measure of damages should be the highest market price of the stocks between the time of the conversion and the trial."^ But the pledgee is not bound to sell the pledged property on default, nor is he liable in damages because the pledge afterwards depreciates in value. To protect himself against depreciation the pledgor should redeem and thereby be in a situation to dispose of it, at the most favorable time." "^ 2 Pars, on Con., 86, et seq. ^ Petty V. Overall, 42 Ala., 145; Edwards on Bailment, 223, et seq.; Story on Bail., § 238. =^4 Markham v. Jaudon, 41 N. Y., 235. See, also, Wilson v. Little, 1 Sand., 351 ; Erie Bank v. Smith, 3 Bew. (Phel.), 9, as to the duty of such bailees. The doctrme of the text (Markham v. Jaudon), is the general doctrine of New York and several other states, incase not only of the conversion of stocks, but of other property. See, post, Chap. 33, for an exposition of the law of damages in case of conversion. =sRozet V. McClellan, 48 111., 345. See, also,, as to diligence required, Eice V. Benedict, 19 Mich., 132. BAILMENTS. 315 "What Pledgee may Recover for Conversion— Locatio, or Hiring for Keward. § 364. What the Pledgee may Recover for a Con- version. — In an action brought by the pledgee against a third party who takes the pledge from him, he may recover the full value of the property. But, in an action for the value of the property by the pledgee against one who has purchased it of the pledgor he can recover only the amount of his claim, which was secured by the pledge.'^ And, a pledgor may transfer the pledged property to another, subject to the pledge, and the purchaser, after a tender of the amount due the pledgee and a demand of the pawn, may main- tain an action therefor, or for its value, and the measure of damages would be the same as in other conversions." A sale by a pledgee, on his own account, of a stock note, which he had authority to "use, transfer, or hypothecate," before the maturity of the debt, is a conversion, for which an action will lie.'^ The right to sell property is incident to a contract of pledge, and a part of the security.*^ § 365. Locatio, or Hiring for Reward. — This, in the language of Cancellor Kent, "is a contract by which the use of the thing, or labor or service about it, are stipulated to be given for a reasonable consideration." "" ^ Brownell v. Hawkins, 4 Barb., 491. See, also. Spoor v. Holland, 8 Wend., 445. =7 Franklin v. Neale, 13 M. & W., 481. See, also, Whitaker v. Sumner, 9 Pick., 309; Bing. L. Cas., 486. The measure of damages for the conver- sion of property is fuUy treated elsewhere; see, post. Chap. 33. ^8 Ogden V. Lathrop, 1 Sweeny (N. Y.), 643. So, a pledgee may tempo- rarily loan to the pledgor the pledged property, for a special purpose, and recover the same in trover if the property be not returned. Hutton v. Amett, 51 m., 193. See, also, Thayer v. Dwight, 104 Mass., 2-54. A pledge of chattels is usually effected by a mere delivery of the chattels; but incorpo- real property being incapable of manual delivery, cannot be pledged with- out a written transfer of the title. Debts, negotiable instruments, stocks ia incorporated companies, and choses in action generally, are pledged lq the latter way. Brewser v. Hartly, 37 Cal., 15. =9 Alexandria, etc., R. Co. v. Burke, 22 Gratt. (Va.), 254. See, also, Erie Bankv. Smith, 3 Brew. Phel., 9, as to the duties and liabilities of bailees. 3° 2 Kent's Com., 585, 586. 316 THE LAW OF DAMAGES. Where Bailee is to Bestow Care or Labor. In case of hiring, the bailee gains a special property in the thing hired, and in case of a conversion by another he may of course recover it or its value, against any person but the owner. And he is liable for any loss or damage the property may receive, if used for other purposes than that for which it was bailed."' The bailee is responsible for the want of ordi- nary care; but he is not an insurer against inevitable casualties, or losses occurring without his fault."" In case of a failure to return property hired the measure of damages is the stipulated hire for the time agreed upon, together with the value of the property, and interest upon the whole amount. And a recital of the value of the property in an article of agreement in reference to the bailment is not conclusive on this question, though a proper matter to be con- sidered by the jury."' Where a party hired a slave for a fixed and definite period, he was held liable for the entire amount for the stipulated time, although the slave was emancipated during the term." And where a person received a horse to keep for its use, by request of the bailor, it was held, not a gratuitous loan about which the bailee was required to exercise extraordinary care, but a contract for their mutual benefit, and requiring only ordinary care." § 366. Where the Bailee is to Bestow Care or Labor. — This embraces that class of bailments: 1. Where mechanics or manufacturers are employed to manufacture or repair the article bailed; 2. Where property is delivered to warehousemen ; 3' Duncan v. Rail R. Co., 2 Ricli., 613; Mayor of Columbus v. Howard, 6 Geo., 213. Where a horse dies while being driven beyond the place specified at the time of hiring, the bailee is Liable in damages for its value, as for a conversion. Fisher v. Kyle, 27 Mich., 454. 3^ Field V. Brackett, 56 Me., 121. 33 Negus V. Simpson, 99 Mass., 388. 3« Buford V. Tucker, 44 Ala., 89. 3S Chamberlain v. Cobb, 32 la., 161. BAILMENTS. 317 "Warehousemen. 3. Where it is delivered bj guests to innkeepers. In cases under the first of the foregoing classes the bailee is required to bestow ordinary care. He has a special property in the article bailed, and may maintain an action for the taking thereof or for an injury thereto. And if the article perishes in his hands without his fault, the bailor cannot recover therefor. "Where the manufacturer fails to comply with his contract, or where there is a material deviation from the contract, in the manufacture of the article, the bailor has one of two remedies; he may usually refuse to receive the article, and sue for the value of the materials furnished, or, he may recover his dam- ao-es for the breach of the contract, the measure of which would ordinarily be the difference between the actual value of the article, as it would have been if manufactured accord- ino- to the agreement, and the contract price, if the latter is less than the former; and if the contract price has been ad- vanced, then that sum, at least, should be added to tlie amount. The general rule applicable to the breach of a contract to deliver property, which we have already considered, would be here applicable.'^ § 367. Warehousemen.— These bailees are liable, only for the want of ordinary care. If goods, delivered to them, are injured through the want of this care, they are liable to the bailor for such damages as may be sustained thereby. The bailee may maintain an action for any injury to the property by a third party, and would be responsible for its value, if delivered by mistake to a wrong person." And the measure of damages, in case of a loss of the property through the negligence of the bailee, is not necessarily limited to the cost of the goods, or the price for which they are sold, but the market value may be recovered.'' But if they are taken from 36 See, ante, Chap. 12. 87 WilUard v. Bridge, 4 Barb., 361. 33 Leonard v. Dunton, 51 111., 482. 318 THE LAW OF DAMAGES. Innkeepers— Common Carriers— Insurers. him by authority of law, it is a good defense to an action by the bailor for their value.'' § 368. Innkeepers.— Innkeepers, like common carriers, are held to be insurers of property committed to their care, by guests, except against losses occurring by act of God or the public enemy, or the neglect or fraud of the owner." Where there is a liability, the bailor may recover his actual loss sus- tained; and this is not confined to the cost of the goods." And in New York, where the bailor sued an innkeeper for the loss of a quantity of gold coin, it was held, that the judgment should be entered for coin and interest, and not its equivalent in currency." Questions of contributory negligence will fre- quently occur in these cases, the general doctrine of which we have already considered, and which we shall hereafter consider in connection with common carriers." The same general principles relating to damages are applicable in each class of bailments. § 369. Common Carriers— Insurers .—The most impor- tant branch of the law of bailments, is that which relates to common carriers. Here the responsibility of the bailee is that of absolute warranty against injury to, or loss of, the goods, except that accruing through the acts of God or the public enemies, or the fault or fraud of the bailor. An act of God is construed to mean that which operates without the aid or interference of man. '' Again, Lord Mans- field, says: " The act of God is natural necessity, as winds and storms, which arise from natural causes and is distinct from 39 Burton v. Wilkinson, 18 Vt., 186. *° 2 Parsons on Con., 146, et seq. 4' Needles v. Howard, 1 E. D. S., (N. Y.), 54. *» Kellogg V. Sweeney, 46 N. Y., 291. « See, post, §373. 44 1 Roll. Ab. (c), pi., 4; Co. Lit., 89; Strohan v. Detroit, etc., R. Co., 23 Wis., 126. BAILMEKTS. 319 Rule not Applied to Live Stoclc— Interruption of Navigation. inevitable accident."" Again, the act of God which excuses the common carrier must, it has been said, be at once the prox- imate and sole cause of the loss." § 370 . The Rule not Applied to Live Stock.— The rule of strict liability is not applied in its full extent to the car- riage of live stock. In the transportation of such, in the absence of negligence, the carrier is relieved from responsi- bility for such injuries as occur in consequence of the vitality of the freight;'' and from such injuries as arise from their nature and propensities and which could not be prevented by foresight, vigilance and care." But a common carrier was not permitted to show, in defense of an action for a loss, as the act of a public enemy, a destruc- tion of the property by a provo-marshal of the Confederate Government, which government and authority the carrier had recognized." § 371. Interruption of Navigation.— So, the danger of interruption of navigation may enter into and become a part of the contract. Thus, where a boat took freight at Dubuque, Iowa, in November, to transport to St. Paul; it was held, that the carrier was bound to transport it; but, under the circum- stances, was not bound to transport it during the same season; « The Prop., etc., v. Wood, 4 Doug., 287; s. c, 3 Esp. N. P. R., 127. <« Smith V. Slieppard, Abb. on Ship., 251, et seq. *7 Cragin V. N. Y. Cent., R. Co., 51 N. Y., 61. See, also, Pennsylvania, etc., R. Co. V. Buflfalo, etc., R. Co., 49 N. Y., 204. *8 Angel on Car., § 214; Clark v. Rochester, etc., R. Co., 14 N. Y., 570; BisseU V. N. Y. Cent. R. Co., 25 N. Y., 442; Smith v. New Haven, R. Co., 12 AUen (Mass.), 531; Michigan, etc., R. Co. v. McDonough, 21 Mich., 165. See, also, Boyce v. Anderson, 2 Pet. (U. S.), 150, where Marshall, C. J., held, that the general doctrine of habihty of common carriers did not apply to the carriage of slaves. « Patterson v. N. C. R. Co., 64 N. C. 147. A loss by theft or an irresist- ible mob will not excuse. Lewis v. Ludwick, 6 Coldw. (Tenn.), 368. See, also, Wallace v. Clayton, 42 Geo., 443; Wallace v. Saunders, 42 Geo., 486; Spaid V. New York, etc., Steam Ship Co., 3 Daly, 139; lU. Cent. R. Co. v. McCleUan, 54 111., 58. 320 THE LAW OF DAMAGES. Where Negligence of Carrier Co-operates with Natural Causes. and that if navigation became impracticable in consequence of the cold and, storms, or of ice, the boat is excused from fulfilling the contract, either on the ground of the act of the higher power, or, because of the contract and the contingen- cies, which may well be considered to have entered into the contemplation and foresight of the parties; or, as within the clause of the contract, excepting the unavoidable dangers of the river. And that, under one or the other of these, the boat had a right to stop and turn about on the voyage, if it became impracticable."" And, where goods received by a carrier were apparently in good condition, but, subsequently to the delivery, it was dis- covered that they had been injured while in the charge of a former carrier; it was held, that the last carrier was not liable for the injury received while being transported by the former carrier with whom he had no connection." § 372. Where the Negligence of the Carrier co-ope- rates with the Natural Cause.— Again it has been held, that the act of God, which excuses the carrier, must be the proximate and sole cause of the loss."'' And if the negligence of the carrier co-operates with the natural cause, he is liable for the loss." But, he is not liable for losses occurring through natural decay or inherent defects."* Nor is he liable where the owner or shipper has been guilty of negligence in not dis- closing the nature and character of goods requiring peculiar care; nor would he be liable on general principles for the neg- s° West V. The Steamboat, Berlin, 3 la., 532. See, also, 2 Pars, on Con., 161; Wine v. Tlie lU. Cent. R. Co., 31 la., 583; Angel v. Tlie M. & M. R. Co., 18 la., 555; Hohannan v. Hammond, 42 Cal., 227. s' Carson v. Harris, 4 G. Greene, (la.), 516; West v. Steamboat Berlin, supra. 5== Smith V. Shepard, Abb. on Ship., 383, 5 Am. ed. 53 Parsons v. Hardy, 14 Wend., 215. 54 Clark V. Barnwell, 12 How., 272; 2 Pars, on Con., 162. BAILMENTS. 321 Doctrine of Contributory Negligence— Application. ligence or fraud of the owner, whicli caused or contributed materially to the loss." And in case of an explosion of a boiler to a steamboat, "whereby loss or injury to merchandise occurs, the carrier is bound to show, in order to avoid liability, that the accident occurred from causes which human skill and foresight in the construction %nd management of the machinery, could not have prevented."' The carrier must be free from fault, mate- rially contributing to the loss." But he would not, as we have observed, be responsible for injuries to animals, which could not be guarded against, or prevented by the reasonable dili- gence of the carrier."' The same principles would apply to railroad, stage coach, and steamboat carriers. §373. Doctrine of Contributory Negligence— Appli- cation- — In an action against a common carrier, to recover damages for fruit trees missent, and injured thereby; it was held, that the plaintiff was guilty of contributory negligence, in marking the trees "luka Iowa," without designating the county, there being two places of that name in Iowa, in dif- ferent counties; and the trees were sent to the place of that name, not designed by the bailor."' So, where a common carrier has fixed a tariff of charges for transporting gold; and a passenger surreptitiously introduces gold into the carrier's vehicle, intending to avoid payment for its transportation, he is guilty of gross fraud, and he can- not recover in case of loss. But if the carrier knew that the package contained gold, and did not exact of the passenger the usual rates for its transportation, but merely such as were ss Edwards v. Shen-att, 1 East., 604; Ralson v. Donnovan, 4 B. & A., 21; Rixford V. Smith, 52 N. H., 355. 56 Caldwell v. New Jersey Steamboat Co., 47 N. Y., 282. 57 Railroad Co. v. Raves, 10 Wall., 176; Dunson v. N. Y. Cent. R. Co., 3 Lan. (N. Y.), 265. 53 Pemi., etc., R. Co. v. Buffalo, etc., Co., 49 N. Y., 204; See, also, Cragin V. N. Y. Cent. R. Co., 51 N. Y., 61; Reed v. Phil. R. Co., 3Houst. (Del.), 176. 59 Conger v. Chicago, etc., R. Co., 24 Wis., 157. 21 322 THE LAW OF DAMAGES. Non-Delivery— Measure of Damages. chargeable for ordinary extra baggage, he is not thereby de- frauded, and is liable in case of loss, for the whole value." § 374. Non-Delivery— Measure of Damages. — The general rule of damages in an action against a common car- rier, where he is liable for a loss, or for a non-delivery of any portion of the goods which he undertook to deliver, is the value of the goods, at the time and place where they should have been delivered, with interest, less the proper charges of transportation."^ Compensation for the actual loss, which is the natural and proximate consequence of the act, and excluding speculative profits and remote and indirect losses, is the fundamental principle in such cases."' And, the measure of damages on coin shipj)ed to this country, where there is a ftiilure to deliver is the market value of the coin in our currency, at the time it should have been delivered, deducting the freight." But anticipated and speculative profits, are not generally allowed as damages." «' Hellman v. HaUaday, 1 Wolw., U. S. C. C, 365. 6^ Sturgess v. Bissell, 46 N. Y., 462; Sherman v. Wells, 28 Barb., (N. Y.), 403; Spring v. Haskell, 4 Allen, 112; McGregor v. Kilgore, 6 Ohio, 358; Lau- rent V. Vaughn, 30 Vt., 90; Taylor v. Collier, 26 Geo., 122; Davis v. N. Y., etc., R. Co., 1 Hilt., (N. Y.j, 543; Perkins v. Portland, etc., R. Co., 47 Me., 573. 63 Medbury v. The N. Y. etc., R. Co., 26 Barb., 564. See, also. Rice v. Ontario Steamboat Co., 56 Barb., 384; Cooper v. Young, 22 Geo., 269. 64 The Patrick Henry, 1 Bene., 292. See, also. King v. Shepherd, 3 Story, 249; Gushing v. "Wells, Fargo & Co., 98 Mass, 550, where on a failure to de- liver double eagles of U. S. Coinage, the measure of damages was held to be their value in legal tender notes at the time and place they should have been delivered, with interest from the time of making the demand. During the RebelUon, "gold coin" was an article of merchandise, "within the meaning of the acts of Congress of July 13, 1861. and May 20,1862, (12 Stat, at large, 255, 404), prohibiting the taking of goods, wares and mer- chandise to an insurrectionary district." Gray's Gold, 13 Wall., 358; Vaughn & Telegraph, 14 Wall., 258. But see Kellogg v. Sweeney, 46 N. Y. 291. 65 Bazm v. Steamship Co., 3 WaU. Jr., 229. BAILMEN"TS. 323 Delay in Deliverj'. § 375, Delay in the Delivery.— In ease of a delay in the transportation of merchandise beyond the time stipulated, or, if there is no stipulation, beyond a reasonable time for the transportation and delivery of the same, the damages would be the direct and actual losses sustained thereby, such as the decline in value of the property. The difference be- tween the value of the property at the time when and the place where it should have been delivered, and its value when it was delivered, if it has declined in value, would be the proper mode of estimating the damages, unless the delay was inevitable, as where it was caused by the act of God or the public enemy. From this amount it would, howev^er, be proper to deduct the freight, where that had not been paid." But we have noticed a larger liability, where the parties at the time of the making of the contract, contemplated, or had reason to contemplate particular losses, and more remote damages from the delay. Thus, the carrier may be liable for profits lost in conse- quence of an unnecessary delay in transporting and deliver- ing merchandise, where it has been sent for some particular «7 Sisson V. The Cleveland etc., R. Co.. 14 iMich., 489; Peet v. Chicago & N. W. R. Co., 20 Wis., 594; Weston v. Grand T. R. Co., 54 Me., .376; Kent V. Hudson R. R. Co., 22 Barb., 278; Baggs v. N. Y. C. R. Co., 28 Id., 515; Jones V. N. Y. C. R. Co., 29 Id., 633; Ward v. N. Y. C. R. Co., 47 N. Y., 29; Rowev. The Steamer City of Dublin, 1 Bene., 46. Loss by pirates is regarded as aloss by the public enemy. Magellan Pirate?, 25 Eng. L. & E., 595, s. c. 18 Jur.. 18; Smith v. Griffith, 3 Hill., 333; Wilson v. The Lan- cashire, etc., R. Co., 30 L. J., C. P. (N. S.), 232; Ingledew v. Northern R. Co., 7 Gray (Mass.), 86; Cutting v. Grand Tnmk R. Co., 13 Allen (Mass.), 381; Scott V. Boston & N. 0. Steamship Co., 106 Mass., 468; Kingv. Wood- bridge, 34 Yt., 565; Demmg V. Grand Trunk R. Co., 48 N. H., 455; Whalon V. Aldrich, 8 Jlinn., 346; Cooper v. Young, 22 Geo., 269, where the profits of a business lost were not allowed. See, also, Davis v. Cin. H. & D. R. Co., 1 Dis., 23. But see Wibert v. TheN. Y. & E. R. Co., 19 Barb.. 36; Jones V. N. Y. & E. R. Co., 29 Barb., 633; Kirtland v. Leary, 2 Sweeney, (N. Y.), 677; Wardv. N. Y. Cent. R. Co., 47 N. Y., 29; CoUard v. S. E. Railway Co., 7 H. & N. 79; Wilson v. Lancashire, etc., R. Co., 99 E. C. L., 632; same v. New Castle, etc., R. Co., 18 E. L. & E., 557. The undertakmg to cany, implies that it shall be done in a reasonable time. See above authorities. 324 THE LAW OF DAMAGES. Liability Beyond the Terminus. purpose; or the value of tlie use of machinery, and expenses of persons employed to put up and operate the same; or the loss of a crop of grain in consequence of such delay of the machinery where the carrier had reason to contemplate at the time of receiving the property, that such losses would prob- ably occur from such delay/" § 370. Liability Beyond the Terminus.— Where goods are received by a carrier for a certain destination, beyond the terminus of his road, is he responsible for the carriage of the goods for the entire route? The general doctrine in England makes the carrier liable, in such cases, for the safe delivery of the goods at the place of destination;'" but in this country, the decisions have been conflicting. The decisions generally turn upon the question of the intention of the parties, the custom of the business, and the construction to be placed upon the contract as derived from the circumstances. In England, the acceptance of the goods to be transported to the place of destination, even in the absence of any ex- press agreement, is considered an undertaking to deliver them there, and the first carrier is liable, wherever the loss occurs; and, in this country, there seems to be a tendency of the courts to construe the undertaking of the carrier the same way. And if a carrier receives goods marked and directed to a particular place beyond the terminus of his route, this has been held to be a prima facie undertaking to deliver them according to the marks and directions." ^ See, ante, § 252, et seq.; Caledonian R. Co. v. Cole, 3 L. T., 252. Also, see, post. §384, Priestly v. Northern Ind., etc., R. Co., 26 111., 205. 7° Muscliamp v. Lancaster, etc., R. 15 Jur., 448; s. c. 3 E. L. & E., 497; Scotthorn v. S. S. R. Co., 8 Exch., 341, s. c, 18, E. L. & E., 553; Wilson v. York, etc., R. Co., 18 E. L. & E., 557; Crouch v. London, etc., R., 14 C. B., 255; s. c, 25, Eng., E. & E., 287. 7' Angel V. M. & M. R. R. Co., 9 la., 487; Porter v. Cliicago & X. W. R. Co., 20 la., 73; Nashua Lock Co. v. Worcester, etc., R. Co., 48 N. H., 339; 2 Pars, on Con., 212, et seq. The current of decisions in Connecticut seem to be adverse to this doctrine. Hood V. N. Y. & N. H. R. Co., 22 Conn., 1; Elmore v. The Naugatuck R. Co., BAILMENTS. 325 Liability Beyond the Terminus. Of course, it is competent for the carrier by express contract to deliver goods beyond the terminus of his route; and where different roads are united in one continuous route, and goods are received to be sent to some point on a connecting road, this is generally considered an undertaking to deliver them at the latter place." But the rule supported by the preponderance of American authority, seems to be, that where goods are delivered to a carrier, marked and directed to a particular place beyond the terminus of his road, and there is no contract to deliver at the place of destination, except such as may be inferred from the circumstances, the carrier is only bound to transport and 23 Conn., 457; TheNaugatuck R. Co. v. The Button Co., 24 Conn., 468. But see, Converse v. The Norwich, etc., R. Co., 33 Conn., 166. See, also. Lock Co. V. Worcester, etc., R. Co., supra. The doctrine, that where goods are received by a common carrier, marked, or otherwise directed to a place beyond the terminus of the carrier's line, is prima facie evidence of a contract to transport the goods to their final destination, though the freight money is not paid in advance, is sustained by the following cases. Tliis is the English doctrine, even though the original carrier is not shown to have any connection in business, with other carriers beyond his own line. Muschamp v. The Lancaster, etc., R. Co., 8 M. & W., 421 ; Watson v. The Ambergate, etc., R. Co., 3 L. & E., 497; Collins v. The Bristol, etc., R. Co., 11 Exch., 790, s. c. H. L. Cas., 194; Coxon v. The Great West. R., 5 H. & M., 274; 2 Red. on Rail. W., 104, et seq. For further American cases, sus- taining the same doctrine, see. Foy v. The Troy, etc., R. Co., 24 Barb., 382; Schrodder v. The Hudson R. R. Co., 5 Duer, 55; Cent. R. Co. v. Copeland, 24 111., 332. But where a receipt given for goods to be transported beyond the terminus of the defendant's railroad, provided that the rail- road company should not be responsible beyond the limits of their own road, it was held, that the carrier might thus limit his responsibility. The Detroit, etc., R. Co. v. The F. & M. Bank, 20 Wis., 122. See, also, Angel v. The Miss., etc., R. Co., supra; St. John v. Van Santvoort, 25 Wend., 660. So, where the carrier receives full freight for the whole dis- tance and gives a receipt therefor, the liabdity continues the whole distance. Choteauxv. Leach, 18 Pa. St., 224. See, also, Baltimore, etc., Co. v. Brown, 54 Pa. St., 77; Candee v. Pennsylvania, etc., R., 21 Wis., 582; Redfield on Railways, 109; East Tenn., etc., R. Co., v. Rogers, 6 Heisk., 143; Western, etc., R. Co. V. McElwee, Id., 208; Louisville, etc., R. Co. v. Campbell, 7 Heisk., 253. (1871). 7^ Noyes v. Rutland, etc., R. Co., 27 Vt., 110; Wilcox v. Parmelee, 3 Sand., 610; Red. on Bail., § 183. 526 THE LAW OF DAMAGES. Liability Beyond the Terminus. deliver tliem as required by the established usages of the business." But we have already given more attention to this subject than required by the character of this treatise, and the inquirer is referred to those especially devoted to it. It is hardly necessary to say, that the measure of damages for loss, injury, delay, or failure to deliver the goods at a place beyond the road of the carrier who receives them, in case of his liability therefor, would be the same as if they were to be deliv- ered at some place on the line of his road. But there is, perhaps, one qualification to the general rule, which may be applicable in either case, and that is, that where goods are lost before shipment, and at the place of shipment, the measure of dam- ages is their value at that place, and not at the place of destination.'^ 73 Am. L. R., Vol. 4, p. 2o8, note, where may be found a review of the cases. See, also, 2 Pars, on Con., 213; Van Santvoort v. St. John, 25 Wend., 669; s. c, 6 Hill, 157; Farmers', etc.. Bank v. Champ, Trans. Co., 18 Vt., 140; 23 Vt., 209; Edwards on BaU., 528. 74Lakeman v. Grinnell, 5 Bosw. (N. Y.), 625. But under special circumstances and a loss in the port of shipment, it was held proper to allow the value of the property at the place of destination; the injured goods, without notice to the shipper, having after injury been sold by the carrier at the port of shipment. The Joshua Baker, 1 Abb. Adm.. 215. See, also. The Gold Hunter, 1 Blatch. & H., 30, in support of the general rule. Where a carrier who receives goods for transportation, addressed to a place on the line of a connecting carrier, and charges and receives a price for the entire distance, he contracts that the goods shall be carried through for the price paid, and is bound for the risks of a common carrier to the place of destination. Condict v. Grand Trunk Railway, 4 Lans. (N. Y.), 106. And where a carrier conveys goods over a portion of the route between the points of shipment and consignment and holds them for delivery to some connect- ing carrier, the liability of the former in respect to such goods does not thereby cease, but continues until the latter has had a reasonable time to take them away. Wood v. Milwaukee, etc., R. Co., 27 Wis., 541 (1871). As to the joint liability of a continuous line of earners, each operating liis O'svn section separately, but all sharing profits, see. Barter v. AVheeler, 49 N. H., 9; Parmelee v. Western Trans. Co., 26 Wis., 439 (1871). The earner, in whose possession they are when destroyed, is liable in all cases to the owner. Conkey v. Milwaukee, etc., R. Co., 31 Wis., 619. BAILME]NTS. 327 Market Value. The actual damage in that case would only be the value there, if the shipper had due notice thereof, as with this value like goods could be purchased and shipped to the place of destination, and the owner would ordinarily be indemnified by the market value at the place of shipment. § 377. Market Value. — The same general principles, as to market value, apply here, which we have observed as applicable in the case of a breach of contract to deliver goods sold.'® And when the goods have no market value at the place of destination, the value may be ascertained by adding to the price at the place of manufacture or shipment, or place where the value is known, the cost of transportation to the place of destination, and a reasonable profit." The value must be based on evidence, and cannot be assessed on mere conjecture.'^ But, it has been held, that the legal presumption, in the absence of proof of the actual value of the goods at the place of destination, is, that their value there is as much at least as at the place of shipment, and that if there is proof of the value at the place of shipment, the defendant cannot, under such circumstances, justly complain of an estimate based on that value.''' And where the only evidence of the value of the goods was the price stated in the bill made out at the time they were bought, it was held, that the jury should have been limited in assessing damages to the price stated in the bill, 7^ See, ante, § 264, et seq. 77 Rice V. The Ontario Steamboat Co., 56 Barb.. 384; Bridgman v. The Steamboat Emily, 18 Iowa, 509; Harris v. Panama R. Co., 5 Bostv. (X. Y.), 312. 78 Traloff V. The N. Y. Cent. & Hudson R. Co., 10 Blatch. C. C. R., 16. 79 Rome R. Co. v. Sloan, 39 Ga.. 636. And where by the acts of the car- rier the owner is prevented from examining the goods and showing their actual quality, the jury may infer that they were the best quality of the kind or species. Bailey v. Shaw, 24 N. H., 297. 328 THE LAW OF DAMAGES. Partial Loss or Injury. with interest tliereon from tlie time of the loss till the time of the trial/" So, in case of a failure to carry, where it was shown that the article could not be purchased at the place of destination, and the carrier had the exclusive right of transportation, by the cheapest mode, it was held proper to consider the dilfer- ence between the price agreed on, or usual by that mode, and the terms on which other j^arties would carry it by other modes; and the court suggested that it might not be improper to admit additional evidence of loss, by the expense of hands, etc., during the necessary delay and suspension of business, occasioned by the default of the carrier, for the period during which the plaintiff, by ordinary diligence could not supply himself by other means with the article agreed to be carried." § 378. Partial Loss, or Injury.— Where goods have been damaged in the course of transportation through the fault of the carrier, the rule of damages is the difference between the value of the goods as they are, and the value as they should have been, at the time and place where they were to be delivered according to the contract, and to which interest is usually allowed to be added; but from which the freight should be deducted where it has not been advanced.'"' But, it has been also held, that where the merchandise, thus injured by the carrier, had been repaired or placed in a suitable condition for sale by the owner, after its arrival at the place of destination, he could only recover for his time and expenses thus incurred, besides the difference in value of the merchandise after the care and labor thus bestowed, and what ^ Blumenthall v. Brainard, 38 Vt., 402. And the receipt of the carrier for the goods is prima facie, but not conclusive, evidence of their value. Porter V. The Chic. N. W. R. Co., 20 Iowa, 73. «' Cooper V. Young, 22 Ga., 269. ^^ Henderson v. Maid of Orleans, 12 La. An., 352. See, also, Lewis v. Ship Success, 18 La. An., 1; Black v. Camden, etc., R. Co., 45 Barb. (N. Y.), 40; McGregor v. KHgore, 6 Ohio 358. The Columbus, Abb. Adm., 97. BAILMENTS. 329 Sale of Goods -Interest as Damages— Where Canier Eefuses to Receive, etc. it would have been worth at the place of consignment without the injury, as this would be just to the carrier and afford the owner a proper indemnity.*^ § 379. Sale of the Goods.— The amount realized on a sale of damaged goods at auction, where the same is fairly con- ducted, is presumed to be the value of the goods, at the time, in the damaged state." Kor is the carrier entitled to any deduction on account of the goods being insured by the owner.** But where a carrier having received instructions to deliver cotton at Norfolk, to a factor who had been directed to hold it until further orders, but instead thereof delivered it to a factor at Petersburg!!, who having no instructions about it sold it immediately, and cotton rose rapidly and steadily after the sale, the carrier was held liable for the highest price the cotton would have realized at any time before the suit was brought therefor, the suit having been brought within a reasonable time.*' The general prin- ciples of damages in case of a conversion would here apply. § 380. Interest as Damages.— It may be observed that interest is now generally allowed on the amount of loss sus- tained by a breach of such contracts as well as in cases of torts, but we shall hereafter consider the subject of interest more fully as an element of damages.** §381. Where the Carrier Refuses to Receive and Transport according to Contract .—The damages for a refusal to carry goods contracted to be carried, where the bailor is unable to procure other means of transportation, 84 Winne v. 111. Cent. R. Co., 31 la., 583. 85 The Columbus, 1 Abb. Adm., 95. 86 Merich v. Brainard, 38 Barb. (N. Y.), 574; s. c, 84 N. Y., 208, where the judgment was modified on other grounds. 87 Arhngton v. Wilmington R. Co., 6 Jones (N. C. L.), 68. 88 Cowley Y. Davidson. 13 Minn., 92; Underwood v. 111. Cent. R. Co., 1 Bis- sell, 403; Mote v. C. & N. W. R. Co., 27 la., 22; Fraloff v. The N. Y. Cent. R. Co., 10 Blatch. (C. C. R.}, 16; Wolfe v. Lacy, 30 Tex., 349. 330 THE LAW OF DAMAGES. Where the Carrier Refuses to Eeceive and Transport According to Contract. would ordinarily be the difference in the value of the article at the place from whence it was to be carried, and the place where it was to be delivered, less the freight for carriage.'' But on general principles, as we shall hereafter notice, it would be the duty of a party under such circumstances to use reasonable means to prevent loss, and secure the transporta- tion of the merchandise, after the failure of the defendant to receive and transport it; and where he might have secured the transportation without delay, the damages would be only the difference between the price paid for the transportation and that contracted to be j)aid therefor; to which might be added the amount of any necessary expenses incurred by reason of the carrier's failure, and the value of time spent in making a new contract. Thus, where the defendant refused to perform an ao-reement to transport corn at a certain price, in an action for damages for the failure, the plaintiff was held entitled to recover the difference between the contract price and what he would be compelled to pay for the freight. And, where the price of transportation had risen before the time when it was to be shipped, and the carrier refused to receive and ship the same according to contract, the plaintiff was held entitled as damages, to the rise in the jjrice of transportation, without showing that he shipped the goods or had goods to ship.°° So, where the plaintiff made a contract with the defendant, a common carrier, to transport certain wheat, oats and corn, from Council Bluffs to St. Louis, at a stipulated price per sack, and the carrier refused to receive and transport the same, it was held 'that the measure of damages, in the absence of any proof that other means of transportation could be se- cured, was the difference between the value of tlie grain in Council Bluffs and St. Louis, at the time the contract should 89 Brackett v. McNair, 14 John., 170; O'Connor v. Foster, 10 Watts, 418; McGoven v. Lewis, 56 Penn. St., 231. 9° Ogden V. MarshaU, 4 Seld. (8 N. Y.), 340; Grund v. Pendergast, 58 Barb. 216. BAILMENTS. 331 Where the Camer Refuses to Eeceive and Transport According to Contract. have been performed, less the contract price of the aflfreight- ment.'' So, in an action for a breach of contract to transport goods, it was held to be the duty of the plaintiff to use reasonable means to i^rocure other conveyance of the same. And, if such convej-ance was procured, the plaintiff could onl}' recover the difference between the price paid, and. the contract price with the defendant; to which, however, there could undoubtedly be added any extra trouble and expense, in procuring another conveyance, and the loss, if any, which occurred by any un- necessary delay beyond the time fixed for delivery, or to be implied in the contract with the defendant."* § 382. And where the master of a vessel contracted for the transportation of a cargo, and after a portion of the same was received on board the vessel the master died, when the owner repudiated the contract, and refused to receive any more of the cargo, or to return the portion received; it was held that the shipper could recover for the value of the goods withheld from him; for the cost of taking the residue from his storehouse to the dock, before notice of the refusal; for any injuries received by them, while they lay there awaiting acceptance by the owner of the vessel; and for the difference, if any, between the contract price for the transportation, and the actual expenses incurred in obtaining another mode of conveyance of the balance of the merchandise. But that he could not recover against the owner of the vessel for injuries to the property, received after the owner refused to complete the contract, caused by taking it to the vessel for delivery, or by want of care of the same thereafter, on the part of the shipper.^'' 93 Bridgman v. The Steamboat Emily, 18 Iowa, 509. 94 Grund V. Pendegast, 58 Baxb. (N. Y.), 216. 95 The Flash, 1 Abb. Adm. R., 119. 332 THE LAW OF DAMAGES. Delay in Delivery or Injury to Goods, etc.— Failure to Deliver Macliinei-y, etc. § 383. Delay in the Delivery, or Injury to Goods , no Ground for Refusal to Accept.— Where there has been a de- lay in the carriage and delivery of goods, or an injury thereto by the carrier, this is no ground for a refusal to accept them by the owner or consignee. It is his duty to receive the goods, and this is usually no waiver of any claim for damages. This duty to receive exists, so long as the goods are not sub- stantially changed but remain fit for the ordinary uses for which they were intended,'^ § 384. Failure to Deliver Machinery, etc.— Hadley v. Baxendale. — A somewhat different rule of damages obtains for failure to deliver specific articles or manufactures, such as machinery for a particular use; especially where the carrier has knowledge of this fact. Thus, where a carrier contracts to carry and deliver machinery to be used for some special purpose, known to him, as machinery for a mill, or a machine for threshing, or reaping, or for mowing; in such cases, the liability would be extended to cover all such losses as were contemplated by the parties, or, as they had reason to contemplate as the result of a failure to deliver as re- quired by the contract, express or implied." Damages for a failure to deliver machinery in the time required was held, under such circumstances, to be the value of its use during the period of improper detention.^' And, in an action against a carrier for a delay in delivering a boiler, constructed for a steam saw mill, the court held that it was analogous to a breach of contract to deliver articles sold, or contracted for a special purpose, and that the measure of damages should be compensation for actual expenses incur- 96 Bowman V. Teal, 23 Wend., 306; Story on Bail, § 582; Hackett v. B. C. & M. R. Co., 35 N. H., 390; Home Ins. Co. v. Western Trans. Co., 51 N. Y., 93; Howe v. Oswego, etc., R. Co., 56 Barb., 121; ScovH v. Griffith, 12 N. Y. 509; Briggs v. The N. Cent. R. Co., 28 Barb., 515. 97 Hadley v. Baxendale, 9 Exch., 341; Smeed v. Ford, 1 Ellis & Ellis, 602. 98 Priestly v. The Northern Ind. & Chic. R. Co., 26 111., 205. BAILMENTS. 333 Failure to Deliver Machinery, etc.— Hadley v. Baxendale. red bj the delay — the time consumed and trouble taken in traveling to ascertain -^hat had become of the boiler; the expenses incurred in making preparations for connecting the boiler with the fixtures and machinery of the saw mill, and also interest on the value of the property during the time of the detention. "" And where the plaintiff, who was about to commence the publication of a newspaper in Cincinnati, had purchased machinery in New York for this purpose, of which the car- rier, the defendant, was duly notified at the time it undertook to carry the machinery from Kew York to Cincin- nati in four days, and there was considerable delay in deliver- ing the same, and a portion of it was lost; it was held, in an action for damages therefor, that the carrier was liable for the direct and necessary consequences, including the wages of the men who were idle for want of the machinery after the time it should have been delivered, and for the efforts made and expenses incurred in order to recover the lost portions of it, as well as the cost of replacing that portion of it which was lost.'"" § 385. So, in a recent case in Mississippi, in an action against a carrier for delay in transporting a boiler intended for a steam saw mill, after a survey of the authorities, Small, J., delivering the opinion of the court, made the following clear and accurate statement of the law on the measure of damages in such cases, namely: 1. The proximate natural consequences of the breach must always be considered. 2. Such consequences as from the nature and subject matter of the contract, may be reasonably thought to have been in the contemplation of the parties at the time it was entered into, should be taken into account. 99 Davis V. C, H. & D. R. Co., 1 Desney, (S. C. R. of Cin., 0.), 23. '" Cincinati Chronicle Co. v. White Line Transit Co., 1 Cin. (0.) R., 300. 334 THE LAW OF DAMAGES. Failure to Deliver Machinery, etc.— Hadley v Baxendale. 3. Damages, which fairly may be supposed not to have been the natural sequence of the breach, shall not be recovered, unless by the terms of the agreement, or by direct notice, they are brought within the expectation of the parties. 4. Loss of profit in a business cannot be allowed, unless the data of estimation are so definite and certain that they can be ascertained reasonably by calculation, and then the party in fault must have had notice, either from the nature of the contract or by explanation of the circumstances, at the time the con- tract was made, that such damages would ensue from non- performance. 5. If the contract was made with reference to embarking in a new business, (such as sawing lumber for the market,) the speculative profits which might be supposed to arise, but which were defeated because of a breach of the contract, wdiich delayed the business, cannot be looked to as an element of damages. * * * 6. If the delay is in the transportation of machinery to be applied to a special use, known to the carrier, he is responsible for such damages as are fairly attributable to the delay, such as the value of the use of the machinery, to be tested by the rental price or otber approximate means; the expenses of idle hands, and the loss of gain on work con- tracted to be done for another person, if such work could have been done if the machinery had been delivered, and the gain thereby definitely ascertained in proper time. 7. The party injured must not remain supine and inactive, but should make reasonable exertions to help himself, and thereby reduce his losses and diminish the responsibility of the party in default to him." '" This opinion by the learned judge, is a brief, but perspicu- ous statement of the elements of damages in such cases, and the propositions thus furnished, are a convenient guide to «oi Vicksburg & Meridan R. Co. v. Ragsdale, 46 Miss., 458. BAILMENTS. 335 Failure to Deliver Machinery, etc.— HacUey v. Baxendale. determine the damages where common carriers are respon- sible. § 386. Where goods are contracted to be sold at a price fixed, and to be delivered at a particular time and place, and a carrier undertakes to transport and deliver them, with a full knowledge of the facts, the measure of damages for a delay in the delivery, by which the consignor loses the sale, is the loss sustained, which would be the difference between the con- tract price and the market price, at the time of the delivery, less the cost of carriage, of course, where it has not been paid.'"-^ So, in an action for a failure, by a carrier to deliver corn within a reasonable time, after receiving it for carriage, and by the unreasonable delay of the carrier it became heated and injured; it was held, that if the carrier knew it was shipped under a special contract, for its sale and delivery at a certain price, that price should govern in assessing damages; but if not, the market price should govern.'"^ So, where peas were shipped from Canada, to be carried to New York, but owing to the carrier's neglect and inexcusable delay, they were stop- ped on the way by the freezing of the lakes, and the carrier refused to transport them by rail or to deliver them to the shipper, except on payment of the freight, and they would have been detained through the winter season, if the plaintiff had not replevied them, which he did, and sent them to the Boston market, which, under the circumstances, was a judi- cious course, it was held, that the plaintiff should recover the difference between the net proceeds of this sale in Boston, and their market value in New York at the time when they should have been delivered.'"^ '°2 Doming- v. The Grand Trunk R. Co., 48 N. H., 455. See, also, Ward V. N. Y. Cent. R. Co., 4 N. Y., 29. '°3 111. Cent. R. Co. v. McClellan, 54 III., 58. See, also. Priestly v. North- ern Ind. & Chicago R. Co., 26 111., 205; Favor v. Philbrick, 5 N. H., 357. '°4 Laurent v. Vaughan, 30 Vt., 90. 336 THE LAW OF DAMAGES. When General and Limited Rule Prevails— When Larger Rule Prevails. § 387- The same doctrine lias frequently been recognized in England. The famous case of Hadlej v. Baxendale is one in point.'"^ But, in a recent case where some regalia had been sent to plaintiif, to be used in a procession, and which he had hired, for that purpose, at an expense of £20, but it had not been delivered in time to be used, owing to the unreasonable delay of the carrier, and the plaintiff incurred £5 additional expense, in looking for it; it was held, that the plaintiff was entitled to recover the latter item as damages, but not tlie former which was too remote; that it was not reasonable to hold a common carrier liable for special and unusual damages in consequence of a delay in delivering goods, unless he had notice that time was important; but that he was responsible for the ordinary damages for a delay of delivery, beyond a reasonable time.'"* §388. When the General and Limited Rule Pre- vails. — It may be stated, on the weight of authority, that, where the carrier has no notice of the purpose for which merchandise is sent, or of any special purpose in sending it, or that there is a sale depending upon the delivery of the merchandise or article at a specified time, he will only be liable in case of delay in the delivery beyond a reasonable time, or the time stipulated in the contract for its carriage, under the ordinary rule, which as we have noticed, is the dif- ference in value between the merchandise at the time and place it should have been delivered, and the time it was in fact delivered, if it was less valuable at the latter time, less the price of transportation, , § 389 . When the Larger Rule Prevails .—On the con- trary if the above facts exist, and especially if he undertakes to deliver within a certain time, to meet the requirements of '°s 9 Exch., 341; see, ante, § 252. '°« Hales V. London & N. W. R. Co., 4 B. & S., 66. See, also, Benson v. The New Jersey Railway & Trans. Co., 9 Bosw., (N. Y.), 412. BAILMENTS. 337 Agreement to Furnish Cargo or Freight— Measure of Damages. the shipper, and with knowledge of those requirements, he is liable for more remote losses caused by the delay, and must indemnify the consignor for any special losses in consequence thereof, embracing all such as were anticipated, or might reasonably have been anticipated by the parties, as the probable result of a delay, under all the circumstances of the case.'" §390. Agreement to Furnish Cargo or Freight.— Where there is a breach of an agreement to furnish cargo or freight, the actual loss sustained thereby, is the measure of damages."* But in such cases, the rule that the injured party should use reasonable efforts to prevent loss, applies.'"' Thus, where a party who has chartered a vessel, refuses to furnish a cargo according to his contract, the measure of damages is the amount the vessel would have earned at the rates specified, deducting actual net earnings during the time."" And if the carrier has received other car^o in the place of that withheld by the charterer, or if by diligence he might have done so, or if he could have found other employ- ment for his vessel, these facts may be shown in reduction of the damages under the contract, and whatever has been, or might have been earned in this way, should be deducted from the freight agreed to be paid."' § 391. Measure of Damages. — Tlie usual measure of damages in such cases is the difference between what the plain- tiff would have earned had the contract been kept and what has, or might with reasonable efforts have been earned, not- '°7 Scott V. Boston Steamship Co., 106 Mass., 468. See, also, Vicksburg, etc., R. Co. V. Ragsdale, 46 Miss., 458; Wilson v. The Lancash. & Yorkshire R. Co., 30 L. J., C. P. (N. S.), 232. Cooper v. Young, 22 Geo., 269; King V. Woodbridge, 34 Vt., 565; Weston v. The Gt. Tr. R. Co., 54 Me., 376; Whalen v. Aldrich, 8 Mmn., 364; Ward v. New York, etc., R. Co., 47 N. Y., 29. »°8Sedg. onDam., 361. Mayne on Dam., 149. '°9 Utter V. Chapman, 38 Cal., 659; Murrell v. Whiting, 32 Ala., 54. "" Achbumer v. Bachen, 7 N. Y., 262; Smith v. McGuire, 3 Hm-1. & Nor., 554; Dean v. Ritter, 18 Mo., 182; Hunter v. Fry, 2 B. «& A.. 421. '" Bailey V. Damon, 3 Gray (Mass.), 92; Cockbum v. Alexander, 6 C. B., 814. £2 338 THE LAW OF DAMAGES. Notice of the Arrival of Goods— Damages for a Failure. witlistandiiig the breach. And where a party agreed to load a ship with a stipulated quantity of coal to be carried, and failed to deliver the whole quantity it was held, that if goods were offered by a third person to be shipped to an amount sufficient to make up the deficiency, though at reduced rates of compensation, but still at current prices, the owner or master of the vessel was bound to receive such goods, and give the benefit of the net earnings of the substituted cargo, to the original charterer."^ § 392. Notice of the Arrival of Goods— Damages for a Failure. — It is perhaps the usual custom of carriers to give notice to the consignee of the arrival of goods at the place of destination, within a reasonable time, if he can with reason- able diligence be found, and where this custom prevails, in case of a failure to give such notice, the measure of damages for a delay of goods caused thereby would be the same as for any other delay; namely, the difierence between the value of the goods at the time when the notice of the arrival should have been given and at the time notice was given."' And in case the consignee neglects beyond a reasonable time to receive the goods, the liability of the carrier changes from that of a common carrier to that of a warehouseman.'" "2 Hickslier v. McCrea, 24 Wend., 304; Shannon v. Comstock, 21 Id., 457; Costegan v. Mohawk & Hud. R. Co.. 2 Den. (N. Y.), 610; Walworth v. Pool, 9 Ark., 394; Abbott on Ship., part 4, Ch. 1. The burden of proof is on the defendant to show these facts, Medbury v. Sweet, 3 Chand. (Wis.), 231. "3 New Orleans, etc., R. Co. v. Tyson, 46 Miss., 729. See, also, Red. on Bail., § 157; Meerson v. Hope, 2 Sweeny (N. Y.), 561, where it was held that an express company should make actual delivery. "* Wood V. Barney, 45 N. Y., 844. For further authorities as to when the liabihty of a common carrier ceases, and changes to that of a warehouseman, see, Hirsch v. The Quaker City, 2 Disney (Ohio), 144; Turner v. Buffalo, etc., R. Co., 44 N. Y., 505; Cook v. Erie R. Co., 58 Barb. (N. Y.), 312; (1871); Parker v. Milwaukee, etc., R. Co., 30 Wis., 689; Graves v. Hartford, etc.. Steamboat Co., 38 Conn., 143. But a mere notice is not sufficient to discharge the carrier from his responsibility. The consignee should have time and opportunity to remove the goods. Maignau v. New Orleans, etc., R. Co.. 24 La. An., 333. BAILMENTS. 339 Refusal to Deliver— Contracts Limiting Liability. §393. Refusal to Deliver.— A refusal of a carrier to deliver ^oods, is a conversion, and would authorize a recovery of the same or their value. But if the refusal be qualified, and the qualification be reasonable and made in good faith there is no conversion. Thus, where parcels are defectively addressed, a refusal to deliver them to a person not identifying himself as the con- signee, or producing any evidence of title to the property, coupled with an offer to deliver the goods if such title or authority is shown, is justified by the duty of carriers to secure a delivery to the proper persons."^ § 394. Contracts Limiting Liability .—The common carrier may limit his responsibility as insurer; but in order to do so there must be an express agreement to that efiect."' But on grounds of public policy the limitation of liability cannot exempt the carrier from damages for actual negligence of himself or his servants."' And a mere notice, or words of exemption in a receipt or bill of lading are not sufficient fur that purpose, unless it is shown that it was brought to the knowledge of the consignor and lie assented thereto, and theu only to reasonably qualify the liability under special circum- stances."* To exonerate a carrier from liability for loss of a passenger's baggage, through alleged neglect or refusal of the passenger to comply with a reasonable regulation of the carrier, "3 McEntee v. New Jersey Steamboat Co., 45 IST. Y., 34. "« Railroad Co., v. Manufact. Co., 16 WaU., 319 (1872); Falkean v. Fargo, 44 How. (N. T.) Pr., 325. "7 Indianapolis, etc., R. Co. v. Allen, 31 Ind., 394; Michigan, etc., R. Co. V. Heaton, 37 Id., 448; Ketchum v. American, etc., Exp. Co., 52 Mc, 390; 2 Red. on Railways, § 160. "8 Hopkins v. Wescott, 6 Blatchf., 64; Smith v. North Carohna R. Co., 64 N. C, 235; Nelson v. Hudson, etc., R. Co., 4-8 N. Y., 498; Lamb v. Camden, etc., R. Co.. 46 N. Y., 271; Barnhard v. Baltimore, etc., R. Co., 34 Md., 282; Flash v. New Orleans, etc., R. Co., 23 La., 353; Pembeton v. N. Y. Cent. R. Co., 104 Mass., 144; Rickets v. Baltimore, R. Co., 4 Lans. (N. Y.), 446; The Pacific, Deady 17; Red. on Railways, § 160. 340 THE LAW OF DAMAGES. Injury to Passengers. it should be shown that notice thereof was given to the pas- senger, or that he knew it, or that it had become by general usage so notorious and universal, that he ought to have known it."' § 395 . Injury to Passengers.— The liability of the com- mon carrier for injury to passengers, is limited to his negli- gence; and the carrier is not responsible for the safe car- riage of passengers to the same extent, as in case of merchan- dise."'" The distinction is illustrated by the following case: Thus, in an action for an injury caused by the breaking of an axletree of the defendant's coach, on which the plaintiff was traveling, it appeared that the axletree had been examined a few days before it broke, without the discovery of any flaw, and that at the time of the accident a skillful driver was driving in the usual track and at a moderate pace. Mansfield, J., in delivering the opinion of the court, said: "As the driver has been cleared of everything like negligence, the question for the jury will be as to the sufficiency of the coach. If the axletree was sound as far as human eye could discover, the defendant is not liable. There is a difference between a contract to carry goods, and a contract to carry passengers. For the goods, the carrier is responsible at all events. But he does not warrant the safety of the passenger. His under- taking as to them, goes no further than this, that as tar as human care and foresight can go, he will provide for their safe conveyance. Therefore, if the breaking down of the coach was purely accidental, the plaintiff has no remedy for the misfortune he has encountered.'""' "9Macklin v. New Jersey Steamboat Co., 7 Abb. (N. Y.) Pr., N. S. 229; Camden & Amboy, R. Co. v. BauldaufF, 16 Pa. St., 67; Red. on Railways, § 160 par. 12. '«> Aston V. Haven, 2 Esp., 533. "' Cristie v. Griggs, 2 Camp., 79. See, also, Harris v. Coster. 1 C. & P., 636; White V. Boulton, Peak Cas. 81; Derwort v. Loomer, 21 Conn., 245; Caldwell V. New Jersey Steamboat Co., 47 N. Y., 282; Sawyer v. Dulany, 30 Tex., 479. BAILMENTS. 341 Reasons for Difference in Liability between Merchandise and Passengers. In the case of passengers, the carrier is only required to use the greatest care, to employ skillful and competent agents, to use such means and foresight in securing the safety of passengers, as persons of the greatest care and prudence usually exercise in similar cases '" But the carrier is not re- sponsible for mere accidents and casualities, where there is no want of care, skill, or foresight on his part, or that of his agents,'" § 396. Reasons for the Diiference in Liability Be- tween Merchandise and Passengers.— The reasons for the distinction between his liability for merchandise and pas- sengers are, that in the case of goods he has absolute control over them, and may take such means to secure them as he may deem proper. He may enclose them, put them under guard, and lock them up. But, in the case of passengers, these precautions cannot be taken. They have the power and liberty of locomotion; they cannot be confined or entirely restrained of liberty, but must to some extent be free to act. The reasons for a more limited liability in case of passen- gers, applies to a great extent, if not with equal force, to, the case of the carriage of slaves, and of live stock generally. The question, whether the liability of the carrier in cases of '^ Taylor v. Grand T. R. Co., 48 N. H., 304. As to what evidence should go to the jury, see Geddes v. Metropolitan R. Co., 103 Mass., 391. See, also, Angel V. M. & M. R. Co., 18 la., 555; Winne v. The 111. Cent. R. Co., 31 Id., 583. And when the court in an action for an injury, caused by the explosion of a boiler of a steamboat, instructed the jury that they could not visit punitory damages upon the defendants, unless they beheved that they neglected, either in the construction or management of the boiler, some act which is generally resorted to, to test its sufficiency, or to work it safely; held, not erroneous. CaldweU v. New Jersey Steamboat Co., 56 Barb., 425; 47 N. Y., 282. »=3 Hall V. Connecticut River Steamboat Co., 13 Conn., 819; Stokes v. Saltonstall, 13 Pet.. 181; Stockton v. Frey, 4 GiU., 406; Camden & Amboy R. Co. v. Burke, 19 Wend., 236; Curtis v. R. & S., R. Co., 20 Barb., 282; 18 N, Y., 534; Frank v. Palter, 17 111., 406. See also, as to liability for acts and neghgence of servants, Sherely v. Billings, 8 Bush. (Ky.), 147; Bry- ant v. Rick, 106 Mass., 180. 342 THE LAW OF DAMAGES. Delay of Passengers. merchandise, applied to the carriage of slaves, was determ- ined in an early case in the Supreme Court of the United States, where it was held, "that the doctrine of common carriers did not apply to the case of carrying human beings, such as negro slaves." "'* And the doctrine of insurance, as we have seen, is not applied to the carrier of live stock to its full extent.'" In all these cases, the general principle is that of indemnity. But, in cases of willful and malicious injury, or where the negligence is so gross as to warrant the inference of malice, or that malice will be presumed, or imputed to the defendant, as we have seen, the carrier may be further subject to punitive or exemplary damages.'" § 397. Delay of Passengers.— The common carrier is also responsible in case of unreasonable delays in the carriage of passengers, for all actual damages sustained thereby; but, in the absence of fraud, not for exemplary or punitive dam- ages. And, in an action for losses sustained by such delay, it is proper to show the rate of wages earned by persons of the plaintiff's trade at the place of his destination during his detention, to guide the jury in estimating the damages for a delay. And, it is also proper for the jury to consider the probabilities that the plaintiff could have obtained work at his place of destination upon his arrival there, and whether it would have continued during the entire period of the delay.'" So, where there was a neglect to transport a passenger ^^^ Boyce v. Anderson, 2 Pet., 150; 2 Pars., on Con., 220, note. '=5 As to the liability in case of Hve animals, see, ante, § 370. '^ See, ante, § 80, et seq. 1 Red. on Railways, § 134, p. 651. '^ Young V. The Pacific Mail, etc., Co., 1 Cal., 353. See, also, The Zeno- bia, 1 Abb. Ad , 80. Where the plaintiff paid liis fare upon one of the defendant's cars, but the car stopped for some reason and the plaintiff was transferred to another, on which the conductor demanded the fee again, and the plaintiff refusing to pay the same he was ejected therefrom : Held, that the conductor acting in good faith, and the plaintiff sustaining no material injury, he could only recover for loss of time, the fare upon another car and recompense for injury to his feelings, and not exemplary damages. Hamil- ton V. Third Av. R. Co., 53 N. Y., 25. BAILMENTS. 343 Injury Resulting in Death. according to contract from New York to San Francisco, it was held, that his expenses during the delay, and those of a subse- quent illness in consequence thereof, and the value of the time lost by the detention, were legitimate items in fixing the amount of damages.'"' And; where there was an agreement to take on a passenger at a certain port, and a failure to stop at the port, and in con- sequence thereof the passenger suffered great bodily exposure; it was held, that these facts might be shown in aggravation of damages.'*' § 398. Injury Resulting in Death.— At common law, for injuries resulting in death, no action could be maintained by the heirs or personal rejDresentativ^es of the deceased, but the right of action died with the person.'^" But, by statute, not only in England, but in most, if not all of the states, the law has been changed, so that in England and generally in this country, where a wrongful act, neglect or default of another, produces death, the wrongdoer is civilly liable for the injury to the heirs, next of kin or representatives of the deceased.'" The statutes of many states also provide a maximum limit of damages in such cases; and where such statutes exist, the damages may be less, but can never exceed the limits thus fixed. But this subject will be hereafter more fully considered when we come to treat of injuries resulting in death. '^° '=8 Williams v. Vanderbilt, 28 N. Y., 217. See, also, Hamlin v. The Great N., etc., R. Co., 1 H. & N. Excb.. 408; Porter v. Steamboat New England, 17 Mo., 290. And the jury may allow the plaintiff such compensation for his time as they may deem reasonable, though there is no proof of its value. WilUams v. Vanderbilt, supra. '=9 Heim v. McCaughan, 32 Miss., 17. See, also, ante, § 58, and authori- ties there cited. '30 Blake v. Mid. R. Co., 10 E. L. & E., 4:37; s. c, 18 Q. B., 93; 2 Pars, on Con., 701. See. also, post. Chap. 21. '3« 9 and 10 Vict. C, 93, §§ 1 and 3; New York Stat.. 1847, Chap. 450, § 2; amended by Stat. 1849, Chap. 256; Vermont Gen. Stat., 1863, Chap. 52; New Jersey Stat., Nixon's Dig., 1868, p. 234. ^3^ See, post, Chap. 21. 344 THE LAW OF DAMAGES. Contributory Negligence— Responsibility for Baggage. § 399. Contributory Negligence.— In a previous chap- ter we have treated the subject of contributory negligence, and its effect in destroying any right of action for an injury received."' § 400 . Responsibility for Baggage.— The general rule of responsibility of carriers in relation to merchandise in gen- eral, which they undertake to carry, and damages in relation thereto extends also to the passenger's baggage; and they are responsible for any injury thereto or loss of the same, not occasioned by what is technically called, the act of God or the jpublio enerny.'^* But in case of common merchandise or baggage, the carrier will also be exempt from such loss as results from the fraud or willful misrepresentation of the pas- senger, and esj)ecially where by reason thereof less care is bestowed upon the baggage lost or injured than otherwise would have been ; as where the baggage includes a large amount of money or other articles of great value, and no notice thereof is given to the carrier; or where from the nature of the goods, peculiar care is required, and the nature is not known to the carrier, but is concealed from him.'^^ Nor is the carrier responsible for goods thrown overboard from necessity to save life, or to save other property; as this is deemed a loss through the act of God. But if done to save property, and property is saved thereby, the property saved must contribute, on prin- ciples of maritimejurisprudence, to make up a general average. And on the same principle he is not liable for goods that perish or are lost from inherent defects or causes."' '33 See, ante, Chap. 10. '34 Parsons on Con., 673. '33 Ruter V. Mich. Cent, R. Co., 1 Biss., 35. But see, also, Stoneman v. Erie R. Co.. 52 N. Y., 429. '35 2 Parsons on Con., 676, 677. But the carrier may be liable, under a special contract to deliver fruit within a certain time, and a failure so to do, whereby the fruit decays. Reed v. Philadelphia, etc., R. Co., 3 Houst. (Del.), 176. BAILMENTS. 345 Exemplary Damages— Contracts Limiting Liability for Baggage. § 401. Exemplary Damages.— The subject of exem- plary damages in connection with negligence, also more prop- erly belongs to the treatment of negligence as a tort, and we therefore defer its treatment until we come to the considera- tion of damages in cases of torts.'" § 402. Contracts Limiting Liabilities for Baggage. — The general principles in respect to limiting liability by contract, or notice in reference to the carriage of merchandise generally, apply as well to baggage. The carrier cannot, on general principles of public policy, be exonerated, even by contract, from all liability for losses or injury thereto. But he may impose reasonable conditions and limitations of liability by contract, such as to require the payment of extra charges for the transportation of extra hazardous or perishable, or unusually valuable articles."* 137 See, post, Chap. 22. . 133 Smith V. North CaroUna R. Co., 64 N. C, 235; Nelson v. Hudson, etc., R. Co., 48 N. Y., 498; Keeney v. Grand Trunk R. Co., 47 N. Y., 525. 346 THE LAW OF DAMAGES. Liability of Telegrapli Companies. CHAPTER XV. LIABILITY OF TELEGRAPH COMPANIES. Section 410. Importance of the Subject. 411. Are they Common Carriers P— Controversy. 412. At least Ordinary Care Required. 413. Measure of Damages— Order for Salt. 414. The Doctrine of Hadley v. Baxendale Explained and Applied. 415. Mistake in a Message Ordering Bouquets— Damages. 416. Mistake in a Message Ordering a Shawl— Damages. 417. Delay in Sending a Message Ordering Property Attached- Damages. 418. Mistake in a Message Ordering Stock Sold and other Stock Purchased— Damages. 419. Mistake in a Message Ordering "Wheat Purchased, etc.— Damages. 420. Delay in a Message Directing the Sale of " Lepines "—Dam- ages. 421. "Where, by a Mistake, a Message is "Wrongly Directed and Delayed. 422. "Where Damages are Limited to Interest— Mistake— Delay. 423. Company Liable for Damages that Directly and Naturally Result, etc. 424. Damages Contemplated. 425. Limitation of Liability by Contract. 426. Not Insurers— Reasonable Rules. 427. Omission or Refusal to Send a Message— Rules. 428. Inferences. 429. "Where there are Connecting Lines— Diversity of Decisions as to Liability. 430. Can the Party to "Whom the Message is Sent Maintain an Action ? 431. Conclusions Deducible from the Decisions. TELEGEAPH COMPANIES. 347 Importance of Subject— Are tbey Common Carriers? § 410. Importance of the Subject. — The science of tele- graphy has become so related to our various commercial pur- suits, and social and scientific interests, as frequently to require the aj^plication of legal principles to the adjustment of con- troversies relatino; thereto. The number and extent of telegraph lines in this country, covering like a spider's web the whole land, and closely uniting us with all parts of the Old World, and the great amount of important business trans- acted through this means, render the interest only second in importance to our vast railroad system. §411. Are They Common Carriers?— Controversy. — Some controversy has occurred in reference to the question, whether telegraph companies are common carriers, or whether their liabilities are the same as common carriers of merchan- dise. On general principles it may be said that their duty and liability are closely allied to that of common carriers, but they are not strictly common carriers, nor subject to the same strict responsibility. The authorities are somewhat conflict- ing in reference to the extent and character of this liability. On one side it is held, that they are amenable substantially to the same liability.' And, on the other hand, a more limited liability, if not maintained by a preponderance of authority, is at least by many very respectable ones.^ In the case of Breese (& Mumford v. U. S. Telegraph Co., the court (John- son, J.,) say, that the business of telegraphing is " radically ' Baldwin v. U. S. Tel. Co., 1 Lans. (N. Y.), 125; s. c, 45 N. Y., 744; Mc Andrew v. The Electric Telegraph Co., 33 Eng. Law & Eq., 180; Bowen V. The Lake Erie Tel. Co. (C. P.), Ohio (N. P.), 1 Am. L. Reg., 685 (1858); Parks V. Alta. Tel. Co., 13 Cal., 422; Bryant v. The Am. Tel. Co., 1 Daly, 575 (1865); Washington & N. 0. Tel. Co. v. Hobson, 15 Gratt. (Va.), 122 (1860); Tyler v. W. U. Tel. Co., 60 lU., 421; W. U. Tel. Co. v. Carew, 15 Mich., 525. = Leonard V. New York, etc., Tel. Co., 41 N. Y.,.544; Per Hunt, J., in N. Y. & Wash. Print. Tel. Co. v. Dryburgh. 35 Penn., 298 (1869); De Rutte v. N. Y., Alb. & Buff. Tel. Co., 1 Daly (N. Y. C. P.), 547; s. c, 30 How. Pr., 403 (1866); Smithson v. U. S. Tel. Co., 29 Md., 162 (1868); Ellis v. American Tel. Co., 13 AUen, 226; AUen Tel. Cases, 663. 348 THE LAW OF DAMAGES. Ordinary Care Required. and essentially different, not only in its nature and character, but in all its methods and agencies, from the business of transporting merchandise and material substances from place to place by a common carrier."^ While in a former case, Daly, J., held, that as the business of these companies " is one which leads to their being intrusted with confidential and valuable information, especially in commercial matters, there are opportunities for fraud and abuses, which, in view of the relation which they occupy to the public, make it necessary upon grounds of public policy that they should be held to a more strict accountability than ordinary bailees."* The lia- bility of telegraph companies would appear, from the prepon- derance of authorities, more nearly to resemble the liability of the common carrier of passengers.* , § 412. At least Ordinary Care Required.— The weight of authority would authorize parties to stipulate in reference to damages on a breach of contract, to use extraordinary care and diligence on the part of a company, or on a breach of a contract, insuring the prompt and correct transmission of a message; but it is still questionable, if they can so contract as to relieve themselves from all care, or from ordinary care. For although the '' liberty to contract " is said to be " the highest policy," it is well settled, that a contract to relieve the common carrier from all liability for loss or injury to the merchandise he undertakes to carry, is against public policy, and therefore void. And the reason for the distinction between 3 45 Barb., 272; s. c, 48 N. Y., 132. * De Rutte v. N. T., Albany & Buffalo Tel. Co., 1 Daly (N. Y. C. P.), 547 (1866). See, also, in relation to the measure of damages, Stevenson v. Mag. Tel. Co., 16 Upper Canada Rep., 530; Landsberger v. Mag. Tel. Co., 32 Barb., 530. s For a discussion of this subject, see an article in 2 Cent. L. J., 198, where it is maintained that telegraph companies like, private persons, have a right to contract in reference to their liability, without limitation. But the authorities cited fail to sustaia the proposition, without qualification. TELEGRAPH COMPANIES. 349 Measure of Damages— Order for Salt. common carriers and telegraph companies in this respect, is not entirely clear. §413, Measure of Damages— Order for Salt.— In relation to the measure of damages, on general principles, the company should be liable for such damages as directly and naturally result from the breach of the contract to transmit, and by which it undertakes at least to use that diligence and care which the delicate and important character of the busi- ness requires, and which its patrons may reasonably expect; and also to all such damages as the parties contemplated, or had reason to contemplate, at the time of the contract, as the result of a breach. Thus, where the message was, "send 5000 sacls of salt immediately," and the message, through the negligence of the defendant, a telegraph company, was chang- ed so as to read, "send 5000 casks of salt immediately," and in compliance with the order thus received, the plaintiff sent the salt from Oswego to Chicago, to the plaintiff's agent who sent the message; and it appeared that the term "sack" des- ignated a package of fine salt of about fourteen pounds weight, and the term "cask," a package of coarse salt of about 320 pounds weight, and that the salt sent under such errone- ous order was more valuable in Oswego than in Chicago at the time it was sent, and that the plaintiff's agent, after re- ceiving the same at Chicago, sold it for the highest price which could be obtained; it was held, that the measure of damages adopted in the court below, namely, the difference between the value of the salt at Oswego and at Chicago, and the cost of transportation from the former place to the latter, was sufficiently fiivorable to the defendant." 6 Leonard v. New York, etc., Tel. Co., 41 N. Y., 544 (1870). See, also, Rittenbouse v. The Ind., etc., Tel. Co., 1 Daly, 475; Bryant v. The Am. Tel. Co., 1 Daly, 576; New York and Washington Print. Tel. Co. v. D17- burg, 35 Penn. St., 298. 350 THE LAW OF DAMAGES. Doctrine of Hadley v. Baxendale Explained and Appiied. §414. The Doctrine of Hadley v. Baxendjile, Ex- plained and Applied.— Ill considering^ the applicability of the doctrine of Hadley v. Baxendale,'' to the breach of con- tracts on the part of telegraph companies, and particularly to the case under consideration, Earle, Ch. J., in delivering the opinion of the court in the above case, remarks: "It is not required that the parties must have contemplated the actual damages which are to be allowed; but the damages must be such as the parties may fairly be su])posed to have contem- plated when they made the contract. Parties entering into contracts, usually contemplate that they will be performed, and not that they will be violated. They very rarely actually contemplate any damages which would How from an}' breach, and very frequently have not sufficient information to know what such damages would be. As both parties are usually equally bound to know and be informed of the facts pertain- ing to the execution or breach of a contract which they have entered into, I think a more precise statement of the rule is, that a party is liable for all the direct damages which l)otli parties to the contract would have contemplated as flowing from its breach, if at the time they entered iiito it they had bestoAved proper attention upon the subject, and had been fully informed of the facts. In this case then, in what may prop- erly be called a fiction of the law, the defendant must be pre- sumed to have known that this dispatch was an order for salt, as an article of merchandise, and that the plaintiff would fill the order as delivered; and that if the salt was shipped to Chicago it would be shipped there as an article of merchan- dise, to be sold in the open market. And the market price in Chicago being less than the market price at Oswego, that they would lose the cost of transjiortation and the difference between the market price at Chicago and the market price at Oswego. 1 think, therefore, that the rule of damages adopt- J 9 Exch., 341. TELEGRAPH COMPANIES. 351 Mistake in Message ordering Bouquets— Ordering a Shawl. ed by the referee was sufficiently favorable to tbe defendant. The damages allowed were certain, and they were the proxi- mate, direct result of the breach." §415. Mistake in a Message ordering Bouquets- Damages. — So, where a telegraph company received a mes- sage ordering "two hand bouquets," and the agent of the company erroneously supposing the word "hand" to be "hund." and to stand for "hundred," delivered it thus altered, and the two hundred bouquets were furnished accordingly. In an action brought by the receiver of the message against the company for damages in consequence of the mistake, it was held, that, "though telegraph companies are not, like carriers, insurers for the safe deliv^ery of what may be entrust- ed to them, their obligations, so far as they reach, spring from the same source, namely, the public nature of their employ- ment, and the contract under which the particular duty is assumed," and that it is one of the plainest of their obliga- tions to transmit the very message prescribed. The plaintiff, who was a florist, was held entitled to recover the loss sus- tained, and the expenses incurred in cutting and procuring the large number of flowers required for the bouquets.' §416. Mistake in a Message ordering a Shawl- Damages- — So, where a dispatch was delivered to a telegraph company in Michigan, ordering " one shawl," and by a mistake of the company the disjDatch delivered in New York, was for "one hundred shawls," and in compliance with the order received, the plaintifi^ to whom it was addressed, sent from New York one hundred shawls to the sender of the dispatch in Michigan, where they arrived, but were re-shipped to the consignor at New York; it was held, in an action against the company, by the party to whom the erroneous order was deliv- ered, that the measure of damages was the freight from New 8 The N. Y. & Washington Print. Tel. Co. v. Dryburg, 35 Penn. St., 298. 352 THE LAW OF DAMAGES. Delay in Sending a Message ordering Property Attached— Mistalce, etc. York to Michigan and back to New York, and the deprecia- tion in the value of the shawls, they having arrived in New York after the shawl season was over.' §417. Delay in Sending a Message ordering Prop- erty attached— Damages. — In another case the message delivered to the telegraph company was : " Due $1,800. Attach if you can find property — will send note by to-morrow's stage; " and, owing to a delay of the company in sending the dispatch until the day following the delivery, the debtor's property directed to be attached by the message was all seized by other creditors, and the plaintiff could attach nothing; the court held the company liable for the whole debt that was by their negligence lost, as the direct and proximate damage resulting from the breach of the contract to transmit the mes- sage without unreasonable delay." §418. Mistake in a Message ordering Stock sold and other Stock Purchased- — In another case the plaintiff in "Washington, by a message, directed his brokers in New York to sell five hundred shares of Michigan Southern Railroad stock, and purchase five hundred shares of Hudson River Railroad stock ; but owing to a mistake of the telegraph com- pany to which the message was delivered, the message deliv- ered to the brokers, directed them to buy five hundred shares of Michigan Southern Railroad stock. The brokers purchased the five hundi-ed shares of Michigan Southern as directed by the erroneous message, at the morning board of that city. The plaintiff, on discovering the mistake, corrected it by repeating the dispatch, which, in its correct form, was not received by his brokers till after the morning board had adjourned. On receiving the telegram thus corrected, the brokers sold five ' Bowen v. Tlie Lake Erie Tel. Co., 1 Am. Law Reg. (N. S.), 685. ' Parks V. The Alta CaL TeL Co., L3 Cal., 422 (1859). See, also, the same doctrine in Bryant v. Tlie American Tel. Co., 1 Daly (N. Y.), 575 (1865); and The Wash. & N. 0. Tel. Co. v. Hobson, 15 Gratt. (Va.), 122. TELEGRAPH COMPANIES. 353 Mistake in Message ordering Wlieat Purchased, etc.— Delay in Message, etc. hundred shares of Michigan Southern on the street. It was sold at the highest price then attainahle, and the Hudson River stock purchased at the best terms that could be obtained; but the sale thus made of Michigan Soutliern stock, was less by $1,750 than the highest price at which it could have been sold, had the message been correctly received and in due time, and was less by $1,375 than the average price of the stock at the morning board. Judgment was rendered for the latter sum, and on appeal sustained by the court' §419. Mistake in a Message ordering Wheat pur- chased, etc. — Damages. — And, where it appeared that a dispatch was delivered by the plaintiff to the defendant to be transmitted, directing the purchase of wheat at the limit of 22 francs the hectolitre, but through the defendant's mistake, the number "22," was changed to "25," in consequence of which, wheat was purchased at a price that proved a loss of more than $2,000, the court held this loss to be the direct and immediate consequence of the defendant's mistake and negli- gence, and that it furnished the measure of the plaintiff's damages. The court further held that, although the defend- ant was not, like a common carrier, an insurer of the correct transmission of messages delivered to it, yet public policy required that it should be held to a stricter accountability than ordinary bailees, and that, as the value of its services consisted in the correctness and diligence with which it trans- mitted messages, any error in the message, or unreasonable delay in its delivery, should be presumed to have arisen from its negligence." § 420. Delay in a Message ordering " Lepines" sold — Damages. — In another case a message delivered to a tele- graph company at New York, directed a party at St. Louis, to 3 Rittenhouse v. The Ind. Line Tel. Co., 1 Daly (N. Y.), 474; s. c. 44 N. Y., 263. ■♦De Rutte v. The New York etc., Tel. Co., 1 Daly, 547. See, also, Smith- son V. U. S. Tel. Co., 29 Md., 162 (1868); where the same doctrine is held. 23 354 THE LAW OF DAMAGES. Where, by Mistake, a Message is Wrongly Directed and Delayed. " sell silver lepines for $10 — also others for less; " but the dis- patch was not sent by the company, and owing to the fluctu- ations in gold, which was at a premium, there was a consider- able decline in the market before the arrival of a letter from the plaintiff at 'New York, to the party to whom the dispatch was addressed at St. Louis, containing the same instructions. In a suit for damages against the company, caused by not sending the message, it was held, that the defendant was liable for the want of due diligence and care in not sending the message, and that, without being notified of the specific pecu- niary value of the dispatch; that it was its duty to infer that the dispatch was of importance and of pecuniary value to the sender (the plaintiff); and that the damages should be measured by the decline in gold which caused the difference in the market value of lepiiiesJ" §421. Where, by Mistake, a Message is Wrongly Directed and Delayed, — But where a message was delivered to the operator at O., by the plaintiff, to be sent to his agent at R., requesting him to telegraph back to the plaintiff the condition of a certain petroleum oil well at R., belonging to the plaintiff, and the operator was informed by the plaintiff that unless an answer was promptly received, he should sell the well at a certain sum, which had, to the knowledge of the operator, been offered him; and the ordinary charge for trans- mitting the message the whole distance and over the lines of two companies having been paid, it was transmitted to S., and there received by the defendant, and transmitted to R. ; but through the negligence of the defendant, it was wrongly directed, and did not reach the plaintiff's agent for several days afterwards, but the defendant had no knowledge of the special purpose of the message; and it appeared that plaintiff, 5 Strasburgh v. The West. Un. Tel. Co., N. Y. Sup. Ct. (1867). See AUen's, Tel. Gas., 661. See, also, Tlie U. S. Tel. Co. v. Wenger, 55 Pa. St., 262 (1867). TELEGRAPH COMPANIES. 355 Whei* Damages are Limited to Interest— Mistake— Delay. receiving no reply, sold the well at the offer, but it also appeared that it was worth more, and might have been sold for more, if the message had been dnlj received; it was held, that the defendant was not liable for the difference between the price for which it might have been sold, and for which it was in fact sold, as the agent first receiving the message was not the defendant's agent, and the message contained no informa- tion from which it could be inferred that any special or pecu- liar loss would ensue from a non-delivery of it.° §422. Where Damages are Limited to Interest- Mistake — Delay. — In another case the message was, "get $10,000 of the Mail Company." The $10,000 was in the hands of the Mail Company and intended by the person send- ing the dispatch for a certain use. But the message which was addressed to "Landsberger," was received and directed to "Lamraeyer," and by reason thereof some delay occurred, and the chance to use the money to a profit, as intended, was lost. Of this special purpose the defendant (the Telegraph Co.) was not informed. The court say: "The defendants were not informed of any special use intended to be made of this sum of money; and what damage could they naturally expect to follow from the delay in the receipt of it? Clearly the loss of the use of that sum during the time that its receipt was delayed; and the damages for the loss of such use are, by the laws of Xew York, determined to be the interest on the money." It was further held, that the loss of contemplated profits from the use of the money, not received as directed by the dispatch of plaintiff', and the loss of a certain sum, as liquidated dam- ages in consequence of the defendant's neglect, not having entered into the contemplation of the parties at the time the contract was made, could not, under the rule in Hadley v. 6 Baldwin v. U. S. Tel. Co., 45 N. Y., 744. See, also, Bryant v. Am. Tel. Co., 1 Daly, N. Y., 575; Graham v. Western U. Tel. Co., 1 Colorado, 239; Candee v. W. Un. Tel. Co., 34 Wis., 471. ?>56 THE LAW OF DAMAGES. Damages that Directly and Naturally Result— Damages Ofcntemplateh. Baxendale^ and Griffin v. Colver^ be regarded as proper elements of damages.' And where, as we have seen, the import of a telegraphic message is wholly unknown to the company's agent, to whom it is delivered for transmission, it cannot be assumed that he had in view any pecuniary loss as a natural or probable result of a fiiilure to send such message, and in case of a feilure to transmit correctly or promptly, the company would only be liable for nominal damages, or the amount paid for sending the message; and the company would not be liable, under such circumstance, on account of loss sustained by the advance or decline in value of stocks or other property.* § 423. Company Liable for Damages that Directly and Naturally Result, etc.— It may be said that the gen- eral rule of damages in such cases is, that the plaintiff may recover all such damages as directly and naturally result from the negligence of the company ; such as money paid as freight for goods sent on an erroneous order; or money paid for transmitting the message; and also, all such losses as are in- dicated by the message, as the probable result of a failure to deliver correctly and with due diligence.* §424. Damages Contemplated. — The company may also be held to indemnify the parties for all such losses as were contemplated at the time, as the probable result of a breach." '9Exch., 341. - 16 N. Y., 494. 3 Landsberger v. The Mag. Tel. Co., 32 Barb., 530. See, also, Sliields v. Wash. Tel. Co., 9 West. L. J., 283; U. S. Tel. Co. v. Gildersleve, 29 Md„ 233. 4 Candee v. W. U. Tel. Co., supra. Tyler v. W. U. Tel. Co., supra. 5 W. U. Tel. Co. V. Graham, 1 Colorado, 230, s. c. 10 Am. Law Reg. (N. S.), 317; Tme v. Int. Tel. Co., 60 Me., 9; ManviUe v. W. U. Tel. Co., 37 la., 214; Candee v. W. U. Tel. Co., supra; U. S. Tel. Co. v. Wenger, 55 Pa. St., 262. But see, Rittenhouse v. Ind. L. Tel. Co., 44 N. Y., 263; where it was held, that if the company does not understand the import of the message, it is their duty to inform themselves. « The U. S. Tel. Co. V. Wenger, 55 Pa. St., 262; Baldwin v. The U. S. Tel. Co., 45 N. Y., 744. TELEGRAPH COMPANIES. 357 Limitation of Liability by Contract. And tliey are liable for damages in all cases, for not sending messages correctly and promptly, unless prevented by causes over which tliey have no control, or which they could not by the exercise of ordinary care and diligence avoid. § 425. Limitation of Liability by Contract.— Tele- graph companies may, like common carriers, impose reason- able conditions upon their patrons, and make their liability depend upon an observance of these conditions; or they may contract for a limited liability. But, like common carriers, they cannot impose conditions or make contracts to relieve themselves from losses resulting from their own negligence.' Subject to this qualification, it is competent for telegraph companies to adopt reasonable rules and regulations restrict- ing their liability where messages are not repeated; and this restriction may be by printed stipulations and conditions attached to the message." And notwithstanding printed con- ditions or contracts to the contrary, the company is not only ' W. U. Tel. Co. V. Buchanan, 35 Ind., 429; Swetland v. lU. Tel. Co., 27 la., 432; West. U. Tel. Co. v. Graham, 1 Col., 230; ManviUe v. W. U. Tel. Co., supra; Candee v. W. U. Tel. Co., supra. "But it is maintained that if they are common carriers, "they have no power to restrict their duties or liabilities by a mere notice, unless there is sufficient evidence of the assent of their customers thereto, to create a con- tract between them," etc. Shear. & R. on Neg., § 567. The power to limit the liability of common carriers, though allowed in England, has been denied in this country. Nevins v. Bay State, etc., Co., 4 Bos., 225; Cole v. Good- win, 19 Wend., 251; Western Trans. Co. v. HaU, 24 111., 466; Faloy v. Northern Trans. Co., 15 Wis., 129; Steel & Burgess v. Townsend, 37 Ala., 247; Kemball v. Rutland, etc., R. Co., 26 Vt., 247. The same doctrine has been distmctly recognized in Kentucky in relation to telegraph companies. Camp v. W. LF. Tel. Co., 1 Met. (Ky.), 164; and also in Missouri, m Wahn V. Tel. Co., 37 Mo., 472. But the preponderance of authority is in favor of the doctrine that the common carrier may limit his liability by a contract to that effect, subject however, to the qualification that he cannot be permitted to stipulate or contract so as to relieve himself from all liability, or from the responsibility of using at least reasonable care to avoid loss; as such a con- tract would be against public pohcy. See, ante, § 338. See cases collected, 2 American Law Review, 615, 632, and in 4 American Law Register (N. S.), 192, 199; Ellis v. American Tel. Co., 13 AUen (Mass.), 234. 358 THE LAW OF DAMAGES. Not Insurers— Reasonable Rules. liable for gross negligence, but for the want of the ordinary care and skill whicli tlie nature of the business demands.' But where there is a stipulation or condition required by the com- pany, exempting it from liability in case the message is not repeated by order of tlie sender, and paid for, tlie burden of proof to show the want of ordinary care in case tlie message is not thus repeated is on the plaintiff. And where such a condition is known to tlie party sending the message, or where he is bound under the circumstances of the case to take notice of it, and a mistake occurs in an unrepeated message, the plaintiff must show that such a mistake occurred by some fault of tlie company, and that it might have been avoided by the use of proper care, as by the use of good instruments, or the employment of careful and skillful operators." But, on general principles the burden of proof, in case of a mistake or a failure to transmit and deliver a message with reasonable dispatch and with accuracy, would generally devolve on the company, as the ability to show that the failure had occurred without their fault would be in their hands.^ § 426. Not Insurers— Reasonable Rules.— In a recent case in New York, Earle, Chief Commissioner, remarks: "Telegraph companies may, in one sense, be called common carriers, as they are engaged in public employment, and are bound to transmit for all persons messages delivered to them for that purpose. But, if we call them common carriers in this sense, it does not follow that they become insurers, like common carriers of goods. In the absence of any special contract they do not insure the accurate transmission of mes- 3 Bimey v. New York & Wash. Tel. Co., 18 Md., 341; Shear. & Red. on Neff., §565; U. S. Tel. Co. v. Gildersleeve, 29 Md,, 332. 4 Swetland v. lU. & Miss. Tel. Co., supra; Breese v. U. S. Tel. Co., 48 N. Y., 132; Wahn v. Tel. Co., 37 Mo., 472 (1866); Camp v. Tel. Co., 1 Met. (Ky.), 164; Ellis v. Tel. Co., 13 Allen (Mass.), 226; McAndi-ew v. Tel. Co.. 17 C. B., 3; Tel. Co. v. Carew, 15 Mich., 525; Bimey v. Tel. Co., 18 Md., 341. s Shearman & R. on Neg., § 559. TELEGRAPH COMPAl^IES. 359 Omission or Refusal to send a Message— Rules. sages; but tliej are bound to transmit them with care and diligence adequate to the business which they undertake. But they have a right to make reasonable rules for the conduct of their business. They can thus limit their liabih'ty for mis- takes not occasioned by gross negligence or willful misconduct, and this they can do by notice, brought home to the sender of the message, or by special contract." * § 427. Omission or Refusal to Send a Message— Rules. — It has been held that the entire omission or refusal to send a message, is not affected by a provision in the printed terms of the company, restricting their liability for delays, mistakes, etc' And a condition prescribed by a telegraph company, and printed in their blank forms for dispatches, that they will not be liable for damages if the claim is not presented within sixty days from the sending of the message, is held to be reasonable and binding on one sending a telegram on the printed form.' But a condition printed in the " night message blanks " of a telegraph company, " that the company shall not be liable for mistakes or delaj's in the transmission or delivery, or for non- delivery of any message beyond the amount received by the company for sending the same," was held not to be reasonable, and not to exempt the company from liability in a larger sum. Such a limitation, if legal, would exempt the company from gross or even ordinary negligence, and would clearly be against public policy. And where a message was written on such a blank by the sender, ordering a cargo of corn to be shipped, but the message was not delivered, and in consequence the sender failed to obtain the corn at the terms j)reviously offered; it was held, that the measure of damages was the difference between the price of the corn as offered, and that which he « Breese v. U. S. Tel. Co., 48 N. Y., 132 (1871), affirming 45 Barb., 274. 7 Baldwin v. U. S. Tel. Co., 54 Barb.. 505; 45 N. Y., 744. 8 Wolf V. W. U. Tel. Co., 62 Pa. St., 83; W. U. Tel. Co. v. Buchanan, 35 Ind., 429. See, also, Hibbard v. W. U. Tel. Co., 33 Wis., 558. 360 THE LAW OF DAMAGES. Inferences— Connecting Lines— Diversity of Decisions, etc. would have been obliged to pay for it at the same place, after notice of failure to deliver the message." § 428. Inferences. — From the foregoing cases it is evi- dent that the rule of damages is the same as on the breach of other contracts, namely, that the party injured may recover all such damages as are the direct, natural, and necessary con- sequences of a breach, and all such as should have been con- templated by the parties at the time of the contract, as a result of a breach of it, "interpreting the contract in the light of the circumstances under which, and a knowledge of tlie parties of the purpose for which, it was made.'"" §429. Where there are Connecting Lines, Divers- ity of Decisions as to Liability. — There seems to be much diversity in the decisions as to the liability of a telegraph company receiving a message to transmit over its own and the lines of other companies, where the injury results from the negligence of the latter. The principle involved is the same as that which is applicable to common carriers under similar circumstances, and the rule of liability should be the same. Thus, in England the first carrier (and for a similar reason the first receiver of a message), is the only one liable to the con- signor.' But in Massachusetts, Connecticut and Yermont, the rule is directly opposite.^ And in New York the decisions in difierent courts seem to have been adverse to each other.^ 9 True V. Int. Tel. Co., 60 Me., 9. See, also, Young v. W. U. Tel. Co., 34 N. y., 390; Hibbard v. W. U. Tel. Co., sujjra. '° Baldwin v. The U. S. Tel. Co., 45 N. Y., 744. ' Muschamp v. Lancaster, etc., R. R. Co., 8 Mees. & W., 421; Scottliom V South Stat. R. R. Co., 8 Exch., 341; 25 Eng-. L. and Eq., 287; Bristol, etc., R. R. Co. V. CoUins, 7 H. L. Cas. 194; 5 Huriston & Norman, 969, affirming S. C, 11 Exch., 790; and reversing s. c, 1 Hurlst. & N. 517; Coxon v. Grt. West. R. R. Co., 5 H. & N., 274; Mytton v. Mid. R. R. Co., 4 H. & N., 615. ^ Nutting V. Conn. Riv. R. R. Co., 1 Gray, 502; Hood v. N. Y. & N. H. R. R. Co., 22 Conn., 1; Id., 509; Farmers & Mech. Bank v. Champlain Trans. Co., 23 Vt., 186. 3 De Rutter v. Albany, etc., Tel. Co., 1 Daly 547, where it is held that a telegraph company receiving a message directed to a- place beyond its lines. TELEGEAPH COMPANIES. 361 Can a Party to whom a Message is sent Maintain an Action? § 430. Can the Party to whom a Message is sent Maintain an Action? — Some controversy Las also existed in reference to the question whether the party to whom the mes- sage is sent can maintain an action on the contract, express or implied, made between the sender and the company. But there would appear to be no doubt that the action can be maintained by such party for the negligence, resulting in loss, as for a tort.* And in New York, as well as some other states, he may sue on the contract.^ and taken payment for the entire service, is presumptively liable to the sender for the negUgence of all connecting lines. But see countrary opinion, Bald- win V. U. S. Tel Co., 45 N. Y., 744. 4 N. T. & Wash. Print. Tel. Co. v. Dryburg, 35 Penn. St., 298. See, also, Baldwin v. U. S. Tel. Co., supra; Elwood v. The W. U. Tel. Co., 45 N. Y., 549. In England, it is held that the receiver of the message cannot main- tain an action on the contract. Playford v. U. K. Tel. Co., 4 L. R., Q. B., 706; 38 L. J., Q. B., 249; 10 B. & S., 759. s Lawrence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 N. Y., 178; Steman v. Hai-rison, 42 Pa. St., 49. The liability of telegraph companies is sometimes fixed by statute. A ■writer on the question under consideration, in The American Law Review, Vol.8, p. 458, says: ''The EngUsh telegraph act provides 'that the use of any telegraph and apparatus erected or formed under the provisions of this act for the purpose of receiving and sending messages shall * * * be open for the sending and receiving of messages by all persons alike, without favor or preference.' See, Playford v. United Kingdom Tel. Co., Law R. 4 Q. B., 707. note. In Playford v. United Kingdom Telegraph Co., just cited, it was held, in an action by the receiver of an erroneous message, that this act had not affected the relation of companies to th6se to whom dispatches are trans- mitted. The telegraph act of 1868 contains no provision on this point; and the same is true of the later acts; 25 & 26 Vict, c, 131. § 61; 31 & 32 Vict, c, 110; 32 & 33 Vict, c, 73. § 23. The IMassachusetts act provides that 'every company shall receive dispatch- es from and for other telegraph lines, companies, and associations, and from and for any person; and on payment of the usual charges * * * shall transmit the same faithfully and impartially.' And for every willful neglect the company are declared liable to a penalty of one hundred dollars to the 'person, association, or company sending or desiring to send the dis- patch.' Gen. Stats., c. 64, § 10. The statutes of New York, 2 Rev. Stats., 740, § 11, 5th ed; Michigan, 1 Comp. Laws, 1871, c. 80, § 14; Missouri, 1 Wagu. Sts., 824, § 10; and 362 THE LAW OF DAMAGES. Conclusions Deducible from Decisions. § 431. Conclusions Deducible from the Decisions — 1. It is evident from the weight of authority as well as from general reasoning, that the liability of a telegraph company is not so strict as that of common carriers of merchandise. The nature of the business is materially dliferent and is suggestive of many contingencies t^ which no other business is subject; although the knowledge gained of the science of telegraphy, and the perfection of the means and instruments now employed render the accurate transmission of messages more certain than in former years; still, causes which the company cannot Maryland, 1 Code, p. 171, § 117, contain provisions and prescribe penalties substantially the same as those in this act. The statute of Pennsylvania simply requires the companies to transmit dispatches offered, under a penalty for refusal, with no provision for faithful performance. Bright. Purd. p. 951, § 1. In Maine, it is provided that 'for any error or unnecessary delay in writing out, transmitting or delivering a dispatch * * * making it less valuable to the person interested therein,' the company 'shall be Uable for the whole amount paid on such dispatch, and they shall transmit all dispatches in the order they are received, under a penalty of one hundred dollars, to be re- covered mlhcost by the pei-son whose dispatch is willfully postponed;' Rev. Sts. C.53, §1. Many of the states are without statutory provisions on this particular point; and no act has been found giving a right of action to the person to whom the message is sent, either for non-delivery or for error in transmission, excepting that of Maine above quoted. It must be conceded that in that state the receiver of the message, if he be 'the person interested therein,' has a right of action to the amount paid for transmission. But this would perhaps cover no more than the case of a dispatch transmitted by the plain- tiff's agent; and if so, it abridged rather than enlarges the liability of the telegraph company. For, apart from such a provision, the company must be liable for the actual loss to the plaintiff, where the sender acts as agent in the premises. But this article is not predicated of such cases. The other branch of the question— whether the receiver of a message can sue the telegraph company for an en-or in transmission— is not so free from diffi- culty. In this country there is great unanimity in holding the companies liable. New York & Washington Tel. Co. v. Dryburg, 35 Penn. St., 298; Bowen v. Lake Erie Tel. Co., 1 Am. Law Reg., 685; DeRutte v. New York, Albany, etc., Tel. Co., 1 Daly. 547; Rose v. United States Tel. Co., 3 Abb. Pr., N. S., 408; Elwood v. W. U. Tel. Co., 45 N. Y., 549; EUis v. Am. Tel. Co., 13 Allen, 226. In England the contrary is held. Playford v. United Kingdom Tel Co., Law R., 4 Q. B., 706; 10 B. & S., 759. TELEGEAPH COMPANIES. 363 Conclusions Deducible from Decisions. control, niaj occur to interrupt the transmission of a message or affect its accuracy. The electric current may be broken so as to obstruct communication; words of different signification may be represented by characters so similar that errors in transcribing may occur without the fault of the company. These and like contingencies are at the risk of the sender, unless the company undertake to insure the correct transmis- sion. But a neglect to send a message, or to send one within a reasonable time, where the delay is not caused by circum- stances over which they have no control, or which could not be avoided by the exercise of reasonable care; or an error in transcribing a message through want of like care, renders the company liable for the damages that result therefrom; and errors of that character are at least presumptive evidence of neglect and want of care, and suflBcient to cast the burden of proof upon the company to show that they occurred without their fault. 2. "While the company may relieve itself from unusual haz- ards or the duty of using more than ordinary care by a con- tract, or perhaps, by a notice to that effect, where it is brought to the knowledge of the sender, and may impose conditions for their responsibility as insurers of the correct transmission of messages received for that purpose, they cannot stipulate so as to relieve themselves from responsibility for damages resulting from gross negligence, or the duty of using at least ordinary care and diligence. 3. Although statutes may provide that telegraph companies shall be responsible for all damages that result from errors in transmitting messages, still they may contract with parties and impose reasonable conditions in reference to their liability, and may exact extra compensation for insuring the correct transmission of the same. 4. In all cases where loss is sustained by a party, by reason of the want of ordinary care and diligence on the part of the 364 THE LAW OF DAMAGES. Conclusions Deducible from Decisions. company, they are liable for tlie direct and natural conse- quences of such want of care and diligence, and to such further damages as the parties contemplated or had reason to contem- plate at the time of the contract, as the probable result of a breach of the same. 5. Although telegraph companies are not, like common car- riers of merchandise, insurers of the correct transmission of messages, they are bound to use that high degree of care and diligence which is required from the peculiar nature and importance, and the delicate character of the duties assumed by them, and which they undertake to perform." ^The author of a well written article on "The Law of Telegraphs and Telegrams," in the American Law Register of February, 1865, deduces the following propositions from the cases referred to in the article : 1 . " If a tele- graph company holds itself out to carry messages in the ordrnaiy way, it takes upon itself a public employment analogous to that of a common carrier. Although it may not be in all respects an insurer, it is bomid to exercise the utmost diligence and good faith. When a statute requires it to transmit messages for all who may send them, the case is still more clear. 2. "The company may on the like analogy make reasonable conditions. It may require important messages to be repeated at an additional charge as a condition to its liabiUty. This is but little more than providing that an unimportant message may be sent for a small price, and one that is impor- tant may be safely transmitted for a larger sum. This increased sum must be intended for the additional labor required, and risk run, and must there- fore be reasonable in amount. The same result is reached if the statute per- mits the company to establish rules and regulations, for it is imphed that such regulations should be reasonable. 3. "The condition refeiTed to in the second proposition does not cover cases where neghgence has been established, as where the agent negligently fails altogether to transmit the message, or where he of his own vohtion substi- tutes another message in room of the one sent on the erroneous supposition that such was the sender's intention. 4. ' ' The receiver of the message is in a different position from the sender. Assuming that the company could stipulate with the sender not to be respon- sible for the acts of its agents, such stipulation would not bind the receiver who could not know whether the message had been repeated or not. The company cannot shield itself from an action by the receiver on the ground that it is the agent of the sender, for the maxim respondeat superior does not apply to the case of misfeasance." T. W. D., in 4 Am. L. R., 199. COYENANTS— REAL ESTATE. 365 Breaches on Contract and Covenants. CHAPTEB XYI. DAMAGES O^ BREACHES OF CO^^TRACTS AND COYEXANTS RELATING TO REAL ESTATE. Section 442. General Principles— Damages on Covenants. 443. The Covenant of Seizen— Authority to Convey— Damages for a Breach— General Rule. 444. "Where the Damages may be less. 446. General Doctrine where there is no Seizin in the Grantor. 447. The English Kule— American Doctrine, 449. "Wliere there is a Partial Breach of the Covenant of Seizin. 450. Damages for a Breach-of the Covenant against Incumbrances. 451. Nominal Damages— "When Eecoverable. 452. "When the Incumbrance cannot be Removed— Damages. 453. "Where the Incumbrance has been Removed by the Grantee. 455. "Where the Grantee Receives Money from the Grantor to Remove the Incumbrances. 456. The Maximum Amount Recoverable. 460. Covenants for Quiet Enjoyment and "Warranty. 461. The Damages on a Breach, Consideration and Interest. 462. States where the "Value at the Time of the Eviction Prevails. 463. Arguments in favor of the Consideration and Interest, as a Rule. 464. Arguments in favor of the "Talue at the Time of Eviction. 465. The Duty of the Author— His "Views of the Question. 466. Interest as Damages. 467. The Rule as to Costs and Counsel Fees in the Eviction Suit, as an Element of Damages. 475. "Where the Eviction is only Partial. 477. "Where the Grantee Purchases the Superior Title. 366 THE LAW OF DAMAGES. General Principles— Damages on Covenants. 479. Executory Contracts for the Sale of land. 480. "Where the Breach is on the part of the Vendor, 481. "Where the "Vendor Acts in Good Faith— Kule. 482. General Doctrine. 484. Illustrations of the Rule of Damages in case the "Vendor acts Fraudulently or in Bad Faith. 495. The Principles of Hadley v. Baxendale Applied. 499. Delay in the Performance. 500. Partial Breach. 501. Eule in Special Cases. 507. "Where a Third Party is to Make Title. 508. "Where the "Vendee Fails, 509. Damages where the Grantor Tenders a Deed. 510. Rescission when— and Damages on. 511. "When the Purchaser has given Notes and has Possession. 512. Damages for False Representation and "Warranty. 513. Defense of a Purchaser on the Ground of Fraud, 514. Breach of the Stipulations in the Covenants of a Lease. 515. For "Withholding Possession. 516. In Case of the Eviction of the Tenant. 518. Agreement to Repair, § 442. General Principles— Damages on Covenants. — The damages on breaches of contracts or covenants rehiting to real estate, require particular consideration, not only on account of the frequent questions which arise in reference thereto, and the magnitude of the interests involved, but on acccount of the various rules adopted in reference to the measure of damages in such cases, in the different states. It may be observed that these agreements are usually under seal, and that this mode of executing important contracts, especially relating to lands, originated when the ability to write was not common.* Instruments executed in this man- ner were of a higher character than simple agreements, either by parol or in writing. But there would seem to bo no sound reason why the distinction at common law, between ' 2 Black, Com., 305, COYENANTS— EEAL ESTATE. 367 General Principles— Damages on Covenants. simple agreements in writing and those under seal should longer continue. The seal at common law is conclusive evidence of a con- sideration, but in some of the states, by statute, private seals have been abolished, and the consideration of the instrument is opened to inquiry.'* And the rule of damages on a breach of an agreement, whether under seal or not, is the same. Questions as to the measure of damages relating to real estate, usually- arise out of breaches of the agreements or cov- enants contained in deeds of conveyance, or executory con- tracts to convey, or leases. We will first consider those usually found in deeds of con- veyance in fee. These are: 1. That of seizin and of good right and lawful authority to convey. 2. That of freedom from incumbrances. 3. That the grantee shall quietly enjoy. 4. The covenant to warrant and defend against all lawful claims. The general rule is, that the grantee cannot recover substantial damages till he has sustained actual injury. For instance, if at the time of a conveyance, with full covenants, the grantor was not lawfully seized, or the premises were not free from incumbrances, there would be a breach of the cov- enants at the time of conveyance ; but the grantee, where he is placed in possession and enjoys actual seizin, or where he has not paid off the incumbrances, where there is a breach of the covenant against incumbrances, can only recover nominal damages until injured hy an ouster f and in the case of the other covenants there can usually be no breach, until actual » Code of Iowa (1873), 383; Wmiams v. Haines, 27 Iowa, 251. 3 Baxter V. Bradbury, 20 Me., 260; Overhiser v. McCollister, 10 Ind., 41; Nosier v. Hunt, 18 la., 212; Hacker v. Blake, 17 Ind., 97. And where the vendee goes into possession under the deed, and his title is rendered perfect by the act of Hmitation, although there was a breach of the covenant of seizin, he can only recover nominal damages. Wilson v. Forbes, 2 Dev. (N. C. L.), 80; Cowan V. SiUiman, 4Id., 46. And where there was no consideration for the deed, only nominal damages can be recovered. Nutting v. Herbert, 35 N. H., 120. 368 THE LAW OF DAMAGES. Covenant of Seizin— Authority to Convey— Damages on a Breach— Rule. ouster or eviction bj a paramount title. We will consider the measure of damages on breaches of these covenants. § 443. Of the Covenant of Seizin— Authority to Con- vey—Damages for a Breach— General Rule-— These stip- ulations are substantially the same; they amount to a cove- nant that the grantor has such a seizin that the land in fee will pass bj the deed." Where the grantee receives no title, the general rule of damages is the consideration money with interest;^ and in addition thereto, where the grantee has been compelled to bring suit to recover the land, or to defend the same against the claims of the owner, especially where the grantor had notice thereof and refused to defend the same, and the suit was prosecuted or defended by the grantee in good faith, the costs incurred in the prosecution or defense, as the case may be, including counsel fees, may be recovered." This is on the ground that as no title to the land passed by the defendant's deed to the plaintiff, he has lost no land by the breach of the contract; but he has lost the consideration money paid and interest, and the expenses of the former suit, which he should recover back. * Willard v. TwitcheU, 1 N. H., 177. s Bickford v. Page, 2 Mass., 455; Caswell v. "Wendell, 4 Id., 108; Chapel V. Bull, 17 Id., 213; Jenkins v. Hopkms, 8 Pick., 346; Smith v. Strong, 14 Id., 128; Lacy V. Marian, 37 Ind., 168; Farmers' Bank v. Glenn, 68 N. 0., 35; Vale v. Junction, R. Co., 1 Cin. (0.), 571; 4 Kent's Com., 475, et seq.; Foster v. Thompson, 41 N. H., 373; Nutting v. Herbert, 35 Id., 120; Brant V. Foster, 5 la., 237; Park v. Cheek, 4 Cold. (Tenn.), 20, where it was also held that where the consideration and interest has been re-paid, the grantor is entitled to a re conveyance. Blossom v. Knox, 3 Chand. (Wis.), 295; Phipps V. Tarpley,31 Mo., 4:33; Blake v. Bumham. 29 Vt., 437. 6 Staats V. Ten Eyck, 3 Caine, 111; Pitkin v. Leavitt, 13 Vt., 379; Seamour V. Harlan 3 Dana. (Ky.), 415; Dale v. Shively, 8 Kans., 276; 4 Kent's Com., 534; Yokum v. Thomas, 15 la., 67, where it was also held that expenses in the suit by the grantee to quiet the title to the land, could not be recovered, unless the grantee should have first demanded proceedings of his grantor for that purpose. See, also, Kennison v. Taylor, 18 N. H., 220; Baxter v. Brad- bury, 20 Me., 260, where it was held, that where the general rule would not be equitable it would not be apphed. See, also, 3Pars. on Con., pp. 164, and 224, et seq.; Rawle on Cov., pp. 89, 94, 326, et s^. COYENANTS— EEAL ESTATE. 369 Where Damages may Toe Less. § 444. Where the Damages mav be Less.— It should, however be remembered, tliat the fundamental rule in all actions for breaches of contracts or agreements relating to real estate, is that of compensation; and where it is apparent that the plaintiif's loss is really less than the whole purchase money or consideration paid, he will be limited to the actual loss sustained.' Thus, where the grantors were seized of two- sixths of the premises, and onlj^ had a life estate in the remainder, it was held, that the damages for the breach of the covenant of seizin in such a case, was not the four-sixth part of the purchase money or consideration paid, but that amount, less the value of tlie estate, during the lives of the grantors;^ and the value of such life estate may be estimated by tables of expectation of human life, recognized as author- ity, such as the " Carlisle Life Tables," and the life tables of Dr. Wiggles worth." So, in Maine, where in an action on this covenant, it appeared there wasan outstanding title at the time of the con- veyance, and that the plaintiff after seventeen years occupation of the premises conveyed, purchased the same; it was held, that he was entitled to recover only the amount paid to per- fect the title, with interest from the time it was paid." § 445. In Kew York, where the grantor being a tenant for life with remainder over, conveyed with a covenant of seizin in fee, and the grantee had been in possession from the time of the conveyance, the plaintiff, in a suit on this covenant against the grantor, was only allowed to recover the con- 7 Hemden v. Harrison, 34 Miss., 486. See, also, Wirting v. Nissley, 13 Pa. St., 650; Nutting v. Herbert, 37 N. H., 346; Sedg. on Dam., 176. 8 Guthrie v. Pugsley, 12 Johns. R., 125. 9 MiUs V. Catlin, 22 Vt., 98; Donaldson v. The M. & M. R. R. Co., 18 la., 280. "> Spring v. Chase, 22 Me., 505. 24 370 THE LAW OF DAMAGES. Wliere Damages may be Less. sideration money without interest, less the value of the life estate." In Maine, where there was a breach of the covenant, and the grantor subsequently acquired the title which inured to the benefit of the grantee, who was in possession of the prem- ises, and whose possession had not been disturbed; it was held, in an action for a breach of the covenant, that the plaintiff was only entitled to recover nominal damages."' And, in Illinois, where the grantor, after a breach of the covenant, and even after suit brought for a breach, acquired the title, it was held, that such subsequently acquired title inured to the benefit of the grantee, and went in mitigation of dam- ages." So, in California, it is held, that where the covenantee after eviction has purchased the paramount title, the measure of damages is the sum actually and in good faith paid therefor, and the amount expended in defending the possession, pro- vided such damages in no case exceed the purchase money and interest." So, in Iowa, where a failure of the title has been such as to constitute a technical breach of a covenant of seizin, but not such as to visit upon the purchaser any loss of the lands, he is only entitled to nominal damages in an action thereon; and he cannot recover as damages the amount of the con- sideration paid." The principle is well illustrated by the " Turner v. Livingston, 12 Wend., 83. And, in Connecticut, where the grantor was ■ seized of a life estate, it was held, that the value of the estate should be deducted from the consideration and interest. Lockwood V. Sturdivant, 6 Conn., 373. '= Baxter V. Bradbuiy, 20 Me., 260. See, also, Whitting v. Dewey, 15 Pick., 428; Overhiser V. McCallister, 10 Ind., 41. '3 King V. GHson, 32 lU., 348. '4 McGary v. Hastings, 39 Cal., 360. See, also, same doctrine, Cornell v. Jackson, 3 Gush., 506, and Lawless v. CoUier, 19 Mo., 480. »s Nosier v. Hunt, 18 la., 212. See, also, Barber v. Corbert, adm'r, 28 la., 317. COYEKxiNTS— EEAL ESTATE. 371 General Doctrine where there is no Seizin in the Grantor. reasonings of the court in Baxter v. Bradbury^ above cited. The court in that case say: "The rules which have been established to determine the measure of damages upon the breach of covenants in deeds for the conveyance of real estate, have been framed with a view to give the party entitled a fair indemnity for the damages he has sustained. Thus, if the covenant of seizin is broken, as thereby the title wholly fails, tlie law restores to the purchaser the consideration paid, which is the agreed value of the land, with interest. But in this, as well as in other covenants usual in the conveyance of real estate, if there exist facts or circumstances which would render the application of the rule inequitable, they are to be taken into consideration by a jury. The covenant was intended to secure to the plaintiff a legal seizin in the land conveyed. If it is broken, and he foils of that seizin, he has a right to reclaim the purchase money. But if, in virtue of another covenant in the same deed, which was also taken to assure to him the subject matter of the conveyance, he has obtained that seizin, it would be altogether inequitable that he should have the seizin, and be allowed besides to recover back the consideration paid for it." '° § 446. General Doctrine where there is no Seizin in the Grantor. — The general doctrine is, that if there is no seizen of the premises in the grantor, there is a breach of covenant of seizin at the time of the conveyance, which instanter becomes a personal claim in favor of the grantee; and the great majority of the American cases hold, that the covenant does not run with the land. They hold the breach, if an}', to be in praesenti; that it is broken, if at all, when the deed is delivered; and that the claim of damages for the breach thereof is in its nature, personal to the grantee, and is '« 20 Me., 260. See, also, Wliiting v. Davey, 15 Pick., 428. 372 THE LAW OF DAMAGES. The English Rule— American Doctrine. not transferred by the grantee by a subsequent convey- ance." But, in England, and in many of the states, especially where deeds have been reduced by statute to forms of greater simplicity, and where choses in action are assignable, the covenant of seizin is held to run with tlie land." §447. The English Rule— American Doctrine.— In the case of Schqfield v. The Iowa Homestead Company.^ SKpra, Beck, J., remarks: "The English rule is commended to us by reason and justice, and Chancellor Kent, while con- demning the reason upon which it is supported, in Kingdon V. Nettle^ admits that the American doctrine is supported upon a technical scruple^ and assigns the most conclusive rea- sons in support of the opposite English rule. 4 Kent., 472. The effect of all covenants in conve3\ances of lands relating to their title or their enjoyment, is to secure indemnity to the party entitled to the premises in case he is deprived of them. The subsequent vendee, in the language of Kent, ' is tlie most interested and the most fit person to claim the indemnity secured by them (the covenants), for the compensation belongs '7 Mitchel V. Warner, 5 Conn., 497; 4 Kent's Com., 472; Lewes v. Ridge Cro. Eliz., 863; Com. Dig. Tit. Cov. B., 3; Andrew v. Pearce, 4 Bos. & P., 158; Glinister v. Audley, T. Ray., 14; Hamilton v. Wilson. 4 John., 72; Logan V. Moulder, 1 Pike (Ark.), 323; Clark v. Swift, 3 Met., 390; Greenby V. Wilcocks, 2 Johns., 1; Kerr v. Shaw, 13 Johns., 236; Withy v. Mamford, 5 Cow., 137; Birney v. Haun, 3 A. K. Marsh., 324; Marston v. Hobbs, 2 Mass., 439; Chapman v. Holmes, 5 Halst., 20; Garfield v. WilUams, 2 Vt., 327; Thayer v. Clemence, 22 Pick., 493; Dale v. Shively, 8 Kans., 276. '8 Kingdon v. Nottle, 1 Maule & S., 355; 4 Id., 53; Kingv. Jones, 5 Taunt., 418; 4 Maule & S., 186; 1 Smith Lead. C. (Am. Notes to Spencer's case), 150; 4 Kent's Com., 472; 1 Wash Real P., 649; Salmon v. Valejo, 41 Cal, 481; Dale V. Shively, 8 Kan., 276; Brandt v. Foster, 5 la., 287; Frank v. Cresswell, Id., 62; Schofield v. The Iowa Homestead Co., 32 la., 317. But, m Ohio, the doctrine has been accepted with this quaUfieation, that where the grantor has neither the title nor possession, and is, therefore, unable to transfer either, the covenant is broken at the time, and becomes a mere right of action, which is not transferred by a subsequent deed of the land. Backus v. Mc- Coy, 3 Oliio, 211; Foot v.. Burnett, 10 Id.. 317; Devorev. Sunderland, 17 Id., 62. See, also, Martin v. Baker, 5 Blackf. (Ind.), 232. COVENANTS— REAL ESTATE. 373 The English Rule— American Doctrine. to liim as the last purchaser and the first sufferer.' The Ameri- can rule will operate oppressively, in all cases where the land has been subsequently conveyed by the grantee, either towards the grantor or subsequent purchaser. If the purchaser is evicted, he ought to receive the indemnity secured by the covenant, for he is not only, as is said by Kent, the first suf- ferer, but the only sufterer in every instance except where he has not paid for the land. "When the grantee under the deed containing the covenant, has sold and received j)ay for the land, it would be gross injustice to permit him to recover, for he would not in that case sustain damages. But under the rule to which we are now objecting, the grantee may recover on the covenant of seizin, and if there be a covenant of war- ranty in the deed, the subsequent grantee may also recover upon that contract against the first grantor. But, if there be no covenant of warranty, we would have the equally strange case of the first grantee recovering damages when he is enti- tled to none, and the party really injured unable to recover. Other instances of unjust and unreasonable results could be mentioned. The ' technical scruple,' as it is called by Kent, upon which the American doctrine is based, is this: The covenant is broken the instant the conveyance is delivered and it then becomes a chose in action held by the grantor in the deed. * * * * But how can this be a reason in support of the doctrine under the laws of this state, which permit the assignment of all choses in action ? What legal j)rinciple would be violated by holding that the deed from the first grantee, operates as an assignment of this chose in action.^'' " § 448- So in Missouri, it has been held, that a covenant of indefeasible seizin, created by statute, is a covenant for title and runs with the land, and that the satisfaction of a judg- ment in proceedings to enforce the assignment of dower in certain lands held by the grantee under such covenant of seizin, »9 Schofield V. Iowa Homestead Co., 32 la., 317. 374 THE LAW OF DAMAGES. Partial Breach of Covenant of Seizin -Against Incumbrances— Rule. is equivalent to an eviction, for the purposes of a suit by him, ao-ainst the grantor on the covenant.'" And the rule is the same whether the grantee has been in possession of the land or not; for the money due for rents and profits, to the owners, constitute distinct and separate claims.''' § 449 . Where there is a Partial Breach of the Cove- nant of Seizin. — And where there is a breach of the covenant of seizin, as to only a portion of the lands conveyed, the damages will be such a portion of the w^holo consideration and interest, as the value of that part bears to the value of the whole." But where the grantee has had possession and is not liable for mesne profits, the damage is held to be the purchase money without interest."' And usually the right to recover interest is limited to the time for which mesne profits can be recovered under the statutes of the different states." § 450. Damages for Breach of Covenant Against Incumbrances— General Rule.— The following usual coven- ant, is that of freedom from incumbrances, which we will nov;r proceed to consider. It may be observed that the gen- eral rule of damages in such cases, is to make good the actual loss of the grantee, in case of a breach; or in other words, to allow the plaintiff such a sum as would place him in the same position as if the covenant had been kept by the grantor. Hence, if the covenantee extinguishes the incumbrance on the land, he may recover of the covenantor the amount so paid." 2° Mag-uire v. Riggin, 44 Mo., 512. " Mitchell V. Hazen, 4 Conn., 495; Pitcher v. Livingston, 4 John. (N. Y.), 1. =^ Ella V. Card, 2 N. H., 175; Hubbard v. Norton, 10 Conn., 422; Morris V. Phelps, 5 Johns. (N. Y.), 49; CorneU v. Jackson, 3 Cush. (Mass.), 506; Partridge v. Hatch, 18 N. H., 494. =3 Flint V. Steadman, 36 Vt., 210. =4 Noonan v. Ilsley, 21 Wis., 140; Rich v. Johnson, 1 Chand. (Wis.), 19. 25 Prescotfc V. Truman, 4 Mass., 627; Harlow v. Thomas, 15 Pick. (Mass.), 66; ChappeU v. Bull, 17 Mass., 213; Hall v. Dean, 13 John., 105. But see, Barrett v. Porter, 14 Mass., 143, where land was appraised and taken on execution; the amount of the appraisement was held to be the damages on the eviction. COYEI^ANTS— KEAL ESTATE. 375 Nominal Damages— When Recoverable. The amount fairly paid to remove incumbrances is the amount which may be recovered/^ and this, though paid after the action was commenced;" provided it does not exceed the con- sideration money and interest," and if not paid, the grantee can recover nominal damages only,^' If the incumbrance cannot be removed, he may recover just compensation for the real injury resulting from the incumbrance; and if permanently kept out of the estate by reason of the incumbrance, he may recover the purchase mone^^ with interest.^" § 451. Nominal Damages — When Recoverable. — The reason of the rule that the grantee shall recover only nominal damages, where he has not paid or removed the incumbrance nor been thereby evicted, is, that he should not be permitted to recover back the consideration money for the land, while he still enjoys it, and may never be disturbed in his possession; and he must first pay off the incumbrance, so that it cannot afterwards prejudice the grantor, before he will be permitted to recover the amount fairly and reasonably paid ^ Comins v. Little, 24 Pick. (Mass.). 266; Thayer v. Clarence, 22 Id., 490; Wilson V. Wilson, 25 N. H., 229; Braman v. Bingham, 26 N. Y., 483. ^ Brooks V. Moody, 20 Pick., 474. ^ Footv. Burnett, 10 Ohio, 317; 4 Kent's Com.. 476; Rawle on Cov., 155. See, also, Batchelder v. Sturges, 3 Cush. (Mass.), 201, where the diminished value of the estate was not the measure of damages. =9 Prescott V. Traman, supra; Grant v. Tallman, 20 N. Y., 191; Tuft v. Adams, 8 Pick., 547; Harlow v. Thomas, 15 Id., 66; Stowell v. Bennett, 34 Me., 422; Anderson v. Davison, 17 N. H., 413; Smith v. Jefts, 44 X. H., 482, where there was a breach, but the covenantor removed the incum- brances; Eaton V. Lyman, 30 Wis., 41. See, also, Bailey v. Scott, 13 Wis., 618; Heard v. Hall, 12 Id., 112; Lawless v. CoUier, 19 Mo., 480; Stewart V. Drake, 4 Halst. (N. J. L.). 139, in which case the whole premises were absorbed by the mortgage debt, and it was held that the grantee should recover the whole consideration and interest. Fawcett v. Woods, 5 la., 400; Lewis V. Harris. 31 Ala., 689; Noonan v. Ilsley, 21 Wis., 140; Standard v. Eldridge, 16 John.. 254; Sturtevant v. Phelps, 82 Mass., 50; Eddington v. Nix, 49 Mo., ia4; Thayer v. Clemence, 22 Pick., 490. 3° Sedg. on Dam., 178; Willetts v. Burgess, 34 111., 494; Grant v. Tallman, 20 N. Y., 191; Giles v. Dugre, 1 Duer., 331; Porter v. Bradley, 7 R. I., 538; Cady v. AUen, 22 Barb., 388; Funk v. CasweU, 5 la., 62. 876 THE LAW OF DAMAGES. When Incumbrance cannot be Removed— Damages. to extinguisli it. Arid he must extinguisli the right of dower or other paramount right, or have been disturbed in, or lost his title by reason of the incumbrance, before lie can recover more than nominal damages, for a breach of the covenant affainst incumbrances." o Thus, where the premises were sold under a judgment, which was a lien on them at the time of the conveyance with a covenant of freedom from incumbrances, and were bid in at such sale by the grantee, the measure of damages was held to be, the amount paid by him with interest, and perhaps neces- sary incidental expenses." So, in Illinois, it is held that if, by reason of an incumbrance, the title has failed and the premises have been lost to the vendee he may recover to the full extent of the consideration; or if he has removed the incum- brances he can only recover the sum paid for this purpose, not exceeding the consideration. But if he has not been disturbed in his possession nor paid anything to remove the incum- brance, he can recover only nominal damages for the breacli; and this is the general doctrine, as we have seen, in this coun- try.- § 452. When the Incumbrance cannot be Removed — Damages. — The covenantee may recover for a breach of the covenant, when the incumbrance cannot be removed. An instance of an incumbrance which cannot be removed by the covenantee, but for which he may recover such damages as is actually sustained thereby, is where the incumbrance consists of a right-of-way of a railroad, or of the public, as a highway, for which the covenantee may recover such damages as may be sustained thereby, whether the covenantee had knowledge of the existence of the incumbrance at the time of the con- 32 Prescott V. Truman, 4 Mass., 627; Delaverqe v. Norris, 7 John., 358. 33 Burke V. Clements, 16 Ind., 132. 34 WiUetts V. Burgess, 34 111., 494. COYENANTS— EEAL ESTATE. 377 When Incumbrance Kemoved by Grantee. vejance or not.'* So, it was held, that a stipulation in a deed poll, seasonably recorded, that the grantee, a married woman, her heirs and assigns would forever make and maintain a good fence all around the granted premises, created an incumbrance, and that such an incumbrance was within the meaning of a covenant against incumbrances in a deed subsequently made by her, and that for a breach thereof, the grantee was entitled to his actual damages.'' But where the vendor made a special covenant to pay all claims against the lot sold, it was held not necessary for the pur- chaser to prove that a judgment which is a lien on the premises has been enforced or that he has been evicted, but that the non- payment of the judgment was all tliat was necessary, in order to constitute a breach of the covenant; and that on this show- ing the plaintiff was entitled to recover the amount of the judg- ment with interest." § 453. Where the Incumbrance has been Removed by the Grantee- — In all cases of a breach of covenant against incumbrances, where the same has been removed by the cove- 35Rawle on Gov. for Title, 115. to 120, and notes; Butler v. Yule, 27 Vt. (1 Williams), 739; Kellogg v. Martin, 50 Mo., 496; Van Wagner v. Van Nos- trand. 19 la.. 422; Barlow v. McKinley, 24 la., 69; Beach v. Miller, 51 111., 206; Hubbard v. Norton, 10 Conn., 422. And the same doctrine is held where a private right-of-way exists. Rea v. Minkler, 5 Lans. (N. Y.), 196. 36 Burbanks v. Pilsbury, 48 N. H., 4:37. See, also, Bronson v. Coflan, 108 Mass., 175, where the incumbrance was a covenant to maintain a fence along a railroad, and the damage was held to be the difference between the value of the land with and without the incumbrance. 37 Cady V. Allen, 22 Barb. (N. Y.), 888. See, also, same doctrine in Rec- tors, etc.. Trinity Church v. Higgins, 48 N. Y., 532. And this seems to be the general rule in this coimtry on a breach of covenants of this kind. Johnson v. Britton, 23 Ind., 105; Sedg. on Dam. 182. So the existence of an easement, if it can be held to be a breach of any covenant, is a breach of the covenant against incumbrances. McMulhn v. Wooley, 2 Lans. (N. Y.), 394. But in Maine it has been held that the right of a divorced wife to dower in the premises conveyed, with covenants of freedom from incum- brances, before assignment though after a demand, is a breach of the cove- nant for which only nominal damages can be recovered. Runnells v. Webber, 59, Me., 488. 378 THE LAW OF DAMAGES. When Incumbrance Removed by Grantee. nantee he is entitled to recover in an action on the covenant against incumbrances, all the damages actually sustained thereby. Thus, it was held in Missouri, that the measure of damages for the breach of a covenant against incumbrances in a deed of real estate, is the cost of extinguishing such incum- brances; and the reasonableness of the amount expended by the vendee, for this purpose, is a question for the jury.'* So, in Massachusetts, in an action on this covenant and on the covenant of warranty, where it appeared that in the con- veyance to the defendants, the land was supposed to be embraced but was not, and it further appeared that subsequently to the conveyance by defendants to plaintiff, the original owners entered and plaintiff surrendered, and afterwards paid divers sums to extinguish the adverse title, and the plain- tiffs claimed the sums thus paid, and for the time spent in extinguishing it, and incidental expenses for a horse and car- riage hire incurred tlierein, and a sum paid for advice of counsel after suit brought by the claimant of the adverse title, it was held, that the claim for counsel fees was improper, but the other expenses were allowed.'' So, in New Hampshire, in an action brought on this covenant on the ground of the existence of a highway, to contest which the plaintiff had been induced, on the representations of the defendant, to bring suit, and had been defeated; it was held, that the costs of that suit were a proper item of damages."" And in Maine and Massachusetts, it has been held, that in a suit on this covenant, the plaintiff' may recover the amount paid to free the title though paid after suit was brought, and this on the ground that there was a technical breach of cove- 38 St. Louis V. Bissell, 46 Mo., 157. See, also, Farmers Bk. v. Glenn, 68 N. C, 35. 39 LeffingTvell v. Elliott, 10 Pick., 204. And in the same state it was held, that the covenantee might recover the amount of a judgment lien, if dis- charged by him at any time before trial. Preble v. Baldwin, 6 Gush., 549. *> Haynes v. Stevens, 11 N. H., 28. COVENANTS— KEAL ESTATE. 379 Where Covenantee Receives Money, etc.— Maximum Amount Kecoverable. nant without payment of the incumbrance, which would entitle the plaintiff to nominal damages, and that the pay- ment of the incumbrance, was a matter relating to the amount of damages which the plaintiff was entitled to recover."' In New York,' where the the former rule prevails in refer- ence to breaches of the covenants of deeds, the limit of responsibility of the covenantor for a breach of covenant against incumbrances, is the consideration with interest and costs." § 455. Where a Covenantee Receives Money from the Covenantor to Remove Incumbrances .—In Michi- gan, it has been held that a purchaser whose vendor has cove- nanted against incumbrances and paid him money expressly to take up an outstanding mortgage, is bound to apply it in favor of his own subsequent grantees who take with similar covenants, and is liable in an action for the money paid by one of them to redeem the land conveyed, from the mort- gage."' § 456. The Maximum Amount Recoverable.— A differ- ent rule has been adopted in different states in reference to the limit of damages in cases of a breach of covenant of freedom from incumbrances, as well as incases of breaches of covenant for quiet enjoyment and of warranty, as we shall hereafter see. In those states where the amount of damages for a breach of the covenant of warranty is limited to the amount of the consideration j^aid, and interest, it is generally held that the limit of damages on a breach of the covenant of freedom from incumbrances, is the consideration paid and interest; and that, 4' Kelly V. Low, 18 Me., 244; Gardner v. NUes, 16 Id., 279; Leffingwell V. Elliott, supra; Brooks v. Moody, 20 Pick, 474. See, also, Greene v. Tall- man, 20 N. Y., 191. So in Illinois. See Claycomb v. Munger, 51 111., 373. <= Green v. Talman, 20 N. Y., 191. Dimmick v. Lockwood, 10 Wend., 142. And the same rule prevails in Indiana. Burton v. Reeds, 20 Ind., 87. *3 TwitcheU v. Drury, 25 Mich., 393. 380 THE LAW OF DAMAGES. The Maximum Amount Recoverable. where this rule prevails, the extreme limit of damages, in cases of the breach of the covenant of freedom from incumbrances, can never exceed the consideration paid and interest; and notwithstanding the grantee may pay off incumbrances, to a greater amount than the consideration paid; he can recover no more than that sum with interest. And, where the rule prevails, on a breach of the covenant of general warranty, allowing the value of the estate at the time of the eviction, there the maximum measure of damages, on the breach of the covenant of freedom from incumbrances, is the value of the estate at that time. Hence the rule of damages, above laid down in case of the breach of covenant of freedom from incumbrances, by which the covenantee is allowed to recover whatever he has paid, or may be required in good faith to pay to remove the incumbrance, should be limited in the one case to the value of the land at the lime of the convey- ance, which is usually held to be the consideration paid and interest, and the necessary expenses and costs of defending against the incumbrance; and in the other case, to the value of the land at the time of the removal of the incumbrances by the plaintiff, and perhaps necessary trouble, and expense incurred in a reasonable defense against the incumbrance. Chancellor Kent remarks: "The ultimate extent of the ven- dor's responsibility under all or any of the usual covenants in his deed, is the purchase money with interest."" Though this may be the general rule, it is not the universal one in the United States, as we shall hereafter notice. § 457. In Rhode Island, it is held that the covenantee may recover as damages, a sum equal to the injury sustained at the time the suit is brought, and that he is entitled where he has removed incumbrances to the amount paid in so doing, not exceeding the amount of the consideration paid and inter- est; but that where the incumbrance is outstanding and the ** 4 Kent's Com., 474. COYE^ANTS— REAL ESTATE. 381 The Maximum Amount Recoverable. grantee has not been actually injured thereby, he is entitled to only nominal damages. If however, the incumbrance is contimious, as in case of easements, servitudes and unexpired terms, it is held, that the rule of nominal damages does not apply, for although he has paid nothing, he has sustained, and is continually sustaining injury, to the extent of which he is entitled to recover dam- ages." And in Louisiana, a purchaser who goes into posses- sion is entitled to recover of the warrantor only the price paid, with interest from the time of the eviction, and he cannot recover counsel fees."' § 458. In Massachusetts where the larger rule prevails on a breach of the covenant of general warranty, the general rule as to the measure of damages in case of a breach of cove- nant of freedom from incumbrances, is, that the covenantor is bound to refund the amount paid by the covenantee to remove incumbrances, with the qualification that the amount cannot exceed that which the grantor would be bound to pay in case of eviction, which would be the value of the land at the time of the eviction with interest." So in Ohio, where the plaintiff after exchanging with one of the defendants, certain lands in Ohio for lands in Indiana, discovered that the Indiana lands were subject to an attach- ment in favor the creditors of one of the defendants, and he thereupon executed and delivered to the plaintiff a written undertaking to cancel all incumbrances on the Indiana land, within six months, which undertaking was guaranteed by the other defendant, and the Indiana land was sold on the attach- ment, the j)laintiff was held entitled to recover the value of the land at the time of such sale, with interest from that time." 46 Porter v. BratUey, 7 R. I., 53S; Fawcett v. Woods, 5 la., 400. 47 Hale V. New Orleans, 13 La., 499; Coleman v. Ballard, 13 La., 512. 48 Norton v. Babcock, 2 Met., 510; Baxret v. Porter, 14 Mass., 143. 49 Manchan v. Smith, 19 Oliio St., 884. 382 THE LAW OF DAMAGES. The Maximum Amount Recoverable. But in Louisiana, under the Code of that State, the grantee cannot recover for improvements made on the land by the ven- dee, after the bringing of the suit to evict him, where it is not shown that the improvements increased the value of the land or benefitted the warrantor.'" § 459. This covenant, it may be observed, is closely related to that of quiet enjoyment and general warranty; and the breach thereof may ripen into a right of action, either on the covenant of general warranty or for quiet enjoyment, as where the incumbrance is a mortgage or judgment lien, which after foreclosure and a sale in either case, may divest the vendee of the premises, either by a voluntary surrender of the premises to the purchaser on execution, or by a judgment of eviction in a suit brought to recover the same; but when the plaintiff voluntarily yields to a paramount title, or buys in an out- standing one, he does so at his peril, and in an action against his grantor, on the covenant in such a case, it would devolve on him to show that the title to which he yielded, or which he bought in, was paramount to that of the grantor." And where at the time of the conveyance with warranty against incumbrances, there is a subsisting incumbrance which absorbs the value of the land, and the quiet enjoyment of the same is thereby disturbed by eviction, the measure of damage is the same as under the covenants of seizin and warranty." An incumbrance has been defined to be a right in a third person, in the lands in question, to the diminution of the value of the land, though consistent with the passing of the fee by the deed of conveyance." And, in Iowa, it is held, that a right of way of a railroad is an incumbrance within the meaning of the covenant against incumbrances in a deed; and that a grantee may recover so Coleman v. Ballard, 13 La., 512. 5' Thomas v. Stickles, 32 la., 71. s« 4 Kent's Com., 474, et seq.; Patterson v. Stewart, 6 W. & S. (Pa.), 527. 53 Barlow v. McKinley, 24 Iowa, 69. COYENANTS— EEAL ESTATE. 383 Covenants for Quiet Enjo3anent and of "Warranty. thereon even though he had fall knowledge of the existence of the incumbrance at the time of the conveyance." And if the covenantee extinguishes the paramount title by purchase, his damage will be measured, not by the value of the land, but the amount paid for the paramount title, provided it does not exceed the purchase money. ^' § 460. Covenants for Quiet Enjoyment and of War- ranty. — These covenants may be considered together, as sub- stantially the same, as the same rules of damages are applicable to each. In order to recover upon these covenants, it is necessary to show some substantial damage. It is not sufficient that there is a paramount legal title in another, but the plaintiff must show a disturbance of the possession, or an eviction from the premises by a superior title, in order to recover substantial damages.^' These are covenants running with the land, being covenants annexed to, or connected with the estate, and for the benefit of the covenantee, and any future covenantee of the estate; and either may maintain an action for the breach thereof against his immediate or any remote covenantor; and this rule applies now to all of the usual covenants of a deed, in many of the states, as well as in England. Chancellor Kent remarks: "The ancient warranty was a covenant real, or one concerning the realty; whereby the grantor of an estate of freehold and his heirs, were bound to warrant the title, and either upon voucher or by judgment in a writ of warrantia chartcB, to yield other lands to the 54 Bai-low Y. McKinley, 24 Iowa, 69. 55 Burt V. Foster et al., 5 la., 287; Fawcett v. Woods, 7 la., 400. The same doctrine applies in case of a breach of a contract to convey. Baker v. Corbett. 2S la., 317. 56 Caldwell v. Kirkpatrick. 6 Ala (N. S.), 60; Rea v. Minkler, 5 Lans. (N. Y.), 196; 4 Kent's Com., 472. See, also, 4 Kent's Com., 479; Reed v. Ham- ilton, 18 Ind., 476. But nominal damages may be recovered where there is no actual ouster. Brady v. Sparks, 27 III., 475. 384 THE LAW OF DAMAGES. Damages on a Breach— Consideration and Interest. value of those from which there had been an eviction bj a par- amount title. The heir of the warrantor was bound only on condition that he had as assets, other lands of equal value by descent." " §461. Dfimages on a Breach— Consideration and Interest. — The ancient rule in case of warrantv has had irreat influence in fixing the rule of damages on a breach of war- ranty in modern times. As under the ancient rule, the defendant, in case of eviction, recovered of the warrantor or heir, other lands of the value only of the lands warranted at the time of the warranty, and not for any increased value of the lands by improvements or otherwise, so in an action for the breach of the modern covenant of warranty, the general rule of damages in this country, in the absence of fraud, is the value of the land at the time of the execution of the deed, of which the actual consideration is conclusive evidence, together with the interest thereon, whei'e the grantee has not received the rents and profits, or has accounted for, or is liable to account for, rents and profits of the premises; to which is usually added the necessary expenses reasonably and actually incurred in the suit in which the grantee was evicted. If the breach is partial, the griintee may recover j^ro tanto. These rules prevail in New York, New Hampshire, New Jersey, Pennsylvania, Ohio, Indiana, Yirginia, Kentucky, Tennessee, Missouri, Arkansas, Texas, Wisconsin, Iowa, Georgia, South Carolina, Kansas, California, Minnesota, and probably other states and territories. And the consideration money expressed in the deed, is at ]ea.st prima Jucie evidence of the consideration paid.^* 58 4 Kent's Com., 468, 469; 2 Black. Com., 298, et seq. 59 4 Kent's Com., 476; Bracton de Warrantia, lib. 5, c. 13, Sec. 3; Pitcher V. Livingston, 4 Johns., 1; Willson v. Willson, 25 N. H. (5 Fost.), 229; Fer- nander v. Dunn, 19 Geo., 497, where in addition to the purchase money and interest, the expense of plaintiff in defending the possession, was allowed; Phipps V. Tarpley, 31 Miss., 433; Baxter v. Ryerss, 13 Barb., 267; House v. COVENANTS— EEAL ESTATE. 385 states where the Value at Time of Eviction Prevails. § 462. States where the Value at the Time of the Eviction Prevails.— The above rule prevails in all the states except Massachusetts, Maine, Yermont, Connecticut, and Louisiana. In these states the measure of damages in such cases, is the value of the land at the time of eviction, without regard to the consideration paid therefor, and in some of them in addition thereto, the expenses incurred in defending the eviction suit, including counsel fees.^" And in Kentucky it was held, that in case of warranty and House, 10 Paigre, 158; Grist v. Hodges, 3 Dev. (N. C. L.), 198; Blake v. Burnham, 29 Vt., 437; Wade v. Comstock, 11 Ohio St., 71; Adamson v. Rose, 30 Ind., 380; Swaflford v. Wliipple, 3 Iowa, 261; Hall v. Jonathan, 22 Tex., 641, where the general rule was indorsed except in cases of fraud; Sut- ton V. Page. 4 Tex.. 142; Hanson v. Buckner, 4 Dana (Ky.), 251; Brandt v. Foster, 5 Iowa, 287, where there is a full examination of authorities; Elliott V. Thompson, 4 Humph. (Tenn.), 99; Davis v. Smith, 5 Geo. 274; Burton v. Reeds, 20 Ind., 87; Drew v. Towie, 30 N. H., 531; Foster v! Thompson, 41 Id., 373; Bennett v. Jenkins, 13 Johns., 50; Stout v. Jackson, 2 Rand. (Va.). 132; McClure v. Gamble, 27 Penn. St., 288; Morris v. Roman] 2 HaiT. (N. J.), 304; Martin v. Gordon, 24 Geo., 533, holding that the con- sideration may be inquired into; Logan v. Moulder, 1 Ark., 313; Richardson V. Kelly. 22 Geo., 62; Coffman v. Huck, 19 Mo.. 435; Gridley v. Tucker, 1 Freem. Ch. (Miss.), 209; Tong v. Mathews, 23 Mo., 437; Threlkekl y- Fi'tz- hue, 2 Leigh. (Va.), 451; Dickson v. Desire. 23 Mo., 151, in which case the purchase money was held to be the measure, no question as to interest being raised. So, in Fletcher v. Button, 6 Barb., 646, the same rule was applied in an action by the purchaser against the vendor for a failure to convey; but interest recoverable, was limited to the period of six years. Nuttino- v. Her- bert, 35 N. H., 120; 37 Id., 346; Shaw v. Wilkins, 8 Humph. (Tenn.), 647; Cox's heirs v. Strode, 2 Bibb (Ky.), 273. ^ Gore V. Brazier, 3 Mass., 526; Swett v. Patrick, 12 Me., 9, where expen- ses of the suit including counsel fees were allowed, and 'he same was held in Keeler v. Wood, 30 Vt., 242; Swett v. Sprague, 40 Id., 43; Bigelow v. Jones, 4 Mass., 512; Wyman v. Ballard, 12 Id., 304; Swett v. Patrick, 3 Fairfield, (12 Me.), 9, where expenses of defending eviction suit and counsel fees were also allowed. Sterling v. Peet, 14 Conn., 245; Park v. Bates, 12 Vt., 381; Elder V. True, 32 Me., 104; Webber v. Coussey, 12 La. An., 535, where it was held that the vendee might recover from the vendor under the Code of 1825, such increase in the value of the premises as was contem- plated by the parties, at the time of the sale, as the probable result of a breach. See, also, Coleman v. Ballard, 13 La. An., 512; Sarpy v. New Orleans, 14 Id., 311. 25 386 THE LAW OF DAMAGES. Arguments in favor of General Kule. eviction, the measure of damages is the value of the hand at the time of the sale, to be estimated by the purchase money, if expressed in the deed or known, together with interest thereon, and extraordinary costs, as well as the legal expenses in defense of the title. But that if the purchase money is not expressed in the deed, other means may be used to ascer- tain its value."' And, in Iowa, in an action on a covenant of warranty in a deed, expressing a consideration of $150.00, but which con- sideration was certain personal property, it was held proper to base the recovery upon the value fixed on the personal property by the parties at the time of the trade, and taken in payment for the land conveyed, rather than upon its actual value.*^ And where the rule of damages is the consideration paid, the consideration expressed in the deed is at least prima facie evidence of such consideration; and the general rule is, that as between the original parties, tlie consideration expressed in the deed is presumptive evidence of the amount paid, but not conclusive; and the true consideration may be shown by parol evidence.^^ § 463. Arguments in Favor of tlie General Rule.— Much learning and ability have been displayed in maintain- ing the different rules of damages prevailing in the states referred to. In support of a uniform rule, the following «' 2 Bibb (Ky.), 273. See, also, Seamore v. Harlan, 3 Dana (Ky.), 410; Buckmaster v. Grundy, 1 Seam. (111.), 312; McKee v. Brandon, 2 Id., 339; Park V. Bates, 12 Vt., 381; Hopkins v. YoweU, 5 Yerg. (Tenn.), 305; Stewart V. Drake, 4 Hal. (N. J.), 139; Logan v. Moulder, 1 Ark., 323; Blackwell v. The Justices of Lawrence Co., 2 Blackf. (Ind.), 143; Sheets v. Andrews, 2 (Id.), 274. The general rule is recognized in the foreaoing cases. The ques- tions principally discussed relate to interest and attorneys fees, and expenses incurred in defense of the eviction suit; in relation to which the rule varies in different states. 6^ WilUamson v. Test, 24 la., 138. fi3 Parker v. Brown, 15 N. H., 176; Sedg. on Dam., 193, note, 6 ed.; McCrea v. Pui-mont, 16 Wend., 460; Grant v. Townsend, 2 Hill, 554. See, also, Bolles v. Beach, 2 ZabrisM (N. J.), 680. COYEN'ANTS— REAL ESTATE. 387 Arguments in favor of General Rule. reasoning has been urged : That if in an action for a breach of covenant of seizin, the recovery is limited to the considera- tion money and interest (with perliaps costs and expenses in certain cases), and if in an action for a breach of covenant, for quiet enjoyment, or of warranty, the covenantee may recover the vahie of the lands at the time of eviction, j^erhaps much enhanced by valuable improvements made by the gran- tee, and also by appreciation thereof from natural causes, and greatly exceeding the purchase money and interest, then, as the covenantee may have his remedy in case the cov- enantor had no title on either of these covenants, if the land should increase in value by reason of the improvements or extrinsic causes, his interest would prompt an action on the general warranty; whereas, if the land should be greatly depreciated in value at the time of the eviction, then he could sue on the covenant of seizin, and recover at least the consideration and interest, although the value of the land may not amount to one-half of the consideration paid. So that although the deed contained both these covenants, if the property at the time of the eviction be worth one-half the consideration and interest, the grantee may notwithstanding recover upon the covenant of seizin, the whole consideration and interest; but if the property liappens to be worth double the amount paid for it, by reason of improvements made or inci- dental circumstances, then the covenant of seizin may be waived, and the grantee recover the value of the land as thus appreciated at the time of the eviction; and it is claimed that this is unreasonable, and not consistent with the principles of law and justice. Another argument, in support of the general rule in cases of eviction, constituting a breach of covenant, is drawn from the reason and analogy of the rule in cases of ancient real war- ranty, and the presumption that the modern personal covenants of a deed were intended to secure to the grantee the same 388 THE LAW OF DAMAGES. Arguments in Support of Kule of Increased Value, etc. indemnity in case of a breach, as was furnished by the ancient warranty; namely, the value of the land at the time of the con- veyance, which is presumed to be the consideration paid there- for. Besides, it has been claimed that to make the increased value the criterion, may be attended with injustice if not ruin; that a piece of land may be purchased for agricultural pur- poses, but become in time the site of a prosperous city, and that there would be great hardship in calling on a hona fide vendor to refund its increased value; that owners of land, if such were the case, would be deterred from making sales where there was a chance that property might advance in value by causes not foreseen by either party, and which increased value might exceed many th nisand times the consideration received therefor; and that however inadequate to full indemnity a return merely of the purchase money and interest may be in some cases, it is the safest rule that can bs followed. In support of this rule Kent, C. J., remarks: " Upon the sale of lands the purchaser usually examines the title for himself, and in case of good faith between the parties, (and of such cases only I now speak), the seller discloses his proofs and knowledge of the title. The want of title is therefore usually a case of mutual error, and it would be ruinous and oppressive to make the seller responsible for any accidental or extraordi- nary rise in the value of the land ; still more burdensome would that rule seem to be if that rise was owing to the taste, for- tune or luxury of the purchaser. ISTo man could venture to sell an acre of ground to a wealthy purchaser without the hazard of absolute ruin." § 464. Arguments in Support of the Rule of Increased Value at the Time of the Eviction. — On the other hand, those who support the doctrine that the measure of damages should be the value of the land at the time of the eviction, maintain that on the score, both of analogy and justice, the 64 Staats V. Ten Eyck, 3 Gaines, 111 (1805). See, also, 1 Kaimes Eq., 234. COYENANTS— EEAL ESTATE. 389 The Duty of the Author— His Views of the Question. same rule which is applicable to breaches of covenants or agreements for the delivery of personal property, should apply in case of a breach of these covenants relating to lands; that the introduction of personal covenants into conveyances of lands were not so much a substitute for the ancient warranty, carrying with them by implication the same rule of damages, as an assimilation to other personal covenants and contracts and subject to the same rules of construction, and the same rules of damages when they are broken; that if so, the cove- nant for quiet enjoyment or general warranty would not be broken until an eviction, and the rule of damages would be the property lost at the time, which would include the increased value of the lands; that the rule under the ancient warranty was adopted when the advancement in the value of real estate from accidental circumstances was less rapid, and valuable improvements more rare than at present; and that there is no sound reason why the grantor may not give, or the purchaser insist upon, a more efficient indemnity than was afforded by the ancient warranty, by personal covenants in the deed. And, to the argument in support of the general rule based on the possible enormous appreciation of the land, and the hazard thereby incurred by the grantor, the advocates of the rule of increased value retort: "What is to become of the industrious citizen and mechanic, who has spent his hard earn- ings in erecting his little house or workshop, relying on the covenants in his deed, if he can only get back his purchase money and interest." § 465. The Duty of the Author— His Views of the Question. — The varying rules in the different states seem well settled in their respective courts, and convenience as well as public policy may require an adherence to the same. The duty of the author generally is, to present the law as it is, and not his views as to what it ought to be. But in view of the controversy in this case, the ability and learning displayed 390 THE LAW OF DAMAGES. The Duty of the Author— His Views of the Question. by the advocates of these diiferent rules, the importance of the question, and the adverse rules in the different states, it may not be amiss to express a conviction that, although the general rule is supported by very respectable authorities, the weiirht of argument is in favor of the rule of the value of the land at the time of the eviction. And if it should be less than the purchase money, the vendee should, it seems to me, recover at least the consideration mone^^ The rule we favor seems more in accord with the principles of our jurisprudence, and the spirit of our laws and institutions. But it is better to have some fixed rule, even though it may not be the best, than a fluctuating one; and we apprehend that the rule in New York has in many instances been followed in other states, from a conviction of the importance of this policy of uniformity, and from expediency, rather than a clear sense of its abstract justice.'" ^5 The views of the author find support in the arguments and in the opin- ions of m3n emuient for their learning' and ability. Thus, in the leading case in New York, (Staats v. Ten Eyck, supra.) where the limited rule in such cases was adopted, Livingston, J., who delivered the opinion of the court, thus expresses his views: " To refund the consideration even ^vith interest may be a very inadequate compensation when the property is greatly enhanced in value, and where the same money might have been laid out to equal advantage elsewhere." In Pitcher v. Livingston, where the court adhered to the rule of prmcipal and interest as the measure of damages. Spencer, J., who dissented, thus expresses his views : ' " It has, I think, been erroneously said, that the defect of title is a case of mutual error. On the contrary, from my observation and knowledge of the sale of lands, I think the defect of title is a matter gen- erally and almost universally in the peculiar knowledge of the vendor. It is a rare case for a purchaser to investigate the seller's title; and in most cases it is impossible. The buyer relies on the allegations of the vendor, on his apparent respon- sibility to reimburse in case of eviction ; upon his possession of the property, and emphatically on his covenants of title and for quiet enjoyment. These covenants, whenever they occur in a deed, seem to me to indicate, beyond all question, that the purchaser did not mean to rely on the title of the ven- dor alone, but that he meant to have his personal liability as his guaranty. The language of the vendor corresponds with that of the purchaser, and COVENAj^TS— EEAL ESTATE. 391 Interest as Damages. § 466. Interest as Damages. — The question of interest as damages generally turns on the fact whether or not the lands were improved, and the plaintiff has occupied or enjoyed holds out the idea that he had sold the land at his own peril, and that he would warrant it to be his. Extravagant cases have been put, hypothetically, to show the enormous injustice of the rule, that the vendor must be answerable for the improve- ments. It has been asked, if a piece of land thus sold, with covenants, should become the site of a flourishing city, what fortune could, under a rule allowing for improvements, withstand ruin ? It may be retorted to such a question, 'What is to become of the industrious citizen or mechanic who has spent his hard earnings in erecting his little house or workshop relying on the covenant of his deed, if he can only get back his purchase money and interest?' It is not fair, however, to test a rule by extreme cases. * * * I lay it down as a rule, which cannot require much illustration to enforce it, on the score of analogy and justice, that in actions for a breach of covenant, the damages are to be estimated according to the value of the tiling when the covenant was broken. Thus, in a covenant for the delivery of specific property at a given day, in case of failure, the rule invariably is, to allow in damages the value of the thing on the day it ought to have been delivered, and when the covenant was broken. So on contracts for the delivery of stock, the value at the time it ought to have been delivered, and even at the time of trial has been the criterion of damages. In the present case the defend- ant covenanted that the plaintiff should quietly enjoy the land sold. This covenant was violated when the plaintiff was evicted; and he has lost by the breach of the covenant, not only the quiet enjoyment of the land, but the usufruct of those erections and improvements, without which, it is fair to say, that the land itself could not have been enjoyed agreeable to the inten- tion of the parties. It necessarily follows that, had the defendant kept his covenant and allowed the plaintiff to enjoy the premises sold, he would not have been deprived of those improvements made on the thing itself, the making of which was an inducement to the purchase. How it can be called severe doctrine, to compel the vendor to respond in damages for ordinary and necessary improvements, I confess myself incapable of perceiving, when he has undertaken for a price paid to assure to the vendee the validity of his title. * * * It follows, from the view I have taken of this question, that the plaintiff, under the covenant for quiet enjoyment, may recover the improvements, and that under the covenant of seizin he could not, unless the grantee was seized by virtue of the deed and has been evicted under a title paramount. I have not entered into any examination of the ancient method of pro- ceeding under the ivarrantia chartce, and the rule which obtained in such case, under the writ of cajye ad valentiam, because the covenants of warranty were then considered as real covenants binding only on the grantor and his heirs. It has, howeverj been urged that the introduction of the covenants 392 THE LAW OF DAMAGES. Interest as Damages. the benefit of the premises without the liability to uccouiitfor the mesne profits. In case the lands are improved, and he has enjoyed the premises and there is no liability to account of seizin and for quiet enjoyment, were Bubstitutes for the covenant of war- ranty, and that the same rule ought to follow the substituted covenants. It appears to me much more proper to consider the introduction of personal covenants in the alienation of real property as immediately assimilating themselves to other personal covenants and contracts, and as subject to the same rules of construction, and the same rule of damages when they are broken." And Mr. Justice Gould, in BrinkerhofF v. Phelps, 24 Barb., 103, expresses his opinion on this question as follows: *'I cannot say that I have ever been satisfied with the rule that in an action on a covenant for quiet enjoyment, 1 am entitled to recover not what the premises I enjoy are worth when I am evicted, but merely what I paid for the land, without any reference to my improvements. In the leading case in this state (4 John. 3), although the opinions which so hold ai-e very able, and entitled to profound respect, my reason has ever been better satisfied with the dissenting opinion of Mr. Jus- tice Spencer. He says: 'In actions for a breach of covenant, the damages are to be estimated according to the value of the thing, when the covenant was broken.'" And in reply to the majority of the court in that case, that "If a grantee be desirous of receiving the value of the land at the time of the eviction, he may by apt covenants in the deed, if a grantor will consent, secure such benefit to himself, ' ' observes : "What those apt covenants would be, when in 4 John, 3, the same court say, 'that a covenant for further assurance is also in subordination to the superior covenant of seizin, and cannot go beyond it in a rule of damages,' it might be difficult to imagine. If neither a covenant that I shall enjoy the property, nor a covenant to make my title good goes beyond the bare covenant that the grantor has title at the time he conveys, what form of personal promise (or covenant) would relieve me from the incubus of the permanent covenant of seizin." Mr. Rawle, in his valuable treatise on Covenants for Title, pp. 244, 245, admits a practical impossibility of adopting rules that shall do entire justice to parties in such cases. And he remarks: "But the common law rule is capable of being modified hj circumstances in a court of law, or by a court of equity. If the vendor has made use of fraud or concealment, an action on the case in the nature of a writ of deceit, may restore to the purchaser the value of all he has lost. If the purchaser had, with knowledge of the defect, gone on with his improvements, his claim for their allowance would seem to rest on less strong grounds than if he were ignorant, notwithstand- ing he has taken the covenants for his protection against the defect. If the paramount owner has lain by, and seen these improvements go on without asserting his claim to the estate, if it be doubtful, if this can, in a court of law be set up as an equitable defense to an action for the mense profits, it is COVEN'ANTS— KEAL ESTATE. 393 Interest as Damages. for mesne profits, this lias generally been held equivalent to interest upon the consideration, and no interest is recoverable. But in other cases, interest is a proper element of damages."' And where the right to recover for mesne profits is limited by statute, and the lands are improved, and the grantee has had j)ossession, the right to interest, as an element of damages, is limited to the period for which mesne profits could be recovered by the owner of the paramount title. The theory being that the use of the land is equivalent to interest, and that this is all that should be allowed under the general rule. Thus, in Ohio, where the period during which the tenant is required to account to the true owner for mesne profits, in the action of ejectment, is four years, the plaintiff was held enti- tled to recover interest on the consideration paid, for only four years." So in Connecticut, where one piece of the land was under improvement and one not improved. The measure of dama- ges in the former case was held to be the consideration with- out interest, and in the latter the consideration with interest, and the expenses of the eviction suit." The general doctrine seems to be that, where the grantee has enjoyed the possession of the premises and is not liable to very certain that it would be recognized in a court of equity." See, also, Green v. Biddle, 8 Wheat. (U. S.), 77; Lord Cawdor v. Lewis, 1 Young & Coll. (Ex.), 427; Bright v. Boyd, 1 Story, 478; Sugden on Vend., 614. Owing to the restricted rule of damages in such cases m New York and other states, the following strange anomaly exists. If a vendor contracts to sell and convey at a future time, and in fact, at the time has no title, and is unable to convey at the time stipulated in his contract, he is required to indemnify the purchaser, and compensate him for improvements made on the faith of the vendor's promise, but if he executes a deed with full cove- nants, and there is a breach and a failure of title, the vendee can only recover the consideration and interest. See, post, § 479, et seq. 66 Cox V. Henry, 32 Pa. St., 18; Whetlock v. Crew, 28 Geo., 289. 67 Clark v. Parr, 14 Ohio, 118. See, also, Fernander v.Dunn, 19 Geo., 497; Harding v. Larkin, 41 111., 413; Wade v. Comstock, 11 Ohio St., 71; Flint V. Steadman, 36 Vt., 210; McNear v. McComber, etal., 18 la., 12. «3 Castle V. Pierce, 2 Root, 294. 394 THE LAW OF DAMAGES. Eule in Keference to Costs, etc.— Where Eviction is only Partial. account for tlie mesne profits, interest is not allowed, other- wise it is.^' § 467. The Rule in Reference to Costs and Counsel fees paid in the Eviction Suit,— The decisions on this ques- tion are somewhat conflicting and various in the different states. In several states it has recently been held, that the measure of damages on a breach of warranty in a deed, is the value of the property at the time of the conveyance and interest thereon, together with the necessary costs and expenses incurred in defending the title, and that such costs and ex- penses include a reasonable counsel fee.'" But in Iowa, where the grantor of real estate conveyed by deed with covenants of seizin, right to convey, against incum- brances, and of warranty, and at the time the legal title was in another who had acquired the same through fraud, it was held: " 1. That the covenant was broken at the time of the con- veyance. " 2. But that the grantee to entitle himself to recover sums expended in proceedings to quiet the title, should have first demanded proceedings by his grantor for that purpose." § 475. Where the Eviction is only Partial.— Where the enjoyment of only a portion of the land has been disturbed, or there has been an eviction from only a part of the same, the general rule is, that the grantee can recover only in the proportion which the value of the premises from which he has been thus evicted bears to the whole premises and the interest thereon, and costs and expenses, subject to the same ^ Sedg. on Dam., 170 and 171, and notes to 6th ed. 70 Robertson v. Lemon, 2 Bush. (Ky.), 301; Dalton v. Bowker, 8Nev., 190; Keeler v. Wood, 30 Vt., 242; Smith v. Sprague, 40 Id., 43; Rowe v. Heath, 23 Tex., 614. 71 Yokam v. Thomas, 15 la., 67. See, also, Jetter v. Glenn, 9 Rich. (S. C), 374, where it was held that counsel fees, paid in defense of a claim of dower, could not be recovered, although other expenses could. COVENANTS— REAL ESTATE. 395 Where Eviction is only Partial. qualifications and conditions applicable in cases of total evic- tion. If there is only a partial breach, he can only recover ^ro tanto. Thus, in New York, where it was insisted that a partial failure of title entitled the grantee to recover the entire consideration, it was held otherwise by the court, and that it was competent for the defendant to show that the part, in reference to which the title had failed, was inferior to the balance of the land conveyed; and this principle was, by Kent, C. J., declared to be " deducible from the year books, and enforced by the analogies of the civil law." " And where, in an action for a partial failure of title, it was contended that the measure of damages, in case of partial eviction, should be in the proportion which the quantity of the premises, to which the title failed, bore to the whole prem- ises conveyed; the court held otherwise, and that the propor- tion should be of the value and not of the quantity." And where a claim for dower was established by the widow of the grantor, against his grantee, it was held that the measure of damages in an action on the covenant of warranty, was that portion of one-third of the amount paid, which the value of the widow's life estate, in the assignment made, bore to the value of the fee simple of the same.'* So, in Nevada, where the eviction was partial, being a part of the water of an irrigating creek, the damages on this cove- nant was apportioned to the value of the property lost as com- pared with the value of the property preserved." 72 Morris v. Phelps, 5 Johns., 49; Guthrie v.Pugsley, 12 Id., 126; Hunt v. Orwig, 17 B. Mon. (Ky.), 73; Beaupland v. McKeen, 28 Penn. St., 124; Rains V. Calaway, 27 Tex., 678; "Walker v. Johnson, 8 Eng. (Ark.), 522; Downer v. Smith, 38 Vt., 464; Kerby v. Richardson, 17 Geo., 602; Griffin v. Reynolds, 17 How. (N. Y.), 609; Furness v. Furgason, 15 N. Y., 437; Hoot v. Spade, 20 Ind., 326; Philips v. Rechert, 17 Ind.. 120; Wiley v. Howard, 15 Ind., 169; Brant v. Foster, 5 la., 287; Major v. Dunnavant, 25 111., 262. 73 Cornell v. Jackson, 3 Gush., 506. See, also, Mitchell v. Mills, 17 Ohio, 601; King v. Lyle, 8 Serg. & Raw., 166. 74 HiU V. Golden, 16 B. Mon. (Ky.), 551. K Dalton V. Bowker, 8 Nev., 190 (1873). 396 THE LAW OF DAMAGES. Where Grantee Protects Himself by a Purchase of the Superior Title, etc. § 476. And, where there is a partial breach of the cove- nant, interest will be allowed upon the value of the property to which the title has failed." But, where there was a con- veyance with full covenants, and at the time the legal title was in another who had acquired the same by fraud, it was held, that to entitle the grantee to recover the sum ex]>ended in proceedings to quiet the title, he should have first demanded proceedings of the grantor for that purpose." So where there have been fraudulent representations in the sale of real estate, the measure of damage is the difference between the value of the land as it was at the time of the purchase and the value of the land as represented." § 477. Where the Grantee Protects Himself by a Purchase of the Superior Title, or Yields to the Title. — Analogous to the case of partial loss of the premises con- veyed, is that where the covenantee purchases the paramount title, in which case the measure of damages is the actual loss sustained thereby. Thus, in Illinois, where the action was on the covenant of warranty, and the plaintiff had purchased in an outstanding superior title, it was recently held, that the measure of dam- ages was the amount paid therefor with interest.'' And in California, in an action on a covenant for quiet enjoyment, it was held that the covenant was broken by an involuntary loss of possession, by reason of the hostile asser- 7*5 McNear v. McComber, 18 la., 12. " Yokum V. Thomas, 1-5 la., 67. See, also, Jeter v. Glenn, 9 Rich. (S. C), 374; Critchfield v. Starr, 36 Md., 129; Nendel v. North, 24 Wis., 223. 78 Likes V. Baer, 8 la.. 368; Gales v. Reynolds, 13 la., 1 ; Moberly v. Alex- ander, 19 la., 162; Hanna v. Cummings, 3 la., 583; Hallam v. Todhunter, 24 la., 166. So in Iowa, it was held, in an action for the breach of a contract for the exchange of lands, where the plaintiff had conveyed that which he had agreed to convey, and the grantee failed to convey, the measure of dam- ages was the value of the land which by the contract the grantor was entitled to receive from the defendant. Devin v. Himer, 29 la., 297. » Claycomb v. Hunger, 51 111., 373 (1869). COVENANTS— REAL ESTATE. 397 Where Grantee Protects Himself by a Purchase of the Superior Title, etc. tion of an irresistible title; that the paramount title need not be established by a judgment, before the covenantee will be authorized to surrender the possession; that there need not be ap actual dispossession; that if the paramount title is so asserted that the grantee must yield the possession, the cove- nantee may purchase or lease of the true owner, and this will be a sufficient eviction to constitute a breach. It was farther held, that the measure of damages, where the plaintiff has purchased the paramount title, is the sum actually and in good faith paid therefor, and the amount expended in defending his possession, provided such damage does not exceed the purchase money and interest.*" So, likewise, it has been recently held in New Jersey, that neither by weight of author- ity, nor upon j^rinciple, is an eviction of the covenantee from the actual possession of the premises, whether by pro- cess of law or otherwise, necessary to complete his remedy upon the covenant of warranty, but it is sufficient, if he nec- essarily must and does yield to the superior title."' § 478. Under a covenant of warranty in a deed, the pur- chaser may maintain an action against the grantor, for the amount of an assessment of taxes ppon the property, previous to the conveyance and paid by the grantee.*^ And where a general covenant of warranty in a deed, covers a prescriptive right of way over the land held by a third party, and the grantee is mulcted in damages, for obstructing such right of way, he may recover from the grantor the amount."^ In Wisconsin, where E., having recovered land in ejectment against F., sold and conveyed it to him for a specified consid- eration in money, in lieu of which he then accepted an assignment of F.'s right of action, upon the covenants of L., 8° McGary v. Hastings, 39 Cal., 360. 8' KeUogg V. Piatt, 33 N. J. L., (4 Vr.), 328; 2 Gr. Ev., § 244; Rawle on Gov., 2-j6, et seq. 8^ RundeU v. Lakey, 40 N. Y., 513. 83 Bridger v. Pierson, 1 Lans, (N. Y.), 481 (1869). 398 THE LAW OF DAMAGES. Executoi-y Contracts for Sale of Lands— Breach on Part of Vendor. under whose deed F. had first entered on the land; it was held, that the measure of E.'s recovery against L. on the covenants of warranty and against incumbrances, was the amount F. had agreed to pay him for the land, and interest, with perhaps such sums for costs of the ejectment suit as F. himself might have recovered if the suit had been brought in his name; except that in no event could it exceed the consideration named in, or paid for the conveyance from L. to F/* And, in an action by a vendor to foreclose a mortgage given for the purchase money, and Vhere he has covenanted for quiet and peaceable possession, the purchaser is entitled to have deducted from the mortgage debt such actual damages as he may have sustained from suits commenced by the ven- dor to set aside the deed and for partition, etc., on the ground of pretended fraud, whereby a re-sale by the purchaser has been defeated, although the suits liave been withdrawn." But, it is held, that a warranty for quiet enjoyment extended only to the damages involved in an eviction; and that damages for personal injuries received from an assault and battery com- mitted by an agent of the defendant, in ejecting the tenant, are not recoverable on the covenant; but that, in order to hold the covenantor in such a case, his complicity in the violence used must be shown. ^° § 479. Executory Contracts for the Sale of Land.— Controversies in reference to damages frequently arise on breaches of contracts for the sale and conveyance of lands, whether in writing and under seal or not; and where the breach is on the part of the vendor or purchaser. § 480. Breach on the Part of the Vendor.— The authorities on the question of damages, where the breach is on 84 Eaton V. Lyman, 24 Wis., 438 (1869). 85 Akerly v. Vilas, 23 Wis., 207 (1868). See, also, Baker v. Corbett, 28 Iowa, 317, where the same rule is applied to a title bond. ^ Jones V. Worley, 21 La. An., 404. COYEN ANTS— REAL ESTATE. 390 Where Vendor Acts in Good Faith. the part of the vendor, are conflicting and inharmonious. On the one hand, it is claimed that the measure of damages should be the same as on the breach of the covenant of title in a deed, which, in England, and perhaps generally in this country, as we have seen,^° is held to be the consideration money and interest. While, on the other hand, it is claimed that the case is analogous to that of a breach of contract to deliver personal property, where the consideration has been paid, in which case, as we have seen," the general rule of damages is the highest value of the property up to the time of bringing the suit, or even the time of trial. § 481. AVhere the Vendor Acts in Good Faith.— In an action for the breach of contract, the commonly received doctrine, both in England and in this country, is that where the consideration has been paid on a contract to convey lands at a future time, if there is a breach on the part of the seller, and he has acted in good faith, and the failure arises from no intentional fault or wrong of his own, the purchaser can only recover the consideration paid and interest.'' And where, under similar circumstances, no consideration has been advanced, the purchaser can recover nothing, or only nominal damages. In the leading English case, relating to this question. Sir William Blackstone said: " These contracts are merely upon condition, frequently expressed but always implied, that the vendor has a good title. If he has not, the return of the deposit with the interest and costs is all that can be expected." And De Gray, C. J., said: "TJi^on a contract for a pur- chase, if the title proves bad, and the vendor is (without fraud,) incapable of making a good one, I do not think that 36 Ante, § 443, et seq. 46 Ante, § 246. 56 See, Mayne on Dam., 91, et seq. 400 THE LAW OF DAMAGES. Where Vendor Acts in Good Faith. the purchaser can be entitled to any damages for the fancied goodness of the bargain which he supposes he has lost." " The doctrine of this decision seems to have been respected in most, if not all, subsequent adjudications involving the question, and the apparent conflicts in the decisions are gen- erally owing to different views of the facts as furnishing evi- dence of fraud on the part of the vendor. The application of the rule we have stated, with its qualifi- cations, will be illustrated by the following cases: In Walker v. Moore, the plaintiff contracted with the defendant for the purchase of real estate, for whicli the defendant, acting in good faith, delivered an abstract showing a good title, and before any further investigation of the title the plaintiff contracted for the sale of several portions of tlie property at a considerable profit. The title to the property proved defective, and the subsequent purchasers refused to complete their purchases, and the plaintiff refused to com- plete his purchase of the defendant, and brought an action wherein he claimed as damages the expenses he had incurred in the investigation of the title; the profit that would have accrued from a re-sale of the property; the expense attending the re-sale, and the sums which he was liable to pay the sub- contractors for the expenses incurred by them in examining the title. Bat the court held that he was entitled to recover only the expenses he had incurred in the investigation of the title, and nominal damages for the breach of contract, as no fraud could be imputed to the vendor. In this case, Park, B., said: "In the absence of any express stipulation about it, the parties must be considered as content that the damages, in the event of the title proving defective, shall be measured in the ordinary way, and that excludes the claim of damages on account of the supposed goodness of the bargain. Here, 87 Flureau v. ThomliiU, 2 Wm. Black., 1078 (1776). See, also, McNair v. Compton, 35 Pa. St., 23 (1859). COYENANTS— EEAL ESTATE. 401 General Doctrine. however, there are two other sums claimed; but under the circumstances stated in the award, I think the phiintiff is not entitled to them. It is urged that no defect appeared upon the abstract, and that it was only discovered on comparing the abstract with the deeds. Assuming that to be so, (although it is not expressly found,) yet, as there is no fraud, negligence in preparing the abstract is the only thing that can be imputed to the defendants; and the plaintiff, by exercising ordinary care, might have averted the loss that had arisen from that negligence." ^' § 482. General Doctrine. — Although the principle con- tained in the decision in Flureau v. Thornhill^ has ever since been respected by the courts, many cases seem to turn upon facts relating to the hona fides of the vendor, that are curious if not instructive. Thus, in Paunsett v. Fuller^ the defendant agreed to sell the plaintiff the right of shooting on a third party's manor for a specified time, and it appeared that he had no title which he could convey, but a mere agreement from the owner to let him the shooting on the manor for five years, at a spec- ified rent, he supplying the owner with game; and, it was held, that as the defendant, as a layman, had a fair right to believe he had the power to sell which he professed to have, the plain- tiff could recover nothing beyond the expenses of investi- gating the title, and nominal damages for the breach.*' And, in Sihes v. Wild, the principle we have been consid- ering is further recognized, though the facts of the case can hardly be distinguished from others where the result was dif- ferent. The facts were as follows: Real estate had been devised in trust to the defendants to sell; the solicitor employed in the affairs of the trust, knew that the legal 88 10 Bam. & Cress., 416 (1829). See, also, Buckley v. Dawson, 4 Irish C. L. (N. S.), 211. 89 17 C. B., 660. 26 402 THE LAW OF DAMAGES. General Doctrine. estate was in trustees for the purpose of securing an annuity to the widow of the devisor, and that no unincumbered title could be made to any part of the estate, unless she and the trustees should discharge the part sold from the trust. This she verbally agreed to do, but afterwards refused, and the solicitor was aware that she was not bound by her verbal aerreement. In an action for damages for the breach of the cantract to sell, the jury found that the defendants hona fide believed they would be able to make a good title, free from incumbrance, and had good grounds for so believing; and tlie Court of Queen's Bench held, that the purchaser was not, on the facts found, entitled to damages for the loss of his bargain. And this opinion was afterwards affirmed in the Exchequer Chamber.'" § 483 . The foregoing doctrine has been incidentally recog- nized in many cases which we shall hereafter consider, where the seller had been guilty of fraud or bad faith; and also in cases free from such charges. Thus, in Pennsylvania, in an action by the vendee against the vendor for the breach of a parol contract for the sale of land, the court held, that in the absence of fraud the measure of damages, where the purchase money or any part of the same is paid, is the amount of the purchase money and interest and expenses; or, if no part of the purchase money has been paid, the expenses and trouble incurred by the vendee in endeavoring to procure a title; and that in the absence of fraud he cannot recover damages for the loss of a good bargain. The court said : " A vendor "who, without fraud, is unable to convey the title to real estate, which he has agreed to convey, is subject to a measure of damages that regards the consideration paid; or where it has not been paid, the expenses and trouble incurred by the vendee soSikes V. Wild, 1 Best & S., 587; 5 L. T. (N. S.), 422; 4 B. & S., 421 ; 32 L. J. (N. S.), Q. B., 375. See, also, Sug. on Vend. (14 ed.), 361; Locke V. Furze, 34 L. J. (N. S.), C. P., 201; 19 C. B. (N. S.), 96; 1 L. R. (C. P.), 441 (1865). COVENANTS— EEAL ESTATE. 403 Where Vendor Acts in Bad Faith— Rule. Las always been the rule in Pennsylvania, as may be seen by consulting the authorities.'" The value of the land is sometimes spoken of as the meas- ure of damages, but that means the value as measured by the consideration, rather than the difference between the considera- tion and what the land will fetch in the market. The parties fix their own estimate of the value when they fix the consider ation.""' § 484. Where the Vendor Acts in Bad Faith— Rule. — A different rule, however, prevails where the vendor is guilty of fraud or bad faith. There appears to be an aversion to the doctrine that the motives of the parties can affect the measure of damages on a breach of contract. This aversion is based upon the technical princip]e in pleading recognized at common law, that the intent of a party in such cases cannot be averred in the pleadings except as a matter of form, nor evidence be given in support of it, when thus formally stated; and that damages should not, therefore, be made to depend upon it. If a reform is made in the ajiplication of principles in the measure of damages, why not also in the law of plead- ino;s and evidence? There can be no insuperable objection to such a reform, and if a rule of damages should obtain, more in accord with the principles of justice and equity than heretofore recog- nized, the rules of pleading and of evidence should be made to harmonize therewith. The former relates to the essence of human rights, the latter to the forms and means of securing them. 5' Malaun v. Ammon, 1 Grant's Gas., 126; Hertzogg v. Hertzogg, 34 Pa. St., 418. ^ Dumars v. Miller, 34 Pa. St., 323. See, also, Bowser, v. Cessna, 62 Pa. St., 148; Baldwin v. Munn, 2 Wend., 399; Peters v. McKeon, 4 Den., 546; Fletcher V. Button, 6 Barb., 646; Hiner v. Richter, 51 111., 229; Thompson V. Guthrie. 9 Leigh., 101; Allen v. Anderson, 2 Bibb. (Ky.), 415; Hanley v. Chambers, 1 Little, (Ky.), 358; Stewart v. Noble, 1 G. Greene, (la.), 26. 404 THE LAW OF DAMAGES. Where Vendor Acts in Bad Faith— Rule. § 485. The current of English decisions on the question under consideration clearly recognizes the distinction in the measure of damages, based on the fact of good or bad faith in the grantor, as we shall hereafter notice. The tendency of the decisions, both in England and in this country, where the vendor is guilty of fraud or acts in in bad faith, is to hold him to a more extended liability, in case of a breach of con- tract to convey; and the damages in such a case may embrace not only the amount of consideration paid, but the losses of a good bargain and such losses even as were contemplated by the parties, at the time of the contract, as the probable result of a breach. Thus, in Walher v. Moore, supra, Baylet, J., in his remarks, distinguished it from the case oi Hopkins v. Oraze- hrook^'^ on the ground that in the latter case the plaintiff had sold, as his own, the property which was not his, and the court was of the opinion that the defendant was in fault by repre- senting himself to be the owner of the proj^erty sold by him, and he remarks as follows: " If there was mala fides in the original vendor, I am not prepared to say that the purchaser might not recover the profit which would have arisen from the resale." And in the same case. Park, J., said: "As there was no fraud, negligence in preparing the abstract is the only thing that can be imputed to the defendant, and the plaintiff by ordinary care might have avoided the loss that has arisen from negligence." °^ § 486 . In Buckley v. Dawson, supra, the Lord Chief Justice remarked: "The whole matter was hona fide, and no issue was sent to the jury, or required to be sent, as to fraud." And the other judges concurred, as there was no fraud impu- ted to the defendant. This seems clearly to imply that the motives of the vendor will affect the measure of damages. 9-6B. &C., 31. See, j90s^ § 492. 93 See, also, Fyrer v. King, 2 C. & K. (N. P.), 149. COYENANTS— EEAL ESTATE. 405 Where Vendor Acts in Bad Faith— Rule. And whatever may be the doctrine elsewhere, this element has generally been recognized in this country as affecting the claim for damages." § 487. The rule of damages in such cases, at least where there is fraud or bad faith on the part of the vendor, is analo- gous to that of a breach of contract for the sale of personal property, and the vendee may recover all such consequential damages as directly result from a breach of the contract."^ Thus, in Baldwin v. Munn^ sujpra, Sutherland, J., said : " If the vendor acts in bad faith and refuses to convey because the property has increased in value, and with the view of putting the enhanced value in his own pocket, it becomes a case of fraud, and the plaintiflf would clearly be entitled, either to compel a specific performance in equity, or to recover by wav of damages the difference between the contract price and the enhanced value when the conveyance should have been made." '" § 488. So in Iowa, the measure of damages in such cases is held to depend upon the cause of the failure. If the vendor has been prevented from performing by unforeseen causes, which he could not control, and no part of the consideration has been paid, the vendee can only recov^er nominal damages. If the consideration, or any part, has been paid he may recover that with interest only. But if the vendor is in fault and did 94 McNair v. Compton, 35 Pa. St., 23; Hall v. York, 22 Tex., 641; Whee- ler V. Styles, 28 Id., 240; Hale v. New Orleans, 18 La., 321. 95 Lock V. Furze, 34 L. J. (N. S.), C. P., 201; 19 C. B. (N. S.), 96; 1 L. R. (C. P.), 441; Engle v. Fitch, 9 B. & S., 85; L. R., 3 Q. B., 314; 10 B. & S. (Exch.), 738; L. R. Q. B., 659; in which the doctrine of Hadley v. Bax- endale was recognized. If the consideration has been paid the purchaser should be allowed the value of the property at the time the conveyance should have been made. Brinkerholf v. Phelps, 24 Barb., 100; Cox v. Henry, 32 Pa. St., 18; Burr v. Todd, 41 Id., 206; Barbor v. Nichols, 3 R. I., 187; Shaw V. Wilkins, 8 Humph. (Tenn.), 647; Pringle v. Spalding, 53 Barb. (N. Y.), 17. 96 2 Wend., 399. See, also, the same doctrine in Peters v. McKeon, 4 Den., 546, supra; and Fletcher v. Button, 6 Barb., 646, supra. 406 THE LAW OF DAMAGES. Where Vendor Acts in Bad Faith— Rule, know, or should have known, that he could not comply with the contract; or has the title and refuses to convey; or had the title and has disposed of it, and thereby disabled himself from conveying tlie same; or at the time of making the con- tract knew that he had no title; or where the inability to convey arises in any manner from the fraud of the vendor; the vendee may in any of these cases recover compensation for any actual loss arising from the breach of the contract to convey, including the increased value of the hind at the time the contract should have been performed." § 489. In Hophins v. Lee^ tlie Supreme Court of the United States, held the same doctrine. Tlie court said: " The rule is settled in this court that, in an action by tlie vendee for a breach of contract on the part of the vendor for not deliv- ering the article, the measure of damages is its price at the time of the breach. The price being settled by the contract, which is generally the case, makes no difference, nor ought it to make any; otherwise the vendor, if the article has risen in value, would always have it in his power to discharge himself from his contract, and put the enhanced value in his own pocket; nor can it make any difference in principle whether the contract be for real or personal property, if the lands, as is the case here, have not been improved or built on. In both cases the vendee is entitled to have the thino; ag-reed for at the contract price, and to sell it himself at its increased value. If it be withheld, the owner ought to make good to him the difference.'"* § 490. The distinction made between good and bad faith in the grantor or covenantor, in such cases, has been recently 97 Foley V. McKegan, 4 la., 1; Sweem v. Steele, 5 Id., 352. See, also, Wilson V. Spencer, 11 Leigh. (Va.), 261; Allard v. Anderson, 2 Bibb. (Ky.), 41-5; Davis v. Lewis, 4 Id., 456; Locke v. Taylor, 2 Tenn., 50; Stephenson v^ Harrison, 3 Litt., 170; Bush v. Cole, 23 N. Y., 261; Pringlev. Spalding, 53 Barb., 17; Griswold v. Sabin, 51 N. H., 167; Russell v. Copeland, 30 Me., 332. 58 6 Wheat. (U. S.), 109. COYENANTS— EEAL ESTATE. 407 "Where Vendor Acts in Bad Faith— Rule. recognized in Missouri, in the case of Kirkyatrick v. Down- ing. Tlie learned Justice Wagner, after a full review of the authorities bearing on the question, maintains the general rule, that where the failure or Inability to convey is owing to the fault of the vendor, the vendee is entitled to the value of the property at the time of the breach, provided the consideration has been paid; and that even where the consideration has not been paid or tendered, if the vendor has placed it out of his power to convey, the vendee may recover the difference between the contract price and any increase in value of the land beyond such price. He remarks: " The rule must be reciprocal ; where the prop- erty has enhanced in value the purchaser gets the benefit of the enhancement. So, where a depression has taken place, he must submit to a corresponding loss. In both cases he obtains the true measure of damages, full compensation for the loss sustained. Where there is no evidence given showing any change in the situation, the consideration paid, and inter- est, will be taken as the correct value of the land; but where there is evidence given showing a change in the value of the land, the value at the time the breach occurred and when the conveyance ought to be made, will furnish the standard of damages. This is fair and just for both parties, as they obtain j)recisely what they are entitled to, and the basis is predicated on actual loss, the full and actual consideration." °" § 492. This doctrine seems now to be generally sustained in England. Thus, where a person who had contracted for the purchase of an estate but had not obtained a conveyance, put up the estate for sale in lots by auction, and engaged to make a good title by a certain day, which he was unable to do as his vendor never made any conveyance to him, it was held that a purchaser of lots at the auction sale might, in an action for not making a good title, recover not only the expenses 99 58 Mo., 32 408 THE LAW OF DAMAGES. Where "Vendor Acts in Bad Faith— Rule. which he had incurred, but also damages for the loss which he had sustained bj not having the contract carried into effect, including the loss of a good bargain.'" As it was admitted in this case that the defendant acted in good faith, it seems difficult to reconcile the case with some other English decis- ions." § 493 . This decision was followed, in a subsequent case whei-e the defendant agreed to grant and deliver to the plain- tiff a lease of certain premises for the term of twenty-one years, and there was a breach of the contract on the part of the lessor. In an action for damages for the breach, the defendant, at nisi prias^ offered evidence to show that the plaintiff, when he entered into the agreement, had full knowl- edge of the defendant's incapacity to grant the lease, but the trial judge ruled that such evidence was inadmissible. On the argument for a new trial in the Exchequer, Parke, B., said: "The defendant contracted to grant a good and valid lease, and the learned judge was right in rejecting evidence which would go to alter the contract admitted by the plea. The next question is, what damages is the plaintiff entitled to recover? The rule of the common law is that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages as if the contract had been performed. The case aiFloureauv. Thornhill^(\y\?i\\^Q(i that rule of the common law. It was there held that contracts for the sale of real estate are merely on condition that the vendor has a good title; so that when a person contracts to sell real property, there is an implied understanding that if he fails to make a good title, the only damages recoverable are the expenses which the vendee may be put to in investigating the title. The present case comes within the rule of the common law '° Hopkins v. Grazebrook, 6 B. & C, 31 (1826). " See Walker v. Moore, ante, § 485. COYENANTS— REAL ESTATE. 409 Principles in Hadley v. Baxendale Applied. and I am unable to distinguisli it from Hojpkins v. Gmze- § 494. The doctrine that a party selling real estate, where he has no title, shall be responsible for all losses sustained by the vendee in consequence of a failure to convey a good title, seems to be here maintained, and this, as we have seen, is in full accord with the recent American decisions. The last two English cases seem to ignore the doctrine in Floureau v. Thornhill, as a doctrine of the common law, and to hold that that was an exception to the general rule. The tendency of recent decisions is to return to the common law doctrine, and while respect is still paid to the exceptional doctrine in the case referred to, the courts seem ready to infer fraud and want of good faith in the vendor, where there is a failure of title, for almost any cause. It is evident that cases have been quite differently decided where the facts were almost identical. But in the progress of legal science, the infirmities of human nature, and human institutions intended to secure justice, will thus be manifested. A contract to sell real estate has fre- quently, as we have seen, been treated per se fraudulent, or in bad faith, where the vendor had no title at the time. § 495. The Principles in Hadley v. Baxendale Applied. — There is another class of cases that seem to fall within the principle in Hadley v. Baxendale^ and where the grantor, in case of his breach of the contract to convey, may be liable for such losses as are the direct and natural result of the breach, or such as the parties contemplated or had reason to contem- plate as a result of a breach of the same. Thus, where after part performance by the vendee of a contract for the convey- ance of real estate, the vendor wrongfully declared it for- feited, and prevented the vendee from fully complying with the contract, and improvements had in the mean time been « Robinson v. Harman, 1 Exch. (W. H. & G.). 850, (1848). In the opinion of Parke, B., in this case, Alderson, B. and Piatt, B., concurred. 410 THE LAW OF DAMAGES. Principles in Hadley v. Baxendale Applied. made bj the vendee which were contemplated by the parties at the time of making the contract; in an action by the vendee to recover damages therefor, it was held, that the measure of damao-es for such breach was the difference between the unpaid purchase money and the value of the premises at the time of the breach. This would, of course, give the vendee the value of the improvements made by him, and the benefit of the losses sustained by the vendor's breach, which were contem- plated, bringing it within the principle in Hadley v. Baxen- dale, which is so often applicable, and which would, if applied more frequently to the adjustment of controversies between vendor and vendee, promote justice and equity." § 490. The justice of the application of this doctrine in case of a breach of contract to convey, has been recognized by able writers on this subject. The courts, however, have gen- erally favored the rule, applied in case of a breach of the covenants of title in deeds, to such cases, which we have already considered. But the injustice of this limitation of damages, in many cases, is apparent. Mr. Mayne, in his val- uable treatise on Damages, after considering the reasons for the general rule of damages for breaches of the covenants of a deed of conveyance, remarks: "But the same obvious equity seems by no means to exist when the additional value arises from the outlay of the plaintiff's own capital upon the land. !N"o doubt cases might be put in which a claim for damages on this account would be clearly inadmissible, as for instance if a person bought a moor or a mountain for shooting over, and chose to reclaim the one, or build a mansion with pleas- ure grounds upon the other. But suppose he purchased building ground at so much per foot in London or Manchester, for the express object of building, ought he not to be repaid for money laid out in this way, the benefit of which is seized by strangers? In this case the damage incurred is the direct '3 Case V. Wolcott, 33 IncL, 5, (1870). COYEIS'ANTS— REAL ESTATE. 411 Principles in Hadley v. Baxendale Applied. I'esult of tlie breach of contract, and a result which must liave been contemplated by the party entering into the covenant. Probably this will be found to be the true ground of distinc- tion, and that every case must be decided upon its own merits according as the improvements were the fair consequence of the contract of sale or not.'^ §497. Mr. Kawle, in his valuable work on Covenants, recognizes the necessity of such a doctrine to secure justice in certain cases. He remarks: "In certain parts of the United States unimproved land is frequently conveyed ^to a purchaser in fee, reserving to the vendor, as the entire consideration, an annual fee, farm or ground rent, which represents the value of the land, the purchaser covenanting that he will, for the pur- pose of securing to the vendor the rent so reserved, erect cer- tain stipulated imj)rovements. In this class of cases the improvements being directly within the meaning of the par- ties, and one of the inducements to the contract, it would seem "that if the lands thus improved were subsequently lost by reason of a defect in the title, or incumbrances created by the vendor, the damages should not be limited by the conside- ration, but might with propriety be increased by the value of the improvements thus made, and if there could be any doubt as to the liability of the vendor to this extent, in case the defect or incumbrances were not created by himself, although within the covenants he might have given, there would seem to be none where the loss was the consequence of his own act,'"^ § 498. But the application of this doctrine was denied in England, in a case where the facts were as follows: A. entered into possession of premises under an agreement with B., under which he was to hold them as tenant for two years at the yearly rent of £50, with liberty to A. to make, at his own '4 Mayne on Dam., 99. 'sRawle on Gov., 257. See, also, Dai-t. on Vend. (4 ed.), 726. 412 THE LAW OF DAMAGES. Delay in Performance— Partial Breach. expense, such alterations and additions to tlie premises as he might think proper, the same being improvements, and A. to have the option of purchasing the premises at any time during the two 3^ears for £600, it being understood between the par- ties that J3. was possessed of the premises for his own life and the life of C, and of the survivor of them. A. during the term having elected to take the conveyance tendered the considera- tion, but B. had not the precise interest mentioned in the agreement. In an action by A. for the breach of the agree- ment, and compensation for the money expended by him in improvements, it was held, that he was only entitled to recover the value of the proposed lease, and not the value of the improvements." This decision would appear irreconcilable with other cases we have noticed, and the current of authority in similar cases. § 499. Delay in the Performance.— Where there is a delay of performance of a contract for the conveyance of real estate, by reason of the vendor's inability to perform on his part, the general rule is that the vendee may recover the amount of loss sustained by the depreciation during the delay." § 500. Partial Breach. — In an action by a vendor on a bond for a sum of money which was a part of the considera- tion of the conveyance of a tract of land, and the defense was for fraudulently representing that six acres of the tract sold was valuable wood land, Tilghman, C. J"., in delivering the opinion of the Supreme Court of Pennsylvania said : " In cases of fraud the jury are not bound, in assessing the dama- ges, by the price which has been stipulated between the par- ties. In the case before us, therefore, the jury should have been instructed that if there was fraud they might deduct from the defendant's bond the amount of the injury sustained '6 Worthinf profits from board- ing the horses of others, as well as the difference in cost of keeping his own horses and of hiring them boarded, where the evidence showed that such damages were the natural and proximate consequence of the trespass and eviction com- plained of. This case, however, came within the special ])ro- visions of a statute in reference to a violent eviction." And it should be received as authority, only with the qualification that the lessee used reasonable means to procure, under such circumstances, another stable. The remote dama- ages allowed in this case could perhaps be justified on the ground that the parties had reason to contemplate these dama- ges, sustained and allowed for a breach of the contract, at the time it was made, as a result of the breach, bringing it within the rule of Hadley v. Baxendale. In Virginia where a lessee was evicted from a part of the 44 Wilson V. Raybould, 56 111., 417 (1870). 45 Shaw V. Hoffman, 21 Mich., 151, (1872). COYENANTS— KEAL ESTATE. 425 Agreement to Kepair. demised premises by one claiming under a superior title to that of the lessor, he was held discharged from the payment of so much rent onlj as was properly chargeable to the part of the premises from which he was evicted." But it was also held, in another case, that where the lessee was evicted from only a part of the premises, by the wrongful act of the lessor, he was discharged thereby from the payment of any rent until possession was restored.^' And, in Massachusetts, where the landlord erected a build- ing in the back yard of the premises leased, the effect of which was to render unfit for use, two rooms used by the ten- ant, and tlie tenant did not give his assent thereto; it was held, that the tenant might treat the act as an eviction, give up the premises, and decline to pay rent." § 518. Agreement to Repair.— The rule of damages in case of a breach of an agreement to repair, would be the same whether it was in the form of a covenant or a simple agreement, in writ- ing or otherwise, where it is valid as an agreement. In either case actual damages are recoverable. And in an action on an agreement to keep the premises in good and sufficient repair, it was held, that the defendant might show the state of repair at the commencement of the lease, in order that the jury might determine the damages for which the defendant was liable." 16 Moffat V. Strong, 9 Bosw. (N. Y.), 57; Mark v. Patchin, 29 How. Pr., 20. *7 Tunis V. Grandy, 22 Gratt. (Va.), 109. See, also, Wolf v. Weiuer, 7 Phil. (Pa.), 274. 48 Royce v. Duggenheim, 106 Mass., 201, (1870). See, also, the same, Home Ins. Co. v. Sherman, 46 N. Y., 370, (1871); Edgerton v. Page, 20 N. Y., 281; Lounsbery v. Snyder, 31 Id., 514; Cram v. Dresser, 2 Sandf., 120. But see, under the staute of New York, Johnson v. Oppenheim, 12 Abb. N. Y. (N. S.), 449; 43 How. Pr., 433. See, also, in case of eviction from part of the premises, Christopher v. Austin, 11 N. Y., 216; Peck v. Hiler, 24 Barb., 178. « Burdett v. Withers, 2 Nev. & P., 122. 426 THE LAW OF DAMAGES. Agreement to Kepair. And where, at the time of taking possession of the premises, they were old and in bad repair, and there was a covenant to repair in the lease, and they were underlet to the defendant with a stipulation that he would maintain them in the same condition, and they were destroyed by fire, and the cost of rebuilding would be £1635, and when thus rebuilt they would be worth £600 more than they were worth at the time of the fire; it was held, that the defendant, being unable to rebuild the premises burned without putting them in better condi- tion, the measure of damages was only the value of the repair, less the £600." And where the lessors of a hotel were, by the terms of the lease, bound to keep it in good repair, and the tenant had his option to make the repairs, and recover the expense of the lessors, or omit the same and recover for the damages sus- tained thereby, and the lessee adopted the latter course; it was held that he was entitled to recover, or to recoup against the lessor's claim for rent, the fair value of the use of the portion of the premises which had not been used in consequence of the want of repair during the time they were unoccupied." § 519. The loss of profits in consequence of the failure of the lessor to repair would generally be denied, on the ground that the lessee should use reasonable means to avoid loss; and the loss of profits might be ordinarily avoided by reason- able efforts, and reasonable expenses." But where, by the terms of the lease of a quarry, the lessors were bound to repair a drain on the premises, and the lessee notified them that it was out of repair, and they promised from 5^ Yates V. Dunster, 11 Exch., 15. See, also, Middlekauff v. Smith, 1 Md., 343; Fisher v. Goebel, 40 Mo.. 475; Davis v. Underwood, 2 H. & N., 570; Smith v. Peat, 9 Esch., 161; Vivian v. Champion, 2 Ld. Raym., 1125; Chamberlain v. Parker, 45 N. Y., 569. 53 Meyers v. Barns, 33 Barb. (N. Y.), 401; affirmed, 35 N. Y., 269. See, also, Kepp v. Merwin, 52 N. Y., 542 (1873). 54 Green v. Mann, 11 lU., 613; Bankardv. Babcock, 17 Abb. (N. Y.), 421. COYENANTS— EEAL ESTATE. 427 Agreement to Repair, time to time to make the repairs, and finally did so, but not until two months after the time it should have been done; it was held, that the lessee was entitled to recover what- ever damages was sustained bj his inability thereby to work the quarry /° So, in an action against a landlord for a breach of covenant to repair, although the ordinary measure of damages, as we have intimated, and on general principles, would be the expense of placing the premises in proper repair, yet where the landlord has undertaken to do the same, but has done it in such a negligent and insufiicient way that damage results to the tenant, he should be compensated for all the actual loss resulting therefrom,^" § 520. But in Louisiana, where in such a case repairs are made by the tenant, without giving any notice to the landlord to make them, he is not liable therefor/* And in the same state, where the lessee, had notified the lessor that the premises were in a leaky condition, it was held, that if the lessor refused to repair the same, the lessee might cause them to be repaired, so that they would be tenan table, and deduct the expense of the repairs from the rent/' So, in the absence of an express agree- ment to that effect, a tenant from year to year is not bound to re-build a ftillen chimney. And where a landlord in such a case, negligently suffers a chimney to remain in so defective a state that it falls down, causing loss and injury to the tenants goods, the landlord is liable therefor in damages,'" § 521. But a landlord is not generally liable for injuries sustained through the defective condition of the building or fixtures, unless he is chargeable with some positive neglect of 55 Keyes v. Western Vt. Slate Co., 34 Vt., 81. 56 Walker v. Swayzee, 3 Abb. Pr., 136, 58 Tavort v, Mittler, 21 La. An., 220. See, also, same; Grosebeck v. Lord. 33 N.J. L., 240. 59 Westermore v. Street, 21 La. An., 714 (1869). <° Eagle V, Swayze, 1 Daly (N, Y,), 140. 428 THE LAW OF DAMAGES. Agreement to Repair. duty or affirmative misfeasance, or unless he was under cove- nant to repair." Nor can tlie lessee make repairs in such a case and charge the lessor with the costs of them." Nor is the landlord responsible for the entire destruction of the build- ing or any part thereof by fire, in the absence of au agreement to re-build or repair for the benefit of the tenant." Nor will a covenant to repair be implied on the part of either landlord or tenant; nor, where there is a covenant, will it be enlarged by construction. Nor will voluntary repairs made by the landlord raise a presumption of a contract on his part to repair." And where D. leased to C. a room on the ground floor of a building to be used as a store, which building was at the time in process of erection, and agreed that he would have said store well fitted up, and the store extended back some distance on the same premises beyond the upper story; and D. afterwards rented out the upper portion of the build- to be used as a boarding house, and for the accommodation of the lessee of the upper portion, constructed a kitchen over the extension of the store below, and the accumulation of trash under this kitchen choked the gutters and in consequence dam- aged C's, stock; it was held, that D. was liable to C. for the damages sustained.^^ § 522. Where a lessee was, by the terms of his lease, to have the use of the premises for five years, and in payment was to make certain repairs and additions to the premises within the first two years, and in default the lessor was to have the right to re-enter and expel the lessee, and the repairs being nearly but not quite made within the two years the lessee was « O'Brien v-CopweH, 59 Barb. (N. Y.), 497. 6»Biddle v. Reed, 33 Ind., 529. See, also, Benjamin v. Haney, 51 111., 492 (1869). «3Dunpe V. Gennin, 45 N. Y., 119. See, also, Russell v. Rush, 2 Pitts. (Pa.), 134; Kahn v. Love, 3 Oreg., 206; Martin v. Washburn, 23 La. An., 427. «4 Moore v. Webber, 71 Pa. St., 429 (1872). «s Center v. Davis, 39 Geo., 210 (1869). COYENAXTS— REAL ESTATE. 429 Agreement to Repair. expelled; it was held, that the lessee was entitled to recover at the expiration of the five years, for the value of the labor and material, beyond the fair value of his use and occupation down to the time he was expelled, less any damage sustained by the lessor by reason of the breach/* § 523. The damages sustained by a breach of other com- mon provisions of a lease, such as an agreement to pay rent, surrender the possession, etc., are governed by the general rules of damages on breaches of contracts, and it will be unneces- sary to furnish any other for those special cases. « Smith V. Newcastle, 48 N. H., 70, (1868). See, also, Ardisco Oil Co. V. Richardson, 63 Pa. St., 162. 430 THE LAW OF DAMAGES. Discretion of Jury— Plaintiff should be Identified. CHAPTER XYII. DAMAGES ON A BREACH OF PEOMISE OF MARRIAGE. Section 534. Damages in the Discretion of the Jury. 535. The Plaintiff Should be Indemnified. 536. Exemplary Damages Always Allowable. 537. Matters that Constitute no Defense. 538. Matters in Aggravation. 539. Mitigation. § 534. Damages in the Discretion of the Jury.— Damages in an action for a breach of j^romise of marriage, rest largely in the discretion of the jury; and this discretion is seldom interfered with, and should be in no case, except where it is manifest that the jury were influenced by prejudice, passion, or corruption.' § 535. Plaintiff should be Indemnified.— The plaintiff is entitled at least, to such damages as would place her in as good a pecuniary condition as she would have been if the con- tract had been fulfilled; and hence it is always proper for the plaintiff to show the pecuniary ability of the defendant,'' as well as injuries sustained from anguish of mind, blighted » Gaugh V. Farr, 1 Y. & J.. 477; Goodall v. Thurman, 1 Head., (Tenn.), 209. » Lawrence v. Cook, 56 Me., 187, (1868); Sprague v. Craig, 51 111., 288, (1869). And anxiety of mind, if produced by the violation of the promise, is proper to be considered in the estimation of damages. Tobin v. Shaw, 45 Me., 331. BEEACH OF PROMISE OF MARRIAGE. 431 Exemplary Damages Always Allowable— Matters tbat Constitute no Defense. afl'ections, disappointed hopes, and injury to the character, directly resulting from the breach.^ § 536. Exemplary Damages always Allowable.— But this is not the necessary limit of damages. Circumstances of aggravation may occur, and this action forms an exception to the general rule, that exemplary or punitive damages cannot be allowed for a breach of contract. The same rule prevails in this action as in torts, and the plaintiff may recover exem- plary or punitive damages." § 537. Matters that Constitute no Defense.— Nor is the plaintiff precluded from recovering damages if the defend- ant at the time of the engagement, knew the plaintiff to be a loose and immodest woman; or if she afterwards prostituted her person to another man, with the defendant's connivance.* Kor will the fact that the plaintiff had an illegitimate child before, if known to the defendant at the time the promise was made, bar an action against him for a breach of promise of marriage.' And, in action by a woman to recover damages for a breach of promise of marriage, it was held, that the jury in estimat- ing damages might take into consideration the fact that the 3 Burnett v. Simpkins, 24 111., 264. See, also, ante, § § 72, 94. 4 Southard v. Rexford, 6 Cow., 254; Torre v. Summers, 2 Nott & McC, 267; Coryell v. Colbaugh, Coxe, 77; Stout v. Prall, Coxe, 79; Green v. Spencer, 3 Mo., 225; Hill v. Maupin, 3 Mo., 323; Thorn v. Knapp, 42 N. Y., 474, And evidence, of the time a marriage engagement continued, is proper for the consideration of a jury. Grant v. Willey, 101 Mass., 356. And if, by means of the promise, the defendant seduced plaintiff, this is a matter in aggravation of damages. Tubbs v. Van Kleek, 12 111., 446; Burnett v. Shnpkins, 24 Id.. 264; Kniffen v. McConnell, .30 N. Y., 285; Roper v. Clay, 18 Mo., 383; White v. Campbell, 13 Gratt., (Va.) 573. s Johnson v. Smith, 3 Pittsb. (Pa.), 184; Butler v. Eschleman, 18 111., 44; Burnett v. Simpkins, 24 111., 264. « Bench v. Merrick, 1 Car. & K., 463; Irving v. Greenwood, 1 C & P., 850; Woodward v. Bellamy, 2 Root. (Com.), 354; 2 Saunders, P. & E. 347; Pars, on Con., 550; Chitty on Con., 538; Morgain v. Yarborough, 5 La. An., 316; Burnett v. Simpkins, 24 111., 264. 432 THE LAW OF DAMAGES. Matters in Aggravation. plaintiff was seduced bj the defendant, after the promise was made.' So, it is no defense to the action that the defendant at the time of the promise was a married man.' And a con- tract to marry may be broken by the declaration or renunciation of a party, or by marrying another before the time fixed upon has arrived, so as to entitle the other party to maintain an action for the breach of the contract forthwith.* § 538. Matters in Aggravation- — If the element of fraud enters into the act of the defendant, either in making the contract or in its breach, exemplary damages may be allowed.'" And an allegation by defendant by way of justifi- cation or mitigation, in defense of an action for a breach of promise of marriage, that the plaintiff is unchaste, without any reasonable expectation that he can establish it, and it is not established by proof on the trial, should be considered by the jury in aggravation of damages." Thus, Southard v. Hexford^ supra, was an action for a breach of promise of marriage. The plea was a general issue, with notice that the defendant would prove in his defense that the plaintiff had at various times after the alleged promise committed fornication with various persons, specifying them. At the trial the defendant attempted to prove this defense, but failed. The learned Judge Walworth, before whom it was tried, charged the jury, that, " In cases of this kind, the damages are always in the discretion of the jury, and in fixing the amount 7 Sherman v. Rawson, 102 Mass., 395; (1870); Burnett v. Simpkins, supra; Tubbs V. Van Kleek, 12IU.,446; Lauer v. Schatenburg, 33 Md., 288, (1870); Fidler v. McKinley, 21 111., 313. Green v. Spencer, 3 Mo., 318; Roper v. Clay, 18 Id., 383. 8 Kelly V. Riley, 106 Mass., 330. 9 HaUoway v. Griffeth, 32 la., 409; Short v. Stone, 8 Q. B., 358; 25 L. J., Q. B. 143. But, see, contra, Frost v. Knight, 63 L. T., N. S., 714, Exch., (1871). "Draydon v. Knowles, 33 Ind., 148, (1870). " Thorn v. Knapp, supra; Denslow v. Van Horn, 16 la., 476; Southard v. Rexford, 6 Cow., 254. See, also, Davis v. Slagle, 27 Mo., 600. BKEACH OF PEOMISE OF MAERIAGE. 433 Matters in Aggravation. they have a right to take into consideration the nature of the defense set np by the defendant. In his defense he has attempted to excuse his abandonment of the plaintiff on the ground that she is unchaste and lias committed fornication with different individuals. But it appears from the testi- mony of his own witness, that her character in that respect has not been tarnished, even by the breath of suspicion.' With such a defense on the record a verdict for nominal or trifling damages may be worse for her reputation than a general verdict for the defendant. If the defendant has won her affection and promised her marriage, and has not only deserted her without cause, but has also spread this defense on the record for the purpose of destroying her character, the jury will be justified in giving exemplary damages." And in the Supreme Court of New York, Sutherland, J., said: "Upon the question of damages the charge of the judge seems to be unexceptionable. There can be no settled rule by which they are in every case to be regulated. They rest in the sound dis- cretion of the jury under the circumstances of each particular case; and where the defendant attempts to justify his breach of promise of marriage by stating upon the record, as the cause of his desertion of plaintiff, that she had repeatedly had criminal intercourse with various persons, and fails entirely in proving it, this is a circumstance which ought to aggra- vate the damages. A verdict for nominal or trifling dama- ges under such circumstances would be fatal to the charac- ter of the plaintiff; and it would be a matter of regret indeed, if a check upon a license of this description did not exist in the power of the jury to take it into consider- ation in aggravation of damages." And it may be said that generally, where the defendant attempts dishonestly to injure the plaintiff's reputation, by allegations made under pretense of justification or excuse for his own acts, exemplary dama^-e may be allowed." So, evi dence of the seduction of the plain- * Simpson v. Black, 27 Wis., 206 (1870). 28 4:34 THE LAW OF DAMAGES. Mitigation. tiff, by the defendant, is admissible in aggravation of dam- ages/ § 539. Mitigation. — Evidence of tlie bad liabits of the plaintiff, such as being an excessive drinker of intoxicating liquors, and therefore not a fit or desirable companion in mar- ried life, although not competent as a defense, is admissible in mitigation," But a defendant cannot show in mitigation, that since the commencement of the action the plaintiff has •made declarations to the effect that she had no affection for the defendant, and could not think of marrying him but for his property/ Kor will mutual improprieties and lewdness between the betrothed parties, bar a right of action for a breach of promise of marriage, or be received in mitigation or aggra- vation of damages.' But general lewdness or lascivious con- duct, even where known to the defendant at the time of the engagement, may be considered in mitigation.' And it is held, that an allegation of bad character as a defense or in mitigation of damages, and a failure to prove the same, is not suflBcient to justify a charge to the jury that this must be considered by the jury in aggravation of dama- ges. But in order to be so considered it must appear that said defense was wanton, and without any reasonable belief or expectation that the defendant could establish it on the trial.' 3 KeUy V. RUey, 106 Mass., 339 (1871); Coil v. Wallace, 24 N. J. L., 291, where the seduction was subsequent to the promise; Mathews v. Cribbett, 11 Ohio St., 330; Goodall v. Thurman, 1 Head. (Tenn.), 209; Matteson v. Cur- tis, 11 Wis., 424. 4 Burton v. McCauley, 1 Abb. (N. T.), 282. 5 MiUer v. Hayes, 34 la., 496. « Johnson v. Smith, 3 Pittsb. (Pa.), 184. 7 Denslow v. Van Horn, 16 la., 476; Johnston v. Calkins, 1 John's. Cases, 116; Willard v. Stone, 7 Cow., 22; Palmer v. Andrews, 7 Wend., 143. See, also, Burnett v. Simpkins, 24 111., 266; Faulkes v. Selway, 3 Esp., 236; Baddely v. Mortlock, 1 Holt. N. P., 151; 3 Eng. C. L., 57. ^ Denslow v. Yan Horn, supra. See, also, Simpson v. Black, supra; Kniffen v. McConneU, 30 N. Y., 285; Davis v. Slagle, supra; Fidler v. McKinley, 21 111., 815. BONDS. 435 Damages on Bonds Generally. CHAPTEE XYIII. COMMON, STATUTORY, AND OTHER BONDS. Section 545. Damages on Bonds Generally. 546. wnen the Damages are Limited to the Penalty— "When Not. 547. Consequential and Remote Damages. 548. Common Law Practice. 549. Statutory Bonds— Attachment. 553. Mitigation of Damages. 554. Injunction Bonds— Elements of Damages on. 560. Delivery, Indemnifying and other Bonds. 545. Damages on Bonds Generally. — We have con- sidered, to some extent, the subject of damages on bonds, in connection with liquidated damages, and the subject of dam- ages on contracts and covenants relating to real estate; but it requires a fuller consideration than there given. We will therefor consider it here under the following classification: 1. Damages on bonds generally. 2. Damages on statutory bonds. 3. Damages on other bonds. The general rule in reference to penal bonds is, that on a breach thereof, the obligee may recover whatever will com- pensate him for his actual loss; and that the penalty named in the bond is not recoverable as damages.' The penalty is ' Leonard v. Speidel, 104 Mass., 356; Dehler v Held, 50 111., 491; Rickert- son V. Richardson, 19 Cal., 330; Gower & Holt v. Carter & Shatuck, 3 Iowa, 244. 436 THE LAW OF DAMAGES. When Damages Limited to Penalty— When not. generally considered as security and not as liquidated dama- ges.' § 546. When the Damages Limited to the Penalty— When Not. — As a general rule, the damages cannot exceed the penalty of the bond.' But wliether the damages recover- able upon a penal bond, are limited to the penalty or not, depends on the circumstances of each case, and is frequently affected by the motives and conduct of the obligor, in refer- ence to the obligation ; and at common law, by the form of the action. In an action on the covenants or stipulations of a bond for the sale and conveyance of real estate, the plain- tiff" maj' recover more or less than the amount of the penalty, depending upon the cause of the failure to convey. If the vendor is honest, and is prevented from making the convey- ance by an unforeseen cause which he could not control, the vendee should recover only nominal damages in addition to the purchase money which he has paid, with interest; but if the vendor is in fault, and did know or should have known that he could not comply with the contract, or if having title he refuses to convey, or if having title at the time of the agreement, he afterwards disables himself from conveying to = Davis V. GiUett, 52 N. H., 126 (1872); Walker v. Ford, 5 Blackf., 392. See, ante, Chap. 9; also, ante, § 479, et seq. 3 Sweem v. Steele, 10 la., 374; Freeman v. The People, 54 111., 153; State of Missouri v. Sandusky, 46 Mo., 377; Farrar v. Christy, 24 Id., 453; Farrar V. U. S., 5 Pet., 373; Balsley v. Hoffman, 13 Pa. St., 603; Clark v. Bush, .3 Cow., 151; Tyson v. Sanderson, 45 Ala., 364; Pierce v. Athey, 4 W. Va., 22. But interest on the penalty is now generally allowed, on the ground that when there is a breach of the condition of a penal bond, the penalty becomes in law a debt due, and the obUgors can discharge themselves from liability on the bond, when the damage equals or exceeds the penalty, by the pay- ment of the penalty alone; and if it be not paid at the time of the breach, it should bear interest until paid. Hughes v. Wickliff, 11 B. Mon., 202; Carter v. Thorn, 18 Id., 613; Brainard v. Jones, 18 N. Y., 35; Carter v. Carter, 4 Day. 30; State of Missouri v. Sandu-^ky, supra; McCoy v. Elder, 2 Blackf., 183. But, as against sureties, the liability cannot exceed the penalty. Clark V. Bush, 3 Cow., 151; Mower v. Kip, 6 Paige, 88; Rayner v. Clark, 7 Barb., 581; Dickerson v. Cook, 3 Duer.. 324. BONDS. 437 Consequential and Kemote Damages. the covenantee, by a sale to a third person; or if at the time of making the contract he knew he had no title, the vendee should recover substantial damages, including compensation for any actual loss, as by the increase of the value of land at the time the contract should have been performed, even though it exceed the penalty named in the bond." § 547. Consequential and Remote Damages.— In an action on a bond, the conditions of which were that the defendant would " fully indemnify and save harmless," the plaintiff, "from all loss, damage and harm whatsoever by reason of a suit for infringement of a patent, by selling col- lars, which " the plaintiff ''has had, or may hereafter have of" the defendants, " and to pay all fair and reasonable charges and expenses in defending said suit," etc.; it was held, that the plaintiff was entitled to damages for counsel fees in the suit for an infringement, instituted against him; for deprecia- tion of his stock withheld from sale on account of the suit, and reasonable expenses of himself and counsel in their efforts to release such stock from the attachment therein; but not for such damage as was not the natural consequence of the suit; as loss of profits, loss of credit, etc' So, where one has been prevented from completing work he had undertaken to do, by an attachment upon his tools and material, he is entitled to recover on the attachment bond, consequential damages for the injuries sustained; and it is competent for him to show, as an element of damages, that when his work was suspended by the attachment, he had on hand a quantity of stone, cut and dressed for use in the com- pletion of a work, which was not of equal value for any other purpose." 4 Foley V. McEeegan, 4 la., 1; Sweem v. Steele, 5 Id., 352; Harrison v. Wright, 13 East., 343; Sweem v. Steele, 10 la., 374; Martin v. Taylor. 1 Wash. C. C, 1. See, also, ante, %% 134, et seq, 479, et seq. 5 Ripley v. Moseley, 57 Me., 76. « Carpenter v. Stevenson, 6 Bush. (Ky.), 259 (1869). 438 THE LAW OF DAMAGES. Common Law Practice— Statutory Bonds— Attachment. § 548. Common Law Practice.— The common law prac- tice in the action of debt on a bond, is to enter judgment on the bond for the penalty, with an order to issue execution only for the amount of damages proved to have been sustained by the breach.* This rule is a technical one, and rests on the principle that in the action of debt the penalty is the debt, and that the entire penalty is demanded, which as we have seen, is made practically the same as if the judgment was for the sum really due, by the order of the court that execution issue for only the amount shown to be due. § 559. Statutory Bonds — Attachment.— Bonds are usually provided by statute, in various extraordinary proceed- ings; such as on the issuing of writs of attachment, injunc- tion, mandamus, replevin, and on appeals in various cases. In low^a, the bond in attachment cases is "conditioned, that the plaintiff will pay all damages which the defendant may sustain by reason of the wrongful suing out of the attach- ment; " and that, "in an action on such a bond, the plaintiff therein may recover if he shows that the attachment was wrongfully sued out, and that there was no reasonable cause to believe the ground upon wliich the same was issued to be true, the actual damages sustained, and reasonable attorneys' fees, to be fixed by the court; and if it be shown that such attachment was sued out maliciously, he may recover exem- plary damages." * * * Similar statutes have been adopted in several states.' 8 Battey v. Holbrook, 11 Gray, 212; NUson v. Gray, 2G. Greene (la.), 397; Cameron V. Boyle, Id., 154; Sedg. on Dam., 397. And this is the practice in Illinois. Freeman v. The People, supra; Toles v. Gale, 11 111., 563; Eriinger v. The People. 36 111., 458. So, in New York, The West. Bank v. Sherwood. 29 Barb., 383. 9 Kentucky Code. § 224 (1867); Kentucky Gen. Stat., (Bullock & Johnson, 1873), p. 141, § 3; CaUfornia Code Civ. Prac, § 359; Georgia Code, § 3266; Rev. Code Alabama, § 2931 (1867); Statutes of Wis. (1871), Vol. 2, p. 1470, § 7; Code of Iowa (1873), § 2961. BONDS. 439 statutory Bonds— Attachment. It was held, under a similar but former statute in tlie same state, in an action on the attachment bond, where it was charged that the plaintiff in the attachment suit acted will- fully wrong, and exemplary damages were demanded, that the true issue was whether the plaintiff in the attachment suit acted in good faith and with reasonable ground for belief that the allegations for the attachment were true; and that the word "wrongfully" meant "unjustly, injuriously, tortiously." '" And, it was further held, that the plaintiff in an action on the attachment bond might recover, where the suing out was wrongful, for the loss and expenses incurred in defending the attachment suit; for losses sustained in being deprived of the property attached; and for injuries occasioned by its depreci- ation in value or entire loss; and that, where the suing out of the attachment was willfully wrong, exemplary damages might be recovered. But that injuries to credit, character or business, were too remote and speculative to be considered in assessing damages." The defendant's damages in such cases may be allowed by way of counter-claim, or cross demand in the orisrinal suit.'^ » Raver v. Webster, 3 la., 502. " Campbell v. Chamberlain, 10 la., 337; Pettit v. Mercer, 8 B. Mon., 51; Heath v. Lent, 1 Cal., 410. But, see, contra, under the Ohio statute, Alex- ander v. Jacoby, 23 Ohio St., oo8, where the court held it proper to allow damages for interruption of business, expenses incurred in procuring- the discharge of the property, etc. But damage supposed to result by reason of any injury to the reputation of the goods, caused by the levy, was held too remote. " State Bank v. Morris, 13 la., 136; Stadler Bros. & Co. v. Parmalee & Watts, 10 Id.. 23; Ripley v. Mosely, 57 Me., 76." In Illinois it has been held, that injury to credit and business is a proper element. Lawrence v. Hagerman, 56 lU., 674. See, also, in Alabama where the wrongful attach- ment is malicious. McCuUough v. Walton, 11 Ala. (N. S.), 492; Kirksey v. Jones, 7 Ala. (N. S.), 622; Seay v. Greenwood, 21 Ala., 493; Spivey v. McGehee, Id., 417. It would seem more consistent with general principles to aUow these items as damages where the attachment proceeding was malicious, otherwise not. 440 TPIE LAW OF DAMAGES. statutory Bonds— Attachment. § 550. So in Iowa, in an action on the attachment bond, it was held that where the wrongful suing out of the writ was not willful and malicious, the damages recoverable were restricted to the immediate consequences, and confined to actual compensation for wrongs thereby done. And that, in such a case where the attachment was levied upon a house which was being taken to pieces for removal to and erection upon other premises, the plaintiff could not recover for dama- ges caused to the furniture, removed from the building before the levy of the writ, by reason of its being exposed in conse- quence of the delay caused by the attachment, in rebuilding the house on the premises to which it was to be removed, and in which the furniture was to be placed; that he could not recoV'Cr the additional expense in building a new house on the premises on which he intended to reconstruct the one levied on; and that he could not recover the rental value of the house per month before he commenced taking it down; nor for what its rent would be worth if he had been permitted to remove and rebuild it; nor for the loss of time by being deprived of the use of the house; nor for attorney's fees paid by the plaintiff for defending the attachment suit." § 551. On general principles, in the absence of statutory provisions in reference to the bond, or liability under the same, or in the absence of a bond in a proper form, in an action thereon for the wrongful suing out of the same, the motives of the party suing it out, would unquestionably affect the measure of damages, and the extent of the liability. And it is held, that the defendant in the attachment suit may have a right of action for the wrongful suing out of the attachment, independent of the bond.'* And the costs of the '3 Plumb V. Woodmansee, 34 la., 116. See, also, Bennett v. Brown, 31 Barb., 158; 20 N. Y., 99; SHsbe v. Lucas, 53 111., 479; Collins v. Sinclair, 51 Id., 328; Myers v. Farrali, 47 Miss., 281 (1872). '4 Stadler v. Parmlee, 10 la., 23; The State v. Thomas, 19 Mo., 613; Pet- tit V. Mercer, 8 B. Mon., 51. BONDS. 441 Mitigation of Damages. original suit are generally recoverable as damages on the bond.'^ § 552. And where the attachment was wrongfully sued out, and there was no probable cause for believing the grounds upon which the same was issued were true, the plaintiff in an action on the bond may recover reasonable attorney's fees; and the destruction of business by the taking of goods may be a proper element of damages, when the destruction or loss is the natural result of the trespass." And where a party by reason of the attachment is prevented from performing a con- tract previously made, and material prepared to be used for that purpose is depreciated in value, this is a proper element of damage.'* §553. Mitigation of Damages.— In an action for the unlawful seizure of personal property, under a void attachment, the defendant may show in mitigation of damages, that a por- tion of the proceeds of the property attached were applied in payment of the arears of rent due the owner of the premises occupied by the plaintiff, and in which the property seized was stored, and to secure which the attachment was sued out." §554. And where the plaintiff in the original action in which he obtained an attachment had been non-suited, he was permitted to show in an action on the attachment bond, that the property thus attached had been re-attached in a subse- quent action by him, which had been prosecuted to judgment, 's Dunning V. Humphrey, 24 Wend., 31; Schuyler v. Sylvester, 4 Dutch. (N. J.), 487; Hayden v. Sample. 10 Mo., 215. 17 ]\Ioore V. Schultz, 31 Md., 418. So, for the depreciation of stock while withheld from sale on account of the attachment. Ripley v. Mosely, 57 Me., 76. «8 Carpenter v. Stevenson, 6 Bush, (Ky.), 259 •5 Wanamaker v. Bowers, 36 Md., 42; (1872). See, also, where the attach- ing creditor had probable cause to believe the grouds on which the attach- ment issued were true; Metcalf v. Young, 43 Ala. (N. S.), 643; OflFutt v. Edwards, 9 Rob. (La.), 90; State v. Thomas, 19 Mo., 613; Morse v. Withen- burgh, 13 La. An., 22. 442 THE LAW OF DAMAGES. Injunction Bonds— Elements of Damages on. and under which the property had been sold.'" So, the justice of the claim in the attachment suit is held, in Louisiana, to go in mitigation of exemplary damages." § 555. Injunction Bonds— Elements of Damages on. — These statutory bonds usually provide for the payment of all damages which may be adjudged against the plaintiff by rea- son of the injunction. The general principles, we have noticed as applicable to suits on attachment bonds, are alike applicable to suits on injunction and replevin bonds. In an action upon an injunction bond, for damages caused by wrongfully suing out the writ, the plaintiff may not only have his ordinary and actual damages that resulted from the injunc- tion, but in addition thereto a reasonable amount as attor- ney's fees, paid or incurred in procuring a dissolution of the injunction."* Where the injunction was only auxiliary to the suit, attor- ney's fees cannot be recovered for defending the entire action, but only for procuring the dissolution. And the right to recover attorney's fees is not confined to cases where the injunction is dissolved on motion." But an action for damages caused by an injunction cannot be maintained before its dissolution." »°Earl V. Spooner, 3 Den. (N. Y.), 246. "^ Cox V. Robinson, 2 Rob. (La.), 313. See, as to damag'es on appeal, United States v. Addison, 6 Wallace, 291. See, also, White v. French, 15 Gray, 339. =4 Andrews v. Glenville Wollen Co., 50 N. Y., 282; Corcoran v. Judson, 24 N. Y., 106. And, see other authorities cited in connection with attorney's fees as damages on attachments, supra. Also, Behrens v. McKinzie, 23 la., 333; Edwards V. Bodme, 11 Paige 224; Coates v. Coates, 1 Duer., 664; Aid- rich V. Reynolds, 1 Barb. Ch., 613; Ah Thaie v. Quan Wan, 3 Cal., 216; Prader v. Grim, 28 Id., 511; Garrett v. Logan, 19 Ala., 344; Derry Bank v. Heath, 45 N. H., 524; Ryan v. Anderson, 25 111., 372; Collins v. Sinclair, 51 lU., 328; McCrea v. Brown, 12 La. An., 181; Brown v. Jones, 5 Nev., 374; Misnerv. Bullard, 43 lU., 470. »s Langworthy v. McKelvey, 25 la., 48. ■^ Thompson v. McNair, 64 N. C, 448 (1870); Leavitt v. Dabney 9 Abb., Pr. (N. S.), 373; Gray v. Veirs, 33 Md., 159, (1870); Sturgis v. Knapp, 33 Vt, 486; Cowdore v. Martin, 17 Mo., 41. See, also, High on Inj., 557. So the BONDS. 443 Injunction Bonds— Elements of Damages on. In Alabama, Louisiana and Illinois, counsel fees, necessarily incurred, though not paid, and in Kentucky if they have been liquidated, and in California where they have been paid, may be recovered as damages."^* And if the injunction suit is dismissed, this amounts to a final decision that plaintiff was not entitled to the injunction, and the defendant is entitled to the damages sustained thereby.^' § 557. Where execution on a judgment is restrained, and it appears that the amount of the judgment and interest exceeds the penalty of the judgment bond, a court of equity, it seems, will provide a remedy, and allow interest on the penalty of such bond when it becomes necessary to indemnify the party injured by the injunction.'" If an injunction restraining the collection of a judgment is dissolved, the usual rule is to allow as damages the amount due thereon." And large damages were held proper where the debtor enjoined the satisfaction of a judgment against him, on account of a small amount claimed to be due him from the creditor, and which bore an insignificant proportion to the plaintiff is entitled to recover for loss of time occasioned by the injunction at the usual rates of wages, provided he used diligence to secure other employ- ment; but in the absence of such proof, a judgment in the plaintiff's favor therefor should be reversed. Muller v. Fern, 35 la., 420. =8 Garrett v. Logan. 19 Ala. (N. S.), 344; Miller v. Garrett, 35 Id., 96; McKeav. Brown, 12 La. An., 181; Shultz v. Morrison, 3 Mete. (Ky.), 98; Steele v. Thatcher, 56 lU., 257, (1870). See, also, Campbell v. Metcalf, 1 T. Mon. 379, (1871); Trader v. Grimm, 28 Cal, 11; WHson v. McEvoy, 25 Id., 169; Deny Bank V. Heath, 45 N. H., 524. But counsel fees are not allowed as damages in such cases in South Carolina. See, Gadson v. Bank, 5 Rich., 336. =9 Pacific Mail S. S. Co. v. Luting, 7 Abb. (N. Y.), Pr. (N. S.), 37. It seems that it is not the practice in the United States Courts, to allow counsel fees as damages, on the dissolution of an injunction. Oelrichs v. Spain 15 Wall., 211. 30 Marshall V. Winter, 43 Miss., 666, (1870). 3' Southerland v. Crawford, 2 J. J. Mar., 370. Interest and costs should also be included Washington v. Parks, 6 Leigh., 581; Gist v. McGuire, 4 Har. & J., 9; WalUs v. Dilley, 7 Md., 237. 444 THE LAW OF DAMAGES. iDjuaction Bonds— Elements of Damages on. amount of the judgment,^' But no damages will be allowed On the dissolution of an injunction of a judgment for pur- chase money, issued on the ground of a defect of title, where the injunction is dissolved on the ground that the title was subsequently perfected." And it is held, that independant of statutes, a court of equity has authority upon the dissolution of an injunction, to ascertain the damages sustained thereby, and decree the pay- ment of the same; but this would not impair any remedy on the bond.^* But the damages awarded on the bond cannot generally exceed the penalty;" and nothing, in the absence of fraud or willful wrong, will authorize the assessment of more damages than sufficient to indemnify for the losses sustained, and which must be the direct natural and proximate result of the injunction." In an action on a bond, where the plaintiff had been wrong- fully restrained, in the spring of the year, from taking posses- sion of a farm, it was held, that the damages were not confined to the value of the use of the land during the continuance of the injunction, but that the plaintiff might recover the whole loss sustained by being kept out of the possession, including the loss of the subsequent crop.' § 559. In some of the states where the collection of money is restrained, interest is by statute allowed as damages, if the 3* Barrow v. Robichaux, 15 La. An., 70. 33 Fishback v. WilUams, 3 Bibb. (Ky), 342; McCoy v. Chiles, 5 Mon., 259; Lampton v. Usher, 7 B. Mon., 57; Reeves v. Dickey, 10 Gratt., 1-38. 34 Sturgis V. Knapp, 33 Vt., 486; Edwards v. Pope, 3 Scam., 465; Roberts V. Dust, 4 Ohio St., 502. But this authority has been since questioned in Illinois. See, Phelps v. Poster, 18 lU., 309. 35 Sturgis V. Knapp, 33 Vt., 486; Day v. Martin, 7 La., 365. 3* Brown v. Jones, 5 Nev., 374; Collins v. Sinclair, 51 111., 328; Stewart v. State, 20 Md., 97; Morgan v. Negley, 53 Pa. St., 153; Burgen v. Sharer, 14 B. Mon., 497; Kennedy v. Hammond, 16 Mo., 341. « Edwards v. Edwaxds, 31 lU., 474. BONDS. 445 Delivery, Indemnifying, and Other Bonds. injunction is improperly sued out.* And in the absence of statutes, fixing the extent of liability, damages in the absence of malice in suing out the writ, are measured by simple com- pensation for loss sustained; such as loss or depreciation of the value of goods restrained from sale;* damages by the delay of collections of money, counsel fees paid, and expenses incurred in the injunction suit, as we have before seen. For the rule of damages on bonds in other and special cases, see authorities cited in the annexed note.° § 560. Delivery, Indemnifying, cand other Bonds.— The general principles of the law of damages also apply to delivery, indemnifying, and other bonds, provided for by statute, in cases of attachments, executions, replevins and *Pas. Dig., Art. 3935; Gault v. Goldwait, 34 Tex., 104. See, also, Gib- son, V. O'Connell. 30 Id., 684; Wag. Mo. Stat.. 1030. See general rule of damages in Missouri, Kenedy v. Hammond, 16 Mo., 341; City of St. Louis V. Alexander, 23 Id., 483; Bircher v. Parker, 40 Id., 118. s Barton v. Fisk, 30 N. Y., 166; Meysenburg v. Schlieper, 48 Mo., 426. « Brown v. Tyler, M Tex., 168 (1871); Wintzel v. Robinson, 23 La.' An., 451 (1871); Moulton v. Richardson, 49 N.H., 75; Allen v. Brown, 5 Lansing (N. Y.), 511; Ti-ustees of Tamaroa v. Southern 111., etc. University, 54 111 334 (1870); Peerce v. Attery. 4 W. Va., 22 (1870); CoUins v. Sinclair,' 51 lU.'i 328; Silsbe v. Lucas, 53 Id.; Hamilton v. Steele, 32 Md., 348. When a mortgagor obtains an injunction to restrain the mortgagee from seUing the mortgaged premises under a decree of foreclosure, and pending the injunc- tion the mortgagor removes emblements from the premises, the value of the emblements may be included in the danmges awarded to the mortgagee upon the dissolution of the injunction, if the security has been thereby impaired. Aldrich v. Reynolds, 1 Barb., Ch. 613. Nor is the want of juris- diction of the court over the subject matter, a defense to an action for dam- ages sustamed by the injunction. Cumberland v. Hoffman, 29 Barb.. 16 VHaere a stranger to the proceedings enjoins the sale of property claimed by him, under an execution against a third person, leaving the execution in full force as to the debtor's property, the fuU amount due on the execution should not be aUowed as damages against liim, on a dissolution of the injunction. Hord v. Trimbale, 1 Lit.. 413; High on Inj., § 979. But dam- ages cannot be recovered in an action on the bond. untU the final determina- tion of the cause in wliich the injunction is issued. Gray v Veirs 33 Md 159 See Jenkms v. Parkhill, 25 Ind., 473, as to mitigation; Riddesbarger v. McDaniel, 38 Mo., 138. * 446 THE LAW OF DAMAGES. Delivery. Indemnifying, and Other Bonds. appeals. The limit of damages on these bonds, generally, being the amount of damages sustained, not exceeding the penalty. If the bond is given to release property on attach- ment or replevin, and the property is taken by the defendant, and he fails to deliver it according to the terms of the bond, the measure of damages is usually the amount of the judg- ment obtained in the original suit, and costs, as provided by the bond. The subject of liability on official bonds, will hereafter be considered in treating of officers. Iiq"SirRANCE. 447 Damages on Policies of Insurance. CHAPTEE XIX. DAMAGES ON POLICIES OF INSUKAKCE. Section 561. Definition— Division of the Subject. 562. Insurance of Ships and Cargoes. 563. General Bule of Damages. 564. Mode of Estimating the Value of the Thing Insured on Open Policy. 565. In Case of Partial Loss on an Open Policy. 566. Valued Policies— Abandonment. 567. Mode of Estimating Damages on. 568. General Average. 569. Underwriters may Repair. 570. Insurance of Freight and Profits. 571. Measure of Damages on. 572. Application of Maxim Causa Proxima, etc. 573. Fire Insurance— Damages. 574. Lessee's Interest. 575. Mortgagee's Interest. 576. Bailees and Trustees. 577. Vendor on a Contract of Sale. 578. Application of Maxim Causa Proxima, etc., to Fire Insur- ance. 579. Damages Limited by Contract. 580. HebuUding and Repairing. 581. Double Insurance. 586. Subrogation. 587. Life Insurance. 588. Damages on a Life Policy. 689. Creditor's Interest. us THE LAW OF DAMAGES. Definition -Division of Subject-Marine Insurance-Slilps and Cargoes, etc. §561. Definition— Division of the Subject.—" Insur- ance is a contract whereby one for a consideration, undertakes to compensate another if he shall suflfer loss.'" There are three classes of insurance which we propose to consider in reference to the subject of damages, viz: marine, fire and life insurance. § 502. Marine Insurance— Ships and Cargoes.— Marine insurance has been defined as " a contract whereby one party for a stipulated premium undertakes to indemnify the other against certain perils or sea-risks, to which his ship, freight or cargo, or some of them, may be exposed during a certain voyage or a fixed period of time.'" It is not properly within the plan of this treatise, to consider the subject of insurance generally; but only the subject of damages growing out of insurance. Many special treatises are devoted to a general treatment of the law of insurance, and to w^hich the student is referred.^ § 5G3. General Rule of Damages .—The general rule of damages relating to insurance is, that the insured may recover the loss actually sustained — or a full indemnity. If the loss of the insured property is total, the insured should recover its full value, where there is no provision in the policy stipulating for a less amount. In case of such a provision, damages cannot exceed the amount insured. If the loss is partial, the amount of the loss sustained, subject to the quali- fication above stated, should be allowed. These principles are universally recognized," ' May on Insurance, 1. Mr. Justice Lawrence defines it as follows: " In- surance is a contract by which the one party, in consideration of a price paid to him, adequate to the risk, becomes security to the other that he shall not suffer loss, prejudice or damage, by the happening of the perils speci- fied, to certain things which may be exposed to them. ' ' Lucena v. Crawford, 2 Bos. «& Pull., 300. = 3 Kent's Com., 251. 3 Parsons on Marine Insurance; Pmllips on Insurance; Duer on Marine Insurance; May on Insurance (1873). * See authorities last cited. INSUEAKCE. 449 Mode of Estimating Value of Tiling Insured on Open Policy. § 564. Mode of Estimating the Value of the thing Insured on an open Policy.— The mode of estimating the value of a vessel on an open policy, that is a policy in which the value of the property has not been fixed, in case of a total loss of a vessel, is to determine the value of the same at the time of the commencement of the risk, or at the port of departure, making reasonable allowance for wear and tear on the voyage up to the time of the loss/ And in reference to the cargo, the insured may recover the market value of the same at the time the risk commenced, together with the premium of insurance, and the expenses necessarily incurred in the shipment of the same." It has recently been held in Massachusetts that, in estima- ting a loss under an open policy of marine insurance, evidence of the usage at a particular port is inadmissible to vary the rule, that the damages are to be based upon the market value of the goods at the inception of the risk. And it was further held, that where the policy provides that in case of loss, all sums due the insurers when they became liable for the loss, should be first deducted, the amount due therefor, and all sums coming due, should be paid or satisfactorily secured before payment of the loss; that the amounts due on premium notes from the insured should be deducted, if due at the time of trial, although they were not due at the commencement of the suit; and that the loss, being payable in gold and the notes in cur- rency, the value of the currency in gold, at the time they fell due, should be ascertained, and such value deducted from the amount of the loss.' The doctrine of one-third new for old does not apply in case of a total loss.' A rule of constructive 5 3 Kent's Com., 243. « 2 PhiUps on Insurance, §§ 1221, 1222, 1229, 1231; Carson v. The Marine Ins. Co., 2. Wash. C. C. R., 468; Cox v. The Charleston Fire and Marine Ins. Co., 3 Rich., 331; Warren v. Franklin Ins. Co., 104 Mass., 518; 1 Arnold on Marine Insurance, (3 ed., by Machlacklan,) pp. 291, 309. 7 Wan-en v. Franklin Ins. Co., 104 Mass., 518 (1870). 8 3 Kent's Com. 331; Peele v. The Merchants Ins. Co., 3 Mason, 28. 29 450 THE LAW OF DAMAGES. In Case of Partial Loss on Open Policy. total loss generally prevails on the continent of Europe, as well as in this country, by which in case of loss, if the dam- age is more than one-half the value of the vessel, the insured may abandon her and claim as for a total loss." So, it is held that total physical loss of the goods, is not necessary, to entitle the owners of merchandise, insured against perils of the sea "free of particular average only," to recover as for a total loss, if the right to abandon is exercised during the existence of the peril and there is a total loss of value to the owners.' In some states it seems, the rule prevails of deducting one- third new for old, in estimating a total loss." But, the gen- eral American rule, as we have seen, allows an abandonment and recovery as for a total loss, where the damage is more than half the value of the vessel, and this is the rule in some of the maritime States of Europe. But the English rule prevents abandonment, and recovery as for a total loss, unless the vessel is damaged to such an extent that the repairs at the place where the vessel is, would amount to the value of the vessel when repaired.' § 565. In Case of Partial Loss on an Open Policy.— We have stated the rule of damages, on a loss of insured '°3 Kent's Com., 318, et seq.; Lockwood v. Sangamo Ins. Co., 46 Mo., 71. But, where a vessel whose cargo was insured, arrived at her port of destina- tion with a loss of more than one-half of her cargo, but a part of her cargo had been delivered at that port, it was held that the assured could not claim an abandonment. Nor could a loss of part of the cargo afterwards at a port of detention be made a constructive total loss by abandonment, however large that portion might be. Merchants Mut. Ins. Co. v. New Orleans Mut. Ins. Co., 24 La. An., 305. 'WaUerstein v. Columbian Ins. Co., 44 N. Y., 204. See further as to what constitutes a case for recovery, as for a total loss of freight. Parsons V. Manufacturers' Ins. Co., 82 Mass., 463; Hugg v. Augusta Ins. Co., Taney, 159. 'Heebner v. Eagle Ins. Co., 10 Gray, 131; Fielder v. N. Y. Ins. Co., 6 Duer, 282. 3 Irving V. Manning, 1 H. L. C, 287; Moss v. Smith, 9 C. B., 94; Knight v Faith, 15 Q. B., 649; Grainger v. Martin, 2 B. &S., 456; 4 B. & S., 9; Kemp V. HalUday, 6 B. & S.. 723. msuRAisrcE. 451 Valued Policies— Abandonment. property, to be that of full compensation. But, in determin- ing this amount, certain arbitrary rules have been adopted. Thus, in case of a partial loss of a ship, there is an arbitrary rule of allowance to the insurer of one third, new for old. The rule and the reason for it, is thus stated by Mr. Justice Story: "The assurred shall pay one-third part of the expense of labor and materials necessary to make the repairs and shall recover only two-thirds of the underwriters, it beino- considered, that in general, tlie ship is better by the amount of one-tliird of the expense of repairs." " And, although in England, it has been held, that an excep- tion to the rule should be made where the ship is new and the loss occurs on her first voyage," no such exception is made in the United States.'^ § 566. Valued Policies— Abandonment.— "A valued policy, is where a value has been set upon the ship or goods insured, and inserted in the policy in the nature of liquidated damages." '* Where the value of the property has thus been agreed upon, it is at least presumptive evidence of its true value, and in the absence of fraud, conclusive evidence between the parties to the agreement.'^ The general principles of the law of abandonment, are thus clearly and concisely stated by Mr. Story: "The right of aban- donment has been admitted to exist where there is a forcible dispossession or ouster of the owner of a ship, as in case of capture; where there is amoral restraint or detention which " Story, J., in Peele v. The Merchants' Ins. Co., 3 Mason, supra. See, also, Brinley v. National Ins. Co., 11 Met., 195. Patapsco Ins. Co. v. South- gate, 5 Pet., (U. S.) 604. '=> Perie v. Steele, 8 Carr. & Payne, 200. '3 Crock V. Marine Fire Ins. Co., 21 Pick., 456; Nichols v. Marine Fire & Mar. Ins. Co., 11 Mass., 253. '^3 Kent's Com., 272. '5 Irving V. Manning, 6 C. B., 393, 1 H. L. C, 237; Lamar Ins., Co. v. McGlashen, 54 111., 513; Shaw v. Fellon, 2 East., 109; Ld. Abinger, in Young v. Turing, 2 M. & G., 593; Nimick v. Holmes, 25 Pa. St., 366. 452 THE LAW OF DAMAGES. Mode of Estimating Damages. deprives the owner of the free use of the ship, as in case of embar- goes, blockades and arrests by sovereign authority; where there is a present loss of the physical possession and use of the ship, as in case of submersion; where there is a total loss of the ship for the voyage as in case of shipwreck, so that the ship cannot be repaired for the voyage in the port where the disas- ter happens; and lastly where the injury is so extensive that by reason of it the ship is useless, and yet the necessary repairs would exceed her present value. * '"^ * In such a case the law deems the ship, though having a physical existence, as ceasing to exist for purposes of utility, and there- fore subjects her to be treated as lost." " §567. Mode of Estimating Damages. — The measure of damages on a valued policy in case of total loss, is the value of the property thus agreed upon. But in case of a partial loss of goods, the damages are in the proportion to the whole value, which the lost goods bore to the whole, at the commencement of the risk. In case of injury to the cargo merely, and not a total loss of any specific portion of it, the amount payable by the insurer should bear the same propor- tion to the whole value of the cargo as agreed upon, which the value of the cargo at the port of destination if it had not been injured, would have borne to its actual value in its dam- aged state." The basis of the valuation in case either of total or partial loss, being the valuation fixed in the policy.'* And where the value of grain was fixed in the policy at the sum insured, and there was a partial loss of the same, and it reached the port of destination in a damaged condition, it was held, that the value thus fixed was the standard of liability, and not the value of the grain in the market; and that reason- '6 Peele v. Merchants' Ins. Co., 3 Mason, 27. See, also, American Ins. Co. V. Ogden, 15 Wend., 532. '7 3 Kent's Com., 275; Benecke on Indemnity, 146; 2 Phillips on Ins., §1221, et seq. Marshall on Ins., 502, et seq. Usher v. Noble, 12 East., 639. j8 Irving v. Manning, supra; 3 Kent's Com., 274. INSURANCE. 453 General Average— Underwriters may Kepalr. able and proper expenses incurred in handling and disposing of the grain, such as survey, inspection, and sale at auction, were proper elements of damages.'" § 568. General Average. The doctrine of general aver- age may affect the amount of damages recoverable on marine policies. Where such a claim is proper, the whole property and interest at risk must contribute to the particular loss in the proportions provided by law; and arbitrary rules are sometimes adopted in determining the values of the diflPerent kinds of property or interests at risk and subject to general average.'" If the ship is valued in the policy, this may be taken as its value at the time, in the absence of any better evidence, from which should be deducted a reasonable amount for deterioration since the valuation." § 569. The Underwriters may Repair.— It is the privilege of the underwriters, in case of abandonment, to repair the vessel within a reasonable time. And if the vessel is restored in as good a condition as she was in before the injury and within a reasonable time, the assured is bound to receive her in lieu of any claim for damages on the policy. '9 Lamar Ins. Co. v. McGlaslien, 54 111., 513. =0 Moss V. Smith, 9 C. B., 94. " Star of Hope, 9 Wall., 203 (1869). In this case it was held, that although the ship was totally lost by stranding, yet if it was voluntarily stranded for the common safety, and the stranding resulted in saving the cargo, the case was one for general average, that if the will of man in some degree contri- buted to the stranding, it was sufficient to constitute it a voluntary act within the meaning of commercial law. And where the bows of the vessel were cut by ice, and there was danger that both the vessel and cargo would go down in deep water, and to avoid this the master stranded her in shallow water, and a portion of the cargo was injured, though all was saved, but the vessel was injured by the stranding; it was held, that the case was one of voluntary stranding and proper for a general average contribution. Rath- bones V. Fowler, 6 Blatchf., 294. See, also, Fitzpatrick v. Bales of Cotton, 3 Bene., 42; Jones v. Bridge, 2 Sweeny, (N. Y.), 431; Fowler v. Rathbones, 12 Wall.. 102; Bales of Cotton, 8 Blatchf., 221. See, also, as to circumstances which do not constitute a case for general average, The Milwaukee Belle, 2 BisseU, C. C. R., 197; The Congress, 1 BisseU, C. C. R., 42. 454 THE LAW OF DAMAGES. Insurance of Freight and Profits— Measure of Damages on. But the owner is not bound to receive her if she is not as good as before the injury." §570 Insurance of Freight and Profits. — Freight is the hire of a ship, or money cliarged or paid for the transpor- tation of goods therein." This right or interest may be insured as well as profits." § 571. Measure of Damages on. — The measure of dama- ges on a policy of insurance of freight, is the amount contracted to be paid, or which the insured would be entitled to receive, if the voyage had been completed without loss. And the same principle would govern in case of profits. A loss on a policy on profits will be a total or partial loss, according as the loss on the subject matter of the profits is total or partial. And whether it is total or partial, may depend uj^on the ques- tion whether more or less than one-half in value of the sub- ject matter has been lost." And where the goods are insured in one policy and the profits in a separate policy, and the insured recovers for an average loss on the goods, he can only recover an average loss in like proportion on the profits.'" Where there was a partial loss of freight, one-half of which " Copelin v. Phoenix Ins. Co., 46 Mo.. 211. And it has been held that the right to recover damages under a policy is not necessarily limited to the actual amount expended for repairs, after deducting one-third new for old. Hagar v. New England Ins. Co.; 59 Me., 460 (1871). See, also, Paddock V. Commercial Ins. Co., 104 Mass., 521 (1870). "3 Web. Die. Mr. Arnold, defines it, as "the remuneration to be paid to the ship owner for the hire of his ship under an express contract of affreight- ment for a certain voyage, or the price to be paid to him for the carriage of goods irrespective of such voyage." 1 Arnold on Ins., 201. =4 3 Kent's Com., 340, Ml; Reily v. Delafield, 7 John. (N. Y.), 520; Abbott V, Sebor, 3 Johns. C, 39; Tom v. Smith, 3 Cai. (N. Y.), 245. Every policy on profits is necessarily a valued policy. Mumford v. Hallett, 1 Johns., 433. ^5 Abbott V. Sebor, 3 Johns. C. 39. ^ Loomis V. Shaw, 2 Johns. C, 36. Insuring ship and freight separately, is attended with difficulties; and Mr. Benecke, suggests that the only way to obviate it, is to insure them jouatly as one risk, in the same policy. Benecke on Indemnity, 57. i:n:sueance. 455 Application of Maxim Causa Proxima non Kemota Spectatui-. was covered by a policy of insurance, the value of which, mentioned in the j)olicy, was less than the actual amount of freight, it was held, that the measure of damages was in the proportion which the value of the freight actually lost, bore to the value of the whole freight.^* § 572. Application of the Maxim Causa Proxima non Remota Spectatur. — The maxim causa proxima non remota spectatur, has peculiar application in cases of marine insurance, in determining the liability of the underwriter.'"' The loss must be immediately and not remotely caused by the risk insured against.'" Thus, if a merchant vessel is taken in tow by a ship of war, and is thereby exposed to a tempes- tuous sea and lost, the perils of the sea are considered the proximate cause of the loss." So, where a policy provides "against all such loss or damage, not exceeding the sum insured, as should happen to the property by fire, other than fire happening by means of any invasion, insurrection, riot or civil commotion, or any military or usurped power," it includes a loss from fire which is caused by a collision, although it does not iliclude losses caused otherwise, directly by the collision. And, under such a policy, the insurance company would be liable for a loss occasioned by the sinking of the vessel, if the sinking was caused by a fire, and the fire was caused by a collision, against which it was not insured, 58 Fay V. Alliance Ins. Co., 82 Mass., 455 (1860). It has been held that the owner or master of a vessel cannot, as against the insurers of freight, voluntarily suiTender or abandon a cargo to the shipper or underwriter free of freight, upon the occurrence of any injury short of a technical total loss, 'or inability to dehver the goods in specie at the port of destination. If the owner demands the goods at the port of detention, the master should make the payment of full freight a condition to the delivery. If under such cir- cumstances he dehvers without the payment of freight, he cannot hold the insurer liable. Allen v. Mercantile Ins. Co., 44 N. Y., 437 (1871). =9 See, Broom's Legal Max., p. 217, and authority cited, 7 ed. 3° Taylor v. Dunbar, L. R., 4 C. P., 206; Seagrave v. Union Mar. Ins. Co., L. R., 1 C. P., 320. 3' Hagedom v. Whitmore, 1 Stark., N. P. C, 157 (2 E. C. L. R.). 456 THE LAW OF DAMAGES. Fire Insurance— Damages. even if the effect of the collision without the fire, would have been the settling of the vessel to her upper deck, in which case she might have been saved.^" So, the underwriters are liable for a loss arising immediately from the perils of the sea, but remotely from the negligence of the master and mariners.^' But where the cargo was insured, and the ship was damaged by a peril of the sea, and repairs thereto became necessary, and there being no funds provided, the master to raise money for this purpose, sold part of the cargo; it was held, that the underwriter on the cargo was not liable therefor on the policy, as for a loss occasioned by a peril of the sea.'* § 573, Fire Insurance — Damages. — We have already stated that the general principle of damages in case of a loss of property by the perils insured against, is that of full com- pensation for the loss sustained, not exceeding the amount of insurance specified in the policy.'' This is the doctrine in cases of fire insurance as well as others. And where the policy covers a loss by fire, all the losses immediately and directly resulting from the fire may be recovered as damages, subject to the limitation above stated.'" The expense of rebuilding is not usually the criterion by which the damages are to be estimated. For the property destroyed may be old, and 32 Insurance Co. v. Transportation Co., 12 Wall., 194 (1870). See, also, Cory V. Boylston Fire & Marine Ins. Co., 107 Mass., 140 (1871); Hayward v. Liverpool & London Fire Ins. Co., 2 Abb. (N. Y.), App. Dec, 349 (1867). 33 Walker v. Maitland, 5 B. & Aid., 171 (7 E. C. L. R.); Bishop v. Pent- land, 7 B. & C, 223; (14 E. C. L. R.), Waters v. Louisville Ins Co., 11 Pet. (U. S.), 220; General Mut. Ins. Co. v. Sherwood, 14 How. (Id.), 351. 34 Powell V. Gudgeon, 5 M. & S., 431. See, also, Marshall on Ins., 730, 3d ed. ; and for an illustration of the maxim, see Broom's Legal Maxims, 217, et seq. 35 Peddie V. Quebec Fire Ins. Co., 1 Smith (L. C), 174; Marchesseau v. Mer- chants' Ins. Co., 1 Rob. (La.), 438; Henderson v. Western Marine & Fire Ins. Co., 10 Rob. (La.), 164; McCraig v. Quaker City Ins. Co., 18 U. C. Q. B., 130. 36 May on Insurance, 523, and authorities there cited. INSURANCE. 45T Fire Insurance— Damages. injured by the use and decay, and to require the insurer to pay an amount required to rebuild or restore the same, with new materials, might far transcend the value of the building or other property destroyed, and give more than full com- pensation for the loss.'^ There is no rule applicable to fire insurance, as there is in marine, by wliich the insured is required to allow one-third, new for old. Such a claim, or a claim to rebuild, can only be made where there is some express provision of the policy pro- viding for, or authorizing it." And under an ordinary fire policy, where the underwriter agreed to make good all loss or damage to the insured property, not exceeding the amount Insured, and the value of the property at the time of the fire was $18,000, but his loss was only $6,000 and the insurance $5,000; it was held, that the insured could recover the whole amount of the $5,000 insured, and that he was not limited to the proportion 4^ $5,000 to $18,000, as in marine insurance.'* The value of the property at the time of the loss, not exceed- ing however the ameunt insured, is the measure of the dama- ges; and this may be determined by proof of other property of a similar kind in the market.'" And where there is a loss of property in a foreign country, insured for a sum expressed in dollars, upon a domestic policy, the rule is to determine its value at the place where it was located, and then find its equivalent in the currency of the country where the suit is 3« Brinely v. Tlie National Ins. Co., 11 Met. (Mass.), 195; Morrell v. Irving Fire Ins. Co., 33 N. Y., 429; Mississippi Ins. Co. v. Ingram, 34 Miss., 215; Liscomb v. Boston Mut. Ins. Co., 9 Met. (Mass.), 205; Com. Ins. Co. v. Sen- net, 37 Pa. St., 205; Laurent v. The Chatham Ins. Co., 1 HaU (N. Y. Superior Ct.), 41; May on Ins., 524. 37 Wallace v. Insurance Co., 4 La., 289; Commonwealth Ins. Co. v. Sen- nett, 37 Pa. St., 205. 3^ Mississippi Mut. Ins. Co. v. Ingram, 34 Miss., 215. See, also, Underhill V. Agawam Mut. Ins. Co., 6 Gush. (Mass.), 440; Angel on Ins., §§ 264, 265; Parsons Merc. L., 530. 39 Commonwealth v. Senuett, 37 Pa. St., 205; Hoffman v. ^Etna Ins. Co., 1 Robert. (N. Y.), 501, s. c, Abb. Pr., 325, affirmed 32 N. Y., 405. 458 THE LAW OF DAMAGES. Lessee's Interest. brought, bj determining the intrinsic value of the currency of that country as compared with tlie currency of the otlier." So, where the plaintiff acquired, by a quit-claim deed, the equity of redemption to certain premises on which a mort- gagee had entered for condition broken, and insured tlie building for $1,5"0, which was stated in the policy to be not more than three-fourths of the value of the property insured, and the land was worth $1,000, the buildings $2,050, and the mortgage was for $1,650 and the loss by fire amounted to $1,850; and the insurance was effected with knowledge by the company of the circumstances; it was held, that the plaintiff was entitled to recover the full amount insured, althouijh this amount was more than three-fourths of the value of the property insured, after deducting the mortgage." § 574. Lessee's Interest. — On general princi^Dles the les- see can never recover more on a policy for a loss, than the value of his interest. Thus, when the insurance is on a build- ing in which the insured has only a leasehold interest, his damages would be limited to the value of the unexpired term."' _____^^ 40 Burgess v. AUiance Ins. Co., 10 Allen (Mass.), 221 (1865). « Baden v. Hingham Mut. Ins. Co., 18 Pick. (Mass.), 523. "A mortgagor has an interest in the property up to its full value. His debts may be greater than his assets, but this circumstance has never been considered as proving a want of interest in it. If the property is destroyed the loss is his, as the debt survives against him. Columbia Ins. Co. v. Lawrence, 2 Pet., 25; Harrington v. Dall, 13 Mass., 96; Gordon v. Mass. Ins. Co., 2 Pick., 249. This interest continues until foreclosure. Story v. Manufacturers' Ins. Co., 10 Pick., 40; Stephens v. ^tna Ins. Co., 43 lU., 327; Allen v. Franklin Ins. Co., 9 How. (N. Y.), 508." From article on "Insurance of Mortgage Interests," byH. E. Mills, pubhshed in 5 Western Insurance Review, 336, where the subject is fuUy treated. ^ Niblo V. N. A. Ins. Co., 1 Sandf. (N. Y. Superior Ct.), 41. Where the building msured agamst fire stood on leased land, and it was destroyed by fire, and the lease would soon expire, so that the owner of the building would be required to remove it if rebuilt, or release the land; it was held, that the damage recoverable was the amount insured, not exceeding the value of the building, without reference to the circumstances of the case. Laurent v. Chatham Ins. Co., 1 Hall. (N. Y. Superior Ct.), 41. A mortgagor INSUEAKCE. 459 Mortgagee's Interest. §575. Mortgagee's Interest. — The mortgagee may recover in all cases to the extent of his interest in the insured property, even though the mortgagor restores the property after the loss, and makes it as good as before, and even though the mortgagee afterwards reduces his claim by selling other securities." And the weight of authority would authorize him to recover the full amount insured not exceeding the loss, whether he insured as general owner or as mort^affee, and this without prejudice to the claim secured by the mortgage, and whether paid or unpaid." So, it seems he may recover the amount insured though the property remaining after the jBre was ample security for his debt." And in 'New Hampshire, may recover the value of the property mortgaged and lost by the fire, with- out reference to the circumstance that his equity may have been seized on execution. Story v. Manufacturers' Ins. Co., 10 Pick. (Mass.), 40. And the same rule appUes to goods lost in a custom house, without reference to the question whether the duties thereon have been paid or not. Wolf v. How- ard Ins. Co., 1 Sandf. (N. Y. Superior Ct.), 124; 3 Seld. (N. Y.), 583. But where distilled liquors, upon which the internal revenue tax was not paid, were destroyed, on a claim for the insurance, the court held, that as the des- truction of the liquor left the owner of the liquor without any personal liability for the government tax, the insured could recover only the value of the property subject to the tax. Security Ins. Co. v. Farrell, Sup. Ct. III., 2 Ins. L. J., 302. « Insurance Co. v. UpdegrafF, 21 Pa. St., 513; Boston & Salem Ice Co. v. Royal Ins. Co., 12 Allen, (Mass.), 381; Sussex Co. Mut. Ins. Co. v. Woodruff, 2Dutcher, (N. J.), 541; Foster v. Equity Mut. Ins. Co., 2 Gray, (Mass.), 216; Carpenter V. Washington Ins. Co., 16 Pet., (U. S.), 496; Thornton v. Enterprise Ins., Co., (Sup. Ct. Pa.), Legal Int., 170, (June 14, 1872). -wKingv. State Mut. Ins. Co., 7 Cush., (Mass.), 1; Suffolk Fire Ins. Co. V. Boyden, 9 Allen, (Mass.), 123; Concord Mut. Fire Ins. Co. v. Woodbury, 45 Me., 447; Clark v. Wilson, 103 Mass., 221. « Kernochau v. New York Bowery Ins. Co., 17 N. Y., 428; Motley v. Manuf. Ins. Co., 29 Me., 337; Foster v. Equitable Mut. Fire Ins. Co., 2 Gray, (Mass.), 226. But in New Jersey it was held that where there is an insurance on a mortgage interest, if the insured parts with any of his secu- rities, or if part of his claim is paid, the insurer wi^ only be liable for the amount remaining. But if the insured parts with or receives a portion of his claim after the suit is commenced, it does not affect his claim. Sussex County Mut. Ins. Co. v. Woodruft, 2 Dutch., (N. J,), 541. And it has been 460 THE LAW OF DAMAGES. Bailees and Trustees— Vendor on a Contract of Sale. under a restriction of liability, contained in the policy, to two- thirds of the value of the property lost, the mortgagee may at least recover the full value of his interest, if it does not exceed two-thirds of the value of the property." § 576. Bailees and Trustees. — A bailee having goods in his possession may insure them in his own name and recover in case of loss, the full value of the property covered by the policy, not exceeding the amount insured.*' And a warehouseman insuring goods "in trust," may recover the full value of the goods held by him in storage." § 577. Vendor on a Contract of Sale —Where a party contracted to sell a house and lot, and afterwards took a pol- icy on the house in his own name, but before the insurance, received a part of the purchase money and a portion of it further held that an insurance to a mortgagee is an insurance of his debt, and the insurer is only liable to the amount of the debt. But if the mort- gagor takes a policy and assigns it to the mortgagee as collateral security, the mortgagee may recover the entire loss to the amount of the sum insured. Carpenter v. Washington Ins. Co., 16 Pet., U. S., 495. But see, also, Kong V. State Ins. Co., 7 Cush., 1; Kemochan v. Bowery Ins. Co., supra. So, in Foster v. Equitable Mut. Fire Ins. Co., supra, it was held, that where a mortagee had a mortgagor's policy assigned to him, with the consent of the company, and the insured property was damaged $574, but was repaired and made as good as before by the owner of the equity of redemp- tion, before the commencement of the suit on the policy; it was held that the company were bound to pay 4he amount of damage. See, also, Mathewson V. Western Assurance Co., 10 L. C, (S. C, Montreal). 8. The mortgagee is not obliged to look to the land, although it may be sufficient to satisfy the mortgage debt. Rex v. Insurance Co., 2 Phil., (Pa.), 357 (1858). •«« Sanders v. Hillsborough Ins. Co., 44 N. H., 2-38. 47 Waring v. Indemnity Fire Ins. Co., 45 N. Y., 606; DeForest v. Fulton Fire Ins. Co., 1 HaU, (N. Y. Superior Ct.), 84; Lee v. Howard Ins. Co., 11 Cush., (Mass.), 324; May on Ins., § 80. *8 Waters v. Monarch Fire Ins. Co., 5 E. & B., 870; Hough v. People's Ins. Co., 36 Md., 398; London Railway Co. v. Glyn, 1 E. & E., 652; Siter v. Morris. 13 Pa. St., 218. See, also, Ayres v. Hartford Ins. Co., 17 la., 176, where it -was held that the term 'in trust," in a policy, unless defined specially in a diflferent way, includes every thing in which the insured has a qualified interest with the possession, while the ownership is in another, See, also, Turner v. Stetts, 28 Ala., 420. IXSUEAXCE. 461 Application of Maxim Causa Proxima, etc., to Fire Insurance— Damages, etc. afterwards, and the house was destroyed by fire before a fall payment of the consideration money and before the execution of a conveyance; it was lield, that the policy covered the entire legal and equitable interest, and not merely the unpaid balance of the purchase money due; and that as tlie insurance was on the house and not expressed to be to cover a debt merely, and did not include the lot, the company was not entitled to any cession of the lot, or of the claim against the vendee." §578. Application of the Maxim Causa Proxima, etc., to Fire Insurance. — The losses for which damages may be recovered on a fire insurance policy, must be such as were proximately caused by the fire. A policy insuring '"all the articles making up the stock of a pork house, and all within the building and pertinent thereto," covers every thing pro- perly belonging to the stock of the pork house, witliout regard to the particular ownership of each article contained in or appurtenant to the building."" Remote consequential dam- ages cannot be allowed. Thus, damage caused by an inter- ruption of business," or the loss of the use of a grist mill and profits anticipated therefrom, or the expense of keeping employes necessary for the operation of same while being rebuilt," or the loss of the prospective rent;" is not recover- able on a policy of insurance covering a loss of a mill by fire. §579. Damages Limited by the Contract. — The amount of damages in case of a loss, may be limited by the terms of the policy. Thus, the policy sometimes provides that the amount payable in case of a loss, shall only be a certain percentage or proportion of the value of the property « Insurance Co. v. UpdegrafF, 21 Pa. St., 513. so ^tna Ins. Co. v. Jackson, 16 Mon. (Ky.), 250. 51 Wright V. Pole, In re, 1 Al. & El., 621; s. c. 3 Nev. & Man., 819. s^Menzies v. Nortli British Ins. Co., Ct. Sess. Cas. (Scotch), 694; Niblo v. North American Fire Ins. Co., 1 Sandf. (Superior Ct., N. Y.), 551. S3 Leonarda v. Phcenix Ins. Co., 2 Rob., (La.), 131. 462 THE LAW OF DAMAGES. Kebuilding and Kepalring. insured at the time of its loss. In such a case, the value of the property at the time of the loss must be shown, though the policy be a valued one." § 580. Rebuilding and Repairing.— We have said that the right of the insurer to rebuild or repair the lost property, in lieu of the payment of the loss, rests upon the agreement of the parties to that eifect. Where such a provision is inserted in the policy, and the underwriter elects to rebuild or repair, and performs the duty insufficiently, he is liable for damages for the defective performance of the same, as on a contract to rebuild or repair." And for a failure fully to perform the contract, the damages would be the difference between the value of the property as repaired or rebuilt, and its value as it would have been, if the same had been done according to the contract.^' And the same rule would apply where the insurer enters upon the work of rebuilding, but desists and abandons it before the same is fully completed." So, where the under- s4Hutclims V. People's Mut. Ins. Co., 11 Foster, (N. H.), 238; Post v. Hampshire Mut. Ins. Co., 12 Met. (Mass.), 546; Eagan v. Mutual Ins. Co., 5 Den. (N. Y.), 326; Atwood v. Union Mut. Ins. Co., 8 Post. (N. H.). 234; Ashland Mut. Ins. Co. v. Housinger, 10 Ohio St., 10; Singleton v. Boone Co. Ins. Co., 45 Mo., 250, where the policy provided for the payment of two-thirds of the loss, in case of total loss, and of partial losses in full, and there was a loss of the insured goods, to the amount of $3,859, only about |70 in value being saved from the stock ; the total value of which was $3,929 ; the court held this a case of total loss within the intent of the parties, and not a partial loss, so as to entitle the insured to recover the fuU amount of the insurance. 55 New York Fire Ins. Co. v. Dalaven, 8 Paige, (N. Y.), 418; Beals v. Home Ins. Co., 36 N. Y., 522; Home Ins. Co. v. Thompson, 1 Upper Canada, (Err. & App.), 247. ss Parker v. Eagle Ins. Co., 9 Gray, (Mass.), 152, deducting one-fourth of the expense, as such was the stipulation in the policy. Times Fire Ins. Co. V. Hawke. 5 H. & N., (Exch.), 935. 57 Morell V. Irving Fire Ins. Co., 33 N. Y., 429 (I860). In this case, there were two policies covering the same loss by different companies, in each of which there was a provision giving a right to rebuild. It was held, that the companies might be sued jointly or severally, and that if one was compelled to pay the whole loss, it could compel the other to contribute. See, also, as to the measure of damages in such a case, Parker v. Eagle Fire Ins. Co., 9 Gray. (Mass.), 152. INSUKANCE. 463 Double Insurance. writer elects under the policy to rebuild, and after he has commenced, is prevented from completing the work, or where it is required to take it down as dangerous;" or where he is prevented from rebuilding by the public authorities,"" he would be liable for the fall amount of the loss by the fire. But where the policy provides that in case of loss, the insurer raaj'- rebuild, a refusal by the insured to allow him so to do, would destroy any right of action by the insured for the loss." § 581. Double Insurance.— Where there is more than one insurance on the same property for the same risk, each insurer, in the absence of any stipulation to the contrary, is liable for the loss, not exceeding the amount insured by him." But in case he pays the whole loss the others may be required to contribute in proportion to the amount insured by them." § 582. It is common however, to insert a clause in poli- cies of insurance against loss by fire, providing for the appor- tionment of the loss in case of other insurance on the same property. In a recent case in the Court of Appeals of New Tork, the following clear exposition of the law relating to this subject is furnished. The court say: " The clause now usual in policies of insurance, which provides for an apportionment of the loss in case of other insurance on the property, is a part of the contract and must receive a reasonable construc- tion. We have no right to engraft upon it the rules govern- ing suits for contribution among insurers, or to restrict its operation to cases where such suits could be maintained, but 59 Brown v. Royal Ins. Co., 1 E. & E. (Q. B.), 853. 60 Brady v. North West. Ins. Co., 11 Mich., 425. 6' Beals V. Home Ins., Co., 36 Barb. (N. Y.), 614; 36 N, Y., 522. 6=^ Mechanics' Fire Ins. Co. v. Nichols, 1 Harr. (N. J.), 410; Hough v. People's Ins. Co., 36 Md., 398; Harris v. Protection Ins. Co., Wright, (0.), 548; Peoria Marine and Fire Ins. Co. v. Lewes, 18 111., 553; Baltimore Fire Ins. Co. V. Lovey, 20 Md., 20; Slootv. Royal Ins. Co., 49 Pa. St., 14; Merick V. Germania Fire Ins. Co., 54 Pa. St., 277. *3 May on Ins., 535, et seq. 464: THE LAW OF DAMAGES. ,- Double Insurance. must look to the language of the clause itself, and construe it as we would any other stipulation between the insurer and the insured. "We cannot adopt the view taken of this clause in the case of Howard Insurance Comjpany v. Scribner^^ where it was held in analogy to the rule in actions for contribution, that where a specific parcel of property is insured by one policy, and the same property is covered by another policy which also includes other property, the latter policy is to be thrown wholly out of view, and does not constitute other insurance within the meaning of the clause; in either case the whole sum insured by the more comprehensive policy, is to be considered as so much additional insurance upon the parcel separately insured. Where several parcels of property are insured together for an entire sum, it is impossible to say as to either of the parcels, that there is no insurance upon it, neither is it reasonable to assume that any of the parcels is insured for more than its value when the whole sum insured is less than the aggregate value of all the parcels covered by the policy. The difficulty lies in determining what part of the whole sum insured is to be deemed applicable to either parcel, .where the policy itself makes no separation. If the entire property is destroyed, as in this case, the rule laid down in 2 Phillips on Insurance,^* and in Blake v. Ex- change Mutual Insurance Comjpany^^ carries out the intent of the clause, and works entire equity between the insurers and the insured, as well as between the several insurers. That rule is, in substance, that for the purpose of apportioning the loss, in case of an insurance where several parcels are insured together by one policy for an entire sum, and one of the parcels is insured separately by another policy, the sum insured by the first-mentioned policy is to be distributed among the several parcels, in the proportion which the sum 64 5 HiU. (N. Y.), 298. 65 Page 36, No. 1263o. « 12 Gray, 265. INSURANCE. 465 Double Insurance. insured by the policy bears to the total value of all the parcels. Thus, in round numbers, the sum insured in this case by the policies other than the defendant's on the property as an entirety, M-as $47,000. The total value of the property covered by these policies was $88,000. In case of a total loss, each parcel should be deemed insured thereby for 47-88 of its value. The parcel separately insured by the defendant was worth $16,000, and was insured by the defendant for $3,000, which was equal to 3-16 of its value. It is manifest that there was no over-insurance, and that consequently there is no occasion for any apportionment."" § 584. And where a policy for $3,000, stated that it was additional to $9,000 insured in other offices, and $8,000 to be insured in other offices; and there was at the time of the loss only $11,000 additional insurance; it was held, that the insurers must pay in proportion to the actual and not the con- templated insurance provided for by the policy." And in an action on a policy which provided, "that when property is insured in this company solely, three-fourths only of the value will be taken; and in case of loss the company will be liable to pay only three-fourths of the value at the time of the loss;" and that "in case of loss or damage of property upon which double insurance exists, the company shall be liable to pay only such proportion thereof as the sum insured by this company bears to the whole amount insured thereon— such amount not to exceed three-fourths of the actual value at the time of the loss," the Supreme Court of Massachusetts, by Bigelow, J., said: "The defendants did not assume a liability in case of the existence of other insurance on the propert y, to be ascertained solely by calcula- 67 Oo-den v. East River Ins. Co., 50 N. Y., 388 (1872). See, Cromie v. Ken &Lou. Mut. Ins. Co., 15B. Mon. (Ky.), 432; Angelrod v. Delaware Ins. Co., 31 Mo., 593, in which latter case the same doctrine was recog- nized. «8 RichmondviUe v. Ham. Mut. Ins. Co., 14 Gray (Mass.), 459. 30 466 THE LAW OF DAMAGES. Double Insurance. ting the proportion which the sura insured by them bore to the whole amount insured on the property. The basis of cal- culation was in all cases to be the value of the property insured, after deducting one-fourth of such value. Of this sum the defendants were to pay such portion as the sum insured by the policy issued by them, should bear to the whole sum insured by all the policies existing on the property at the time of the loss. In other words, the defendants were liable only for their proportion of three-fourths of the value of the property insured ; and this proportion was to be ascertained by calculating the ratio which the sum insured in the policy declared on, bore to the whole sum insured by all the policies existing on the property. Thus, if the whole property at the time of the loss amounted to ten thousand dollars, the sum on which the liability of the defendants must be reckoned would be three-fourths of ten thousand, or seven thousand five hun- dred dollars; and of this last sum the defendants would be held to pay only the proportion which the amount insured by them, viz., two thousand dollars, bore* to the whole sum insured, viz., five thousand, or two-fifths of seven thousand five hundred dollars, which would be three thousand dollars. But as this last sum exceeds the whole amount insured by the defendants, it would be cut down to that amount, and the plaintiff could only recover two thousand dollars." '* § 585. But where the loss exceeds the whole amount insured, and the policies provide that in case of other insur- ance, the insured shall not be entitled in case of loss to an}^ greater proportion of the loss or damage than the amount insured by the policy shall bear to the whole amount insured, the several insurers are liable to pay the whole amount of their respective insurance.'" «9 Haley v. Dorchester Mut. Fire Ins. Co., 12 Gray (Mass.), 545. See, also Goodale v. N. E. Mut. Fire Ins. Co., 5 Fost. (N. H.), 169. 7° PhiUips V. Perry County Ins. Co., 7 Phila. (Penn.), 673 (1870). See, also, to the same effect, Ogden v. N. E. Ins. Co., 50 N. Y., 388 (1872). I:N"SUKANCE. 467 Subrogation. And where a policy provided, that " where property insured in this company is damaged by removal from a building in which it is exposed to fire, such damage shall be borne by the insured and the insurers, in such proportions as the whole sum insured bears to the whole value of the property insured, of which proof in due form shall be made by the claimant," and a portion of the property insured was destroyed by fire and another portion damaged by removal; it was held, that the damage occasioned by the removal should be borne by the parties according to their respective interests or risks, the share of each bearing the same proportion to the whole dam- age that his interest in tlie property or risk bore to the whole value, and that the insured could recover only such proportion of the loss by removal, as the insurance bore to the whole property at risk at the time of the loss." § 586. Subrogation.— Where a party sustains a loss by fire caused by the fault of another, and receives satisfaction from such wrongdoer for the loss, after having received the amount insured thereon from an insurance company, he holds so much of the amount received from' such wrono-doer as would he sufficient to reimburse such company, in trust, and such company may recover such amount by suit in equity." But in a recent case in Ohio, where a loss was partially covered by insurance, and was occasioned by a wrono-doer against whom after payment of the insurance, the insured recovered a judgment for the same loss, and which was satis- fied, but to the prosecution of which suit the underwriter, on request, refused to contribute; in a subsequent suit by the underwriter against the insured for reimbursement, it was held, that if the plaintiff could recover anything, he could recover no more than the surplus of the amount recovered of 7' Peoria Marine Fire Ins. Co. v. Wilson, 5 Minn., 53 (1860J. 7* Monmouth, etc., Ins. Co. v. Hutchinson, 21 N. J. Eq., 107. See, also, Weber v. Morris & Essex R. Co., 35 N. J. L., 409; May on Ins., § 454. 468 THE LAW OF DAMAGES. Life Insurance— Damages on a Life Policy. the wrongdoer, wliich remained after full satisfaction of his uncompensated loss, and the expenses of the recovery." § 587. Life Insurance. — Life insurance is a contract to pay a certain sum of money on the deatli of a person, in con- sideration of the payment of a certain sum or premium annu- ally or otherwise, during the life insured, or for a cer- tain number of years. In case of the payment of tlie pre- premium in full, the party entitled to the benefit thereof usually receives what is termed "a paid up policy," which entitles his heirs, representatives or assigns, to the amount stipulated to be paid on his death. Life insurance, is not like marine or fire insurance, intended as an indemnity for a loss which may or may not happen within a stipulated time. The amount stipulated to be paid on the deatli of a party, must sooner or later be paid; and it is free from those vexatious questions, that frequently arise in marine and fire insurance, in relation to valuation and double insurance. § 588. Damages on a Life Policy. — The amount ordi- narily recoverable on a life policy of .insurance, by the holder, is the amount stipulated to be paid on the death of the party whose life is insured, without any regard to other insurance by the same party or others, on the same life." And where an action was brought to recover on a life insurance policy which provided for the payment of two thousand dollars, on the loss of life from accidental injuries occasioning death within ninety days from the accident; and the sum of ten dollars a week for a period of not exceeding twenty-six weeks, for personal injury received from "any single accident, by wliich the insured should sustain any personal injury which should not be fatal," it was held, that the weekly sura was due for an injury by an accident which did not occasion death 73 Newcomb v. Cincinnati Ins. Co., 22 Ohio St., 382. See, also, Hygum v. ^tnalns. Co., 11 la., 21. 7" May on Ins., 7-8. » mSUEAlS'CE. 469 Creditors' Interest. within ninety days, altbougli it ultimately proved fatal, that if it were otherwise, an injury which should not prove tatal within ninety days, would furnish no ground of action till it should be made to appear that it would never prove fatal, which would render the insurance nugatory as to the payment of the stipulated sum per week, in case of a personal injury resulting from the accident." § 589 . Creditors' Interest— The creditor has an insura- ble interest in the life of his debtor." The insurance in all such cases may be at least to the amount of the debt; or the debtor may insure any amount payable to the creditor in trust to pay the debt, and the balance to such parties as the debtor may designate." Some controversy has existed whether he can recover more than his debt, or if more whether he can recover the sum insured if he has no claim against the debtor at the time of his decease. On this question, reference may be had to the authorities already cited." 75 PeiTy V. Providence, etc., Ins. Co., 103 Mass., 242. Much controversy has occurred in reference to the question whether a creditor who insures the life of his debtor, and afterwards the debt is paid, can recover on the pohcy. American and recent En-hsh authorities sustain the right so to do Dalby V India and London Life Ins. Co., 15 C. B., 365; Law v. Indisputable Life PoUcvCo IJur., N. S.,178,L.J.Ch.,196. But it is held m this country that the creditormusthaveapecuniarymterestinthelife of the debtoratthe incep- tion of the risk. St. John v. Am. Mut. Life Ins. Co.. 2 Duer^419; s. c. 13 N Y 31 • Valton v. Nat. Life Ins. Co., 22 Barb., 9, s. c, 20 N. Y. 32; Rawls v. Am. Life Ins. Co., 36 Barb., 357; s. c, 27 N. Y., 282; Mowry v. Home Ins. Co. q R I 1- May on Ins., § 115, et seq. And a father has an msui-able interest inthe"lifeofaminorson. May on Ins., § § 104,.105, e^ «e«. And a sister may insure the life of a brother. Id., § 103. 76 May. on Ins., § 103. 77 Id., §§ 104, 105, et seq.; American Life & H. Ins. Co. v. Robertshaw, 26 Pom.. 189. , . . 78 See ante, § 588, and note 75. The recent Encrhsh decisions seem to favor a recoveiy of the fuU amount of the insurance under all circumstances, where there was a debt due at the time of the insurance. The American authorities do not seem to go to that extent. 470 THE LAW OF DAMAGES. Damages for Injuiies to the Person. CHAPTER XX. DAMAGES IN CASE OF TORTS— INJURIES TO THE PERSON. Section 599. Damages for Injuries to the Person. 600. Assault and Battery— Elements of. 601. Aggravation. 602. Mitigation— Defense. 603. Character of the Plaintiff— Defendant. 604. The Defendant may Show Circumstances— Res gestae. 605. "Whether the Acts done or the "Words Spoken are Part of the Bes gestae. 607. Character— Knowledge of, may Mitigate Damages. 609. Pecuniary Circumstances. 611. Aggravating Circumstances— Conduct— Threats. 613. Aggravation Owing to Intemperance. 614. Permanent Injury. 615. Summary. 616. Complete Defense— "What is. 617. Injury by Infants and Non Compotes. § 599. Damages for Injuries to the Person .—Having considered the subject of damages resulting from breaches of contracts, I now proceed to consider the rules and principles applicable in determining damages in cases of torts. We had occasion to notice this subject incidentally in treating of con- tributory negligence, and of matters in aggravation and miti- gation of damages; but, it here requires a fuller consideration. The trespasser is generally liable for any direct injury to TOKTS— INJUKIES TO PEESON. 471 Assault and Battery— Elements of Damages. the person or property of another, or for any direct and natu- ral result of a wrongful act, whereby the person or property of another is injured, and this, whetlier the injury was inten- tional or not.' But where the injury, if direct, was inadvert- ent and unintentional, the damages are limited to the direct and immediate consequences of the act, and should be com- pensatory only;^ whereas if the injury was the result of gr©ss negligence or malice the injured party should receive indem- nity for even remote injuries as well as exemplary damages.' § 600- Assault and Battery— Elements of Damages. — The proper amount of damages in case of an assault and battery, generally depends much upon the aggravating or mitigating circumstances connected with it. The elements of damages in ordinary cases may be thus summarised: 1. Loss of time and labor from the date of the injury until the party recovers therefrom. 2. The expense of medical, surgical and other attendance, and the value of clothing injured or destroyed. 3. Diminished capacity to work at the trade or business of the party injured. 4. Bodily pain and mental anguish.* ' 1 Chitty on Plead., 147; 1 Hill on Torts, 100, et seq. See, also, § 617 and notes. ' Seely v. Alden. 61 Pa. St., 302; Cushman v. WaddeU, Baldw. (N. J.), 57. And where the injury results from an act done, or the non-performance of a duty imposed by law, the tort-feasor is responsible for aU the injury that results from the wrong. Thus, where the defendant hung his sign over a public street, in violation of a city ordinance, he was held hable for the dam- age done by its fall in a heavy and unusual gale of wind. Salsbury v. Her- shinroder, lOG Mass., 458. 3 Ibid. See, also, Ives v. Humphreys, 1 E. D. S. (N. Y.), 196; Little v. Tingle, 26 Tnd., 168. See, also, Mil. & St. Paul R. Co. v. Armes, Alb. L. J., March, 1876, p. 212. 4 2 Gr. Ev., § 267; Cox v. Vanderkleed, 21 Ind., 164; Hendrickson v. Kings- bury, 21 la., 379; Wiley v. Keokuk, 6 Kans., 94; Reader v. Purdy, 48 lU., 261, (1869); Wileyv.Man-o-to-wah6Kans.lll; Slater v. Sherman, 5 Bush. (Ky.), 206, (1865). See, also, ante % 72 et seq; post, § 614. That mental 472 THE LAW OF DAMAGES. Aggravation— Mitigation— Defense. The damages may always include a fair compensation for injuries actually sustained by the battery including probable future disability and suffering.' And it has been held that the injured party may recover the amount of a surgeon's bill voluntarily paid by the township trustees, and to whom he was not liable for the same.' § 601. Aggravation. — If the act was wanton or reckless, or the defendant was actuated by malice, or perpetrated the wrono- in total disregard of the law, and the plaintiff was in no way to blame, the plaintiff should recover not only for the pecuniary losses sustained, but for his mental anxiety, ])ublic degradation, and the wounded sensibility which an honorable man might be supposed to feel from a violation of the sacred- ness of his person; for pain to the feelings as well as to the body; and in addition thereto, exemplary or vindictive dama- ges, in the discretion of the jury, as an example and a pun- ishment, where such damages are recognized as proper.' § 602. Mitigation— Defense.— On the contrary, if the defendant acted under an honest belief, induced by the con- duct of the plaintiff, that he was in danger of an assault and battery by the plaintiff, which could only be repelled by an assault and battery on him, and the defendant's battery con- suffering and pain of mind, are matters of compensation, see Smith v. Railroad Co., 23 Ohio St.. 10; Sedg. on Dam. 35, 36; Fiogg v. RaUroad Co. 43 m., 365; Fay y. Parker, 53 N. H., 342; Detroit Daily Post Co. v. McAr- tliur, 16 Mich., 447. Ruth. Inst., B. 1, Chap. 17, §§ 1, 10. 2 Gr. Ev., §§ 89, 267; Harrison v. Swift, 13 Allen, 144. See, as to permanent disability, post, §614. s Causee v. Andrews, 4 Dev. & B- (N. C), 246, Slater v. Rink, 18 111., 527. See, also, ante, note 4. 6 Klein v. Thompson, 19 Ohio St., 569. 7 Wadsworth v. Treat, 43 Me., 163; West v. Forest, 22 Mo., 344; Wilson V. Middleton, 2 Cal., 54; McNamarav. King, 7 111., 432; Jefferson v. Adams, 4 Harr. (Del.), 321; Cook v. Ellis, 6 Hill, (N. Y.), 466; Detroit Daily Post Co. V. McArthur, 16 Mich., 447; Fay v. Parker. 53 N. H., 342; Rutherford's Inst. B. 1, Chap. 17, § 1, 10. In Maryland the plaintiff may show he is a laboring man to increase damages. Guthrie v. Blowers, 11^ Md., 336. TOETS— INJURIES TO PERSOK 473 Character of the Plaintiff. sisted only of the force requisite for that purpose, as he believed, it is a proper matter in mitigation, and will relieve the defendant of vindictive or exemplary damages." § 603. Character of the Plaintiff— Defendant .-- Whether the defendant can give in evidence the general bad character of the plaintiff by way of excuse, especially where such character had no connection with the assault, is very doubtful, although it has sometimes been permitted to prove his conduct and even his character as forming or constituting an inducement and a provocation to the assault.*" But it is generally held that the plaintiff's bad character and associa- tion with persons of ill-repute does not palliate an assault and battery or mitigate the damages." And no provocation that does not amount to a justification, can reduce the damages below actual compensation.'^ So, in an action for damages for an assault and battery, evi- dence of the general peaceable character of the defendant is not admissible in mitigation of damages, or to rebut the pre- sumption of malice; nor is it competent to show that state- ments made by the plaintiff at the time of the assault and connected with it, were false, and were known by the plaintiff to be false.'' But in Maryland, where an altercation grew out of a question of veracity between the parties, the defendant was allowed to show that the truth of the matter was with him, in mitigation of damages.'* 9Keyes v. Devlin, 3 E. D. S. (N. Y.), 518. '° Hill., on Torts, 185, Sec. 11; Rhodes v. Bunch, 3 McC, 66; McKinziev. AUen. 3 Strobh, 546. " Bruce v. Priest, 5 Allen (Mass.), 100. " Birchard v. Booth, 4 Wis., 67. '3 Thrall v. Knapp, 17 la., 468. See, also, Butt v. Gould, 34 Ind., 552. '4 Markes v. MiUer, 9 Md., 338; Quinton v. Van Tuyl, 30 la., 554. The defendant may show that immediately preceding the assault the plaintiff accused him of a crime, but the plaintiff cannot be permitted to show that the charge was true. Bartram v. Stone, 31 Conn., 159. 474 THE LAW OF DAMAGES. Defendant may Show Circumstances— Res gestae. § 604. Defendant 31ay Show Circumstances— Res gest.TB. — In an action for damages for an assault and battery, all circumstances which immediately accompany and give character to the transaction, are a part of the res gestoSy and are material in mitigation or aggravation of damages. '' Thus, if the plaintiff himself provokes the assault complained of, by words or acts so recent as to constitute part of the res gestce; or if the injury was an arrest without a warrant, and the plaintiff was shown to have been justly suspected of felony; or in an action for seduction, if it appear that the crime was facilitated by the improper conduct or connivance of the hus- band, or father; these circumstances may well be considered as reducing the real amount of the plaintiff's claim for dam- ages."'" And it is competent to show in mitigation of damages, pro- voking and insulting language, where the provocation was so recent as to reasonably induce the presumption that the act was committed under the immediate influence of the passion thus wrongfully excited, though such language constitutes no defense to the actual damages sustained.'" And remarks made during and immediately after the assault, and relating to it, are a part of the res gestae ^ And, where a military order was issued for the arrest of a certain supposed disloyal person, alleged to be connected with an organization for the assassination of some government officers; it was held, that although it did not excuse or justify the arrest, still in an action for false imprisonment therefor, it would be a matter to palliate the act and mitigate the dam- 's 2 Greenlf. Ev., § 267; Lee v. Woolsey, 19 Johns., 319; Fraser v. Berkley, 7 Car. & P., 621; Avery v. Ray, 1 Mass., 12; Simpson v. McCaffrey, 13 Ohio, 508. 'fi ThraU v. Knapp, 17 la., 468; Ireland v. EUiott, 5 Id., 478. '7 Shirley v. Billings, 8 Bush. (Ky.), 147. And it is competent to show violence by another, who is not a party to the action, where there are cir- cumstances tending to show that such person was co-operating with the plaintiff. Millen v. Sweitzer, 22 Mich., 391. TORTS— I]N'JUKIES TO PERSON. 475 Whether Acts Done or Words Uttered are Part of the Res gestae. ages.'' So, to entitle a partj to exemplary damages, it must appear that the wrong of which the plaintiff complains was done with an evil intent, or from bad motives; and where it appeared that an arrest was made by the defendants in the performance of what they supposed to be their duty as public officers, with good motives and without malice, it was held, that only compensatory damages should be given/" ISTo words of provocation will constitute a defense, though they may be grounds for the reduction of damages. The question on this point, generally is, whether the blood had time to cool, and whether the provocation and assault formed parts of one transaction.^' But, where the defense was that the plain- tiff committed the first assault, and that the defendant acted in self-defense, evidence of previous difficulties between the jjarties, and threats by the plaintiff, is admissible, as tending to show who was the ag-o^ressor.^^ § 605. Whether the Acts Done or Words Uttered are a Part of the Res gestae.— The question as to whether acts done or words uttered are part of the res gestae^ and provable in mitigation of damages, is frequently an important one. Great allowance is made for the weakness and imperfec- tion of human nature; and if such acts are done and words uttered recently previous to the assault, or are a part of a series of insults and irritating provocations, these circum- stances are proper for the jury to consider, in order to determine whether the defendant was wholly influenced by malice, or whether he was not influenced by heat and passion, '9 Carpenter v. Parker et al., 23 la., 450. See, also, Klein v. Thompson, 19 Ohio St., 569. ^ McCall V. McDoweU, 1 Abb. (U. S.), 212 (1867). See, also, Plummer v. Harbut, 5 la., 308. =" Avery v. Ray, 1 Mass., 12; Barry v. Ingles, 1 Tay. (N. C), 72; Lee v. Woolsey, 19 Johns., 519; WilHs v. Forest, 2 Duer., 310; Collins v. Todd, 17 Miss., 537; Burchard v. Booth, 4 Wis., 67; Coming v. Corning, 1 Seld., 97. " Murphy v. Dart, 42 How. Pr. (N. Y.), 31. 476 THE LAW OF DAMAGES. Where Acts Done oi- Words Uttered are Part of the Kes gestSE. produced by the fault of the plaintiff, and to show how much of the defendant's damage was the result of the provocation thus given. Tlius, it is held, that although acts done and words spoken long before the assault occurred, are generally inadmis- sible for the purpose of showing provocation and of mitigating the damages, yet where such acts or words are a portion of a series of 2:)rovocations frequently repeated and continued down to the time of the assault, they may be shown in mitigation." § 006. And in Kew York, it was recently held in an action for an assault and battery, that where the defendant offered to ])rove in mitigation of damages a series of provocations, relocated and continued from day to day, and that every time the parties met the plaintiff undertook to insult the defendant with opprobrious language, and to such an extent as to render him wild, excited, frantic, and partially insane; and that the plaintiff had committed a most grievous injury affecting the domestic relations of the defendant, which was one of the insults with which the latter was taunted; and this evidence was overruled on the trial, and the defendant was only per- mitted to show what took place on the day of the assault or the day before, but not the other matters referred to, it was held on appeal, that the ruling was erroneous and a new trial was granted. The court further held in reference to the matter offered in mitigation, that each case should be controlled by its own peculiar circumstances; that the question was not how many hours have elapsed since the provocation was given, but whether in view of the circumstances of the case, the party who made the assault, had a reasonable time to cool his blood; that if it was the plaintiff's design to provoke, excite, irritate, and insult the defendant, on every occasion of their meeting, ^3 SteUar v. NeUis, 60 Barb. (N. Y.), 525 (1871); 42 How. Pr., 163. But the jury cannot consider a charge of false swearing, made by the defendant, in aggravation of damages. Pulver v. Harris, 61 Barb. (N. Y.), 78. TOKTS-mJUEIES TO PERSOl^. 477 Character-Knowledge of may Mitigate. and by a series of such annoying and irritating provocations, he kept the defendant in an excited and frantic state of mmd, it was his own fanlt that the defendant was not cooL In such a case the jury ought to be permitted to hear the nature and extent of the provocation; to hear and know how much of the beating complained of was, if not deserved, at least excused by provocation given.'' But where the plaintiff had wrongfully entered the house of the defendant's father, and was leaving it at the time the defendant made an assault upon him; it was held, that the defendant could not show in mitigation of damages the bad reputation of the plaintiff, and that he was accompanied by a disreputable paramour; although the plaintiff expressly claimed damages on the ground of indignity; and an injury to his character." But the conduct and character of the plain- tiff should perhaps be permitted to be shown, where they con- stitute the cause, and the provocation to the particular injury, for the purpose of reducing compensatory as well as exem- plary damages." § 607. Character— Knowledge of may Mitigate — Although the general bad character of the plaintiff cannot generally be shown in extenuation or excuse of an assault and batterv, or in mitigation of damages, yet as the degree of force which'the party assaulted may use in repelling the assault may depend upon the known character of the assailant, whether peaceable or quarrelsome; it may sometimes be material to show this character in mitigation of damages, as it might tend to show a want of malice. The plaintiff in such a case can recover only for the damages resulting from the excess of force, used bv the defendant, beyond what was necessary to defend against the wrongfu l, acts of the plaintiff, as on a plea of son =4 Dolan V. Fagan, 63 Barb. (N. Y.), 73 (1872). »5 Bruce v. Priest. 5 Allen, 100. =6 Moreley & W. v. Dunbar, 24 Wis., 183. 478 THE LAW OF DAMAGES. Pecuniary Circumstances. assault demesne; and the amount of force a party could reasonably use, might depend uj)on the plaintiff's general character." § 608. And the same principle would be applicable to the measure of damages for defending against a trespass to prop- erty, as on a plea of molliter jnamis imposuit, or of defend- ing persons standing in near relations of affinity or consan- guinity to the defendant; as in the defense of a wife or child, father or mother; and declarations made by the injured party during the affray tending to show the extent of his injuries are a part of the res gestce?^ Where the acts and declarations of the plaintiff, which the defendant pleads in mitigation of damages, occurred some time previous to the assault, and have no direct connection with it, they are not admissible to show an intention of wan- ton violence on the part of the plaintiff at the time of the assault.'* § G09. Pecuniary Circumstfances.— Same controversy exists in reference to the right to show the pecuniary condition of the parties in mitigation or aggravation of damages. In Iowa, it is held that, even in an action in which exemplary damages are properly allowable, evidence of the financial ability and standing of the defendant is not admissible in aggravation of damages.'" And in Hunt v. The C. <& H. W. R. R. Co., Wright, J., delivering the opinion, remarks: "While some of the cases have held that the pecuniary condi- ^ Harrison v. Harrison, 43 Vt., 417. ^ Green v. BedeU, 48 N. H., 546 (1869). See, also, Kline v. Thompson, 19 Ohio St., 569; Steele v. Rawles, 65 N. H., a34; Ogden v. Clayeomb, 52 HI., 365; Adams v. Wagoner, 33 Ind., 531 (1870); Blake v. Daman, 103 Mass., 199, (1869); Knukle v. State, 32 Ind., 220. In the case of Adams v. Wagoner, above cited, it -was held, that in case of an agreement to fight, and an injury resulting to the plaintiff thereby, the defendant could not show that the injury complained of, was done in the heat of passion during such fight, and without previous maKce. ^ Castner v. Sliker, 33 N. J. (4 Vr.), 95. 3° Guengerich v. Smith, 34 la., 348. Beck, C. J., dissenting. TOETS— INJURIES TO PERSON. 479 Pecuniary Circumstances. tion of a defendant may be shown when the plaintiff is entitled to vindictive damages, or in cases of malicious torts; jet it is believed that the weight of authority is the other way."" The learned judge further remarks: " Aside from the excep- tional cases of slander and breach of promise of marriage, courts should hesitate long before receiving such evidence or allowing the jury to take into consideration the pecuniary ability, even under circumstances of aggravation, insult or cruelty, or vindictiveness and malice."'"^ But in the dissenting opinion of GuengeHcTi v. Smith, supra, which was an action for damages for assault and battery, Beck, C. J., remarks: " In my opinion the evidence as to the financial ability of defendant was properly admitted, and the instruction upon that subject is correct. That' the case is one in which exem- plary or punitive damages may be properly allowed is not questioned. The law permits such damages to be recovered for the correction or punishment of the defendant and as for an example to the community. Now it is plain that a verdict of a few dollars which would operate as a punishment if assessed against a poor man, would utterly fail to have that effect upon a man of wealth. Yerdicts for punitive damages ought therefore to be graduated according to the ability of the defendant to pay."" But the plaintiff may show the nature of his business and the value of his services in conducting it, as a ground of estimating damages. And this on the ground that an injury received of a permanent character may incapacitate a man from performing certain kinds of labor, and not others. Thus the loss of an arm might incapacitate a mechanic for labor 31 1 Hill, on Torts, 405, notes 3 and 4; Sedg. on Dam., 640, note 1; Knif- fen V. McConnell, 30 N. Y., 285. 3= Hunt V. The C. & N. W. R. R. Co., 26 la., 364. See, also, Baldwin v. Western R. Co., 4 Gray, (Mass.), 334; 2 Gr. on Ev., § 269. 33 See, also, in support of this doctiine in an action for defamation, Buckly V. Knapp, 48 Mo., 152; and ^^os^, § 695; Kamey v. Paisley, 13 la., 89; Bel- knap V. Boston, etc., R. R. Co., 49 N. H., 358. 480 THE LAW OF DAMAGES. Aggravating Circumstances. while a bookkeeper could perhaps still use his pen and perform the labor of his vocation." § 611. Aggravating Circumstances — Conduct — Threats. — In a case where the conduct complained of, was that the plaintiff was found on the defendant's land picking berries, it was held, that it was not error to refuse an instruc- tion, (though correct in the abstract,) that the malicious con- duct of the assailed, at the time of the assault, provoking the injury, might be considered for the purpose of reducing not only punitive but also compensatory damages.''* And, although former threats or insults will not palliate an assault when they are not a part of the res gestm^ yet if the injury be done in attempting to prevent the execution of such threats, the fact may be shown in mitigation of damages.'" § 612. We have already, in treating of the elements of damages, considered the subject of aggravation and mitiga- tion, in connection with personal injuri'es, as well as the duty of the injured party to use reasonable means to prevent inju- rious consequences." Where there is an injury to the person of another, which with ordinary care could not have been avoided by the injured party, the law gives a remedy in dam- ages; and in an action for assault and battery, where the act is willfully and maliciously done, the law will not only com- pensate the injured party for his actual loss, but give punitive or exemplary damages; but where the act was hot willfully done, these damages are not allowed; and it has been held, 34 Hunt V. Chicago & N. W. R. R. Co., 26 la., 363; Cochran v. Ammon, 16 m., 316; Lincoln v. Saratoga, etc., R. Co., 23 Wend., 425. See, also, Baldwin v. West., etc., R. Co., 4 Gray, (Mass.), 334. ssMorely v. Dunbar. 24 Wis., 183. See, also, McConaughy v. McMuUen, 27 Wis., 93; State v. Martin, 30 Wis., 216. 36 Waters v. Brown, 3 Marsh., 559. See, also, Sledge v. Pope, 2 Hayw. (N. C). 402; Ogletree v. State. 28 Ala., 693; Morris v. Moses, 28 N. H., 95; McMastersv. Cohen, 5 Ind., 174. 37 See, ante, Chaps. 6, 7, and 8. TOKTS— INJUKIES TO PERSON. 481 Aggravation Owing to Intemperance -Permanent Injury. that even mental suffering forms no proper element of dam- ao-es in sncli cases/' But on this point, as we have seen, there is a diversity of decisions/' § 613. Aggravation Owing to Intemperance — The person guilty of a willful assault and battery cannot be permitted to show in mitigation of damages that the injury was more aggravated by reason of the intemperate habits of the plaintiff, than it would have been if his habits^ had been temperate." §614. Permanent Injury.— It should be observed that damages in case of assault and battery, although generally limite'd to the injury at or before the commencement of the suit, or to the time of trial, yet, it frequently occurs that in determining the present injury, matters of a prospective char- acter must also be considered; and particularly where the injury is of a permanent character, damages for the future injury should be allowed. Thus, where the claim was for breaking a leg, it was held proper to show the probable future condition of the limb, but not the consequences of a hypo- thetical second fracture." In such a case, it is proper also to consider diminished capacity to work at the plaintiff's trade, 38 Flemington V. Smithers, 2 C. & P., 292; Lynch v. Knight, H. L. C, 577- Finney v. Railroad Co., 10 Wis., 383; McKinley v. Chic. & N. W. R. Co. '(Sup. Ct. Iowa, Dec. T., 1875), West. Jur., Vol. 10, 209. And m some cases damages have been limited to the mental suffering from actual physi- cal injury "Cannmg v. Inhabitants of WilUamstown, 1 Gush., 431 ; Johnson V. Wells, Fargo & Co., 6 Nev., 224. We have referred to the diversity of decisions on the question, whether a fine or punishment imposed after a criminal prosecution and conviction for the same transaction, could be shown in mitigation of damages. See, ante, § 86, et seq., and §122. It would appear proper to show this in mitigation of exemplary damages. Smithwith . V. Ward, 7 Jones (N. C. L.), 64. But, see Reed v. Kelley, 4 Bibb (Ky.), 400. 39 See, ante, § 73, et seq., and § 600 and note, and post, § 61o. 40 Littlehale v. Dix, 11 Cush., 364; Wheat v. Lowe, 7 Ala., 311. 4' Lincoln v. Saratoga R. Co., 23 Wend., 425. See, also, Johnson v. Perry, 2 Humph., 572; Curtiss v. Rochester & S. R. R. Co., 20 Barb., 282. 31 482 THE LAW OF DAMAGES. Summary. arising from the injury." This doctrine was held in an action against a municipal corporation, for personal injuries arising from a failure to keep its streets in repair. The jury was instructed that if they found the injury of a permanent char- acter, they should consider that fact as an element in enlianc- ing the damages, and this was held correct." § 015. Summary. — As a summary of the elements of damages in such cases it may bo remarked: 1. That in all cases of simple trespass, where no elements of outrage or malice enter into the commission of the otfcnse, only compen- satory damages should be allowed, or such as will compensate the party for actual injuries, including loss of time, medical and other expenses, physical pain and mental anguish; as these are fairly and reasonably the plain consequences of the injury.^° ** Donnall v. Sanford, 11 La. An.. 645. See. also, Fil(?r v. The N. Y. C. R. R. Co., 49 N. Y., 42; Toledo, Wab. & West. R. R. Co. v. Baddely, 54 111., 19; Frink v. Schroyer. 18 111., 416; Slater v. Rink, 18 111., 527; Passen- ger R. Co. V. Donahoe, 70 Pa. St., 119; Kansas Pacific R. R. Co. v. Pointer, 9 Kans., 620; City of Chicago v. Longlass, 52 111., 2-56; Fair v. Lond. & N. W. R. R. Co., 21 L. T. (N. &.), 326; Holyoke v. Railway, 48 N. H., 541; Wies- enburgh v. City of Appleton, 26 Wis., 56. *s Collins V. The City of Council Bluffs, .32 la., 324. See, also, the same doctrine applied in actions for the negligence of common carriers. Holbrook V. The Utica & S. R. Co., 2 Kern.. 236; Steamer New World v. King, 16 How., 472; Russ v. The Steamboat War Eagle, 14 la., 363; Filer v. The N. Y. Cent. R. R. Co., 49 N. Y., 42 (1872); Walker v. Erie R. R. Co., 63 Barb., N. Y., 260 (1872); Johnson v. WeUs, Fargo & Co., 6 Nev., 224. And in an action by a master, for loss of service of an apprentice disabled by the defendant, it was held, the jury might allow for such loss down to the time the disability may be expected to continue. HodsoU v. Stallebrass, 11 A. & E., 301; 3 P. & D., 200; 9 C. P., 63. See, also, Britton v. S. W. R. Co., 27 L. J. Exch., 3.55. "« Peoi-ia Bridge Assn. v. Loomis, 20 111., 235; Hunt v. Hoyt, Id., 544; The Inhabitants of Elsworth, 32 Me., 271; Morse v. The Auburn & Syracuse R. R. Co., 10 Barb. (N. Y.), 621; Rawson v. N. Y. & Erie R. R. Co., 15 N. Y., 415; Keys v. Devlin, BE. D. S. (N. Y.), 518; West v. Forest, 22 Mo., 344; Bannon v. Bait. & 0. R. R. Co., 24 Md., 108; Seger v. Bark- hamsted, 22 Conn., 290; Lawrence v. Housatonic R. Co., 29 Conn., 390; Fairchilds v. Cal. Stage Co., 13 Cal., 599; Johnson v. Wells, Fargo & Co., 5 TORTS— INJUEIES TO PERSON. 483 Complete Defense. 2. That where elements of outrage, oppression, or malice, enter into the commission of the offense, exemplary or puni- tive damages may be allowed ; and the jury are not limited to actual compensation, but, '' blending together the rights of the injured party and the interests of the community, they may give such a verdict as will compensate for the injury received, and at the same time inflict some punishment upon the defendant for his wrongful act."" 3. That where the injury is of a permanent character, the jury may consider that fact in assessing damages, and the probable future disability of the injured party, and his dimin- ished capacity for future work in his business or trade, owing to the injury." §616. Complete Defense- — It may also be proper to state that in this action, certain facts constitute a complete defense to the claim for damages, and where either of these facts are shown no recovery can be had. These are as follows: 1. "Where the injury was done in self-defense. 2. Where it was done to prevent a breach of the peace, suppress a riot, or to prevent the commission of a felony. 3. Where it was done in the reasonable defense of one's house, lands or goods. Nev., 224; Penn. Canal Co. v. Graham. 63 Pa. St., 290; Smith v. Holcomb, 99 Mass., 552; Holyoke v. Grand Trank R. R. Co., 48 N. H., 541, Stockton V. Fry, 4 GiU. (Md.). 406; Mathewson v. N. Y. C. R. Co., 62 Barb., 364; Smith v. Overby, 30 Geo., 241; Cox v. Vanderkleed, 21 Ind., 164; Gould V. Christianson. 1 B. & H., 507; McGrewv. Stone, 53 Pa. St., 436; Sharp V. PoweU, 7 C. P., 250. <7 Hendricks v. Kingsberry, 21 la., 379.' Sedg. on Dam,, 39. *« See, atite, § 614. Also, City of Ripon v. Bittel, 30 Wis., 614; Nebraska City V. Campbell. 2 Black, 590; Ballow v. Famum, 11 AUen, 73; Caldwell v. Murphy, 1 Duer., 233; Affirmed, 1 Kem, 416; Kinny v. Crocker, 18 Wis., 74; Hanover R. R. Co. v. Coyle, 55 Penn., 396; Aaron v. Sec. Ave. R. Co., 2 Daily. (N. Y.), 127; Aldrich v. Pahner, 24 Cal., 513; Wheaton v. North Beach & Mission R. Co., 36 Cal., 590; 111. Cent. R. R. Co. v. Barron, 5 Wal- lace (U. S.), 90; Page v. Mitchell, 13 Mich., 63; Josslyn v. McAlister, 22 Mich., 300. 484 THE LAW OF DAMAGES. Injury by Infants and Non Compotes. 4. Where it was done necessarily in the execution of legal process. 5. Where it was done in the reasonable defense of one's wife, husband, parent, child, master or servant. But in such cases, if the defendant uses more force, or inflicts more injury than necessary, he is liable for the injury, in excess of what was required for the purpose. "But in these cases," remarks Prof. Greenleaf, "as we have seen in others, no more force is to be used than is necessary to prevent the violence impend- ing nor is any force to be applied in defense of the possession of property, until the trespasser has been warned to desist, or requested to depart, except in the case of a violent entry or taking by a trespasser, or the like; for otherwise the party interfering to prevent wrong, will himself be guilty of an assault."" § 617. Injury by Infants and Non Compotes.— Some controversy has arisen in reference to the liability of infants and persons of unsound mind, for their torts. On the one hand it is asserted as a common law doctrine that an infant or lunatic is liable for all actual damages for injuries inflicted to the same extent as adults and those of sound mind. It has been considered a matter of obvious justice that where one person, however innocentl}', causes an injury and loss to another, without any fault of the injured party, the former should be held to indemnify the latter for the loss sustained.'" « 2 Greenlf. on Ev. § 95, and cases cited in note. 5°Burnard v. Haggis, 14 C. B. (N. S.),45; Weaver v. Ward, Hobart, 134; Penrose v. Curren, 3 Rawle, 351; Bessey v. Oliott, T. Ray., 467; Sutton v. Clark, 6 Taunt., 44; FiUiter v. Phippard, 11 A. & E., (N. S.), 347; Bullock V. Babcock, 3 Wend., 391; Hatfield v. Roper, 21 Wend., 615; Morse v. Crawford, 17 Vfc., 499; Williams v. Cameron, 26 Barb., 172; Conklin v. Thompson, 29 Barb., 218. In a recent able article by Timothy Brown, Esq., of the Iowa Bar, pub- lished in The Southern Law Review, he maintains, that lunatics and insane persons are not liable for their torts. He says: " Torts are of two classes — intentional and willful injuries to the person, property, or character of TOKTS— INJURIES TO PERSON. 485 Injui-y by Infants and Non Compotes. And in reference to the tortious negligence of such persons it has been said: "Infants and persons of unsound mind are liable for injuries caused by their tortious negligence, and so another, or those injuries arising^ from want of care. Willful or intentional wrong can only exist where there is a mind to act. Without mind to act, no intent can be formed. Hence, in slander and libel no action will lie against a person who is insane. In Homer v. Marshall, 5 Mun., 466, where a judgment was rendered against the defendant, it was perpetually enjomed upon the ground that the defendant was insane at the time of speaking the words and the rendition of the judgment, in reference to the subject of the slander. It is held, that insanity at the time of the speaking of the words or publisliing the libel, is a competent defense. Bryant v. Jackson, 6 Humph., 199; Yates v. Reed, 4 Blackf., 463; Dickinson v. Barber, 9 Mass., 225; City of London v. Vanacker, Carthew, 483; Towusend on Slander and Libel, 439. Coke said, a madman is only punished by his madness. Sedgwick, in his work on Damages, in referring to the cases of Kroom v. Schoonmaker, Morse v. Crawford, and Bush v. Pettibone, says: 'In case of the compos mentis, although the intent be not decisive, still the act punished is that of a party competent to forsee and guard against the consequences of liis conduct; and inevitable accident has always been held an excuse. In case of the lunatic, it may be urged, both that no good policy requires the interposition of the law, and that the act belongs to the class of cases which may be termed inevitable accidents.' Sedg. on Dam., 6th ed., 555; Marg., p. 455, 456. Negligence in civil actions may be defined as an inadvertent act or omis- sion in a responsible human being, while engaged in a lawful employment, that produces as a natural result damage to another, which might have been avoided by the use of ordinary care. A person who is clearly insane, or an idiot, or a child of very tender years, is not a cause of injury, but a condi- tion. He belongs to those natural forces which, like weapons of wood, stone or iron, are incapable of moral choice, but act only as they are employed or impelled. They cannot be a judicial cause, but may be used in producing the effect when controlled or made to act by another. See Wharton on Negligence, §§87, 88, 306, 307, 309, 310; Bartonshill Coal Co. v. Reed, 3 Macq., 266; Bartonshill Coal Co. v. McGuire, Id., 300; Grizzle v. Frost, 3 F. & F., 623; Coombs v. New Bedford Cordage Co., 102 Mass., 572; Chicago & Alton R. R. v. Gregory, 58 m., 226. ****** In Railroad V. Gladman, 15 Wall., 401, Carter, C. J., charged the jury relative to the contributory negligence of a child as follows: ' You have got to adopt one of two rules here: either to judge this child's conduct under the measure of his years and the measure of his discretion, or pronounce that no action lies in behalf of a cliild, or demand of the child a measure of judgment that nature has not given him, which would be a greater outrage on good logic than to pronounce he had no remedy. * * * The degree 486 THE LAW OF DAMAGES. Injury by Infants and Non Compotes. far as their responsibility is concerned, they are held to the same degree of care and diligence as persons of sound mind and of full age. This is necessary because otherwise there of accountability varies with the age and capacity of individuals, until you get to a point where he or she is utterly disqualified from protecting him or herself.' The judgment for the plaintiff was affirmed. In LjTich V. Nurchn, 1 Adolphus & ElUs (N. S.), 29, the child was a direct trespasser, yet recovered for negligence of the owner of the cart, left stand- ing with the horse unhitched in the street. The cliild got into the cart, and the horse ran away and injured the child. See, also, Birge v. Gardner, 19 Conn., 507; Daley v. Railroad Co., 26 Id., 59; Railroad Co. v. Stout, 17 Wall., 657; Chicago & C. R. R. Co. v. Gregory, 58 111., 226. In this case the court says : ' We cannot impute negligence to a child of such tender years (not quite five years old), and especially to one of less than ordinary capacity.' See, further. City v. Ruby. 8 Minn., 169; Cahill v. Eastman, 18 Minn., 324; Bronson v. Southberry, 57 Conn., 199; Boland v. Miss. R. R., 36 Mo., 490; Robinson v. Cone, 22 Vt., 213; Belfontaine & I. R. R. v. Snyder, 18 Ohio St., 399; North Pa. R. R. Co. v. Mahony, 31 Penn. St., 187. See Ranch v. Lloyd, 31 Penn. St., 358. These cases overrule the case of Hart- field V. Roper, supra, and other cases, first referred to, and seem to hold with better reason, that the child may i-ecover against one who has negli- gently injured it, and the negligence of parents or guardians is not imputa- ble to it where the action is by the child; otherwise, where the parent sues for loss of service. Now, under the above decisions we believe the modern doctrine is, that the child is required to exercise what capacity it has to avoid danger, which would be that capacity ordinarily exercised by children of its age. But if the child possessed less capacity, it may be shown. Chicago and C. R. R. v. Gregory, supra. But the defendant, unless he had knowledge of the mental defect, would have a right to treat it as possessing ordinary apparent capac- ity. Schierhold v. N. B. & M. R. R., 40 Cal., 447; 111. Cen. R. R. Co. v. Buckner, 28 111. 299. So a blind or deaf person must use ordinary care to protect himself as against his own defects. See, last case cited above. The parents may and would be liable for injuries done by the child; as, if they permitted a child to enter a room with a hammer where there was a mirror within reach likely to attract attention. All liabiUty for torts rests upon the basis that the party charged has done a wrongful or culpable act; either intentional wrong, or the failure of him- self or agent to use ordinary care. Ordinary care is measured by the intel- lect the actor possesses or is presumed to possess. The person who is non comiws mentis should not be made civilly responsible for failui-e to exercise a power he does not possess. The great principle on which all law rests is, that it commands that which is right and forbids that which is wrong. This presupposes a knowledge of right and wi'ong. Want (jf knowledge and TORTS-mJURIES TO PERSON. 4ST Injury by Infants and Non Compotes. would be no redress for injuries committed by such persons and the anomaly might be witnessed of a child having abund- ant wealth depriving another of his property without compen- sation."" But inevitable accident or casualties occurring of the power to acquire it is a defense for the failure to apply it. The law does not require impossible thinprs. Insanity is an act of God. Why should the estate of the madman be chargeable for the acts he cannot prevent? God caused liis insanity as much as the tempest or earthquake. The act of God is always an excuse. The principle that he who injures another must respond in damages for the injuiy, is believed not to be sound where the actor is not in fault, as shown by modem authorities. The chUd is only responsible for the exercise of the judgment it has. Hence, tho-e who have no reason to exercise, have no liability." 1 South. L. Rev. (N. S.), 346. See, also, on the subject of contributory negUgence of a child, ante, § 192, et seq. 5' Shear. & Red. on Neg., § 557. See, also. Bush v. Pettibone, 4 Coms. (N. Y.), 300. "Such persons are held civilly for trespasses and torts, as the actionable qualities of such acts, do not depend upon intention." Dillon, J., in Behrens v. McKinzie, 23 la., 343; Morse v. Crawford, supra. "Torts under the French law," is the subject of an interesting article in Vol. 8, No. 3, (April 1874, ) of the American Law Review, in which the author gives us a statement of the French Law of torts as he finds it in a recent treatise, entitled: Traife General de la Responsabilite ou de V Action en Dommages-intirHs en dehores des Contracts. Par M. A. Sourdat, Docteur en Droit, Conseil- ler k la Cour d'Appel d' Amiens (1872). He observes: " This is a treatise upon the subject of torts as it exists in the French law. By the Enghsh common law procedure act (15 and 16 Vic, Chap. 70,) a tort is described as ' a wrong independent of contract.' This book, as its title imports, treats of wrongs independent of contract. It may not be uninteresting to see how this very important subject is dealt with in another system of jurisprudence. The principle of civil responsibiUty for wrongs is expressed, in a general manner, in Art. 1382 of the Code Napoleon: 'Every act whatever of a man which causes damage to another obliges him by whose fault it has hap- pened to repair it.' This book is a development of that article. The author says of it, there is no principle of law which is more prolific of consequences, of more frequent occurrence in practice, more simple in appearance, and more difficult of application than this. By the English law, an insane person, and probably a minor below the age of discernment of right and wrong, though they are not criminally liable, are at least under many circumstances civilly responsible for the damage they may do , as a person of sound mmd or an adult would be under the same 488 THE LAW OF DAMAGES. Injury by Infants and Non Compotes. without any fault, have generally been held an excuse, for an injury resulting in loss, whether the party through which it circumstances. (Barnard v. Haorgis, 32 Law, J. C. P., 189; Bristow v. East- man, 1 Esp., 172.) But by the French law, as the principle of responsibility, civil as well as criminal, implies a fault imputable to the doer of the harm- ful act, the insane and minors under the age of discernment are freed from aU responsibility, civil as well as criminal. In this the author says there is no injustice. Although the one who causes the damage is rich, he is not obliged to indemnify the sufferer who may be poor; for it is a case of acci- dent, as much as if a tile should fall fronj a roof and kill a person beneath. Upon the subject of infancy a distinction is made, which has no place iu the English law. If a minor is below the age of sixteen, but capable of act- ing with discernment, yet as the liability in every case depends not only upon the amount of damage done, but also upon the blame attachable to the per- son doing the damage, and as an act done by an infant is less blamable than one done by an adult, the fact of his nonage is allowed its influence in deter- mining the amount of the judgment. The fact that one is under guardian- ship as a spendtlirift does not necessarily discharge him from liability. Although such a spendthrift has not the enturety of his faculties, the faculty which liis status shows to be wanting is the faculty of caring for his pecuni- aiy interests. His moral sense, his conscience, and his %vill, are not necessa- rily impaired. His accountability or non-accountability is therefore a ques- tion of fact. Drunkenness, voluntarily produced, is, however, no excuse for a wrong. A third person, by paying for the damage done, can discharge the liability of the wrong-doer, even against the will of the party wronged. The legal restraint under which the press labors, and the temptation which exists to break through that restraint, is shown in this connection. In matters of libel by the press it is a violation of law to publicly advertise for subscriptions to pay the costs, fines, and damages which have been incurred by a libelous pubhcation; but a subscription made for such a purpose is not in itself illegal. There is much to be said against and for a method of trial which is allowed in criminal cases. When one is injured by an act wliich is criminally pun- ishable, he can unite his private cause of action with the proceedings of the pubhc prosecution. Thus the whole matter, with its criminal and its civil side, may be determined at once, and punishment for the crime and repara- tion for the damage caused may be awarded in the same proceedings. Wliile the rules of liability appear to be in general the same, or, when different, even more strict in favor of the defendant than the rules of the English law, stUl a plaintiff is allowed to ground his action upon an injury which is never directly, and scarcely ever incidentally, protected by our law. To maintain an action the interest must be direct, and the right must be an actual right. But the interest need not be a material or a pecuniary one; a moral interest will suffice. Damages can be recovered by a son for the death TORTS— IXJUEIES TO PEESON. 489 Injury by Infants and Non Compotes. occurred was an adult and of sound mind, or an infant or a person of unsound mind.°^ of his father, and by a woman for the death of her husband or child. Some- times a material interest may be joined with a moral one; the father being the support of the family, or the son the support of his mother. But if the death was that of an infant, or of an old man whose feebleness and infirmity rendered him a burden instead of a support, an action could still be main- tained. The author says: ' If such action could not be maintained, follow out the reasoning to its consequences, it goes to the length of asserting that, instead of domg the son or the mother an injury by the death, the wrong-doer has rendered them a service. Such reasoning would be to mis- take the morale of the law; to put money against the aflPections of the heart. He who brings an action under such circumstances, according to the beauti- ful expression of the Roman law, causam agit doloris. It is sometimes the duty of a son or of a widow in such a case to join a private action with the public prosecution, either for the purpose of giving aid to the pubUc prose- cutor, or to stimulate his inactivity and want of zeal. The widow, the son, the mother, has a right to compensation for the wrong suffered in the social relation. It is said that money cannot pay for grief; but the amount recov- ered is not to be regarded so much as a making whole of the party injured, as it is a filling out of the satisfaction demanded from the culpable person. The appUcation of the punishment suflBces for the vindication of the pubhc; but one hurt in his feehngs, in his reputation, has a right to a private com- pensation. That compensation is given in money, for want of power to give a better one.' '' 5^ Parrott v. Wells. 15 WaU., 524; Dixon v. BeU, 5 M. & S., 198; Brown V. CoUins, 53 N. H., 442; Bissel v. Baker, 19 Ark., 303. See, also, author- ities above cited. And in no case can such persons be held for exemplary damages. See ante, § 75. 490 THE LAW OF DAMAGES. The Common Law Doctrine. OHAPTEE XXL DAMAGES FOR INJURIES RESULTING IN DEATH. Section 626. The Common Law Doctrine. 627. English Legislation on the Subject. 628. The New York Statute. 629. Statutes of Various States-Similarity of. 630. Damages Actual and Pecuniary— Not Exemplary— Nothing Allowed for Physical or Mental Suffering. 631. Damages Frequently Limited by Statutes— Construction of, when not. 632. "What it is Competent to Show— Expectation of Life. 634. Instances. 636. Legal Eight to Benefit from the Life not Essential— Pre- sumptions. 637. Value of an Annuity— Carlisle Tables. 638. Statutes Have no Extra-Territorial Operation. 639. "Widow— Children— "Wealth of the Defendant. 640. Death of a Child— Limitation. 641. In Pari Delicto. 642. Damages in Other and Special Cases Resulting in Death. 643. Distinction Between Injuries to the Person of Deceased and Injuries to Others from the Death— Death Instanta- neous or Otherwise. 645. The Statutes of Iowa— Exemplary Damages under. 647. California Statute— Exemplary Damages under. 648. The Effect of a Policy on the Life of the Deceased. 649. "Who Entitled to Recover. 650. Conclusions. § 626. The Common Law Doctrine.— The life of a human being must ordinarily be considered a precious boon INJUEIES EESULTING m DEATH. 491 The Common Law Doctrine. to himself and others; but, notwithstanding this, at common law, for certain technical reasons, no action could be main- tained for an injury resulting in the death of a person, or for losses sustained bj the death. Lord Ellenborough once remarked that, " the death of a human being cannot be com- plained of as an injury; " ' which, to the common understand- ing, appears strange and paradoxical. The absurdity of this doctrine was well set forth by Mr. Justice Cole, in a recent case, when he said: " At common law, if one person assaulted and beat another, the person assaulted and beaten might have his action and recover damages therefor. But if the beating was so severe as to j^roduce death, then the wrongdoer was exempt from liability to damages in a civil action." * But in England and most of the states, it is provided by statute, that an action may be maintained by the personal representatives of the deceased, for the benefit of the widow and next of kin, or for the benefit of the estate of the deceased, for damages ' Lord Ellenborough in Baker v. Bolton, 1 Camp., 493. See, also, Carry V. Berkshire, etc., R. Co., 1 Cush., 475; Hyatt v. Adams, 16 Mich., 180; Edonv. Lexington, etc., R. Co., 14 B. Mon. (Ky.), 204 (1853); 1 Hill, on Torts, 83. '^ Shearman V. The Western Stage Co., 24 la., 543. See, also. Ford v. Monroe, 20 Wend., 210; Boston, etc., v. Dana, 1 Gray (Mass.), 83; Drew v. The Sixth Av. R. Co., 26 N. Y., 49; Donaldson v. Mississippi, etc., R. Co., 18 la., 280. The case of Baker v. Bolton, supra (1808), and the opinion of Lord Ellenborough therein, has recently been severely criticised by Judge DUlon, of the United States Circuit Court, as unsustained by reason, and incapable of vindication. He maintains that the doctrine it asserts is not " deeply rooted in the common law," and, '' that it ought not to be followed in a state where the subject is entirely open for settlement." He further remarks that ' " it would be ditFerent if the rule had been settled in England by a long course of decisions made prior to the settlement of this country, as in that event the courts here would find it less difficult to receive it." SulUvan v. Union Pacific R. Co., U. S. Circuit Ct., Dist. of Neb., Oct. Term, 1874; 1 Central Law Journal, 595. See, also, in support of those conclusions, Jones V. Perry, 2 Esp., 482; Cross v. Guthray, 2 Root (Conn.), 90; also, dis- cussions of the question, in 1 Central Law Journal, 590, 614, 622; 2 Id., 12, 47, 117, 165, 622, 723. 492 THE LAW OF DAMAGES. English Legislation on the Suhject. resulting from the death caused by the wrongful act of another. § 627. English Legislation on the Subject.— The earliest English legislation on the subject was in 1846, when by a statute known as " Lord Campbell's Act," the personal representatives of every person killed by the "wrongful act, neglect, or default " of another, and leaving a wife, husband, parent, or child, a right of action was given to recover for the damages sustained thereby. As this statute is substantially the same as those of many states of the Union that have since been adopted, we will be justified in setting out a copy of it. It is as follows: " Sec. 1, * * * Whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then in every such case, the person who would have been liable if death had not ensued, shall be liable to an action for damages notwithstanding the death shall have been caused under such circumstances as amount in law to a felony. " Sec. 2. Every such action shall be for the benefit of the wife, husband, parent and child, of the person whose death shall be so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury, resulting from such death, to the parties respectively for whose benefit such action shall be brought; and the amount so recovered, after deduct- ing the costs not recovered from tlie defendant, shall be divided amongst the before-mentioned parties, in such shares as the jury by their verdict shall find and direct." ' 3 9 and 10 Vict., Ch. 93, §§ 1, 2. INJUEIES RESULTING IN DEATH. 493 statutes of Various States. , § 628. The New York Statute.— The New York statute provides as follows: "Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." "Every such action shall be brought by and in the names of the personal representativ^es of the deceased person, and the amount recov- ered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the propor- tion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such, action the jury may give such damages as they shall deem fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person; provided that every such action shall be commenced within two years after the death of such j)erson."* §629. Statutes of Various States.— The statutes of many of the states of the Union,* do not differ materially 4 N. Y. Stat. 1847. Ch. 450, §§ 1. 2, as amended by Stat. 1849, Ch. 256, § 14; Edmond's Statutes at Large, 526. s Vermont. — "Whenever the death of a person shall hereafter be caused by the wrongful act, neglect or default of any person, either natural or arti- ficial, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to mairtain an action and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable to such action if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circum- 494 THE LAW OF DAMAGES. statutes of Various States. from the New York statute on tliis subject, except as to the amount which may be recovered, and the parties who may stances as shall amount in law to a felony." (Gen. Stat. Vt.. 1863, Ch. 52. § 15.) "Every such action shall be brought in the name of the personal representatives of such deceased person ; and the amount recovered in such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, who shall receive the same proportions as provided by law for the distribution of the personal estate of persons dying intestate." Id., §16. Neiv Jersei/.— "Whenever the death of a person shall be caused by wrongfid act, neglect or default and the act, neglect or default, is such as would, if death had not ensued, entitled the party injured to maintain an action and recover damages in respect thereof, then, in every such case, the pei-son who, or the corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony." "Every such action shall be brought by and in the names of the personal repre- sentatives of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such wadow and next of kin in the proportions provided by law in relation to the distribu- tion of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from such death to wife and next of kin of such deceased person; provided, that everj' such action shall be com- menced within twelve calendar months after the death of such deceased per- son." (Nixon's Dig. [1868,] p. 234, §§ 1. 2.) Not-th Carolina.—" Whenever the death of a person shaU be caused by the negligence or default of any railroad or steamboat company, or any steamboat or stage coach proprietor, in this state, and the neglect or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, then, and in everj' such case, the corporation which would have been liable if death had not ensued, shall be liable to an action for damages notwithstanding the death of the party injured. Whenever the death of a person shall be caused by the wi-ongful act of another person, and the wrongful act is such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, then, and in every such case, the person who would have been liable if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as amount in law to felony. Every such action shall be brought by and in the name of the personal representatives of the deceased, and the amount recov- ered shall be disposed of according to the statutes for the distribution of per- mJUEIES EESULTING IN DEATH. 495 statutes of Various States. recover, or for whose benefit suit may be brought. The appended note contains the provisions of the statutes of several sonal property in case of intestacy. And in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death." * * * -'Tlie amount recovered in every such action shall be for the exclusive and sole benefit of the widow and issue of the deceased, in all cases where they are surviving." (N. C. Rev. Code, 1855, p. 65, Ch. 1, §§ 8, 9, 10 11. Substantially the same provisions are contained in the Rev. of 1873. See Battle's Rev., p. 414, §§ 121. 122, 123.) Ohio. — ' ' Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would ( if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof; then, and in every such case, the per- son who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree or manslaughter." "Every such action shall be brought by and in the name of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, not exceeding five thousand dollars, with reference to the pecuniary injury result- ing from such death to the wife and next of kin of such deceased person ; proNided that every such action shall be commenced within two years after the death of such deceased person." (Ohio Rev. Stat. [Swan & Cr.,] 1860, p. 1139, Chap. 87, §§ 636, 637.) Illinois. — The statute of Illinois is a substantial copy of the Ohio statutes. (Rev. 1874. p. 582; 1 lU. Rev. St., 1858, p. 422, §§ 1, 2.) Michigan. — The statute of Michigan is also a substantial copy of the Ohio statute, except the limitation of damages to $5,000 dollars. (Compiled Laws [Dewey] 1872, p. 1881.) But if the injury is by a railroad the damages are limited. Id. pp. 771, 814. Mich. Rev. St. 1857, p. 1329, Ch. 515, §§ 1, 2.) Wisconsin. — Sec. 12 of the Wisconsin act is the same as § 636 of the Ohio statute, except the last clause in relation to the act amounting to murder or manslaughter. Section 13 provides: '" Every such action shall be brought by and m the name of the personal representatives of such deceased person; and the amount recovered shall belong and be paid over to the husband or widow of such deceased person if such relative survive him or her, but if no husband or widow survive the deceased, the amount recovered shall be paid over to his or her Lineal descendants, and to his or her Uneal ancestors in default of such descendants, and in every such action the jury may give such damages, not exceeding five thousand dollars, as they shall deem fair and 496 THE LAW OF DAMxVGES. statutes of "Various States. states. With the exception of the statutes of California, and perhaps Iowa, which we shall hereafter notice, the phraseology just in reference to the pecuniary injury resultinp: from such death to the relatives of the deceased specified in this section; provided every such action shall be commenced within two years after the death of such deceased per- son." (Rev. Statutes [Taylor] p. 1574 [1871]. Wis. Rev. Stat., 1858, p. 800, Ch. 135, §§ 12, 1.3.) Calif ornia. —"When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or when the death of a person is caused by an injury received in falKng through an opening or defective place in a sidewalk, street, alley, square or wharf, his heirs or personal representatives may maintain an action for damages against the person whose duty it was at the time of the injury, to have kept in repair such sidewalk or other place. In every such action the jury may give such damages, pecuniary or exemplary, as under all the circumstances of the case may to them seem just." (Code of Civ. Proc. § 377, [1872].) Indiana. — ''"When the death of one is caused by the wrongful act or omis- sion of another, the personal representatives of the former may maintain an action therefor against, the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omis- sion. The action must be commenced within two years. The damages cannot exceed five thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or tlie next of kin, to be distributed in the same manner as personal property of the deceased." (2 Ind. Rev. Stat. [Gavm & Hord], 1862, 3:30, § 784.) Oregon. — "When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may main- tain an action at law therefor against the latter if the former might have maintained an action, had he lived, against the latter for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed five thou- sand dollars, and the amount recovered, if any, shall be administered as other personal property of the deceased person." (Oregon Code, 1862, p. 97, § 367. Gen. Laws, 1872, p. 187.) Missouri. — "Whenever the death of a person shall be caused by a wrong- ful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to main- tain an action and recover damages in respect thereof, then, and in eveiy such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages notwith- standing the death of the person injured." (Gen. Stat. Missouri, § 2, Chap. 147, p. 601. Wag. Stat., p. 520.) " All damages accruing under the last preceding section shall be sued for INJUEIES KESULTING IN DEATH. 497 statutes of Various States. of the various statutes is very similar; and thej are generally a substantial copy of the English model, known as " Lord Campbell's Act." and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then, by the father and mother, who may join in the suit, and each shall have an equal interest in the judg- ment, or if either of them be dead, then by the survivor." * * * >'And in every such action the jury may give such damages as they may deem fair and just, not exceeding five thousand dollars, with reference to the necessary injuiy resulting from such death to the surviving parties who may be entitled to sue, and also having regard to the mitigating or aggravating ch-cum- stances attending such wrongful act, neglect or default." (1 Wag. Stat. p. 519.) Minnesota.—" When death is caused by the wrongful act or omission of any party, the personal representatives of the deceased may maintain an action, if he might have maintained an action had he lived, for an injury caused by the same act or omission; but the action shall be commenced within two years after the act or omission by which the death was caused; the damage thereon cannot exceed five thousand dollars, and the amount recovered is to be for the exclusive benefit of the widow and next of kin, to be distributed to them in the same proportions as the personal property of the deceased person." (Rev. Stat. Minnesota, 1866, p. 546, Ch. 77, § 2. Biss. Stat, at Large, [1873,] p. 913, § 25. Butler v. Steamboat Milwaukee, 8 Minn., 97.) Kansas.— "When the death of one is caused by the wrongful act or omis- sion of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter, for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased." (Kansas Gen. Stat., 1868, p. 709, Ch. 80, § 422.) Alabatna.— "When the death of a person is caused by the wTongful act or omission of another, the personal representatives of the former may mam- tain an action against the latter at any time within one year thereafter, if the former could have maintained an action had he lived, against the latter for an injury for the same act or omission, had it failed to produce death. (Rev. Code Ala.. 1767, § 2297.) The damages recovered in such action can- not exceed three years' income of the deceased, and in no case exceed three thousand dollars. The amount recovered is for the benefit of the widow; if there be none, then for the benefit of the child or children; if there be none, 32 49S THE LAW OF DAMAGES. Damages Actual and Pecuniary— Not Exemplary— Nothing Allowed, etc. § 030- Damage's Actual and Pecuniary— Not Exem- plary — Nothing Allowed for Physical or Mental Suffering. — In construiu*^ these statutes, as well as the Eng- then to b3 distributed as other personal property amongst the next of kin of the deceased." (Ibid., § 2298.) Mississippi. — '"Wlienever the death of any person shall be caused by any such \VTongful or negligent act or omission as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children, or both, or husband or father; the per- son, or corporation, or both, that would have been liable if death had not ensued, and the personal representatives of such person, shall be liable for damages notwithstanding the death; and the action may be brought in the name of the widow for the death of her husband, or by the husband for the death of his wife, or by the parent for the death of a child, or in the name of a child for the death of an only parent; the damages to be for the use of such widow, husband, or child, except that in case the widow should have children, the damages shall be distributed as personal property of the hus- band." (Rev. Code, Miss., 1851, p. 486, §48.) Iowa. — The provisions of the Code of Iowa relating to this subject are as foUows: " Every corporation operating a railway shall be liable for all dam- ages sustained by any person, including employes of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engi- neers or other employes of the corporation, and in consequence of the willful wrongs, whether of commission or omission of such agents, engineers or other employes, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed ; and no contract which restricts such liability shall be legal or binding. ' ' (Iowa Code, 1873, § 1307.) " All causes of action shall survdve, and may be brought, notwithstanding the death of the person entitled or liable to the same." (Id., § 2525.) " The right of civil remedy is not merged in a pub- lic offense, but may in all cases be enforced independently of. and in addition to the punishment of the latter. Wlien a wrongful act produces death, the damages shall be disposed of as personal property belonging to the estate of the deceased, except that if the deceased leaves a husband, wife, child or parent, it shall not be liable for the payment of debts." (Id., § 2526.) Arkansas. — "For wrongs done to the person or property of another an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or after his death by his executor or admin- istrator, against such wrongdoer, or after his death against his executor or administrator in the same manner and with like effect in all respects as actions founded on contracts." (Statutes of Arkansas, 1858, p. 120, Ch. 4, §94.) Louisiana. — ' ' Every act whatever of a man that causea,damage to another, mJUEIES RESULTING IN DEATH. 499 Damages Actual and Pecuniary— Not Exemplary— Nothing Allowed, etc. lisli act, the courts have very uniformly held, that the damao-es provided for and recoverable under them, are only such as are pecuniary and actual, and not exemplary. jSTor can any- obliges him by whose fault it happened to repair it. The right of this action shall survive, in case of death, in favor of the minor children and widow of the deceased, or either of them, and in default of these, in favor of the sur- viving father and mother, or either of them, for the space of one year from the death." (Rev. Stat. Louisiana, 1857, p. 79, § 18.) Maryland. — " Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death shall have been caused under such cir- cumstances as amount in law to felony. " (Code of Maiyland, 1860, Art. 65, § 1, p. 449.) " Every such action shall be for the wife, husband, parent, and cliild of the person whose death shall have been so caused, and shall be brought by and in the name of the state of Marj-land for the use of the per- son entitled to damages, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided among the above named parties in such shares as the juiy, by their verdict, shall find and direct." (Id., § 2.) Pennsylvania. — " Wlienever death shall be occasioned by unlawful vio- lence or negUgence, and no suit for damages be brought by the injured party during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives, may maintain an action for, and recover damages for the death thus occasioned." (Purdon's Penn. Dig., 1862, p. 754, § 2.) "The persons entitled to recover damages for an injury causing death, shall be the husband, widow, children, or parents of the deceased, and no other relative; and the sum shall go to them, in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors." (Id., § 3.) Kentucky. — " The widow, and minor child or children, or either, or any of them, of a person killed by the careless or wanton use of firearms or other deadly weapons, not in self-defense, may have an action against the person or persons who committed the killing, and all others aiding or promoting the killing, or any one or more of them, for reparation of the injury; and in such action the jury may give vindictive damages." (Gen. Laws Ky., 1866, App. p. 681.) See, also, post, § 642, note 20. Maine. — " Any railroad corporation by whose negligence or carelessness, or by that of its servants or agents while employed in its business, the life of 500 THE LAW OF DAMAGES. Damages Actual and Pecuniary— Not Exemplary— Nothing Allowed, etc. thing be allowed as damages under these statutes, with the exceptions we have indicated, in actions by or for the benefit of the persons entitled thereto, on account of the physical or any person, in the exercise of due care and dilij^ence, is lost, forfeits not less than five hundred dollars nor more than five thousand dollars, to be recov- ered by indictment found within one year, wholly to the use of his widow, if no children; and to the children, if no widow; if both, to her and them equally; if neither, to his heirs." (Rev. Stat. Maine. 18")7, p. 370, Ch. 51, § 42.) These provisions are also made applicable to steamboats, stage coaches and common carriers. (Id., p. o76, Ch. 52, § 7.) Neiv Hampshire. — " If the life of any person not in their employment shall be lost by reason of the neglif^ence or carelessness of their servants or agents, in this state, such proprietors shall be fined not exceeding five thou- sand dollars, nor less than five hundred dollars, and one-half such fine shall go to the widow, and the other half to the children of the deceased. If there is no child, the whole shall go the widow; and if no widow, to his heirs, according to the law regulating the distribution of intestate estates." (Gen. Stat. N. H., 1867, p. 529, Ch. 284, § 14.) Connecticut. — "If the life of any person, being a passenger, or crossing upon a pubHc highway, in the exercise of reasonable care, shall be lost by reason of the negligence or carelessness of any railroad company in this state, or by the unfitnesss or negligence or carelessness of its servants or agents; such railroad company shall be liable to pay damages, not exceeding five thousand dollars, nor less than one thousand dollars, to the use of the executor or administrator, in an action on the case upon this statute, for the benefit of the husband, or widow and heirs of the deceased person; one moiety thereof shall go to the husband or widow, and the other to the chil- dren of the deceased; but if there shall be no children, the whole shall go to the husband or widow,and if there is no husband or widow, to the heirs according to the law regulating the distribution of intestate personal estates." (Rev. Stat. Conn., 1866, p. 202, Ch. 7, § 544.) The statutes of Connecticut also provide that an action for the death of a person shall survive, notwith- standing the death results from the same injury which is the ground of the action. (Id., p. 22, § 98.) In the last codification, this statute has under- gone some alteration. (Gen. Stats. Conn., 1875, p. 422, § 9; Ibid., p. 488, § 3.) EJwde Island. — " If the life of any person, being a passenger in any stage coach or other conveyance, when used by common carriers, or the life of any person, whether a passenger or not, in the care of proprietors of, or common carriers by means of, railroad or steamboats ; or the life of any person cross- ing upon a public highway with reasonable care, shall be lost by reason of the neghgence or carelessness of such common carrier, proprietor, or propri- etors, or by the unfitness or negUgence or carelessness of their servants or agents in this state, such common carriers, proprietor or proprietors, shall INJURIES RESULTING IN DEATH. 501 Damages Actual and Pecuniary— Not Exemplaiy— Nothing Allowed, etc. mental sufferings of the deceased, or for the sorrow, suffering or grief of the surviving relatives, who may be entitled to recover/ But allowance for injuries may embrace whatever be liable to damages for the injury caused by the loss of life by such person, to be recovered by action on the case, for the benefit of the husband or widow and next of kin of the deceased person, one moiety thereof to go to the hus- band or widow and the other to go to the children of the deceased." (Gen. Stat. R. I., 1875, p. 444, Ch. 176, § 16.) Texas. — " If the life of any person is lost by reason of the neghgence or carelessness of the proprietor or proprietors, owner, charterer, or hirer of any railroad, steamboat, stage coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, gross-negligence or carelessness of their servants or agents; and whensoever the death of a person may be caused by wrongful act, neglect, unskillfulness, or default, and the act, neglect, unskill- fulness or default is such as would, if death had not ensued, have entitled the party injured to maintain an action for such injury, then, and in every such case, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony." (Paschal's Dig., 1866, p. 98, Art. 15, § 1.) "Every such action shall be for the sole and exclusive benefit of the surviving husband, wife, child or children, and parents of the person whose death shall have been so caused, and may be brought by such entitled parties, or any of them, and if said parties fail for tliree calendar months to institute suit, then it shall be the duty of the executor or administrator of the deceased, unless specially requested by all of said parties entitled, not to prosecute the same. And in every such action the jury may give such dam- ages as they may think proportioned to the injury resulting from such death; and the amount so recovered shall be divided among the person or persons entitled under this act, or such of them as shall then be ahve, in such shares as the jury shall find and direct, and shall not be liable for the debts of the deceased." (Id., § 1.) 6 Duckworth V. Johnson, 4 H. & N., 653; s. c, 7 Am. Law Reg., 630; Franklin v. S. E. RaUw. Co., 3 H. & N., 211; Blake v. Mid. R. Co,, 18 Q.' B., 93; s. c, 83 Eng. Cora. Law & Eq., 93; 10 Eng. Law & Eq., 437. Gil- lard V. The Lancashu-e & Y. R. Co., 12 L. T., 356; Penn. R. Co. v. McClos- key. 23 Pa. St., 526; Whitford v. Pana. R. Co., 23 N. Y., 465; Canning v. Wilhamstown, 1 Cush., 451; North Penn. R. Co. v. Robinson, 44 Pa. St. 175; The State of Md., etc., v. The B. & 0. R. Co., 24 Md., 84; s. c, 5 Am. Law Reg. (N. S.), 397; Cleveland, etc., R. Co. v. Rowan, 66 Pa St., 393; 111. Cent. R. Co. v. Baches, 55 111., 379; I. Cent. R. Co. v. Weldon, 52 III., 290; Penn. R. Co. v. Butler, 57 Pa. St., 335; Chicago & N. W. R. Co. V. Swett, 45 111., 197; Chic. & Alton R. Co. v. Shannon, 43 111., 338; Penn. R. Co. v. Zebe, 33 Pa. St., 318; Penn. R. Co. v. Kelley, 31 Pa. St., 372; Penn. R. Co. v. Vandever, 36 Pa. St., 298; Mclntyre 502 THE LAAV OF DAMAGES. Damages Frequently Limited by Statutes— Construction, etc. may be the source of pecuniary injury to the persons for whose benefit the statute was intended; and the jury have great lati- tude in estimating them.' Thus, it has been hehl, that neither physical suffering and pain, nor anguish of mind, of either the deceased or those for whose benefit the statute permits a recovery, are proper elements of damages, as they are not pecuniary injuries.' § 631. Damages Frequently Limited by Statutes- Construction of, when not —The damages are frequently limited, by the provisions of the statutes, to the pecuniary injury sustained. But this limitation is not contained in the English act, and is not found in all of the statutes of the states of the Union. Nevertheless, as we have seen, they have gen- erally been construed as limiting the damages to the pecuniary injuries sustained. But these may include the pecuniary value V. The N. Y. Cent. R. Co., 47 Barb., ol-j; Donaldson v. The Miss. & Mo. R. Co., 18 la., 280. which was a decision under the former statute of Iowa. City of Chicago v. Major, 18 111., 349; Telfer v. The Northern R. Co., 1 Vroom, (30 N. J.), 188; Quin v. Moore. 15 N. Y., 432; Lehman v. Brooklyn, 29 Barb., 234; Conant v. Griffin, 48 III., 410; Penn. R. Co. v. Henderson. 51 Pa. St., 315; Blake v. Midland R. Co., 18 Q. B., 93; 16 Jur., 562; 21 L. J., Q. B., 233. But in some cases exemplary damages are expressly provided for by stat- ute, and even in the absence of statutory provisions on the subject, it has been in some cases intimated, at lea,st. that exemplary damages might be proper. Sherman v. The West. Stage Co., 24 la., 515; The Penn. R. Co. v. Zebe, 33 Pa. St., 330. 7 Penn. R. Co. v. KeUer, 67 Pa. St., 300; Tilley v. Hudson R. R. Co., 29 N. Y., 252; Duckworth, adm'r, v. Johnson, 4 H. & N., 653; Paulmier v. Erie R. Co., 34 N. J. L. (5 Vroom), 151 (1870). And nothing can be aUowed by way of solatium for grief for loss of society. Pym v. Great N. R. Co., 4 B. & S., 396; Jour. N. S., 199; 32 L. J. Q. B., 377; 11 W. R., 922; 8 L. T. N. S., 734. 8 Ohio, etc., R. Co. v. Tindall. 13 Ind., 366; Telfer v. Northern R. Co. 30 N. J. L. (1 Vroom), 188; Oldfield v. Harlem R. Co., 14 N. Y., 310; Tilley v. Hudson R. R.Co.,29 N. Y.,252; Donaldson v. The Mississippi, etc., R. Co., 18 la., 280. Nor can the jury consider, in an action for the death of a wife, the loss of her society, nor the plaintiff 's mental suffering. Green v. Hudson R. R. Co., 32 Barb., 25. See. also, Blake v. Midland R. Co., 18 Q. B., 93; 21 L. J. Q. B., 233. INJUKIES EESULTING IN DEATH. 503 What it is Competeut to Show. of the life of the deceased, to those interested therein, as pro- vided by the statute;' and such as arise from the loss of per- sonal care and training, and intellectual and moral culture, which would have been received by the parties had the deceased lived.'" The general principles governing in such cases have been well stated by Comstock, J., in ■ Quin v. Moore. lie says: "The theory of the statute law is, that the next of kin have a pecuniary interest in the life of the person killed, and the value of this interest is the amount for which the jury are to give their verdict. Neither the personal wrong or outrage to the decedent, nor the pain and suffering he may have endured, are to be taken into the account. These would be the foundation of the action and the criterion of damages, if death had not ensued, and the injured party had brou<'-ht the suit. But the claim of the administrator, and through him of the next of kin, is altogether different." " § 032. What it is Competent to Show— Expectation of Life. — It is competent, therefore, to show the exact situa- tion, annual earnings, habits, health, and estate of the deceased;"" the profits of his labor and business; what he would have earned for the support of those entitled to recover, or for the estate, as the case may be;" and the probability or the reasonable expectation of the life of the deceased at the time of the injury," and which may be determined by refer- ence to the " Carlisle," or other tables of recognized scientific accuracy, relating to the expectation of human life." 9 Penn. R. Co. v. Keller, 67 Pa. St.. 300; Kresler v. Smith, 66 N. C, 164. 'o Mclntyre v. N. Y. Cent. R. Co., 37 N. Y., 287; 35 How. Pr., 36. » 15 N. Y., 435. " Sherman v. West. Stage Co., 24 la., 515. '3 Illinois, etc., R. Co. v. Weldon, 52 lU., 290. '4 Baltimore, etc., R. Co. v. State, 33 Md.. 542 (1870). •s Rowley v. London, etc., R. Co., L. R., 8 Ex., 221; 42 L. J. R. (N. S.), Exch. 153; David v. South West, etc., R. Co., 41 Ga., 223; Donaldson v. The Mississippi, etc., R. Co., 18 la., 280; Blake v. Midland R. Co., supra. 504 THE LAW OF DAMAGES. Instances. § 634. Instances.— Thus, under the English act, where the decedent's income survived him, his estate of £4,000 a year passing to liis eldest son, subject to a jointure of £1,000 a year to his wife, and £800 a year to his eight younger chil- dren; it was held that if the death occasioned any one of the members of the family the loss of future pecuniary benefit, the jury were bound to consider such loss and give damages accordingly.'^ So in Ireland, in an action by a widow for the death of her son aged fourteen years, who had never earned any money, but whose capabilities were valued at sixpence per day, it was held that the probability that he would have earned more and would have devoted a part of his earnings to the support of his mother, were proper matters to be considered by the jury in estimating damages." So, under the statutes of Illinois, it is necessary for the administrator to show that the deceased left a widow or next of kin, who are pecuniary losers by his death. But it is immaterial who they are, or which of them is entitled to the amount recovered, or whether the one claiming to be the widow is in fact such widow or not." And under the former statute of Iowa, which provided, '' that when a wrongful act produces death, the perpetrator is civilly liable for the injury, the parties to the action shall be the same as though brought on a claim founded on contract against the wrongdoer and in favor of the estate of the deceased," '" it was held that the damages recovered, accrued to the estate of the deceased, and not to the next of kin. Hence, the measure of damages was the pecuniary loss to the estate by reason of the death, and not the past or prospective loss of '6 Pym. V. The Great Northern R. Co., 4 B. & S., 396, affirming 2 B. & S., 759; s. c, 32 L. J. (N. S.) Q. B. 377; affirming s. c. in Q. B. 31 L. J. (N. S.), 249. See, also, MaJ^le on Dam., 392, 393 '7 Condon v. The Great S. W. R. Co., 16 Irish L. R. (N. S.), 415. '8 Conant v. Griffin, 48 III, 410 (1868). This question could not be impor- tant until the time for distribution by the administrator should arrive. Id. '9 Iowa Rev. 1860, §4111. INJUEIES KESULTING IN DEATH. 505 Legal Eight to Benefit from the Life not Essential— Presumptions. the next of kin.^" And it was further held that the jury might find such damage as the estate of the deceased suffered pecu- niarily by the death, but that thej should not allow anything on account of the pain and suffering of the deceased by reason of the injury before his death, nor for the grief and distress of his family on account thereof, nor for the loss of liis society, and that it was proper to submit evidence to the jury show- ing the exact situation of the deceased, his occupation, annual earnings, health, habits and estate, as affecting the question of damages.^' § 636. Legal Riglit to Benefit from the Life not Essential — Presumptions. — It is not essential to the main- tenance of the action that the person to be indemnified should have a legal right to some pecuniary benefit, which would have resulted from the continuance of the life of the decedent.' Xor should a nonsuit be directed, if the services of the deceased might have been of some value to the next of kin, where the statute provides that a recovery may be had for their benefit.* !Nor is the jury restricted to nominal damages, although there is no direct proof of pecuniary loss.^ Nor is proof of the =° Sherman v. The West. Stage Co., 24 la., 615. See, also, Penn, R. R. Co. V. Goodman, 62 Pa. St., 329. ^' Donaldson v. The Miss. & Mo. R. Co., 18 la., 280. The question, "What did the deceased usually earn? " is proper as being an inquiry of importance in forming an estimate of the pecuniary loss. Mclntyrev. N. T. Cent. R Co., 37 N. Y., 287; 47 Barb., 515; 35 How. Pr., 36. In case of injuiy resulting in the death of a minor, the damages must be the pecuniary loss to the parents. Potter v. Chicago & N. W. R. Co.. 21 Wis., 872. See, also, Franklin v. S. E. R. Co., 3 H. & N., 211; 4 Jur. N. S., 565. ' The lUinois, etc., R. Co. v. Barron, 5 WaU., 90; Dalton v. South E. R. Co., 4 .Jur. X. S., 711; 27 L. J. C. P., 277; 4 C. B. N. S. 296. See, also, Franklin v. S. E. R. Co., supra. 2 Mclntyre v. New York Cent. R. Co., 43 Baxb., 532; s. c. on appeal, 37 N. Y., 287. 3 Ihl V. Forty-Second St., ect., Co., 47 N. Y., 317. The jury may infer without proof that the services of a boy from eleven until twenty years of age were valuable to his father, and estimate that value upon their own knowl- edge. O'Mara v. Hud. R. R. Co., 38 N. Y., 445; Drew v. Sixth Av. R. Co., 26 Id., 49; Oldfield v. New York, etc., R. Co., 14 Id., 310; Penn. R. Co. v. McCloskey, 23 Pa. St., 526; Penn. R. Co. v. Bantom, 54 Pa. St., 495. 506 TPIE LAW OF DAMAGES. Value of an Annuity— Carlisle Tables- Statutes, etc. wages paid the deceased at the time of his injury or death, necessary to entitle the phiintiff to substantial damages, on the ground of being deprived of su])port and maintenance, or of the benefits of the labor or profits of ^the business of the deceased," But under the statute of Ohio it has been held, that the value of the services will not be presumed, unless the action is for the benefit of the widow and children,^ § 637. Value of an Annuity — Carlisle Tables.— In Eiififland, where the deceased had been under a covenant to pay his mother an annuity of £200 during their joint lives, it was held material to know the value of such an annuity on an average life of his age; and it was held proper to determine this from the experience of life insurance companies, and to refer for this purpose to the " Carlisle Tables," which were in use among such companies, for this purpose." So, it has been held that, as the dauiages in these cases are confined to the pecuniary loss, it is erroneous to leave the amount to the uncontrolled discretion of the jury; but that it is not error for the court, after laying down the law, to tell the jury that much is left to their sound discretion in assessing the amount of damages.' § 638. The Statutes have no Extra-territorial Opera- tion. — The statutes have no extra-territorial operation, and do not apply where the suit is brought in one state for an injury done in another state, or in a foreign country, or on the high seas; and no recovery can be had in such cases, unless it is 4 Baltimore, etc., R. Co. v. State, etc., 24 Md., 271. s Donahue's Adm'r v. The Ohio, etc., L. & T. Co., 1 Disney, 257. See, also, Lucas v. New York Cent. R. Co., 32 Barb., 25. 6 Rowley v. London, etc., R. Co.. L. R. 8. Ex., 221; L. J. R. (N. S.), 42, Exch., 15.3. See, also, David v. S. W. R. Co., 41 Ga., 223; Baltimore, etc., R. Co. V. State, 33 Maryland, 542; Donaldson v. Miss. & Mo. R. Co., 18 la., 280. ^ Penn. R. Co. v. O^ier, 35 Penn. St., 60; Penn. R. Co. v. Vandever, 86 Penn. St., 298. INJURIES RESULTING IN DEATH. 507 Widow-Cliildren-Wealtli of Defendan t-Death of Child. ^ alleged and proved that the law of the place where the tort was^comniitted is the same in this respect as the law of the forum/ § 639 . Widow-ChiUlren— Wealth of the Defendant. —In Massachusetts, under the statute of that state, it has been held, in an action by a widow for her husband's death, that the fact that she had children dependent upon her, did not go to enhance damages.^ And in all such cases evidence of the defendant's wealth is inadmissible/" § 640. Death of a Child-Limitation.— In an action for damages for an injury resulting in the death of a minor child, the parents may 'recover the pecuniary value of the child's services during his minority, together with the expenses of care and attention, medical attendance, etc., during his disa- bility in consequence of the injury." So, under the English act where it appeared in an action by the father for an injury resulting in the death of his son, that the father was old and infirm, and the son young and earning good wages, and had assisted the lather, and that the father had a reasonable expec- tation of pecuniary benefits from the continuance of the son's life, the court held that the action was maintainable.'^ But -r^^^;i^^-^^r?^^^r^. Co., 23 N. y. 465; Mal.erT;^wjch etc Trans. Co., 45 Barb., 226; Selma, etc., R. Co. v. Lacy 43 Ga., 4bl (1871) NaThville, etc., R. Co. v. Elkin, 6 Coldw. (Tenn.), 582. Nor can he hus- W nnder the laws of Georgia, recover damages for the homicide oi his S.' Georgia R. Co. v. Wym^, 42 Ga., 331. The right to ^'fover^^v.^^es havmg accrued, the amount of the recovery cannot afterwards be hmited by act of the legislature. Kay v. Penn. R. Co.. 6o Pa. St.. 269. 9 Shaw V. Boston, etc., R. Co., 8 Gray, 45. , , ^ j . >o Conant v Griffin, 48 HI., 410, in which case the wealth of the defendant was held immaterial in the measure of damages, as it could not m any man- ner affect the pecuniary loss. ■ -U ll'o " Penn R Co. v. Zebe. 33 Pa. St., 318. See, also, under Ld. CampbeU s Act,Condon'v.The Great S. W. R. Co., 16 Irish ^■^^^;^'^^ V. Mayor of N. Y., 3 Comst., 4S9; Potter v. Chicago, etc., R. Co., ^i Wis., '''•prankHn. Adm. v. The S. E. R. Co., 3 H & N 21L And, see, Dalton V. The S. E. R. Co., 4 C. B. (N. S.), 296; 27 L. J. R. C. P., 227. 508 THE LAW OF DAMAGES. In Pari Delicto. the prospective damages for tlie loss occasioned by tlie death of a child are usually limited to the period of minority." § 641. Ill Pari Delicto. — It was held in Georgia, that the courts of that state could not, since the re-establishment of the national autlu)rity, entertain an action for the recovery of damages from a railroad company, for negligently causing the death of the plaintiff's husband, where the casualty occurred while the company was transporting the decedent, as an ojl- cer i)i the Confederate service^ for hire, and was paid by the Confederate government, on the ground that the employes of the company and the decedent were, while engaged in such transportation, in pari delicto.^* '3 Ford V. Monroe, 20 Wend., 210; State of Maryland v. Baltimore, etc., R. Co., 24 Md., 84; s. c, 5 Am. Law Reg. (N. S.). 397. But it is held, that in an action by a child for the death of the mother, there is no reason in limiting the damages for the loss of the mother's care to the minority of the child; and if the jury are persuaded that this care would have continued afterwards, they are at liberty to give damages therefor. Filley v. Hudson R. R. Co.,29N. Y., 252. '4 Martin v. "Wallace, 40 Ga., 52. In a recent article in the American Law Review, Vol. 8, p. 52-3, the writer reviews a recent French treatise on the law of damages in cases of torts, and observes as follows: " The question whether one party to a duel can maintain an action agamst another is discussed. The author says : ' On the contrary, one who in a duel has wounded or killed his adversnry should be held liable to his adversary or to his family, even though a criminal pro- ceeding should be decided in his favor. A duel is always an ilHcit act. It is a wrong to the laws of religion, of morality, and of society, and furnishes ground for an action.' ' Suppose the person killed had been insulted; that his adversary had re- fused him all other satisfaction; that he had knowingly sought advantage in his skill in the handling of weapons. All wiU admit that he has under these circumstances been guilty of a crime, notwithstanding the distance which the prejudices of society and the chances of combat place between such a duel and an ordinary assassination. But even where it is the party who was insulted who is the victor; where there has been au equality of sti-ength and address; in short, under the most favorable circumstances, a duel is none the less culpable. It is a shock to public order — to the principle that in a well regulated society no one should take the law into his own hands.' ' It is no defense against the party wounded, or against the representatives of him who has been killed, that he accepted the event of the combat. The INJURIES RESULTING IN DEATH. 609 Damages in Other and Special Cases Resulting in Death. § 642. Damages in Other and Special Cases Result- ing in Death.— It is provided by statute in some of the states, that actions for personal injuries, and in others, tliat all actions for injuries shall survive the death of the person injured, or of the injurer. In the absence of any other pro- vision in relation to injuries resulting in death, the represen- tatives of the deceased can recover in such cases whatever the deceased might have recovered at the time of his death. Thus, in Massachusetts, where such a statute exists, and where it appeared that the defendant negligently sold as and for the tincture of rhubarb, a harmless medicine, two ounces of laud- anum, a dangerous and deadly poison, to a party who procured it for the purpose of administering it as a medicine to his ser- vant, the plaintiff's intestate, and which was administered to him,' and from the effects of which he died; it was held that the defendant was liable fV.r the tort without regard to the question of privity of contract between them.'^ So, in Michi- gan it was held, under such a statute, that the husband may maintain an action for the loss of his wife's services, caused by the defendant's malpractice, notwithstanding the injury resulted in death; but that the damages should be limited to the loss of service between the time of the injury and death." But under the provisions of the Massachusetts statute, it Avas held that no action lies where the death is i nstantaneous, on the a-reement to fi-ht is radically void, as contrary to good order and good nTorals In vain can the victor set up that he acted in self-defense. He exposed himself voluntarily to danger. His defense was unnecessary.' ' From the point of view of a joint fault there is nothing to defeat the action That there was a double fault in the agreement to fight is incontes- table, but the damage is wholly upon one side. The act which caused it- its immediate and direct cause-is the single act of one of the parties. The circumstances of the duel, particularly the provocation, if it came from the injured party, can only bo shown in mitigation of damages.' " •5 Norton v. Sewall, 106 Mass., 143. See also Davidson v. Nichols, 11 Allen., 514; McDonald v. Snelling, 14 Allen, 290; Wellington v. Downer OU Co., 104 Mass.. 64. '6 Hyatt V. Adams, 16 Mich., 180. 510 THE LAW OF DAMAGES. Damages in Other and Special Cases Resulting in Death. ground that no action ever accrued to the decedent, and none consequently could survive." x\nd the same doctrine was held under the statute of Tennessee." But in Connecticut, under a similar statute, it was held that though the death was instan- taneous, an action could he maintained, and the court declared the decision in Kearney v. The Boston c& Worcester R. Co.^ " nice and technical.'"" And in Massachusetts, where the decedent survived but a few hours, though unconscious, it was held that the action could be maintained.^" •7 Kearney V. Boston, etc., R. Co., 9 Cush, 108. '8 Louisville & Nashville R. Co. v. Burke. 6 Coklw. (Tenn.), 45. The Massachusetts Statute was as follows: "The action of trespass on the case for damag'e to the person, shall hereafter survive, so that in the event of the death of any person entitled to bring such action, or liable thereto, the same may be prosecuted or defended by or against his executor or administrator, in the same manner as if he were living." (Act 1842, Ch. 89, 1) The Ten- nessee Statute, under which the action in the foregoing case of The Louisville & Nashville R. Co. v. Burke was based, is as follows: "The right of action which a person who dies from injuries received from another, or whose death is caused by the wrongful act or omission of another, would have had against the wrongdoer in case death had not ensued, shall not abate or be extinguished by his death; but shall pass to his personal representatives for the benefit of his widow and next of kin, fi"ee from the claims of liis creditors." (2 Thompson & Steger's Tenn. Stat., 1872, 2291.) The Ten- nessee statutes also provide certain precautions to be observed by railroad companies, and, "every railroad company that fails to observe these pre- cautions, or cause them to be observed by its agents or servants, shall be responsible for all damages to persons or property occasioned l)y, or res- ulting from, any accident or collision that may occur. No railroad com- pany that observes or causes to be observed these precautions , shall be re- sponsible for any damages done to person or property on its road. The proof that it has observed said precautions shall be upon the company." 1 Id., §§1167,1168, sxiyira. 'sMurphy v. New York, etc., R. Co., 30 Conn., 184. « HoUenbeck v. Berkshire R. Co., 9 Cush., 478. The statutes of Kentucky provide as follows : "No right of action for personal injur}', or injury to real or personal estate shall cease or die with the person injuring or the person injured, except actions for assault and battery, slander, criminal conversation, and so much of the action for mali- cious prosecution as is intended to recover for personal injury; but for any injury other than those excepted, an action may be brought or revived by the personal representatives, or against the personal representative, heir or INJUKIES RESULTING m DEATH. 511 Distinction between Injuries, etc. § 643. Distinction between Injuries to the Person of the Deceased and Injuries to Others from the Death — Death Instantaneous. — It may be observed that the statute which continues and keeps alive a cause of action for an injury, in case of the death of a party therefrom, has no reference to those damages resulting to third parties from injuries that produce death. We have already considered the damages under statutes providing for damages in the latter case, which do not necessarily include damages such as deceased might himself have recovered, or been entitled to, at the time of his decease. It would, of course, be competent for the legislature to give a remedy to the representatives of the deceased, not only for the damages which the deceased might have recov- ered, but also for such damages as the widow, husband, or next of kin may have sustained by reason of the death of the injured party. If the statute provides that all rights of action devisee, in the same manner as causes of action founded on contract." In a recent case in the supreme court of that state, where a construction of this statute was involved, it was held that, although, where the death was in- stantaneous there could be no recovery, yet in cases not embraced within the exceptions of the statute, if there is an appreciable interval between the in- fliction of the injury and the death, the personal representative of the de- cedent may recover damag'es for the injury. The petition alleged that the de- fendants were diniggists, and that their prescription clerk, in attempting to fill a physician's prescription, through gross and culpable neghgence, put up croton oil instead of Unseed oil, which oUwas, inconsequence of such mistake administered to the plaintiff's intestate, and that it caused him great suffer- ing and agony, and did him serious and irreparable injury, and was the im- mediate cause of his death on the same day. It was held that this petition stated a good cause of action. The court say: "Whilst we hold that in order to authorize a recovery in such cases, there must be an appreciable interval between the infhction of the injury and the death, and that no recovery can be had where the death is practically instantaneous or immediate, we think the petition in this case shows that between the time the poison was admin- istered and the moment at which the death occurred, there was an apprecia- ble interval of time, during which the intestate endured great suffering and agony.' For such suffering and agony the appellant is entitled to recover just what the intestate could have recovered, if he had survived and had ob- tained perfect and permanent relief at the moment of his death." Hansford V. PajTie, 2 Cent. L. J., 722 (1875). 513 THE LAW OF DAMAGES. statutes of Iowa— Exemplary Damages Under. shall survive, and also that the representatives of the deceased may recover all pecuniary losses sustained by the wrongful act, neglect, or default of another M'hich results in death, then the representatives may recover, under such circumstances, not only the damages the deceased might have been entitled to at the time of his decease, but also all such damages as the heirs or next of kin of the deceased, according to the provis- ions of the statute, may have sustained by the death. Tliere is an essential distinction between the two causes of action. Both rest upon statutory provisions; and there is nothing inconsistent in a recovery for both by the same party or parties, whenever the statute authorizes it,°' It may be further observed in reference to the doctrine, that where the death is instantaneous no recovery can be had; that in nearly, if not in every case, there is an appreciable time between the injury which causes the death and the entire decease of the injured party. It would, perhaps, be impossible to cause death by any act that would not leave at least a very limited time between the injury and the death. The mere length of time should not affect the right. Whether it is one second or one hour cannot be material, § 645. The Statutes of Iowa— Exemplary Damages Under. — The present statutes of Iowa, on this subject, are unlike most of the statutes of the various states." They do not expressly provide for damages to the parties designated therein, for the death of any person injured, as most of the statutes do. They only provide that " all causes of action shall sur- vive;" * * -5^ "that when a wrongful act produces death, the damages shall be disposed of as personal prop- erty belonging to the estate of the deceased," * * * and " that every corporation operating a railway shall be " See S. & R. on Neg., 611, and notes 4 & 5. See, infra, § 645, where it is apparent that such are the provisions of the Iowa statutes. « See the statutes set out at length, ante, § 629, note 5. INJURIES EESULTING IN DEATH. 513 statutes of Iowa— Exemplarj' Damages Under. liable for all dainages sustained by any person, including employes of such corporation, in consequence of the neg- lect of agents, or by any mismanagement of the engineers or other employes of the corporation, and in consequence of the willful wrongs, ■whether of commission or omission, of snch agents, engineers, or other employes, when such wrongs are in any manner connected with the operation of any rail- way, on or about which they shall be employed, and no contract which restricts such liability shall be legal or bind- ing." The supreme court of that state has given its construc- tion to the latter statute, by construing the act from which a portion of it was derived," so far as to hold that the words, " shall be liable for all damages sustained by any person," includes a party who sustains a damage by the death of the party injured, and that the representatives of the deceased may recover damages therefor.' » Acts 9th Gen. Assem, Iowa, Ch. 169, 8. 3 Philo V. The Illinois Cent. R. Co., 33 la., 47., n^here Beck, J., in deliver- ing' the opinion of the court, remarks: "That the intention of the legislature, in the enactment of the statute, accords with its language, there can he no doubt. It cannot be presumed that the law-makers would secure to em- ployes of railroads, a remedy for injuries, not resulting in death, but for the greater injuries whereby hfe is destroyed they would make no provision; thus securing' to the employe himself compensation for the lesser injury, but denying to his family, who are dependent upon him for support, compensa- tion for the loss they sustain in his death." With due deference to the court, in its construction of the statute, we can- not resist a diiferent conclusion. The question is not what the legislature ought to have done, but what was intended, as derived from the language, and the evident purposes they had in view. The statute already provided that causes of action should survive. The language of the statute, making railroad corporations liable, is such as we may well suppose the legislature would use if they intended to limit the damages to the party injured. No mention is made of damages resulting- from the death of a party by reason of injuries received, which we find in all the statutes relating to this subject, where it is designed to give damages for the death of a party. Aside from any purpose to extend the liability of railroad corporations to damages to third parties, resulting from the death of another, it is reasona- ble to infer that their purpose, from the language of the act, was to make 33 514 THE LAW OF DAMAGES. California Statute— Exemplary Damages Under. Under the Iowa statutes there would appear to be no reason why the administrator of the deceased may not only recover such damages as the deceased was entitled to at his death, including exemplary damages, but also, under the construc- tion given to the act relating to railroad companies, as we have seen, all such damages as result to the estate by reason of the death. Whatever right the deceased had at his death to recover damages, succeeds to the administrator of his estate, the damages to " be disposed of as personal property belong- ing to the estate of the deceased, except that if the deceased leaves a husband, wife, child, or parent, it shall not be liable for the payment of debts." It seems, therefore, to follow, on general principles, that where the administrator seeks to recover against a railroad company for such damages as the deceased was, at his death, entitled to, and also for the damages sus- tained to the estate by reason of his death, he would also be entitled to recover exemplary damages for an injury to the deceased, whenever he could have recovered the same, had he lived.^ § 647. California Statute — Exemplary Damages Under. — It will be observed that the California act expressly provides for exemplary damages. And under this act, it has been recently held that the jury may give exemplary damages for the death of an infant caused by the negligence of the such corporations liable for even the willful acts of their agents and em- ployes ; and this would appear sufficient to require such a statute, and to call for the legislatives attention which it received. Under the statutes of Kentucky and Connecticut, it seems that the plaintiff may recover such damages as the deceased might have recovered if death had not ensued. Thus, in an action in the former state, by the personal representatives of one killed by the fault of a railroad company, he may recover not only such actual damages as the deceased might have recovered, but also exemplary damages. Bowler v. Lane, 3 Met. (Ky.), 311; Chiles v. Drake, 2 Id., 146. See also, in Connecticut, GoodseU v. Hartford, etc., R. Co., 33 Conn., 51; Murphy v. N. Y. & N. H. Co., 29 Conn., 496. •♦ Sherman v. The Western Stage Co., 24 la., 515, where it was held that the damages were the pecuniary loss to the estate. INJURIES RESULTING IN DEATH. 515 Effect of a Policy on Life of Deceased— "SVbo Entitled to Eecover. defendant." ' But this statute and the Iowa statute are excep- tions, in tliis respect, to the statutes generally on this subject; and in the construction of those modeled from the English act, as we have noticed, whether the acts expressly provide for the pecuniary damages sustained or not, it has generally been held, that the damages should only embrace such injuries as are of a pecuniary nature. § 648. The Effect of a Policy on the Life of the Deceased.— On the question whether the amount of the recov- ery can be affected under the English act, and those substan- tially like it, by money received by the person for whose ben- efit the suit is brought, or by the estate of the deceased, on a policy of insurance on the life of the deceased, there has been some diversity of decision. On the one hand, Lord Campbell, the author of the English act, held that it should be taken into account in assessing damages, and deducted from the amount of the pecuniary loss." AVhile, on the other hand, in this country it has been held otherwise.' §649. Who Entitled to Recover,— Under the English act, and the statutes of the various states copied in substance from it, the right to recover is based upon the death of the party, and the pecuniary loss thereby sustained by the wife, husband, parent, child, or the estate. And where the execu- s Myers V. San Francisco, 42 Cal., 215 (1871). In an action under the statute of California for the benefit of the\vidow and children of the deceased, if the w-idow dies before the trial of the action the question of compensa- tion to her no longer exists, and the only question to be determined in relation to damages, is what will be just compensation to the children for the loss of the father. Taylor v. Western, etc., R Co., 4o Cal., 323. 6 Hicks V. The Newport, etc., R. Co.. B. & S., 403. But see Bradbum V. Great W. R. Co., 44 L. J. R. (N. S.) C. P. 9; s. c. L. R. 10 Exch., 1, where in an action for a personal injury through negligence, it was held that no deduction could be made on account of money received on a policy of insurance against the accident. Yates v. White, 4 Bing., N. C, 272; 5 Scott, 640. 7 Althorf V. Wolfe, 22 N. Y., 355; Harding v. Town.,43 Vt., 536; Pitts- burgh, etc., R. Co. V. Thompson, 56 111., 138 (1870). 516 THE LAW OF DAMAGES. Conclusions— Contributory Negligence. tor or administrator of the deceased is authorized or required to sue therefor, he is a mere nominal party, who sues for the benefit of the parties named in the statute, or tlie estate. And if for the benefit of several parties, they should severally be awarded damages proportioned to the injury resulting to each from the death.* Thus, if the victim of the wrongful act, neglect, or default of another, who dies in consequence thereof, leaves a wife, parent, or child, and they were entitled to an annuity in diff'erent amounts dependent upon the life of the deceased, " the recovery would be in the name of the executor or administrator, but it should fix the amount going to each, and it would be proportioned to the amount of the respective annuities. The damages suffered by the estate of the deceased would have nothing to do with the amount of recovery. The measure of damages would be the pecuniary injury resulting from such death to the parties respectively for whom and for whose benefit such action was brought.^ § 650. Conclusions— Contributory Negligence.— In conclusion it may be observed, that the general principles of the law relating to mutual or contributory negligence, are applicable to actions for injuries resulting in death, so that no action can be maintained, where the negligence of the party injured or killed materially contributes to the injury or death.'" But we have already considered this subject elsewhere. The subject of excessive damages and of setting aside verdicts, will be hereafter fully treated. 8 Blake v. The Midland R. Co., 18 Q. B., 93; S. C. 83 E. C. L., 110. 5 Opinion of Cole, J., in Sherman v. The Western Stage Co., 24 la. , 550; Pym V. Great N. R. Co., supra, affirming judgment of 2 B. 2 B. & S., 759; 8jur. N.S., 819; 31 L. J. Q. B., 249; 10 W. R., 737; 6 L. T. R.N. S., 537. '° Willetts V. Buffalo, etc., R. Co., 14 Barb., 585; Penn., etc., Co.. v. Ogier, 85 Pa. St., 60; North Penn. R. Co. v. Robinson, 44 Pa. St., 175; Tucker v. Chaplin, 2 C. & K., 730. Or where the death occurs in consequence of the negligence of a fellow servant while engaged in the same employment. Hutchinson v. York, etc.. R. Co., 5 Exch., 343; Wigmore v. Jay., Id., 354. See, also, ante, Ch. 10, and authorities there cited. See, also, as to servant's knowledge of defects, by which he was injured, ante, § 185, and authorities there cited. KEGLIGEXCE. 51T Negligence a Tort— Definitions. CHAPTER XXII. NEGLIGENCE— GROSS NEGLIGENCE. Section 659. Negligence a Tort— Definitions. 661. Law and Fact. 662. "When a Question for the Court. 663. The Question usually one for the Jury. 664. For what Consequences the Negligent "Wrongdoer is Answerable— Negligent Fires. 666. Successive Negligence of Different Parties. 667. Damages in case of Negligence— Elements of. 668. Illustrations. 669. Damages to Beal Property from Negligence. 670. Personal Property— Damages. 671. Damages in Other Cases. § 659. Negligence a Tort— Definitions.— We have had occasion already to consider this subject incidentally, in treat- ing of motives as affecting the measure of damages in torts,' and also in considering the subject of contributory negligence.* A comprehensive treatment of the subject would carry us beyond the proper limit in a work on damages, but a brief statement of some of the general principles and rules may be proper. Negligence, whereby injury results to a party, generally belono-s to that class of wrongs denominated torts; and the general rule is, that for all injuries to a person, resulting from ' See, ante, §§ 24, 25. ' See, atite, Ch. 10. 618 THE LAW OF DAMAGES. Law and Fact. the negligence of another, and to which the party injured has not by his own act or negligence materially contributed, the party injured may recover all such damages as directly and naturally, or necessarily flow from the negligence.' And, as we have already seen, for gross negligence, the wrongdoer may be liable not only for the actual loss sustained thereby, but also for exemplary damages; as by such conduct the law, it has been said, imputes malice to the wrongdoer." Whereas, if the party injured contributed to produce the result, he is in pari delicto, and cannot recover damages. Such is a brief statement of the general principles of law in such cases."^ Frequent application of these principles is made, not only in cases of injuries resulting in death, which we have just considered, but in other cases of injury to the person or prop- erty. And although we propose to consider the principles more particularly applicable in actions brought for injuries to the person, we will also endeavor to illustrate the rules of damages in all cases of negligence. §661. LaAV and Fact .—Negligence is said to be a mixed question of law and tact; it is the want of ordinary care and 3 1 Hill on Torts, 115, et seq. "He must answer not only for all damage whicli a prudent man would expect to result from his fault, but also for all that a prudent man would anticipate as a possible consequence thereof." Shear. & Red. on Neg., § 594. See, also, Bridges v. Grand June. R. Co., 3 M. & W., 244; Ellis v. Lond. & S. W. R. Co., 2 H. & N., 424; 26 L. J. Ex., 349; Thompson v. N. W. R. Co., 2 B. & S., 106; 30 L. J. Q. B., 67; 2 B. & S., 119. We here have the doctrine of extended liability applied in torts, which we have considered as applicable in assessing damages on the breach of contracts in many cases, generally known as the doctrine of Hadley v. Baxendale. " A negligence is the juridical cause of an injury, when it con- sists of such an act or omission on the part of a responsible human being, as, in ordinary natural sequence, immediately results in such injury. Such in fact we may regard as the meaning of the term 'proximate cause,' adopted by Lord Bacon in his maxims." Whart. on Neg., § 73. * St. Louis, etc., R. Co. v. Todd, 36 lU., 409. But see. Shear &. Read, on Neg., § 3, where the proposition, that gross negligence is equivalent to fraud, is held to be a misuse of terms. See, also Lincoln v. Buckmaster, 32 Vt., 652; Wilson v. Y. & M. R. Co., 11 GiU. & J., 58; Tonawanda R. Co. v. Hun- ger, 5 Den., 255. NEGLIGEITCE. 519 "When a Question for the Court— Question Usually one for Jury. prudence, aud always involves the consideration of all the circumstances of the particuhir case, in order to properlj' determine whether there is negligence; and ordinary care in one case, may be gross negligence in another. Thus, conduct which would constitute ordinary care in crossing a highway or street, might be gross negligence in crossing a railroad track; and riding with the arm or hand out of a stage coacli or omni- bus, might be no want of ordinary care, when the same act,. in a railroad car, would be negligence or even gross negligence. § 662. When a Question for the Court. — Where there is no contradictory evidence, or the facts are admitted, the ques- tion of negligence is one of law, and the court may pass upon it and order such a verdict for the plaintiff or the defendant as the case may warrant." § 663. The Question Usually one for the Jury.— But the question is usually one of fact to be settled by the jury, under the instructions of the court.* Thus, an error in judg- ment, in stepping upon a railroad track in an emergency, if the proof is not clear as to the elements of time and space on which such judgment was based, should not be held neglio^ence as a matter of law; but the question should be left to a jury.^ And to justify a non-suit on the ground of contributory negli- gence, the evidence against the plaintiff should be so clear as to leave no room to doubt; and all material facts must be con- ceded or established beyond controversy.' 5l Hm on Torts. 116, 117. 6Noms V. Litchfield, 35 N. H., 277; Spafford v. Harlow, 3 Allen, 179; Buel V. Chapin, 99 Mass., 594; Reynold v. Haurahan, 100 Mass., 313; South- ern R. Co. V. Kendrick, 40 Miss., 374. 7 Barnhard v. Rensselaer & Saratoga R. Co., 1 Abb., 131. 8 Johnson V. Bruner, 61 Pa. St., 58 (1868); Quick v. Holt, 99 Mass., 164 (1868); Klunayde v. Pacific R. Co.. 45 Mo., 255 (1870); Kan- v. Parks, 40 Cal., 188 (1870); Judd v. Fargo, 107 Mass., 264; Baltimore, etc., R. Co. v. State, 36 Md., 366 (1872); Barton v. St. Louis, etc., R. Co., 52 Mo., 253; Penndrill v. Second Av. R. Co., 34 N. Y., 481; Rudolph v. Fuchs, 44 How. Pr., 55; Cook V. N. Y. Cent. R. Co., 1 Abb., 432. 520 THE LAW OF DAMAGES. Question Usually one for Jury. Thus, where a man leaves a liorse unfastened upon the high- way, it is not necessarily an act of negligence. Whether it is or not, must be determined by considering the temper of the horse, and the particular circumstances under which he is left.' So, where in the proper discharge of his duty, and in the exer- cise of ordinary prudence, a person places himself where his life and personal safety are imperilled, that act, will not neces- sarily constitute negligence on his part.'" But, where the defendant dug a ditch across a public high- way and allowed it to remain open at night, with no provision for warning or protecting travelers, in an action for an injury caused thereby, this was held negligence as a matter of law, and a refusal to submit the question to the jury was held to be no error." And, under the provisions of a statute requiring the tumbling rod of threshing machines to be boxed, and pro- viding that the persons owning or running such machine shall be liable in damages to any person injured by reason of a neglect to do so; it was held, in an action to recover damages for an injury received in consequence of a failure to comply with the statute, that the failure to box was,^er se, negligence on the part of the person running the machine; but that the statute left the rule, respecting contributory negligence on the part of the injured party, the same as in other cases.'" To sustain an action for negligence it is not essential that the negligence should be willful. The only effect of proof of willfulness, as we have seen, it to give more liberal or even vindictive damages. 9 Greg^s V. Flieckstien, 14 Minn., 81; Albert v. Bleeker Street, etc., R. Co., 2Daly(N. Y.), 389. '° Carroll v. Mennisota Val. R. Co., 14 Minn., 57. " Sexton V. Zett, 44 N. Y., 430 (1871). See, also, Jetter v. New York & Hud. R. Co., 2 Abb. (N. Y.), 4-58. '^ Raymond v. Hindman, 32 la., 146 (1871). See, also. Chap. 10, ante, and Pickens v. Decker, 21 Ohio St.. 212, where it was held that an attempt to lead two skittish horses throug-h the streets, attached to a buggy, by means merely of a rope fastened around the neck of one of them, and an injury thereby occurred, was negligence per se. NEGLIGENCE. 521 For what Consequences Negligent "Wrongdoer is Answerable, etc. § 064. For what Consequences the Negligent Wrong- doer is Answerable— Negligent Fires.— The general rule is, that a person is answerable for the consequences of his negligence, only so far as they are the natural and aproxi- inate results of the injury, and might therefore have been anticipated by ordinary forecast; and not for those consequences arising from a conjunction of his fault, with circumstances of an extraordinary nature." The damages must be both the natural and proximate consequence of the act complained of, and the direct and not remote result of the defendant's wrong. And where the intervention of the independant act of a third person between the negligence of the defendant complained of and the injury sustained, is the immediate cause of injury, the plaintiff cannot recover." We here meet the difficulty, in drawing a line of limitation of liability, which we referred to in the introductory chapter as existing generally in actions for torts. The various doctrines of the metaphysicians, on the subject of causation, have been examined and criticised in attempting to frame some rule of universal application, in determining the juridical cause of damages resulting from negligence.'" '3 Fairbanks v. Kerr, 70 Pa. St., 86; Ryan v. N. Y. Cent. R. Co., 35 N. Y., 210. The measure of damages is the direct pecmiiary loss. Walrath v. Redfield, 11 Barb., 368; Butler v. Kent, 19 Johns., 223. u Cuff V. Newark, etc., R. Co., 35 N. J. L., 17. Whart. on Neg., § 134, et seq. n The English metaphysicianand philosopher, John Stuart MiU, in discussing the subject of causation, remarks: "For every event there exists some vx>m- bination of objects or events, some given concurrence of circumstances, positive and negative, the occurrence of which wiU always be followed by that phenomenon. We may not have found out what this concurrence of circumstances may be; but we never doubt that there is such a one and that it never occurs without having the phenomenon in question as its effect or consequence. * * * it is seldom, if ever, between a consequent and one single antecedent that this invariable sequence subsists. It is usually between a consequent and the sum of several antecedents; the concur- rence of all of them being requisite to produce, that is, to be certain of being followed by, the consequent. In such cases it is very common to 522 THE LAW OF DAMAGES. For what Consequences Negligent Wrongdoer is Answerable, etc. Suppose through the negligence of a raih'oad company, the house of A., near a raih-oad, is set on fire without his fault, by sparks and cinders escaping from the locomotive used by the company, and is consumed, and that the adjoining buildings single out one only of the antecedents under the denomination of cause, calling the others merely conditions. Thus, if a man eats of a particular dish and dies in consequence, that is, would not have died if he had not eaten of it, people would be apt to say that eating of that dish was the cause of his death. There needs not, however, be any invariable connection between the eating of the dish and death; but there certainly is, among the circumstances which took place, some combination or other upon which death is invariabh/ consequent; as for instance, the act of eating of the dish com- bined with a particular bodily constitution, a particular state of present health, and, perhaps even a particular state of the atmosphere; the whole of which circumstances, perhaps, constituted in tliis particular case the con- ditions of the phenomenon, or, in other words, the set of antecedents which determined it, and but for which it would not have happened. The real cause is the whole of these antecedents; and we have, philosophically speaking, no right to give the name of cause to one of them, exclusively of the others." 1 Mill's Logic (2 Lond. ed.). 398. The theory advanced by Mr. Mill, has recently been criticised and pro- nounced unsound, by Mr. Wharton in an article published in "The Southern Law Review" (Jan. 1876). He proceeds to discuss the question as follows: "Is a person liable for damages of which, unintentionally, he is one of the occasions, when, between the occurrence of the occasion and the damage, intervenes the negligence or malice of third parties by which the damage is immediately caused ? The question, it will at once be seen, opens to us the whole doctrine of causation. "What is a juridical cause? Is there a distinction between a "condition" and a "cause?" If so, and should it appear that this distinction is juridically fundamental, how does it bear on the issue before us? This question has been much agitated in other countries and in other gener- ations than our own. Perhaps I may best illustrate it, at least in its histor- ical relations, by advertmg to a famous controversy now a century old. On the 27th of September, 1774, died at the Vatican, Pope Clement XV., not many months after the issue of the bull Dominus ac Redemptor noster, suppressing the order of the Jesuits. The cause of his death has been the subject of a contention in which the doctrines we have just noticed are incident- ally discussed with singular acuteness and persistency. On the one side, we are pointed to the advanced age of Ganganelli, the secular name by which Clement XV. is best known; his habits of gastronomic indulgence; the sim- ilarity of his disease with those usually produced by over-eating; and in particular to a suspiciously excessive dinner he swallowed shortly before his final attack. On the other side, it is argued that while the dyspepsia which he suffered was the occasion, it was not the cause of his death; that his con- NEGLIGENCE. 523 For what Consequences Negligent "Wrongdoer is Answerable, etc. of B., C, and D. are thereby, without their fault, successively consumed; is the company liable to B., C, and D., respect- ively? On this question the authorities seem very conflicting, as stitution was such that he could have withstood this particular disease for years without succumbing; that the disease was accelerated by a subtle poi- son administered to him. by which its symptoms were aggravated and made fatal, and that the traces of this poison were detected in his remains. But even supposing that the latter statements are correct, are we to speak of such poi- son, supposing it to have been negligently given, or supposing it to be a part of remedies honestly prescribed by Ganganelli's physicians, as causing his death? Was not that death caused equally by other antecedents in his eventful life ? As threads in this cord of causation, are we not to enumerate hereditaiy infirmities which we can well suppose him to have received from his parents, and the enervating influence of a secluded ecclesiasticism, and the anxiety of the papacy at an era so critical, and that innumerable series of agencies which had united, for several generations, in bruiging Christen- dom face to face with the revolutions which were then about to convulse the world '? I have introduced this illustration because it gives, in a concrete shape, a case supposed by Mr. Mill, when advancing the theory of causation, which is the basis of the adjudications which I here contest. * * * The first and more technical objection to this theory is, that it is logically defective in making everj^thing the cauie of everything else. Thus, in the case of Ganganelli, there is not an event in prior or contemporaneous history of which we can safely say, that in no way it entered into the combination of occun-ences on which his death was consequent. Thus, to begin with one of the most obvious; it is clear that if his father, an accomplished physician of Arcangelo, possessed of considerable ecclesiastical influence, had not lived, or had not lived at Arcangelo, or had not possessed at Arcangelo the influ- ence just noticed, his son either would not have Hved at all, or would not have been educated at Arcangelo under circumstances so favorable to his subsequent success, or w^ould not have obtained those early ecclesiastical appointments which were the stepping stones to the papacy. So we have to suppose a line of ancestors from his father back, a change as to the con- ditions of either of whom would have prevented, if not the existence, at least the ecclesiastical education and promotion of the pontifi". But this is not aU. The buU Dominus ac Redemptor noster, to take up a single line of en- quiry, was one of the antecedents of the death ; but what were the antece- dents of the buU Dominus ac Redemptor noster ? When we look even at those antecedents alone by which that famous bull was quaHfied. our field of observation expands until not only all the events of contemporaneous Christendom are introduced, but all prior events by which Christianity was established or modified. What immediately produced the bull, Dominus ac 524 THE LAW OF DAMAGES. For what Consequences Negligent Wrongdoer is Answerable, etc. we have had occasion heretofore to notice. On the one side it is chiimed that the company is not liable. Thus, it has been held, that where through the defective condition of a loco- Redemptor noster ? As we search for its immediate antecedents, we notice Joseph II. visiting Rome in pei'son, in order, under motives of philosophical liberahsm, to obtain the election of an anti- Jesuit pope, and then vehement- ly urging on Ganganelli, as the pope-elect, decisive anti- Jesuit action; and with Joseph II. we observe the Spanish and French Bourbons, under the in- fluence of court intrigues, operating to promote the same object ; and with them co-operates Gallicanism, jealous of whatever conflicts with the prerog- atives of a national episcopate, and Jansenism not merely instinct with retributive vengeance on its old adversary, but implacably hostile to what- ever militated against the Augustinian doctrhie of grace. But what were the antecedents of Joseph II., and of French and Spanish Bourbonism, then in their corrupt decUne, and of Jansenism and of Jesuitism itself? Must we not, on this view, declare of the death of Ganganelli, as was declared by Fichte of the grain of sand, that he noticed on a shell on the sea beach, that the laws of the whole universe must be reversed in order to place that grain of sand elsewhere ? (Ficht§., die Bestimmung des Menschen, Werke ii., 178; cited by Mansell, Aids to Faith, p. 26.) May we not even ask, with Fichte, whom j\Iill in this respect follows, whether, in order to carry this grain of sand a few yards further, some one particular yet necessaiy ancestor of ours may not have perished from hunger, or cold, or heat ; and thus all that his descendants might do or hope to do, have been hindered so that a grain of sand might lie in a different place ? It is true that the reply at once arises that as a child's hand could have moved this grain of sand from the beach to the shell, so an assassin's stealthy purpose could have inter- rupted ordinary physical laws, and in spite of all his antecedents, caused the pontiff" 's death. But this, according to the philosophy we here examine, would not change the fact that the assassin with his poison is only a co-or- dinate figure in the interminable range of antecedents by which the death in question is equally caused. This death, in fact on this theory, forms part of a combination of events, each of wliich is dependent on the other, and neither of which can exist without the other. In this respect it is again, on this showing, like Fichte's grain of sand, which is put where it is by the equih- brium of the universe, and yet from which the equilibrium of the universe results. The localization of the ancestor, on Fichte's hypothesis, is as es- sential to the existence of the grain of sand, as the localization of the grain of sand to the existence of the ancestor. Hence, we have the grain of sand and the ancestor part causes of each other; and each, therefore, is part cause of itself. Each event, in other words, according to such a theory of causa- tion, becomes part cause of its own causes, and contributes to create that by which it was created. We are baffled, therefore, when we seek for causa- tion on this hypothesis, either by being turned back to antecedents which, as NEGLIGENCE. 625 For what Consequences Negligent Wrongdoer is Answerable, etc. motive of the defendant, a railroad company, a quantity of wood was ignited in one of its sheds, and the shed was con- sumed, and the fire therefrom set on fire and consumed the unconditioned by time or space, are beyond our cognition; or which are each other's causes, which is absurd. I said there was a second reason for my taking' Ganganelli's death to iUus- trate Mr. Mill's notions of causality. The first reason is, that Mr. Mill sug- gests this death himself. The second is, that it enables me to bring to bear on this topic the Roman law, which was that, to pursue the analogy in the way a similar theme is treated by Robert Browning, by the forms of which the pontiff's death was actually investigated. But there are other grounds for appealing to the Roman law to aid in the present investigation. The Roman jurists were not only great lawyers, but they were familiar with the Epicurean scheme of causation which Mr. Mill has lately reproduced Elo- quently is this hypothesis discussed by Cicero; and two, at least, among the Justinian jurists, are referred to by Cicero as masters in the science of juris- prudence in its wide sense. But we have not to content ourselves with mere inferential proof such as this. Ulpian is the most copious writer cited in the digest; and at the very beginning Ulpian takes pains to show us that Greek pliilosophy has been cautiously weighed by him, in the reaching of judicial results. If, therefore, we are to look for an adequate tribunal to determine what is causality, as a practical question, and in the only shape in which the enqu'ry can become useful to us, we may find this tribunal in a court gov- erned by the principles of the Roman law. 'What killed Ganganelli?' We can conceive such an inquiiy as this to be instituted before a Roman court of initiatorj- process, a court exercis- ing functions similar to those of one of our own committing magistrates. 'What killed Ganganelli?' Tn the days of Ganganelli, as well as in the days of Justinian, and in our own days, epicureanism and stoicism each had their votaries; and it is not diflScult to imagine epicurean pliilosophers, who anticipated Mr. Mill in one part of his speculations, and stoical philoso- phers, who anticipated him in another, as among the witnesses of the pontiff's death. An epicurean cook, or chief of the kitchen, would not have been an unnatural inmate of the pontifical household; and stoical physicians were not likely, in those days, to have been unknown in such a court. We can, therefore, readily conceive of an examination such as the following: Judge — What, to your knowledge, was the cause of the Pope's death? Epicurean Cook — The 'sum of all his antecedents;' this is the only kind of causation which philosophy can possibly .know. Judge — (Supposing him not to lose his temper at the answer.) But you presided over the Pope's kitchen the day of his death; was there anything that went to him different from his usual diet? Anj^hing to cause indi- gestion. Witness — Everything caused everything. Indigestion, if it existed, can 526 THE LAAV OF DAMAGES. For what Consequences Negligent Wrongdoer is Answerable, etc. house of the plaintiff, abont one limidred und thirty feet dis- tant from the shed, the phaintijEf coukl not recover of tlie com- not be said to be caused by the Pope eating a particular dish. It was caused, as the philosophers tell us, by the dish, and the Pope's own consti- tution, and the constitutions of his ancestors, and the particular state of the atmosphere by which he was surrounded, and the particular states of prior atmospheres by which this particular subsequent atmosphere was produced, and Judge — But stop. You are here to answer a particular question, and that question you must answer now, or go to prison until you do. You and I have notliingr to do with these events you call the ' sum of all the antece- dents.' You saw the food sent to the Pope. Was there anything in it by which his death might have been caused? Or suppose the question to be put to the surgeons who examined the Pope's remains, What caused his death ? And suppose a similar answer to have been made. What other reply can we conceive of than this : * You are bound to tell which of these innumerable antecedents, of which you speak, was the cause; the only cause which public justice can deal with, and which public safety demands.' Nor is the reasoning of our Anglo-American courts different in result, though it is couched in less philosophical terms than those by which, as we will presently see, the conclusions of the Roman jurists are defended. Thus, in Stokes' case, a case where every possible defense that ingenuity could devise and audacity propose, was offered, judge after judge, herein follow- ing a uniform line of unassailable adjudications, scouted at the idea that risk's "constitution " or other "antecedents '' had anything whatever to do with the case, except so far as those antecedents tended to show Stokes that he was about to be attacked by Fisk; and it was even ruled that so close and immediate an antecedent as the probing of the wound by the surgeons was irrelevant, unless it should be proved that the probing itself was such as to have produced, as a regular and ordinary inference, the death of Fisk. So in York's case, famous in the annals of Massachusetts jurisprudence, and in Flanagan's case (Flanagan v. People, 52 N. Y. 699.), reported in the fifty- second volume of the reports of the New York Court of Appeals, the highest courts in Massachusetts and New York, following herein the lead- ings of all other Anglo- American courts who have discussed the question, dismiss with summary curtness the suggestion that the defendant was in a condition of mind to be necessitated by circumstances to do a particular thing. Sane or insane, there is no one, it is held, who is necessitated to any act by ' the sum of all his aijtecedents.' Is tiiis barbarous ? If it was the English common law alone which rules this, — a law so disdainful of metaphysics, and which metaphysics so much disdains, — the rebuke of barbarism might be treated as a natural retort. But not only the English, but the Roman law thus speaks; and the Roman law, in the person of some of its most eminent modern jurists, defends this NEGLIGEI^CE. 527 For what Consequences Negligent Wrongdoer is Answerable, etc. pany for the loss he had thereby sustained." So where a rail- road company through its negligence, set fire to the liouse of another, and the fire therefrom was communicated to the house of a third party which was consumed with its contents; it position by reasoning -whicli may be thus condensed: (Feuerbach, Pein- liclies Reclit; II. Berner, Stralrecht, §§ 6-22.) An offense is committed, or an injury done; it is essential for us, when we come to punish the offense or redress the injury, to distinguish between those of its conditions which are mechanical and irresponsible, and those which are moral and responsible." See, also, a discussion of the subject in Appendix, Whart. on Neg. ' Ryan v. New York Cent. R. Co., 35 N. Y., 210 (18G6). Hunt. J., in this case, after referring to several authorities where it was held that the losses were the natural and necessary consequences, and result ordinarily to be antic- ipated, and hence made the negligent wrongdoer liable, and also authorities where the loss was held too remote, remarks: " If an engineer upon a steam- boat or locomotive, in passing the house of A., so carelessly manages its machinery that coals and sparks from its fires fall upon, and consume the house of A., the railroad company or the steamboat proprietors are liable to pay the value of the property thus destroyed. (Field v. N. Y. Central R. R., 32 N. Y., 339.) Thus far the law is settled and the principle is apparent. If however, the fire communicates from the house of A., to that of B., and that is destroyed, is the negligent party liable for his loss '? And if it spreads thence to the house of C, and thence to the house of D., and thence consec- utively tlirough the other houses, until it reaches and consumes the house of Z., is the party liable to pay the damages sustained by these twenty-four sufferers'? The counsel for the plaintiff does not distinctly claim thip, and I think it would not be seriously insisted that the sufferers could recover in such case. Where then is the prmciple upon which A. recovers, and Z. fads? It has been suggested that an important element exists in the difference between an intentional firing, and a negligent firing merely; that when a party designedly fires his own house or his own fallow land, not intending however, to do any injury to his neighbor, but a damage actually results ,that he may be liable for more extended damages than where the fire originated in accident orneghgence. It is true that the most of the cases where the Habihty was held to exist, were cases of intentional firing. * * * With- out deciding upon the importance of tliis principle, I prefer to place my opin- ion upon the ground that, in the one case, to- wit: the destruction of the building upon which the sparks were thrown by the negligent act of the party sought to be charged, the result was to have been anticipated the moment the fire was communicated to the building; that its destruction was the ordinary and natural result of its being fired. In the second, third or twenty-fourth case, as supposed, the destruction of the building was not a natural and expected result of the first firing. That a building upon which sparks and cinders fall should be destroyed or seriously injured must be 528 THE LAW OF DAMAGES. For what Consequences Negligent Wrongdoer is Answerable, etc. was held that the railroad company was not liable for the loss of the last building or its contents thus destroyed, and that a party guilty of an act of negligence by which loss results, is not liable for all the remote consequences which ma}- ensue therefrom/ On the other side it has been held, in several recent and well considered cases, that such losses may be recovered ; that such damages are not too remote from the negligent cause; that the causal connection between the negligence and the losses of the respective parties is complete, and that the question of negli- gence of the company and of the other parties should be sub- mitted to the jury under all the circumstances of tlie case. Thus, in Illinois, where it appeared that a locomotive, belong- ing to the defendant, in passing through a village with a train of cars, threw out great quantities of unusually large cinders expected, but that the fire should spread and other buildings be consumed, is not a necessary or an usual result. * * * To sustain a claim like the present, and to follow the same to its legitimate consequences, would subject to a liability against which no prudence could guard, and to meet which no private fortune would be adequate. Nearly all fires are caused by negligence in its extended sense. In a country where wood, coal, gas and oils are uni- versally used, where men are crowded into cities and villages, where servants are employed, and where children find their homes in aU houses, it is impos- sible that the most vigilant prudence should guard against the occurrence of accidental or negligent fires. * * * 'pg hold that the owner must not only meet his owm loss by fire, but that he must guarantee the security of his neighbors on both sides, and to an unlimited extent, would be to create a liability which would be the destruction of all civilized society. No com- munity could long exist under the operation of such a principle. In a com- mercial country, each man, to some extent, runs the hazard of his neighbor's conduct, and each, by insurance against such hazards, is enabled to obtain a reasonable security against loss. To neglect such precaution, and to call upon his neighbor, on whose premises a fire originated, to indemnify him instead, would be to award a punishment quite beyond the offense committed. It is to be considered, also, that if the negligent party is liable to the owner of a remote building thus consumed, he would also be liable to the insurance companies who should pay losses to such remote owners. The principle of subrogation would entitle the companies to the benefit of every claim held by the party to whom a loss should be paid." See, ante, § 50, et seq, and notes. * The Pa. R. Co. v. Ken-, 62 Pa. St., 353 (1869). KEGLIGENCE. 529 For what Consequences Negligent Wrongdoer is Answerable, etc. which set on fire a warehouse near the track, the heat and flames from which ignited a building of the plaintiff which was situated about two hundred and fifty feet from the ware- house, and which was thereby destroyed; it was held, that the company was not exonerated from liability merely because the plaintiff's house was not immediately ignited by the cinders thrown from the locomotive, but by the burning of the ware- house; that it was not a conclusion of law, that the fire sent forth by the locomotive should be considered as the remote and not the proximate cause of injury to the plaintiff, but a question of fact to be determined by the jury under the instructions of the court.^ s Fent V. Toledo, P. & W. R. Co., 59 111.. .349 (1871). This case foUowed the case of Ryan v. N". Y. Cen. R. Co., and Pa. R. Co. v. Kerr, supra. The question involved was the same in each, and they were fully considered by the court in the Illinois case. Lawrence, C. J., in the opinion in that case, remarks: "With the exception of two recent cases decided in this country, it cannot be denied that the great current of English and American authori- ties would bring the defendant in this case within the category of proximate causes. * * * From the oft-quoted squib case of Scott v. Shephard, 2 W. Black., 892, down to our own day, the EngUsh reports abound with instances in which causes more remote than the cause in this case have been held sufficiently dii-ect and proximate to make a ground of damages. As illustrative of this we content ourselves with citing Illidge v. Goodwin, 24 E. C. L., 272; Lynch v.Nurdin,41 E. C. L., 422; Ridgely v. Hewitt, SExch., 240; Greenland v. Chaplin, 5 Exch.. 243, and Montoyer v. London Insurance Co.. 6 Exch., 451." After citing and commenting upon the following American and EngUsh cases, as sustaining his views, namely, Tweed v. Insurance Co., 7 Wallace, 44; Powell V. Deveny, 3 Cush., 300; Vandenburgh v. Truax, 4 Den., 464; Hart V. West. R. Co., 13 Met., 99; Perley v. Eastern, R. Co., 98 Mass., 414; Cleveland V. Grand Trunk R. Co., 42 Vt., 449; Piggott v. Eastern Counties R. Co., 54 E. C. L., 229; Smith v. The London & S. W. R. Co.. 5 L. R. C. P., 98, he continues: " We now come to the two cases chiefly relied upon by appellee's counsel. They are quite in point, but we are wholly unable to agree with their conclusions. One is Ryan v. The New York Central Rail- road Co., 35 N. Y., 214, and the other is Kerr v. The Pennsylvania Railroad Co., decided by the Supreme Court of Pennsylvania, at its May term, 1870. These two cases stand alone, and we believe they are directly in conflict with every English or American case as yet reported, involving this question. * * * It has often been held by this and various other courts, that if fire is communicated to the dried grass of an adjoining field, through the care- 34 630 THE LAW OF DAMAGES. For what Consequences Negligent Wrongdoer is Answerable, etc. And in a recent case where the action was for damages caused bj the negligence of a railroad company, by which sparks emitted from the company's engine kindled fires in two different places, on lands not belonging to the plaintiff, and the two fires spread and finally uniting passed over the lands of several other parties, and finally reached the premises lessness of the persons managing a railway locomotive, and spreads over the field, no matter to what extent, destroyinfj haystacks, fences and houses, the company is liable. The correctness of these decisions is not assailed by appellee's counsel, and we have no doubt that the same rule would be applied by the courts that decided the cases upon which counsel rely. But if these two decisions, in New York and Pennsylvania, are con-ect law, it must be held, that if fire is communicated from the locomotive to the field of A., and spreads through his field to the adjoining field of B., while A. must be reimbursed by the company, B. must set his loss down as due to a remote cause, and suflFer in uncomplaining silence. Would there not be in such a decision, a sense of palpable vnrong which would shock the public conscience and impair the confidence of the community in the administration of the law. * * * * Both these opinions, upon which we are com- menting, expressly admit, as both courts have decided, that if, through the negligence of a railway company, fire is communicated to the building of A. he may recover. But suppose the building is a wooden tenement, one hundred feet in length extending from the railway. In the Pennsylvania case the second building was only thirty-nine feet from the first. We pre- sume that court would hold, and appellee's counsel would admit, that A. might recover for the value of his entire building, one hundred feet in length. But suppose B. owns the most remote fifty feet of the building. Could he recover? We suppose not under the rule announced in these cases. But why should he not, under any definition of proximate cause that has ever been given by any court or text writer. * * * If it is admitted that there may be a recovery for the second fifty feet of the building as well as for the first when there is one continuous building, and whether owned by one per- son or by two, is it possible that when the second fifty feet is removed a short space from the first, but is still so near that the burning of the one makes almost certain the destruction of the other, there can be no recovery ? Is not the burning of the second building still ' the natural and proximate conse- quence of the act complained of? ' It seems to us that the arbitrary rule enforced in these two cases, which is simply this, that where there is negli- gence, there may be a recovery for the first house or field, but in no event for the second, rests on untenable ground, and would involve the administra- tion of the law in cases of this character in absurd inconsistencies. * * * The Court of Appeals of New York, and the Supreme Court of Pennsylva- nia, seem from their opinions to have attached great weight to an argument urged upon us by the counsel for the appellee, and indeed that argument NEGLIGENCE. 531 For what Consequences Negligent Wrongdoer is Answerable, etc. of the plaintiff, about four miles distant from the point where it first started, and there destroyed the property of the plain- tiff; the court held, that the loss was not too remote to allow a recoveiy." The same doctrine has been recently maintained in Wisconsin.' seems to have been the cliief reason for announcing' a rule which both courts struggle in vain to show is not in conflict with all prior adjudications. That argument is in brief that an entire village or town is liable to bo burned down by the passing of the fire from house to house, and if the railway com- pany, whose locomotive has emitted the cinders that caused the fire, is to be charged with all the damages, these companies would be in constant danger of bankruptcy, and of being obliged to suspend their operation. We confess ourselves wholly unable to see the ovei'powering' force of this argument. It proceeds upon the assumption that if a great loss is to be suffered, it had better be distributed among a hundred innocent victims, than wholly visited upon the wrongdoer. As a question of law or ethics the j)roposition does not commend itself to our reason. We must still cling to the ancient doctrine, that the wanton wrongdoer must take the consequences of his own act, whether measured by a thousand dollars or a hundred thousand." 6 Atkinson T. & S. F. R. Co. v. Sanford, 12 Kans., 354 (1874). The Supreme Court of Kansas, per Valentine', J., say: "After a careful examination of this question we are satisfied, both upon reason and authority, that the dam- age is not too remote to be recovered. We have already decided that where the fire runs thirty rods from the place where it is first kindled, and there does damage, the plaintiff may recover. (St. Jo. & D. C. R. Co. v. Chase, 11 Kans., 47.) Now if the plaintiff may recover when the fire has run thirty rods, why may he not recover when the fire has run forty rods, or a mile, or four miles. WUl it be claimed that the ownership of the property over which the fire runs can make any difference. * * * The first etficient and ade- quate cause, as well as every intermediate cause necessarily following from the fkst cause, is always held in law to be the proximate cause, unless some new cause, independent of the first cause, shall intervene between the first cause and the fi.nal injurious result. This is equally true where the successive events are separated by clearer and better defined outlines than they are in the burning of prairie grass, or a stubble field. * * * Why should not every person whether far away or near, recover for the wrongful acts of another? Even if it should bankrupt the -wrongdoer, would that be any reason for not compensating an innocent sufferer? As a question of etliics and morals, as well as of law, where a great loss is to be borne by some- body who should bear it, the innocent or theguUty?" 7KeUogg V. Chicago & N. W. R. Co., 26 Wis., 223. See, also, Pearly v. Eastern R. Co., 98 Mass., 415; Hart v. West. R. Co., 13 Met., 99; Annapo- lis & E. R. Co. V. Gantt, 39 Md., 115; Kellogg v. Milwaukee & St. P. R. Co., Cent. L. J. Vol. 1, 278. MiUer and DiUon, J. J., U. S. Circ. Ct., Dist. of Iowa, May T. 1874; Whart. on Neg., § 154; ante, § 50 and notes. 532 THE LAW OF DAMAGES. Successive NeRligence of DifEerent Pai-ties. § G6G. Successive Negligence of Different Parties .— Interesting questions have been presented where losses have been occasioned bv the successive negligence of two or more parties. Thus, suppose that through the carelessness of a rail- road company in not using a proper " spark arrester," sparks escape from its locomotive, which falling on dry rubbish care- lessly left by another party scattered over his premises near the railroad, and fanned by the wind, it takes fire and, fed by the rubbish, it is driven by the wind to the buildings of another party which are thereby consumed. Which party is liable for the loss? It is maintained that in such a case the railroad company is only one of the occasions of the loss, and not the cause; that where between such an occurrence and the loss, there intervenes the negligence of another party without which last negligence the loss would not have occurred, then the for- mer is not liable.^ 9 Whart. on Neg., § 134. et seq. "Supposing that had it not been for the intervention of a responsible third party, the defendant's negUgence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent, responsible human action. 1 am negligent on a particular subject matter. Another person, mo\dng independently, comes in, and either negligently or maliciously so acts as to make my negli- gence injurious to a third person. If so, the person so intervening acts as a non-conductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured. 1 may be liable to him for my negli- gence in getting him into difficulty, but I am not liable to others for the neg- ligence which he alone was the cause of making operative." Id. On the other hand, but for the negligence of the first person, in the case stated in the text, the negligence of the second would not have resulted in any loss. Why should the latter be required to pay damages occasioned by his negligence, when no loss would have resulted from the negligence but for the active negligence of the former? Would it not, in such cases, be more con- sonant with principles of justice and equity to require the parties equally cul- pable to contribute equally in satisfaction of the loss. See Kellogg v. Chi- cago & N. W. R. Co., 26 Wis., 223. We have, in treating of contributory negligence, considered the doctrine, recognized in Illinois, of comparative negligence. This doctrine would go NEGLIGENCE. 533 Damages in Cases of Negligence— Elements of. § 667. Damages in Cases of Negligence— Elements of. — In many cases there can be no precise rule for tlie esti- mate of damages arising from negligence, or by which the extent of the recovery can be prescribed." If the action be for an injury to the person, the compensation is frequently to a large extent, for pain and suffering of mind or body, which cannot be accurately estimated in dollars and cents."' It may be observed that the general principles which we have referred to, as applicable in the measure of damages generally in actions for torts, are applicable in cases of negligence, whether of mis-feasance or non-feasance.'* In general it may be said that for an injury to the person resulting from negligence, the damages may embrace the nearly, if not quite, to the len^h of making the right to recover to depend upon the question as to which of the parties was most in fault. A limited doctiine of this kind has been recognized in many cases; such as that if the plaintiff's fault was slight in comparison with that of the defendant's gross negligence, the plaintiff may recover. And it maybe worthy of serious con- sideration, if it would not promote justice, in these cases, as well as in those cases of consecutive neghgence which we have referred to, if there was a divis- ion of the losses or some plan of apportionment of the damages, according to the degree of fault of the respective parties. This doctrine is recognized in the Admiralty Courts; as where a coUision occurs through the negligence or fault of both parties. In such a case, the damages are equally divided between them. Vaux v. Sheffer, 8 Moo. P. C. C, 75; The Milan, 31 L. J. Adm., 105. '^ If the damages sustained cannot be accurately determined, the wrong- doer must bear the burden of such difficulty, and where the evidence seems equally balanced between two or more amounts, he must pay the larger sum. Shear. & R., on Neg., § 594. '7 Walker v. Erie R. Co., 64 Barb. (N. Y.), 299. For other authorities showing in what cases the question of negUgence is held to be one of law to be decided by the court, as where the facts are undisputed or conclusively proved, and when to be submitted to the jury, as when the facts are disputed or the evidence conflicting, see, Greenleaf v. 111., etc., R. Co., 29 la., 14; Jenkins v. Little Miami R. Co., 2 Disney (0.), 49; Belton v. Baxter, 2 Sweeney (N. Y.), 339; Penn. Canal Co. v. Bentley, 66 Pa. St., 30; Smith v. Clark, 3 Lans. (N. Y.), 208; Maloy v. N. Y. Cen. R. Co., 58 Barb,, 182. »8 See, ante, § 599, et seq. Also, Shear. & R. on Neg,, § 598. 534 THE LAW OF DAMAGES. Damages in Cases of Negligence— Elements of. expenses of cure;" the value of time lost thereby ;=" a fair compensation for physical" and mental suffering, caused by the wrong; any permanent disability and diminution of power to earn money;" and also, exemplary damages whei'e such are proper under all the circumstances of the case, and in accordance with principles already laid down." Nor is the wrongdoer entitled to a deduction of the amount received by the injured party from an insurance company on account of the injuries received.^* '9 Peoria Bridge Association v. Loomis, 20 111., 235; Beardsley v. Swan, 4 McLean, 333; Ransom v. N. Y. & Erie R. Co., 15 N. Y., 415; Moody v. Osgood, 50 Barb., 628. «> Wade V. Leroy, 20 How. (U. S.), 34; Morse v. Auburn, etc.. R. Co., 10 Barb., 621; Holyoke v. Grand Trunk R. Co., 48 N. H., 541. " Ransom v. N. Y. & Erie R. Co., 15 N. Y., 415; Curtis v. Rochester, etc., R. Co., 20 Barb., 282; Linsley v. Bushnell, 15 Conn., 225; West v. Forest, 22 Mo., 844. =« Masters v. Warren, 27 Conn., 293; Seger v. Barkbenstead, 22 Conn., 290; Wadev. Leroy, 20 How. (U. S.), 34; Curtis v. Rochester, etc., R. Co., 18 N. Y., 534. ^3 Winters v. Hannibal, etc., R. Co., .39 Mo., 468. See, also, ante, § 84. '* Harding V. Townshend, 43 Vt., 536. Mr. Mayne observes as follows: " Very little can be said with certainty as to damages for personal injuries inEicted by negligence. Loss of time during the cure, and expense incurred in respect of it, are of course matters of easy calculation. Pain and suifering undergone by the plaintiff are also a ground of damages. And in this point such an action differs from one brought by the personal representatives where a death has ensued. Any permanent injuiy, especially when it causes a disability from future exertion, and consequently pecuniary loss, is also a ground of damage. This is one of the cases in which damages most signally fail to be a real compensation for the loss sustained. In one case Park, B., said: ' It would be most unjust, if, whenever an accident occurs, juries were to visit the unfortunate cause of it with the utmost amount which they think are equivalent for the mischief done. Scarcely any sum could compensate a laboring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life. No rule can be laid down in such a case; and although a jury are frequently cautioned not to let their verdict be influenced by the poverty of the plaintiff and the wealth of the defendant, yet the caution is probably seldom much attended to." Mayne on Dam., 351, (2 ed.); Ashworth v. S. E. R. Co., 11 Jur., 760; 18 Q. B., 104. See, also, ante, § 396 and Chaps. 21, 22 &nd,post. Chap. 23. NEGLIGENCE. 535 Illustrations. §668. Illustrations.— In an action for injuries caused bj negligence, including the malpractice of physicians and surgeons, the proper elements of damages are loss of time sustained thereby, expenses incurred by care and attendance, suffering of mind and body, and any prospective injury, especially when it causes disability for labor and exertion and consequent pecuniary loss," and which it is reasonably certain will continue."" So, in a recent case in Mississippi, in an action against a railroad company for loss sustained by its negligence, the court held, that a jury in estimating compensatory damages, for injuries to the person of a passenger on a railway train could take into consideration loss of time, expenses, bodily pain, cost of medicines, medical attendance and mental suf- fering caused by the injuries; and also future damages caused by loss of health, of time, and of the use of limbs." And it has been held proper in an action for personal injuries, for the plaintiff to show the amount he was earning at his trade at and about the time of the injury,'" and the amount of profits of his business, as affording some evidence of what he might have earned if he had not been injured."" =s Peoria Bridge Association v. Loomis, 20 111., 235; Canning v. Williams- town, 1 Cush. (Mass.), 451 : Ballon v. Far man, 11 Allen (Mass.), 73; Hopkins, V. Atlantic R. Co., 36 N. H., 9; Curtis v. Rochester, etc., R. Co., 20 Barb. 282; Wade v. Leroy, 20 How., 34; Oakland R. Co. v. Fielding, 48 Pa. St., 320; Eden v. Lexington, etc., R. Co., 14 B. Mon., 204 (1853). * Frink v. Scroyer, 18 111., 416; Hunt v. Hoyt, 20 111., 544, where in an action by husband and wife for an injury sustained by the defendant's negli- gence, it was held that the jury might consider the length of time she would be ill in consequence of her injuries. See, also a recent case, Holyoke v. Grand Trunk R. Co., 48 N. H., 541 (1869); Curtis v. Rochester, etc. R. Co., 18 N. Y., 534; 20 Barb. (N.Y.), 282. 27 Memphis, etc., R. Co. v. Whitfield, 44 Miss., 466 (1871). See, also, Spicer V. Chicago & N. W. R. Co., 29 Wis., 580 (1872.) »8 Beisigel v. New York Cent. R. Co., 40 N. Y., 9 (1869). »9 Hanover R. Co. v. Coyle, 55 Pa. St., 896. 536 THE LAW OF DAMAGES. Damages to Real Property from Negligence— Personal Property, etc. § 609.— Damages to Real Property from Negligence. — If the negligent injury relates to real property the ordinary rule of damages on general principles, is the difference between, the market value of the property immediately before and its like value immediately after the injury occurred/" But this is not the universul rule, as where the injury can be repaired at a slight expense; in which case the expense of repairs would furnish the most satisfactory measure/' And where fruit or shade trees are destroyed, the value of the trees may be recovered apart from the value to the land." So, if the injury be to a well, by rendering the water impure, the jury may consider in estimating damages, the cost of furnishing pure water to the plaintiff and his family, and give damages there- for.^^ But damaeres to real estate will hereafter be fullv con- sidered. § 670. Personal Property— Damages.— For negligent injury to personal property, the same general principles of damages apply that we have observed as applicable in case of trespass. The difference in value immediately before and again immediately after the injury, would usually furnish the measure of damages.'^ But this can never exceed the value of the property. If the property is totally destroyed of course the owner should recover its full value. If the injury is to domestic animals the owner should also be remun- erated for any reasonable care and efforts to restore them, in addition to their depreciated value by reason of the injury, or their full value, where after due care and attention they are 30 McGuu-e V. Grant, 1 Dutch., 356. 3' Terry v. Mayor, etc., of N. Y., 8 Bosw., 504. See, also, rule of damages for injury to real estate generally, post. Chap. 30. 32 Whitbeck v. N. Y. Cent. R. Co., 36 Barb., 644; Chicago, etc., R. Co. v. Ward. 16 111., 522; Hassa v. Junger, 15 Wis., 578. 33 Ottawa Gas Co. v. Graham, 28 111., 73. See, also, as to overflowing lands, Markham v. Great Northern R. Co., 33 L. J. (Q. B.), 279. 34 See, post, Chap. 32 NEGLIGENCE. 537 Damages In Other Cases. finally lost;^^ and for time spent and expenses incurred in searching for them, where they have strayed and become lost by the negligence of the defendant." § 672. Damages in Other Cases. — We have already considered the subject of damages for negligence by public officers, telegraph companies, and bailees in general, and for injuries resulting in death, and reference may be had to those subjects where the rule of damages in those cases are discussed. 35 Watson v. Lisbon Bridge Co., 14 Me., 201. But this rule has received this qualification, that the whole sum recoverable shall not exceed the value of the animal. Gillet v. Western R. Co., 8 Allen, 560. This qualification is hardly maintainable on principle. 36 North Missouri R. Co. v. Akers, 4 Kans., 453 (1868). 638 THE LAW OF DAMAGES. General Rule— Illustrations. CHAPTEE XXIII. FALSE IMPRISONMENT. Section 679. General Rule— Illustrations. 681. Matters in Aggravation— Exemplary Damages. 682. Mitigation. 683. "What May be Shown in Defense. §679. General Rule— Illustrations. — False imprison- ment is any arrest or imprisonment without authority of law, and embraces any unlawful restraint of one's liberty, or "an un- lawful restraint of a person, contrary to his will, either with or without process of law;'" and this is a wrong for which an action for damages may be maintained. The general princi- ple in such cases, free from any express malice, is, that the party injured may recover the actual damage suffered in con- sequence of the imprisonment, including counsel fees, and other expenses incurred in procuring a discharge, loss of time, interruption of business, and bodily and mental suffering.' Where, upon the advice of counsel, defendant applied to a court of general jurisdiction, for a writ of ne exeat against the plaintiff, and it was allowed without authority of law, and ' Bouv. L. Die. = Bonesteel v. Bonesteel, 30 Wis., 511 ; Pritcliet v. Boevey, 1 Cro. & M., 775; Blythe v. ThompHns, 2 Abb. Pr. R., 468; Farall v. Barnett, 22 Eng., L. & Eq., 179; Parsons v. Harper, 16 Grat. (Va.), 64. The damages in actions for assault or false imprisonment wUl vary according to the circum- stances of the case. Mayne on Dam., 262. See, also, damages for assault and battery where the same general principles prevail, ante § 599, et seq. FALSE IMPKISOKMENT. 639 Illustrations. the plaintiff was arrested thereon, it was lield that these facts did not furnish evidence of express malice nor authorize puni- tive damages, and that a request afterward made of the judge (by telegram), not to vacate the writ, or discharge the plain- tiff until defendant could be heard, and a statement by the de- fendant that he was displeased when he heard of the discharge and disapproved the action of the judge in granting it, was insufficient to show malice.' So, where a defendant was ar- rested and threatened with imprisonment upon a writ in a civil action, void for irregularity and the want of a proper af- fidavit, and was compelled to promise not to abscond, and procured friends to vouch for hiin, and was subjected to ex- pense in procuring an order setting aside the writ six days after its issuance, it was held that he could recover for this interference with his person and restraint of his liberty, though he was not actually imprisoned and did not give the bond required by the writ, and though there was no express malice." § 680. And when the warrant is in fact void, as where the court or magistrate issuing the same has no jurisdiction of the offense or subject matter for which the warrant issued, which fact is apparent from the warrant itself, or where it is irregular on its face, or where the officer arrests some other party than the one commanded by the writ to be arrested; in 3 Bonesteel v. Bonesteel, 30 Wis., 511. See also Fuller v. Bowker, 11 Mich., 204. * Bonesteel v. Bonesteel. 28 Wis., 245. See also, Bauer v. Clay, 8 Kan., 580; Brusbaber V. Stegemann, 22 Micb., 266; Johnson v. Tompkins, Baldw., 571; Pike V. Hamson, 9 N. H., 491; Floyd v. State, 1 Ark., 43; Gavin v. Blocker, 2 Brev. (S. C), 157. Vindictive damages will not be allowed a seaman for an unlawful imprisonment by the master of the vessel, unless the motives of the master were bad, but he may recover for the time of his imprisonment, the value of his articles sold or lost in consequence thereof, the amount nec- essarily paid for his passage home, and mterest on the same, as proper ele- ments of damage. Jay v. Abey, 1 Woodb. & M., 262. See also, The Mar- ca, Blatchf. & H. Adm., 831. 540 THE LAW OF DAMAGES. Matters in Aggravation— Exemplary Damages. all such cases tlie officer is liable in damages for the arrest or imprisonment, and the process is no protection to him. Thus, where a statute authorizes constables to arrest with- out a warrant on theirown view of the commission of a crime, or on the speedy information of others, persons guilty of des- ignated offenses, a constable wlio arrests a person for one of such offenses on a warrant which he supposes to be valid but which is in fact void, and without other information than that contained in the warrant, cannot plead tlie statute authorizing an arrest without a warrant, in justification of the arrest* But the officer is justified if the warrant is fair on its face and shows jurisdiction in the person issuing it, as against the person named in the warrant.' So, a warrant of arrest and imprisonment, in which the christian name of the defendant is omitted, is no protection to the officer serving it.^ § C81. Matters in A^sravation— Exemplary Dama- ges. — When the arrest or imprisonment is malicious or in bad faith more liberal damages may be given, and even exemplary or punitive damages may be allowed. Thus, where the employes of a railroad company were arrested under criminal process for malicious injury to a building belonging to the com- pany which they were engaged in removing, and were brought before a magistrate, but were subsequently released, the per- sons ordering the arrest, saying they did not wish to prosecute them further, as they had sued out an injunction restraining the company from removing the building; it was held, that those causing the arrest were liable in damages for tlie false imprisonment, as the prosecution was a sham; and that under the circumstances the damages were aggravated rather than s Perry v. Jolinson, 37 Conn., 32 (1875). 2 Hill, on Torts, 185, et seq., and notes, 189. « Decker V. Bryant, 7 Barb., 182. 7 Trail V. McDonald, 7 Kan., 427. See also, State v. Queen, 66 N. C, 615; Gardner v. Bain, 5 Lans. (N. Y.), 256. FALSE IMPRISONMENT. 541 Mitigation. diminished, because the forms of legal process were made use of to accomplish a sham arrest.' §682. Mitigation. — In an action for damages for false imprisonment, the advice of an attorney who instituted the suit, cannot justify the arrest, but the advice of even an inex- perienced attorney may properly be shown in mitigation of damages.' So, although mere words will not justify an assault and battery, or a false imprisonment, yet, in an action for impris- oning the plaintiff without cause, seditious language used by him of a gross and violent character, and which influenced the defendant to order his arrest, may be shown in mitigation.'" Where a private person makes an arrest under circumstances •which do not justify him, but would justify an officer, he should be held to pay reasonable and fair damages according to the circumstances. But these damages should be mitigated, where there were reasonable and probable causes which induced it. And where an arrest of this kind was made upon reasonable and strong grounds for suspecting a larceny, a verdict for $3,000 in an action for the false imprisonment was set aside as exces- sive." So, where an order was issued by the adjutant general of the state, by order of the executive, to officers of the state militia, for the arrest of certain persons supposed to be connected with the assassination of some government officers, it was held that these facts, though no defense to an action for 8 Fellows V. Goodman, 49 Mo., 62. See, also, Hamlin v. Spaulding, 27 Wis., 360; Bashaber v. Stegemann, 22 Mich., 300; Brown v. Chadsey, 39 Barb., 253; Marsh v. Smith. 49 111., 396; Wamick v. Foulks, 12 Mees. & Wels., 507, w^here it was held that a plea that plaintiff was guilty of larceny for which he was arrested, although subsequently withdrawn and no defense made, was a fact in aggravation. 9 Mortimer v. Thomas. 23 La. An., 165. " McCall V. McDoweU. 1 Abb., (U. S.), 212; Deady (U. S., C. & D.), 283. " Renck v. McGreggor, 32 N. J. L., 70. 542 THE LAW OF DAMAGES. What may be Shown in Defense. false imprisonment, might nevertheless, be shown in mitiga- tion damages," § 683. What in.ay be shown in Defense.~A warrant of arrest, or mittimus from a competent court or magistrate hav- ing jurisdiction of the offense, and valid on its face, would be a justification of and protection to an officer, in making an arrest and imprisoning the party designated, according to the command of the process. So, a ministerial officer is protected in the execution of process valid on its face, issued by a court or magistrate having jurisdiction of the subject matter to which it relates.'* And, in Oregon it has been held that a private person may justify an arrest for felony by a mere preponderance of evi- dence that the accused had been guilty of a felony; and may justify the firing of a gun upon the accused by evidence that that mode of making the arrest was necessary.'^ So, evidence of threats made to an officer by a brother of the plaintiff after the arrest, is admissible for the purpose of justifying the officer in putting the plaintiff in irons." So, where there was evi- dence that the plaintiff who was arrested by a police officer, on information that he had committed a felony, resisted and continued to resist while being conveyed to the station house, and threatened he would murder the defendant, or any one who attempted to arrest him; it was held, that these facts were admissible in evidence as bearing ujjon the question of the propriety of the force used by the defendant." '3 Carpenter v. Parker, 23 la., 450. Proof of probable cause to suspect the plaintiff guilty of the crime for which he was arrested, may be shown in mitigation. Mayne on Dam., 263, et seq. '^ McLean v. Cook, 23 Wis., 364 (1868); Shaw v. Davis, 55 Barb. (N. Y.), 389 (1870). See, also, Underwood v. Robinson, 106 Mass., 296 (1871). " A recovery in an action for false imprisonment is no bar to another action for a malicious prosecution." Mayne on Dam., 263; Johnson v. Maxon, 23 Mich., 129. 's Lander v. Miles, 3 Oreg., 35. See, also, as to justification for an arrest of a suspected person, by military order, Teagarden v. Graham, 31 Ind., 422. '« Cochran v. Toher, 14 Minn., 385. '7 Fulton V. Staats, 41 N. Y., 498. MALICIOUS PEOSECUTION. 543 Elements of Damage in Case of. CHAPTER XXIY. MALICIOUS PROSECUTIOK Section 685. Elements of Damages in Case of. 686. Elements of the Action. 687. Measure of Damages. 688. Mitigation. 689. Conclusion. 690. Defense. § 685. Elements of Damages in Case of.— Closely related to the action for false imprisonment is that for malic- ious prosecution. And, it may be averred that whenever a person sustains damages to his reputation, life, limb, liberty, or property, by reason of a malicious prosecution, he may recover therefor. The elements of damages in such cases are as follows: 1. Damages to a man's fame, as if the matter whereof he is accused be scandalous. 2. Damages from the hazard or possibility of losing life, limb, or liberty. 3. Damages to a man's property, as where he is forced to expend money to acquit himself of the crime of which he is accused.'* '5 1 Ld. Raym., 374; Chapman v. Pickersgill, 2 Wills., 145; Sheldon v. Carpenter. 4 N. Y., 578; Mayne on Dam., 259. As to damages for wrong- fully and maliciously suing out an attachment, see Goldsmith v. Picard, 27 Ala., 142; Donnell v. Jones, 13 Ala., 490; ante, § 549, et seq. 544 THE LAAV OF DAMAGES. Elements of the Action— Measure of Damages. § 686. Elements of the Action.— It is not our purpose in discussing the law of damages, to enter upon any full con- sideration of the general law relating to the subjects consid- ered; suffice it to say, that the following are essential elements of an action for a malicious prosecution: 1. That the plaintiff has been prosecuted by the defendant, either criminally or in a civil suit. 2. That the jDrosecution is at an end; and generally if not universally, that it terminated in ftivor of the plaintiff. 3. That it was instituted maliciously and without prob- able cause. 4. That the plaintiff has sustained damages thereby.'* § 687. Measure of Damages. — The measure of damages in such cases, is a full indemnity to the plaintiff for all the losses sustained, including the peril of his life and liberty, and injury to his reputation, feelings and person, according to the character of the prosecution, and all expenses incurred in defense of the original suit or prosecution, and even extraor- dinary expenses, as attorney's fees, incurred in the defense." Besides these elements of injury for which the plaintiff should recover damages, the jury in such cases may, on ^*See, Jones v, Gwynn, 10 Mod., 148; Saville v. Roberts, 1 Salkeld, 14; Griffin V. Chubb, 7 Tex., 603; Hall v. Suydam, 6 Barb., 83; Jacks v. Stimp- son, 13111., 701; Kendrick v. Cypert, 10 Humph., 291; Greenwade v. Mills, 31 Miss., 464; Pellenz v. Bullerdick, 13 La. An., 274; Accessory Transit Co. V. McCerren, 13 La. An., 214; Potter v. Scale, 8 Cal., 217; Scofield v. Ferris, 47 Penn., 194; Davis v. Cook. 3 la., 539; Wheeler v. Nesbit, 24 How. (U. S.), 544; Foshay v. Ferguson, 2 Denio., 617;Madon v. McGinnis, 7 Mon., 371; MitcheU v. Mallingly, 1 Met. (Ky.), 237. '7 Thompson v. Mussey, 3 Greenlf., 305; Tripp v. Thomas, 3 Bam. & Cres., 427; Sandback v. Thomas, 1 Stark., 306; Gould v. Bennett, 2 M. & Rob., 171; Doe v. Davis, 1 Esp., 358; Senclair v. Eldred, 4 Taunt., 7; Webber v. Nicholas, Ryan & M., 417; 2 Greenlf. Ev., §456; Saville v. Roberts, 1 Salk., 14; Closson V. Staples, 42 Vt.. 209; Sears v. Hathaway, 12 Cal., 277; Tally V. Corrie, 16 L. T. (N. S.), 796; Kindred v. Stitt, 51 lU., 401. There is no criterion for the assessment of damages but they must not be excessive. Wal- ker V. Martin, 52 111., 347; Springer v. Wise, 2 Disney (0.), 39; Sheldon v. Carpenter, 4. N. Y., 578; Bonesteel v. Bonesteel, 30 Wi.j., 511. MALICIOUS PROSECUTION. 545 Mitigation. general principles applicable to the measure of damages in actions for malicious injuries, go beyond these actual damages, and allow exemplary damages as an example and punishment to the defendant, where such damages are recognized as pro- per." And in a recent case, a verdict of $1,700 damages for a malicious arrest and prosecution, was held not to be exces- sive in the absence of any proof of justification.'' So, where the former suit was on a bill of exchange for $4,000, which had been paid, but an attachment was sued out in the suit, under which the property of the drawer, of great value, was held four months, when it was released only by giving a bond there- for, and the jury gave §15,000 damages; and no misconduct on the part of the jury was claimed, and they were not charged or shown to have acted under the influence of passion or pre- judice, the court refused to disturb the verdict.'" And where the damages were assessed at £10,000, in such a case, the court refused to interfere." § 688. Mitigation. — Circumstances of suspicion that the plaintiff was guilty of the crime for which he was prosecuted, it has been held, are matters in mitigation of damages." According to the weight of authority, if the plaintiff claims damages for an injury to his reputation, evidence of his bad char- acter, especially in respect to the charges made in the prosecu- '^ See, ante, Chap., 6. '9 Reno V. Wilson, 49 111., 95 (1868). But a judgrment of $20,000 in the court below, on account of imprisonment in a jaU for nine days, was held excessive. Walker v. Martin, 62 lU., 347. «> Weaver v. Page, 6 Cal., 681, =• Luth v. Pope, 2 W. RL, 126. In Mississippi, it has been held, that the ■Jury may in such cases, consider the pecuniary ability of the defendant. Whitfield V. Westbrook, 40 Miss., 311. But this doctrine is not generally adopted in torts, and the preponderance of authorities would seem to be against it. See, ante, § § 120, 609. »» Hitchcock V. North, 5 Rob. (La.), 328; Bacon v. Town, 4 Cush., 217; Martin v. Hardesty, 27 Ala. (N. S.), 458; Rodrique v. Tadmire, 2 Esp., 721. See, also, Thomas v. RusseU, 9 Exch., 764; 23 L. J. Ex., 233. 35 546 THE LAW OF DAMAGES. Conclusion. tion, is admissible as a circumstance to rebut the presumption of malice." The bad reputation of the plaintiff is admissible in evidence, in this action, not only to rebut the presumption of the want of the probable cause, but also in mitigation of damages. "The same facts, which would raise a strong suspicion, in the mind of a cautious and reasonable man, against a person of notoriously bad character for honesty and integrity, would make a slighter impression if tended to throw a charge of guilt upon a man of good reputation.'"' And if the plaintiff in this action is justly chargeable with moral guilt of the crime for which he was prosecuted, and escaped conviction merely on technical grounds, this is a matter in mitigation of damages, and if he could recover anything, it should be no more than actual damges.'" § 689. Conclusion. — In conclusion it may be remarked that the question of the want of probable cause and malice, is a question for the jury to determine under all the circumstances of the case, and that malice may be inferred from want of probable cause, but not necessarily." But the question of probable cause, upon established facts, and especially on the =^ Israel v. Brooks, 23 111., 575; Martin v. Hardesty, supra; Bowmngy. Butcher, 2 M. & R., 374; Smith v. Hyndman, 10 Gush., 554. See, also, the English doctrine, Mayne on Dam., 261, and authorities cited; Goodrich V. Warner, 21 Conn., 432; Beal v. Robeson, 8 Ired., 276. =s Shaw, C. J., in Bacon v. Town, 4 Gush.. 217; Fitzgibbon v. Brown, 43 Me., 169. See, also, Rodrique v. Tadmire. 2 Esp., 721; Wood v. U. S., 16 Pet., 342; 2 Gr. Ev., § 458. But, see, Newsam v. Carr, 2 Stark, 69. In Bacon v. Town, supra, the learned Ghief Justice further observes: "Proba- ble cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution." See, also, James v. Phelps, 11 Aid. & El., 483. =« Sears v. Hathaway, 12 Gal., 277. =7 Newell V. Downs, 8 Blackf., 523; Long v. Rodgers, 19 Ala., 327; Wheeler v. Nesbit, 24 How., 545; Gooper v. Waldron, 50 Me., 80, where it was held thai, probable cause, upon established facts, was a question of law; Smith V. Hyndman, 10 Gush., 554. MALICIOUS FEOSECUTIOK 547 Defense. plaintiff's evidence, is a question of law, for the court to determine." Want of probable cause can never be inferred from any degree of express malice.'" And it has been held that want of probable cause is for the court; that of malice, for the jury to determine." § 690. Defense. — The existence of a probable cause for the prosecution would be a defense to the action; and this must be that reasonable and probable cause which exists in the mind of the party at the time of the act in question.^' And those facts and circumstances alone should be considered, which were known to the prosecutor at the time. The ques- tion is not whether, in case of a criminal prosecution, the accused was guilty or innocent, but as to the honest and reason- able belief of the prosecutor, concerning the guilt or inno- cence." Mr. Hilliard, in his valuable work on Torts, remarks: " Probable cause for instituting a criminal prosecution is held to be such a state of facts, known to and influencing the prose- cutor, at would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice, upon the facts within the parties' knowledge, to believe or entertain an honest and strong suspicion that the =9 Stevens v. Fassett, 27 Me., 266; Marks v. Gray, 42 Me., 86; Taylor v. Godfrey, 36 Me., 525; Greenwade v. Mills. 31 Miss., 464; Stone v. Crocker, 24 Pick., 81; Carpenter v. Sheldon, 5 Sandf., 77; Buckley v. Smith, 2 Duer, 261. 30 Johnston v. Sutton, 1 T. R. (Dum. & East.), 544; Mitchel v. Jenkins, 5 Barn. & Adolph., 594; HaU v. Suydam, 6 Barb., 83; WiUiams v. Taylor, 6 Bing., 186. 3' Page v. Gushing, 38 Me., 523. "Malice and want of probable cause must also be proved, and the amount of damages given by the jury will always be greatly influenced by the species of evidence afforded upon this point." Mayne on Dam., 260. 32 Delegal v. Higby, 3 Bing., 950; James v. Phelps, 11 Add. & Ell., 489. 33 Hall V. Suydam, 6 Barb., 83; Barton v. Kavanaugh, 12 La. An., 332. 548 THE LAW OF DAMAGES. Defense. person accused is guilty.'"* So, the fact that there has Leen a former trial for the same cause of action, as for instance an action for slander, for injury to the reputation by the accusa- tion made for the purpose of procuring the arrest at the time when it was made, is a bar to the recovery for that cause, in this action." 34 Hill., on Torts, 451, § 18, citing, Bacon v. Towne, 4 Cush., 217; Rice v. Ponder, 7 Ired., 390; Rickey v. McBean, 17 111., 63; Jacks v. Stimpson, 13 m., 701; Foshay v. Ferguson, 2 Denio, 617; Ash v. Marlow, 20 Ohio, 119; Titzgibbon v. Brown, 43 Me., 169; Wheeler v, Nesbit, 24 How. (U. S.), 544; Scanlan v. Cowley, 2 Hilt., 489; Center v. Spring, 2 la., 393; Lacy v. MitcheU, 23 Ind., 67. 35 Sheldon v. Carpenter, 4 N. T. (Comst.), 578. LIBEL AND SLAEDEK. 549 General Kule and Elements of Damages. CHAPTER XXY. LIBEL AND SLANDEK. Section 691. General Rule and Elements of Damages. 692. Contribution between the Wrongdoers. 693. Mitigation. 694. Aggravation and Exemplary Damages. 695. Pecuniary Condition of the Defendant. 696. Amount of damages. § 691. General Rule and Elements of Damages.— In this action, if the pleadings and proofs warrant, the plain- tiff may recover damages for all actual losses and injuries, including mental suffering, indignity, public disgrace or other actual discomfort.' And the jury may consider the probable future as well as the actual past damages;' and all expenses to which the plaintiff has been subjected, by being compelled to come into court to vindicate his character.' So, the plaintiff may recover damages for the loss of a marriage;' or the loss of a sale of real estate; ' or loss of customers in his profession » Fry V. Bennett, 4 Duer., 247; Swift v. Dickerman, 31 Conn., 285; Dufort V. Abadie, 23 La. An., 280; Fuller v. Fenner, 16 Barb., 333. But see contra, as to mental distress, TerwiUiger v. Wands, 17 N. Y., 54; WHson v. Goit, 17 N. Y., 442. ' True V. Plumley, 36 Me., 466. 3 Hicks V. Foster, 13 Barb., 663. 4 Hunt V. Jones, Cro. Jac, 499. s Starkie on Sland., 56. 550 THE LAW OF DAMAGES. Contribution between Wrongdoers. or business/ and the like;^ or for the desertion of a chapel," or of a theatre," or loss of a situation or business, in conse- quence of the libel or slander,'" § 692. Contribution between Wrongdoers.— The rule, that there can be no contribution between joint wrongdoers, was applied in an action by a journalist who sought to recover, upon a contract of indemnity, from the writer of a libel pub- lished by him in his journal, where it was held that such aeon- tract would not avail to protect the publisher, though renewed after the publication of the libel, and in consideration that the publisher would not disclose the name of the writer on its being demanded by the victim of the libelous article, and that no recovery could be had thereon, as there can be no contribution between joint wrongdoers." So also, it has been held, that the proprietor of a newspaper, convicted and fined for the pub- lication of a libel in his paper, inserted without his knowledge or consent by the editor, cannot recover against the editor the damages sustained by such conviction."* In case of express, wanton, unmitigated malice or ill will on the part of the defendant, exemplary or punitory damages may be recovered." But plaintiff, under the general issue, cannot, in aggravation of damages, introduce evidence in chief 6 Sanderson v. Caldwell, 45 N. Y., 398 (1871). 7 See, also, Evans v. Harris, 38 Eng. L. & E., 347; Tilk v. Parsons, 2 C. & P., 201; Ashlej' v. Harrison, 1 Esp., 48. 8 Hartley v. Herring, 8 T. R., 130. sAsUey v. Harrison, supra; 2 Greenlf. on Ev., § 420. See damages in Libel and Slander; I HiU on Torts, Ch. 15; 1 Stark on Slan., 195, 202. '° Jackson v. Happerton, 17 C. B., 829. "Atkins V. Johnson, 43 Vt., 78. "Colbum V. Patmore, 1 Comp., Mees. & Rose., 73. '3 Snyder v. Fulton, 34 Md., 128 (1870); Miles v. Harrington, 8 Kans., 425 (1871); Gilbreath v. Allen, 10 Ired., 67; Kenny v. Hosea, 2 Harring., 397; Fry v. Bennett, 4 Daer., 247; Conner v. Noonan, 4 Wis., 231; Arm- strong V. Pierson, 5 Iowa, 317; Buckley v. Knapp, 48 Mo., 152; Bownin v. Elliott, 19 La. An., 322; 1 Hill, on Torts, 429. LIBEL AND SLANDER 551 Mitigation. of good character but may rebut evidence of bad character offered by the defendant." § 693. Mitigation.— From the weight of authority, the general bad character of the plaintiff, may be shown in miti- o-ation of damaijes." This broad doctrine has, however, been denied. But the authorities are agreed that the defendant may in mitigation of damages attack the general character of the plaintiff, in respect to the subject matter of the charge." Thus, for words spoken or published against the chastity of the plaintiff, it may be shown in mitigation of damages that the plaintiff has so destroyed her character, by her own lewd and dissolute conduct, as to have sustained little or no injury.'* But proof of particular dishonest and corrupt acts of the plaintiff, entirely disconnected with the offense charged in the libel or slander, is inadmissible." So the defendant may show in mitigation of damages, as in actions for assault and battery, tliat he was provoked to give utterance to the slanderous words by the conduct of the pUiintiff at or near the time when the words were uttered, and that such provocation was the immediate cause of uttering the same;" or that the words were spoken in the heat of passion or under excitement." And in 's Martin v. Hooker, 7 Coldw. (Tenn.), 130 (1869). 'S Armstrong V. Pierson, 8 la., 29; Sayre v. Sayre, 1 Dutch., 235; Smith v. Smith. 8 Ired., 29; Root v. King, 7 Cow., 613; Baily v. Hide, 3 Conn., 463; Fletcher v. Burrows, 10 la., 557; Adams v. Smith, 58 111., 417; Stone v. Varney, 7 Met., 86; 2 Gr. Ev., §424; Stark, on Slan., 88, et seq. '7 Wilson V. Noonan, 27 Wis., 598 (1871); Wright v. Schroeder, 2 Curtis, 548; McNutt V. Young, 8 Leigh., 542; Young v. Bennett, 4 Scam., 43; McCabe v. Platner, 6 Blackf., 405; Saunders v. Johnson, 6 Blackf., 50; Leon- ard V. AUen, 11 Cush., 241. '8 Flint V. Clark, 13 Conn., 361. '9 Wilson V. Noonan, 27 Wis., 598; Fountain v. West, 23 la., 9; Fisher V. Tice, 20 la., 479. =o Freeman v. Tinsley, 50 111., 497 (1870); Miles v. Harrington, 8 Kas., 425 (1871); Moore v. Clay, 24 Ala. (N. S.), 235; McChntock v. Crick, 4 la., 453; Watts V. Frazer, 7 Aid. & Ell., 223. « Monsler v. Harding, 33 Ind., 176. 552 THE LAW OF DAMAGES. Mitigation. an action for a libel, where the plaintiff has also been guilty of a libel against the defendant, if so recent as to aftbrd reason- able presumption that the libel by the defendant was published under the influence of passion thus excited, this is a proper matter in mitigation.'^ So, on t]ie question of damages, the defendant may show that from the conduct of the plaintiif, in attempting to commit the crime, or the plaintiff's fault, he had reason to believe at the time of speaking the words, and when he pleaded the justifi- cation, that the charges were true," or that the charges were made under a mistake which was forthwith retracted," or that the libelous statement was communicated to him by a third person," or that the defendant copied the same from another paper giving tlie authority, or that he was demented or partly insane at the time, or a monomaniac upon the subject matter of the charge.'' And where at the time of speaking the words, the mind was besotted by a long course of dissipation, and the defendant's character so depraved that no one who knew him would pay any attention to what he might utter, or give any credence to what he might state, it was held admissible to show these facts; and an idiot or lunatic, no matter from what cause he became so, cannot be guilty of malice." So the ^ Child V. Homer, 13 Pick., 503. See. also, Stanley v. Webb, 21 Barb., 148; 1 Hill, on Torts, 506, et seq, Jamigan v. Fleming, 43 Miss., 710 (1870); Finnity v. Sipper, 2 Camp., 76; May v. Brown, 3 B. & C, 113; Tarpley v. Blably, 2 Bing. (N. C), 437. =3 Shoultz V. Miller, 1 Ind., 544; Hayward v. Foster, 16 Ohio, 88; 1 Hill, on Torts, 707; Lamed v. Buffington, 3 Mass., 546. ^'^ Bradley v. Heath, 12 Pick., 163. Also, there may be shown a want of express malice, or a retraction of the slander. Story v. Wallace, 60 111., 51. ^sDuncome v. Daniel, 2 Jur., 32; Maitland v. Goldney, 2 East., 426; Haynes v. Leland, 29 Me., 233. ^ Dickenson v. Barber, 9 Mass., 225; Fisher v. Tice, 20 la., 479; 2 Greenlf. Ev., § 424; Brown v. Brooks, 3 Ind., 518; Mausler v. Harding, 33 Ind.. 176. So a subsequent retraction of the libel by the defendant may be read in evi- dence to mitigate the damages. Hotchkiss v. OUphant, 2 Hill (N .Y.), 510; Kent V. Bonzey, 33 Me., 439; Darling v. Banks, 14 111., 46. ^7 Gates V. Meredith, 7 Ind., 440; 3 Gr. Ev., § 6, and notes. Rev. ed. Bat intoxication is no defense to an action. Reed v. Harper, 25 la., 87. See, also, ante, § 199. LIBEL AND SLANDER. 553 Aggravation and Exemplary Damages. defendant may prove any circumstances tending to show that the publication was not maliciously made, or wantonly manu- factured for the occasion but had, what appeared to the pub- lisher to be, truth for a basis;'' or, that he had reason to believe it to be true." § C94. Aggravation and ExempLiry Damages. — Where actual malice is shown in an action for slander, the jury may always give exemplary damages.'" And they may take into consideration the pecuniary circumstances of the defendant and his position and influence in society, as well as the character of the plaintiff, at least as we have seen, in respect to the subject of the slander, and also any reiteration of the slander at different times, and to different persons, and also any effort which the defendant has made to have the plaintiff indicted; and if, from all the circumstances, it is appa- rent that the slander was wanton and malicious, they may give exemplary damages." So, in an action for libel or slander it is proper to show the rank and condition in life of the plaintiff, in aggravation of damages, and the defendant may avail him- self of such evidence, so far as it is favorable therefor, in mit- igation.'^ «8 Stanley v. Webb, 21 Barb., 148; Bamland v. Eidson, 8 Gratt., 27; Sperry v. WUcox, 1 Met., 267; Upbam v. Dickinson, 50 111., 97 (1869). =9 Huson V. Dale, 19 Mich., 17, reviewing many cases; Fountain v. West, 23 la.. 9; Mayo v. Temple, 16 la., 585. 30 King-ht V. Foster, 39 N. H., 576 ; Armstrong v. Pierson, 8 la., 29; Gard v. Risk, 11 Ind., 156; Daly v. Van Benthusen, 3 La. An., 69. 3' Hosley v. Brooks, 20 111., 115; Peltier v. Mict, 50 111., 511; Lewis v. Chapman, 19 Barb., 250; Hmnphreys v. Parker, 52 Me., 502; Harbison v. Shook, 41 lU., 142. 32 Peltier v. Mict, 50 111., 511; Klumph v. Dunn, 66 Pa. St., 141; Burnett V. Hyde, 6 Conn., 24; Lamed v. Buffington, 3 Mass., 546, General good character of the plaintiff cannot be given in evidence in aggravation of dam- ages, or other\vise, except to rebut evidence offered by the defendant in rela- tion thereto, for the presumption is in favor of the good character of the plaintiff. Mayne on Dam.. 274; Guy v. Gregory, 9 C. & P., 687. 654 THE LAW OF DAMAGES. Pecuniary Condition of Defendant. § 695. Pecuniary Condition of the Defendant. — Whether the pecuniary circumstances of the defendant may be shown in actions for torts generally, in aggravation of dam- ages, is a question on whicli the authorities, as we have seen, are divided. In actions for sUmder and libel, it has been maintained that the defendant's pecuniary circumstances w^ere immaterial.^' On the otlier hand, perhaps a preponderance of authorities maintain the doctrine, in such cases, that the plaintiff may show in aggravation of damages the pecuniary condition of the defendant, especially where the plaintiff is entitled to exemplary damages; although this doctrine in its application to such cases, is sometimes made to rest upon the reason that wealth gives social rank and influence to the possessor, and therefore greater damage would ordinarily be sustained by his libel or slander.^* 33 Morris v. Barker, 4 Haring., 520; Ware v. Cartlege, 2-4 Ala., 622; Case V. Marks, 20 Conn., 248. See, also, ante, § 120, and notes, where the doc- trine is considered. 1 Hill, on Torts, Chap. 15; James v. Buddington, 8 Car. &P., 589. ^ Lewis V. Chapman, 19 Barb., 252; 16 N. Y., 369; Adcock v. Marsh, 8 Ired., 360; Fry v. Bennett, 4 Duer, 247; Buckley v. Knapp, 48 Mo., 152; Hosley V. Brooks, 20 111., 115, where the court say that "the wealth of the defendant is an element in his social rank and influence, and therefore tends to show the extent of the injury from his slander;" 2 Gr. Ev., § 269. Wag- ner, J., in Buckley v. Knapp. supra, places the reason on the ground of pun- ishing the defendant. He remarks: "In all cases where vindictive damages are allowed it is upon the theory that the defendant's conduct has been such that he deserves to be punished, and they are given with the view of measuring out punishment to him as well as of awarding compensation to the plaintiff. When we come to this conclusion, it seems to me that it logically follows that the inquiry as to the pecuniary resources of the defendant becomes mate- rial, for what would be severe punishment to a very poor man, would be of no consequence to a rich one." See, also, Peltier v. Mict, 50 111., 511; Humphreys v. Parker, 52 Me., 502. See, as to exemplary damages gen- erally, ante, § 73, et seq. Also, arguments against the doctrine that the wealth of the defendant should aggravate damages in torts generally, ante, § § 120, 609. See, also. Hunt v. Chicago & N. W. R. Co., 26 la., 363; Guengerech v. Smith, 34 Id., 348; Kamey v. Paisley, 13 Id., 89. But see, in support of the views in Buckley v. Knapp, supra, case of Belknap v. Boston & Maine R. Co., 49 N. H., 358; 2 Gr. Ev., § 269. , LIBEL AND SLANDER. 555 Amount of Damages. § 696 . Amount of Damages.— Courts will not interfere witli verdicts on account of excessiveness, unless there is ground for belief that the jury was influenced, by passion, prejudice, or corruption. Thus on a charge of adultery, where the plaintiff was superintendent of an almshouse, and the defendant a man of property, and the words were spoken at a town meeting in a discussion of the matter of appointment of a new superintendent, a verdict therefor in the sum of $700 was sustained.'" And a verdict of $5,000, for a libel charging unchastity, exemplary damages under the circumstances of the case being allowable, was sustained." So the court refused to set aside or reduce a verdict of $591, in a case of a charge of adultery against an unmarried female, who was an assistant in an almshouse.'' So in an action by a female teacher, against a man of wealth and influence, for charging her with want of chastity, a verdict of $1,400 was sustained.'" And, a verdict of $500, in an action for charging the plaintiff with stealing a horse," and $2,736 for charging the plaintiff with perjury," and $334 for charging a female with adultery," were severally held not to be excessive, so as to authorize the court to set aside or reduce the verdicts. 36 Shute V. Barrett, 7 Pick., 82. 37 Buckley v. Knapp, 48 Mo., 152. 38 Shute V. Barrett, 7 Pick., 82. 39 Bodwell V. Osgood, 3 Pick., 379. 40 Teagle v. Deboy, 8 Blackf., 134. 4^ Saunders v. Johnson, 6 Blackf., SI. *' Ross V. Ross, 5 B. Mod., 20. 656 THE LAW OF DAMAGES. Remedy for, at Common Law. OHAPTEE XXYL SEDUCTION AND CRIMIKAL CONVERSATION. Section 697. Remedy for, at Common Iiaw. 698. Damages— General Bules. 699. Aggravation. 700. Mitigation and Defense. 702. Amount of Verdict. 703. Seduction of, and Enticing Away a "Wife. § 697. Remedy for, at Common Law.— It is a well established doctrine of common law, that an action cannot be maintained by the female who has been seduced, against her seducer for the seduction, she being in pari delicto. The woman had no remedy; nor was there any direct remedy by the parent or guardian, or master, for the injury.' The action could only be maintained by the parent, guardian, or other person standing in loco parentis to the person seduced, or by the husband for the seduction of his wife, or by the master for the seduction of a servant; and this, only when the relation of master and servant existed actually or construc- tively, at the time of the seduction. The loss of services per quod servitium amisit, was the gist of the action. The claim for damages was based upon a legal fiction of loss of service; and if there was no loss of service there could be no recovery." » 3 Blk. Com., 140; 7 Conn. Dig., 318; Mayne on Dam., 284. 'Grmnell v. Wells, 7 Man. & Gran., 1033; Ellington v. Ellington, 47 Miss., 329 (1872); Gray v. Darland, 51 N. Y., 424 (1873). SEDUCTION AND CRIM. CON. 557 Damages— General Kules. The Statutes of some of the states have given the right of action in such cases to the injured female, so that now, under the wise and humane provisions of these statutes, she may- have redress in such cases.' § G08. Damages— General Rules.— The damages in such cases embrace every loss or injury that flows from the wrong- ful act, such as loss of labor or services or wages, as the case may be, domestic peace and happiness, injury from the dis- grace cast upon the party or the family;' pain and suffering, including that produced by an abortion procured by the defendant; and distress and anxiety of the plaintiff.' And in England, the expense of maintaining the child, as well as the doctor's fees, are allowed to be included in the damages;" and all necessary expenses incurred thereby;' and the jury have been allowed to consider the dishonor of the plaintiff's family and their injured feelings." Nor will the damages be restricted to actual compensation; but exemplary damages may always be given,' even where the action is at common law, and by the parent or other per- son in loco parentis, and the relation of master and servant exists by convention only, as where the daughter is of age.'" And the same rule applies where the female, under a statute, brings the suit in her own name; or where the suit is brought 3 See. Deady & Lane's Code of Oregon, page 111, § 35; Code of Iowa, § 2555 (1873). * Kendrick v. McCrary, 11 Geo., 603. s Andrews v. Askey, 8 Car. & P., 7; Phelps v. Hoyle, 4 Gray (Mass.), 568. And illness caused by threatened exposure. Knight v. Wilcox, 18 Barb., 212, doubted in s. c, 14 N. Y., 413. But see, Kendrick v. McCrary, 11 Geo., 603; Phelin v. Kenderdine, 20 Pa. St., 354. 6 Terry v. Hutchinson. 3 L. R., Q. B., 599; 9 B. & S., 487. 7 See cases cited above; also, Klopfer v. Bromme, 26 Wis., 372. 8 Felkner v. Scarbet. 29 Ind., 154; Wilhoit v. Hancock. 5 Bush (Ky.), 567. singersol V. Jones, 5 Barb.. 661; Irwin v. Dearman, 11 East., 23; Edmon- son V. MacheU, 2 T. R., 4; BaU v. Bruce, 21 lU., 161; Bartley v. Richtmyer, 4N. Y., 38. *» Lipe V. Eisenlerd, 32 N. Y., 229; Badgley v. Decker, 44 Barb., 577. 558 THE LAW OF DAMAGES. Aggravation. by the parent although the statute authorizes the daughter to sue in her own name." But, it has been held, that where the plaintiff stands only in loco parentis to the seduced, actual loss of services must be shown, and merely constructive service is not sufficient,'* The action however may be maintained by the plaintiif, whenever the female seduced is de facto a servant of the plaintiif, although there is neither a contract of service nor blood rela- tion between them.'^ But mere illicit intercourse does not establish seduction. Thej^laintiff must show that consent was obtained by flattery, promise or other artifice, used by the defendant.'* § 699. Aggravation. — The standing of the plaintiff's family," the pecuniary circumstances of the defendant,'* the condition in life, and standing of both parties,"' and any cir- cumstances, the natural consequences of the principal act, although they transpired after the suit was commenced, such as expenses of lying-in, may be shown in aggravation of dam- ages.'* So, the plaintiff may show in aggravation of damages that the defendant succeeded in debauching his daughter by a promise of marriage," although the parent cannot recover any " Stevenson v. Belknap, 6 la., 97. See, also, Ingersol v. Jones, 5 Barb. (N. Y.), 661. '= Roberts v. Connelly, 14 Ala. (N. S.), 235; South v. Dunston, 2 Watts., 474. '3 Irwin V. Daman, 11 East., 23; Bennett v. Alcott, 2 T. R., 166; Harper V. Walker, 7 Barn. & C, 387; Moran v. Daws, 4 Cow., 412; Manvell v. Thomson, 2 Car. & P., 303. '4 Delve V. Boardman, 20 la., 446; HiU v. Wilson, 8 Blackf., 128; Smith V. Millburn, 17 la., 30. '5 Keplinger v. Sherick, 1 Wright (Ohio), 104. "SMcAulay v. Birkhead, 13 Ired. (N. C), 28. This is especially the case where the defendant has used his wealth as a means of the seduction . Cowing v. Cowing, 33 L. J., 149; Forster v. Forster, Id., 150. '7 Rea V. Tucker, 51 111., 110. 'SHewett v. Prime, 21 Wend., 79. "White V. CampbeU, 13 Gratt., 573. SEDUCTIOIS" AND CRIM. CON. 559 Mitigation and Defense. damages for a breach of promise of marriage, for wliich the daughter alone could maintain the action.^" If the defendant was a suitor of the daughter and used arts, flattery, etc., to accomplish his object, these may be shown; but it is held in Iowa, that even a breach of promise of marriage cannot be shown to affect the measure of damages, but that such evidence is only permissible to show artifice and deceit." And where the seduction is accomplished by force and against the consent of the seduced, this is a matter of aggravation, and exemplary damages in such cases would be proper."'' § 700. Mitigation and Defense.— The defendant may show in mitigation of damages, previous lewd conduct on the part of the seduced; and if this is established, the parent can only recover for loss of services during pregnancy, and the necessary expenses caused thereby." But the fact that the female consented willingly, or even seduced the defendant; or the fact of a subsequent marriage; or the acquittal or convic- tion of the defendant on an indictment for the seduction, will not, either or all, defeat a right of action; but they go only in mitigation of damages.'* It is held, in "Wisconsin, that the defendant's liability to a criminal prosecution for seduction, and for procuring an abortion, are not to be considered by the jury in mitigation even of exemplary damages." So, under the statute of Iowa, an unmarried woman of previously unchaste character may, in an action for her own seduction, recover damages for loss of health, and all other »°Phelin v. Kenderdine, 20 Penn. St., 354. "Stevenson v. Belknap, 6 la., 97; Grover v. Dill, 3 la., 337. But see, Whitney v. Elmer, 60 Barb. (N. Y.), 250; Mayne on Dam., 284, where the English cases in support of the text are cited. « Damon v. Moore, 5 Lans. (N. Y.), 454 (1871). =^ Fletcher v. Randell, Auth. N. P., 196. See, also, Yerry v. Watkins, 7 C. & P., 308; Conway v. Nicol, 34 la., 533. ^McAulay v. Birkhead, 13 Ired (N. C), 28; Eichar v. Kistler, 14 Pa. St., 282; Mayne on Dam., 285. "S Klopfer v. Bromme, 26 Wis., 372 (1870). 560 THE LAW OF DAMAGES. Mitigation and Defense. injuries consequent upon the act of seduction, except injuries to or loss of character; and the character of the plaintiff" before the seduction may he shown in mitigation of damages, but not as a complete defense.'" The right of the parent or party in loco parentis, to maintain the action in that state, still con- tinues as at common law; but the technical and absurd rule, that there must be loss of services as a basis for recovery, is abolished. And in an action by the parent, the character of the daughter only affects the amount of damages; and though she be unchaste it will not defeat the action. "And it is cer- tainly just that the same rule should apply when the action is brought by her for her own seduction."" So in an action by the father, his careless indiff'erence in respect to the daughter or the loose principles or conduct of the plaintiff" or the daughter, were held to be matters in mitigation of damages.'' § 701. — Where the husband connives tow^ards the wife's seduction it is a bar to an action by him against her seducer,'' So, want of chasity in plaintiff"'s wife before marriage may be shown, and also that the unchaste acts of the wife were exclu- sively with the defendant.'" And if the plaintiff", by connivance, co-operates to produce the seduction of a daughter it is a defense to the action." In such a case the plaintiff would be =« Smith V. Mnburn, 17 la., 30. ^ Opinion of Wright, C. J., Id. See, also, Pence v. Dozan, 7 Bush (Ky.), 133. So, it may be shown by the plaintiff in corroboration of the evidence of a seduction, that the defendant had criminal intercourse with the seduced previous to the act for which damage is claimed, and even where it is cut off by the statute of limitations. Conway v. Nicol, 34 la., 533; Common- wealth V. Meriam, 14 Pick., 518; Commonwealth v. Lahey, 14 Gray, 91; Gardner v. Madinea, 2 Yates, 466. =8 Zerfing v. Mourer, 2 Green (la.), 520; Dodd v. Morris, 3 Camp., 519. =9Rea v. Tucker, 51 111., 110 (1869). Where a husband is knowingly the cause of his own disgrace, no action will lie. Smith v. Allison, Bull., N. P., 27. 30 Conway v. Nicol, 34 la., 533. 3' Travis v. Burger, 34 Barb., 614; Hollis v. Wells, 3 Pa., Law Jour. Rep., 169. See, also, Fletcher v. Randell, Auth. N. P., 196. SEDUCTION AND CKIM. CON. 561 Amount of Verdict. in pari delicto, and on general principles he should not be permitted to recover. This was the ground of the doctrine at common law against a recovery by the party seduced. But, under the statutes of several states, this is remedied so as to allow a recovery by the seduced party; and hence, although the doctrine of jporticeps criminis, would not apply where the suit was brought by the seduced, it would apply where the parent or master brought the action for his injury. So, in an action by a husband for criminal conversation and seduction of a wife, recrimination tliough a good bar to a divorce, is not to this action, though it may be a matter in mitigation." Collusion, sufferance or connivance, constitute a defense to an action by the husband for the wife's seduction, and negligence, lack of observation, as well as loose and improper conduct of the husband, even where they fail to show collusion or conniv- ance, may go in mitigation of damages." So, the domestic life of the plaintiff and his wife, and infelicitous relations between them, may be shown in mitigation of damages." And in an action by the father for the seduction of his daughter, upon the ground of loss of service, the defendant may prove in defense of the action that the plaintiff permitted the defendant to visit the daughter as a suitor, knowing him to be a married man, and after being cautioned against it; or that he other- wise connived at her criminal conduct." § 702. Amount of Verdict.— There is in this action, no fixed rule for the measure of damages. The jury can consider ^ Bromby v. Walace. 4 Esp., 237; Wyndham v. Wycourt, 4 Esp., 16. 33 Van Vacter V. McKillip, 7 Blackf., 578; Pierce v. Pierce, 3 Pick., 299; 2 Gr. Ev., § 51; 2 HiU. on Torts, 509. 34 2 Gr. Ev., § 55; 1 Gr. Ev., § 102, and cases cited. "As almost the whole foundation of this action consists in the loss of the wife's society, it is most important with a view to damages to ascertain what the extent of this loss is, and how far it has been caused by the acts of the defendant." Mayne on Dam., 286. 35 Reddie v. Scoot, 1 Peake's R., 240; Ackerly v. Haines. 2 Gaines, 292; Seager v. Slingerland, 2 Gaines, 219, 36 562 THE LAAV OF DAMAGES. Seduction of, and Enticing Away a Wife. not only the elements that go to make up pecuniary compen- sation for the actual loss sustained but, where there are no mitigating circumstances, they may inflict exemplary or puni- tive damages. And it must be a plain case of prejudice or evil passion, on the part of the jury, that would warrant the disturbing of their verdict,'^ But where it is evident from the circumstances of the case, that only compensatory damages should be given, or where it is evident that the jury did not intend to give exemplary damages, and in that view damages have not been restricted within the legal rules and are therefore excessive, the verdict should be set aside." § 703. Seduction of, and Enticing Away a Wife.— We have seen that, at common law, an action could be main- tained by a husband for the seduction of, or for criminal con- versation with, his wife. So, he may recover damages for enticing away a wife.'* In the latter case it has been held that the measure of damages is the value of the wife of whom the husband has been deprived. But the fortune of the de- fendant cannot be taken into account, unless it was used by him as a means of accomplishing his object.'" In an action by the husband for the seduction of his wife, the defendant may show, in mitigation of damages, that in some degree the plaintiff brought the injury upon himself; as that he suffered 3^ Sargent v. Denison, 5 Cow., 106, and cases there cited; Stevenson v. Belknap, 6 la., 97. And a verdict of $2,500 for the seduction of an unmar- ried woman was, under the circumstances, held not excessive. Gray v. Bean, 27 la., 221. 37 Sargent v. Denison, supra; Edmonson v. Machell. 2 T. R., 4. 38Winsmore v. Greenbank, Willes, 577; Barnes v. Allen, 30 Barb., 663; Schoraimerv. Palmer, 4 Id., 225; Hutchinson v. Peck, 5 Johns., 196; Ben- nett V. Smith, 21 Barb., 439; Barnes v. Allen, 30 Id., 663; Turner v. Estes, 3 Mass.; 317. 39 Cowing V. Cowing and Molten, 38 L. J., 146; 33 L. J. P. M. & A., 149; Foster V. Foster, supra; Shunemanv. Palmer, 4 Barb., 225; Hutche- 8on V. Peck, 5 Johns., 196; Bennett v. Smith, 21 Barb., 439; Barnes v. Allen, 30 Id., 663; Turner v. Estes, 3 Mass., 317. SEDUCTION AND CRIM. CON. 563 Seduction of, and Enticing Away a Wife. Ill's wife to remain with lier mother, and seldom saw her, and allowed her to continue theatrical engagements, as thongh she were single."' Ill treatment of the wife by tlie husband before the criminal intercourse, may be shown in mitigation. So, the general character of the wife, at the time, may be shown in mitigation of damages. But no evidence of misconduct subsequent to her seduction can be shown."' So the defendant, in an action for criminal conversation, may show a want of chastity in the wife before marriage, in mitigation of damages; but the jury may also consider evidence tending to show that the unchaste acts were with the defendant exclusively." Elements which enter into the subject of damages and aifect the amount, in actions for criminal conversation, are the injury resulting from the alienation of the wife's affections, destroy- ing the comfort had from her society; the raising of children for the husband to support and provide for; the rank and social standing of the parties; the pecuniary standing, and the private and social relations of the husband and wife; their mutual devotion or otherwise; the enjoyment of comfort and happiness in the society of each; and the character of the wife previous to the seduction." ••' Calcroft V. Earl of Harborough, 4 Car. & Payne, 499. *» Palmer v. Cook. 7 Gray. (Mass.), 418; Bennett v. Smith, 21 Barb., 439. See, also, 2 Geen. Ev., § 56, as to matters in mitigation for enticing away a wife. Elcam v. Fawcett, 2 Esp.. 562. « Conway v. Nichol, 34 la., 533. ** Smith V. Allison, Bull, 2 N. P., 27; Winter v. Henn, 6 C. & P., 494; Duberley v. Gmming, 4 T. R., 655; Winter v. Wroot, 1 M. & Rob., 404; Edwards v. Crock, 4 Esp.. 39; Trelaway v. Coleman. 1 B. & A., 90; Wilton V. Webster, 7 C. & P., 198; Calcraft v. Lord Harborough, 4 C. & P., 499; Willis V. Bernard, 8 Bing., 376. The American authorities in support of the propositions of the text have been referred to. On the question of the right to show the wealth of the defendant in aggravation of damages there is, as we have seen, some conflict of authorities. General reputation of defend- ant's circumstances was held proper in New York. Kniffin v. McCoimell, 30 N. Y., 285. See. also, McAuley v. Birkhead, 13 Irid. (N. C. L.), 28; Wedon v. Timbril, 5 T. R., 360; Mayneon Dam., 380. 381. 564 THE LAW OF DAMAGES. General Principles Relating to Fraud. CHAPTER XXYII. FRAUD AND DECEIT. Section 704. General Principles Relating to Fraud. 705. Fraud in the Sale of Property. 706. Damages in Case of Fraud. 707. Defendant Answerable for Contemplated Damages. 708. False Representations in Reference to Iiand. 709. "Waiver of Fraud. 710. "What no Defense— Surety— Indorsee— Principal. 712. "When the Buyer may Sell the Property and still Recover. § 704. General Principles Relating to Fraud— This is the most common kind of tort, and occurs only in con- nection "with some form of contract. Fraud is not only ground for setting aside or rescinding a contract, but may be plead as a bar to an action on a contract. Thus, fraud in obtaining a promissory note is a good defense to an action brought by the payee against the maker thereof.' But this is not the only remedy of a party injured by a fraud; for he may usually have an election to sue for the fraud, or defend in an action upon the contract secured by fraud, or rescind the same and recover the consideration paid. The forms of fraud are so various and the modes so subtle that no specific or definite statement thereof can be given. Each case depends upon its own circumstances. ' Barber v. Kerr, 3 Barb., 149j 1 HiU., on Torts, j} 3, note. FRAUD AND DECEIT. 565 Fraud in the Sale of Property. Any extended treatment of this subject would not be within the proper scope of this treatise; but reference may be had to those especially devoted to its consideration.'' Fraud, is any trick or artifice employed by one person to induce another to fall into an error, or to detain him in it, so that he makes an agreement contrary to his interest. The fraud may consist either, first, in misrepresentation, or secondly, in the conceal- ment of a material fact. A fraud, which is the determininor cause of a contract, avoids the contract ah initio, both at law and in equity.' § 705. Fraud in the Sale of Property. — "We have intimated that where fraud enters into a contract, the party injured thereby may have a choice of remedies. The vendee of personal property may waive the tort, stand by the contract and have such remedies thereunder as he may be entitled to;* or he may at law rescind the contract by placing the vendor in statu quo, or as nearly so as it is possible for him to do,^ and. recover the consideration that has been paid;' or, he may set up the fraud in an action on the contract by the vendor, as a defense, or in recoupment, or by way of counter-claim, where that is permissible, and recover, or be allowed, such damages as he may have sustained by the fraudulent act. On the question whether there may not be fraud in certain cases, without knowledge of the falsity of the representation, as where a party having no knowledge makes a positive and unqualified statement as of his own knowledge, upon which the other party acts, and from which the party making the statement derives an advantage, or whether to constitute » 2 Hill., on Torts, 73, et seq; 1 Id., 3, et seq. 3 Bouv. Law Die; Mansfield v. Watson, 2 la., 111. 4 Heastings v. McGee, 66 Pa. St., 384; Jackson v. Jackson, 47 Geo., 99 (1872). 5 Fulwider v. Wilford, Morris, 323. « Heastings v. McGee, supra; Rynear v. Neilen, 3 G. Greene, 310; Page V. Cole, 6 la., 153; Armstrong v. Pierson, 5 la., 317. 566 THE LAW OF DAMAGES. Fraud in the Sale of Property. fraud there must in all cases be willful falsity of representa- tion, is one on which there is some diversity of opinion." But the weight of authority would seem to favor the answer- ing of the first inquiry in the affirmative, and that actual scienter need not in all cases be shown. Thus, it has been held that a misrepresentation of a material fact made by one party to a contract, constitutes legal fraud if acted upon by the other party even though such misrepresentation was made inno- cently, through mistake;'" and this is particularly the rule in equity." So, it has been held, that where a false and fraudu- lent warranty constitutes the gist of the action, the scienter is immaterial in an action for the tort." Thus, in a sale of provisions for domestic use, it has been held, that there is an implied warranty that they are sound and wholesome, and that the vendor is bound to know this, and if they are not so he is liable as for a fraud, in an action therefor by the vendee." So, where there are false representations in the sale of real estate, as that it embraces certain designated and valuable land which it does not; or where one assumes to speak posi- tively as of his own knowledge, without having the knowledge 9 See opinion of Justice Dillon, in Bondurant v. Crawford, 22 la. , 40. Also, Bennett v. Judson, 21 N. Y., 238 (1860). Opinion of Maule, J., m Evans v. Edwards, 76 Eng. C. L. (13 B. C), 773 (1853); Stone v. Daney, 4 Met., 151. Opinion by Dewey, J., Thomas v. McCarn, 6 B. Mon., 601; Monroe v. Pritchett, 16 Ala., 785; Lockridge v. Foster, 5 111., 569; 1 Story Eq. Jur., § 193; Collins v. Evans, 48 Eng. C. L., 820; Rawlings v. Bell, 50 Id., 591; Wilson V. Fuller, 43 Eng. C. L., 634; Id., 1009, where it is held that stating a belief as knowledge may render a person liable for fraud; Cabot v. Christie, 42Vt.,121. " Frenzel v. MiUer. 37 Ind., 1 (1872); Elder v. Allison, 45 Geo., 13. See, also, Johnson v. Hatton, 2 Abb. (N. Y.), 465, App. Des; Craig v. Ward, 1 Abb. (N. Y.), 454. " Bacon v. Bronson, 7 Johns. Ch., 194; Wilcox v. Iowa Wesleyan Univer- sity, 32 la., 367. " Berkshire Ins. Co. v. Sturgis, 13 Grey, 177; McLeod v. Tutt, 1 How. (Miss.), 288; Evans v. Edmonds, 13 B. & C. 186. '3 Van Brucken v. Fonda, 12 Johns.. 468; Hill on Sales, Title, Warranty. FRAUD AND DECEIT. 567 Fraud in the Sale of Property. in relation to the subject matter of a contract; this is held, equivalent to actual knowledge, and if the matter is false the intention to deceive is generally imputed to the party or infer- red." But, it has been recently held that to sustain an action, founded upon the fraud and deceit of the defendant in mak- ing false representations, it must be shown that he believed, or had reason to believe, at the time of making such represen- tations that they were false, or that he assumed to have or intended to convey the iinpression that he had actual knowl- edge of their truth, though conscious that he had no such knowledge.'* So, an action lies for the deceit, when one represents himself to have authority to contract for the execution of a lease of certain premises, and who promises to procure an execution of the lease, when in fact he has no such agency or authority, and knows his representation to be false. The party thus mis- representing is liable in damages to one who, believing the representations to be true and acting upon them, incurs expense and loss thereby." On the other hand, the vendee is without remedy against a vendor, if he had knowledge in respect to the false representa- tions, or had reasonable means of information on the subject and failed to avail himself of them, or if he had equal means of knowledge with the vendor." And, on a purchase of prop- erty, even with false representations on the part of the vendor the purchaser cannot be careless and negligent, but must use reasonable diligence in discovering any defect in the property, '4 Hill. on Vendors, 325, 335; Lewis v. Eagle, etc., 10 Gray, 572; 1 Hill.on Torts, 14. '5 Meyer v. Amdon, 45 N. Y., 169 (1871). But compare Oberlander v. Spiess, 45 N. Y., 175. See, also, DuFlow v. Powers, 14 Abb. Pr. (N. Y.), N. S., 391. '6 Dung V. Parker, 3 Daly. (N. Y.), 89. '7 Bell V. Ryerson & Barlow, 11 Iowa, 233; Sieveking v. Litzer, 31 Iowa, 13. 668 THE LAW OF DAMAGES. Damages in Case of Fraud. and lie cannot make the mere opinion of another the ground of fraud, where it relates to the value of property." Mr. Hilliard, in his valuable treatise on Torts, in relation to this subject remarks: "While a vendee in case of deceit may claim as for a tort, against a vendor, notwithstanding a contract or even a warranty; so, on the other hand, upon similar ground it is held, that a fraudulent purchase does not vest a title in the purchaser, but the vendor may sue for it in trover.'"' Fraud renders the contract void and the vendor may reclaim the property if induced to part with it by fraudulent repre- sentations.^" § 706. Damages in Case of Fraud.— In case of fraudu- lent representations of the quality or quantity of property sold, the general rule of damages is the difference between the value of the property as it is, and what it would be worth if the representations had been true;'' to which the jury are generally at liberty to add something by way of punishment for the fraud." In other cases, the injured party may recover such damages as may be sustained by the fraud. Thus in Texas, where a drove of horses sold were infected with a contagious disease, which was known to the seller, who con- cealed the same from the purchaser and received a sound price for tlie same, it was held, that if the purchaser rescinded the contract he could recover the money paid with interest, and the value of the care and attention bestowed, and the amount isBondurant v. Crawford, 22 Iowa, 40; Fields v. Runse, 3 Jones, 72; Post V. Williams, 6 Indiana, 219; McDaniel v. Strohecker, 19 Geo., 432; Gage v. Parker, 25 Barb., 141; Cronk v. Cole, 10 Indiana, 485; Pedrick v. Porter, 5 AUen, 380; Longshore v. Jack & Co., 30 Iowa, 298. '9 1 Hill, on Torts, 15. =° Hunter v. The Hudson, etc., 20 Rarb., 493; Wheaton v. Baker, 14 Barb., 594. " Graves v. Spier, 58 Barb. (N. Y.), 349; Page v. Parker, 43 N. H., 363; Can- V. Moore, 41 Id., 131; Stevenson v. Greenlee, 15 la., 96. ^ Wheeler v. Randell, 48 111., 182; McAvoy v. Wright, 25 Ind., 22. See, also. Page v. Parker, supra. FRAUD AN-D DECEIT. 569 Damages in Case of Fraud. of expenses incurred in preserving the horses; that if the contract was not rescinded, he would be entitled to dama" gess equivalent to the value of such as died, and the difference in value between the surviving horses and the price paid for them, with interest on these sums from the date of sale, and the value of his time, labor and expense in taking care of them, and the injury sustained by the contagion being com- municated to other animals of the purchaser, without his fault. In an action for deceit on the sale of property, and the prop- erty fraudulently sold and retained by the vendee has any value, such value must be allowed the defendant in assessing damages." And where there was a false representation, in a sale of the defendant's interest in a stock of goods, and the good will of a firm of which he was a member, the measure of damages was held to be the difference between the actual value of the interest at the time of the sale, and its value if it had been as it was represented to be.°" And where the defendant sold sheep, falsely representing them to be free from "scab," or "foot rot," and other sheep belonging to the purchaser became diseased thereby, it was held, that the pur- chaser was entitled to recover for all the injury sustained." So, where a cattle-dealer sold a cow, fraudulently representing her to be free from infectious disease, knowing she was not, and she was placed with others which took the disease and died, he was held liable for the value of all the cows." "5 Wintz V. Morrison, 17 Tex., 372. See, also, Wheeler v, Randell, 48 111., 182; Packard v. Slack, 32 Vt., 9; McLaren v. Long, 25 Geo., 708, where the same general doctrine was recognized; but the general rule of damages is the same as on a warranty of quahty, viz : the difference between the value of the article as it should have been, and as it is with the defect; and also such consequential damages as are referred to in the text. See, ante, Chap. 12. ^ Morse v. Hutchins, 102 Mass., 439 (1869). ^ SheiTod V. Langdon, 21 la., 518. And it was held proper to allow for damages sustained to other sheep of the plaintiff by reason of the scab being communicated to them by the diseased sheep purchased. =* Mullettv. Mason, 1 L. R. (C. P.), 659. See, also, Knowlesv. Nunns, 14 L. T. R., 592; Fans v. Lewis, 2 B. Men., 375; Bradley v. Rea, 14 AUen, 20. 670 THE LAW OF DAMAGES. Defendant Answerable for Contemplated Damages-False Representations, etc. And where cattle were sold with a fraudulent warranty and representation that they were sound and suitable for a special purpose, and the vendor had knowledge of the special purpose for which they were purchased, namely, for work, and by reason of the unsoundness they were worth $10 less for beef, and $25 less for work, the larger sum was held to be the measure of damages.''" § 707. Defendant Answerable for Contemplated Dam- ages.— In case of fraud, it is held that the wrongdoer must answer for those results injurious to another party, which must be presumed to have been within his contemplation at the time of the commission of the fraud. And where the plain- tiff was enticed by the deceit of the defendant into an oil speculation with him, it was held: 1. That the defendant was responsible for the moneys put into the scheme by the plaintiff in the ordinary course of busi- ness, which moneys were lost. 2. That from such moneys must be deducted the value of the interest which the plaintiff retained in the property held by those associated in the speculation.^" § 708. False Representations as to Land.— In an action for fraudulent representations in the sale or exchange of real estate, the measure of damages is the difference between the land purchased or obtained, as it was at the time, and the sum that the land would have been worth at the time, if it had been such as it was represented to be, by the vendor,'' and to which may be added as damages a sum equivalent to interest on this difference from the time the conveyance was made.'' So, in =9 Ladd V. Lord, 36 Vt., 194. 3" Crater v. Bininger, 43 N. J. L., 513. See doctrine Hadley v. Baxen- dale, 9 Exch., 341. 3' Likes V. Baer, 8 Iowa, 368; Hiner v. Richter, 51 111., 299; Gates v. Ray- nolds, 13 la., 1; Moberly v. Alexander, 19 Iowa, 162; Hahn v. Cummings, 3 la., 583. 3» Wright V. Roach, 57 Me., 600. » FKAUD AND DECEIT. 571 Waiver of Fraud— What no Defense— Surety, etc. an action for false representations as to the quantity of land conveyed, the measure of damages is the contract price per acre for the deficit, with interest thereon. And it is compe- tent to prove, when the parties have exchanged lands, what estimate was placed upon the property received by the defen- dant, and the property transferred to the plaintiff, at the time the contract was made.^^ § 709. Waiver of Fraud. — He who knowingly accepts and retains any benefit under a contract tainted with fraud, or uses the property acquired as his own after the discovery of the fraud, or does any positive act forgiving the fraud, or unduly delays claiming back his property or giving up what he has received, afiirms the validity of the contract.^' § 710. What no Defense— Surety— Indorsee— Prin- cipal. — The fact that a person was induced to sign his name as surety to a negotiable note without reading it, and under the representations of the maker that it was payable to a bank when it was in fact payable to an individual, consti- tutes no sufficient defense to the note in an action thei-eon by the payee against the surety, when it does not appear that the payee had any knowledge of the alleged fraud.*" So, in an action on a promissory note against the maker, proof may be given by the latter that the note was obtained from him through fraud of the payee, and upon such proof the indorsee, is required to show himself to be the holder, hona fide and for a valuable consideration." So a fraud practiced by the prin- cipal of a hail hond^ on a surety, cannot be set up as against the obligee unless he is chargeable with the fraud.^* 34 Hallam v. Todbunter, 24 la., 166. 35 Negley v. Lindsey, 67 Pa. St., 217 (1879). 36 Wright V. FljTin, 33 la., 159, where one or two innocent parties must suffer a loss, that one must bear the loss whose carelessness or acts have been instrumental in producing the loss. 37 Cummings v. Thompson, 18 Minn., 246 (1875). 38 Lepper v. Nultman, 35 Ind., 384. 672 THE LAW OF DAMAGES. When Buyer may sell Property and still Recover. § 7 1 1. We have already considered the question of motives as affecting the measure of damages in actions for torts, and even on contracts in certain cases, such as where the vendor of real estate having at the time of the contract to convey the legal title, subsequently puts it out of his power to convey, or having the legal title refuses to convey, or at the time of the contract to convey, knew he had no title, or in any case where his inability to perform arises from his fraud, in which case the vendee may recover damages amounting to a com- plete indemnity, including compensation for any actual loss by the increased value of the laud at the time the contract should have been executed.'* This rule is claimed to be an exception to one which entirely ignores any consideration of motives, in the measure of damages on a breach of contract. But these cases do not, as we have seen, constitute the only exception, for in some other cases the courts, disregarding this rule, have characterized the conduct of the party failing to perform as fraudulent; as where there is a malicious breach, or a wanton and malicious refusal to perform a contract under circumstances of aggra- vation; and in such cases the measure of damages is brought within the principle of damages in cases of torts." § 712. When the Buyer may Sell the Property, and still Recover. — Where there is a fraudulent warranty of property the purchaser may sell it, for the best price he can obtain, with or without offering to return it, and the measure of damages in such a case, in an action against the vendor for the fraud, would be the difference between the price obtained and the value of the property if it had been as represented." So, where there is fraud in the purchaser, by which he obtains property through false representations, relied upon by the » See, ante, § 58, etseq. ♦> See cases cited, ante, § 58, et seq. « Woodward v. Thatcher, 21 Vt., 580. FRAUD AND DECEIT. 573 Wlien Buyer may sell Property and still Recover. vendor and materially affecting his rights and interests, the vendor may recover the goods in a proper action." This may occur where there is a fraudulent representation by the buyer as to his solvency, or where there is any preconceived design not to pay for the property purchased." But a pur- chaser in good faith for a vahiable consideration, from such a fraudulent vendee, may hold the goods against the vendor who has thus been defrauded." 42 In some of the states in such cases, if the plaintiff fails to secure the specific property, he may in the same action have a judgment for its value. Iowa Code (1873), § 3238, et seq. Gary v. Hotaling, 1 HiU, 311; Thomson v. Rowe, 16 Conn., 71; McKnight v. Morgan, 2 Barb., 171. 43 Ash v. Pullman, 1 Hill, 302; Bidault v. Wales, 20 Mo., 546; Fox v. Web- ster, 46 Mo., 181. 44 Root v. Funch, 13 Wend., 570; Morrow v. Walsh, 8 Cow., 238. 574 THE LAW OF DAMAGES. Power of Congress— Infringement a Tort— Actual Damages. CHAPTER XXYIII. PATENTS. Section 713. Power of Congresa— Infringement a Tort. 714. Actual Damages. 716. Treble Damages. 717. "What may be Allowed as Damages. 718. The Defendant may be Required to Account. §713. Power of Congress— Infringement a Tort. — In reference to patents, it may be observed that Congress has the power to grant the exclusive privilege to the inventor of any useful thing, of making, using and vending such inven- tion ; and where a patent is issued for that purpose, any infringe- ment thereof is a tort for which the wrongdoer is liable, on general principles, to pay at least any actual damages sustained by the patentee.* Damages for an infringement may be recovered, not only where the patent covers the whole machine but where it is for an improvement merely." § 7 14, Actual Damages . — The mode of determining the actual damages may be illustrated bj^ the opinion of the court in Wilbur v. Beecher.^ Nelson, J., remarked: ''If the defend- ant has been guilty of violating the plaintiff's rights, the rule on the question of damages is, that the plaintiff is entitled to ' PhiUips on Patents, 2; 1 Hill, on Torts, 678. » Seymour v. McCormick, 16 How., 480; 19 Id., 96. 3 2Blatcli., 132. PATENTS. 575 Actual Damages. all the actual profits which the defendant has made by the use of the principle of the plaintiflfs combination. In other words, the plaintiff is entitled to all the damages which he has sustained by reason of the use which the defendant has made of the plaintifl''s property. This is in effect the same thing, because the law presumes that if the defendant had not put his machines into the market the demand would have been for the plaintiff's, and that he would have received the profits on the machines which have been made and sold by the defend- ant. Vindictive or exemplary damages are not allowed. The jury are confined to actual damages, and the law has provided that the court may increase those damages in certain cases."* The principle is further illustrated by the charge of the court to the jury in Pitts v. Rall^ where it was said: "One mode of arriving at the actual damages is, to ascertain the profits which the plaintiff derives from the machines which he manufactures and sells, and which have been manufoctured and sold by the defendant. This mode is founded upon the presumption of law, that if the defendant had not been wrong- fully concerned in the manufacture of the machines those persons who procured them from him would have applied to the patentee or assignee for them. Another mode, and one resorted to partially in this case, is to ascertain the profits which the party infringing has derived from the use of the invention or the construction of the machines ; because, whatever profits he has derived have arisen from the wrongful use of the invention, and belong to the real owner of the machine. This measure of damages, however, is not control- lino-, and ought not to be, because a party concerned in infring- 4 See, also, Hall v. WHes, 2 Blatchf., (U. S. C. C), 194, where the same judge observes: "The rule of law as to damages, when an infringement is made out, is, to give the plaintiff the actual loss which he has sustained, and nothing more. Exemplary or vindictive damages cannot be given. If the damages are insufficient, tliere is a provision of law authorizing the court to treble them." s 2 Blatchf. (U. S. C. C), 229. 576 THE LAW OF DAMAGES. Actual Damages. ing a patent, stands in a different position from the patentee, not having been previously subjected to the expense and hxbor to which the latter is frequently exposed in the process of invention and experiment. Hence the person who enters upon the busi- ness without previous expense, may well afford to sell machines at less profit than the patentee.'" Again where a master made a report, under instructions of the court, in which he stated the sum of $2,566.46, as the amount of profits which the defendant, by reasonable diligence, might have made from the use of the patent in sales of machines during the period for which damages were claimed. Justice McLean, on appeal of the case, remarked: "The decree was entered on the report of the master for the estimated amount of profits which tlie defendant with reasonable diligence might have realized; not what in fact he did realize. This instruction was erroneous. The rule in such a case is, the amount of profits received by the unlawful use of the machines, as this, in general is the dam- age done to the owner of the patent. Generally, this is suffi- cient to protect the rights of the owner; but, where the wrong has been done under aggravated circumstances, the court has the power, under the statute, to punish it adequately by an increase of damages." ' 6 See, also, McConnick v. Seymour, 2 Blatchf., (U. S, C. C), 240, where it was also held that the jury might allow the plaintiff damages resulting from pubUcations of the defendant, disparaging the plaintiff's improvement, while he was engaged in violating the patent. See, also. Buck v. Hermance, 1 Blacthf., Id., 898; Parker v. Corbin, 4 McLean. 462; Parker v. Hulme, 7 West., L. J., 417; 1 Fisher, P. C, 44. 7 Dean v. Mason, 20 How. (U. S.), 198. See, also, Livingston v. Woodworth, 15 Id., 546; Mayor, etc., N. Y., v. Ransom, 23 How., 487; MitcheU v. Hawley, 16 Wall., 544; Philip v. Nock. 17, Id., 460, where it was held that damages cannot be left to conjecture by the jury; Rubber Co. v. Goodyear, 9 Wall., 788; Mowery v. Whitney, 14 Id., 620, interest not usually allowable; Hussy V. Whitney, 1 Bond., 407; Nesmith v. Calvert, 1 Wood & M., 34. The foregoing decisions excluding exemplary damages, were made under, and in reference to, the Acts of Congress of 1800 and 1836; the former pro- viding that the infringer should pay three times the actual damage sus- tained; and the latter, in case of a verdict for the plaintiflF, giving power to PATE:N'TS. 577 Actual Damages. The methods of arriving at actual damages may be further illustrated. Thus, actual damages are such as can be actually proved, and were in fact sustained, as contradistinguished from imaginary, or exemplary damages. And in case of the illegal use of a machine the damages should be the value of the use during the time. But if tliere has been only an infringement of tlie patent in the making of the machine, and there has been no use of it, only nominal damages should be allowed.* And the estimate of the jury must be very extrava- gant to authorize the court to set aside the verdict, as being excessive.* It is the duty of the jury to give the plaintiff reasonable damages; but where a patentee fraudulently leads a party to infringe on his right, only nominal damages can be recovered of him." The jury are at liberty to give the plaintiff such damages, not in their nature vindictive, as shall compensate him fully for all his actual losses and injuries occasioned by the viola- tion of the patent by the defendant." And in case of wanton and persevering encroachments on rights secured by a patent, the "court to render judgment for any sum above the amount found by such verdict as the actual damage sustained by the plaintiff, not exceeding three times the amoimt thereof according to the circumstances of the case, with costs." This section, confines the jury to the actual damages sustained. They can- not award punitive damages. Seymour v. McCormick, 16 How., 480 (1853); Stephens v. Felt, 2 Blatchf., 38 (1846); Stimpson v. Railroads, 1 Wall., Jr., 169 (1847). Damages cannot include counsel fees in addition to taxable costs. Stimpson v. Raihoads, supra; Leese v. Huntington, 23 How., 8 (1859). The present act of Congress wiU be hereafter set out, which in this respect is sim- ilar to the Act of 1836. 8 Whittemore v. Cutter, 1 Gall., 481; Kneeas v. SchuylMll Bank, 4 Wash., 14 (1820); Earle v. Sawyer, 4 Mason, 14. So. nominal damages should only be allowed where there is proof of an infringement but no evidence of the actual damages. Mayor, etc., of N. Y., v. Ransom, 23 How., 488. 9 Whitney v. Emmet, Bald., 325; Stanley v. Whipple, 2 McLean, 40 (1839); Alden v. Dewey, 1 Story, 336 (1844); Stephens v. Felt, supra. 'o Washburn v. Gould, 3 Story, 122 (1844). " Pierson v. Eagle Screw Co., 3 Story, 410 (1844). 37 578 THE LAW OF DAMAGES. Treble Damages— What may be Allowed as Damages. and whenever necessary for the purpose of protection against infringement, the coiirt should treble the damages." §716. Treble Damages.— By a recent Act of Congress, the complainant may not only restrain by injunction the pirati- cal use of his invention, but recover for an infringement of the same, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby; and these damages may be trebled, in the discretion of the court." § 717. What may be Allowed as Damages.— Remote and consequential damages, as we have seen, should be disre- garded.'' And applications to the court to treble the dama- Allen V. Blunt, 2 Wood & Min.. 147; Greyon v. Serrel, 1 Blatchf., 245; Footev. Silsby, 1 Id., 459. But where the defendant infrihf?es a patent ignorantly and innocently the jury should be strictly confined to actual damages, and they should not be increased by the court. Parker v. Corbin, 4 McLean, 463; Hogg v. Emerson, 11 How., 587. '3 Act July 8, 1870, § § 55, 59; 16 U. S. Stat, at Large, 206, 207; Rev. Stat. (1874), p. 960, § § 4919, 4921. These sections provide as follows: "Sec. 4919. Damages for the infringement of any patent may be recovered by action on the case in the name of the party interested, either as patentee, assignee or grantee. And whenever in any such action a verdict is rendered for the plaintiff, the court may render judgment thereon for any sum above the amount found by the verdict as the actual damages sustained, according to the circumstances of the case, not exceeding three times the amount of such verdict, together with the costs." "Sec. 4921. The several courts vested with jurisdiction of cases arising under the patent laws, shall have power to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby; and the court shall assess the same, or cause the same to be assessed under its direction. And the court shall have the same power to increase such damages in its discretion, as is given to increase the damages found by verdicts in actions, in the nature of actions of trespass upon tlae case." The power of the court to increase the damages is in lieu of any right to exemplary damages. Seymour v. McCormick, 16 How., 480. See, also, Allen V. Dewey, 1 Story, 336. '* Carter V. Baker, 4 Fish. (P. C), 404. PATENTS. 579 Defendant may be Required to Account. ges should be refused unless special reasons are shown, such as malice, insufficiency of the verdict, or the like.* And a jury cannot allow for any expenditures for counsel fees, or other charges, even though necessarily incurred to vindicate the patent, and though not taxable as costs.'' So, counsel fees paid by the complainant in a suit in equity for an infringe- ment of a patent, are not recovereble as damages, under Sec. 55 of the Patent Act of 1870, any more than they were under the corresponding provisions of Sec. 14 of the Patent Act of 1836.^ But costs of suit should be taxed against the defend- ant in cases where mere nominal damages are allowed." In estimating the damages for an infringement of a patent, the jurj' have a large discretion from the very nature of the case, in the ascertainment of actual damages, although they should deduce them from the facts and circumstances of the case as proved.^ Justice Story thus states some of the- ingredients for the consideration of the jury in estimating damages: "The price of the machine, the nature, actual state, and extent of the use of the plaintiff's invention, and the particular loss to which he may have been subject by the piracy, are all proper ingre- dients to be weighed by the jury in estimating the damages, valei'e quantum valeat. '* § 718- The Defendant may be Required to Account. — And where the defendant has been guilty of an infringe- ment of a patent, and the circumstances require it, the court ' Schwazel v. Holenshade, 3 Fish. (P. C), 116. See, also, Bell v. McCul- lough, 1 Bond, 194. 'Stimpson v. The Railroad, etc., 1 Wallace, Jr., 169; 2 Hill, on Torts, .,45; Blanchard, etc., v. Warner, 1 Blatch., 259; Teese v. Huntington, 23 How. (U. S.), 2; Day v. Woodworth, 13 How., 363. 3 Bancroft v. Acton, 7 Blatch., 505, (1875). 4 Merchant v. Lewis, 1 Bond, 172. s City of New York v. Ransom, 23 How. (U. S.), 487; Schwazel v. Holenshade, supra. ' Opinion of Story, J., in Earle v. Sawyer, 4 Mason, 14. 680 THE LAW OF DAMAGES. Defendant may be Required to Account. will compel him to render an account of the articles manufac- tured bj him in violation of the plaintiff 's rights under his patent, and account for the value of those sold bj him, and also for the value of such as he may have on hand.' 7 Holland v. Fox, 25 En^. L. & Eq., 69. For the English practice, under the Patent Law Amendment Act, see 15 and 16, Vict. C, 83. When by a joint resolution of Congress, the Court of Claims was required to investigate and determine whether the claimant was the original inventor of a certain fuse, and of a percussion device, and whether he was entitled to a just and equitable compensation therefor, and what amount of compensation he was entitled to recover, and the court found that he was the original inventor, it necessarily follows that he has a just and equitable right to compensation. This right must be determined by the principles and considerations which obtain in ordinary cases between private persons and parties for the use of inventions and infringements of patents. But the damages are restricted within the amount limited in the act referring the case to the court. Joint Resolution, 3d June, 1864; 13 Stat, at L., p. 588; Hubbel v. The United States, 13 Court of C, 1. COPYKIGHTS AND TKADE-MAEKS. 581 Provisions of the Constitution— Power of Congress. CHAPTER XXIX. COPYRIGHTS AND TRADE-MARKS. Section 720. Provisions of the Constitution— Power of Congress. 721. Damages— Books, etc. 722. Damages— Maps, Charts, etc, 723. Damages— Dramatic Compositions. 724. Different Kemedies for an Infringement. 725. Literary Piracy. 726. Trade-Marks. 727. Damages for Infringement. § 720. Provisions of the Constitution— Power of Con- gress. — Closely related to the law of patent rights, is that of copyrights. This is the property which an author has in his •work secured to him for a limited period, by law.* The constitu- tion of the United States gives to Congress power " to promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.'" And in England, as well as in this country, it has been claimed that this right exists at common law.' Pursuant to constitutional authority » Bouv. L. D. » Art. 1, Sec. 8, Const, of U. S. 3 MiU'er v. Taylor, 4 Burrow, 2303; Palmer v. DeWitt, 47 N. Y., 532; Short on Law of Literature, 48; Opinion Ld. Brougham, Jeffrys v. Boosey, 30 Eng. L. & Eq., 1 ; 4 H. L. C, 978. It would appear, on general principles, eminently just and proper to recognize a right to intellectual property as a common law right; if not, we should have a general enactment expressly recognizing it under all circumstances. See, also, Wheaton v. Peters, 8 Pet., 591. 582 THE LAW OF DAMAGES. Damages— Books, Maps, Charts, etc. Congress has at various times passed acts to secure to and protect authors in the enjoyment of tlieir productions, and the exclusive right of future enjoyment, for a terra of years.' §721. Damages— Books, etc. — The existing Act of Congress in reference to damages for the violation or infringe- ment of a copyright, provides as follows: "Every person who after the recording of the title of any book as provided by this chapter, shall within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in the presence of two or more witnesses, print, publish, or import, or knowing the same to be so printed, published or imported, shall sell or expose for sale any copy of such book, shall forfeit every copy thereof to such proprie- tor, and shall also forfeit and pay such damages as may be recovered in a civil action, by such proprietor in any court of competent jurisdiction.'" Under the provisions of this sec- tion it is evident the complainant, in addition to books for- feited, should recover his actual damages sustained by the infringement. § 722. Damages— Maps, Charts, etc.— The Act further provides: "If any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving or photograph, or chromo, or of the description of any paintmg, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of the fine arts, as provided by this chapter, shall within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in the presence of two or more witnesses, engrave, etch, work, copy, print, publish or import, either in 5 These copyrights are secured to authors in Great Britain and most of the countries of Europe. A compliance with the Acts of Congress in relation to copyrights is indispensable to secure the protection of authorship. Baker v. Taylor, 2 Blatchf., 82. 6 Act of July 8, 1870, Chap. 230, § 99, v. 16; U. S. Rev. Stat., 1873-4, Chap. 3, § 4964, approved June 20, 1874. COPYRIGHTS AND TRADE-MARKS. 583 Damages— Dramatic Composition— Different Remedies for Infringement. whole or in part, or bj varying the main design with intent to evade the law; or, knowing the same to be so printed pub- lished or imported, shall sell or expose to sale, any copy of such map or other article as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof either copied or printed, and shall further forfeit one dollar for every sheet of the same found in liis possession, either printing, printed, copied, published, imported or exposed for sale, and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possesion, or by him sold or exposed for sale, one- lialf thereof to the proprietor and the other half to the use of the United States." ' § 723. Damages— Dramatic Composition.— In reference to damages for violating the copyright of dramatic composi- tions, the act of Congress provides: "Any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the pro- prietor thereof, or his heirs or assigns, shall be liable for dam- ages therefor, such damages in all cases to be assessed at such sum, not less than ojie hundred dollars for the first and tifty dollars for every subsequent performance, as to the court may appear to be just.'" It is evident that the same general prin- ciples in this case would be applicable in determining the amount of actual damages which we have noticed as applica- ble in assessing damages in cases of the infringement of patents. §724. Diiferent Remedies for an Infringement.— Prof. Greenleaf, in bis work on evidence asserts, in reference 8 Id., § 4965. 9 Id., Sec. 4966. "Every person who shall print or pubhsh any manu- script whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States or resident therein, shall be liable to the author or proprietor for all damages occasioned by such injury." Id., Sec. 4967. 584 THE LAW OF DAMAGES. Literary Piracy -Trade-Marks. to the remedy for an infringement of a copyright, as follows: "The remedy for an infringement of a copyright, is either at law by action for the statute penalties, or by an action on the case for damages, or in equity by a bill for an injunction.'"" § 725. Literary Piracy. — A fair and real abridgment, or a fair quotation made in good faith, is not a violation of a copyright. But if so much of the original work be taken as to sensibly diminish its value, and the labors of an author are to a substantial and injurious extent appropriated, it is a literary piracy, jpro tanto^ for which the party injured may recover the damages sustained thereby." But our inquires must be confined, in this connection, mainly to the question of damages, and not extend to a general con- sideration of the law of copyrights. It may, however, be proper to observe that the most usual and effective remedy for infringements of copyrights, as well as patent rights, is in equity, wliere the defendant may not only be compelled to account for damages sustained by the com- plainant on account of the infringement, but also be restrained by injunction from further publications or sales.'* § 726. Trade-Marks.— The law protects a person in the exclusive enjoyment of a trade-mark as a private right and interest, independent of any statutory provision." This right is, however, in this county also secured by statute, and is in this respect analogous to the rights of a party under both a patent and copyright. The skill and ingenuity of a party are fre- quently manifested in names, signs, brands, labels, words, or 'o2Greeiilf. onEv.,§510. " 2 Greenlf. on Ev., § 514, and authorities cited. Story's Ex'rs v. Hol- comb, 4 McLean, 306. 12 Pierpont v. Fowle, 2 Woodb. & M., 23; Stevens v. Gladding, 17 How., 447: Stevens v. Cady, 2 Curt., 200; Bartlett v. Crittenden. 5 McLean. 32. •3 Taylor v. Carpenter, 11 Paige, 292; Marsh v. Billings, 7 Cush., 322; Stokes v. Landgraff, 17 Barb., 608; Christy v. Murphy, 12 How. Pr., 78; Cor- win v. Daly, 7 Bos., 222; Upton on Trade-Marks, 199 (1860); Hobbsv. Fran- cais, 19 How. Pr., 567; Taylor v. Carpenter, 3 Story, 458. COPYRIGHTS AND TRADE-MARKS. 585 Trade-Marks. other devices used to advertise or designate his business or goods, or place of business; and this, not only as regards mechanical and artistic skill, but also scientific and literary ability; and such devices or trade-marks^ thus first adopted and used by a party, become his exclusive right, and no other person can lawfully appropriate or use them." Names and devices which are adopted to point out the true '4 Gillott V. Esterbrook, 48 N. Y., 374 (1872); Stokes v. Landgraff, supra; Amoskeag', etc., v. Spear, 2 Sandf., 599; Coffeen v. Brunton, 5 McLean, 256. By a recent act of Congress a right to a trade-mark may be secured. Act July 8, 1870, Sec. 4937, Stat, at L., 963. But it is presumed that this act does not affect the general common law rights of a party in that respect. See, as to the effect of the act of Congress generally, Topham v. Wilcox, 14 Abb. (N. Y.) Pr. (N. S.), 206. The Act of Congress relating to trade-marks provides as follows: "Any person or firm domiciled in the United States, and any corporation created by the United States, or any state or territory thereof, and any person, firm, or corporation, resident of or located in any foreign country, which by treaty or convention affords similar privileges to citizens of the United States, and who are entitled to the exclusive use of any lawful trade-mark, or who intends to adopt and use any trade-mark for exclusive use, within the United States, may obtain protection for such lawful trade-mark, by comply- ing with the following requirements. First. By causing to be recorded in the Patent OflBce, a statement speci- fying the names of the parties and their residences and place of business, who desire the protection of the trade-mark; the class of merchandise, and the particular description of goods comprised in such class, by which the trade-mark has been or is intended to be appropriated; a description of the trade-mark itself, with fac-similes thereof showing the mode in which it has been or is intended to be appUed and used; and the length of time, if any, during which the trade-mark has been in use. Second. By making payment of a fee of twenty-five dollars in the same manner and the same purpose as the fee required for patents. Third. By complying with such regulations as may be prescribed by the Commissioner of Patents. (Sec. 4937, Ch. 2, Tit. 60, Rev. Stat. U. S., Approved, June 20, 1874.) " Any person who shall reproduce, counterfeit, copy, or imitate any recorded trade-mark, and affix the same to goods of substantially' the same description, properties, and quahties, as those referred to in the registration, shall be liable in an action on the case for damages, for such wrongful use of such trade-mark, at the suit of the owner thereof; and the party aggrieved shall also have his remedy according to the course of equity to enjoin the wrongful use of his trade-mark and to recover compensation therefor in any 586 THE LAW OF DAMAGES. Damages for Infringement. source and origin of a manufactured article, possess the requisite characteristics of a trade-mark, and property therein may be acquired by their adoption and use." But, it has been held, that no property can be acquired in words, marks, or devices, which do not denote the goods, ownership, or place of busi- ness of a party, but only the kind and quality of the article in which the party deals," 8 727. Damages for Infringement. — In case of viola- tion of the rights of another by the use of his trade-mark, the court having jurisdiction over the person guilty of such wrongi'ul use." (Sec. 4942, Id.) " No action shall be maintained under the provisions of this chapter by any person claiming the exclusive right to any trade-mark which is used or claimed in any unlawful business, or upon any such article which is injuri- ous in itself, or upon any trade-mark wliich has been fraudulently obtained, or which has been formed and used with the design of deceiving the public in the purchase or use of any article of merchandise." (Sec. 494^3, Id.) " Any person who shall procure the registry of any trade-mark, or of him- self as the o^vne^ of a trade-mark, or an entiy respecting a trade-mark in the Patent Ofiice, by making any false or fraudulent representation or decla- rations verbaly or in writing, or by any fraudulent means, shall be liable to pay any damages sustained in consequence of any such registry or entry, to the person injured thereby, to be recovered in an action on the case." (Sec. 4944, Id.) " Nothing in tliis chapter shall prevent, lessen, impeach, or avoid any remedy at law or in equity, which any party aggrieved by any wrongful use of a trade-mark, might have had if the provisions of this chapter had not been enacted." (Sec. 4945, Id.) " Nothing in this chapter shall be construed by any court as abridging or in any manner affecting unfavorably the claim of any person to any trade- mark after the expiration of the term for which such trade-mark was regis- tered." (Sec. 4946, Id.) 's FiUey v. Fassett, 44 Mo., 168 (1869). Compare Ferguson v. Davol Mills, 2 Brews. (Pa.), 314; Dixon Crucible Co. v. Guggenheim, 2 Brews. (Pa.), 321 (1869). 'S Ferguson v. Davol MUls, 2 Brews., 314. See, also, (-hoynski v. Cohen, 39 Cal., 501; GiUott v. Kettle, 3 Duer, 624; Stonebreakerv. Stonebreaker, 33 Md., 252 (1870); Hostetter v. Vowinkle, 1 DUl., 329. See, also, for the use of mdividual names as trade-marks, Meneely v. Meneely, 12 Albany L. Jour., 220, in N. Y. Court of Appeals (1875); Candee v. Deere, .54 111., 439. But no protection will be given where the trade-mark is intended to deceive the pubHc. Fetbridge v. Wells, 13 How. Pr., 389; Hobbs v. Francais, supra. COPYRIGHTS AND TRADE-MARKS. 587 Damages for Infringement. common remedy is by injunction to restrain the use; but the wrongdoer is also liable in damages for such injury. The measure of damages in such cases is, indemnity for the injury caused thereby;" and the plaintiif may recover his loss of profits on sales, sustained in consequence of the defend- ant's sales, under plaintiff's trade-mark." So, it has been held, that the plaintiff is entitled to the whole profits made by the defendant on the sale of an article under the plaintiff's trade-mark. In a recent case the court remarked: " It is more consonant with reason and justice, that the owner of the trade- mark should have the wliole profit, than that he should be deprived of any part of it by the defendant.'^ And it was stated that, in such a case, although the plaintiff would be enti- tled to such profits as the defendant derived from the piratical use of the trade-mark, these might not constitute all the dama- ges, as the spurious article thus sold might have injured the sale of the genuine one.°° And the plaintiff is entitled to nominal damages, where the evidence shows an infringement on his exclusive right to the mark, without proof of any special damages thereby." So, it is held that the defendant may show want of knowledge of the plaintiff's ownership of the trade- mark, and of any intention to do wrong; and that he made a single sale of the simulated article, these matters being im- portant on the question of damages.^' In conclusion, it may be observed that the general doctrines, principles and methods applicable in determining the dama- ges in case of infringements of patents, would be applicable in 17 Thompson v. Winchester, 19 Pick., 214; Marsh v. Billings, 9 Gush., 330. '8 Taylor v. Carpenter, 2 Woodb. & M., 1. See, also, Colt v. Holbrook, 2 Sand., Ch. 586; Spottswood v. Clark, 2 Id., Ch., 28. But see, also, of qualifi- cation to the rule. Leather Cloth Co. v. Heichfield, 1 Law R. (Eq. Cases), 299. '9 Graham v. Plate, 40 Cal., 593. =0 Graham v. Slato, supra. See, also, Pitts v. Hall, 2 Blatchf., 229. " Burnett V. Phalon, 21 How. Pr., 157; Blofield v. Payne, 4 B. & A., 410. « Faber v. D'Utassey, 11 Abb. (N. Y.) Pr., (N. S.) 399 (1871). 688 THE LAW OF DAMAGES. Damages for Infringement. determining the amount of damages in case of a violation of the rights of the proprietor of a trade-mark, whether he has complied with the provisions of the Act of Congress, for the purpose of securing the benefit of its protection, or not. By the provisions of that act, the rights and remedies of the party at common law are expressly reserved, and are unajQfected by the statute. INJUEIES TO PROPERTY— TKESPASS. 589 Plan of this Treatise— What it does not Embrace. CHAPTER XXX. INJURIES TO PROPERTY— TRESPASS. Section 730. Plan of Treatise— What it does not Embrace. 731. Trespass Defined. 732. Damages for Trespass to Property— General Principles. 734. Injury to Real Estate. 735. Injuries to the Possession of Eeal Property. 736. Damages for Injuries to Trees. 737. Tenants— Injury to Rights of. 738. Limit to Tenant's Damages. 739. Profits- Sometimes an Element of Damages. 741. Aggravation— Exemplary Damages. 742. "Water Rights and Injuries by Water— General Rule. 743. Limitation of Damages. 744. WTiere a Trespass Benefits as well as Injures. 746. Mining— Rule of Damages. 747. Nuisance. 748. Rule of Damages. 750. Statutory Provisions. 751. Waste— Damages. § 730. Plan of this Treatise — What it does not Embrace . — The plan of this treatise does not contemplate any inquiry into the forms of actions, or the requisites of pleadings or proofs to secure a party a complete remedy in actions for injuries to property, except as they may be inci- dentally connected with an inquiry into the proper measure of damages in such cases. Kor does it necessarily involve any 590 THE LAW OF DAMAGES. Trespass Defined. particular inquiry into the different kinds of property or rights or interests therein, or the mode of acquiring the same. These inquiries pertain to works of a different char- acter. § 731. Trespass Defined.— The term trespass, in hiw, is very comprehensive — a nomen generalissimum, for a great variety of injuries. It has been defined as an unlawful act committed with violence, vi et armis, to the person, property, or relative rights of another.' And again, it is defined more comprehensively by Blackstone, as follows: "Trespass in the most extensive sense, signifies any transgression or offense against the law of nature, or society, or of the country in which we live; whether it relates to a man's person or his propert}'. Therefore, beating another is a trespass, taking or detaining a man's goods, are respectively trespasses; for which an action of trespass, vi et armis, or on the case in trover and conversion, is given by the law; so, also, non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded; and in gen- eral any misfeasance or act of one man, whereby another is injuriously treated or damnified, is a transgression or trespass in its largest sense."^ In this extensive signification the word is used in the Code promulgated by Moses, as, " if thy brother trespass," etc., and " if thy neighbor trespass," etc. But in its more restricted sense, trespass signifies an unlawful entry upon real, or the taking of personal property of another, or an interference with any legal right of another therein, or any injury committed with violence to the person of another. "We have considered, to some extent, the law of damages arising from injuries to the person, and will now proceed to consider such as relate to property. ' Bouv. Law Die. » Black. Com., B. 3, p. 208. INJUKIES TO PKOPERTY— TKESPASS. 691 Damages for Trespass to Property— General Principles. § 732. Damages for Trespass to Property— General Principles- — It may be stated as a general rule, that in an action of trespass, the plaintiff may recover for all such dama- ges as necessarily result from the trespass ; that " every person who does a wrong is at least responsible for all the mischiev- ous consequences that may reasonably be expected to result under ordinary circumstances from such misconduct."^ So, " a man who officiously presumes to interfere with, or make use of the property of another without his permission, is liable for all the consequences of such interference, whether he intended any injury to the owner or not." ' Thus, in an action to recover damages for unlawfully taking property, the owner may recover for loss of time necessarily and reasonably expended in search- ing for tlie property as well as expenses thereby incurred, in addition to the value of the property and interest on the same." So in trespass quare clausum fregit, where the defendant's sheep trespassed upon the close of the plaintiff and commin- gled with his sheep, it was held that the plaintiff was entitled to recover as an item of damages, the injury sustained by reason of their being diseased; and the knowledge of the defendant thereof, was held immaterial, except to increase damages.^ So, " where one does an illegal or mischievous act which is likely to prove injurious to others, or when he does a legal act in such a careless and improper manner that injury to a third person may ensue, he is answerable in some form of action, for all the consequences which may directly and naturally result from his conduct." ^ § 733. This proposition is stated in another form by Mr. Hilliard, namely: "That where the consequences of an unlaw- 3 Per Pollock, C. B., in Rigby v. Hewitt, 5 Exch., 243. 4 Wright V. Gray, 2 Bay, 464. 5 McDonald v. North, 47 Barb. (N. Y.), 530. * Bamum v. Van Dusen, 16 Conn., 200. 1 Vandenburgh v. Truax, 4 Denio, 464. 592 THE LAW OF DAMAGES. Injui*y to Real Estate. ful act are immediate, he that does the unlawful act is con- sidered the immediate doer of all that directly follows. He is the causa causans^ and a trespasser. And it is enough to show that the injury is part of a 'chain of effects' resulting from the act complained of." * § 734. Injury to Real Estate.— In trespass for cutting and carrying away soil, actual compensation only should be given as damages, if there are no circumstances of aggravation connected with the trespass. "Where the injury is slight, the expense of restoring the soil would be a proper amount. But if the injury is extensive and the expense of restoring the soil would exceed the value of the premises injured, immediately before the trespass was committed, the difference between the value of the land before and after the injury should be recov- ered; and where they are rendered useless by the trespass, then the value of the land should be recovered. The plaintiff should in no case recover more damage than he has sustained, nor more than the value of the land, unless, perhaps, where the circumstances warrant the assessment of exemplary dama- ges." But where the defendant had destroyed the sluiceway to a mill, in an action for damages therefor the defendant was held not only liable for the sluiceway destroyed, but for the consequential damages to the plaintiff in being thereby de- prived of the use of the mill." And for such an injury he should recover the value of the use of the mill during the period he was thus deprived of the use of the same. This would ordinarily be its fair rental value for the time he was 8 Hill, on Torts, 85, citing, Holmes v. Watson, 29 Penn., 457; Burdick v. Worrell, 4 Barb., 596. 9 Jones V. Gooday, 8 M. & W., 146; Muller v. St. Louis, etc., R. Co., 31 Mo., 262; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass., 80. '° Hammot v. Russ, 16 Me., 171. See, also, Tarlton v. McGawley, Peaks (N. P. C), 205; Hosking v. PhilUps, 3 Exch., 168; Lukin v. Godsall, Peake, Ad. C, 15. IISTJUEIES TO PROPERTY— TEESPASS. 593 Injuries to the Possession of Real Property— Damages for Injuries, etc. necessarily so deprived. In such cases, however, the injured party cannot recover for such losses as might have been avoided by him, by the use of reasonable care and means on his part. This qualification we have already fully considered." An unauthorized entry on the land of another, is a trespass for which at least nominal damages can be recovered, even though this may be shown to have been beneficial to the owner." So, any violation of a right makes the wrongdoer a trespasser for which at least nominal damages can be recov- ered of the wrongdoer, in order to vindicate the right which has been infringed, and such further damages as may actually have been sustained by the wrong. § 735. Injuries to the Possession of Real Property. — The owner of lands may recover from a disseizor the value of the use and occupation of the lands, but he cannot recover the crops grown by the disseizor while the owner was out of possession." And where there are several guilty of a joint trespass they are liable for damages, estimated according to the liability of the most culpable of either of the joint tres- passers.'* § 736. Damages for Injuries to Trees.— The rule of damages in case of the cutting down and carrying away of forest trees, would ordinarily be at least the value of the tim- ber or wood, at the time when and the place where they were first cut and became chattels.'* But if fruit or ornamental " See, ante. Chap. 8. " Parker v. Griswold, 17 Conn., 288; Murphy v. The City of Fon Du Lac, 23 Wis., 365. '3 Page V. Fowler, 39 Cal., 412 (1870). M Berry V. Fletcher, 1 DiU. (C. C. R.), 67; 2 Stark Ev., 807; 2 Hill, on Torts, 464. 'S Bennett v. Thompson, 13 Ired, (N. C.) L., 146; Moody v. Whitney, 38 Me., 174; Smith v. Gonder, 22 Geo., 353; Cushing v. Longfellow, 26 Me., 306. But in Chipman v. Hibbard, 6 Cal., 162, it was held that the damage should be for the injury to the land. See, also, Coxe v. England, 65 Pa. St., 212; Young V. Lloyd, 65 Id., 199. 38 594 THE LAW OF DAMAGES. Tenants— Injuries to Rights of. trees are cut down or destroyed, the damages would not be limited to the value of the same for wood or timber, or for manufacturing purpose, but should be assessed under ordinary circumstances at the value of the trees for the purposes for which they were designed and useful, under all the circum- stances of the case." And where a person in good faith cuts timber on vacant land believing it to be his own, the damages should be only for the actual loss sustained thereby/ And the value of the timber should be determined by the price of timber in the vicinity, and not by the net value of the logs cut from the timber at a distant market.* Nor is it any defense to an action, or mitigation of damages, that the trees wrongfully cut down tended to make the plain- tiff's house damp and unhealthy.' § 737. Tenants— Injury to Rights of.— The measure of damages will of course vary with the value or character of the interest held or owned by the plaintiff. Thus, the owner of the freehold can recover for injuries that permanently affect the same, whereas a tenant can only recover damages for the injury to his temporary use and occupation of the premises, and enjoyment of them.'" But, the tenant may recover for ■whatever damage he sustains, by interference with his posses- sion, although the same wrongful act also injures the freehold. Thus, where the defendant in blasting rocks, on his own land, threw them on an adjoining lot occupied by the plaintiff as tenant, and continued the operation until he split a rock in said premises and undermined the house situated thereon; it was held, that the defendant was liable to the plaintiff for the « WWtbeck V. N. Y. Cen. R. Co., 36 Barb., 644. 7 Yahola, etc., Mining Co. v. Isby, 40 Geo., 479; Perkins v. Hackleman, 26 Miss., 41. See, also, Jefcoat v. Knotts, 13 Rich. (S. C. L.), 50. 8 Coxev. England, 65 Pa. St., 212 (1870). 9 Bliss V. Ball, 99 Mass., 597. 'o GHbert v. Kennedy, 22 Mich., 117 (1870); Seely v. Alden, 61 Pa. St., 302. INJURIES TO PROPERTY— TRESPASS. 595 Limit to Tenant's Damages— Profits Sometimes an Element of Damages. loss sustained thereby.' And it is evident that the landlord or reversioner could also, in such a case, recover his actual losses sustained. § 738. Limit to Tenant's Damages.— The maximum limit of the tenant's rii^ht to damages, ordinarily would be the value of his lease, taking into account the rent reserved. But where it appears that by the terms of his lease he is bound to restore the premises in as good a condition as when tliey were received, the damages would not be thus limited, and might greatly exceed the value of the lease. And in such a case, his damages would at least be the amount required to restore the premises to the condition they were in before the injury, where that would not exceed the total value of the premises." In an action by a termor against a revisioner for a trespass, it has been held, that the plaintiff should recover his actual loss sustained ; but if the action is against a stranger and wrongdoer, the termor is entitled to recover the full amount of the injury to the property, he being treated as the owner.' §739. Profits Sometimes an Element of Damages. — The profits of business are sometimes allowed as an element of damages in actions for trespasses. Thus, in an action against a city for injuries to the plaintifPs manufactory, caused by street excavations, the plaintiff was allowed to recover for ' Id. See, also, Goudierv. Cormack, 2 E. D. Smith, (N. Y.), C. P. R., 200. » Walter v. Post, 4 Abb. Pr. R., 382; s. c. 6 Duer, 363. 3 Harker V. Dement, 9 Gill., 7. See, also, Greer v. The Mayor of New- York, 1 Abb. (N. Y.), Pr. R. (N. S.), 206, which was an action for the loss of a life estate, and where it was held, that the damages should be determined by multiplying the annual value of the rents and profits of the premises by the probable number of years of the plaintiff's life, and deducting the amount of taxes, repairs, insurance, and a rebate of interest. The expect- ancy of life could be determined by life tables. See, also, Todd v. Jackson, 2 Dutcher, (N. J.), 525; Dutro v. Wilson, 4 Ohio St., 101; BathishiU v. Reed, 37 Eng. L. & E., 317; Smith v. Peat, 9 Exch., 161; Tinsman v. The Belve- dere, etc., R. Co., 1 Dutch., N. J., 255; Tucker v. Newman, 11 Aid. & Ellis, 40; Young v. Spencer, 10 B. & C, 145. 596 THE LAW OF DAMAGES. Aggravation— Exemplary Damages. loss of profits of his business, necessarily resulting from the work clone by the corporation." So, where a toll bridge was carried away through the defendant's fault, it was held, that the amount of tolls which would have been received during the time reasonably required to rebuild the bridge, should be included in the damages/ § 740. And in an action of trespass quare clausum f regit , if the actual entry was effected by breaking down a fence, * this is a proper item of damage." And where excavations were wrongfully made by the defendant on liis own land adjoining the plaintifi"'s, whereby the plaintiff sustained an injury to his land, it was held, that the measure of damages was not what it would cost to restore the lot to its former con- dition or build a wall to support it, but the amount by which the value of the lot was diminished, by reason of the wrong- ful acts of the defendant.' For the purpose of determining the amount of damages the jury may not only consider the violation of the plaintiff's rights and the manner in which it was done, but any actual incon- venience and expense resulting directly from the unlawful act' Thus, in an action for damages for ohtsructions which injured the plaintiff in his business, by diminishing his custom and by loss of customers, the loss of custom and profits thereby were considered proper items of damages." § 741 . Aggravation— Exemplary Damages.— Where the trespass is willful and malicious, or is committed under 4 Lacour v. New York, 3 Duer, 406. s Sewalls V. Fisk, 3 Fost. (N. H.), 171. See, also, the same doctrine in Ludlow V. The ViUage of Yonkers, 43 Barb. (N. Y.), 493. fi Clark V. Boardman, 42 Vt., 667. 7 McGuire v. Grant, 1 Dutch. (N. J.), 356, et seq. 8 White V. Suttle, 1 Swan. (Tenn.), 169. See, also, Freeland v. The City of Muscatme, 9 la., 461. 9 St. John V. The Mayor, etc.. New York, 13 How. Pr. R., 527; 6 Duer, 315. But loss of profits from an illegal business cannot be included. Kane V. Johnson, 9 Bosw. (N. Y.), 154. INJUEIES TO PROPERTY— TKESPASS. 59^ Water Kigbts and Injuries by Water— General Rule. circumstances involving unavoidable injury to persons and property, the trespasser is responsible to any person injured by such trespass to the full extent of such injury, and as we have seen, may be liable for exemplary damages, even though the wrongdoer did not contemplate the particular injury which ensued.'" § 742. Water Rights and Injuries by Water— Gen- eral Rule. — The same general rules apply where the injury is to water rights, or from water, which we have noticed as applicable in cases of other injuries to real estate. The gen- eral rule in such cases is that where, by the wrongful act of the defendant, the lands of the plaintiff have been injured by overflow, or his rights and privileges in a stream of water have been abridged or destroyed, he may recover as damages, where the injury is less than the total destruction of his rio-hts but of a permanent character, the difference between the value of the property or rights before the injury and immediately after.' Where, however, the injury is of a slight or temporary character, the rule would be different. In such a case it would, on general principles, be the duty of the injured party, as we have seen,' to use reasonable care to protect himself from injury; and he could only recover such damages as could not thus be avoided, together with the reasonable expenses, and value of time spent for this purpose. Thus, wliere, through the wrongful act of the defendant, the plaintiff has •0 Manger v. Baker, 65 Barb. (N. Y.). 539 (1873); Drusee v. Wheeton, 22 Mich., 4:39; Fai-well v. Warren. 51 111., 467. See. also, ante, § 71, et seq; Trent V. Barber, 7 Conn., 274; Churchill v. Watson, 5 Day (Conn.), 14o'; Schindel v. Schindel, 12 Md., 108; Snively v. Fahnstock, 18 Md., 391; WHey V. Smitherman, 8 Ired. (N. C. L.), 236; Wilkins v. (iihnore, 2 Humph. (Tenn.), 140. In case of a trespass under an honest behef of a right, no exemplary damages can be awarded. Hillman v. Bamback, 21 Tex., 203. ' Schuylkill Navigation Co. v. Farr, 4 Watts & S., 362; Unden^^ood v. North Wayne Scythe Factory, 38 Me., 75; Bryant v. Glidden, 36 Me., 36; Lawrence v. The Great Northern R. Co., 16 Q. B., 643. * See, m^te, § 126, et seq. 598 THE LAW OF DAMAGES. Limitation of Damages. been temporarily deprived of the use of a water power, the vahie of the right, during the period he has been deprived thereof, v/ould usually constitute the damages.' And where, by the wrongful act of the defendant, the plaintiff's dam or mill has been injured or destroyed, or the stream or pond fur- nishing his power has been injured or obstructed, the usual measure of damages is the cost and expense of restoring the same to its former condition, and the loss occasioned by being deprived of the use of the same, or by their diminished effi- ciency, or impaired condition, and any loss from a permanent injury thereto, with interest on the same.* § 743. Limitation of Damages.— In case of a par- tial or total destruction of property, through the defend- ant's fault, he is not always required to pay the full amount that would be necessary to restore the property, to its former condition. This would not be the case, as we have observed, where the expense of repairing or restoring the injured property to its original condition would exceed the original value of the property, or its value after it was restored. And whenever the restoration of the injured prop- erty to the condition it was in before the injury, would cost more than the value of the land before the injury, then the difference between the value before and after the injury con- stitutes the true measure of damages; but where it would cost less than the difference in value before and after the injury, then the cost of restoration would ordinarily be the measure of damages, not however, exceeding the value of the lands.' Thus, where by the wrongful act of a person, water is let in upon and overflows the land of another, the expense of removing the water may far exceed the difference between the value sPollet V. Long, 58 Barb. (N. Y.), 20; Reynolds v. Chandler Riv. Co., 43 Md., 513. 4 O'Remy V. McChesney, 3 Lans. (N. Y.), 278; Walrath v. Redfield, 11 Barb. (N. Y.), 368; 18 N. Y., 457; Spigelmoyer v. Walter, 3 W. & S., 540. s Seely v. Alden, 61 Pa. St., 302; Bates v. Ray, 102 Mass., 458. DTJCTEIES TO PEOPERTY— TEESPASS. 599 Wheie Trespass Benefits as well as Injures. before and after the overflow, or the value of the land over- flowed. It maj involve the necessity of extensive and expen- sive engineering, and an outlay for that purpose of ten times the value of the land. In such a case the wrongdoer should not be compelled to pay the necessary expense of restorino- the land to the condition it was in before the overflow; but only for the actual damage done. If the land is rendered jDractically useless and of no value, then the damages should be the value of the land, and no raore.° § 744. Where a Trespass Benefits as well as Injures. — When the wrongful act of a defendant produces some bene- fit, as well as injury, to the plaintiflFthe defendant may claim the benefits conferred in reduction or mitigation of damao-es. But where the defendant is allowed for such benefits conferred, they should at least be confined to such as result from the immediate trespass or wrong done, of which the plaintiff com- plains. Thus, in Massachusetts, in an action for daraao-es caused by the filling of the defendant's land lying adjacent to the plaintiff's, whereby the flow of water from the plaintiff's land had been obstructed, the jury were instructed that if they were satisfied that the filling had actually benefitted the plaintift^'s estate in any particular, they should in assessino- the damages make allowance for such benefit, and give the plaintiff such sum only as damages, as they found upon the evidence would fully indemnify and compensate him, under all the circumstances, for the damages he had sustained; and this instruction was held correct.' And in the same State, in an action for damages for an overflow caused by a dam, it was held that the allowance for benefits thereby received by the plaintiff, should be confined 6 Jones V. Gooday, 8 Mees. & Wells, 146; Mueller v. St. Louis & Iron Mountain R. Co., 31 Mo., 262; Stockbridge Iron Co. v. Cone Iron Works 102 Mass., 80. 7 Luther v. The Winnisimmet Man. Co., 9 Cush., 171. See, also, to the same effect, Bower v. Merrill, 3 Chand. (Wis.), 46. 600 THE LAW OF DAMAGES. Where Trespass Benefits as well as Injures. to the overflow itself, and could not be extended to those inci- dentally received froni the defendant's operations in other respects; and that the benefit which the plaintitF derived from a ditch made by the defendant to conduct water from the pond to the dam, could not be set off against damages from an over- flow caused by the dam after its erection.' So in the same state, it was held, that where a riparian proprietor obstructs a river and thereby causes the water to set back so as to damage another proprietor, he cannot, in an action by the latter for the injury thus caused, offset the benefit which the plaintiff derived from the removal of certain obstructions in the river by the defendant, at another time and place." In an action for damages for flowing lands, caused by an embankment of a railroad company in the construction of its railroad, the jury were instructed that the rule of damages was the difference between the value of the plaintiff's premises before the injury happened, and the value of the same imme- diately after; and this was held correct.'" § 745. And where, by reason of the unskillful construction of a railway embankment, the plaintiff's lands were flooded, and they would have been flooded in a less degree had the embankment not been so constructed; it was held, that the measure of damages was the difference between the value of the lands as they would have been flooded if the embankment had been properly constructed, and their value as they were in fact flooded by the wrongful act of the defendant." And where damages are sustained by the wrongful act of another, in raising his mill-dam, whereby the mill of another higher sGile V. Stevens, 13 Gray (Mass.), 146. 9 Talbot V. Whipple, 7 Gray (Mass.), 122. See, also, Gerrish v. Tlie New- market Man. Co.. 10 Fost. (N. H.), 478. '° Chase v. The New York Cent. R. Co., 24 Barb. (N. Y.), 273; Ester- brook V. Erie R. Co., 51 Id., 94. See, also, The Chicago, etc., Dock Co. v. Dunlop, 32 111., 207. " Workman v. The Great Northern R. Co., 22 Law J. (N. S.), Q. B., 279. INJURIES TO PEOPERTY— TEESPASS. 601 Mining— Rule of Damages. up the stream is interrupted bj backwater, the decrease in the profits of the mill, caused by such interruption, was held to be the measure of damages.' So, in Iowa, in an action for damages sustained by the wrongful causing of backwater whereby the plaintiff's mill- power was injured, it was held, that the plaintiff might recover for the injury caused by the overflow of his premises without any proof of damage to the water-power of his mill ; that the recovery would be limited to the time of the commencement of his suit; and that a fresh action would lie for any continua- tion of the trespass subsequent thereto." §746. Mining— Rule of Damages.— The rule of dam- ages where ore is removed and appropriated, is not only such injury as may be sustained to the lands, but in addition thereto, the value of the ore at the time and place of removal. Thus, in Pennsylvania, the removal of coal from the lands of a party entitles him, in the absence of a willful wrong or of gross neglect, to only the actual damages to the land and the actual value of the ore in the ground, and not its value after it has been dug.' But in California, under such circumstances, the damages for wrongfully removing gold-bearing earth from a claim is the value of the gold, less the expense of digging and separating the gold therefrom.* And in the Irish court of 3 Simmous v. Brown, 5 R. I., 299; Brown v. Brown, 30 N. Y., 519; Elliott V. The Fitchburg R. Co., 10 Cush. (Mass.), 191; Burden v. The Mayor of Mobile, 21 Ala., 309; McElroy v. Goble, 6 Ohio St., 187. * Close V. Samm, 27 la., 503. s Forsyth v. WeUs, 41 Pa. St., 291. But in England it has been held, that the damages for taking coal from a mine was the value of the coal as soon as it is severed from the freehold. Morgan v. Powell, 2 G. & D., 721; 3 Q. B. 278; 6 Jur., 1100; 11 L. J. Q. B., 263; S. P., Martin v. Poi-ter, 5M.& W., 252; H. &H., 70. * Maye v. Tappen, 23 Cal., 306. No claim for damages to the land seems to have been made. Goller v. Fett, 30 Cal., 481. See, also, Kier v. Peterson, 41 Pa. St., 357; Stockbridge Iron Co. v. Cone Iron works, 102 Mass., 80. But in Illinois, in aai action for digging brick clay, the 602 THE LAW OF DAMAGES. Nuisance— Rule of Damages. Queen's Bench, in an action by a landlord against his tenant for digging clay on the demised premises, where the plaintiff claimed damages for the injury to the reversion, and also for the value of the clay, and the jury found the removal of the clay had diminished the value of the land £156, and that the value of the clay dug was £150, the court refused to allow a verdict for the value of the clay in addition to the amount of the dimished value of the land/ § 747. Nuisance. — Blackstone defines a private nuisance to be "anything done to the hurt or annoyance of another."* Mr. Hilliard, in his valuable work on Torts, remarks: "The injury of nuisance is of a more comprehensive or miscella- neous character than any other. * * * It relates to rights not in their nature specific, definite, or tangible, but incident to, or growing out of corporeal property, and in part on account of this incorporeal character varying with the diverse circumstances of individual cases."* The most effectual rem- edy for a nuisance is in equity, or by proceedings under stat- utes to abate the same.'" § 748 . Rule of Damages. — In an action for a nuisance, the measure of damages embraces all injuries done the plain- tiff by reason of the nuisance, to the commencement of the suit, measure of damages was held to be the value of the clay to the defendant and not the excess of the value over the cost of digging, and the defendant was not allowed to recover for benefits to the plaintiff conferred by the dig- ging. The Chicago South Branch Dock Co., v. Dunlap, 32 111., 207. See, also, Martin v. Porter, 5 Mees. & W., 351; Martin v. Powell, 3 Q. B., 278. Mr. Sedgwick remarks: "That in trespass, if the defendant has in good faith increased the value of the property, the plaintiff shall not have the benefit of his labor." Sedg. on Dam., 538. ^ Leinpemone v. Moore, 15 Irish L. R., 14. See, also, Hilton v. Woods, L. R., 4 Eq., 432 8 3 Black. Com., 217. 9 Hill, on Torts. 548. » Story's Eq., 238, § § 925, 927; Knox v. New York, 55 Barb., 404. INJURIES TO PEOPERTY— TRESPASS. 603 Rule of Damages. "but not prospective or permanent injur3^' And where courts of equity have cognizance of actions brought to restrain the commission of nuisances, or to compel the discontinuance of them, they will entertain jurisdiction for the purpose of dis- posing of the question of damages, and award damages for the injury sustained by reason of the nuisance.'' The general rules of damages, applicable in cases of trespass for injuries to real estate, are also applicable in actions for injuries thereto arising from a nuisance.' In a recent action for damages caused by the operation of certain steam ma- chinery on premises adjoining those of the plaintiff, which premises were used as a marble factory, with machinery for such manufacture propelled by steam ; and the damages claimed were for injury to the plaintiff's premises, from the jarring effect and noise of such machinery, thereby preventing the plaintiff from letting the premises with facility, and the con- sequent loss of rents, the court say: "This presents the naked question whether the lawful character of the results of an occupation, trade, or mechanical art, or the care with which it is carried on, can prevent any right of action by those whose enjoyment of life or property is destroyed by the mode or means of conducting such occupation, trade, or mechanical art. The right of jarring a neighbor's house by the motion of a steam engine upon one's own premises, cannot depend at all upon the utility or lawfulness of the purpose for which such motion is employed, or its final results. The interme- 1 Blunt V. McConnick, 3 Den. (N. Y.), 283; Penoyer v. Saginaw, 8 Mich., 534; "Wagoner V. Jermaine, 3 Denio, 306; Pillsbury v. Moore, 44 Me., 154; Thayer v. Brooks, 17 Ohio, 489; 3 Black. Com., 220; lU. Cent. R. Co. v. GrahiU, 50 111., 241. 2 Davis V. Lambertson, 56 Barb., 480. An action will lie against a party who erects a nuisance, and if a recovery is had for the erection an action will lie also for its continuance, although the party has leased it to another. If he receives rent, he should respond in damages for the injury which it occasions. Grady v. Wolsner, 46 Ala., 381. 3 See, ante, § 556, et seq. ; 111. Cent. R. Co. v. Grabill, 50 111., 241; Houghton V. Bankhard, 3 L. T. R. (N. S.), 266. 604 THE LAW OF DAMAGES. Rule of Damages. diate injury before sucli results are obtained, wrought upon another's property, or enjoyment of life, make such employ- ment unlawful." And the injury to the building, deprivation of rent, and loss of tenants to the time of the commencement of the action, were held to be proper elements of damages." § 749. So, an action may be maintained by the owner of land bordering along a public street, for a nuisance created by a railway company in building their railway along such street without right. And the measure of damages would be all the loss and inconvenience which the owner has sustained thereby, in view of the use to which such land has been put durin<>- the continuance of the nuisance.' So, where an action was brought for a nuisance, occasioned by the discharge of impure water upon the plaintilf 's land from the defendant's brewery, through a drain which the defendant dug from his brewery to a pit on the plaintiffs land, which water thus dis- charged into the pit had become so offensive that the board of health of Boston required the pit to be filled up by the plaintiff, it was held, that the expenses of filling up the pit were proper elements of damages." So, it is held, that an action for a nuisance will be sustained, if the alleged injury be a plain interference with the ordinary comforts and enjoyments of life, no matter how slight the damage, provided the inconvenience be not fanciful. Thus, where the occupants of the plaintiff^s house were annoyed with chaff and smut, blown from the defendant's flouring mill, it was held, that the plaintiff" could maintain an action and recover his actual damages therefor.' And the erection of an embankment upon one's own land, whereby the surface water on the adjoining lands of another 4 McKeon v. Lee, 4 Rob. (N. Y.), 449. s Hatfield v. The Cent. R. Co.. 33 N. J., 251. 6 Shaw V. Cummiskey, 7 Pick., 76. See, also, Carhart v. The Auburn Gas- light Co., 22 Barb., 297. 7 Cooper V. Randall, 53 111., 24. » INJUKIES TO PROPERTY— TEESPASS. 605 statutory Provisions— Waste— Damages. is diverted from the natural flow, is a nuisance for wliich an action will lie without showing actual damages/ And it seems that it is no defense that the plaintiff, who was a lessee of the premises, rented them after the business occasioning the nuisance had been established, and with knowledge of its existence and for a smaller rent on that account. ;t«[or is it a defense that the business occasioning the nuisance is necessary to be carried on and is useful to the public/ It should be observed, that an action for damages for a nuisance cannot be maintained for an injnrj to the public only, but the plaintiff must show that he has sustained dam- ages peculiar to himself, and to that extent it is a private nui- sance as to him, and for which he mav recover such damages as he may have sustained to the time of bringing the action/ But he must have sustained an injury, differing in kind from that sustained by the public in general, or he cannot maintain an action therefor/ § 750. Statutory Provisions.— The statutes of various states define, what a nuisance is, and provide a remedy there- for, by an action for the damages and for the abatement thereof/ § 751. Waste— Damages.— The subject of waste is, in this country, usually a matter of statutory regulation. Stat- utes frequently provide for the recovery of double or treble damages, by those entitled to recover against guardians, tenants for years, joint tenants or tenants in common. The measure of actual damages in such cases is the amount of damages sustained by the parties interested, governed by the s Tootle V. Clifton, 22 Ohio St., 247. But see Cincinnati R. Co. v. Ahr, 2 Cin. (Ohio), 504. Dillon on Corp., § 797 to 800. 6 Smith V. Phillips, 8 (Pa.), 10. 7 Grigsby v. Clear Lake Water Co., 40 Cal., 396. 8 Venard v. Cross, 8 Kan., 248 (1872). But see, Clark v. Peckhara, 9 R. I., 455 (1870). 9 Iowa Code, 1873, § 3331, et seq. Rev. Stat. Wis., 1858, p. 857. 606 THE LAW OF DAMAGES. Waste— Damages. general principles of the law applicable to actions of trespass quare clausum f regit. The early English act of Marlbridge,'" provided that the tenants therein named should not only forfeit the place wasted, but also treble damages to him that was entitled to the inher- itance. Previous to that time only single damages were recoverable. In an action in the nature of waste, for cutting down trees on an estate, the damages are not confined to the value of the timber removed, but may include the permanent injury to the estate." And in an action by the remainderman for an injury to the inheritance, the damages should not only embrace the present injury but the injury to the inheritance." « 52 Hen. Ill Ch., 23, 1267. " Harder v. Harder, 26 Barb., 409. " Van Duesen v. Young, 29 N. Y., 9. PUBLIC OFFICERS. 607 Judicial Officers -Liability of— General Principles. OHAPTEE XXXI. DAMAGES FOR THE NONFEASAISXE, MISFEAS- ANCE AND MALFEASAN'CE OF PUBLIC OFFICERS. Section 760. Judicial Oflacers— Liability— General Principles. 761. Damages. 762. Ministerial Officers- General Hule. 764. Liability on Civil Process. 766. Presumptions. 767. Neglect to Levy and False Eetum. 768. Property "Wrongfully Taken on Process, 769. Escape. 770. Consequential Damages. 771. Exemplary Damages. 772. Mitigation. 773. Board of Supervisors. 774. Sureties on Official Bonds. 775. Attorneys— Liability of. § 760. Judicial Officers— Liability of— General Prin- ciples. — It is well settled in the law that no judicial officer is responsible in damages for his errors and mistakes, at least where he has jurisdiction to act, and where he acts honestly and in good faith. No mere misapprehension, or errors of an honest judgment, will render him responsible where there is jurisdiction of the subject matter. This doctrine is thus laid down by Mr. Chitty : " An action cannot be maintained against a civil or ecclesiastical judge or justice of the peace, acting 608 THE LAW OF DAMAGES. Damages. judicially in a matter within the scope of his jurisdiction, although he may decide erroneously in the particular case. 'Nor can an action be maintained against a juryman, or the Attornej^-General, or a superior military or naval officer, for any act done in the execution of his office and within the pur- view of his general authority."' A judicial officer is not bound to decide correctly either in matter of law or of fact, but only according to his convictions; and this principle, says Chief Justice Kent, "has a deep root in the common law."* It has been held that this does not apply where he has no jurisdiction of the subject matter." And if the officer assumes to act in such a case he may render himself liable, as a trespasser, for damages at the suit of the person injured thereby." This doctrine however has been questioned ; and it is claimed perhaps by a preponderance of authority, that a judicial officer who mis-judges of his jurisdiction, where at least it depends upon matters of fact, should be exempt from any liability;^ and that the protection affi^rded a judicial officer extends to all cases except where he acts fraudulently, corruptly and maliciously.* But the law relating to liability in such cases, is not properly within the purposes of the author to record in this volume. § 761. Damages. — The general rule we have furnished would, of course, be a sufficient guide to damages in such cases. The principle of compensation being regarded, in cases where 3 1 Chit, on PI., 78. 4 Lansing v. Yates, 5 Johns., 367; 9 Johns., 395. s Pr. Sharp, C. J., Pratt v. Gardner, 2 Cush., 68; 2 HiU. on Torts, 168. 6 Blood V. Sayer, 17 Vt., 609; Cable v. Cooper, 15 John., 157; Houlten V. Smith. 14 Aid. & EU. (N. S.), 841; Pease v. Clayton, 1 Best. & S., 658; 2 Hill, on Torts. 174 and 175. 7 See 2 Stark Ev., 809; 2 Hill, on Torts, 179, and cases cited. ^Bevard v. Hoflfman, 18 Md., 479; BuUett v. Clemant, 16 B. Mon., 193; Gregory V. Brown, 4 Bibb., 28; Morgan v. Dudley, 18 B. Mon., 693; Mor- gan V. Hughes, 2 T. R., 225; Burly v. Bethune, 5 Taunt., 580. PUBLIC OFFICEES. 609 Ministerial Officers— General Rule. the circumstances do not authorize exemplary damages, whether these relate to injures to the person or the property. If the injury resulting from the fraudulent act of the judicial officer was imprisonment, then the general rules of damages applicable to false imprisonment would of course apply. But if it resulted in an injury to the property of the plaintiff, the ordinar}'- rule of damages applicable to trespass would govern.'" § 762. 3Iinisterial Officers— General Rule.— Ministe- rial officers are those whose duty it is to execute the mandates of their superiors, lawfully issued.^' They consist chiefly of sheriffs, constables, marshals, and other officers of the law charged with the execution of legal process. The general rule in relation to their liability in the execu- tion of process is, that where the court has jurisdiction of the subject matter, the officer is not bound to look into the pro- ceedings under which it was issued. If the process is issued by a court having jurisdiction of the subject .matter, and is regular on its face, it is generally a protection to the officer in obeying the requirements of the process." If the subject matter is within the jurisdiction of the court or officer issuing the process, and the want of juris- diction relates only to the person or place, the executive officer cannot be required to determine the question of jurisdiction in such a case, and would be protected in the execution of pro- cess regular on its face, unless it appeared that there was no jurisdiction." But want of jurisdiction of the subject matter deprives the officer of protection from the process." =°See ante, § 679, et seq.,ante, § 730, etseq. " Bouv. Law D., Tit. Oficers; Howe v. Mason, 14 la., 510. =» Warner v. Shed, 10 Johns., 138; Dynes v. Hoover, 20 How. (U. S.), 65; Woods V. Davis, 34 JT. H., 323; Gray v. Kimbal, 42 Me., 299; Orfcman v. Greenman, 4 Mich., 291. =3 Smith V. Shaw. 12 Johns.. 257; Ghampaigrn Bank v. Smith, 7 Ohio State, 42; Barker v. Green, 2 Bing., 317. See, also. Squibb v. Hole, 2 Mod., 29; Higginson v. Martin, 2 Mod.. 195; 2 Hill, on Torts, 199 (3d ed.). ^Pierce v. Atwood, 13 Mass., 324; Stephens v. Wilkins, 6 Barr., 260; HuU V. BlaisdeU, 1 Scam. (lU.), 332. 39 610 THE LAW OF DAMAGES. Liability on Civil Process. § 763. We have sufficiently considered the liability of an officer in such cases when the charge is trespass to the person, as assault and battery or false imprisonment, in considering those topics," and we shall hereafter indicate the rule of dam- ages, in most other cases of suits against an officer for execu- ting a void process, in discussing the law of damages in cases of trespass, conversion, and replevin.*" But there are some questions relating to damages, in cases of nonfeasance, misfeasance, and particularly the malfeasance of ministerial officers, which we will proceed briefly to con- sider. § 764. Liability on Civil Process.— Questions relating to the liability of sheriffs and other ministerial officers most frequently arise on civil process, as for the escape of parties arrested on mesne or final process; neglect to seize or to pre- serve property taken on process; for failure to return the same, or for a false return; for an excessive levy, or an unauthorized seizure of property on the process of execution or attachment, as when property exempt from levy is taken, or the property of a third party is levied upon. It is well settled in these cases, that the officer is liable to the party injured, to the full extent of the loss suffered by his neglect or misconduct." § 765. The general rule for the measure of damages in cases of misconduct, or neglect of duty on the part of a sheriff, in relation to an execution is the amount of damages sustained thereby. In the absence of bad faith he is not liable to =s See, ante, § 599, et seq., and § 679, et seq. '^ See, post, Chaps. 32, 33, 34. =7 Clark V. Miller, 47 Barb., N. T., 38; Hayes v. Porter, 22 Me., 371; Beckford v. Hood, 7 T. R., 620; Farmers' Turnpike Co. v. Coventry, 10 Johns. 389; Pugh V. McRae, 2 Ala., 393; Clark v. Smith, 10 Conn., 1; Hamilton v. Marsh, 2 Tyler (Vt.), 403; Arnold v. Commonwealth, 8 B. Mon. (Ky.), 109; Marshall v. Simpson, 13 La. An., 437; Hodson v. Wilkins, 7 Me., 113; Ack- ley V. Chester, 5 Day (Conn.), 221; Danforth v. Pratt, 9 Cush. (Mass.), 318; Hamner v. Griffith, 1 Grant (Pa.), Cas., 193; Bamet v. Roed, 51 Pa. St., 190; Crow V. State, 23 Ark., 684. PUBLIC OFFICEES. 611 Presumptions— Neglect to Levy and False Return. exemplary damages. And in case of the neglect of an oflScer, by which the creditor fails to secure the proceeds of the prop- erty on execution, the creditor may usually recover the value of the property, not exceeding, however, the amount due on the execution."" And in an action against an officer for a failure to return an execution, the measure of damages \q jpiima facie the amount required to satisfy the execution." § 766 . Presumptions .—It may be proper here to remark that the presumptions are in favor of an officer, and that he has done his duty.^' And where the attached goods are lost, in an action against the officer therefor, if he shows the loss and the attendant circumstances from which neglio-ence cannot be inferred, the burden of proof is then on the plaintiff to show negligence; and in case of a loss of the property by theft, this has been held to be not even presumptive evidence of neo-li- gence.*" And where there is a discretionary authority vested in a public officer, if he acts within its scope, he is not answerable in damages for the consequences of his acts, unless done mali- ciously and with intent to injure.'" § 767 . Neglect to Levy and False Return.— In an ac- tion against a sheriff for not levying, and for a false return of an execution, it was held, that the proper estimate of damages was what the goods would have realized, if sold by the sheriff at the best price which he could have obtained, not exceed- =6 Phelps V. Owens, 11 Gal., 22; Bogel v. Bell, 15 La. An., 163; Marshal v. Simpson, 13 La. An., 437; Blodgett v. Brattleboro, 30 Vt., 579; Brig'g-s v. Gleason, 29 Vt., 79; Plummer v. Harbut, 5 la., 308; Whittaker v. Sumner, 9 Pick., 308; French v. Snyder, 30 111., 339; Commonwealth v. Lightfoot, 7 B. Mon., 298; Hogan v. Kellum, 13 Tex., 396; Nightengale v. Scannell, 18 Cal., 315. See, also, Clark v. Miller, 47 Barb. (N. Y.}, 38; Goodrich v Foster, 20 N. H., 177. =7 Ledyard v. Jones, 3 Seld., N. Y., 550; 4 Sandf., 67. =8 State V. Freeman, 8 la., 428. =5Mms V. Gilbreth, 47 Me., 320. 3° Burton v. Fulton, 49 Pa. St., 151. 612 THE LAW OF DAMAGES. Property Wrongfully Taken. ing, of course, the amount of the debt/'' And where, through the neglect of the officer to levy an attachment or execution, satisfaction of the judgment has been defeated, the measure of damages is tlie amount of the judgment or execution, or so much thereof as the value of the property which the officer neglected to attach would have been sufficient to satisfy."' So, where through the negligence of the officer a slave, ar- rested by him for a criminal offense, escaped and was drowned, and the plaintiff had only a life estate in the slave, damages to the value of such interest were held proper.'* If the officer wrongfully converts property taken by him, the measure of damages is the value of the property converted.'^ But where the suit is by the creditor this amount, however, should not exceed the amount of his execution. And where the officer, without the directions of the plaintiff in execution, gold property on credit, and some of the purchasers proved in- solvent, he was held liable to account for the full amount of the sale.'" So, in Indiana it has been held that where, on a sale of land on execution, the sheriff was bound to tender a deed to the pur- chaser and he failed so to do, and on failure of the purchaser to pay the amount bid he resold the same for a less price than on the first sale, he was held liable for the difference." § 768. Property Wrongfully Taken. If the officer seizes property wrongfully, as where it is exempt from exe- cution or the property of a third person, the measure of dam- 3=Mullett V. Challis, 2 Eng. L. and Eq., 260; see farther in case of false return, Hinman v. Borden, 10 Wend., 367. 33 Bowman v. CorneU, 39 Barb., (N. Y.) 69; Perkins v. Pitman, 24 N H., 261 ; Smith v. Tooke, 20 Tex., 750. 34 Tudor V. Lewis, 3 Met. (Ky.), 378. 35Brobst V. Skillen, 16 Ohio St., 382. See, also, Woodbome v. Scarbor- ough, 20 Ohio St., 57. 36 Chase v. Monroe, 10 Post. (N. H.), 427. 37 The State v. Lynes, 4 Ind., 351. PUBLIC OFFICEES. 613 Escape. ages would be tlie same as in an action for its conversion, whicli we shall notice hereafter.'* If the action is for the specific property, reference may be had to the law of damages, in such cases, which we shall con- sider in treating of replevin.'' Where the assignee of a mortgage of personal property brought an action against the officer for taking the mortgaged property on execution against the assignor, and holding it until the assignee paid the amount of the execution and officer's fees, the damages were held to be tiie amount paid and interest, besides a reasonable amount as compensation for the detention." There would seem to be no reason for a distinction, in such cases, between a private person and a ministerial officer. § 769. Escape.— As imprisonment for debt has generally, if not universally, been abolished in this country, a considera- tion of the subject of damages in case of escape is practically of little consequence. We will therefore only give the excel- lent summary of the law on that subject, furnished by the Supreme Court of Ohio, in the able, clear and succinct opinion given by that court in Hoatman v. Shriner: "1. On proving the judgment, arrest and escape, the plain- XaS \^ jpTima facie entitled to recover the whole amount of his debt. 2. To reduce the amount of the recovery below the amount of debt, due from the escaping prisoner, the o^ius prubandi rests upon the defendant. 38 See. post, § 847, et seq. When an officer, acting in good faith and with proper care and deHgence, takes the property of a stranger, in an action against him for the taking and detention, the measure of damages is the in- terest on the value of the goods so taken, from the time of the Taking, until restitution; and reasonable compensation for the de|:.reciation in value, if any, besides the expenses in recovering them, and also any damage to the plain- tiff's business in consequence thereof. Welsh v. Lewis 7 Wis., 465. See also Morris v. Baker, Id., 389; Gordon v. Jenny, 16 Mass., 465. 39 See, post, § 885, et seq. For the wrongful seizure of goods by an officer the usual measure of damages is their value. Pelburgh v. Gorham, 23 Cal., 349. ""Carpenter V. Cuminings, 40 N. fl., 158; Felton v. Fuller, 35 N. H.'^ 226.' 614 THE LAW OF DAMAGES. Consequential Damages— Exemplary Damages. 3. For this purpose, the defendant may not show that the amount of the debt is still capable of being collected from the escaped prisoner, but may show his partial or total insolvency or pecuniary worthlessness at the time of the escape. 4. That on proving judgment, arrest and escape., the plaintiff, in all cases is entitled to recover at least nominal damages. 5. When the jury find the escape to have been not only voluntarily on the part of the officer, but that in permitting the same he was actuated by fraud, malice, or corruption, they are not restricted to the amount of injury actually sustained, and may include reasonable exemplary damages, but with this ex- ception: where evidence in mitigation is given, the actual injury sustained is the prop'er measure of recovery." " §770. Consequential Diimages .—The officer is gener- ally liable to more remote or consequential damages where he acts fraudulently." And when one had purchased certain premises on the foreclosure of a mortgage, executed to him by the occupants, and a proper writ was placed in the hands of the sheriff to put the purchaser in possession, but who, against the protestations of the plaintiff, neglected to execute the same for two days, and in the meantime the occupants willfully and maliciously injured the premises, he was held liable for the damages thus sustained. The court say, that as the right of the plaintiff could only be obtained through the official action of the officer, any damages resulting from the negligence of the officer in placing the plaintiff in possession of the premises, were justly and legally recoverable, and that he should be held to the full extent of the injury." §771. Exemplary Damages.— It is apparent that the general doctrine of exemplary damages applies as well to 4' 15 Ohio St., 43. The provisions of the constitutions of most of the states are to the effect that no person shall be imprisoned for debt either on mesne or final process . 42 Bank of Rome v. Mott, 17 Wend., 554; Yates v. Joyce, 11 Johns, 136. 43 Chapman v. Thornburgh, 17 Cal., 87. PUBLIC OFFICERS. 615 Mitigation. ministerial officers as to other persons, and if they have been guilty of actual malice, fraud or oppression, the measure of damages is not necessarily confined to actual compensation; and a ministerial officer is no less liable under such circum- stances than a private person," In an action of trespass, de lonis asj)ortatis, for an illegal levy, the Supreme Court of Connecticut say: "The jury may give vindictive damages, if they find that the said trespass was committed willfully, and ^n a wanton, and aggravated manner, and with a design to vex and injure the plaintiff." § 772. Mitigation. — The same general principles here ajjply in mitigation, that we have noticed as applicable gener- ally in cases of trover or replevin." Thus in an action against the sheriff for seizing and selling goods of the plaintiff, on an execution against another party, the sheriff may show in mit- igation of damages that the goods were bought in by the plaintiff at an under price." But the sheriff who has wrong- fully levied upon goods of a defendant in the execution, cannot generally show in mitigation of damages, that he has applied the proceeds of the sale to the payment of a debt of the plain- tiff.^' And in trespass against an officer, for taking on exe- cution a debtor's only cow, which was exempt, the plaintiff was held entitled to recover the value of the cow, although the proceeds of the sale of the cow had been applied in satis- faction of the execution."' Nor can the obligors upon a 44 Nightengale V. Scannell, 18 Cal., 315; Sowell v. Champion, 2 Nev. & Pen7, 627; s. c, 6 Adol. & E., 407; Kerby v. Denby, 1 M. & W., 336; Duke of Brunswick v. Slowman, 8 M, Gr. & Scott, 317. 45 Huntley v. Bacon, 15 Conn., 271. See, also, ante, § 26, et seq., and § 69, et seq. 46 See, post. Chaps. 33 and 34. 47 Forsyth V. Palmer, 18 Pa. St., 96; Baker v. Freeman, 9 Wend., 36; Clark V. Hallock, 16 Id., 607; Alexander v. Helber, 35 Mo., 334. 48McMichaelv. Meason, 13 Pa. St., 214; Ohio v. Jones, 21 Wend., 594; Hop- ple V. Higbee, 3 Zabr. (N. J.), 342, where the rule appears to be otherwise in Kew Jersey. See, also, § 97, et seg., and § 768, et seq. 49 HiU V. Loomis, 6 N. H., 263. 616 THE LAW OF DAMAGES. Board of Supervisors— Sureties on Official Bonds. delivery bond sliow, in mitigation of damages on the bond, that the property belonged to them." But in Alabama, in an action against a sherift' for the wrong- ful levy on the property of the plaintiff, on an execution against another person, the fact that the goods were in the j^ossession of the defendant at the time of the levy, may be shown in mitigation of damages." This doctrine could only apply, on general principles, in mitigation of exemplary and not actual damages. And so, in an action against an officer for carelessly, negli- gently, willfully and corruptly taking insutficient security on a replevin bond, evidence offered by the defendant tending to show that he acted honestly and in good faith, and with no cor- rupt or improper motives in approving the bond, was held admissible." § 773. Board of Supervisors.— It has been held, that the members of a board of supervisors were exempt from lia- bility for honest mistakes and errors of judgment, whether of law or of fact; but that they were personally liable for neg- lio-ence, carelessness and official misconduct." § 774. Sureties on Official Bonds. — The statutes of vari- ous states provide for the giving of official bonds by ministerial officers, in a certain penal sum, with sureties for the faithful performance of their official duties. And actions for nonfea- sance, misfeasance, or malfeasance in office, by such officers, are usually brought on such bonds. The liability of the sure- ties in such eases is limited only by the penalty of the bond. 5' Waterman v. Frank, 21 Mo., 108. 5^ Sterrett's Ex'r v. Raster, 1 Ala., Sel. Cases, 404. 53 Howe V. Mason, 12 la., 202. See further on this subject, Hatfield v. Towsley. 3G. Greene (la.), 584; Yates v. Lansing, 5 Johns., 282; Vanderhey- den V. Young, 11 Johns., 150; Linford v. Fitzray, 13 Aid. & Ell., 240; Gliick- ering v. Robinson, 3 Gush., 543; Tyler v. Alford, 38 Me., 530; Pratt v. Gard- ner, 2 Gush., 63; BuUett v. Clement, 16 B. Men., 193; 2 Hill, on Torts, 111, et seq. 54 Wasson v. Mitchell, 18 la., 153. PUBLIC OFFICEKS. 617 Attorneys— Liabilities of. But it is evident that the officer's liability would not be thus limited. x\.nd the sureties on an official bond of an officer, are held liable for even his corrupt acts;^* and for notes left with hi in for collection, Avliere this constitutes a part of his duty;"' and for public money in the hands of their principal by virtue of his office, at the time of the execution of the bond, even though there was a previous bond with different sureties, and also for money subsequently coming into his hands; yet they are not bound for past derelictions of duty or misconduct." And an action against a constable or sheriff and the sureties on his bond, can be maintained where the constable or sheriff, by virtue of an execution or attachment, seizes and sells property which is exempt from execution, and the plaintiff is not com- pelled to bring trespass against the officer.^* At common law, on the breach of an official bond, the judg- ment was for the penalty. But by Statute, it is generally provided that judgment in such cases, and on statutory bonds generally, can only be recovered for the actual damages sus- tained by the breach.^* § 775. Attorneys — Liabilities of.— Attorneys are a class of officers, and are responsible for losses sustained by their clients through any negligence in the performance of duties entrusted to them as such. They are liable also, for injuries ss Gowing: V. Gowgill, 12 la., 495, which was an action on the official bond of a justice of the peace. sfi Bissinger v. Dickinson, 20 la., 260; which was an action on the bond of a justice of the peace. s7Townsend v. Everett, 4 Ala., 607. See, also, Farrar v. U. S., 5 Pet.. 373; Myers v. Linn, 1 How. (U. S.), 104; The County of Mahaska v. Ingalls, 16 la., 81, which was an action on the bond of a treasurer. ssStrunk V. Ocheltree, 11 la., 158; Charles v. Haskins, 11 la., 329; The People V. Schuyler, 4 Comst., 173. 59 Taylor V. The Governor, etc., 17 Geo., 521; Sargent v. Pomeroy, 33 Me., 388; Commonwealth v. AUen, 30 Pa. St., 49; Savage v. Gunter, 32 Ala., 467; Clifford V. KimbaU, 39 Me., 413; State v. Bishop, 24 Md., 310. See, also, ante, § 548. 618 THE LAW OF DAMAGES. Attorneys— Liabilities of. resulting to clients through their gross ignorance.'". The gen- eral principles applicable to ministerial officers and agents generally, in assessing damages for losses sustained by their negligence, equally apply to attorneys in similar cases." They are in such cases liable only for the actual damages thereby sustained." If a claim is lost, or costs or expenses incurred through the negligence or ignorance of an attorney, it is evident that he should make good the losses thereby sustained."' It will be further obvious that where the claim for damages is the nom- inal amount of a debt lost by the negligence of an attorney, proof that its actual value was less than its nominal amount, or that the plaintiff's claim for all, or a portion of the same, was still good, or that all or a portion of the same had been recovered, would be proper to be shown in mitigation of dam- 6° 2 Hill, on Torts, 480 and 484, and notes, 4th ed.; Morill v. Graham, 27 Tex.. 646. 6i Hill, on T., 478, et seq., 4th ed. See, also, on this subject. The Governor V. Raley, 34 Geo.. 175; Hoby v. Built, 3 Barn, and Adol., 350; Pr. Ld Mans- field, Pitt V. Yalden, 4 Burr., 2061. See ante, § 762, et seq. 6^2 Hill, on Torts, 480, et seq. *3See authorities cited in last two notes. 64 See, for illustration of the propositions of the text. Huntington v. Rum- mill, 3 Day, 390; Russel v. Palmer, 2 WHs., 325. See, also, Howell v. Young, 5 B. & C. 259; 2 Hill, on Torts, 488. INJUEIES TO PERSONAL PROPERTY. 619 Trespass— General Rule of Damages— Where Personal Property is Taken, etc. OHAPTEE XXXIL INJURIES TO PERSONAL PROPERTY. Section 780. Trespass— The General Bule of Damages. 781. "Where the Property is Taken or Destroyed. 782. "Where the Property is Only Injured. 783. Aggravation, and Exemplary Damages. 785. Mitigation. § 780. Trespass— The General Rule of Damages — In every case of trespass actual damages are recoverable, whether the trespass was intended or not; and this is the case whether the injury is to the person, or to real or personal prop- erty.' And where there is no malice or aggravating circum- stances attending the trespass, the damages are limited to actual compensation, and the court should so instruct the jury as a matter of law.^ § 781- Where Personal Property is Taken or Destroyed- — Where personal property is taken de honis asportatis^ or destroyed, the measure of damages is the value ' Haycraft v. Creasy, 2 East., 92; Chit, on PL, Vol. 1, p. 147; Seely v. Alden. 61 Pa. St., 302; Little v. Tingle, 26 Ind., 168; Ives v. Humphreys, 1 E. D. S. (N. Y.), 196; Knight v. Egerton, 7 Exch., 407. = Thomas v. Isett, 1 G. Greene (la.), 470; Bussey v. Donaldson, 4 Dall., 206; Kempton V. Stewart, 31 Me., 566; Dorsey v. Manlove, 14 Cal., 553; Campbell V. Woodworth, 26 Barb., 648; Derby v. Gallup, 5 Minn., 119; Gilson V. Wood, 20 111., 87; Warren v. Cole, 15 Mich., 265; Walker v. Boreland, 21 Mo., 289; Funk v. DiUon, 21 Mo., 294; Yarborough v. Nettles, 7 La. An., 116; Hopple v. Higbee, 3 Zab. (N. Y.), 342; Hair v. Little. 28 Ala., 236; Outcalt v. Durling, 1 Dutch. (N. J.), 443. 620 THE LAW OF DAMAGES. Wliere Property is only Injured. of the property with interest/ and not the profits which might have been made on the property in addition to its value/ or the expenses of a litigation growing out of the trespass;* except where exemplary damages are proper, in which case these items may properly be considered by the jury." And in actions da bonis asjportatis^ the plaintiff may recover, as elements of damages, the value of time spent and expenses incurred in searching for, or in pursuit, of the property/ And if interest is not allowed, the value of tlie use of the property should be allowed;* in addition to which, even exemplary damages may be proper in certain cases." § 782. Where the Property is only Injured— Where the property is not entirely lost to the plaintiff by destruction or otherwise, but is only partially so, the usual measure of damages is the difference between the value of the same before the injury and immediately after, and any reasonable expenses incurred, or value of time spent in preserving or restoring it. 3 Oviatt V. Pond, 29 Conn., 479; Gilson v. Wood, supra; Bradley v. Geiselman, 22 111., 494; Perkins v. Hackleman, 26 Miss.i 41; Parker v. Wheeler, 8 Wend., 505. See English rule, which is the same. Mayne on Dam., 220, 221. 4 Gardner v. Field, 1 Gray (Mass.), 151; Gray v. Stephens, 28 Vt., 1; Butler V. Collins, 12 Cal., 457; CooUdge v. Choate, 11 Met., 79; Gushing v. LongfeUow, 26 Me., 306; Schindell v. Schindell, 12 Md., 108; Hughs v. Qumtin, 8 C. & P., 703; Barrow v. Amaud, 8 Q. B., 595. s St. Peters Church v. Beach, 26 Conn.. 355; Warren v. Cole, 15 Mich.. 265. 6 Dibble v. Morris, 26 Conn., 416; Oviat v. Pond, 29 Id., 479; Stopp v. Smith, 71 Pa. St., 285; Garretson v. Brown, 2 Dutch. (N. J.), 425. See also, Sanderlin v. Shaw, 6 Jones, (N. C), L., 225. See also Gilbertson v. Richardson, 5 C. B., 502. 7 Bennett v. Lockwood, 20 Wend., 223; Rice v. Nickerson, 9 Allen, (Mass.), 478. 8 Haviland v. Parker, 11 Mich., 103; Warfield v. Walter, 11 G. & J., 80; Conard v. Pacific Ins. Co., 6 Pet., 262, where it was held that the plaintiff, in an action de bonis asportatis, had a right to the value of the goods at the time of the seizure with interest from the expuration of the usual credit on lies. 9 See ante, § 71; post, % 783. » INJURIES TO PERSONAL PROPERTY. 621 Aggravation, and Exemplary Damages. Thus, where the plaintiff's horse was injured through the neg- ligence of the defendant's servant, the expenses of a veterinary surgeon's treatment of the horse, the value of the services of the horse during his disability, and the difference between the value of the horse before the injury and immediately after the treatment, were held to be proper elements of damage.' § 788. Aggravation, and Exemplary Damages.— In cases of trespass to personal property, if malice, violence, fraud, oppression, or outrage are connected with the wrongful act, the jury are warranted in giving punitive damages." The intent of the defendant, is a matter which always affects the amount of damages in trespasses. But though innocent, as we have seen, that fact will not relieve him from damages for actual injury done." And where there has been an illegal seizure and asportation of the plaintiff's goods, which was willful and malicious, or a willful and malicious injury to, or destruction of them, exemplary damages should be awarded." 9 Strett V. Laamier, 34 Mo., 469. The damages for the wrongful taking of negotiable paper would, prima facie, be the amount due thereon; but the insolvency of the maker may be shown in mitigation. Latham v. Brown, 16 la., 118. And where the defendants, with a knowledge of the plaintifl["s rights, took and converted to their own use property on which the plaintiff had a valid lien; it was held, that the defendants were liable to the full amount of plaintiff 's debt, it being shown that the property was at least of that value. Hunt v. Daniels, 15 la., 146. And where the defendant sold collateral securities pledged to him, it was held, in an action by the bailor therefor, that the measure of damages would be the value of the securities, less the debt secured thereby. Robinson v. Hurley, 11 la., 410. "Green v. Craig. 47 Mo., 90; New Orleans, etc., R. Co. v. Statham, 42 Miss., 607; Perkins v. Hackleman, 26 Id., 41; Plumb v. Ives, -89 Conn., 121 (1872). See, anie, § 71. " Vandenburgh v. Truax, 4 Den., 464; Aurick v. O'Hara, 6 Blackf., 258; Panton v. Holland, 17 John., 92; Antoine, etc., v. Ridge, 23 Cal., 219; Waheman v. Robinson, 1 Bing., 213. " Waunmakerv. Bower, .39 Md., 42 (1872); Engle v. Jones, 51 Mo., 316 (1873); Seely v. Alden, 61 Pa. St., .302; Little v. Tingle, 26 Tnd., 168; Green v. Craig, 47 Mo., 90 (1870); FarweU v. Warren, 51 111., 467 (1869); Briscoe v. McElwean, 43 Miss., 556 (1870); Jamison v. Moore, Id., 598. See, also, on the subject of exemplary damages, Chap. 6, ante. But where these elements do not exist, only ordinary compensatory dama- 622 THE Lx\W OF DAMAGES. Aggravation, and Exemplary Damages. Thus, in an action for damages for beating the plaintiff's horse to deatli, it was held proper to charge the jury that it Avas a case in which, from the wantonness and cruelty of the defendant's conduct, the jury had a right to give smart moneij. The Supreme Court of New York, in their opinion in the case, say: "As o-reat barbarity was proved on the part of the defendant, we think the charge of the judge was correct, and should have been better satisfied with the verdict if the amount of dama- ges had been greater and more exemplary." " And where the goods of the plaintiff were unlawfully seized under an attachment, and after some time returned greatly deteriorated in value; in an action for damages sustained by such unlawful seizure, it was held competent to show, as elements of damages, that the plaintiff's business was thereby broken up, and she reduced to poverty and deprived of her means of support.'* But in such an action, injury to the plain- tiff's credit will not be considered in estimating damages, unless it appears to be intimately connected with the acts of the defendant in seizing and detaining the goods, and that the acts were done under aggravating circumstances and with a malicious intention of injuring the plaintiff." And in an action for taking a slave out of the immediate possession of the plaintiff, it was held proper to show that the defendant at the time of the trespass used abusive language to ges are proper. Plumb v. Ives, 39 Conn., 21 (1872). And in Texas, vin- dictive damages cannot be recovered against the estate of a deceased tres- passer, no matter how aggravated the trespass. Wright v. Donnell, 34 Tex., 291. But such a right of action survives in Pennsylvania. McCalson V. Gregan, 1 Pa. Law Gaz. R., 414. And under the present statute of Iowa such a right of action would survive. Iowa Code, 1873, § 2525. '3 Woert V. Jenkins, 14 John., 352. See, also, Seara v. Lyons, 2 Stark., 317; Embler v. Myers, 6 H. & N., 54; 30 L. J. Exch., 71; 8 W. R., 665; Bellv. Mid. R. Co., 9 W. R., C. P., 612. '4 Moore v. Schultz, 31 Md., 418. 's Thomas v. Isett, 1 Greene (la.), 470. INJUKIES TO PEESONAL PROPERTY. 623 Mitigation. the plaintiff, as indicating the animus with which the act was done, and to enhance the damages.'* Where the defendant forcibly invaded the plaintiff's plan- tation, and under circumstances of great aggravation carried off some slaves and frightened away others ; and it appeared that by reason thereof a quantity of wood was swept away from the river bank by a flood; and by reason of having no hands to attend to his crop of corn, consisting of a field of 120 acres, the horses, mules, and other stock of the neighborhood, broke into the corn field and destroyed a large part of it; the court said : " The loss of services of the slaves, by the trespass, neces- sarily resulting from the abduction of a part of them and driving off the others, is clearly within the rule of damages in trespass; and we think the loss of the cord-wood as proved, and the injury to the corn crop, were also within it." " § 785. Mitigation. — The return of the property taken to the owner's possession, and his acceptance of it; or the appro- priation of it, or its proceeds, to the owner's use, by his ex- press or implied consent; or any lawful application of the 'SRatlifF V. Huntley, 5 Ired. (N.C), 545. But no allowance can be made for counsel fees. Young v. Tustin, 4 Blackf., 277. '7 Opinion by McLean, J., in McAfee v. CrofFord, 13 How. (U. S.), 447. The learned judge in this case further remarked: " Had the plaintiff not been deprived of his hands, he might have removed, sold, or in some other manner secured the wood from being floated off by the flood. In regard to the com and the wood, if the damage was a consequence which necessarily followed the loss of the hands, the plaintiffs in error were liable. * * * The trespass was of an aggravated nature; notwithstanding the mitigating facts set up by the defendants, it was lawless and wholly inexcusable. It was a resort to physical force in defiance of the law; and under such circumstances as to endanger life and property. Such a proceeding should be reprehended by every good citizen. It gives a high claim to the injured party for exem- plary damages." In an action for removing a fence, the plaintiff, if he recovers, may have damages growing out of its removal, and also for the unavoidable loss of crops, growing at the time, which resulted from the removal ; and the wrong- doer in such a case is responsible for all the consequences directly resulting from the vnrongful act. Gray v. Waterman, 40 111., 522. 624 THE LAW OF DAMAGES. Mitigation. same to the benefit of the owner, may be shown in mitigation of damao-es." Thus, where one wrongfully took goods under a belief of a right so to do, and they were afterwards taken on a distraint for rent due from the owner to his landlord; in an action brought by the owner against the tort-feasor therefor, it was held that these fticts might be shown in mitigation of damao-es.'* So in an action against a sheriff for an unauthor- ized seizure of goods under a fieri facias^ he was permitted to Bhow that the goods were afterwards taken from his custody and lawfully sold, on a distress warrant issued against the plaintiff and in favor of a third person, the sale being inde- pendent of any agency of the defendant."" So it may be shown that the goods did not belong to the plaintiff, and that they have gone to the use of the true owner in specie, or been taken on legal process in satisfaction of the same." And where there is an illegal or irregular seizure or sale of property by an offi- cer, who has applied the proceeds of the sale in satisfaction of final process against the owner, it has been held that this was a proper matter in mitigation of damages.'' § 786. But this doctrine is not universally applied, and it certainly would have no application where the property taken on execution or attachment by an officer, was exempt from such process. Thus, where a sheriff sells on execution property 'SHaumer v. Wilsey, 17 Wend., 91; Coffin v. Field. 7 Cush. (Mass.), 360; Greenfield Bank v. Leavitt, 17 Pick, 1; Pierce v. Benjamin, 14 Pick. (Mass.), 356; Yale v. Saunders, 16 Vt., 243. '^Huggins V. Whitney. 24 Wend., 379. «> Sherry v Schuyler, 2 Hill. (N. Y.), 204. See also. Irish v. Cloyes, 8 Vt., 30; Squire v. HoUenbeck, 9 Pick, 551; Kaley v. Shed, 10 Met., 317. And ■where the goods have been illegally sold in discharge of a lien and bought in by the owner, who sued the seller in trover therefor, these facts, it was held, might be shown in mitigation. Curtis v. Ward, 20 Conn., 204; Ewing, V. Blount, 20 Ala., 694. "Criner v. Pike, 2 Head. (Tenn.), 398; Wehle v. Haviland, 42 How. Pr. (N. Y.), 399. =^Farrar v. Barton, 5 Mass., 395; Preseott v. Wright, 6 Mass., 20; Pierce V. Benjamin, 14 Pick., 356; Stuart v. Martin, 16 Vt., 397. INJUKIES TO PERSONAL PROPEETY. G25 Mitigation. of the plaintiff which is exempt from execution, he is held liable to the owner for its valne."" And in snch a case the officer could not be permitted to show, in reduction of the actual dam?ges, that the proceeds of the property sold went to satisfy the just debt of the plaintiff, for no one should be permitted to wrongfully take and convert another's property and appropriate the same, even to pay the owner's debts, with- out his consent." But in a suit for a trespass, where exemplary damages are claimed, the defendant may show, as a mitigating fact, that he acted in good faith under the advice of counsel.'"* And where the defendant had authority to take property, which he has managed and disposed of wrongfully, though in good faith and with common prudence and due diligence, he is liable to the owner only for the amount actually realized by him.'"' Evidence tending to repel the presumption of malice is always admissible, at least in mitigation of punitive damages." ^Spencer v. Long, 39 Cal., 700 (1870). =4McMichael v. Mason, 13 Pa. St., 214; Dallman v. Fitler, 6 W. & S., 323; Sprague v. McKenzie, 63 Barb. (N. Y.), 61. =5Bohn V. Dunphy, 1 T. Mon. (Ky.), 333. =6 Rowan v. State Bank, 45 Vt., 160 (1867). =7 Gray V. Waterman, 40 111., 522; Reeder v. Purdy, 41 III., 279; Roth v. Smith, 41 111., 314. In the case of McAfee v. Crofford, supra, which was for an aggravated trespass in abducting slaves, the court held that the plaintiff in the court below, was entitled to recover remote losses resulting therefrom, but it was also held proper for the defendant to show that there was a judgment against the plaintiff as principal and himself as surety, and his own payment of that judgment; and further, that all the circumstances of the case might be shown in aggravation or in mitigation of damages. 13 How. (U. S.), 447. See, also, as to mitigation, ante, § 110, et seq. 40 626 THE LAW OF DAMAGES. Trover and Conversion. CHAPTER XXXIII. TROYER AND CONYERSION. Section 791. Distinction between Trespass and Troveiv-General Princi- ples. 792. Damages for Conversion. 793. Cause of Controversy— Time and Place of Value. 795. Value at the Time of the Conversion. 796. Exception to the Rule. 797. Larger Rule of Damages. 799. New York— Rule of Fluctuating Value. 800. Pennsylvania -Rule in. 801. Mississippi— Rule Adopted. 802. California. 803. Other States. 804. The Rule Should be the Same as on a Breach of Contract to deliver Personal Property. 805. Damages Varied with the Form of the Action. 806. Technical Doctrine in Different Actions. 807. Reform in Practice and Procedure. 808. Argument for the Fixed Rule. 811. Argument against the Rule of Fluctuating Value in case of Stocks. 812. Argument for the Rule of Highest Value. 813. The Distinction between Stocks and other Property Con- sidered. 814. The Sounder Rule Between the Extremes. 815. "Where the Property is Retiomed— Rule. 816. Mitigation. 817. Pretium Affectionis— Articles of Virtu. 818. Accession. TEOVER AITD COiq'YEESIO:^r. 627 Distinction between Trespass and Trover— Damages for Conversion. 820. Confusion. 821. Exemplary Damages for the Conversion. 822. "Where the Interest is Qualified or Limited. 823. Conversion of Notes or other Choses in Action. § 791. Distinction between Trespass and Trover. — It is not our purpose to consider the technical rules relating to the action of trover at common law, for the conversion of personal property, but only the rules of damages generally in case of a conversion. Conversion is a kind of trespass, and an injury to the rights of property of another. And the general rules and principles we have noticed as generally applicable in cases of trespass, would be applicable in cases of conversion. The distinction between the two actions, of trespass and braver, was that in trespass there was always a wrongful ixci^vi et armis^ or a taking, de bonis asportatis/ whereas in trover, for a conversion the act or taking may have been lawful, as by finding, but the gist of the action was the unlawful conversion. And damages were held recoverable in trover, not for the un- lawful taking, or for the manner of taking, as in t7'espass, but only for the conversion.^ And whatever may be the name of the action for the conversion, it is practically one to recover the value of personal property wrongfully converted. § 792. Damages for Conversion. — The measure of dam- ages for a conversion is generally the value of the property con- verted ; and to which interest should generally be added from the time of the conversion.' ' Cooper V. Chitty, 1 Burr, 31; W. BL, 67; 2 HiU. on Torts, 95. = Mercer v. Jones, 3 Camp., 477; Carter v. Feland, 17 Mo., 383; Kenedy v Strong, 14 John., 128; Beecherv. Dennison, 13 Gray, (Mass.) 354; Dixon v Caldwell, 15 Ohio St., 412; Sterling v. Gamttee, 18 Md., 468; Ryburn v Pryor, 14 Ark., (Barb.,) 505; Ripley v. Davis. 15 Mich., 75; Yater v. Mullen 24 Ind., 277; Palkv. Allen, 19 Mo., 467; Hurd v. Hubbel, 26 Conn., 389; Cook V. Loomis, 26 Conn., 483; Vaughn -v. Webster, 5Har. (Del.), 256 Thrall v. Lathrop, 30 Vt., 307; Cutter v. Fanning, 2 la., 580; Hayden v Bartlett, 35 Me., 203; Chaise v. Blasdall, 4 Minn., 90; Justice v. Mendell, 14 B. Mon., 12; Hildebrant v. Brown, 6 Tex., 45; Cassin v. Marshall, 18 Cal., 628 THE LAW OF DAMAGES. Cause of Controversy— Value at Time of Conversion. §793. Cause of Controversy— Time and Place of Value. — Controversies frequently arise in reference to the time and place of estimating the value; and as to whether damages can be allowed for the detention, or for loss result- ing from being deprived of the use of the property; or for the sums paid for the use of other property of a similar kind, in the place of the property converted; and whether the plaintiff can recover more than the actual market value for articles of special interest and value to the owner, such as family pictures, articles of ViV^?/, and the like; and whether exemplary damages can be awarded in any case. On these various questions the authorities are not uniform. § 794. In reference to the time when the value of the prop- erty should be estimated, it is diflScult to determine the ques- tion on principles that are entirely satisfactory. Should it be the value at the time of the conversion, or the highest value at any time between the original conversion and the commence- ment of the suit, or the time of trial? The most respectable authorities are arrayed on different sides of this question. "We will therefore consider the rule in the different states. § 795. Value at the Time of the Conversion.— The rule of valuation of the property at the time of the conversion, with interest, prevails in Massachusetts, where there is no claim for special damages. Thus, in Pierce v. Benjamin, Morton, J., in delivering the opinion of the Supreme Court of that state, remarks: "The general rule of damages, in 689; Parks v. Boston. 15 Pick. (Mass), 198; Andrews v. Durant. 18 N. Y., 496; McCormick v. Penn. Cent. R. R. Co.. 49 N. Y., 303; King v. Orser, 4 Duer (N. Y.), 431; Robinson v. Hartridge. 13 Fla., 501. See. also, Dillenbarh v. Jerome, 7 Cow., 294; Northern Trans. Co. v. Selick, 52 111., 249; Pierce v. Benjamin, 14 Pick., 356; Greenfield v. Leavitt, 17 Pick., 1; Cliinery v. Vial, 5 H. & N., 288; Mayne on Damages, 215; Read V. Fairbanks, 13 C. B., 692; Briesly v. Kendall, 17 Q. B., 937; Lamonda v. Daval, 9 Id., 1030. Damages may be given in the way of interest beyond the value of the goods. Mayne on Dam., 203, 212. TEOYER AND COIS-VEESIOK 629 Value at time of Conversion. actions of trover, is unquestionably the value of tlie prop- erty taken, at the time of the conversion."' But to this amount interest is usually added.' This general rule has been recognized in Pennsylvania,' Kentucky,' Missouri,' West Vir- ginia,' New Hampshire,'" Connecticut," Maine,'' Yermont," 4 Pierce v. Benjamin, 14 Pick., 356. See. also, Parks v. Boston, 15 Pick., 198; Stone v. Codman, 15 Id., 297; Sargent v. FrankHn Ins. Co., 8. Id., 90 j Greenfield Bank v. Leavit, 17 Id., 1; Kennedy v. Whitewell, 4 Id., 466; Johnson v. Sumner, 1 Met., 172; Fowler v. Oilman, 13 Id.. 172; Wyman v.' Am. Powder Works, 8 Cush., 168; Hussey v. Manufacturers & Mechanics' Bank, 10 Pick., 415; Parsons v. Martin, 11 Gray (Mass.), Ill- Selkkk v Cobb, 13 Id., 313. 5 Bany v. Bennett, 7 Met., 354. See, also, to the same effect, Derby v. Gray, 5 Minn., 119; Gray v. Portland Bank, 3 Mass., 364; Sargent v. Frank- lin Ins. Co., 8 Pick., 90; McCormick v. Penn., etc., R. Co., 49 N. Y., 303. 6 Smithurst v. Woolston, 5 W. & S., 106; Backenstoss v. Stabler, 33 Pa. St., 251; Neiler v. KeUey, 69 Id., 403; Gary v. Bright, 58 Id., 70. 7 LiUard V. Whitaker, 3 Bibb., 92; Sproule v. Ford, 3 Little, 25; Dutton v. Barnes, Lit. Sel. Cas., 137. 8 Coffey V. National Bank, 46 Mo., 140 (1870), where in a recent case it was held, in an action against a bank for conveiimg to its own use a special deposit in specie, that the measure of damages was the market value of the specie in legal tender notes at the time and place of the conversion, with interest. 9 Arnold v. KeUy, 4 W. Va., 642 (1871), where in an action for the con- version of a horse that had been rendered worthless and then returned, it was held that the measure of damages was the value of the horse at the time of the conversion, and that the jury might determine the value from the price paid for it, a short time before the conversion. » Frothingham v. Morse, 45 N. H., 545. See, also. Cross v. Bro^ra. 41 N. H., 283, where the defendant receipted to an officer for property levied upon, and suffered the debtor to take it; it was held, in an action of trover by the officer, that the measure of damages was the value of the property fixed in the receipt, the amount of the judgment on which the process issued, being more than the value of the property. "Hurd V. Hubbel, 26 Conn., 389; Cook v. Loomis, Id., 483- Luckey v Roberts, 25 Id., 486. " Robinson v. Barrows, 48 Me., 186; Hayden v. Bartlett, 35 Id., 203; Brown v. Hayes, 52 Id., 578. '3 Park V. McDaniels, 37 Vt., 594; Crumb v. Oaks, 38 Id., 566. 630 THE LAW OF DAMAGES. Value at time of Conversion. Illinois/^ Michigan,'* "Wisconsin," Kentucky," Louisiana," Mississippi,'" Nevada,'" Florida," Delaware," Maryland," Minnesota,'' Missouri," New York,"" Texas," and Iowa;" although it has been qualified if not ignored recently, in some of these states. This was also the doctrine held by Mr. Justice Story, in the United States Circuit Court. On this subject he remarks: " I am of opinion that the rule is the value of the property, at the market price, at the time of the conversion."" And this seems to be the general English rule.'" '4 Smith V. Dunlap, 12 lU., 184; Heagy v. Hill, 12 Id., 99; Otter v. Will- iams, 21 Id., 118; Cushman v. Haines, 46 Id., 145; Sturgesv. Keith, 57 Id., 451, where it was applied to R. R. stocks converted. See, also, Turner v. Retter, 58 Id., 264. 'sSymes v. Oliver, 1-3 Mich., 9; Bates v. Steinall, 19 Id., 91; Ripley v. Davis, 15 Id., 75. '^ Ainsworth v. Bowen, 9 Wis., 348. ■7 Freeman v. Luckett, 2 J. J. Marsh, 390; Greer v. Powell. 1 Bush. (Ky.), 489; Jonson v. Sumner, 1 Met., 172; Saunders v. Vance, 7 T. B. Mon. (Ky.), 209; Lillard v. Whitaker, 3 Bibb. (Ky.), 92. '^ Vance v. Tourne, 13 La., 225. '9 Whitfield V. Whitfield, 40 Miss., 362; Bickell v. Colton, 41 Id., 368. And a wrongdoer is liable for the value of the property wrongfully converted, though it be afterwards destroyed by a public enemy. Id., 42 Miss., 420. =° O'Meara v. The North Am. Mining Co., 2 Nev., 112; Carlyon v. Lannan, 4 Id., 156; Boylan v. Huguet, 8 Id., 345. But in this case special damages were allowed m addition to the value, and interest. " Robinson v. Hartridge, 13 Fla., 501 (1871). =^ Vaughan v. Webster, 5 Harr. (Del.), 256. =3 Sterling v. Garritee, 18 Md., 468; Baltimore, etc., Ins. Co. v. Dalrymple, 25 Id., 269; Thomas v. Steinhamer, 29 Id., 268. =^4 Derby v. Gallup. 5 Minn., 119. =s State V. Smith, 31 Mo., 566. =6 King V. Orser, 4 Duer. (N. Y.), 431; Hendricks v. Decker, 35 Barb. (N. Y.), 298; Ward v. Bensan, 31 How. (N. Y)Pr., 411; Laplace v. Aupaix, Johns. Cases, 406. ^7 Moore v. Aldrich, 25 Tex., 276. =8 Cutter v. Fanning, 2 la., 581. ^ Watt v. Potter, 2 Mason, 77. See also authorities cited, ante, note 2. 3° See, Opinion of Ld. Ellenborough, in Mercer v. Jones, 3 Camp., 477. See, also, Falk v. Fletcher, 18 C. B., 403 (1865); Read v. Fairbanks, 24 Eng. L. & E., 220; s. c, 13 C. B., 692; Fisher v. Prince, 3 Buit, 1363 (1862;. But in Greening v. Wilkinson, 1 C. & P., 625, it was held that the jury might find as damages the value of the property, in their discretion, at a subse- quent time. TKOYEK AND CONYERSIOK 631 Exception to the Rule— Larger Rule of Damages. § 796. Exception to the Rule .—Instances have occurred however, where special damages have been claimed and allowed. Thus, in trover for the conversion of a horse, it was suggested by Park, B., that special damages might be recov- ered for money paid for another horse, to use in the place of the one wrongfully converted.'' So, where the owner of prop- erty wrongfully converted has been subjected to expense and loss of time in searching for it, a reasonable sum has some- times been allowed therefor, in addition to the value of the property and interest." In trespass there could be no question of the propriety of allowing such items as damages. And where technical forms of action are abolished and a more liberal spirit of reform prevails, there could be no reasonable objection to the allow- ance of such elements as damages, on a proper statement of the facts of the case in the pleading and proof of the same. §797. Larger Rule of Damages.— In trover for the conversion of the plaintiff's tools, by reason of which he was prevented from working at his trade as a carpenter, and w^as thereby greatly impoverished; it was held, that the plaintiff was entitled to the special damages directly flowing from the unlawful detention of his tools."' And where the value of the property and interest will not fully compensate the owner for a wrongful conversion, or where the general rule will enable the wrongdoer to realize a profit and be benefitted by the conversion, it has been held, 33 Davis V. Oswell, 7 Car. & Payne, 804. But, see, Hurd v. Hubbel, 26 Conn., 389; Saunders v. Brosius, 52 Mo., 50; Brizsee v. Maybee, 21 Wend., 144; Farmer's Bank v. McKee, 2 Pa. St., 318. 34 McDonald v. North, 47 Barb., 530; Forsythe v. Wells. 41 Pa. St., 291; Bennett v. Lockwood, 20 Wend., 223. We have noticed that such items were proper to be considered in assessing damages where the action is for the trespass. See ante, § 781 and authorities there cited. 35Bodley v. Reynolds, 10 Jur., 310; 8 Q. B., 779; 15 L. J., Q. B., N. S. 219 (1846). See, also, Cook v. Hartle. 8 C. & P., 568; ShotweU v. Wen- dover, 1 John., 65. Mayne on Dam., 212. 632 THE LAW OF DAMAGES. Larger Rule of Damages. that under proper allegations in the pleading, larger damages should be given. Thus, in Suydim v. Jenkins^ Duer, J., remarks: "It maj be shown, that had the owner retained pos- session he would have derived a larger profit from the use of the property than the interest upon its value; or that he hud contracted to sell it to a solvent purchaser at an advance upon the market price; or that when wrongfully taken or converted, it was in the course of transportation to a profitable market, where it would certainly have arrived; and in each of these cases the difference between the market value when the riirht of action accrued, and the advance which the owner, had he retained the possession, would have realized, ought plainly to be allowed as compensatory damages, and as such to be included in the amount for which judgment is rendered. So, where it appears that the owner in all probability would have retained possession of the property until the time of trial or judgment, and if then of greater value than when he was dispossessed, the difference may fairly be considered as part of the actual loss resulting to him from the change of possession, and should therefore be added to the original value to complete the indemnity. -5^ * * Even where the market value of the property, when the right of action accrued, would more than suffice to indemnify, it is not in all cases that the liability should be limited to that amount. It is for the value that he [the defendant,] has himself realized or might realize that he is bound to account, and for which judgment should be ren- dered against him. Hence, should it aj)pear in evidence upon the trial that he had in fact obtained on the sale of the prop- erty a larger price than its value when he acquired possession, or that he still retained possession, and that an advance price could then be obtained, in each case, the increase upon the original value, (which would otherwise remain as profit in his hands,) ought to be allowed as cumulative damages. * * -5^ It seems to us exceedingly clear, that the highest price for which the property could have been sold, at any time after TROYER AND CONYERSION. 633 Larger Rule of Damages. the right of action accrued, and before the entry of the judgment cannot, except in special cases, be justly consid- ered as the measure of damages. When the evidence jus- tifies the conclusion that the higher price would have been obtained by the owner had he kept 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 cannot be permitted to retain; but we cannot admit that the same rule is to be followed where nothing more is shown than a bare possibility that the highest price would have been real- ized, and still less when it is shown that it would not have been obtained by the owner, and has not been obtained by the wrongdoer." '' § 798. From the reasoning and conclusions of the learned judge in this case, it is an easy step to a general rule allowing in all cases the plaintiff to recover for a wrongful conversion of property, the higest market value of the same at any time between the conversion and the trial, which seems now to be the rule in that state, and several others, where the property is of a fluctuating value, if there has been reasonable diligence in the commencement and prosecution of the action,''^ And in 36 Suydam v. Jenkins, 3 Sandf., 614 (1850). See, also, Clark v. Pinny, 7 Cow., 681; West v. Wentworth, 3 Cow., 82, where the larger rule of dam- ages was applied to contracts to dehver property paid for. 37 Burt V. Dutcher, 34 N. Y., 493; Morgan v. Gregg, 46 Barb., Id., 183; WUson V. Mathews, 24 Id., 295. See, also, Douglass v. Kraft, 9 Cal., 562; Hamer v. Hathaway, 33 Cal., 117; Weymouth v. Chicago, etc., R. Co., 17 Wis., 550; Page v. Fowler, 28 Cal., 605; 37 Cal.. 100; 39 Cal., 415. See the same rule, provided for by the Code of California, ante, § 19, note 25. See, also, Greening v. Wilkinson. 1 C. & P., 625; Chinery v. Vial, 5 H. & N., 288; 29 L. J., Exch., 180; 8 W. R., 629, where it was held, that where the plain- tiff bought sheep on credit, and left them in the custody of the vendor, and he without any default on the part of the vendee, resold the same, the meas- ure of damages was not limited to the value of the sheep, but the loss plaintitf sustained by not having the sheep delivered to him at the price agreed upon. 634 THE LAW OF DAMAGES. New York— Fluctuating Rule of Valuation. various states, where the general and limited rule is applied in case of the conversion of property generally, the fluctuat- ing rule is applied in case of the conversion of stocks, which we shall hereafter notice. We will proceed to consider instances, in the different states, where the fluctuating and larger rule of damages has been applied. § 799. New York— Rule of Fluctuating Value.— Notwithstanding the decisions we have referred to, where the general rule is recognized, and the qualification of the same in Suydam v. Jenkins^ sujpra^ the current of modern decisions in N'ew York, sustains the rule of the highest value of the property converted up to the time of trial, in all cases where the property is of ?i. fluctuating value. This qualification, however, would seem to be unimportant, as it is doubtful if there is any property entirely stable in value, and besides, if property did not fluctuate there would be no advantage in the larger rule. Thus, in Eomaine v. Van Allen, which was, however, an action for the wrongful conver- sion of railway shares, pledged to the defendant as collateral security, Kosekrans, J., in delivering the opinion of the Court of Appeals of that state, remarks: "Although the general rule of damages in trover, may be the value of the property at the time of the conversion, with interest, or that value when the chattel has a determinate and fixed value, yet, when there is any uncertainty or fluctuation attending the value, and the chat- tel afterwards rises in value, the plaintiff can only be indemnified by giving him the price of it at some period subsequent to the conversion; and the necessary result of all the decisions in my judgment, is, that in such cases, the plaintiff is entitled to recover the highest market value of the property at any time intermediate the conversion and the trial."^* And the same rule was subsequently sustained after a full consideration of the question, in an action for an unauthor- 38 26 N. Y., 309 (1863). But see, Brass v. Worth, 40 Barb., 648 (1863). TKOYER AND CONYEKSION". 635 Pennsylvania— ^ule in. ized sale of wheat f^ and also in an action for the conversion of hops;" and in an action for the conversion of grain;" and in an action for the conversion of a railroad bond, loaned by the plaintiff to the defendant ; in which last case the Superior Court of the City of New York, held that the measure of damages was the highest market value of the property between the time of the conversion and the time of trial; and that where the plaintiff gives proof of value at a certain time between such periods, evidence of its value at other periods offered by the defendant, will be excluded." § 800. Pennslyvania— Rule in— The enlarged rule of fluctuating value has, in Pennsylvania, been applied only in cases of the conversion of stocks. And when the value of stocks has advanced since the conversion of them, the measure of dam- ages for the same has been held in that state, to be the highest market value between the conversion and the trial. And it is there generally held, that the restricted rule of value at the time of the conversion does not apply, where the property cannot be obtained elsewhere; or when from restrictions on its production or other causes, its price is necessarily subject to very considerable fluctuations; or where the limited rule would hold out temptations to wrongful conversions, as in cases of stocks which are peculiarly subject to such fluctua- 39 Scott V. Rogers, 31 N. T., 676 (1864). 40 Burt V. Dutcher, 34 N. Y., 493. 41 Morgan v. Gregg, 46 Barb., 183. See also, the same, in Mathews v. Cole, 56 Barb., 430; 49 N. Y., 57 (1870). 42 Naumann v. CaldweU, 2 Sweeney (N. Y.), 212 (1870). See also, the " same, Markliam v. Jaudon, 41 N. Y., 235, which related to a contract to carnj stocks; and Lobdell v. StoweU, 51 N. Y., 70, which was an action for the conversion of grain, and where the same doctrine was held. But see, Math- ews V. Coe, 49 N. Y., 57, which was an action for the conversion of ware- house receipts for com; and in which case Chief Justice Church remarks, in reference to the fluctuating rule, that "it is not so firmly settled as to be beyond the reach of review whenever necessary." See also, as to the quali- fication of the enlarged rule, Baker v. Drake, 8 Alb. L. Jour., 340 (Sept., 1873, Ct. of Appeals). 636 THE LAW OF DAMAGES. Mississippi— Rule Adopted- California. tions in value, by making conversions profitable to the wrong- doer, if the restricted rule was adopted." Tliis rule was also applied in that state in an action for a failure to replace bor- rowed stock; and the measure of damages was held to be the highest value to the time of trial."* § 801. Mississippi— Rule Adopted —The court of last resort in Mississippi has recently made the following excep- tions to the limited rule of value: 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 disposition of the property w^ere 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 property has some peculiar value to the plaintiff, and is willfully taken or withheld by the defendant. Whenever these circumstances or any of them occur, the rule of damages is not limited to the value of the property at the time of the conversion, but is left to the jury to be de- termined from all the circumstances of the case." § 802. California- — In California, where the property converted has a fixed value, the measure of damages is held to be that value at the time of the conversion, without inter- est; but where the value is fluctuating the plaintiff is held entitled to recover the highest value, either at the time of the conversion or afterwards." And, in an action in that state for 43 Bank of Montgomery v. Reese, 26 Pa. St., 143. 44 Musgrove v. BeckendorfF, 53 Pa. St., 310. See also, Phillipp's Appeal, 68 Pa. St., 130; Lauback v. Lauback, Sup. Ct. Pa., Marcli T., 1873; Neilerv. KeUy, 69 Pa. St., 403. « Whitfield V. Whitfield, 40 Miss., 352; s. c, 44 Miss., 2-54. See also, Bickel V. Colton, 41 Miss., 368. ^ Douglass V, Kraft, 9 Cal., 562; Hamer v. Hathaway, 33 Cal., 117. See also, Hisler v. Carr, 34 Cal., 64, where it was held that the damage was the value at the place of detention, at the time the action was commenced. TEOYER AKD COXYERSIO^. 637 other States- The Kule Should be the Same as Breach of Contract, etc. damages for the wrongful conversion of a haj-crop, worth at tlie time not more than $2,500, and subsequently, owing to a severe drought, the market value of the hay was largely in- creased; and the jury, having been allowed to assess the highest market value of the hay prevailing at any time after tlie con- version, with interest, assessed it at $25,763.75; the court held, that the correct measure of damages was the highest market value within what, under the circumstances of the case, was a reasonable time after the property was converted in which to bring suit, and interest from that time. And, as the hay had been converted in 1863, and the action was not commenced until 1869, the court considered that too wide a range had been given to the jury, and therefore set aside the verdict.'' § 803. Other States —The larger rule of damages in case of conversion has also been recognized in Indiana,'* Ala- bama,"' South Carolina,'" and Maine." § 804. The Rule Should be the Same as for a Breach of Contract to Deliver Personal Property.— In treating of the measure of damages on breaches of contracts to deliver personal property, we noticed that two different rules pre- vailed in different states on the subject of damages; that in some states the measure of damages was the value of the property at the time and place of delivery; and in others, where the price had been paid, the highest market value of the property between the time w hen it should have been delivered and the 47 Page V. Fowler, 39 Cal., 412. 48 Ellis V. Wire, 33 Ind., 127; Bank of State v. Burton, 27 Ind., 426. 49 Ewing V. Blount, 20 Ala., 694; Jenkins v. McConico, 26 Ala., 213; Johnson V. Marshall 34 Ala., 522; Freier v. Cowles, 44 Ala., 314, where the general doctrine of the highest value of the property to the time of trial is held to be the proper measure of damages. s° Kid V. Mitchel, 1 Nott& McC, 334. 5' Freeman v. Hamood, 49 Me., 195, where the defendant was held liable for the value of the stocks at the time of the conversion, with dividends and interest. 638 THE LAW OF DAMAGES. Damages Varied with the Form of the Action. commencement of the suit, or even the time of trial in some states.'' All the reasons in support of the larger rule of dam- ages in such cases, would apply in favor of the larger rule in cases of the wrongful conversion of property; and in addition to which other reasons might be adduced in support of the larger rule in the latter case. And the rule should be the game in the action of trespass de honis asportatls and replevin. Thus, in replevin, if the plaintiff fails to obtain the property although he has a judgment for the same, and a conditional judgment for its value in case of a failure to return; or incase the plaintiff obtains the property on the writ, and there is a judgment against him in the suit, and lie fails to return the property to the owner, and the owner brings suit on the re- plevin bond, the measure of damages should be the same as in case of a breach of contract to deliver, or for a conversion of the property. § 805 Damages Varied with the Form of the Action — "We have noticed that at common law the measure of dam- ages varied with the different actions; that the plaintiff "might have his choice of actions in many cases, and that the judg- ment and skill of the pleader was frequently taxed in making that choice of actions which would be most favorable for the plaintiff. Thus, where a party could bring trespass he might waive the trespass, and thereby waive any claim for aggravated or vindictive damages by reason of any outrageous manner of the taking, and bring trover for the conversion; or, in case of a sale of the property by the trespasser, he might waive the tort and sue in assumpsit for the consideration received there for by the wrongdoer;'" or he could sue in replevin for the goods, and thereby repossess himself of the property, or in case of a failure so to do, secure a judgment for its value. ssSee, ante, §244, et seq. 56Bac. Abr. Trover, A.; Lord Mansfield, in Linden v. Hooper, Cowp., 419; Lord Ellenborough, in Hunter v. Prinsep, 10 East., 378, 391. TROYER AND C0:N'VEESI0:N". 639 Technical Doctrine in Different Actions— Reform in Practice, etc. In trover the same rule was generally adopted as in trespass, except, perhaps, as to consequential and exemplary damages." But consequential damages have sometimes been allowed in trover, as where the plaintiff has been subjected to expense and loss of time in searching for the property wrongfully taken and converted.'* § 806. Technical Doctrine in Diiferent Actions.— The difference in the measure of damages, in these various actions for torts, was only maintained on technical grounds pertain- in o- to the various forms of actions. The facts in either case might be the same, and there would seem to be no reasonable grounds for any difference on the same facts in the amount of damages, especially where the facts are set forth and sufficient damages claimed in the pleadings. §807. Reform in Practice and Procedure .—Under the reforms adopted in the mode of procedure in many, if not most of the states, the common law forms with their technic- alities are abolished, as we noticed in the introductory chapter, and there would seem to be no longer any necessity for the different rules of damages based upon the different forms of action. A uniform rule in that respect might be adopted, resting on the facts of the case rather than any technicalities of forms. And under this reform, the remarks of the learned justice, in Suydam v. Jenkins, " that the rule for ascertaining the sum to be recovered by the injured party, in all cases where personal property is wrongfully taken or detained, whether by force, fraud, or process of law, (leaving out of 57Brizsee v. Maybee, 21 Wend., 144; Farmer's Bank v. McKee, 2 Pa. St., 318; Stark, on Ev., Art Trover. See, also, Hurd v. HubbeU, 26 Conn., 389, where it was held that consequential damages were not allowable. Saun- ders V. Brosius, 52 Mo., 50. ssMcDonaldv. North, 47 Barb., 530; Forsyth v. Wells, 41 Pa. St., 291. See, Qlso,post, §821 and notes. Incaseof a conversion of property by a sale of the same, the owner may waive the tort and sue for the consideration re- ceived by the wrong doer. Howel v. Graves, 27 Ark., 365. 640 THE LAW OF DAMAGES. Argument for the Fixed Rule. view the exceptional cases in which exemplary damages are given,) ought to he the same without reference to the form of the actions," has peculiar force and application.'" And it is even questionable if the exception made would be necessary, where a party is required only to set forth in his pleading, in plain and concise language, the facts constituting his claim for damages. § 808. Argument for the Fixed Rule.— We will present the argument in support of the fixed rule of the value at the time of the conversion, or when the property should have been delivered, whether it be stock or other ])roperty. The Supreme Court of Xew Hampshire, on this (juestion, in case of the failure to deliver property according to contract, in Pinkerton v. Manchester cfe Laurence R. Co.^ say : '' To hold that the plaintiff might elect, as the rule of damages in all cases, tlie highest market price between the time fixed for delivery and the day of trial, which is often many years after the breach, would in many cases be grossly unjust, and give the plaintiff an amount of damages disproportionate to the injury; for in most of these cases, had the articles been deliv- ered according to contract, they would have been sold or con- sumed within the year. * * * So there may be repeated trials of the same case. Shall there be a different measure of value at each trial? " " Objection to the larger rule is also made on the ground of "incompleteness, uncertainty, indefiniteness and want of uniformity, and because it departs from the principle of com- pensation for actual loss." Thus, in Romaine v. Van Allen,'^ the action was brought seven months after the conversion, and the stock converted in that case rose in value from $3,937.50, at the time of the conversion, to $5,962.50 at the beginning of "Opinion of Duer, J., in Suydam v. Jenkins, 3 Sandf., 614. ^ "42 N. H., 424. See, also, Frothingham v. Moorse, 45 N. H., 545. " 26 N. Y., 309. TROYER A:N"D CONVERSION. 641 Argument for the Fixed Rule. the trial, and before the trial was completed, (which was a protracted oue before a referee,) it rose to the value of $8,175, and the difference in the amount of damages under the differ- ent rules, was owing largely to the fortuitous circumstances of delay in court, and the protracted trial. It was insisted that this was an insurmountable objection to the rule, as it failed to be certain and uniform as a measure of damages; that a delay in the trial, which would probably occur where the courts were pressed with a large number of cases, might thereby give the plaintiff an advantage not enjoyed where the suit should be brought in a court where there was little business and cases were promptly disposed of, and that therefore the rule would not operate alike under all circumstances; that it does not fur- nish a measure strictly compensatory, but gives the plaintiff the advantage of contingent and speculative profits, without any hazard of loss; that it would amount to a lottery, by allow- ing the amount of damages to be doubled or trebled by the accident of a suit, to enforce the claim, being brought in a court where great delays in the determination of cases were unavoidable, or on the other hand divided and decimated by the circumstance of a venue in a court where the case could be promptly decided. § 809. Again it is maintained, that the fluctuating rule M'onld work injustice in the case of property, which from its nature must be consumed within a limited period, or destroyed or its value greatly deteriorated by the delay. For instance, in the case of Page v. Fowler^ supra, a hay crop was wrong- fully converted in May, 1863, and the action therefor was not brought until 18G9. Here, the plaintiff, under the fluctuating rule, without limit as to time, w^ould be allowed the higliest value of the hay for the six years; but the hay if kept during this long period, would greatly deteriorate in value, if not be rendered, under ordinary circumstances, entirely worthless; yet under the unlimited rule, the plaintiff would be allowed 41 642 THE LAW OF DAMAGES. Argument for the Fixed Kule. its highest market value at any intermediate period, and it is maintained that it is unjust and inequitable, that tlie plaintiff should have the benefit of a rise in value wliich he never contemplated and which it is morally certain he never could have enjoyed had the property remained in his possession, and that even the qualification of the rule, that the suit must be brought within a reasonable time, is a grave objection to it on account of the difficulty of fixing on what is a reasonable time in such cases."" It is further objected to the rule, that it departs from the analogy of the general principle of indemnity, by wliich inter- est on a debt from the time it becomes due, or on the value of the property wrongfully taken or withheld, is allowed from the time of the taking or conversion, such interest being generally allowed as a legal right in this country as an element of damages, and substitutes therefor "the chance of winning a prize."" § 810. It is further objected, that the conversion may have been purely technical, the result of mere misapprehension of the rights of the parties, and an act of perfect good faith. Thus, in Scott V. Rogers^ the plaintifi" residing in Cleveland, Ohio, had wheat in store in Buffalo on the 12th day of July, 1853, and telegraphed to the defendants at Buffalo to sell the same on that day for $1.08, per bushel, and that if it was not sold on that day to ship it to New York. The defendants offered it for sale the same day, and a party desired till the next morning to determine on the purchase at that price, which the defendants assented to, provided no news was received in the meantime affecting its value, and the next morning the pur- chaser took the wheat at the price stipulated. The case was tried by the court who found that, although there was good faith on the part of the defendants, the transaction amounted to a con- ^ Page V. Fowler, 39 Cal., 412, supra. *' Note to Sedg. on Dam., page 596, 6 ed. TEOYER AITD CONYEESIOK 643 Argument Against the Rule of Fluctuating Value in cases of Stocks. version of the wheat on their part, and the court (on the theory that the suit should have been brought within a reasonable time after the cause of action accrued), fixed the 29th of ;N"ovem- ber following the conversion, as the time within which the action should have been brought, and the highest value between the conversion and that time was determined as the amount of damages, and in the Court of Appeals tliis decision was sustained."^ It is maintained that, in such cases, the wrong at most is a merely technical one; that a party acting in good faith should not suffer a penalty to which only a willful wrongdoer maybe properly subjected; and that the limit of damages in such a case, should be the value of the property at the time of the con- version; that the rule of higher damages in such cases, is a departure from the principle of indemnity which should not be tolerated; that it is contrary to the true theory on which damages are recoverable, namely, that they should be confined to such losses as are the natural and direct consequences of the defendant's act, or such as both parties should have expected to ensue; and that the fluctuating value adds an unnecessary exception to the rule, by which the commence- ment of the suit properly limits the rights of the contending parties." § 811. Argument Against the Rule of Fluctuating Value in cases of Stocks— Against the rule of enhanced value, even in case of stocks, whether the action is for a breach of the contract to deliver on a contract of purchase, where the price has been paid, or in trover for their conversion, it is claimed that the fixed rule of damages is the one which gives complete indemnity, and that this is all that should be re- quired, that it rarely happens that the owner of stocks, sells them when the market is the highest; that the value is uncer- «=> Scott V. Rogers, 31 N. Y., 676. « Note to Sedg. on Dam., 596, 6 ed. 644 THE LAW OF DAMAGES. Argiiment Against the Rule of Fluctuating Value in cases of Stock. tain, and operations therein specnlative, and the chances of profit contingent; and that, to allow the plaintiff in case of a failure to deliver to him according to the contract, or in case of conversion, which may be only technically tortious and in- volve no want of good faith, to delay his suit and take tlie chances of a rise, and if perchance it does occur, to claim such advance price as damages, is unjust and inequitable and at variance with the general principles of the law of damages, as only contemplating compensation to the party injured. It is further claimed that the plaintiff, under the rule of fluctuating value, "is in a position incomparably superior to that of which he has been deprived;" that in speculations in stocks, whereby- the defendant contracts to "carry stocks" that are purchased, and hold them subject to the i)laintiff 's order, on a promise by the plaintiff to keep deposited with the defendant a stipulated percentage of the par value of the same called a "margin," and he converts them, he relieves the plaintiff, under the fluctuating rule, from the risk of a decline and the necessity of supplying "margins," and that entire justice is not done, even by the limitation of the in- creased value of the stocks to a reasonable time in which the suit should be brought and prosecuted with vigor to flnal judgment. This limitation is also objected to, as inadequate to protect the defendant and secure justice, on the ground that there is no standard or absolute criterion as to what is a reasonable time, and that this limitation is therefore unsatis- factory; that the court can lay down no intelligent rule on the subject, and that a jury is not competent to deal with it. To the objection to the fixed rule, that it permits a wrongdoer to use the property of another for his own advant- age — to speculate with, and appropriate to his own use the profits that should go to the owner — the reply is made that as a conversion does not change the title to the property, the ■olaintiff may, by a demand of his property, fix the time of TKOYEE, AND CONYEKSIOK. 645 Argument for the Kule of Highest Value. the conversion; that if the property remains in the possession of the defendant he may demand it, and if it is not delivered commence his action the same day, and regard that as the day of tlie conversion, and in this way recover the value of the property on the day the action was commenced, with interest thereafter; and this, altliough there may have been an actual conversion of the property by the defendant long prior to the time of the demand.'' § 812. Argument for the Rule of Highest Value.— In support of the rule of the highest value between the con- version and the commencement of the suit, or the trial, (as held in some cases,) the following arguments are used by its advocates: 1. The title of the property remaining in the plaintiff, in case of a conversion he should be entitled to the advance price, especially where the defendant has received the increase, for the reason, among others, that if the tort was waived and a suit brought for the money received on a sale of the prop- erty by the defendant, tlie plaintiff would be entitled to that amount. 2. The defendant, being a wrongdoer, should not be allowed to enjoy any benefits from his wrongful act of conversion; that he should not profit by the wrong; that he, at any time, whether the property be chattels or stocks, could restore the same, or tender the proceeds of the same, or the highest value to the time of tender, and thus avoid the hazard of any advance in the value of the same, subsequently; that it devolves, rather on the wrongdoer than on the owner, who is the innocent party, to take the necessary steps to protect himself from the hazards of an increase in the value of the property; that not unfrequently the time of the technical conversion, may be unknown to the owner, and before he obtains the knowledge, the property, especially if stocks, which are generally more » Dissenting opinion of Marion, J., in Scott v. Rogers, 31 N. Y., 676. 646 THE LAW OF DAMAGES. Ai-gument for the Rule of Highest Value. fluctuating in value than other property, may have greatly increased in value, and the owner may in the meantime have been deprived of the opportunity of replacing the same. And to the claim that the time of the conversion, and the value, might be fixed by a demand, it is replied that, if at the time of the sale by the defendant, in cases of a sale, it was at a much higher value and he thereby has profited, the owner and party wronged should enjoy the benefit of it. It is further claimed that the qualification of the rule, which requires the suit to be brought within a reasonable time and prosecuted with reasonable vigor, is one which protects the wrongdoer from all unreasonable advantage by the owner, and from any studied delay on his part for the purpose of taking advantage of the highest price that might otherwise extend over a period limited only by the statute of limitations; that the question of a reasonable time, whether a question of law or of fact, is one frequently presented in relation to other matters in controversy, and is no more indefinite or uncertain than many other questions of law or of fact, such as the ques- tion of negligence, fraud or intent, which must generally be determined from all the circumstances of the case, and which are not unfrequently, as in the case of negligence, determined by the court, as a matter of law, from undisputed or conceded facts. It is still farther claimed that the rule of value at the time of the conversion was never the limit of damages, but that in many cases the plaintiff has been allowed, under special circumstances, such consequential damages as directly flowed from the conversion, as we have already had reason to notice." The fluctuating rule of damages is held to have still greater force in case of stocks converted than other property, and this enlarged rule of damages has been adopted in some states in case of converted stocks, on account of their fluctuating value, when the more restricted rule is applied to the case of ordi- nary chattels, as we have observed in Pennsylvania." 3 See, § 797. * See, § 800. TEOVER AND CONYEESION. 647 Distinction between Stocks and other Property Considered— Sounder Kule, etc. §813. The Distinction between Stocks and other Property Considered. — It is perhaps difficult to determine tlie true rule, or the preponderance of authority on the question of damages in case of a conversion, but it may be observed that the distinction drawn between stocks and other property, is hardly warranted on principle; for although stocks are per- haps more subject to fluctuation than most other property, still nearly if not quite all property is thus subject to changes in value, and the difference in this respect is merely one of degree, and cannot well be the logical gi'ounds of any distinction on this account. The rule should, in our opinion, be one of uni- versal application, so far as regards the different kinds of prop- erty. Considering the various reasons adduced, and the principles controlling in the various forms of action at common law — the reforms which have been made, and the tendencies of the decisions towards uniformity in the measure of damages in all cases, without regard to the technical forms of actions — I think we are warranted in assuming, that the better rule of damages lies between the two extremes which we have pre- sented. § 814. The Sounder Rule Between the Extremes.— The doctrine in New York, in Suydam. v. Jenkins, supra,' and in Mississippi, in Whitfield v. Whitfield, sujpra^ may approximate nearer to the sounder rule, under all the circum- stances, and the measure of damages therein indicated would be freer from many of the objections which we have noticed, than either of the extreme rules we have been considering; and this conclusion, it is believed, is in accord with the Eng- lish decisions.' Thus it is held, in England, that the jury are not bound to find the value of the property at the time of the s3Sandf.,614. 6 40 Miss., 352; 44 Id., 254. 1 France v. Gaudet, 6 Q. B. L. R., 199. 648 THE LAW OF DAMAGES. Where Property is Returned— Mitigation. conversion, but may in their discretion find its value at a sub- sequent time.' § 815. Where Property is Returned.— If the property has been returned, the owner may maintain the action for an injury to the chattel, and the value of its use during the time he was deprived of the same by the conversion." §816. Mitigation. — Where the defendant has a lien on the projierty for a certain amount, as where it is pledged, in an action by the owner for a conversion, tlie amount of the lien may be deducted from the value of the property in assess- ing the damages.'" In trover for a note or other chose in action, the damages 2SQ pitna facie the amount due thereon." And, generally, matters in mitigation in trespass, may be shown in trover. "* 8 Greening v. Wilkinson, 1 C. & P., 625. For the English rule in special cases, see Cook v. Hartle. 8 C. & P., 568; Whitehouse v. Atkinson, 3 C. & P., 344, cited, 2 Greenleaf, § 649, note 7, 7th ed. See, also, Barrow v. Arnaud, 8 Q. B., 595. "The jury may (rive the value at the time of the con- version, or at any subsequent time, at their discretion, because the plaintiff might have had a good opportunity of selling the goods if they had not been detained." Greening v. Wilkinson, 1 C. & P., 625. See, also, Mayne on Dam., 286, 287, 288. 9 Greenfield Bank v. Leavitt, 17 Pick., 1; Curtis v. Ward, 20 Conn., 204; Ewing V. Blount, 20 Ala., 694; Sparks v. Purdy, 11 Mo., 219; Hunt v. Has- kell, 24 Me., 339; Angier v. Taunton Paper Manu. Co., 1 Gray, 621. '° Greene v. Farmer, 4 Burr, 2214, et seq. ; Chamberlain v. Shaw, 18 Pick., 283; Fowlerv. Gillman, 13Met., 267; Johnson v. Stear, 15 C. B. (N. S.), 330; 83 L. J. (N. S.), C. P., 130. Mr. Bigelow, in his Leading Cases on Torts, in discussing the question of damages for a conversion, remarks: " But while it is true that the measure of damages in trover covers the value of the prop- erty this is only di, prima facie presumption, and the more recent cases hold that the amount may be reduced by the sum remaining due to the defendant. So that the plaintiff" in fact recovers no more than the amount of the loss." Citing, Chinery V. Viall, 5 Hurl. & N., 288; Johnson v. Stear, 15 C. B. (N. S.) 330; Briery v. KendaU, 17 Q. B., 937; Neiler v. Kelly, 69 Pa. St., 403; Work V. Bennett, 70 Pa. St., 484. See, also, Stoiy on Bailments, § 315; Clark v. Dearborn, 103 Mass., 335; Whitney v. Beckford, 105 Mass., 267. "Mercer v. Jones, 3 Camp., 477. " See, ante, §§ 110, 785. Wliere an officer attached property of the debtor which was exempt from the attachment, but the property was subject to a TKOYEK AND CONYEESION. 649 Pretium Affectionis— Articles of Virtu. §817. Pretium Aflfectionis— Articles of Virtu. — In case of tlie conversion of property of peculiar value to the owner, owing to personal causes, such as gifts and articles of virtu, the qualification of the general rule in Whitfield v. Whitfield, supra, and the doctrine in Suydam v. Jeiikins^ S'\ijpra, make sensible provisions; and the plaintiff would not be confined to the ordinary market value of the chattle, but the jury could determine under all the circumstances of the case the amount of damages. This doctrine would give the plaintiff an adequate remedy without any regard to exemplary damages, which have in some instances been regarded as proper in trover. Prof. Parsons remarks on this subject: "We think it quite clear however that this pretium affectionis cannot be recov- ered, unless in a case 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 he had bought the article; or at least, that the damages might be considerably enlarged in such a case on the principle of exemplary dam- ages.""' But the right to exemplary damages in trover, has many times been denied; and the rule that the defendant " should be made to pay what he would have been obliged to give if he had bought the article,'' where the conversion or appropria- tion by the defendant was " actually tortious," would perhaps be an exception to the general rule. But, it seems to me, that the rule we have stated would afford adequate remedy in such mortgage, and the attacliing creditor purchased the mortgage and the prop- erty was duly sold under the same for less than the mortgage debt, it was held, in an action for the conversion, that it was proper to show the applica- tion of the proceeds of the sale on the mortgage claim and the facts of the case, in mitigation of damages. Cooper v. Newman, 45 N. H., 339. See, also, same in Smith v. Reeves, 33 How. (N. T.), Pr., 183. "2 Parsons on Con., 196, citing, Ld. Kaime's Prin. of Eq., 159; Sedg. on Dam., 474; Suydam v. Jenkins, 3 Sand., 621. 650 THE LAW OF DAMAGES. Accession. cases, and harmonize ■with the cuiTeut of decisions, and pro- mote justice. The principles that should control in such cases is ^vcll set forth bv the learned Chief Justice Duer, in Siti/dam v. Jen- kins, sifj)ra, ns follows: "Inmost cases the market value of the property is the best criterion of its value to the owner, but in some cases its value to the owner may greatly exceed the sum that any purchaser would be ^villing to pay. The value to the owner may be enhanced by personal or family consid- erations, as in the case of family pictures, plate, etc., and we do not doubt that theJf>rc^/<^?7^ affectionis, instead of the mar- ket price, ought then to be considered by the jury or court, in estimating the value.'' " And in Whitfield ?'. Whitfield, snj>ra, ample provision especially is made, for damages in such cases, by leaving it to the jury or court to determine, under all the circumstances of the case, the amount of damages.'* §818. Accession. — It is affirmed as an old principle of the common as well as of the civil law, that if property receives any accession, either by natural or artificial means, "as by the growth of vegetables, the pregnancy of animals, the embroidery of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing is entitled, by his right of possession, to the property under such a state of improvement; but if the thing itself, by such operation was changed into a difierent species, as by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belongs to "3 The measure of damages for the conversion of plates for printing labels for advertisements, of great value to the owner and of trifling value to others, •was held to be the value to the owner. Stickney v. Allen, 10 Gray (Mass.), 35-2. '^Whitfield V. Whitfield, 40 Miss., 352; 44 Miss., 254; BickeU v. Colton, 41 Miss., oGS; ante, § 814. TEOYEE AXD COXYEESIOX. 651 Accession. the new operator who was to make satisfection to the former proprietor for the materials which he had so coQverted."'* The Court of Appeals of New York has gone still farther, and held, after a verj fall consideration of the question, that where the taking or conversion was willfull v wrong, the wrong- doer can acquire no title to the property bj any change what- soever, made by him or others, provided the article wa* made from the orisrinal material converted, as where com is made into whisky. Justice Ruggles, in delivering the opinion of a majority of the court in SiUhury v. JfcCoon, said: "So long as property wrongfully taken retains its original form and sub- stance, or may be reduced to its original materials, it belong, according to the admitted principles of the common law, to the original owner, without reference to the degree of improve- ment or the additional value given to it by the labor of the wrongdoer, Xay more, this rule holds good, against an inno- cent purchaser from the wrongdoer, although its value be increased an hundred fold by the labor of the purchaser. This is a necessary consequence of the continuance of the original ownership."" The qualification usually made, based on the extent of the chancy in the original material, was held to be unfounded in principle and that, in case of a wrongful conversion, a recov- ery could be had, if the real identity of the thing could be traced by evidence, although change^l into a different species. n 2 Black. Com., 4'14: Belts r. Lee. 5 Johns., 345 ; Curtis v. Groat, 6 Joims., 168; Baboock v. GilL 10 Johns., 287. See, also. Wevmoath t. Chicago & X. W. E. Co.. 17 Wis., o-yj: Farwell v. Price, S-J 3Io.. 5^. where the value of flour, wrongfully converted by a factor on its way to a distant market, was held to be its value at the place of destmahnn. >fi 3 X. Y., 379; overruling two previous decisions in tie same case, in 6 Hill.. 42-5; and 4 Denio., 3:32; Rice v. HoUenbeck, 19 Barb.. 6^4: Walter v. Wetmore. 1 E. D. S.. 7. See, also, dissenting opinion of Buggies, J., in Brown V. Sax. 7 Cow., 95. where it is suggested that a distinction should be made between a ca^e where the original taking was willfully tortious, and a case where a i>erson obtains lawful possession, but subsequently sells tte property without the consent of the owner. 652 THE LAW OF DAMAGES. Accession. But the doctrine of Silshury v. McCoon^ has been questioned in several cases.'^ The rule in the above case seems eminently proper. Tliere should certainly be a distinction between a case of mere tech- nical conversion where, perhaps, the defendant acts in good faith, and that of a willful conversion and wrong done by the defendant. And a distinction should be made between a case where the value of an article is perhaps quadrupled in value, by the skill and labor expended upon it by the defendant, in the honest belief of his title thereto, and without "moral fault," and a case of a like increase where there was a willful and intentional trespass or conversion of the article, with full knowledge of the rights of the plaintiif.'' 819. The ordinary rule would seem obnoxious to the objection, that if the wrongdoer only made such changes in the original material as not to impair its identity, as by ex- pending his labor in embroidering cloth, or manufacturing timber into machinery, the owner of the original material thus improved and enhanced, perhaps to ten times its original value, may recover for its increased value, but if his wheat is made into bread, or his corn into whiskey, he cannot recover the value of his property thus changed and enhanced, because it cannot be identified. This distinction, it seems, was based upon the difficulty or impossibility of detecting or discovering the original article. But what distinction exists in principle as to the measure of damages? It would appear to be a mere question of proof. Again, we have here, under the distinction referred to, the anomalous fact that, by a wrong done to another in the con- version of his property and the improvement of the same by '7 Brown v. Sax. 7 Cow., 95, per Sunderland, J.; Benjamin v. Benjamin, 15 Conn., 347. See, also, Betts v. Lee, 5 Johns., 349; Curtis v. Groab, 6 Johns., 168; Martin v. Porter, 5 M. & W., 351; Wood v. Morewood, 3 Q. B., 440; Tear Book, 5 H., 7 fol., 15. '8 This distinction was made by the Supreme Court of Michigan, in a recent case. Wetherbee v. Green, 22 Mich., 311. TKOYEE AND CONYERSION. 653 Accession. the wrongdoer, the owner maj recover the property in replevin thus improved, or its vahie in trover thus enhanced, if it is not so far changed as to lose its identity; but if the wrongdoer shall, by greater labor and expense, improve its value even ten times more, provided he make such changes as prevents the identification of the original by ordinary inspection, or changes its nature or character sufficientl}^, as by making grapes into wine, the owner of the original article can only recover the value of the unimproved orignal article. If the owner is to be allowed the benefit of accession to the value of his property, it would appear that the doctrine in Sihhury v. McCoon was the soundest in principle, and that he should be allowed to recover for the increased value of his corn even when converted into whisky, or his grapes into wine, where the conversion was willful. But where the tort is merely technical, and the defendant acts in good faith, he should enjoy the benefit of this enhanced value, and the plaintiff only recover the value of the original material." And this distinction has been recognized in the following cases: Thus, where timber, of the value of $25, had, in good faith and in the exercise of what was supposed to be proper authority, been converted into hoops of the value of $700, it was held, that the title passed to the party who had in good faith expended his labor.^" So, where the action was in trover for the value of coal, and it appeared that the coal was dug by mistake, it was held that the plaintiff could only recover the value of the coal before it was mined, and such other damage to the lands as the mining may have caused.''' '9 2 Parsons on Con., 475; Hyde v. Cookson, 21 Barb., 92, where the dis- tinction was made between a willful and a mere unintentional wrongdoer, in relation to accession. ^ Wetherbee v. Green, 22 Mich., 311. See, also, Weymouth v. North- western R. Co., 17 Wis., 550; Dresser Man. Co. v. Waterson. 3 Met., 9. " Forsyth v. Wells, 41 Pa. St., 291. See, also, Kier v. Peterson, 41 Pa. St., 357; Moody v. Whitney, 38 Me.. 174; Chipman v. Hibbard, 6 Cal., 162; Wliitbeck v. N. Y. Cent. R. Co., 36 Barb., 644; Coxe v. England, 65 Pa. St., 212; Young v. Lloyd, 65 Id., 199. 654 THE LAW OF DAMAGES. Confusion. § 820. Confusion. — Substantially the same rule should prevail in case of the intermixing or confusion of chattels. On this subject Blackstone says: "If the intermixture be by consent, I apprehend that in both laws (common and civil) the proprietors have an interest in common, in proportion to their respective shares. But, if one willfully intermixes his money, corn or hay. with that of another man, without his approba- tion or knowledge, or casts gold in like manner into another's melting-pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for w^hat he has so improvidently lost. But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavored to be rendered uncertain, without his own consent."" The rule applies only to wrongful or fraudulent mixtures. But where there is an intentional intermingling, and yet no wrong intended, as where a man mixes two articles together supposing both to be his own, or where he intends to mix, by agreement, two parcels belonging to two different persons, and makes a mistake — substituting another's goods for the one intended — it would be unreasonable that he should lose his own. In such a case, if the quantity and quality was equal, there would be no difficulty in determining the rights; but if unequal, it would be more difficult. "And if the inter- mixture is such as to destroy the whole, the loss should fall on him whose carelessness or folly or misfortune, caused the destruction of the whole." " But by the Spanish law, which obtained formerly in Cali- fornia (1852), the mixture of gold dust did not destroy the individual ownership, whether the mixture was by accident or " 2 Black. Com., 405. See, also, Bac. Ab. Tit. Trespass; 2 Kent's Com., 436, 767; Stephenson v. Little, 10 Mich., 433. =3 Rider v. Hathaway, 21 Pick., 298; Col will v. Reeves, 2 Camp., 575. TKOYER AND COKYERSION. 655 Exemplary Damages for Conversion. design. If inseparably mixed, each owner was interested, jpvo tanto?^ § 821. Exemplary Damages for Conversion.— It was originally held that exemplary damages could not be recov- ered in trover, for the tortious taking;" that if damages, for the tortious manner of the taking were claimed, the action should be trespass. If a party elected to bring trover, it was considered that he waived his damages for the tortious taking, although it seems Lord Mansfield entertained a contrary opinion.''' In Pennsylvania it seems to be now settled, that in this action, the willfullness and malice of the party in taking tlie converted goods, may be inquired into, and where these are shown, damages are not necessarily limited to mere compen- sation." And in Indiana, in Pribble v. Kent, which was an action for the conversion of corn, the court after saying its value would seem to be the natural measure of damages, intimates that perhaps circumstances might justify the infliction of more.''* And there are authorities in this country, as well as in Eng- land, in favor of allowing consequential damages, such as losses or expenses caused by the conversion or resulting from the wrongful act, if the pleadings warrant it." ==4 Goodenow v. Snyder, 3 G. Green (la.), 699. »s Bac. Ab. Trover, A. 3. ^ Fisher v. Prince, 3 Burrow, 1363 (1762). =7 Dennis v. Barber, 6 S. & R., 420; Berry v. Vantries, 12 S. & R., 89; Neiler V. Kelly, 69 Pa. St., 403; Backenstoss v. Stabler, 33 Pa. St., 251. See also, Baker v. Wheeler, 8 Wend., 505; Whitehouse v. Atkinson, 3 C. & P., 344. =8 Pribble v. Kent, 10 Ind., 325. See also, Jones v. Rahilly, 16 Minn., 320, from vt^bich it may be inferred that exemplary damages may be proper where there is a wrongful taking. =9 2 Pars, on Con., 476; Suydam v. Jenkins, 3 Sandf., 614; Davis v. Oswell, 7 C. & P., 804; Bodley v. Reynolds, 8 Q. B., 779; 10 Jur., 310; Rog- ers V. Spence, 13 M. & W., 571; Shotwell v. Wendover, 1 Johns., 65. But see Brizsee v. Maybee, 21 Wend., 144. 656 THE LAW OF DAMAGES. Where Interest is Qualified or Limited— Conversion of Notes, etc. § 822. Where the Interest is Qualified or Limited.— "Where the defendant has a lien on the property, to secure a debt, the amount of the lien should be deducted from the value of the property, in case of a suit by the owner for a conversion.'" But if the plaintiff has a lien, and is responsible over to a third party, or if the defendant is not entitled to the balance of the value of the propert}^ subject to the lien, the plaintiff is entitled to recover the w^iole value.'" If the plaintiff has only a lien on the property, and the defendant is the owner subject only to the lien, the plaintiff should only recover the amount of his claim; but as against a stranger, if he had possession or the legal title for the pur- poses of his lien, as where he has a chattel mortgage on the same, he should recover its full value.'" § 823. Conversion of Notes or other Choses in Action. — The damages for the conversion of a note or other chose in action, would be the same as in trespass, viz: the amount frhna facie due on its face.'' Where the holder of a promissory note, received as collat- eral security therefor from the maker a bank certificate of deposit, which, without the consent of the maker, he surren- dered to the parties who executed it, and received from them 3" Green V. Farmer. 4 Burr., 2214; Chamberlain v. Shaw, 18 Pick., 283; Fowler v. Gillman, 13 Met., 267; NeUer v. Kelly, 69 Pa. St., 403; Outcault V Durling, 25 N. J. L., 443. 3' Chamberlain v. Shaw, 18 Pick., 278. See also, Angier v. Taunton, etc. Co., 1 Gray, 621; Hyde v. Cookson, 21 Baxb., 92; 2 Gr. Ev., § 649. See also, ante, § 364. 32 As to when be is limited in the recovery to the amount of his claim, see Hayes v. Riddle, I Sandf., 248; Ingersol v. VanBokelin, 7 Cow., 670; Spoor V. Holland, 8 Wend., 445; Lloyd v. Godwin, 12 Smedes & M., 223; Strong V. Strong, 6 Ala., 345. As to the right to recover the whole amount against a stranger, see White v. Webb, 15 Conn., 302; Lyle v. Barker, 5 Binney, 457; Schley v Lyon, 6 Geo., 530. 33 Mencer v Jones, 3 Camp., 477; Latham v. Brown, 16 la., 118; Mayne on Dam., 210. But the defendant may show that the same or any part of the amount has been paid, or that the obligation is worth less than its face, Id. See also, ante, § 228; Booth v. Powers, 56 N. Y., 22. TROYER AND CONYERSION'. 657 Conversion of Notes and other Choses in Action. instead, their promissory note and a mortgage to secure the same; in an action on the original note against the maker it was held, that the action of the holder in surrendering with- out the consent of the maker, the certificate of deposit given by the latter as collateral, and the taking instead thereof the note of the maker of such certificate, amounted to a conver- sion of the collateral by the holder, and that he should account to the maker for the full nominal amount thereof, although it was shown that the banker executing the certificate of deposit, had suspended payment at the time of the receipt thereof.'* So, where the defendant purchased and collected a promis- sory note with notice of the plaintiff's right thereto, it was held, that the defendant was guilty of a conversion thereof, and liable for the amount collected thereon.'* 34 Greenwald v. Metcalf, Graham & Co., 28 la., 363. 35 Allison & Crane v. King, 25 la., 56. See also, Alsager v. Close, 10 M. & W., 576; McLeod v. McGhin, 2 M. & G., 326; Mercer v. Jones, 3 Camp., 477; Decker v. Mathews, 2 Kern. (N. Y.). 313; Baltimore v. Norman, 5 East., 420; Wheelwright V. Depeyster, 1 Johns., 471; Hunt v. Daniels, 15 la., 146; Robinson v. Hurley, 11 la., 410. 42 658 THE LAW OF DAMAGES. General Principles— Damages. OHAPTEE XXXIT. EEPLEYIN. Section 825. General Principles— Damages. 826. Measure of Damages. 828. Time of Valuation. 829. "Where the Defendant Succeeds. 830. Exemplary Damages. 831. Detention, and Deterioration in the hands of the Plaintiff. 832. Property Lost or Destroyed. 833. Special Damages by the Plaintiff. 834. Special Damages by the Defendant. 835. "Where the Defendant has Enhanced the Value of the Prop- erty. 836. Vindictive Damages where the Proceedings are Malicious or "Willfully "Wrong. 837. Extent of Interest. 838. Mitigation. § 825. General Principles— Damages. — We have seen that by the earlier doctrines of the common law, trespass was the proper form of action for the recovery of special damages for the tortious taking of goods, and that in trover for the value of goods converted, such damages could not be recovered. The action of replevin is now generally used for the purpose Dot only of recovering specific personal property, "wrongfully taken or detained, but damages for the unlawful taking or detention and the value of the goods if they are not restored to the plaintiff on the -writ. The writ usually issues to the EEPLEYIN. 659 Measure of Damages. proper officer onlj after a bond has been given bj the plaintiff conditioned to return the property if on the trial the property is adjudged to be returned, and for the payment of all costs and damages tliat may be adjudged against the plaintiff by reason of the wrongful suing out of the writ. If the plaintiff establishes his right to the property on the trial, and it is restored to him on the writ, he can generally recover damages, only for the value of the use of the property during the detention, and any depreciation of its value while in the hands of the defendant.' But he cannot recover for any depreciation of its value after the goods were restored to him by virtue of the writ, as he would then have absolute control of the same, and could dispose of it at any time and convert it into money; the bond which he gives being the defendant's security for the value of the property, in case of the plaintiff's failure to establish his right thereto, and failure to return the same.' § 826. Measure of Damages.— If the plaintiff fails to recover the property, but succeeds in the action, the measure of damages is the same as in the action of trover.' The dam- ages being the value, and in addition to which damages may be given for the detention and interest on the value, which is generally a proper element of damages for the detention; but this is not in all cases the limit of damages for the detention." In Morgain v. Baynolds," it was held, that the party entitled ' Rowley v. Gibbs, 14 John., 385; Young v. Willett, 8 Bosw. (N. T.),486; Frazierv. Fredericks, 4 Zabr. (N. J.), 162. = Gordon v. Jenny, 16 Mass., 465. 3 See, ante, § 792, et seq. *■ McGavock v. Chamberlain, 20 111., 219; Walls v. Johnson, 16 Ind., 374. See, also, Houghton v. Rock, 8 Pa. 42; Butler v. Mehrling, 15 111., 488; McGinnis v. Hart, 6 la., 204. s Morgam v. Raynolds, 1 Mont. (Ter.). 163 (1870). The action to recover specific personal property is now usually provided for by statute, and as a remedy combines such as were furnished by the actions of detinue and replevin at common law. 660 THE LAW OF DAMAGES. Time of Valuation, to the property may recover the value of its use, from the day he was deprived of it, to the day of trial, and that interest on its value during the period of detention, was not the limit of damages therefor/ The allowance of interest on damages for torts, as well as on contracts, seems to be the general American rule.* 8 828. Time of Valuation. — The same question fre- quently presents itself in replevin, that we have already refer- red to in treating of conversion, viz: At what time is the value of the property to be taken? It may frequently occur that the plaintiff cannot recover the specific property, in which case judgment for its value is generally, under the various statutes, recoverable. So, also, if the property has been deliv- ered to the plaintiff and the right to the same is determined in favor of the defendant, he may usually have a judgment for its value, or a conditional judgment for a return of the property or its value; and in case of a failure or the impossi- bility to recover it, as where it has been destroyed, or sold by the plaintiff^ a judgment for its value should be given. And the question in either case would be, at what time the prop- erty thus wrongfully withheld should be valued in assessing damages. As the same principles should govern the damages either in trover or replevin in such cases, the value at the time of the taking or the highest subsequent value to the time of bring- ing suit or the trial of the action, according as the courts may s See, also. Allen v. Fox, 51 N. Y., 562 (1873), where it was held that the value of the use during the detention was a proper item of damages; Clapp V. Walter, 2 Tex., 130; Darbey v. Cassaway, 2 H. & J., 413; Butler v. Mehr- ing, 15 111., 488; McGavock v. Chamberlain, 20 Id., 219. 6 Twinam v. Swart, 4 Lans. (N. Y.), 263; Mayberry v. CUffe, 7 Cald. (Tenn.), 401; Woodbum v. Cogdal, 39 Mo., 222; Kurd v. Gallaher, 14 la.. 394; Mc- NaUy V. Shobe, 22 la., 49; Motte v. Chicago & N. W. R. Co., 27 la., 22, wliich was for the value of property lost; Conway v. Flint, 5 Cal., 327; ante, §324; Chicago, etc. R. Co. v. Shultz, 55 lU., 421; Chapman v. Chicago, etc., R. Co., 26 Wis., 295; Suydam v. Jenkins, 3 Sandf., 614. EEPLEYIK. 661 Where the Defendant Succeeds. hold in case of trover, would undoubtedly prevail/ Thus, in Kansas, if the property cannot be returned, the measure of damages, in analogy to trover, is the value of the property at the time of the conversion;* to which interest should be added.' And where there is no evidence as to the value, at least nom- inal damages should be allowed.'" And in Texas, in an action to recover property in replevin or its value, a valuation by the jury, higher than warranted by the evidence, with the view of inducing a surrender of the property, was sustained." And in California, where the rule of the highest value, gen- erally prevails, as we have seen, the highest market value between the taking of the property and the verdict, was held to be the measure of damao'es.'^ So in those states generally, where the value, in trover, may be estimated at the highest price of the property between the conversion and the commencement of the suit or the trial, the highest value may also, under like circumstances, be recovered in replevin by the plaintiff as damages, in case he succeeds in establishing his right to the property and fails to recover the same in specie.^^ § 829. Where the Defendant Succeeds.— Where the defendant succeeds in the action, he is entitled to a return of 7DeWittv. Morris, 13 Wend., 496. But in a recent case the successful party, in case a return could not be had, was held entitled to its value at the time of trial. New York G. & I. Co. v. Flj-nn, 55 N. Y., 653. 8 Garrett v. Wood, 3 Kans., 231. sBarthol v. Fox, 13 Minn., 501. See, ante, § 826, where authorities are cited, showing interest is generally allowed in such cases. '° Phenix v. Clark, 2 Gibbs (Mich.), 327. And if there is no proof that the damages for the detention are more or less than the interest, the presump- tion is that the damages are the interest during the period of detention. New York G. I. Co. y. Flynn, supra. " Cochran v. Winburn, 13 Tex., 143. « Tully V. Harloe, 35 Cal., 302. But see, ante, § 246j Page v. Fowler, 39 Cal., 412. '3 See, ante, Chap. 33. 662 THE LAW OF DAMAGES. Exemplary Damages— Detention and Deterioration. the property according to the condition of the plaintiff's bond; and in case of a failure to return the same to the defendant he is entitled to the value of the property with damages for the detention, besides interest on the same;'' and generally to exemplary damages, as in case of a conversion, where the tak- ing was willfully wrong, or at least where it was accompanied by circumstances of aggravation." Thus, if the property has increased in value since the seizure, and remains at the time of the trial at a higher point than when seized, this higher value must be allowed the defendant if he obtains a judgment for the same and the property is not returned; but in Ten- nessee, if the increase is temporary, it is left for the jury to determine whether to allow the temporary increase or not." § 830. Exemplary D.am.ages .— The circumstances in such a case, of the taking under color of process, might be quite as aggravating as in cases of trespass de honis asportatisj and whenever exemplary damages would be authorized in trespass, they should also be allowed the defendant under the same circumstances of aggravation in cases of the wrongful taking by process in replevin.'* § 831. Detention and Deterioration. — And where the property wrongfully taken by virtue of a writ of replevin is adjudged to be returned and is returned, the defendant should recover the value of the use of the property during the deten- tion, and any injury to or deterioration thereof during said time, even when said deterioration or decrease in value is not attributable to the fault of the plaintiff in the replevin suit.'^ '3 Rowley v. Gibbs, 14 Jolins., 385; Brizsee v. Maybee, 21 Wend., 144. '-^ See, post, § 836, and authorities cited. '5 Mayberry v. Cliffe, 7 Cold. (Tenn.), 401. The same general principles should be applied in the measure of damages as are apphcable when the plaintiff succeeds in the suit, but fails to secure the specific article. '* Single V. Schneider, 30 Wis., 570. The same general principles in ref- erence to exemplary damages should be here applicable as in case of trespass and trover, for which see ante, § 783 and note, and § 821 and note. '7 Gordon v. Jenny, 16 Mass., 465. EEPLEYIN. 663 Property Lost or Destroyed— Special Damages by the Plaintiff, etc. § 832. Property Lost or Destroyed.— In an action on the plaintiiF's bond, it would be no excuse for him, where he is adjudged to return the property, that the property had been lost or destroyed by unavoidable accident or casualty, as the law will not excuse a wrongdoer from responding in damages, on the ground of some accident by which he has lost the fruits of his wrongdoing. The maxim lex non cogit ad impossihilia, would have no application in such a case.'* In White V. Van Ilouton^" it was held under the provis- ions of the statute of Missouri, that where a suit is prosecuted to judgment, all questions of value, damages and costs, should be determined in the replevin suit, and that if the defendant succeeds, and fails to have his damages assessed, he cannot afterwards recover therefor in a separate action. § 833. Special Damages by the Plaintiff.— The plain- tiff may further recover for damages, as in trover gr trespass, for time and expenses incurred in the pursuit of the property.'''' § 834. Special Damages by the Defendant.— The de- fendant may also recover for such special damages as he may have sustained by virtue of a wrongful taking and detention of the replevied property in the replevin suit. Thus, where machinery in actual use was wrongfull}'' replevied, it was held that the damages the plaintiff was entitled to recover, in case a return of the property was adjudged, might include: 1. Interest on the value of the property. '2. Compensation for the general inconvenience and loss arising from the interruption of his possession. 3. Compensation for the expense, trouble and delay in restoring the property to its original condition." '^Suyclam v. Jenkins, 3 Sandf., 614; 2 Story on Con., 478; Sedg. on Dam., 499, 500. '9 51 Mo.,577. «> Bennett v. Lockwood, 20 Wend., 223. But see, Morris on Rep., 139. See, also, ante, § 781, notes; also, ante, § 796, and notes. =» Stevens v. Tuite, 104 Mass., 328. See, also, Stevenson v. Smith, 28Cal., 102. But some doubts have been expressed in New York on this subject. Brizsee v.Maybee, 21 Wend., 144. But see, McDonald v. North, 47 Barb., 530. 664: THE LAW OF DAMAGES. Where the Defendant has Enhanced the Value of the Property. So, in actions of replevin where the controversy relates to articles of peculiar value, pretium affectlonis, the measure of damages on a failure to recover the specific article would of course be the same as we have indicated in treating of con- version.^' § 835. Where the Defendant has Enhanced the Value of the Property.— It is said that where a return of the prop- erty to the defendant in the replevin suit is adjudged, and the original value has been increased through the labor of the plaintiff, made in good faith, and where the taking was bona fide, the measure of the defendant's recovery does not usually include the value of the property as increased in value by the plaintiff.'' But the general rule is otherwise. And if the property has been taken from the defendant in the replevin suit, and he has been adjudged entitled to it, the general rule is, that he, is entitled to its value at the time of the judgment for the return." The amount of damages may depend on the question of the motives of the wrongdoer, and the allowance of the increase in value through his labor, may depend on the question whether the plaintiff acted willfully wrong in suing out the writ. In replevin, to recover lumber which was manufactured by the defendant from logs cut from plaintiff's land by mistake, it was held that the measure of compensation was the differ- ence between the actual value of the property as improved, less the increase in value from the defendant's labor.'" 23 See, ante, § 817, and authorities cited. =4 Mann v. Grove, 4 Hask. (Ten.), 403 (1870); Holmes v. Godwin, 69 N. C, 467; Single v. Schneider, 30 Wis., 570; 24 Id., 299; Hungerford v. Red- ford, 29 Id., 345; Herdic v. Young, 55 Pa. St., 176. ^5 Tuck V. Moses, 58 Me., 461 (1870); Mann v. Grove, 4 Hask. (Tenn.), 403 (1870); Holmes v. Godwin, 69 N. C , 467. See, also, Mayberry v. Cliffe, 7 Cold. (Tenn.), 401, where it is held, that if the property has fluctuated in value, it is a matter for the jury. ^ Single V. Schneider, 80 Wis., 570. See, also, Hungerford v. Redford, 29 Wis., 345; Herdic v. Young, 55 Pa. St., 176. If the property can be REPLEYIN. 665 Vindictive Damages— Extent of Interest. § 836. Vindictive Damages. — It is possible for the whole proceeding in replevin, to be the instigation of malice on the part of the plaintiff, and that the property may be taken under the forms of law, without any just right, and under circumstances even of great aggravation. It is evident that in such cases the defendant in the replevin suit should be allowed the enhanced value, whatever may be the cause thereof, and that on general principles, in the absence of statutory provisions on the subject, he should recover puni- tive damages, as in cases of aggravated trespass." But, it has been held in JSTew York, that where the circumstances did not authorize exemplary damages, the plaintiff could not recover for the value of the property and for its use besides.^" § 837. Extent of Interest. — The measure of damages in this action, like those of trover and trespass, may be affected by the interest of the plaintiff. The general theory is, that a party should recover his actual damages; and if his interest is only a lien as by virtue of an attachment, execution, or mortgage to secure a debt, his right to recover may properly be limited as against the owner to the amount of his claim." And if he has only a limited interest of any kind, such as a right to the temporary possession, his damages should ordina- rily be limited to the damages sustained by the interference identified, and a delivery can be had, the plaintiff, if he succeeds, is enti- tled to it, vrhatever addition of value may have been added to it by the wfongdoer. Weymouth v. Chicago, etc., R. Co., 17 Wis., 550. The doctrine in such a case would be the same as in trover. See, ante, § 818, and authori- ties cited. ^ McDonald v. Scaife, 11 Pa. St., 381; Schofield v. Ferreers, 46 Pa. St., 438; Single V. Schneider, 30 Wis., 570; Mayberry v. Cliffe, 7 Cold. (Tenn.), 401; Sedg. on Dam., 502. 3° Twinam v. Swart, 4 Lans. (N. Y.), 263. It seems that under the statutes of Illinois and Indiana, exemplary damages have been repudiated. Butler V. Mehrhng, 15 111., 488; Hotchkiss v. Jones, 4 Ind., 260. 3' Hayden v. Anderson, 17 la., 158; Warner v. Mathews, 18 111., 83; Rhodes v. Woods, 41 Barb., 471; Fitzhugh v. Wiman, 9 N. Y., 559; Sea-' man v. Luce, 23 Barb., 240; Jennings v. Johnson, 17 Ohio, 154; Noble v Epperly, 6 Ind., 468. 666 THE LAW OF DAMAGES. Mitigation. with that interest." So, where the defendant in the replevin suit succeeds, ^nd sues on the replevin bond for the value of the property, the defendant in this suit cannot show in miti- gation of damages tliat the right to the property was in him- self, but he can show that the plaintiff's title was of short duration, and was terminated soon after the judgment in the former suit. But if the action is against a mere stranger, the rule would be different; and in such a case the plaintiff who holds the property by virtue only of some lien, should recover the full value.'* § 838. Mitigation. — We have already referred to some matters in mitigation of damages. A few other instances will here be noticed : In an action on the replevin bond, it may be shown in miti- gation of damages, that the action of replevin failed, merely because it was prematurely brought." So, in an action on the bond by one of the owners of the property held in common, the value of his interest can only be recovered." And where property has been delivered pending the suit, only nominal damaires can be ffiven, unless for the detention or interest." So the defendant, in an action on the bond, may show in mit- igation of damages, that since the taking by the replevin writ the plaintiff's interest, in whole or in part, has ceased to exist.'* So the plaintiff who fails in the replevin suit may show as a defense, or at least in mitigation of damages, that the defendant's only interest in the property was by a levy imder an execution which has been satisfied.'' 33Hayden v. Anderson, 17 la., 158; Weaver v. Darby, 42 Barb., 411; Hawley v. Warner, 12 la., 42; Cumberland Coal & Iron Co. v. Tilghman, 13 Md., 74. 34 Fallon V. Manning. 35 Mo., 271; Frei v. Vogel, 40 Mo., 149. 3s Davis V. Harding, 3 Allen, 302. 36 Bartlett v. Kidder, 14 Gray, 449. 37 Conroy v. FUnt, 5 Cal., 327. 38 Tuck V. Moses, 58 Me., 461 (1870). 39 Hayden v. Anderson, 17 la., 158; Hawley v. Warner, 12 la., 42; Buck V. Rhodes, 11 la., 348. STATUTOKT PROYISIOES. 667 Private Property taken for Public Purposes— Eminent Domain. CHAPTER XXXY. DAMAGES UNDER STATUTORY PROYISIONS. Section 845. Private Property Taken for Public Purposes— Eminent Domain. 846. Damages. 847. Witnesses— Damages for Failure of. 848. Double and Treble Damages. 849. Statutes Against Setting Fires. 850. Statutes Kequiring Railroad Companies to Pence, etc. 851. Damages under Statutes for Injury Besulting from the Sale of Intoxicating Liquors. § 845. Private Property Taken for Public Pur- poses — Eminent Domain. — Questions relating to damages frequently arise under the local statutes of the various states, and in reference to various matters, the most common of which are those where property is authorized to be taken for public purposes under the right of eminent domain. The constitution of the United States and of the various states of the Union, provide in substance that private prop- erty shall not be taken for public purposes without just com- pensation. And this principle in our American constitutional jurisprudence, is not only based upon natural justice and equity, but seems to be an acknowledged principle among all civilized people.* The taking of private j)roperty for public purposes, occurs » Amend. Const. U. S., Art. 5; Vattel b. 1, Ch. 20, Sec. 244. 668 THE LAW OF DAMAGES. Damages. under statutory provisions, where it is taken for highways, raih'oads, canals, etc., and public works generally; which through the means, energy, and public spirit of our people have been prosecuted with great vigor, as we have witnessed during the last century. § 846. Damages. — The statutes of the states generally make some jjro vision in reference to damages in such cases; such as that in estimating the same no account shall be taken of the benefits conferred by the contemplated improvement for which the land is takeu.^ The general rule is, that the party whose land is taken may recover the market value of the land thus taken, and in the absence of statutory provis- ions no allowance should be made on account of the general advantage which the owner enjoys in common with the public generally, by reason of the public improvement.^ And where damages are assessed for a railroad it should include compen- sation for all actual loss to which the owner will be subject by reason of the proper construction and operation of the road. The proper mode of ascertaining damages for a right of way for a road, across lands, is to determine the market value of the premises before the right is set apart, and then again immediately after, and the difference will be the true measure of damages. Present values and the immediate and necessary consequences of parting with the right conferred, being alone proper to be considered, and future benefits, abuse of privilege, and unwillingness of the owner to part with the right, should be disregarded. The condition in which the premises will be left after the right of way is taken, together ■with the damages assessed, should be equal to the value of 2 Const. Iowa, Art. 1, Sec. 18. 3 Jacob V. City of Louisville, 9 Dana (Ky.), 114; 2 Kent Com., 339 and notes; Israel v. Jewett, 29 la., 475; Fleming v. The Chicago, etc., R, Co., 34 la., 353. STATUTORY PROVISIONS. 669 Damages. the premises immediately before tlie right of way is taken/ Present depreciation and not anticipated injuries is the meas- ure of damages,^ although future exposure to fire may be proper to be considered by a jury in estimating them, as it would tend to reduce the present value/ And when there is a statute providing for the mode of estimating damages in such cases, and prescribing the mode of compensation, this is held to be exclusive of any other remedy/ But if the appropriation is not authorized by the statute it stands in the situation of any other wrong;* and in such a case, where the act complained of was the destruction of a building, the measure of damages, on general principles * Henry v. The Dubuque, etc., R. Co., 2 la., 288; Sater v. Burlington, etc., R. Co., 1 la., 386; Watson v. The Pittsburg, etc., R. Co., 37 Pa. St., 469; Schuylkill Nav. Co. v. Thoburn, 7 S. & R., 411; Deaton v. Polk Co., 9 la., 594; Preston v. Dubuque, etc., R. Co., 11 la., 15, 5 Wilmington, etc., R. Co. v. Stauffer, 60 Pa. St., 374, fi Colville V. Railway, 19 Minn., 283. But in Kentucky it has been held that the plaintiff may recover the actual value of the property to him; Robb V. The Maysville T. Co., 3 Met., 117. See, also, Pottstown Gas Co. v. Mur- phy. 39 Pa. St., 257; Buckwalterv. Blacki-ock Bridge Co.. 38 Pa. St., 281; Dearborn v. The Boston, etc.. R Co., 4 Foster (N. H.), 179; Mt. Washing- ton R. Co. 's Petition, 35 N. H., 134; Minnesota Cent. R. Co., v. McNamara, 13 Minn., 508; Winona, etc., R. Co. v. Waldron, 11 Minn., 515; Fleming v. Chicago, etc., R. Co., 34 la., 353; Deaton v. The County of Polk, 9 la., 594; East Penn. R. Co. v. HottenstiL ■, 47 Pa. St., 28; Searle v. The Lacka- wana.etc, R. Co., 33 Pa. Si., 57: Patten v. The Northern Cent. R. Co.. 33 Pa. St., 426; Dorian v. The East Brandywine, etc., R. Co., 46 Pa. St., 520; Town of Lambertville v. Clevinger, 1 Vroom (N J.), 53; Robinson v. Rob- inson, 1 Dana (Ky.), 162; AmsJeu v. Dubuque, etc., R. Co., 28 la., 542; Tingiey v. City of Providence, 8 R. I., 493; Bangor R. Co., v. McComb, 60 Me., 290; Thompson v. The Grand Gulf R. Co., 3 How. (Miss.), 240; Bonaparte v. The Camden, etc., R. Co., 1 Bald. (C. C. R.l, 205; Stewart v. Ray- nolds R. Co., 7 Smedes & M. (Miss.), 568; Rexford v. Knight. 11 N. Y.. 308; Bloodgood V. Mohawk, etc., R. Co., 18 Wend., 9; Baker v. Johnson, 2 Hill., 342; People v. Hayden, 6 Hdl., 359. 7 Fuller v. Edings, 11 S. C. L. R. (Rich.), 239; The Little Miami R. Co., v. Whitacre, 8 Ohio St., 590. 8 Cortes V. The City of Davenport., 9 la.. 227; Freeland v. The City of Muscatine, 9 la., 461; Beyer v. Tanner, 29 111., 135; Soulard v. St. Louis, 36 Mo., 546; Jamison v. Springfield, 53 Mo., 224 C70 THE LAW OF DAMAGES. Witnesses— Damages for Failure of. applicable to trespasses, was held to be, not the expense of replacing a new building in the place of the old one but of replacing the original building, and allowance for deprivation of the use of the property, caused by the wrong- ful act of the defendant.' And where leased land is taken, the landlord's measure of damages is the value of the rent and the reversion, and the tenant's measure of damages the value of the term subject to the rent.'" But we have already consid- ered this subject in treating of injuries to real property." § 847. Witnesses— Damages for failure of— The stat- utes of the various states generally provide that where a witness duly subpcEnaed to attend a trial, fails so to do without a rea- sonable excuse, he shall forfeit some specified sum, and in addition thereto pay to the party injured all such damages as he may sustain by reason of the failure." In actions against witnesses for damages in such cases, actual damages must be shown. The law does not imply a loss from the failure to attend." lie is responsible for all losses and hindrances to the aggrieved party; and, to recover substantial damages, it is not necessary to show that if the defendant had attended as a witness the plaintiff would have succeeded." The plaintiff may recover the costs fruitlessly incurred, where he omits to go to trial on account of the absence of the witness." So, where the plaintiff is non-suited by reason of the want 9 Ibid. '0 Dyer v. Wightman. 66 Pa. St., 425; Biddle v. Hussman, 23 Mo., 597; Kingslandv. Clark, 24 Mo., 24. " See, ante. % 737, et seq. See, also, ante, §43, et seq., where it is shown that damages cannot be recovered for consequential injuries resulting from the constrTiction of railroads and the taking of lands therefor, and for other pur- poses authorized by law; such being damnum absque injuria. « Iowa Code (1873), Sec, 3675; Wisconsin Rev. (1858), Ch. 137, Sec. 4; Wagner'sStatutesof Missouri (1872), Vol. 2 p. 1375, § 17; Rev. Code, Miss., § 766; Gen. Stat., Mass. (1860), p. 672, § § 4, 5. '3 Conhng v. Coxe, 6 C. B., 703. ' u Yeatman v. Dempsey, 7 C. B. (N. S.), 628; 9 C. B. (N. S.), 881. '5 Needham v. Fraser, 1 C. B., 815; Hurd v. Swan, 4 Denio., 75. STATUTORY PEOYISIONS. 671 Double and Treble Damages. of the testimony of the witness, he would be entitled to recover from the witness his costs and expenses of the suit, without showing that he had a good cause of action in the suit.'* The statutory liability is only an affirmance of the common law lia- bility in such cases, except as to the penalty. § 848. Double and Treble Damages.— Statutes fre- quently provide for double or treble damages in certain cases, as in case of willful trespass, in cutting timber, and the like. The general principles we have considered, applicable to tres- pass quare olausum fregit, v^owXdi of course also apply in such cases. The term willful implies a purpose and an intention of doing the wrong. The animus of the party in such cases, is material to be shown. When the trespass is shown to be willful either the jury should assess the increased damages, as pro- vided by the statute, or actual damages; in which latter case the court should increase the amount as provided by the statute. Tlie practice in different states in such cases seems to vary as to the mode of obtaining the enhanced damages. In some states the jury assess only single damages, which the court increases," whereas in others, the jury find the enhanced damages.'' The mode is perhaps, quite immaterial," but the most usual practice is now to allow the jury to find the increased damages.''" It is evident that the damages thus doubled or trebled, should be only the actual and not exemplary damages, the purpose of the statute being to substitute a certain sum as a penalty for the wrong, in the place of the uncertain one wliich '« Lane v. Cole, 12 Barb., 680; Amey v. Long, 9 East., 472. '7 Gray v. James, 1 Pet., C. 0. R., 394; Evans v. Hettick, 3 Wash., C. C. R., 408; "Wagner's Stat., Mo., 1345; Montague v. Papin, 1 Mo., 757; Lowe v. Harrison, 8 Mo., 350; Dreyer v. Myng, 23 Mo., 434. '8 Welch V. Anthony, 16 Pa. St., 254. 's> Quinby v. Carter, 20 Me., 218; Warren v. Doolittle, 5 Cow., 678. " Cross V. The U. S., 1 GaUison, 26. 672 THE LAW OF DAMAGES. statutes Against Setting Out Fires. it is claimed bj some authorities the common law furnishes, bj allowing a jury in such cases to give exemplary or puni- tive damages." § 849. Statutes Against Setting out Fires.— There are usually many other statutory provisions in the various states, prohibiting or requiring certain acts, but omitting to provide for or prescribe damages in case of a foilure to comply with the provisions of the statute. In such cases the general prin- ciples of the law of damages, which we have already considered, will furnish a sufficient guide. Thus in Iowa, the statute provides that: "If any person willfully, or without using proper caution, set fire to and burn or cause to be burnt, any prairie or timber land, by which the property of another is injured or destroyed, he shall be fined not exceeding five hundred dollars, or imprisoned in the county jail not more than one year, or by both fine and imprison- ment, in the discretion of the court. -x- * * jf ^ny person set fire to or burn, or cause to be burned, any prairie or timber land and allow such fire to escape from his control, between the first day of September in any year and the first day of May following, he shall be deemed guilty of a misde- meanor, and upon conviction thereof shall be punished by imprisonment in the county jail not more than thirty days, or by a fine not exceeding one hundred dollars." '^" In a recent case in that state it was held, that whoever sets out fire between the first day of September and the first of May following, is absolutely liable for all damages caused by its escape, regard- less of the question of diligence." *' This is the doctrine held in relation to the treble damages which the court may give under the Acts of Congress for infringements of patents. See, ante, § 716. « Code of Iowa (1873), § § 3889 and 3890. See, also, Wagner's Mo. St., 638 (1872). =3 Conn V. May, 36 la., 241. The statute of Connecticut provides: " Every person who shall set fire, on any land, that shall run upon the land of any STATUTORY PEOYISIONS. 673 statutes Against Setting Out Fires. On general principles, where a person who, either wi'ong- fullj or without ordinary care, sets fire to his own or another's land, he is responsible for all the proximate consequences of his wrongful or negligent act. But where the fire is lawfully set out, it devolves on the plaintiif to show a want of ordinary care." other person, shall pay to the owner all damages done by such fire, to be recovered in an action of trespass.'' Conn. Rev. Stat. (1866), 84, §365; construed in Ayer v. Starkey, 30 Conn., 304. A statute of North Carolina provides : "No person shall set fire to any woods, except it be his own property; nor in that case, without giving notice in writing to all persons owning lands adjoining to the wood lands intended to be fired, at least two days before the firing of such woods, and also taking effectual care to extinguish such fire before it shall reach any vacant or pat- ented lands near to or adjoining the lands so fired." N. C. Rev. Code (1855), 115. Ch. 16, § 1. A person who willfully fires woods upon his land is liable, under this statute, for injuries caused to an adjoining owner, unless he has given him the notice required by the statute. But this notice may be waived by the adjoming owner. Robertson v. Kerby, 7 Jones (N. C. L.). 477. And it does not apply to a firing of log-heaps, or trash collected on the land of the party firing the same, but only to woods actually gro^\■ing on his soil . Averitt V. Murrell, 4 Jones (N. C. L.), 322. The statutes of Illinois provide: "If any person shall at any time here- after, willfully and intentionally, or negligently and carelessly set on fire, or cause to be set on fire, any woods, prairies, or other ground whatsoever, in the inhabited parts of tliis state, every person so offending shall, on convic- tion, be fined in any sum not less than five dollars nor more than one hun- dred dollars. Provided, that this section shall not extend to any person who shall set on fire any woods or prairie adjoining his or her own farm, plan- tation, or enclosure, for the necessary preservation thereof from accident by fire, between the first day of March and the last day of November, by giving to his or her neighbors two days' notice of such intention. Provided also, that this section shall not be construed to take away any civil remedy which any person may be entitled to, for any injury which may be done or received in consequence of such firing." 2 111. Gen. Stat. (1858), 402, § 158. Under this statute it has been held, that the burden of proving that the fire set was within the exception is on the defendant, and the general principles of the common law are recognized; namely, that the defendant must use every reasonable means to prevent injury to others from the fire. Johnson v. Bar- ber, 5 Gilm., 425; Burton v. McClellan, 2 Scam., 434. =4 Jordan v, Lasseter, 6 Jones (N. C. L.), 130; Finley v. I angston, 12 Mo., 120; Shear. & Red. on Neg., § § 329, 330. 43 G74 THE LAW OF DAMAGES. statutes Requiring Railroad Compauies to Fence their Tracks. § 850. Statutes Requiring Railroad Companies to Fence their Tracks.— A railroad company, in the absence of any provision in its charter, or of positive statutory provisions on the sul)ject, is not bound to fence its track." But this is frequently required either by the terms of the charter or by statute." A statute, requiring railroad companies to fence against "cattle horses, sheep, and hogs," is held to be a reme- dial statute and will be liberally construed, so as to include "asses" and "mules" in the term "cattle."" And a pro- vision of this kind binds railroad companies previously char- tered." Such provisions are intended not merely for the protection of the owners of cattle and other live stock, but are in the nature of a police regulation and designed also to pro- mote the security of persons and property passing over the road.'" So under the provisions of a statute making railroad compa- nies liable for damages to " live stock running at large," by reason of the failure of the company to properly fence the road, the company is liable in damages for the killing of sheep w^hich have strayed upon the track owing to a defective fence erected by the company." But where the railroad company inclose their track with a sufficient fence, but a casual breach in the fence occurs without the knowledge or fault of the company, they will not be liable for damages resulting there- from unless they have had a reasonable time to discover and repair such breach, or a reasonable notice thereof, and have failed within a reasonable time to repair the same before the 'sMempliis, etc., R. Co. v. Orr, 43 Miss., 279; Gormon v. Pacific R. Co., 26 Mo., 441. ^lowa Code, 1873; Wagner's Mo. St., 310. ^ Ohio, etc., R. Co. v. Brubaker, 47 lU., 462; Toledo, etc., R. Co. v. Cole, 50 111., 184. ^ Sawyer v. Vermont, etc., R. Co., 105 Mass., 196. =9 JeffersonviUe, etc., R. Co. v. Nichols, 30 Ind., 321. soHinman v. Chicago, etc., R. Co., 28 la., 491. STATUTORY PROVISIONS. 675 Damages for Injury Resulting from Sale of Intoxicating Liquors. injury occurred in consequence thereof, provided tliej were not* owinof to a want of due care on their part at the time of the injury." The absolute neglect of a railroad company to fence its road as required by a statute, would make it liable for all damages resulting in consequence of the neglect, either to the person or property of another." The measure of damages would be the same as is applicable generally in cases of torts, that is, actual compensation, except in cases where exemplary damages are proper. It should be observed, however, that by statute in such cases it is frequently provided, that in case the company fail to pay damages, caused by injury to cattle through the failure of the company to fence its road, they may be requred to pay additional damages as a penalty. § 851. Damages under Statutes Providing for In- jury Resulting from the Sale of Intoxicating Liquor. — It is provided by statute in various states, that a wife, child, parent, guardian, employer, or other person, who shall be injured in person, property or means of support, by any intoxi- cated person, or in consequence of intoxication, habitual or otherwise, of any person, shall have a right of action against any person who shall by selling intoxicating liquors, cause the intoxication of such person; and that such party may recover not only for the actual damage thereby sustained, but also exemplary damages." 3' 111. Cent. R. Co. v. Swarengen, 47 111., 206; lU. Cent. R. Co. v. Arnold, 47 111., 173; Lemmon v. The Chicago, etc., R. Co., 32* la., 151; Aylesworth, V. Chicago, R. 1. R. Co., 30 la., 459. 3^ Davis V. Burlington, etc., R. Co., 26 la., 549; Indianapolis, ete., R. Co. v. Warner, 35 Ind., 515. And this liability would exist without reference to the question of fault or negligence on the part of either party. Jefferson- ville, etc., R. Co. v. Ross, 37 Ind., 545, citing many cases in that State. 33 Code of Iowa (1873), § 1557; N. Y. Stat, at Large (J. W. Edmonds), Vol. 4, p. 54, § 28. but this contains no express provision for exemplaiy damages; Rev. Stat. 111. (1874), 439, § 9; Rev. Stat. Maine (1871), p. 304, § 32; Rev. Stat. Ohio (S. & C), p. 1432, § 7. The Statute of Illinois provides: "Every husband, wife, child, parent. 67G THE LAW OF DAMAGES. Damages for Injury Resulting from Sale of Intoxicating Liquors. Under tlie Iowa statute it is held, that where the wife is injured in her means of support by reason of a sale of intoxi- cating liquors to her husband, it is no defense to an action by her therefor, that a part of the liquors causing the intoxication were sold by others; that the seller is liable if he contributed to the intoxication; and that this liability exists irrespective of the conduct of the husband previous to such sale." And the wife may recover, in an action for injury to property, in consequence of a sale of liquor to her husband, the damages sustained by a sale of her chattels by him.'* Ill Ohio it has beon held, that if the action is for an injury to the "person" of the plaintiff, it must bo shown that the plaintitf received some })hysical injury from the intoxicated person. But if the action is for an injury to the "means of support," the damages are not limited to the immediate results of the drunkenness, but may include sickness and insanity, caused by the intoxication; and in all cases where the plaintiff shows a right to recover, the jury may allow exemplary dam- ages, without any proof of actual malice or aggravating cir- cumstances." guardian, employer or other person, who shall be injured in person or prop- erty or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise of any person, shall have a right of action in his or her own name, severally or jointly against any pei-son or persons who shall, by selling or giving intoxicating liquors, have caused the intoxica- tion, in whole or in part, of such person or persons; and any one owning, renting, leasing or permitting the occupation of any building or i)remises, and having knowledge that intoxicating liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any intoxicating liquors, that have caused in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons so selling or giving intoxicating liquors, for all damages sustained and for exemplary damages." This statute is substantially the same in its provisions as the Iowa and Ohio statutes, relating to this subject. Woolheather v. Risley, 38 la., 486. See, also, Mulford v. Clewell, 21 Ohio St., 191. 34 Mulford V. Clewell, supra. 35 Schneider v. Hozier, 21 Ohio St., 98, STATUTOEY PEOVISIONS. 677 Damages for Injury Kesulting from Sale of Intoxicating Liquors. In a recent case in Iowa it was held, that where various parties had sold intoxicating liquors to the husband, at differ- ent times, and the wife had sustained damages thereby, they were not jointly liable. But the court remarked: "we are not to be understood as denying a joint liability in cases where the successive sales by several, have produced a particular in- toxication, from which the injury sued for has resulted.'"^ And where the statute of New Hampshire provided that: "Whenever any person in a state of intoxication, shall commit any injury upon the person or property of any other individual, any person who by himself, his clerk or servant shall have unlawfully sold or furnished any part of the liquor, causing such intoxication, shall be liable to the party injured for all damages occasioned by the injury so done, to be recovered in the same form of action as such intoxicated person would be liable to, and both such parties may be joined in the same action;" it was held, in an action under said statute, that it might be maintained against four persons who separately sold intoxicating liquors to a person who committed the assault 3* La France v. Krager, Supreme Court Iowa, Dec. Term, 1875, to be pub- lished in 42 Iowa. In a recent case in Iowa, Day, J., remarks: "If a dozen saloon keepers should each sell a drink of whiskey to a pai-ty, from the combined effect of which he should become intoxicated and should beat another or destroy his property, the law has no means of determining the exact amount of the injury which is chargable to each. Under such circumstances we have no doubt they are joint wrongdoers, and that each is liable for the injury done by all. They could aU be sued together, or one, or any number of them separately. But there could be but one satisfaction for the injury." Kearney v. Fitz- gerald, June Term, 1876. (Sup. Ct. la.) See, also, as to construction of the Iowa statute, Jewett v. Wansura. Id. In Engleken v. Hilger, the Supreme Court of Iowa recently applied the doctrine of contributory injury to the case of a claim for injuries received by a wife from the intoxication of her husband. The court say: "The question for determination is, can a wife recover damages caused by her intoxicated husband, to whose intoxication she directly contributed? * * * We are of the opinion that she cannot." Opinion by Seevers, C. J., June T., 1876. 678 THE LAW OF DAMAGES. Damages for Injury Resulting from Sale of Intoxicating Liquors. and battery, for which the action was brought, while in a state of intoxication produced by the liquor so furnished. The court say: "The doctrine that all who abet or participate in a wrongful act may be proceeded against jointly as princi- pals, is -elementary. No reason is seen why it does not cover the case of different persons selling liquors to one who commits a trespass while in a state of intoxication produced by all the liquor so furnished. One seller is as much responsible as an- other, and all have participated in the wrong."" 37 Badge v. Hughs, 53 N. H., 617. NOMINAL DAMAGES. 679 Wrongful Acts Import Damages. OEEAPTEE XXXYI. NOMINAL DAMAGES. Section 860. "Wrongful Acts Import Damages. 861. Instances. 862. The Maxim de Minimis non Curat Lex, Considered. § 860. Wrongful Acts Import Damages.— There is no right without a remedy; uhi jus^ ibi remedium, is an ancient maxim of the law. Therefore, whenever an injury is done to the legal rights of another, or whenever a person is damaged in any manner by the misfeasance, nonfeasance or malfeasance of another, the injured party has a remedy for the damages sustained. And whenever such an injury is sustained, the law implies damages, although there may be no proof of actual damages, and a party thus injured is entitled to at least nominal damages, which may be any small sum, as five cents. "Every injury imports a damage;'" and Justice Story says: " We are of opinion that where the law gives an action for a particular act, the doing of that act imports of itself a damage to the party. Every violation of a right imports some damage, and if none other be proved the law allows nominal damages.' Thus, if a man strikes another in anger, however lightly, or ' Ld. Holt in Ashby v. "White, 1 Salk., 19. See, also, Fullman v. Steams, 30 Vt., 443, where it is held, that every violation of aright imports some damage; and if none other be proved, the law allows nominal damages. » Whittemore v. Cutter, 1 GaU., 429; Paul v. Sloson, 22 Vt., 231. 680 THE LAW OF DAMAGES. Wrongful Acts Import Damages. knocks off liis hat, or uses words slanderous per se in reference to him, or trespasses bj entering his fields, or overflowing his lands, the law will imply damages without any proof of the same, and the injured party will be entitled to sufficient dama- ges to carry costs, if it be no more than one cent.'" And where water is wrongfully diverted from a mill-pond, or where it is wrongfully caused to overflow lands, the injured party should recover without proof of damages; and even where the injury is so small that it cannot be estimated, still the injured party is entitled to at least nominal damages.* So, in a suit for a breach of the covenant against incumbrances, a party who has neither been evicted nor removed incumbrances, is entitled to nominal damages. And in a suit on a contract to pay debts and indemnify the debtor against the same, there is a breach immediately upon the omission to pay any debt when it falls due, and the plaintifi" would be entitled to nominal damages.'' And where the plaintiff in a suit for services proves servi- ces rendered, but omits to prove the value of those services, he is entitled to a nominal sura at least.' So, a party is enti- tled to nominal damages where there is any infringement of his rights, and especially where a continuance of the wrong might result in an easement or incumbrance on land.' And in an action for use and occupation of premises, and where there is 23 roof of the use and occupation and no proof of value, or in an action fora breach of a covenant of seizin and warranty by a pur- 3 Whipple V. Cumberland Manf. Co., 2 Story, 661; Browner v. Davis, 15 Cal., 1; Devendorf V. Werf, 42 Barb. (N. Y.), 228; Bond v. Hilton, 2 Jones (N. C), 149; Champion v. Vincent. 20 Tex., 811. 4 Monroe v. Stickney, 48 Me., 462; Monroe v. Gates, 48 Id., 463; Stowell V. Lonsolu, 11 Gray. (Mass.), 4:34; Cory v. Silcox, 6 Ind., 39; Wright v, Stowe, 4 Jones (N. C. L.), 516; Little v. Stamback. 63 N. C, 285. s Copeland v. Copeland, 30 Me., 446; Dye v. Mann, 10 Mich,, 291. See, also. Collier v. Gamble, 10 Mo., 467. « Owen V. O'Reilly, 20 Mo., 603. 7 Bassett v. Salsberry Manf. Co., 8 N. H., Fost., 488. NOMINAL DAMAGES. 681 Instances— The Maxim De Minimis non Curat Lex, Considered. cliaser who acquired possession under his vendor's deed, and has not been evicted, the plaintiff can still recover nominal dama- ges.' And nominal damages at least should be recovered for a breach of an agreement to withdraw a suit without proof of actual damages;' for neglect of duty of a common carrier whereby an injury is sustained, without proof of special dama- ges;" for a breach of covenants of title in a deed where there has been no eviction;" for a breach of an agreement, or for any injury done to another, but no proof furnished of the amount of damages." If the plaintiff has sustained some damage, but the jury are unable to ascertain the amount, he should have a verdict for nominal damages." § 861. Instances.— Where no actual damages were shown to have resulted to the plaintiff from a breach of a contract to locate a certain land certificate, it was held, that he should recover only nominal damages.'* So, where the defendant wa-ongtully co-operated to tear down an old mill, which was in such a condition that the profits of the same could not exceed the repairs, and erected a valuable one in its place, it was held in an action of trespass therefor, that although there was a technical trespass by the defendant, the plaintiff could only recover nominal damages.'* § 862. The Maxim De Minimis non Curat Lex, Consid- ered. — There are cases, however, of such trifling injury that 8 Smith V. Huizar, 25 Tex., 205; Noonan v. Usley, 22 Wis.. 27; Mecklain V. Blake, 22 Id., 495. 9 Hogan V. Riley, 13 Gray (Mass.), 515. 1° Southern R. Co. v. Kendrick, 40 Miss., 374. " Mosely v. Hunter, 15 Mo., 322. i^ Brown V. Emerson, 18 Mo., 103; Clinton v. Mercer, 3 Murphy (N. C), 119. 13 Freize v. Thompson, 1 Taunt., 121. And where there was a breach of contract, but no substantial damages shown, and a verdict for no m inal damages, and the matter in dispute was small, the court refused to set aside the verdict. Nichol v. Bostwick, 28 L. J. Exch., 4. '4 Moore v. Anderson, 30 Texas, 224. '5 Jewett V. Whitney, 43 Me., 242. See, also, French v. Bent, 43 N. H., 448. 682 THE LAW OF DAMAGES. The Maxim De Minimis non Curat Lex, Considered. no action at law can be maintained therefor. The law will afford no encouragement to useless and malicious litigation. It regards not mere trifles, De minimis non curat lex, is the familiar maxim. Mr. Broome in his valuable work on Legal Maxims, re- marks: "There are some injuries of so small and little considera- tion in the law that no action will lie for them; for instance, in respect to the payment of tithes, the principle which may be extracted from the cases appears to be, that for small quan- tities of corn, involuntarily left in the process of raking, tithe shall not be payable unless there be any particular fraud, or intention to deprive the parson of his full right."" So, where an officer who had attached a quantity of hay and grain made use of a pitchfork belonging to the debtor in removing the same, and when he had completed the removal left it where he found it and where it was received by the debtor, and it was in no way injured by the use; it was held, that the officer was not liable for such use of the fork." And where the action was for an escape on mesne process, but the prisoner had returned to the custody of the sheriff and no actual damage had been sustained, it was held, that not even nominal dama- ges could be recovered.'* '^ Broom's Legal Maxinxs, 143. '7 Paul V. Sloson, 22 Vt., 231. But see, Fullam v. Steams, 30 Vt., where the maxim de minimis non curat lex, was held to have no application to a ■wrongful and positive invasion of property. i8 Williams v. Mostyn, 4 M. & W., 144. See, also, Young v. Spencer, 10 B. &C., 145; 21E. C. L., 47. SETTING ASIDE YERDICTS. 683 When the Power Exercised. CHAPTER XXXYII. SETTING ASIDE YEEDICTS. Section 873. "When the Power Exercised. 874. Instances where Refused. 878. Instances where Verdicts have been set Aside. 881. Verdicts in case of Criminal Conversation. 882. Reducing Verdicts— Excessive Damages. 884. "When a Remittitur will not Avail. 885. Excessive Verdicts in other Cases. 886. Setting Aside Verdicts for Inadequate Damages. 888. "When Courts Will Not Set Aside Verdicts for Inadequacy. § 873. When the Power Exercised.— The question whether the verdict of a jury should be set aside as excessive or inadequate, is frequently presented to the court before which the case is tried, as well as the appellate court, and some consideration of the subject seems to be here demanded. It may be remarked, that courts seldom exercise this power where the amount depends upon a question of fact, or is un- liquidated, even where the jury have not, in the opinion of the court, determined the case as it should have been on the facts; and especially where there is conflicting or contradictory evidence.' The reluctance of courts to interfere with the findings of » Newton V. Price, 41 Geo., 186; Holland v. Brooks, 40 Geo., 94. See, also, 1 Graham & W. on New Trials, 409, et seq. Courts are inclined to uphold the reasonable verdicts of juries where punitive damages are proper 684 THE LAW OF DAMAGES. "When the Power Exercised. juries on the facts, where there have been no errors of law, is illustrated by a recent case in Pennsylvania. In a suit by the husband for the death of his wife, who was killed through a collision with a railroad train, it apj)eared that the plaintiff and his wife were riding in a market w^agon down a graded slope of more than a quarter of a mile in plain view of the defendant's train for a long distance, and the court had no doubt, from the circumstances of the case, that the injury happened from either the plaintiff's misfortune or fault, yet as the case had been given to the jury without any error in law, the court affirmed a verdict of $9,150 for the plaintiff." The power of the court to set aside verdicts, and grant new ' trials, should be exercised only where it is apparent, from the amount of the verdict or otherwise, that the jury were influ- enced by passion, prejudice, corruption, or an evident mistake of the law or the facts, or that there was a palpable error in comi)utation.' This doctrine is well expressed by Justice Wilde, who remarks: "In all cases where there is no rule of law regulating the assessment of damages and the amount and have been awarded, Beale V. Railway Co., 1 Dill. (U. S. C. C), 668, (1871). Courts wiU more readily grant a new trial where the question in- volved is a mixed question of law and fact, or where the facts are so blended with the law, and the law and the facts are so dependent upon each other, that it is difficult to separate them, as in cases of negligence, and especially in cases of constructive fraud, Littlefield v. City of Norwich, 40 Conn., 406, (1873). See, also, Derwort v. Loomer, 21 Conn., 245. And a large discre- tion is given to the trial court in passing on the question. Sherman v. Mitchell, 46 Cal., 576 (1873). Even strong preponderating evidence against the verdict is not sufficient ground to set aside a verdict, unless it is so man- ifestly against the weight of evidence as to show it to have been the result of passion or prejudice. Koester v. City of Ottumwa, 34 la.. 41. See, also, to the same effect, Garretty v. Brazell, 34 Id., 100; Rice v. Sims, 8 Rich., 416; Clappv. Hudson & C. R. Co., 19 Barb., 461. See, also, Mayne on Dam., 555. » Penn. R. Co. v. Goodman, 62 Pa. St., 329. See, also, Adams v. The Mid. R. Co., 31 L. J. R. N. S. Exch., 35 (1861). 3 Elsworth v. Central R. Co., 34 N. J. L., 93 (1870); Paulmier v. Erie R. Co., 34 N. J. L., 151 (1870); Ford v. Ward, 26 Ark., 360; Pittsburgh R. Co. V. Hennigh, 39 Ind., 509; Chenowith v Hicks, 5 Ind., 224; Spencer v. Mc- SETTING ASIDE YERDICTS. 685 When the Power Exercised. does not depend upon 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 views of the merits of the case."* But when the verdict of the jury is so flagrantly Master, 16 111., 405; Oldfield v. The N. Y. & H. R. R. Co., 3 E. D. S. (N. Y.), 10.3; Patten v. Thompson, 22 Barb., 87; McGehee v. Shafer, 9 Tex., 20; Woodson V. Scott, 20 Mo., 272; Bartle v. Merritt, 20 Mo., 567; Wells v. Sawyer, 21 Mo.. 354; Sexton v. Brock, 15 Ark. (Barb.), 345; Pleasant v. Heard, 15 Ark., 403. New trial will be refused when the verdict does not shock one's sense of justice. Creed v. Fisher, 9 Exch., 472; also, 26 Eng. L. E., 384; Letton v. Young, 2 Met. (K. Y.), 558 Chapman v. Dodd. 10 Minn., 350; St. Martin v. Des Noyer, 1 Minn., 156; The City of St. Paul v. Kuby, 8 Minn.. 154; Beaulieu v. Parsons, 2 Minn., 37; Goetz v. Ambs, 27 Mo., 28; Weaver v. Page, 6 Cal.. 681; Alexander v. Thomas, 25 Ind., 268; Scherpf v. SzadeczskT, 4 E. D. S. (N. Y.). 110; Patten v. Chic. & N. W. R. Co., 22 Wis., 615; Greene v. Southern Exp. Co., 41 Geo., 515, where the judgment was set aside; Chic. & N. W. R. Co. v. Jackson, 55 111., 492, where the judgment was set aside; City of Decatur v. Fisher, 53 111., 407, where the verdict was set aside; Davidson v. Pol3meux, 17 L. T. (N. S.), 289; The Terre Haute & C. R. Co. v. Vanatta, 21 III, 188, where a verdict of $1,000 was set aside; Clapp v. The Hud. R. R. Co., 19 Barb. (N. Y.). 461, where a verdict of |6,000 was required to be reduced to $4,000; C. R. I. & P. R. Co. V. Otto, 52 111., 416; C. & A. R. Co. v. Pondrom, 51 lU., 333; Treaner v. Donahue, 9 Cush. (Mass.), 228; Nicholson v. The N. Y. &N. H. R. Co., 22 Conn., 74; Bell v. Morrison, 27 Miss., 68; Lang v. Hopkins, 10 Ga., 37;. Duffield V. Tobin. 20 Ga., 428; Marshal v. Gunter, 6 Rich. (S. C), L.. 419. It is within the province and power of the court, to set aside a verdict, which does not reach a substantially just conclusion ; when there is just ground for the belief that the jury acted through prejudice, passion, mistake, or any other cause, which should not properly control them. Schultz v. Pac, Ins. Co., 14 Fla., 73. In refusing a new trial, where a verdict of £2,000 had been rendered for a malicious prosecution, Lord Mansfield said: "Could any one say, that any rational man of character would for £2,000 put himself in this situation? If not, the damages are not excessive." Hewlett v. Crucliley., 5 Taunt, 277. * Worster v. Proprietors of Canal Bridge, 16 Pick., 575. See, also, Shear- man V. West. Stage Co.. 24 Ta., 515; Gilbert v. Burtenshaw, Cowper, 230; Whipple V. Cumberland Man. Co., 2 Story, 661; Wiggins v. Co£In, 3 Story, 1; Thurston v. Martin, 5 Mason. 197; Kelly v. Sherlock, 1 L. R. (Q. B.), 686, where the court refused to set aside a judgment, on account of the inade- quacy of damages. Or because the damages were more than the court would have given. Chenowith v. Hicks, 5 Ind., 224. C86 THE LAW OF DAMAGES. Instances Where Refused. excessive that the mind at once perceives tliat the verdict is unjust, it should be set aside,* § 874. Instances Where Refused.— In a recent case in Massachusetts, in an action to recover damaji^cs caused by a locomotive, throui^h the negligence of the defendant's agents, and where three verdicts had been successively obtained for the plaintiflf in the sum of $15,000, $18,000 and $22,250 respectively, and the first two had been set aside on tlie defend- ant's motion for mis-instructions to the jury, and an applica- tion to set aside the last one was made on the ground that it was excessive, the court refused to disturb it." So, where the plaintiff obtained a verdict for $5,5^0, for injuries which were permanent and which unfitted him for the business for which he had been reared, or for any laborious employment, and would subject him to physical suffering during life; it was held, that there was not sufficient evidence of partiality, passion or prejudice on the part of the jury to warrant the setting aside of the verdict as excessive.' § 876. And where injuries sustained by the plaintiff, caused by the defendant, a carrier of passengers, were of an exceedingly painful character and of a permanent nature, some of the effects of which would probably continue during and shorten his life, and the plaintiff was in early manhood, and engaged in an extensive and lucrative business as a lawyer, which business was impaired by his inability to give it the s Pleasants v. Heard, 15 Ark., 403; Greene v. Southern Exp., Co., 41 Geo., 515; Ayliff V. Haxday, 25 Ark., 49; Chicago, etc., R. Co. v. Peacock, 48 lU., 253; Schwabacker V. Wills, 49 111., 257. See, also, Boyce v. Cal. Stage Co., 25 Cal., 460; Schneider v. McCabe, 36 N. Y., 8:3. Creed v. Fisher, 26 Eng. L. & E., 384. Or, the excessiveness is apparent at first blush. "Woodson v. Scott, 20 Miss., 272. And particularly where there is no certain measure. Lang V. Hopkins, 10 Geo., 37; Fish v Roseberry, 22 111., 288. 6 Shaw V. Boston, etc., R. Co., 8 Gray (Mass.), 45. In cases of seduction and Crim. Con., the courts seldom interfere. See, Travis v. Barger, 24 Barb. (N. Y.), 614. 7 Karasich v. Hasbrook, 28 Wis., 569. SETTING ASIDE YERDICTS. 687 Instances Where Refused. requisite attention since his injury; it was held, that under these circumstances the court had no data from which it could say, that a verdict for the plaintiff of $20,000, was excessive, or greater than the compensation which he should justly receive.' So, where property belonging to A., was attached as the property of B., the oflScer having full notice of B.'s title, and it was sold on execution, and A. sued the sheriff therefor; the court refused to set aside a verdict as excessive, though the amount was nearly three times as much as that produced at the sheriff's sale of the property." And in actions for a breach of promise of marriage, courts are reluctant to interfere with the verdicts of juries.' In Tennessee, where there was a ver- dict of $5,000 for a breach of promise of marriage, the court refused to set it aside as excessive.'' So, Lord Mansfield, refused to set aside a verdict for a breach of promise of marriage of £700, although the defendant was only receiving a salary of ££00 a year.' And in cases generally, where the jury are at liberty to impose exemplary damages, a new trial will not be granted on the ground of excessive damages unless they are so flagrantly excessive as to warrant the conclusion that the jury were actu- ated by passion partiality or prejudice.* But where it is plain, 8 Walker v. Erie R. R. Co., 63 Bard. (N. Y.). 260 (1872). And where two or more verdicts concur, this will have much weight in determining the ques- tion of setting aside the last one. Clerk v. Udall, 2 Salk., 649; Macon, etc., v. Wmn, 26 Geo., 250; Russ v. The Steamboat War Eagle, 14 la., 365. Before the appellate court will set aside a verdict it must appear manifest and clear that it is excessive. Id. 9 Ayer v. Bartlett, 9 Pick., 156. And a verdict will not generally be set aside where there is a recoupment, counter-claim, or set-off pleaded, and some proof to sustain the same, unless manifestly unjust. Huston v. Bloom, 33 N. Y. Superior Ct., (Jones & Spencer), 115. »1 Graham & W. on New Trials, 440, et seq. 'Goodall V. Thurman, 1 Head (Tenn.), 209. 3 1 Graham & W. on New Trials, 440. 4McGehee v. Shafer, 9 Tex., 20. See, also, Kenedy v. North Mo. R. Co., 68^ THE LAW OF DAMAGES. Instances Where Refused. that exemplary damages are not proper, and the jury luire included such damages in their verdict, it should be set aside.* § 87C. In an action against a railway company to recover damages for an injury caused by the defendant's negligence, which confined the phiintifF in bed for a month or six weeks, and so destroyed liis eyesight, that in the opinion of a physi- cian who examined him, he would never recover it, a verdict of $3,000 was held not excessive.* So, in England, in an action for false imprisonment of the plaintiff, arrested on a general warrant of the Secretary of State on suspicion of having printed the "Xorth Briton," a newspaper then printed in that country, and where it appeared that he was only kept in custody about six hours and that the defendant "used him very civilly by treating him with beefsteaks and beer, so that he suffered very little or no damages," but the jury rendered a verdict for £300; the court refused to set it aside as excessive, it being principally for exemplary damages.^ So, in the same 36 Mo., 051; Sawyer v. Han. & St. Jo. R. Co., 37 Mo., 240; WiUiamson v. West. Stage Co., 24 la., 171. s Beveridge v. Welch, 7 Wis., 465. « New Jersey, etc., R. Co. v. West, 32 N. J. L., 91. 7 Huckle V. Money, 2 Wilson. 205. In determining the motion for a new trial in this case on the ground of excessive damages, Lord Chief Justice Pratt (afterwards Lord Camden), said: ''The personal injury done him (the plaintiff), was small, so that the jury if they had been confined by their oath to consider the mere personal injury only, would perhaps have thought £20 damages sufficient; but the small injury done the plaintiff, or the inconsidera- bleness of his station and rank in life, did not appear to the jury in that striking light, in which the great point of law touching the liberty of the sub- ject appeared to them at the trial; they saw a magistrate over all the King's subjects, exercising arbitraiy power, violating magna charta, and attempting to destroy the hberty of the kingdom, by insisting upon the legality of this general warrant before them; they heard the King's counsel, and saw the Solicitor of the Treasury endeavoring to support and maintain the legality of the warrant in atjTannical and severe manner; these are the ideas which struck the jury on the trial, and I think they have done right in giving exem- plaiy damages. * * * Upon the whole I think the damages are not excessive; and it is very dangerous for the judges to intermeddle in damages for torts; it must be a glaring case indeed of outrageous damages in a tort, and which all mankind at first blush must think so, to induce a court to grant anew trial for excessive damages." SETTING ASIDE YEEDICTS. 689 Instances Where Refused. country, a verdict of £500 was rendered, in an action of tres- pass, quare clausumf regit, where it appeared that the plaintiff, a gentleman of fortune, was shooting on his own estate when the defendant, a banker, magistrate and member of Parliament, forced himself on the plaintiff's grounds and fired at game several times, and used very intemperate language, the court refused to set it aside.' So, in the same country, the court refused to set aside a ver- dict of £50, for debauching the plaintiff's daughter; Wilmot, C. J., remarking: "That although the plaintiff's loss in this case may not amount to twenty shillings, yet the jury in this case have done right in giving liberal damages.'" Nor will a verdict be set aside, where the excess is caused by the defend- ant's own fault.'" § 877. And in an action against a railroad company, for injuries resulting from its negligence, by which the plaintiff was confined to his bed for six weeks; suffered great pain; was unable to attend to his business for several months; compelled to pay from $1,200 to 1,500 for physician's services and other expenses, and was left permanently lame; a verdict of $12,000 damages, was held not excessive." And where a train of freight 8 Merest v. Harvey, 5 Taunt. , 442, On the motion to set aside the judgment in this case, Chief Justice Gibbs said: "I wish to know, in a case where a man disregards every principle which actuates the conduct of a gentleman, what is to restrain him except large damages." And Heath, J., said: "I remember a casewherea jury gave £500 damagesformerelyknockingaman's hat off, and the court refused a new trial." 9 TuUidge v. Wade, 3 Wilson, 18. It appears in this case that on the hearing of the motion for a new trial, affidavits were offered showing the age of the seduced to be thirty years. But Lord Chief Justice Wilmont remarked : "A. B. (the plaintiff's daughter), being of the age of thirty, is nothing to mitigate damages, or lessen the defendant's fault, and we will pay no regard to any affidavit read to us." to Brown v. Tanner, 1 Car. & P., 651; Billingsley v. Groves, 5 Ind., 55-3. " RockweU V. Third Avenue R. Co., 64 Barb. (N. Y.), 438, and where it held that the presumption of negligence was complete where it appears that defects in a railroad exist, and an injury is caused thereby. 44 GOO THE LAW OF DAMAGES. Instances "Where Verdicts have been Set Aside. cars detached from the engine was permitted to cross a public street without signal or control, it was held to constitute neg- ligence and that a verdict for $2,400 damages in an action under the shitute of Illinois, for the death of the plaintift'^s husband caused thereby, was not excessive." And in case of a great personal injury, and expenses thereby incurred, caused by the gross negligence of a railroad company, culpable in its nature, and such as to authorize punitive dama- jres, the court refused to set aside a verdict of $8,000, as excessive.' So, the Supreme Court of Missouri have held, that they will not set aside a verdict on the ground of excessive damages, unless it appears at first blush that the damages are flagrantly excessive, or that the jury have been influenced by passion, prejudice, or partiality.' And the Supreme Court ot ^ew York refused to set aside a verdict of $2,500, for a severe though not a permanent injury to the plaintifl''s hand, caused by the defendant's negligence.' So a verdict of $4,500 for the loss of an arm, was not considered excessive.* § 878. Instances where Verdicts have been Set Aside. — On the other hand, where the plaintiff had been injured by a railroad collision through the negligence of the defendant's servants, though without their gross fault, the injury being on the head, but the more serious injury being to the foot, so that it became necessary to remove the outside of it and one toe, and the jury found a verdict for $11,000; the court ordered '=« Chicago, etc., R. Co., v. Garvey, 58 lU., 83. So a verdict of $20,000, for injuries caused by the gross negligence of a common carrier, and where punitive damages were allowed, was sustained by the court. Caldwell v. New J. Steamboat Co., 47 N. Y., 282. ' Chicago & Alton R. Co. v. Wilson, 63 111., 167. So a verdict will not be set aside where there is sufficient evidence to justify it on any one of the issues. Crosset v. Whelan, 44 Cal., 200 (1872). » Kennedy v. North Mo. R. Co., 36 Mo., 351 (1865). 3 Maloy V. New York Cent. R. Co., 58 Barb. (N. Y.). 182 (1870). * Mentz V. Second Av. R. Co., 2 Robertson (N. Y. Superior Ct. R.), 356 (1864). SETTING ASIDE YEEDICTS. 691 Instances Where Verdicts have heen Set Aside. a new trial, unless the plaintiff would consent to have the verdict reduced to $5,000, and say: "The damages which the jury have seen fit to award to the plaintiff are more than tAvice as much as could have been awarded if the accident had proved fatal to the plaintiff. * * * There is great plausi- bility in the argument that the defendants ought not to be liable for a greater amount of damages in this case, than they would have been if the plaintiff had actually lost his life." ^ And where a brakeman, employed at $40 per month, lost an arm through the negligence of the railroad company, and recovered therefor a verdict for $10,000, where exemplary damages were not authorized, and the limit of recovery by the legal representatives of the deceased, for an injury causing death, was $.5,000, the court of Illinois held, that as the annual interest on the amount of the verdict was more than twice the annual wages of the plaintiff, and more than twice the sum which his legal representatives could have recovered in case of his death; and considering farther that he was able to earn as much in many occupations without the arm as he did as brakeman before the injury, the verdict should be set aside as excessive, and a new trial granted." So, a verdict of $5,000 against a city for a severe if not permanent injury to the plaintiff's ankle, and other damages resulting therefrom, caused by a defective sidewalk, was set aside as excessive, as indicating partiality and improper bias on thejDart of the jury who allowed exemplary damages, which were not proper under the facts of the case.^ s Collins V. The Albany S: Sch. R. Co.. 12 Barb., 492; Murray v. The Hud- son R. R. Co., 47 Barb. (N. Y.), 196. 6 Illinois Cent. R. Co. v. Welch, 52 111.. 183. See, also, Moore v. Martin, IB.Mon. (Ky.), 97; Cassin v. Delaney, 33 N. Y., 178; Belknap v. Rail- road, 49 N. H., 374; Doyle v. Dixon, 97 Mass., 208; Mortimer v. Thomas, 25 La. An.. 165; Peoria Bridge Asso'n v. Loomis, 20 111., 235, where a ver- dict for $5,750 for an injury received by the gross negligence of the Associa- tion, was set aside. 7 Goodno V. Oshkosh, 28 Wis., 300. A verdict of $1,525, against a railroad company for a sprained ankle, caused by the negligence of the company, 692 THE LAW OF DAMAGES. Instances Where Verdicts have been Set Aside. A verdict of $5,000 against a railroad e(tmj«iny for personal injuries, tlic chief of which was a deformity and some loss of power of the ri<^ht hand, was held to be excessive and the judgment rendered thereon was reversed/* And, where the plaintiff owned two diseased horses, an 301 where the employer refuses to accept services bOl, 302 duty of the employe to seek other employment 303 use reasonable means to present loss 304 INDEX. 711 CONTRACTS, damages on — Continued — page in case of deviation by consent 305 conclusions 305, 306 CONTRACTS AND COVENANTS— cfamages on breach of— general principles 366 seizin — rule 368 authority to convey 368 Carlisle tables _. ._. 369 where there is no seizin in the grantor 371 English rule. 372 American doctrine 372 partial breach 374 against incumbrances 374 nominal when 375 when they cannot be removed 377 when removed by the covenantee 377 when he receives money to remove 379 maximum amount recoverable 379 for quiet enjojonent and warranty 383 consideration and interest 384 value at the time of the eviction 385 arguments for the general i-ule 386 in support of the rule of in- creased value 338 views of the author 389 interest as damages 391 costs and counsel fees 394 covenant of quiet enjoyment and wan-anty— partial eviction 394 where the vendor purchases the superior title 396 damages on breach of contracts relating to land 398 by vendor 398 where vendor acts in good faith 399 general doctrine 401 bad faith 403 application of principles of Hadley v. Baxendale 409 delay in the performance 412 in case of partial breach 412 rule m special cases 413 where the title is in another 418 a party assumes to act as agent 418 the vendee fails 418 the gi-antor tenders a deed 419 when recission allowed 419 purchaser has given notes 419 false representation and warranty 420 fraud 421 in case of lease 422 for withholding possession 423 in case of eviction of the tenant 423 agreement to repair 425 CONTRACTS OF MARRIAGE— (See Breach op Promise)— damages on breach of 430 in the discretion of the jury 430 should indemnify 430 exemplary always allowable 431 what constitutes no defense to 431 matters in aggravation of 432 mitigation of 434 712 INDEX. CONTRACTS— MISCELLANEOUS— _ page common statutory and other bonds 435, 446 of insurance, damage on 447, 4G9 CONTRIBUTORY NEGLIGENCE-(See Negligence— Injury— Dam- ages) — defeats recovery for an injury 21 the plaintiff can derive no benefit from his own wrong 158 application of the maxim in case of negligence 158, 159 where the injury is aggravated by the want of plaintiff 's subse- quent care 160 defendant could have avoided the result of plaintiff 's negligence 161 negUgence of each, is the proximate cause of the injury 162 the plaintiff is remote 163 instances of the application of the principle 164, 165 cases of 166 per se 167, 168 instructions relating to — erroneous 168, 169 correct 169 must amount to want of ordinary care 170 in case of fire caused by negligence 170 a boy in a cordage factory 171 not imputed in the act of saving life 171 in case of, damages cannot be apportioned 172 limits of the rule, concurring acts 172, 173 effect of knowledge by servants of the hazards of the business, in wliich they are engaged ._ 174, 175 applied to servants injured by other servants, in same employ- ment 176, 177 whether the question is one of law or fact 176, 181 in general the question for the jury 181 burden of proof of • 182 presumptions from instinct of self-preservation 183 doctrine not applicable to infants of tender years 183, 184 persons incapable of judgment 184 of parent or guardian, no defense to action by an infant 185, 186 where the action is brought for his benefit 186, 187 question for the jury 188 doctrine of, applicable to intoxicated persons 188 qualified doctrine applicable to blind persons 188 not applicable to persons non compos mentis. . . . 189 in case of injuries resulting in death 516 from sale of intoxicating liquor 677 COPY-RIGHTS— 581, 588 provision of the Constitution 681 power of Congress 581 damages — books, etc 582 maps, charts, etc_. ._ 582 dramatic compositions 583 remedies for infringement of 583 literary piracy 584 CORPORATIONS— (See Common Carriers— Contributory Negli- gence — Telegraphs) — municipal — non exercise of power by 32 negUgence — sanitary regulations 32 injury by reason of grading streets 34, 40 exception to ruLe in Ohio, 41 INDEX. 713 CORPORATIONS— Continued— page cannot be liable to exemplary damages 86 private — may be liable to exemplary damages, when 92, 109 liability in case of gross negligence 94, 98 other cases of negligence 521, 537 COVENANTS— (See Contracts and Covenants — Bonds— Dam- ages) — DAMAGES— (See Damages— Contracts and Covenants— Injury)- definition of the term 2 maxims of the law of 2, 7, 9 mode of enforcement of • 3 origin of, much of the law of 3 rules — inadequacy of • 5, 27 arbitrary— do not secui-e indemnity 6 the most common, defective 6 the maxim causa proxima, et non remota spectatur 7 illustration of 28, 52 Eolicy of limitation of liability 8 ne of limitation difficult. 10 common law forms of action — effect of 11 statutory regulations— policy of 12 Anglo-Saxon and Jewish law 13 statutoiy provisions relating to 14 circumstances affecting amount of, and right to recover 15 injured party — duty of to protect himself 19 liquidation of — stipulations 21 , 136 aggravation and mitigation of 21, 64, 112 where a party contributes to his injury 21 as affected by the motives of the wrongdoer 22 in case of malicious and aggravated torts — controversy 22 law and fact — doctrine as to 24 illustrations 25 power of the court to control 27 rules — artificial and arbitrary 27 elements, principles, and rules of 28, 30 plaintiff— right or interest of as affecting 31 essential element of an action for 31 damnum absque injuria, instances of 32, 38 injuria and damnum, terms defined 38 compensation — the general principle : 42 maxim causa proxima, etc., considered 42 applied in cases of breaches of contracts 43 failure to dehver property ; 44 not always limited to proximate or natural consequences, in cases of torts 44 natural and direct consequences, explained 44 injury from fire — negligence 46 decisions — conflict of 49 in case of malicious interference with property of others . . . . 52 gross neghgence and willful wi'ongs 53 fraud generally 55 breaches of contract, fraudulent 57 under circumstances of aggravation ...._. 58 exemplary — gross negligence, fraud, outrage and insult 64 conflicting views of Greenleaf and Sedgwick 65 doctrine where recognized 67 when qualified 69 and compensatory considered 70 7M IKDEX. DAMAGES— Continued— page exemplaiy— views of Mr. Rutherford 74 intent of wrongdoer, an important element 82 not applicable to infants and non-compotes 85 not applicable to corporations. 86 English cases relating to 86 American cases relating to 88 general rule — in cases of negligence 90 liability of principal for acts of agents 92 depends on culpability of the principal 94 degrees of gross negligence illustrated 99 when wrongdoer criminally prosecuted 105 effect of in mitigation 107, 108 where they have been refused 108 in case of breach of promise of mar- riage 110, 119 mitigation — circumstances in, generally 112 in libel and slander 113 general suspicion 114 general bad character of plaintiff 115, 128 want of malice of defendant 116 in criminal conversation 117 in seduction 117 what may be shown 118 breach of promise of marriage 119 what may not be shown 118 false imprisonment 120 conversion and trespass 121 good or bad faith — effect of 122 tx'espass and trover — distinction 124 assault and battery 125 pecuniary circumstances of defendant 127 mdictment, conviction or fine, effect of 128 malicious prosecution 129 moral guilt, effect of 129 duty of plaintiff to prevent injury 130 statement of the rule, application 130 where the injury is aggravated by plaintiff 132 instances of neglect of reasonable means to prevent loss 133 where plaintiff may recover notwithstanding his neg- ligence 134 application to contracts for services 135 effect of stipulations in reference to 136 liquidated damages 136 penalty or liquidated damages — construction . . . 137 where sum designated treated as penalty. . .148, 138, 139 as liquidated damages 148 where price of property is fixed 149 cannot exceed liquidated sum 150 generally the penalty 150 where amount due is certain 153 parties cannot evade usury laws 153 propositions deducible from decisions 153 rules of construction 154 contributory negligence — ett'ect of 157 plaintiff can derive no benefit from his own wrong 158 INDEX. 715 DAMAGES— Continued— page application in case of negligence 158 where injury aggravated by want of subsequent care 160 where plaintiff could have avoided result of plaintiflf 's negligence 161 instances of application of the principle 164 cases of contributory negligence 166 negligence per se 167 erroneous and con-ect instructions to jury 168 ordinaiy care 170 fire caused by negligence 170 other instances of negligence 171 negUgence not imputed in acts to save Hfe 171 where injury cannot be apportioned 172 limits of I'ule in cases of contributory negligence 172 knowledge by servants of defects causing their injury 174 whether question is one of law or fact 177 question in general, one for the jury 181 burden of proof 182 presumption from instinct of self preservation 183 where injured person is a child 183 where infant is incapable of judgment 184 negligence of parent or guardian no defense to action by infant. . 185 distinction where the action is by the parent 186 not affected by the intoxication of the injured party 188 blind persons — rule applied to them 188 persons non compos mentis — rule 189 contracts for non-pa>/ment of money 190 actual compensation the rule 191 interest as damages — civil law 192 promissory notes 193 interest at place of payment 195 in different states 196 money means coin 199 legal tender acts — constitutional 200 applied to antecedent debts 201 agreement to pay in coin 201 propositions deducible from decisions 205 contract of affreightment — sterling money 205 when interest stipulated for at particular place 206 exchange 207 protest 208 indorsee against indorser or surety 209 fraud in transfer — genuineness of signature 209 notes payable in specific articles 210 hills of exchange — damages generally 212 arguments for a fixed sum as damages on protest 220 as to liability of the parties the lex loci contractus governs generally, 221 scaUng laws of Confederate States 222 North Carolina 222 Alabama and Georgia 226 Virginia 228 contracts for sale and delivery of personal property 231 seller's breach 232 where price is not paid in advance 232 paid in advance 233 reason for the highest price as inile of damages 235 fixed rule of damages 236 when a larger rule obtains 236 doctrine of Hadley v. Baxendale 236 general application of the rule 238 716 INDEX. DAMAGES— Continued— page English cases in which the rule is illustrated 238 American 240 for non-delivery of stocks 243 distinction between stocks and other property. . . 243 uniform rule in New York 244 different in Pennsylvania 244 no distinction on principle 244 time and place of deliveiy 246 distinction between a sale and a promise to deliver in payment of debt 247 form of action as affecting damage 247 where property has decreased in value 247 market value 248 rule same in torts as on contracts 251 part performance of 2.52 the new departure 254 warranty and fraudulent representations 256 liabUity for more damages in certain cases 261 price paid as affecting the measure of damages — former doctrine, 265 governs in Illinois 268 reasons for the general rule 268 general exceptions to the rule 269 fraud — rescission 270 damages in case of 271 the right to rescind in case of breach of warranty 273 failure of purchaser to comply 278 waiTanty of title — personal property 283 failure of title — measure of damages 283 contracts for services — specific acts — material 285 breach by the employer 285 employe 286 part performance by the party hired 288 the doctrine of entire contract relaxed 289 American cases where the stem rule was followed 290 middle ground 292 the liberal rule in such cases — Britton v. Turner 293 tendency of the decisions in harmony with 296 states where the doctrine has been recognized 298 constniction of the contract 299 application of the rule 299 damages where the work is accepted 300 method of computing damages in such cases 300 refusal of employer to accept of services 301 duty of the discharged party to seek other employment 303 under the code of Louisiana 304 duty of a party to use reasonable means to prevent loss 304 deviation by consent 305 conclusions 305 on contracts with bailees generally, depositum 311 mandatum 312 comtnodatum 313 pig mis or pledging 313, 314, 315 ?oca '^01 gold or silver coin 205 damages for non-payment of 190, 230 MOTIVES— (See Injury— Torts)— of the wrongdoer — as affecting the amount of damages 22 effect of on damages 22 willful wrongs 54, 5-5 breaches of contracts 57, 61 distinction between tort and contract as to 62, 63 when an important element 82, 8-3 general doctrine not applical^le to infants or non-cornpotes 85 municipal corporations 86 American cases 88, 90 of principal =. 94, 104 without evil motives persons cannot generally be subject to exem- plaiy damages 108^ 109 as affecting damages in trespass 123, 124, 625-665 in case of injury to the person 471-481 in actions for malicious prosecution 546-547 libel and slander 549-555 fraud and deceit 571, 572 violation of trade-mark 578 against pubhc officers 615 MUNICIPAL CORPORATIONS— not liable for non-exercise of municipal powers 32 failure to establish a pest-house. •^. • 33 injury from grading streets 34. 40 changing grade 40 when liable for under statutes, n 41 728 INDEX. MUNICIPAL CORPORATIONS— Continued— page exception to general rule in Ohio, n 41 not liable to exemplary damages 86 to treble damages 86 for buildings destroyed to arrest fire 37 are liable for injury caused by imperfect sewerage and drainage, n 37 NEGLIGENCE— (See Damages— Injury— Contributory Negli- gence) — injury from by fire • • 46 conflict of decisions 49 ofiicious interference with property of others 52 gross, willful wrongs 53 fraud, outrage and insult 64 rule as to exemplary damages in case of 90 gross negligence 90 degree of gross necessary to exemplary damages 99 where exemplary damages refused 108 when principal not hable for negligence of servant 108 reasonable care must be used to prevent injury ._ 130 plaintiff cannot recover when his negUgence materially con- tributes to the damage _ 138 both parties must exercise ordinary care • ■ ■ • 158 defendant liable when his negligence the proximate cause of injury 159 plaintiff's negligence may be shown in mitigation 159 blamable carelessness by which a child is injured 54 in selling medicines 54 gross negligence of persons, corporations or companies 91 principals when liable for acts of agents 92 to become liable to exemplary for, must be culpable. . . 94 degrees of gross negligence ._ ; Ai iak when exemplary damages can be giveq against a corporation. .92-105 criminal prosecution as a defense to damages 105, 106 in mitigation of damages 107 where exemplary damages have been refused 108 principal when liable to exemplary damages for 108, 110 a tort — definitions 517 a question of law and of fact 518 when Ibr the court ci q ron when for the jury. • 519, -j20 for what answerable in case of J-^l negligent fires ■ 521, 528 damages must be natural and proximate cause of 521 the judicial cause of _ 521 , 528 discussion of the question of causation 521, 527 successive of the different parties ' ' * toQ damages in case of — elements of ooS illustrations of the rule of damages in case of 5^0 damages in case of injuries to real property 5,^6 personal property 5o6 other cases 337 NEW TRIALS— (See Verdicts— Damages)— NOMINAL DAMAGES— (See Damages— Injury— Contracts) — 375, 679-682 wrongful acts import damages 679 cveiy" injury imports damages, . • ._ •.••.■•• "'''" where the law gives an action for some act, the doing of it im- ports damage 679 every violation of right imports some damage 679 INDEX. 729 NOMINAL DAMAGES— Continued— page in case of assault and battery 680 diverting water 680 the damages are so small that they cannot be estimated. 680 breach of incumbrances 680 contract to indemnify 680 proof of services rendered 680 where no damages are shown 681 they will be refused 681, 682 consideration of maxim, de minimis non curat lex 682 NON-DELIVERY OF GOODS— (See Contracts— Damages— Per- sonal Property) — 232-256 NON-PAYMENT OF MONEY— (See Damages— Bills op Exchange — Contracts) — damages for, actual compensation 191 interest as damages 192 damages on promissory notes 193 interest at the place of payment 195 in different states, n 196, 200 money means com . 199 legal tender acts constitutional 200 applied to antecedent debts _. 401 agreement to pay in gold or silver coin or gold or silver 201-205 propositions deducible from the decisions 205 contract of affreightment — sterling money 205 stipulation as to interest 206 exchange ■ 207 protest 208 indorser or surety on note, when they can reduce or defeat the claim 209 fraud in transfer of note — warranty 209 notes payable in specific article 210 bills of exchange — damages on 212-220 protest 220 damages — lex loci contractus governs 221 scaling laws 222-230 North Carolina _ 222 225 Alabama and Georgia 226-228 Virginia 228—230 NOTES— (See Non-payment op Money)— NUISANCE— (See Trespass)— - 602-605 OFFICERS— (See Public Officers)- damages for the nonfeasance, misfeasance and malfeasance of. . . 607-613 OVERFLOW— (See Trespass)— of land — damages 598-601 PAIN — (See Damages — Mental Suffering) — as an element of damages — to the body and mind. 70, 72, 74-79, 472 to the feeUngs and body 472 distress of mind 69 injured feelings 70 lascerated feelings 70 controversy as to 22, 23, 69-105 in actions for breach of promise of marriage 69, 110, 430 730 • INDEX. PART PERFORMANCE— (See Contkacts)— ^ page of contracts to deliver property 252-256 for services 288-306 by bailees 322-329 of waiTanty on the conveyance of land 394 to convey 412 PASSENGERS— (See Common Carriers)— injury to 340-342 death of 343, 490, 516 elements of damages — for injury from negligence 635 PATENTS— power of Congress — infringement 574 actual damages 574-577 treble damages — when recoverable 578 what may be allowed as damages in case of infringements 578 defendant may be required to account 579 PAYMENT — (See Contracts — Damages — Non-Payment of Money) — PECUNIARY CIRCUMSTANCES— (See Torts— Mitigation— Ex- emplary Damages) — of the defendant, the right to show in case of personal injuries. . . 127, 128 allowed to be shown in New Hampshire 128 not permissible in aggravation in Iowa 478-479 dissenting views 479 not allowed in actions for damages for a death . 507 are allowed in actions for defamation '. 553 allowed as a circumstance showing social rank and influence 554 controversy in reference to 554 in actions for seduction 558 crim. con 563 breach of promise of marriage . 69, 430 PENALTY— (See Liquidated Damages— Bonds)— PERMANENT INJURY— (See Injury— Damages)— to person 481, 483, 535 PERSONAL PROPERTY — (See Contract — Damages— Injury- Trespass — Trover and Conversion) — damages on contracts relating to '. .. . 236-284 injury to 619-625 aggravation of 65, 621 mitigation of 621, 623 PERSONAL INJURIES— (See Injury— Damages— Death— Assault and Battery) — 470-480 PLAINTIFF— right or interest of 31-37 essential elements for an action by 31 instances — damnum absque injuria 32 municipal corporations not liable to, for non-exercise of powers possessed by them 32-34 postmasters not liable to, for non-publication of uncaUed-for letters 34 board of supervisors not liable to, for non-publication of their pro- ceedings and the laws of the state 35 INDEX. 731 PLAINTIFF— Continued— fage where no right of action exists in other cases ob case of mine 36 a well 36 an artificial stream 36 amToa'dlsferce naturce.- . 36 buildings destroyed to arrest a fire 37 drainage of land 37 duty of. to prevent injury and its consequences. 130 where the consequences have been aggravated by his fault Id^ instances of neglect of reasonable means to prevent loss 13-3 where he may recover notwithstanding neghgence 134 duty of, in case of employe to seek other employment • 135 his right to damages as affected by stipulations 136-156 contributory negligence. .157-189 the power of the court to set aside verdicts 683-703 PLEDGING— (See Bailments)— 308, 313-315 POLICY— (See Insurance— Statutory Provisions)— POST MASTERS— not liable for failure to publish uncalled-for letters 34 POWER OF COURTS— (See Verdicts— Jury)— PRETIUM AFFECTIONIS— (See Trover and Conversion)— doctrinal m relation to 649, 664 PREVENT LOSS— (See Injury— Damages)— duty to 19. 21, 130-135 PROFITS— (See Damages— Contracts)— loss of as damages 57, 58, 61, n., 134, 334-338, 559, 596 PROMISSORY NOTES— (See Contracts— Bills op Exchange)— 193, 230 PROMISE OF MARRIAGE— (See Marriage— Contracts)— PROPERTY— (See Injury— Damages— Torts— Trover and Con- version)— damages for officious interference with 52, 56 private taken for public purposes 667 willfully taken — damages 54 contracts for delivery of 231-284 PROTEST— (See Contracts— Bills of Exchange)— PROXIMATE CAUSE— (See Maxims— Damages— Juridical Cause)— consideration of the subject 7, 8, 9, 46, 47, 521-527 PROXIMATE DAMAGE— (See Injury— Damages— Judicial Cause)— what is 7,42, 46, 191 PUBLIC OFFICERS— judicial— liability of 607-609 ministerial 609, 610 presumptions in favor of 611 neglect of 611 property wrongfully taken 612 escape 613 732 INDEX. PUBLIC OFFICERS— Continued— page liability for consequential damages ol4 exemplary 614 mitigation of • . . • 615 of boards of supervisors 616 sureties on bonds of 616 attorneys as 617, 618 PUBLIC PURPOSES- property taken for 667 destroyed for 37 PUNITIVE DAMAGES— tSee Exemplary Damages)— PURCHASE MONEY— (See Contracts and Covenants)— and interest when measure of damages 384 QUANTUM MERUIT— (See Contract— Damages)- in case of personal services 290, 306 QUIET ENJOYMENT— (See Contracts and Covenants)— damages on breach of covenant of 383 EAILROAD COMPANIES -(See Bailments— Common Carriers)— insm'e goods carried 318 rule not applicable to live stock 319 damages for non-delivery 322 delay 323 liability for beyond the terminus 322, 325 market value of goods 327 in case of partial loss 328 sale of goods 329 interest as 329 for breach of contract to carry 329 delay to deliver machinery 334, 336 refusal to deliver 339 contracts limiting liability 339, 340 in case of injury to passengers 340 delay of passengers 342 death 343, 490 baggage 344 exemplary 345 injury by negligent fires 46, 170 failure to fence 674 REAL ESTATE— (See Contracts and Covenants— Bonds)— damages on breaches of contracts and covenants relating to. .366-429 for injury to 592, 593 possession 593 trees 593 tenant's rights. 594 limits to 595 profits as an element of 595 exemplary when 596 by water 597 limitation of ' 598 where a trespass benefits as well as injures 599, 600 to mining interests 601 for nuisance 64, 602 waste 605-606 RECOUPMENT— (See Mitigation— Damages)— IKDEX. . 733 REMOTE DAMAGES — (See Juridical Cause — Damages — ^Remote Injury) — pagb REPLEVIN— general principles — damages 658, 659 time of valuation 660, 661 where the defendant succeeds 661 exemplary damages — when 662 in case of detention and deterioration— damages 662 where the property is lost or destroyed 663 special damages by plaintiff 663 defendant. 663 where the property is enhanced in value 664 vindictive damages 665 damages as affected by extent of interest 665 mitigation of 666 REMOTE INJURY— (See Injury- Trespass— Fraud- Gross Neg- ligence) — damages from recoverable when they are such as might be reason- ably expected 10, 29, 55, 236-238, 350, 471 in case of ofKcious interference with property 52, 53 willful wrongs 51, 54, 55 fraud generally 55 fraudulent breaches of contract 57-61 gross negligence 53, 55, 221, 537 great aggravation 621-623 RES GEST^— what constitutes 474, 475, 478 RULES— difficulty of framing 5 arbitrary 6 most common defective 6 causa proxima, etc. , considered 7 other rules 9 artificial and arbitrary 27 elements, principles and 28, 29 of construction of stipulations relating to damages 154 RULE— compensation as a limited to proximate cause 42 when not limited to proximate cause 52 in case of gross neghgence, fraud, outrage and insult 64, 65-69 compensatory and exemplary 70, 71, 72 controversy as to 65 to 84 exemplary damages — not applicable to infants 85 nor to non-compotes 85 municipal corporations . . 86 illustrated by English cases 86 American cases ... 88 statement of the rule 90 negligence 90 of agent 92 culpability of the principal must be shown 94-99 gross negligence 99-104 criminal Liability and prosecution for the injury 105 in mitigation generally 107 conflict 107 allowing or excluding exemplary damages 109 exempting the principal from liability 108, 109 734 . INDEX. RULE — Continued — p^ob of exemplary damages in case of breach of promise of marriage 110, 111 mitigation of damages 29. 112 in libel and slander 113-117 seduction 118, 119 breach of promise 119 false imprisonment 120 conversion and trespiiss 121 good or bad faith as alFecting 122 assault and battery 125, 126 bad character of plaintiff in 128 in case of malicious prosecution .... 129 moral guilt as affecting 129 requiring the plaintiff to prevent an injuiy and the consequences of.it 130 making the defendant liable for the natural and direct conse- quences of the wrong 52. 6:3, i:]2. 470, 471 where the consequences have been aggravated by the plaintiff. .' 132 in case of neglect of reasonable means to prevent loss 133 where plaintiff's negligence will not defeat recovery i;34 of constniction in case of stipulation in a contract, penalty or liquidated damages 137-156 as to concurrent contributory negligence 157-189 on breaches of contracts for payment of money 190-230 sale and delivery of personal prop- erty — warranty fraud, etc 231-284 personal services — specific acts — material 285-306 in cases of bailments 308-345 on the part of telegraph companies. :347-364 and covenants, etc 365-429 of marriage 430-434 relating to bonds 435-446 policies of insurance 447-469 in case of torts — injuries to the person 470-489 injuries resulting in death 490-516 SALE OF CHATTELS— (See Contr.\cts— Damages)— executory contract— damages— seller's breach 282 where the price is not paid in advance 232 paid in advance 233 rule in New York 233 Iowa 233 Indiana 233 Texas 233 California 233 case of part payment. .233. 234 reason for the rule of highest value when the price is paid 235 reason for a fixed rule 236 where a larger rule obtains 236 doctrine of Hadleij v. Baxendale 236-238 application of 238 English cases... 238 239 American cases. .240-242 for non-delivery of stock 243 distinction between and other prop- erty 243 INDEX. '^35 PAGE ■ih^V OF CHATTELS— Continued— , ^nLi no distinction on principle 244-24b time and place of deliveiy ^4b sale to pay a debt. ^4/ form of action as affecting •.••••;• '^*' where property has decreased m value •;• f*° market value 0-1 oro same rule in torts ^-^l- f-^j in case of part performance 2o2-2o4 new departure 254-25b warranty and fraud. .256-267 liability extended in certain case 261-264 where goods bought for particular purpose.. 261 m case of diseased oxen -io^ hay sold 262 hemp purchased 263 coal dust for brick 262 cabbage seed 263-264 wool for hats 264 shares of stock 264 breach of warranty of quality 265 former doctrine where the price was paid ; 265-268 rule in Illinois ^00 Connecticut 208 Georgia 268 general mle— reasons for 268 exception to the rule. _. • • • 269 in case of fraud— rescission '^'^"^/.g of the right to rescind -273-2(8 failure of purchaser to comply. 2 (8-^8^ vendor's choice of remedies 279 in case the article is to be manu- factured 280 of the manufacture of sulky 280, 281 rule in Connecticut 281 in case of negligent sale of drugs. 54 fraudulent sale of sheep 5b a gun ob cotton 56 warrantyof title........... ••283,284 in case of conversion by bailee 311, oZy right to sell incident to pledge... 315 SALE or LANDS-(See Contracts and Covenants)- ^ ^ ^ ^^^ damages-executory contracts tor. .V.V.V.V. . . .398, 399 breach on part ot venaor. „' .^o where vendor acts m good faith • • -^^^^ ^u-i general doctrine . . ■ • • .••••••; •.•,; 'aKq aqq wViprp the vendor acts in bad faith • • • • .'i^?» *^^ Ip'^hcation of principles oi Haclley v. Ba^eMe^^_^^^ case of 412 delay in the performance. ^^2 rule in case of partial breacli 413-418 special cases 736 INDEX. SALE OF LANDS— Continued— vmx damages — breach where one undertakes to secure title from another 4 1 8 where the vendee fails 418 grantor tenders a deed 419 in case of rescission — when allowed 419 where purchaser has given notes 419. 420 false representations or warranty 420, 421 defense on the ground of fraud 421 SALE OF STOCKS— (See Stocks)— SCALING LAWS— adopted in states that formed the Confederate States 223 North Carolina — scale of depreciation 223 where applicable 224 ordinances of Alabama and Georgia 226 where applicable 228 the scaling laws of Virginia 228-230 SEDUCTION— exemplai-y damages in case of 68 what may be shown in mitigation of 118 cannot be shown 118 remedy for at common law 556 damages — general rule 557 aggravation of 658 mitigation and defense 559-560 amount of vercUct 561, 562 enticing away a wife 562, 563 cases where damages held too remote 50 SEIZIN— (See Contracts and Covenants) — damages on breach of covenant of 368-370 SELLER— (See Contracts and Damages) — breach of contract by 232-248 SERVICES — (See Contracts — Contracts for Services) — breach of contracts for 285, 306 SERVANTS — (See Contracts — Contributory Negligence — Injury) — knowledge by of defects causing injury 174 article by Judge Cooley 177 when master liable for negligence of 94-98 SETTING ASIDE VERDICTS— (See Jury— Verdicts)— SETTING OUT FIRES— statutes against 672, 673 damages in case of. 672, 673 SHEEP— (See Fraud and Deceit)— damages in case of fraudulent sale of 55, 56, 271, 272, 569 SHERIFFS— (See Damages— Public Officers— Bonds)— 609-617 SIGNATURES— genuineness of warranted 209 SILVER— agreement to pay in, or in silver coin 201-205 SLANDER — (See Lirel and Slander — Damages — Torts) — 549-555 INDEX. 737 SLAVE— (See Damages— Torts)— _ page damages in case of officious interference with 52, 53 caiTjing' away 45, 623 breach of contract of warranty of, n 273 SMART MONEY— (See Exemplary Damages— Damages)— as an element of damages 74, 84, 89, 106, 108, 621, 623 SPECIFIC ARTICLES— (See Shocks— Trover and Conversion— Replevin) — notes payable in 210, 211 SQUIB— case of, n ". 7, 8, 93 STATUTES— provision of, in respect to damages — importance of 12 for damages on contracts , 14 Civil Code Louisiana 14 California 15 views of David Dudley Field on intemational codification, n 19 reform in respect to actions 62 provisions relating to interest in various states, n 196 damages on protest, n 212, 213 bonds generally 435 446 damages on against principal and sureties 616, 617 damages under, for injuries resulting in death 490-516 fixing liabiUty of telegraph companies 861-362 providing for the taking of property for public purposes 667 against setting out fires 672 requiring radroad companies to fence their tracks 674 providing for the recovery of damages resulting from the sale of intoxicating hquors 675 STIPULATED DAMAGES— (See Damages— Liquidated Damages)— 136-156 contracts in reference to 21, 29 right of parties 136 construction of contract in reference to 137 intent as to 138 where the designated sum is treated as a penalty 138 Uquidated damages 139 English cases — where held a penalty 139-144 American 145-148 where regarded as liquidated damages 148 where the price of property is fixed 149 can never exceed the liquidated sum 150, 152 in case of usurj' 153 propositions relating to 153, 154 STIPULATION — (See Damages — Stipulated Damages) — as to interest 206 STOCKS— (See Contracts— Damages)— damages on contracts relating to 243 distinction between, and other property 243 none on principle 244 rule in New York 244 as to time and place of deUvery 246 distinction between a sale of, and a promise to deliver in pajnnent of a debt 246 form of action as affecting 247 47 738 INDEX. STOCKS— Continued— paoe in case of conversion oo4, b-j7 argument for a fixed rule in case of 043 the highest vahie in case of ; • • C45 distinction between stocks and other property in case of conversion 647 STREETS- ^ ^ ^ . .... grade of— common lav? doctrine W-ii SUBROGATION— (See Insurance)— doctrine applied in case of insurance 467 SURETY— (See Contracts— Bills of Exchange)— liability in case of fraud 571 on official bond 616, 617 SURGEONS— (See Malpractice— Stipulated Damages)— agreement not to practice as 141 . 142, 143 malpractice of— damages 24, «. 07, 91, n, 100, n, 161 negligence of — damages Sbo TELEGRAPH COMPANIES— importance of ;^47 are they common carriers j>17 at least ordinary care required o48 measure of damages — order for salt |'49 doctrine of Hadleij v. Baxcnikde, explained and applied 350 mistake in a message ordering bouquets — damages 351 a shawl — damages 351 stock sold and other stock pur- chased 352 delay in sending a message ordering property attached — damages 3^2 mistakes in a message ordering wheat purchased, etc. — damages 353 delay in a message ordering lepines sold — damages 353 where, by a mistake, a message is wrongly directed and delayed — damages 354 where damages are limited to interest — mistake — delay 355 company liable for damages that directly and naturally result, etc. 356 damages contemplated as a result of a breach 357 limitation of liability by contract 357 not insurers — reasonable rules ._. _• .••;•.••••.•••.•.•• ^§^ omission or refusal to send a message — provisions limiting liability 359 inferences from the decisions .•••.•.'• ^^^ where there are connecting lines, diversity of decisions as to liability 360 can a party to whom a message is sent, maintain an action on the contract 361 may sue on the contract in New York and in some other states . . 361 action may be maintained in such cases as for a tort 361 rule different in England •_ 361 statutes of various states relating to telegraph companies 361 conclusions deducible from the decisions 362 TIME— of valuation in cases of conversion 628-638 replevin • 660 personal property 233-246 TORTS— (See Injury- DA:^rA6Es)— injmy to the person — damages 470-489 injuries resulting in death 490-516 negligence — gross negligence 517-537 false imprisonment • 538-542 INDEX. 739 TORTS— Continued— page malicious prosecution 543-548 libel and slander • 549-555 seduction and criminal conversation 556-563 fraud and deceit 564-569 infringement of patents 574-580 copjT.- ghts 581-588 injuries to property — trespass 589 TRADE-MARKS— (See Damages!- damages for infringement of 586, 588 TREBLE DAMAGES— (See Damages— Torts)— in case of infiingement of patents 578 under statutes 671 TREES— (See Trespass— Injury)— injuiy to — destruction of 593-594 TRESPASS— (See Injury— Torts—Damages)— injuiy to property 589 defined '. • 590 damages — general principles 591 to real estate 592 injury to possession of 592 trees 593, 594 tenant's rights 594 limit of 595 profits as an element of. 595 aggravation — exemplary 596 to water rights — general rule 597 limitation of 598 where it benefits as well as injures 599 in case of mining 601 nuisance 602 waste 605 TROVER AND CONVERSION— distinction between and trespass 627 damages 627 cause of controversy as to 628 time and place of valuation • • • 628 value at the time of the conversion where it prevails 628-638 exception to the rule • • 631 larger rule of damages 631-635 rule of fluctuating value in New York 6:34, 635 Pennsylvania 635 rule in Mississippi 636 California 636, 637 other states - 637 rule should be the same as on a breach of contract to deliver per- sonal property • 637 damages varied with the form of the action 638 technical doctrine in different actions •_ • • 639 reform in practice and procedure — effect of 639-640 argument for a fixed rule 640-643 in case of stocks 643-645 the rule of highest value 645-646 distinction between stocks and other property — ^reason for 647 sounder rule between the extremes ft48 damages where the property is returned 648 740 INDEX. TROVER AND CONVERSION— Continued— paob damages, mititjation of 121 , G48 prethim affect ionis 649, 6.j0 articles of virtu 649, 650 accession 650, 653 confusion • 654 exemplaiy ; •' 655 where the interest is qualified or limited 656 notes — choses in action 650, 057 UNAUTHORIZED— acts done, when liability increased 52 relating to slaves 52, 53 UNITED STATES— gold or silver 201 legal-tender acts 200-205 treasury notes 202-205 USURY— stipulations for damages not allowed, where they would result in . an evasion of the usury laws 22. 154 statutes of various states relating to, n 197-200 VALUATION— time of, in actions for non-delivery of property 233-246 conversion 628-638 replevin 660 VALUE— (See Damages— Contuacts— Injury)— VALUED POLICY -(See Insurance)— effect of 451 VENDEE— (See Contracts)— VENDOR— (See Contracts)— VERDICTS— (See Damages)— when set aside as excessive 683-699 instances where set aside 683-686 in cases of criminal conversation 694-695 reducing as excessive 695-697 excessive, when a remittur not allowed 698 in certain cases allowed 698 inadequate, when set aside as 699-701 courts will not set aside 702, 703 VINDICTIVE DAMAGES— (See Damages— Exemplary Damages)— WAREHOUSEMEN— (See Bailments)— WARRANTY— (See Contracts— Fraud and Deceit— Sale of Chattels) — implied on transfer of note that the parties to it were able to con- tract 210 signatures are genuine, n. . . 261, 284 of kind or quality of property sold • • • 256 soundness of horse 257, 267 in an agreement to construct steam boilers 257 case of sale of animals 257-271, 273, 284 slave 260 a re-sale of warranted property 258, 259 INDEX. 741 WARRANTY— Continued— pagh in case of a judgment against second warrantor 261 sale of pork 260 slave 261 , contemplated damages recoverable for breach of, in certain cases. 261 in case of diseased oxen 262 sale of poisoned hay 262 cotton 262 coal dust 263 cabbage seed 263 other seed 264 cotton 264 of the prospective value of stock 264 breach of, m sale of chattels — former doctrine of damages 265 general rule 265-267 price paid — effect 265-270 price paid governs in Illinois 268 Connecticut 268 reasons for the general rule 268 exceptions to 269 right to rescind in case of breach of 273-278 damages in case of. 273-278 of title 283 damages for breach of 283, 284 of signatures to note, n 284 covenants of in deed — damages 367-398 of seizin — breach — general rule 368-371 exceptions 369-371 EngUsh rule 372-374 American rule 372-374 partial breach 374 against incumbrances — general rule 374 damages nominal, when 375 when incumbrance cannot be removed. . . 376 has been removed by the grantee 377-379 where covenantor advances money to re- move 379 maximum amount recoverable 379-383 general — quiet enjoyment 383 damages — on breach 384 consideration and interest as, prevails gen- erally 384, 385 value at time of eviction 385 adopted in Mass... 385 Vt 385 Maine. 385 Conn. . 385 La 385 expense of the suit for eviction sometimes allowed as, n 384, 385 arguments in favor of the general rule. . .386-388 fluctuating rule... 388, 389 views as to the proper rule 389-392 interest as 391-394 costs and counsel fees as 394 where the eviction is partial 394-396 grantee purchases the superior title 396-398 in case of contracts to sell land 398, 421 leases 422-429 742 INDEX. WASTE — (See Trespass — Damages) — page damages in case of 605 WATER— damages for injury from 597 WATER RIGHTS— damages for injury to 597 WEALTH OF DEFENDANT— right to show in actions for torts generally, considered. .127, 478, 479 injuries to person denied in Iowa . . . 478 N. Y., n 478 Mass. . . 479 allowed in N. H., n 127, 479 may be shown in actions for defamation, n 128, 479, 554 breach of promise of maniage 480 seduction 558 WIFE— action for crim. con. — circumstances shown 560, 561 elements of damages 563 verdict seldom set aside 562 enticing away, damages, value of 562 WILLFUL WRONGS— (See Damages— Exemplary Damages)— HabiUty for remote consequences in case of 59-63 WITNESSES— damages for failure of 670 WORK — (See Contracts — Personal Services)— WRONGDOER— (See Injury— Damages— Motives)— WRONGFUL ACTS— (See Injury— Damages)— a larger liability in case of 52-63 where death is produced by 492-500 VsT- i> V I ^C^ ,he last da" »t>'"I«^ PS0 1916 8/7' AA ther 'iS&'-'^^^f^y 000 732 637 FACILITY R' •i.