ME Phmenne ea acc ; prclugee barat reteset evi renee ine ee in Leet ane i fae ita | be disltlay ete ih i Lise tea Hs each eit tr ce Geena eat pec rinve ut ane gt i ene ae Renee i ef Cornell Law Schou! Library ii Eggleston on Damages A TREATISE SONS THE LAW OF DAMAGES By WILLIAM EGGLESTON, Author of ‘‘A Tre: on tie Commi issioners.’ PUBLISHED BY HEBB & GOODWIN, TERRE HAUTE. 1880. G4Y/I46 Entered according to act of Congress in the year 1880, By WILLIAM EGGLESTON, In the office of the Librarian of Congress at Washington, D. C. PREFACE. In submitting this work to the Profession, I feel great anxiety as'to its merit as well as to its reception by the public. The question of Damages is one of vast variety and extent, being generally the sole aim and object in the prose- cution of each legal proceeding, so that in the discussion of the different questions arising under this branch of the law, I have been compelled in many instances to examine primary principles, and to comment on the law governing the class of cases under consideration. I have been much embarrassed in my effort to present the law on the question of Damages in a clear and concise manner, owing to the conflict of authorities and the variety of rules that exist in the different States. But I have endeavored to harmonize these different rules and discuss them together; and where this could not be successfully done, I have given them:in full and,commented on the justice and propriety of éach. It is a fact well known to every law student that the field of legal science has, within the last half iv LAW OF DAMAGES. century, been greatly expanded by scientific discoveries, the growth of several commercial interests, and the creation of many statutory rights. I have attempted to notice in detail all the questions that have, or may hereafter arise, in refer- ence to the law of Damages growing out of the enlargement of the field of jurisprudence, and endeavored to incorporate into the texts some of the leading rules that should govern courts and juries in the assessment of Damages, and to show the reasons upon which they are founded. In order to accomplish this task, I have gone through an examination of authorities that cost me much time and labor. It has been my aim to furnish the student and practitioner with a practical treatise, based upon the most recent authorities; and I indulge the hope that my effort has not been in vain. WILLIAM EGGLESTON. TERRE HAUTE, INDIANA, June 18, 1880, Index to Authorities Cited. i Section A.T. &S. F.R. R. Co. v. Stand- ford 5, 196, 200, 202 Atchison R. Co vy. Sanford 6 Allison v. Chandle 6 Adams Ex Co v. Egbert 10, 11 Anthony v. Gilbert 13 Achison v. Erie R. R Co. 14 Atlanta E. R. Co. v. Dunn 14 Aclon v. Blundell 20 Anthony v. Gilbert 41 Austin v. Wilson 44 Adam v. Wagoner 59 Adams v. Freeman 60 Andrews v. Asky 87 Akin v Newell 89 Anthony v. Gllbert 96 Ainsly v. Medly . 98, 99, 110 Aortson v. Ridgway 104 Arbuckle v. Taylor 137 Ammerman v. Crosley 145 Alabama v. The Gamecock 170 Austin v. Steamboat Co. 176 Amick v. O’Hara 181 Albertson v. Chandle 193 Allen v. Atlanta Street R. Co. 223 Armstrong v. Moranda 230 Armstrong v. Pierson 234 Alderman v. French 234, 307 Andrews v. Durant 239 Anger v. T. P. M. Co., 240 Allen v. Fox 254, 256 Ableman v. Booth 262 Allen v. Jones 263 A.S.R R. Co. v. Dayton 264 Section Airie v. Sedgwick 276 Arnold v. Commonwealth 279 Ackley v. Chester 280 Alexander v. Helber 281 Ash v. White 285 Amoskeag Mi. Co. v. Goodale 290 Adons v. Ellis 290 *, Addison v. Hock 297 Amola v. Foot 297 Allen v. McCorkly 298 Atkins v. Chilson 300 Anderson v. Johns 306 Austin v. Hanchette 307 Alderman v. French 307 Allen v. Suydam 309 Atchison v. Baker 327 Armstrong v. Purey 329 Andrew v. Pearce 350 Anderson v. Davidson 353 Arrigoni v. Johnson 3A3 Ady v. Allen 355 Asland F Ins Co. v. Hislayes 692 Asland F. Ins. Co. v. Drenchler Mut. Fire 693 Abbott v. Gatch 474 Ashe v. DeRosett A474 Adams Ex. Co. v. Egbert 474, 526. Allen v. Jenis 48 0, 481 Allen v. Kibber 482, 486, 495 Allen y. McCeblen 489 Anderson v. Foresman 506 Am. Ex. Co v. Smith 514 Adams Ex. Co. v. Daniel 515 Ala. & Tenn. R. R. Co. v. Kidd 515 vi LAW OF DAMAGES. Section Astly v. Weldon 550, 551, 552, 557 Abrams v. Kounts 555 Alkyns v. Kenner 560, 561 Andrews v. Glenville 572 Aldrich v. Reynols 572 Allen v. Brown 574 Allen v. Fox 580 Adams v. Adams 580 Averall v. Wade 583 Andenread v. M. M.In. Co. 588 American Ins Co. v. Ogden 590 Angelrod v. Delaware Ins. Co 696 Atwood v. Un. Mut. Ins. Co. 699. Ashland Ins. Co. v. Smith 699 Allen v. Suydam 706, 708 Adams v. The Med. R. Co. 711 Armitage v. Hale 727 Anderson v. Tarpley 727 Atwood y. Gilapsie 727 Allen v. Anderson 361 Adamson v. Rose 361 Adams v. McMullen 362 Alna v. Plumer 370. Adams Ex. Co. v. Egbert 872 Arden v. Pullen 376 Adair v. Bagley 379, 382 Allen vy. Bicknell 383 Allen v. Culver 384 Andrews v. Pond 398, 412, 413 Arnold v. Potter 414 Albert v. Citizens’ Bank 420 Adam v. Beard 429 Andrews v. Jones 431 Andre v. Dixon 434 Abell v. Alexander 435 Andrews v. Mecmett 435 Alesworth v Brown 437, 440 American Bank v. Doolittle 438 Allison v. Thomas 440 Agnew v. Meritt 441 Alexander v. Bank of Com’th 442 Adams y. Roane 443 Apgar v. Hiller 444 Armstrong vy. Gilchrist 445 Andrews v. Kneeland 453 Armstrong v. Perr 458 Arnold v. Suf. Bk 467, 468, 475, 479 Aurlen v. Hilliers 730 B. Boyd v. Watt, 585 Bramhall v. Sun, 587 Bramhall v. Sun. Mut. Ins. Co. 587 Bradlie v. Maryland Ins. Co., 588 Baker v. Manf. Ins. Co., 589 Burgess v. Alliance Ins.Co., 691 Section It. Fire Ins. Co. v. Long, 696 ate Mont. Fire Ins. Co., 696 Blaeser v. Milw. Mut. Ins.Co., 697 Blot v. Boxcean, 706 707 Bell v. Cunningham, 708 709 Beal v. Railway Co., 711 Bartlett v. Merritt, 711 Bennett «. Acock, 715 Brown v. Tanner, 716 Bodwell v. Osgood 720 Belknap v. R. BR. Co., 722 Blunt v. Little, 727 Brown y. Seymour, 730 Boyd v. Fett, 474 Baldwin v. Bennett, _ 474 Booth v. Spagler D. Mill Co., 474 Booker v- Goldsborough, 474 Begdensberg v Welch, 4717 Barries v. Hutchinson, 477 Barnard v. Hamilton, 479 Beard v. Sloan, 480 Bement v. Smith, 481 Ballantine v. Robinson, 481 Baker v. Hoyt, 482 Britton v. Turner, 482 Bishop v- Price, 482, 489, 495 Bingham v. Howley, 484, 491, 498 Boust v. Frith, 486 Britton v. Turner, 488 Bracket v. Morris, 489 Baker v. Troy Rutland R. Co., 489 Bradman v. Keeler, 495 Brown v. Foster, 499 Blossom v. Ball, 509 Bohannon vy. Springfield, 501 Brand v. Troy, 503 Brown v. Lynn, 503 Ball v. Lyng, 504 Burns v. Spear, 504 Barnler v. Neye, 504 Baily v. New, 443 Bishop v. Williams, 444 Butts v. Dean, 444 Benjamin v. Hillard, 447, 448 Brown v. Edgerton, 450, 457, 463 Brenton v Davis, 450 Bradford v. Bush, 450 Brown v. Stevens, 450 Bardry v. Foster, 451 Buckingham v. Goddard, 452 Butler v. Tuits, 452 Beebe v. Robert, 453 Boorman v. Jenks, 453 Bradford v. Manly, 458 Bower v. Lewis, 453 Burton v. Youn: 454 Blasdael v. Babcock, 458 INDEX TO AUTHORITIES CITED. vii Section Section Bent v. Denny 458 | Brown v. Maxwell 175 Booker v. Goldsborough, 464 | Beswigv. N. Y.C.R.R.Co. 176 Bridge v. Wain. 464 | Butterfield v. West. R. R. Co. 176 Barrikins v. Beav ens, 466 | Bellef. R. R Co. v. Hunt 176 Billings v. Vanderbeck 467, 475 | Brown v.H.&St.J.R.Co. 180, 182 Bartlett v. Blanchard 467, 475 | Bright v Gardner 180 Barnard v. Conyer 467, 475 | Baltimore & Ohio R. R. Co. v. Beckel v. Colton 469, 476 State 180, 181, 182, 188 Baldwin v. Nichols 469 | Bird v. Holbrook 180 Booth v. The Spuyten Dunill Burdge vy Gardner 182 Rolling Mill Co. 470 | Baxter v. Troy & Boston Co. 183 Barries v. Hutchinson 471, 472 | Burke v. Strain 329 Barker v. Savage 183 | Burton v. McCally 330 Burke v. Broadway Co. 186 | Birch y. Merrick 330 Berger v. Gardner 188 | Bostwick v. Williams 336 Brown v Southberr 188 | Burk et al v. Clement 337 Bellef. R. R Co. v — 188 | Burton v. Reeds 337 Birmingham v. Dorer 189 | Bickford v. Page 337 Blyth v. Topham 192 | Bonta v. Miller 337 Bush v. Brainard 192 | Brant v. Foster 337 Burdock#. Worrell 193 | Blossom v. Knox 337 Butler v. Kent 193 | Biglow v Jones 342 Blake v. Midland R. Co. 208, 220 | Bond v. McZuattlebaum. 346 Barksley v. Swan 203 | Backus v. McCoy 347 Balto. R. R. Co. v. Quigley 204 | Baxter v. Bredbuty 349, 350, 858 Baker v. Draker 205 | Barber v. Coburt Ballou v. Farmer 207 | Blanchard v. Brooks 350 Baker v. Bolton 208 | Barlow v. Morris 350 Butler v. Steambt Milwaukee 215 | Bing v. Haven 350 Balto. R. Co v. Kelly 223 | Bean v. Mayor 353 Bell v. Wooten 223 | Brooks v. Moody 358, 354 Baily v. Railroad Co 224 | Baldwin vy. Munn 353, 361 Belknap v. Boston, etc. R. Co. 224 | Barker v Hobbs : 353 Baily v. Chicago R. R Co. 224 | Bachelder v. Sturgis 354 Balto etc. R. R. Co. v. Wright- Brown v. Broadhead 354 man 226, 227 | Barrett v Porter 355 Bodwell v. Osgood 231 -| Butler v. Yiel 355 Belier v. Mit 234 | Beach v. Miller 855. Bodwell v. Swan 234 | Barlow v. McKinly 355, 856 Beals v. Holmes Ins. 694 | Buller v. Runnels 297 Bacon v. Town 151 | Brakely v. Sharp 297 Bamford v. Turley 155 | Bennett v. Whitney 297 Barclay v. Commonwealth 155 | Brown v Owens 297 Body v. Weeks 158 | Billinger v N.Y. etc R.R Co, 297 Baugh v. The State 158 | Bowman v. Teal 805 Bigelow v. Hartf Bridge Co. 158 | Butt v. Gould 306 Barnard v. Conn. R. R. Co. 159 | Burnon v Lyden 307 Blunt v. McCormick 159 | Bodwell v Swan 307 Battishell v. Reed 159 | Boice v. McAllister 307 Barr v. Hoffman 159 | Bradly v. Gibson 307 Brozzi v. Harris 161, 162 | Bevinsv. Stokes 307 Burkly v. Lenard 161 | Budgeman v. Hopkins 307 Brill v. Brill 163 | Buck v. Rhoads 309 Butterfield v. Foster 175 | Bonlor v. Kelloge 312 Brooks v. Buffalo k. R. Co. 175 | Burnett v. Simpkins 312 Button, admr v. Hudson R. R. Bennet v. Smith- 317 Co. 175, 176, 177 | Bridge v. Grand J. R. Co. 319 vili Section Burts v. Thompson 321 Blattmacher v. Saal 322, 328 Balda v. Stratton 323 Burham v. Cornell 323 Buy v. Dontz 325 Baly v. Stratton 325 Butler v. McCauley 325 Butler v. Esphmer 328 Bell v. Eaton 328 Boynton v. Kellog 329 Burgess v. Alliance Ins Co. 691 Burgess v. Burgess 274 Boardman v. M. B Co. 274 Burnett v. Pharlan 275 Blackfield v. Payne 275 Bullett v. Clement 277 Burly v. Bethim 277 Burnard v Huffman 277 Blood v. Sayer 278 Burton v. Fulton 279 Bowman v. Crowell 279 Bickford v. Hood 279 Barrett v. Reed 279 Benott v. Miller 284 Bagby v. Harrass 285 Brown v. Davis 285 Bond v. Hilton 285 Burnap v. Wight 289 Bank v. Tencka 890 Bassett v. Saulsberry Mnf. Co. 290 Brown v. Watson 290 Burdon v. Mayor of Mobile 290, 297 Brown v. Price 290 Bowen v. Emerson 290 Bliss v. Kennedy 294, 297 Brown v. Brown 297 Bear Riv. Auben W. & M. Co. v. York Co 297 Brown v. Smith 297 Blanchard v. Baker 297 Burns v. Webb 234 Bisbee v. Shoen 234 Barnes v. McCrete 235 Bell v. Farnsworth 236 By. R. v. Monahan 236 Bradley v. Heath 236 Bucher v. Dennison 239 Brisby v. Kendall 239 Baker v. Drake 242, 245 Brown v. Saxe 244 Betts v. Lee 244 Barker v. Wheeler 244, 249 Bizee v. Mayber 245 Bennett v. Lockw’d 245,257,310,319 Bickell v. Colton 247 Backenstor v Stahur 249 Bake: v. Freeman 281 LAW OF DAMAGES. Section Bedo v. Mut. Sav. Inst. 250 Butler v. Mishering 256 Blackwell v. Action 256 Barthol v. Fox 256 Butler v. Silliman ah Beekman v. Saratoga Br’klyn Park Co. v. Armstrong 263 Brown v. Beat 264 Boston RB. R. le: v. Lee 264 Buck v. Hermance 269 Blanchford v. Warner 269 Burdell v. Denning 270 Birny v. N. Y. & W. Tel. Co 536 Bery v. Dunill 540 Blanchard v. Ely 540 Bagby v. Peddice 550, 555, 559 Bristol R R. Co v. Collins 547 Brown v. Maulsby 551, 555 Barton v. Glover 551 Bruster v. Egly 503 Billingsly v. Dean 555 Bary v. Ambrose 555 Burrage v. Crump 500 Belts v. Kurch 597 Baird v. Tolliver 559 Brainard v. Jones 565, 566 Braingrive v. Perrott 965 Bennett v. Brown 568 Brehens v. McKenzie 572 Brown v. Jones 573, o74 Bergen v. Share avd Brown v. Tyler 574 Boles v. Patton 580 Brewster v. Silliman 580 Bomby v. Gibbs 580 Butler v. Mechring 581 Banks v. Hallon 581 Blanchard v. Eling 581 Booth v. Clark 582 Baker v. Admr. of Bocus 582 Brown v. Cook 505 Bland v. Normuck 506 Beardsley v. Richardson 506 Beeman v. Lawton 507 Brown v. Runnolt 508 Bromwell v. Hankins 509 Bamfield v. Whipple 510 Buford v. Tucker 510 Bansmer v. I W.R.R. Co. 512 Burton v. Wilkinson 512 Bisselv. N.Y.C R.Co. 518, 514 Boyce v Anderson 514 Both v. Buffalo 515 Boarne v. Gatlif 515 Blumenthal v. Branard 515 Barcla v Clyde 515 Bansemer et al v. T.& W.R.Co. 517 INDEX TO AUTHORITIES CITED. Section Bracket 1. McNair 519 Boggs v. N. Y.C. R. R. Co. 521 Bliven v. Hudson R. &.R. Co. 525 Burton v. Wilkinson 525 Bourman v. Teall 526 Baldwin v. U.S. Tel Co. 531, 588 Bowen v. Lake E Tel Co. 531, 539 Brya.t v. American Telegraph Co. 5381, 535, 539, 546 Breen & M. V.v U.S. TL Co 581 Bering v.N. Y.& W.U.TL Co. 533 Beese v. U.S. Tel. Co. 585, 536 Barnwell v. Mitchell, 428 Bangor Bank v. Hook, 429 Baker v. Martin, 429 Black v. Wilson 429 Babcock v Steadman 433 Blackwell v. State 434 Bowan v. Houk 435 Bank v. Mallet 435 Bonitler v. Stubbs 436 Balesan v. Gosling 436 Bell v. Manning 436 Buily v. Berry 437, 488 440 Brown v Marsh 436 Bronson v. Fitzhugh 437 Burke v. Noble 438 Brown v. Ayer 439 Bangs v. Sirong 440 Brown v. Exers of Riggins 440 Bay v. Talmuge 440 Bank of Hibion v. Burns 440 Burns v. Coats 440 Bank v. Fordice 442 Baker v. Briggs 442 Bolton v. Landy 443 Baker v. Kellogg 443 Bank v. Munford 443 Brinkerhotff v Phelps 307 Blackwell v Lawrence 361 Bain v. Fothergill 362, 365 Baldwin v. Munn 363 Barn y. Cress 365 Buchlyv. Davison 365 Blackwell v. oard of Justices 369 Boardman v. Keeler 370° Barnham v. Nichols 370 Redall v. Reed 376 Benden v. Manning 382 Burling v. Reed 383 Brown v. Cram 383 Bullock v. Dommitt 383 Bracknock Can.Co v.Pritchard 584 Beal v. Sanders 384 brown v. Crump 384 Bryan v. Fisher 385 Birch v. Parker 885 ix * Section Bronson v. Rhodes 408, 405 Kank of State v. Burton 407 Bigler v. Wall 408 Butts v. Olds 414 Brooks v. Hubbard 418 Baker v. Mair 418 Ballard v. Webster 422 Bank of Illinois v. Brady 424 Brown v. Davis 427 Brooks v Buffalo R. Co. 8 futton admrv.Hud.RR.Co. 8 Brown v. Maxwell 8 Blanchard v Eli 10 Bastron v. Stone 13 Booth v. Smith 13 Benson v. Green 13 Buckly v. Knapp 13 Biszer vy Maybell 14 Boynton v. Willard 17 Brown v. Roberts 18 Bockhoun v. Brown 18 Brown v. Allen Zi Beach v. Fulton Bank 22 Brown v. Perkins 23 Beach v. Hotchkiss 23 Bangor Bank v. Treat 23 Ballen v. Bryant 26, 29 Bunon v. Edwards 28 Bird v. Dennison 30 Bocegirde v. Oxford 41 Beasman v. Carington 42 Baltimore v. Blacker 48, 53 Bell v. Marion 48, 53 Butler v. Muscer 44 Band v. Railroad : 46 Balt & O. R Co. v. Blacker 47 iassv. G. & N. W. R. Co. 48 Blyth v. Thompkins 95 Buchabor v. Slegman 96 Brown v. Carady 96 Bishop v. Coffett 98 Burson v Lock 99 Bell v. Henderson 100 Bowman v. Caruthers 102, 106 Barnett v. Stanton 104 Barton v. Simmons 107 Bellamy v. Sabine 109 Brooks v. Riding 110 Burrows v. Lock 110 Bradley v. Rea 113 Boatman v. Smith 116 Barnes v. Duffy 119 Bango v. Smith 119 Brown v. Coblaugh 120 Brown v. Wase 120 Burton v. Calaway 122 Bryan v. Gidden 127 x LAW OF DAMAGES. Section Berry v. Fletcher 128 Bement v. Thompson 128. Bacon v. Towne 136, 145 Barron v. Mason 136, 150 Bell v. Graham 137, 146 Barnes v. Cress 146 Blizzard v. Hayes 149 Beal v. Robinson 151 Barber v. Kallborn 52 Banon v. Balto. & O. 54, 67 Burns v. Burk 55 Blackburn v. Mann 55, 321 Busket v. Lonato 56 Brown v. Swinford 57 Bauller v. Clark 59 Bell v. Hornsley 59 Barry v. Engles 62 Buller v. Gould 62, 63 Berchard v. Booth 69 Bowen v. Collin 71 Bartelet v. Henn 75 Bowers v. Vanwinkle 77 Barker v. Masley 79 Bamfield v. McCrary 81, 82 Bales v. Hill 82 Bennett v. Smith 82, 317 Bromley v. Wall 82 Ball v. Bruce : 88 Bartley v. Ruthnyer 88 Bagly v. Decker 88 Baughton v. Jackson 93 Baz. v. Tate 93 Bock v Stimpson 98 Bonesteel v. Bonesteel 94, 95 Bliss v. Thompson 94, 95 C. Cincin & Chig. R. Co. v. Rogers, 6 Clark v. Morrlgha 6 Cleveland R. Co. v. Ferry, 8 Clark v. Kemis 8 Clark v. Bales 13 Church v. Beach 13 Chicago R. R. Co. v. Flog 13 Cochran v. Miller 13 Childs v. Drake 13 Chopper v. N. O. R. R. Co. 13 Colstead v. Cleveland 19 Clatfield v. Wilson 21 Curtin v. Patten 21 Clarke v. Allen 23 Conklin v. Thurston ‘23 Cromwell v. Wilkinson 28 Coffin v. Barthmoth 28 Churchill v, Watson 41 Cleghorn v. N. W &e. R. 42, 51 Section Cook v. Ellis 44 Codwell v. N. J. Straw BCo. 45 Croft v. Allison : 46 CG. & BR. & St. RB. Co. v. McKeen 47 GC. R. IL & P.R Co. v. Harris 47 Collins v. Mack 51 Cadwell v. Steamboat Co. 54 Cochran v Miller __ oF Coon v McLaughlin 57, 58 Cox v. Vanderbleed 60, 61, 68, 96 Cox v. Whitney 62 Comwlth v. Elliuger 65, 68 Curtis v. Casson 65 Cushman v. Ryan. 66 Cooper v McJunkin 72 Chambers v Caulfield 75 Cook v. State of Georgia 75 Catherwood v. Carlton 76 Codington v. Codington 77 Conway v. Nichols 78 Clouser v. Clapper 79, 84 Cockun v. Anman 80 Champner v. Peck 81 Colman y. Ballard 356 Coleraft v. Lad. Harbaugh 86 Colter v. Lower 89 Coen v. Fuckner 91 Cook v. Neithercote 91 Coupey v Henley O41 Coffin v. Vincent 93 Carpenter v. Pocker 97, 808 Cromwell v. Clifford 100 Clem v. Newcastle R. R: Co. 100 Colley v. Gadsden 102 Craig v. Ward 103 Cooper v. Vanermy 103 Coats v. Nickels 731 Coplen v. Phenix Ins. 691 Cross v. Peters 103 Cain v. Gurther 106, 107 Chandle v. Lonpus 106 Compart v. Hedges _ 107 Colson v. Smith 108 Cooley v. Hampton 108 Cooley v. Harper 108 Conner v. Henderson 108 Colville v. Besly 109 Cabot v. Christie 111 Car v. Moore 111, 116 Carter v. Binigen 113 Case v. Walcott 117 Crenshaw v. Moore 120 Cannon v. King 120 Cole v. Drew 122 Chamberlain v. Enfield 122 Clark v. Crinth 122 Connell v. Emric 123 INDEX TO AUTHORITIES CITED. Section C.R R. Co. v. Finegan 124 Cushen v Longfellow 128 Chamberlain v. Collisan 132 Cecel v Clark 136 Calboness v. Martin 137 Comwlth v Snelling 138, 146, 148 Chapman vy Wood 147 Closson v. Stapple 150 Comwlth v.SennetsB & Co. 692 Chapman v. Pickersville 150 Cooper v. Watson 151 Cooper v. Waldron 152 Cupley v. G. & B.S. M Co. 152 Call v. Buttrick 153 Cox v. Burbridge 162 Colgrove v. R. R. 172 Collins v. Hill 172 Cleveland R. R. v. Ferry 172 Clarke v. Kerman 175 Chicago & Miss. v. Parker 175 Cummings v. Spruce 176 C. &c. R. R. v. Crawford 176, 181, 183 Clark v. Kirwan 176 Chicago R. R. v Still 177 Cleander R_ R. v. Elliott 178 Chicago R. R. v. « lark 178 Cin. « Mart R.R.v Eaton 179 Cook v. Champlaid Trans. Co 181 Cotton v. Com. bench 183 Callahan v. ‘ ean 185 Chicago v. Starr 185 Chicago R. R. v. Denny 188 Chicago v. Carr 193 Samev. Hesing 193, 226 Cruft v. Newark R. R. 198, 194 Curtis v. Rochester 202 Canning v. Williamstown 203, 207, 220 Cadwell v. Murphy 203 Cox v. Vanderleed 203 Cents v. Roch. etal R Co. 207 * Conner v. Weston 207 Cary v. Berkshire 208 Cress v. Guthrey 209 Chicago v. Mayor 220 Chicago etc. R Co v. Morris 220 Clev. & R. Co. v. Rowan 220, 223 Conant vy. Griffin 220, 228 Condon v. G. & C.R. R.Co. 228 Chicago v. Sholten 223 Condo v. G.S. R. R. Co. 223, ‘ 224, 227, 228 Chicago R. R. Co. v. Bayfield 224, 226, 227 Chicago v. Powers 224 ‘Commonwealth vy. Clapp 230 z xi Section Cornwall v. Richardson 234 Chubb v. Gill 234 Caulkins v. Sumner 235 Cooper v. Chitty 239 Caster v. Freeland . 239 Cook v. Loomis 239 Culler v. Farring 239 Chase v. Munroe 239 Carrier v Minshall 239 Ching v Vial 239 Chambers v. Shaw 239, 240 Conner v. Vall 240 Ceeency v. Wall 240 Chi. & Dock Co. v. Dunlap 242 Chipan v Hibberd 246, 248 Cox y. England 246, 248, 313 Clapp v Walters 256 Chessom v. Lancool 256, 260 Conoway v. Flint 256, 286 Chi. R. Co v. Shultz 256 Chapman v. Chi. R Co. 256 Sooper v. Williams 263 Craig v Mayor 263 Casto v. St. Paul R. Co. 264 Carter v. Baker 269 Cristie v. Murphy 273 Coruw v. Derby 273 Clark v Clark 274 Coats v Holbrook 274 Cabel v. Cooper 278 Clark v. Miller 279 Clark v. Smith 279 Clark v Hallock 281 Cox v. Sullivan 282 Conger v. Weaver 286 Champion v. Vincent 287 Cory v. Silcox 288, 289, 290 Cornly v. Davieson 289 Cox vy. Sprigg 290 Copeland v. Copeland 290 Collier v. Gamble 290 Conroy v. Flint 290, 309 Clinton v. Myers 293 Chase v.N. Y.C.R Co 296, 297 . Curtis v. Kiesler 297 Coen v. White 297 Cottod v. Pocasset Mfg. Co. 297 Chambell v. Smith 297 Carbert y. Auburn Gas L. Co. 297 Clatfield v. Wilson 297 Collier v. Pierce .800 Cherry v. Stiene 300 Carriage v. Dee 301 Casner v. Sitker 305, 306 Chill v. Horner 306 Calaway v. Middleton 307 Case v. Marks 7, 311 xii Section Case v. Marks 307, 313 Clark v. Massiglia 310, 315 Coleman v. White 82, 84, 311 Clause v. Clapper 311 Chipman v. Hibbard 313 Costigan v. M. & H. R. 317 Colts v. McKinney 322, 324, 329 Clark v. Pendleton 322 Coil v. Wallace 323 Conway v. Shelton 823 Chesby v. Chesby 325 Clements v. Moore 328 . Cow vy. Wilson 329 Comnwlth v. Knowlton 335 C., P. & Ft W. R. v. Pearce 337 Casewell v. Wendell 337 Cummins v. Kennedy 337 Cox v. Henry 848, 358, 362 Connell v Jackson 349 Clark v Swift 350 Chapman v. Holmes 350 Cumuniings v. Little 353-4 Clappell v. Bull 354 Cain v. Allen 354 Cuther v. Russell 355 Church v Higgin 855 Cady v. Allen 356 Conger v. Weaver 361-5 Clowny v. Crogham 361 Combs v. Tarlton 361 Cockcroft v. N. Y. & H. R. R. 361, 363, 364. 365 Case v. Wolcott 363, 367 Cook v. Booth 376 Connell v. Lumsby 380 Curtin v. Galvier 383 Cronin v. Hoover 385 Cook v. Litchfield 395 Crysler v. Renos 405 Carpenter v. Atherton * 405 Clark v. Nevada L. & M. Co. 405 Cushing v. Wells 407 Catlin v. Lyman 410 Chapman v Robinson 412, 413 Cramer v. Loper 416 Coldren v. Miller « 420 Castill v. Whips 420 Collins v. Burkam 423 Clark v. Spears 429 Croft v. Dood 429, 443 Crane v. Gough 431 Craig v. Vanpelt 431 Copeland v. MercantileIns. Co 434 Conan v. the State 435 Calvin v. Wigam 436 Cross ¥. Wyod 436 Campbell v. Gates 436 LAW OF DAMAGES, Section Crane, admnr.,v. Alling 487, 438 Catskill Bonk v Messenger = 437 Couch v. Mils . 437 Com. Bk. v. W. Reserve Bk = 440 Chambers v. Cochran 440 Curan v Colbert 440 Comnwith v. Miller 440 Christian v. Brown 441 Coats v McKee 441 Cooper v. Wilcox 442 Comstock v. Crean 442 Clark v. McCleas 443 Cummins v. Garretson 443 Conway v. U.S. Bank 444 Craig v Craig 445 Coe v. N. J. M. BR. R. 415 Croke v Lewis 450 Coolige v. Bigham 452, 458 Conner v. Dempsey 454 Carr v. Moore 454 Clare v. Maynard 454, 460 Crabtree v. Kile 456 Case v. Hall 458 Chesterman v. Lamb 460 Cooper v. Young 462 Cooper v. Young 464 Crater v. Berger 465 Casewell v. Coare 466 Callaman v. Brown 466 Clark v. Neefnill * 466 Comstock v. Hutchin 466 Cannon v. Folsam 467, 475 Crosley v. Watkins 467, 475 Clark v. Penn 467-8, 475-6, 480 Collen v McFadden 467, 475 Carrie v. White 469 Copper Co. v. Copper Mining 30. 479, 474 Crookshanks v. Mallory +482 Cornur v. Wall 482 Clark v. Mayor N. Y. 484 Cost v. Ambergot 485 Cortegon v. Mana 485 Coe v. Smith, 486, 496 Clark v. Gilbert 486 Cunningham v. Dorsey 487, 529 Clark v Smith 488 Crookshanks vy. Mallory 489 Cannon v. Wallace 495 Chamberlain v. Scott 495 Coon v. Gruman 495 Collins v. saumgartner 499 Cass v. Boston & Lowell R R. 504 Chainbers v. Shaw 504 Cankendale v. Eaton 504 Conner v. Weston 506 Coggs v. Barnard 5(6 INDEX TO AUTHORITIES CITED. Section Cartitue v Leesing 509 Chamberlain v. Brockett 510 .Chamkers v. Crawford 511 Cox v O’Riley 512 C.&C. AirL. Ryv.McConl 512 Chase et al vy Washburne 512 -Clark v. Rochester Co. 5138, 514 Cin. & L. Mail Line v. Boat 514 Car v. Lancashire 514 Cooper v. Young 520, 521 Cutting v. G. R. R. 521 Cortegan v. M.H. Rail Co. 529 Candee v. West. Tel Co. 535, 546 Campv. W.U Tel. Co. 535, 536 Cole v. Goodwin iS 536 Caxon v.G W. R. Co. 547 Clark v Kay 550 Carpenter v. Lockhart 550 Cathedral v. Salmage 550, 562 Chase v. Allen 5651 Charrington v. Laing 552 Crisdee v. Bolton 560 Commonwealth v. Conely 565 Carter v. Thorn 565, 566 Carter v. Carter 565, 566 Clark v. Seaton 565 Campbell v. Chamberlain 568, 569 Collins v. Sinclair Carpenter v. Stevenson 569, 584 Carcoran v Judsen 572 Coots v. Coots 572 Comdone v. Martin 573 Chapp v Walters 581 Callaghan v. Callaghan 583, Cooly vy Early 585 Coolege v. Gray 587 Coggeshall v. Am. In. Co. 587 Crocker v. Jackson 588 Cornegus v. Vasses 588 Cory v Bos. F.& M Ins. Co. 589 Cross v. Wilkins 727 Carman v. Marine Ins. Co. 590 Coplen v. Phoenix Ins. Co. 690 Commonwealth v. Sermet 692, 693 Carpenter v. Ins. Co. 694 Catlin y Spring. Ins. Co. 695 Cromiev.K & L.Mu.In. Co. 697 City N Y. Fire Ins. Co. v. J. - H. & H. P. Corlies 696 Chenowith v. Hick 711 Clapp v. Hudson 711 C. R. Davidson v. Polynix 711 C. & H.R Co. v. Pondrom 711 Creed v. Fisher 711 Clek v. Udall 712, 717 Chambers v. Callfield 713 Clouse v. Clapper 714, 716 568, 573, 574. xili Section Caldwell v. New Steamb. Co. 719 Chi. & A, K. Co. v. Willson 719 Chicago R. R. v. Garra 719 Clark v. Binny 720 Coffin v. Coffin 720 (lark v. McCarty 72) Clark y. Wilson 692 Collin vy. A. & Sch. R. Co 734 Chambers v. Clamfield 722 Chambers v. Robinson 722 Carning v. Delansy 722 Collins v. Albany 722, 723 Chicago & C. R.v. Fellmore 725 Chicago & M. W. v. Jackson 725 Connelly v. McNeil 727 D. Doughty v. Bird 5 Dent v. Toledo &c R. 6 Dascombe v. Erie R. 8 Day v. Holloway 9 Denaghue v Heath 12 Dorsey v. Memlow 13 Del. Steamb. Co. v. Wilden 13 Denslow v. Vanhorn 13 Day v. Woodward 14 Dodd v. Holmes 18 Dannell &c v. Stewart 22 Dreye v. Ming 23 Davis v. Coff 25 Daws v. Wycoft 29, 33 Day v. James 42 Doe v Filster 42 Dibble v. Morris 42, 43, 53 Dean v. Blockwell 42, 43, 53 DeNuongh v. Heath 42 Day v. Woodward 48, 204 Dexler v. Spear 58, 230 Denslow v. Vanhorn 55 Davis v. Slogle 55 Duder v. Knowles . 55 Dodwell v. Buford 58 Dole v. Eskin 59 Daily Post v. McCarthy 60 Dolard v. Hogan 65 Disman v. Wilkes 71 Dunham y. Dunham 77 Dodd v. Noris 81, 82 Doe v. Tuford 81° Dallas v. Sellers 84 Douherty v. Gunning 86 Dering v. State 91, 92 Davis v. Russell 92 Daniel v. Mitchell 99, 110 Duckinfield v. Whihcott 102 \Dickison v. Davis 104 xiv Section Durell v. Haley 106 Dingle v. Hare 112, 115 Durst v. Burton 112, 113 Derry v. Fletner 124 Douty v. Bird 129 Delegal v. Higby 136 Doe v. Davis 150 Donnell v. Jones 150 Downey v. Burch 151 Durant v. Palmer 164 Dascomb v Erie R. R. 175 Davis v. Mann 176 Delefield v. Union Ferry 176 Dean v. Clayton 181 Dixon v. Bell 181 Dally v. Warrick 188 Durham v. Musselman 191 Davis v. Garrett 193 Denny v. Fletcher 200 Daily v. DismalSwamy Canal 202 Drew v. Sixth Ave R. R. 209 Donaldson v. Miss &e R. 209, 220, 225, 227 Duckwood v Johnson 220-1, 227 Dalsonv.S E. BR. R. 222 Dalton v. 8. E. R. R. 223, 228 Dickens v. N. Y. &cR. R. 223 Dunhene v. Ohio Life Co. 223 David v.S. W R R. 227 D’Armond v. Armstrong 230 Dunn v. Hall 231 Duford v. Abadi 232 Dame v. Kedny 234 Duncan v. Daniels 236 Dixon v. Caldwell 239 Dillenback v. Jerome 239 Davis v. Oswell 245 Douglass v. Kraft 247 Dennis v. Barber 249 Dudley v. Ward 253 Dewitt v. Morris 254 Darley v. Caraway 256 Deekman v. Mayor N. O. 263 Devarainge v. Fox 263 Dingley v. Barton 263 Davis v. Charles &c R. R. 264 D. L.W. R.B v. Paine 264 Deaton v Polk 265 Dunbar v. Glenn 274 Deelim v. Deelim 274 Dutrich v. Schell 277 Danforth v. Pratt 279 Douglas v. the State, ex rel. Wright 283 Duendorf v. Werf 285, 290 Dorman v. Ames 287, 290 Dent v. Davidson 290 LAW OF DAMAGES, Dye v. Mann Davis v. Gale Dwivel v. Barnard Delhi v. Yeamans Dalington v. Panter Dodd v. Burche Dewett v. Greenfield Downey v. Burch Delaney v. Stoddat Denalow v. Vanhorn Dyden v. Knowles Douglass v. Stephens Dunn v. Johnson Dustin v McAndrews Darwin v. Potter Davis v. Fish Davis v. Mann Draydon v. Knowles Denslow v. Vanhorn Davis v. Slagle Daily v. Shirley Denmick v. Lockwood Daniels v. the State Danaldson v. M. & M. Dudley v Kilwell Douglass v. Scott Doswell v. Buchanan Dale v. Sincly Davis v. Lyman Delavergen \. Morris Dalton v. Baker Dunica v. Sharp Dunomars v. Miller Davis v. Lewis Driggs v. Dwight Dustin v. Newcomer Doherty v Doland Drake v. Baker Doupe v. Cenin Dean v. Roseler Denning v. Dwight Dean v. White Davis v. Moss Doge v Perkins Dering v. Leas Dooley v. Smith Depaw v. Humphries Dewolf v. Johnson Duscomb v. Barker Day v. Levenworth Dunn v. Clement Dorsey v. Hadlock Deardorf v. Forceman Dixon v. Dixon Dean v. Newhall Durell v. Wendell Section 290 297 297 297 297 300 307 308 309 312 313 314 317 317, 318 318 319 319 325 325, 327, 328, 330 326 337 346, 358 347 RR 348 350 350 350 350 353, 354 3538, 354 358 361 361 362 362 362 369, 370 370 378 381 382 382 385, 390 405 406 412, 413 412 412 420 423 429 432, 433 424 487 437, 488, 439 INDEX TO AUTHORITIES CITED. Section Dizing v. Baily 439 Davis v. Mitchell 440 Delaplain v. Hitchcock 440 Denson v. Gibson 440 Dixon v. Ewing 442 Dorman v Biglow 443 Driscoll v Board 443 Davis v. Payne 443 DeButts v. Bacon, et al 445 Davis S.M. Cav. McGinnis 448 Duff v. Mason 449 Diller v. Moore 451 Defrees v. Trumper 452 Dean v. Mason 452 Dickerson v. Gay 454 Durst v. Burton 454 Dengle v. Hare 454 Driggs v. Dwight 461 Davis v¢ Cin R. R. 462 Delvin v. Mayer 464, 474 Dana, v. Feidler 467, 468, 475 Davis v. Shield 467, 468, 475- Davenport v. Wells 467, 475 Dunlope v. Higgins 474 Downer v. Black 478 Dunstan v. McAndrews 481 Dermont v. Jones - 482, 489, 495 Darnes v. Fish 482, 489, 495 Davis v. Barrington 482, 495 Danby v. Williams 485 Doter v. Brown 486 Dunn v. Johnson 487, 498-99, 529 Dickson v. Caldwell 488 Dyer v. Jones 489 Dorcher v. Continental Mills 489 Dayis v. Doe 489 Derby v. Johns 495 Doolittle v. MeCollough 496. Dowdson v Graham 501, 502 Dart v. Love 502 Dreher v. Fitchburg 503 Doorman v. Jenks 503 Duncan v. Moggett 505 Lykers v. Allen 509 DeTollemer v. Fuller 510 Duncan v. R. R Co 510 Dean v. Vaccaro & Co 515 Denny v. N. Y. Cent R. R. 517 Dawes v. N. Y. Cent R. R. 520 Deming v. Grand Trunk R R. 521 Doyle v. Kliser 526, 528 DeRuthyv. N Y., A. & B. Tel. Co. 531, 534, 538 Dennetter v. A. &c T. Co. 547 Daniels v. Ward 550 Duff y. Shocky 550, 559, 561 Dakins vy. Williams 551, 558, 562 xV Section Dunlap v. Gregor 551 Davis v. Benton 552, 557 Durst v. Swift 553 Daily v Litchfield 555 Davis v. Gillett 565 Davis v Board of Com. of Booth. Co 566 Donnell v. Jones 567 Denny v. Humphries 568 Derry Bank v. Heath 573 Devol v McIntosh 577 Dorsey v. Gasaway. 581 Devendorf v. Dickinson 582 Dodge v. Essop 587 DeLonguemore v N. Y. Ins. 587 Delaney v. N. E. Ins, Co, 588 Debloss v. Oceanic Ins Co. 590 Dewost v. Loomer 711 Dulby v. Gunning 713 bavis v. Davis 720 Doyle v. Dixon 722 Doty v. Rigour 726 Diblin v. Murphy 727 Doby v. Regour 727 E. Evansville &c. R R. Co v. Heath 8 Ev &c R R. Cov. Loudermilk 8° Ev. &c R. R Co. v. Durer 8 Ellis v. Duncan - 20 Enoble v. ‘Myers 42 E &C.R.R Co.v. Bowen 45, 46 Ellsworth v. Thompson 62 Estey v. Estey 17 Edwards v. Crock 81, 86 Eager v. Grimwood 86 Ellington v. Ellington 87 Edmonson v. Marshall 88- Edwards v. Owen 102 Ellis v. Andrews 104 Edwards v. Edwards 120 Edwards v. Beebe 125 Ellis v. Abraham 141 Ely v. Supervisor Co 155 E. & C. BR. R. v. Heath 175 Ev. R R. v. Loudermilk 175,177 E.&C R.R. Vv. Dexter 175, E &C.R. R. v. Hiatt 176, 183 Ernest v. H. R. R. R 183 Eckert v. Long 193 Eden v. Lexington R.R. Co 208 Ewen v. Chicago R. R. Co. 224 Evans v. Harras 233 Eq. Mut. Ins Co. v. Woodruff 694 Elere v. Evans 234 xvi Edmonson v. Nuttal LAW OF DAMAGES. Section 239 Ellis v. Wise 248, 244 Ewart v. Kerr 248 E. & P. R. R. v. Holmes 264 Emener v. Badger 274 Elder v. Morris’ Q77 Ellis v. Duncan 292, 295 Evans v. Murriworth 294 Elliott v. Fletcher 297 Earl v. Dutest 207 Eddy v. Simpson 297 Eastland v. Calder 307 Ellis v. Guggenheimer 323 Espy v. Jones 328, 329 Erwin v. Greenwood 330 Eewis v. Ridge 350 Engle v. Fitch 365 Estep v. Estep 376 Erie Canal v. Brett 376 Else v- Gatward 382 Elmes v, Mann 385 Elliott v. Holbrook 438 _ English v. Brown 443 Eden v. Scott 450 Eddie v Crim 452 Edwards v. Colson 454 Ellis v. Chinnack 460 Epperley v. Bailey 482 Eddington v. Pick 482, 489, 495 . Ellis v. Hamlin 488 Eyser v. Wussgisler 489 Eldridge v. Adams 603, 504 Eastman v Amy 507 Elliott v. Armstrong 508 Evans v. Fitchburg R. Co. 514 Edmonson v. Baxter 520 Erie R. Co v. Lockwood 524 Ellis v. Am. Tel. Co. 531-2. 534, 535, 536 Emmon v. Von 550 Edwards v. Williams 557 Early v. Spooner 570 Edwards v. Bodine 572 Edwards v. Edwards 573 English v. Beard 585 Eagan v. Mut. Ins Co 699 Elsworth v. Cent Co. 711 F Fletcher v. Labin 10 Foster v. Nichols 13 Friedenstite v. Edmonson 13 Fox v. Stevens 13 Fay v. Parker 14 Floyd v. N. Y. City 19 Feila v. Desmoines 21 Section Fenlon v. Wilson 22 ’ Fay v. Parker 30, 31, 32, 34, 37 38, 44, 57 Fry v. Bennett 44, 232 Fidley v. McKinley 55 Fisher v. Bridges 59 Fillbeck v. Foster 59 Flog v. R. R. Co 60 Fuledor v. Waick 62, 305 Foreheld v. Cal Sta. Co. 67 Floyd v. State 68 Forbes v. Parson 72 Forney \. Hallett 75 Felowing v. Colmon 84 Falkner v. Scarlet 87 ‘Fuller vy. Buehrer 89 Fox v. Gant 91 Farrell v. Barnett 94, 95 Fellows v. Goodman e 95, 99 Feenzel et al. v. Miller Fuzan v. Toulman Foley v. Cogill 101, 433 Fenton v. Brown 102 Fisk v. Hicks 112, 115, 454 Freeman v, Smith 121 Fralton v. McGally 128 Fasyth v. Palmer 129 Fayth v. Wells 132 Fosha v Ferguson 136 Farmer y. Darling 137, 141, 145 French v. Smith 142, 143 Fisher v. Bristow 147 Fitzgibbon v. Brown 151 First Bpt. Ch. v. 8. & T. R. BR. 152 Fenton v. Wilson S. M. Co. 152 Fish v. Doge 154 Fairchilds v. Bentley 162 Fleming v. Orr 162 Farland v Marshall 165 Foley v Wyeth 165 Foster v. Holly 177 Flynn v Hatton 185 Fent v. T. R Co. 193 Fairbanks v. Kerr 193 Flynnv.8. F.&8.J.R.R. 200. Fry v. Dubuque & 8. R. R. 202 Fulsom v. Concord 202 Frink v. Schroyer 202, 207 _ Ford v. Monroe 209, 228 Franklin v.S E.R. R 220-23, 228 Fuller v. Fenner 232, vat Fountain v. West 236 Fisher v. Tice 236 Freeman v. Tinsley 236 Farmers’ Bank v. McKee 245 Foythe v. Wells 245, 246, 248 Frasier v. Frederick 252 INDEX TO AUTHORITIES CITED. Section Fay et al v. Reddick 254 Fitzhugh v. Wiman 258 Freeland v. NC R RCo 265 FA&SRRCov. Caldwell 265 Flint v. Clark 268 Ferguson v. Daniel Miller 274 Faber v. Dunty 275 Flourney v. Jeffersonville City 278 Farmer v. Turnpike Co 279 Forsyth v. Palmer 281 Fullman v. Stearns 285, 287, 290 Freese v. Cary 287 Fray v. Vouls 290 Fifty Association v. Tudor 301 Fuller v. Dean 307 Fletcher v Burrows 307 Faulke v. Selway 312 Foster v. Wells 313 Flower v. Adams 319 Frost v Knight 821 Field v. McKinley 827 Feble v Coplinger 328 Fidler v. McKinley 829 Furlong v. Polly 329 Fleming v. Beck 329 Flureau v. Thoruhill 333, 334, 362 Farmers’ Bank v. Glenn 337, 354 Foster v. Thompson 837 Furniss v. Ferguson 346 Foot v. Burnet’ 347, 3538, 354 Farland v. Williams 350 Funk v. Voneda 354 Faucet v. Wood 355 Funk v. Caswell 356 Fletcher v. Button 357 Fold v. McKingan 361 Franchot v. Leach 370 Furnical v. Crum 376 Fowler v. Bott 384 Ferguson v. Stafford 386 Freese v. Brownell 412 Forse v. Elizabeth City 416 Farwell v. Kennett — 420 Fairbanks v. Metcalfe 433 Fullerton v. Sturgess 434 Farrell v. Forrest 437 unk v. Green 437 Fitch v. Sutton 439 First, &c., Bank v. Smith 443 French v. Price 445 Fielding v. Waterhouse 445 Foggart v. Blackweller Fraley v. Bispham 454 Frink v. Tatman 454, 475, 476, 498 Foster v. Rogers 454, 458 Fates v. McKeon 454 Ferguson ‘vy. Harris 454 450 . xvii Section Fleck y. Weatherton 457 Faris vy. Comstock 457, 466 Faris v. Lewis 459 Fagin v. Beasly 460 Fisk v. Tank 461 Fasselar v. Love 464 Fleming v. Beck 464 Forsyth v Palmer 477 Frazer v. Gregg 484 Francot v. Leach 485 Fenton v. Clark 486 Farrow v. Wilson 486 Fuller v. Brown 486 Fail v. McKee 487, 499 Fox v Hadding 487 Flora v. Danby 495 Furlow v. Gillan 501 First National Bank v. Nelson 507 Foltier v. Schrader 507 Franklin v.: Neal 509 Fisher v. Kyle 510 Field v. Brockett 510 Foster v. Taylor 511 Francis v. Castleman 511 Fenner v. Buff&SLRRCo 515 Farmers’, ee, Bank v. ony land T 517, 547 Field v. Ghicsau: &e., RR Co 518 Fox v. Hurding 529 Falvey v. N W Trans Co 536 Freeman v. Clute 540 Foley v. McKegan 550, 553, 559, 566 Fletcher v. Dychi 552, 560 Freeman v. State of Illinois 565 Fox v. Mountjoy 573 ' Frazer v. Fredericks 579° Fitch v. Dakin 580 Ferhench v. Sewell 581 Foley v McKeegan 584 Fountain v. Draper 585 Fairbanks v Kerr 585 Foster v. Eq Ins Co 694 Ford v. Ward 711 Franz v. Hilderbrand 722 Foster v. Van Norman 727 Frank v. Hessler 732 G. Gelent v. Buckingham 9 Griffin v. Calver 10 Grobli v. Morgan 13 Gurd v Risk 13 Gelset v. Allen 13 Gordon v Jones 14 Gould v. Christianson 14, 68 Goodnight v. Goor 17 Xviil Section Gray v. Goodman 17 Getty v. HR R Co 17 Greencastle v. Lazeloot 20 Greenleaf v. Freese 20 Ganel v. Morton 21 Goodlove v. Cincinnati 22 Goodspeed v. East S Bank 22 Green y. M. O. 7 Conn 22 Grable v. Margrove 42 Garland v. Whaleham 44 Goddard v. G T R Co 47, 50 Goddard v. Bailey Gaul v. Cleming 53 Green v. Craig 54 Gregory v. Hill 60 Green v. Botsam 60 Greenmyer v. Morris 62 Gaither v. Blower 63 Gallagher v. State 68 Gardner v. Maderia 78 Grable v. Margrove 79 Garden v. Jadis 82, 311 Gillcrist v. Bale 84 Gunnell v. Wells 87 Gray v. Darland 87 Grove v. Dill 88 Griffin v. Colmer 91 Gatling v. Newell 101, 102, 103, 106, 108, 109, 451, 480 Green vy. Gordon 102 Georgia v. Higgenbottoms 103 Garret v. Headstone 108 Groves v. Spier 111 Gates v. Reynolds 116 Gibson v. Wood 120 Goodlittle v Alker 122 Garrett v. Anderson 122 Gillett v. West R R Co 125-206 Gilbert v. Kennedy 131 Galloway v. Stewart 136-149 Goggons v. Messmore 150 Gould v. Bennett 150 Goldsmith v. Picard 150 Goodrich v. Warner 151-308 Goods v. East Hadden Bank 152 Gillett v. Missouri Valley R Co 152 Grady v. Walmer 154 Graves v. Shattuck 155 Grigley vy. C. Lake W Co 158 Gillett v. West 163 GCW RBEOov. Dill 176 Griffin v. N Y Cen R R Co 189 Glassey v. Hustonville R R Co 189 Gagg v. Vetter 192 Grantrel v. Egerton 192 Gallagher v. Humphries 192 Groveatt v. Williams 192 LAW OF DAMAGES. Section. Gramm v. Brewer 206 Galliger v. Thompson | 206- Grotenkemper v. Harris 223. (cuengerrech v. Smith 224 Guy v. Gregory 234 Golderman v. Stearns 234 Goodman v. Topping 235 Gar v. Seldon 235: Grove v. Brendenburg 235 Gates v. Meredith 237-307 Greenfield Bank v. Leavitte 239, 240, 249, 809+ 2 Green v. Wilkins 44. 252, 257, 259 Gordon v. Jeny Garrett v. Wood 256. Giery v. Cin & WillRRCo 264 Graham v. Plate 273 Gilman v. Hunnell 274 Gregory v. Brown 277 Governor v. Raly 283 Glasscock v. Lyons 283 Gillet v. Johnson 297 Ganel v. Looney 297 Givanch v. Burbank 297 Greenleaf v. Force 297 Gorman v. Hargadon 297 Glane v. Harding 301 Gaber v. Grabel 301 Greenfield Bank v. Bennett 310 Grant v. Wiley 312 Green v. Spencer 323 Greenleaf v. McCobb 325 Grant v. Durkin 328 Gooddale v. Thurman 328 Green v. Irvin 336 Gore v. Bazire 342 Gurther v. Pugsley 346-347 Griffith v. Reynolds 346 Giles v Durgo 346-356 Gibbs v. Thayer 350 Gough v. Bell 350 Gochenaur v. Mowry 350 Gloster v. Audley 350 Greenlee v. Wilcox 350 Grant v. Tallman 353-356 Gilbert vy Minn 353 Greene v. Tallman 357 Grant v. Hodges 359 Gaff v. Hawks 361 Gerault v. Anderson 362 Goodpasture v. Porter & Court- ne 370 ‘Goodson v. Nunn 370 Glazebrook v. Woodson 871 Groves v. Burdane 376 Guased v. Turner 381 Gill v. Middleton 389 INDEX TO AUTHORITIES CITED. ! Section Gibson v. Wells 384 Gough v. Howard 384 _ Gwinn v. McCatmont 386 Gutacapv Wamluse 424 Greese v. Wynn 436 Gahn v. Numenz 441 Greenwalt v. Keitler 443 Gillian v. Ludington 443 Griffin v. Orman 445 Gaff v. Sims 447 Gammel v. Paramore 448 ‘ Griffin vy Calver 450, 456, 461, fy 464, 539, 540 Gray v. Cox 450 Gallagher v. Waring 454 Grose v. Henry 454 Gattering v. Newell 469 Gee v. Lancaster R R Co 474 Ganson v. Moding 480 Gordon vy. Norris 480, 481 Griswold v. Sabein 481 Graham v. Graham 484 Gillman v. Hall 489 Goodard v. Barnard 491 Glass v. Garber 497 Gunther v. Pugsby 500 Gaines v. Union Trans. & Ins. Co. 515, 518, 526 Graves v. H. N. Y. Steamboat Co 515 Galena R R. Co. v. Roe 520 Graham v. Davis 525 Gordon v. Buchanan 525 Grover v. Carter 550 Granalle v. Londen 550 Garner v. Saltmarsh 553 Green v. Price 560 Granelli v. Lowden 562 Grate v. Gillespie 568 Gist v. McGuire 573 Gilbert v. Wiman 577 Green v Smith 580 Griffin v Culver 581 Griffith v Griffith 583 Gaw v. Mut. Fire Ins. Co. 695 Gates v. Madison Mut. Fire Ins. Co 695 Guard v. Risk 711 Graham v. Watson 711 Garrett v. Brazell 711 Green v. Southern Ex. Co. 712 Goldsmith v. ord Sefton 722 Griffin v. Weatherspoon 727 Gibbs v. Tunnell 732 Graham v. Waterman 733 ‘ xix Section H. Hadley v. Baxendale 6, 11, 195 464, 118, 539 Hamilton v. McPherson 6, 310, 316, 318, 319 Hickscher v. McLeoy 6 Hay v. Gronosble 7 Hall v. Hall 8 Harper ¥. Miller 9 Huty v. Brown 13 Hawks v. Ridgway 13 Hendrixon v. Kingsbury 18, 44, 68 Hyatt v. Adams 13, 208 Hooker v. Nutor 14 Holly v. Huggerford 17 Haswood v. Benton 21 Homer v. Hinning 21 Hawkins v. Duchess, &e. 22 Hamilton v. Cincinnati 22 Hyply v. Grace et al 22 Harris v Huntington 22 Herring v. Happock 23 Hay v. Parker 25, 29 Herchell v. Money 42 Humphries v. Johnson 42-44 Hopkins v, At. R. R. Co. - Hoodly v. Watson Hill v. Nev. & Op. L. R. R. Co. 45 Hopkins v. A. St, L. R. R. Co 47, 202, 203 Hagar v. Prov R Co. Hamilton v. A. R Co. 50 Hull v Richomer 53 Hill v. Glanding 54 Hopper v. Reese 59 Hendixson v. Ringley 60 Hays v. Barrymore 65 Honer v. Elder 66 Hunt v Hoyt 67 Hoodly v. Watson 68 Holyoke v.G & J. R. R. Co. 68 Healy v. Wood 68 Hill v. Rogers 69 Hathaway v. Rice 72 Huett v. Swift 73 Holmes v. Wakefield 73 Hough v. Watson 75: Hasler v. Crill 82, 311 Hodges v. Wendham 82 Hill v. Wilson 86, 87 Huett v. Prime 88 Herring v. State 89 Hall v. Rogers 89 Holly v. Mix 91 Hall v. Rogers 95 xx Section Harlin v. Spaulding 96 Hill v. Bush 100 Humphreys v. Comline 101 Hague v. Grosman 101, 102 Hess v. Young 101, 102, 106 Harney v. Young 102 Humev. Pollock 102 Holbrook v. Conner 108 Hubble v. Mesis 104 Hagee v. Grosman 106 Hillsbrook v. Burke 106 Hammon v. Shields 107 Howard v. Cadwalider 108 Hardesty v. Smith 108 Hanna v. Shields 108-109 Hadley v. Smith 108 Hunt v. Silk 108 Hogan v. Meyer 108 Hiner v. Richter 115 Hohn v. Cummings 116, 466 Hopkins.v. Lee 117 Hume v. Tupts 120 Hamer v. Welsy 120 Holden v. Shattuck 122 Hass v. Borders 124 Hammond v. Reese 128 Haskins v. Philllps 128 Hart v. Evans 129 Heard v. James 132 Hays v. Blizzard 135, 136, 147 .Hall v. Suydam 137, 140, 146 Hurd v. Shaw 149 Hicks v Dorn 158 Hartshorn v. Ink §. 159 Harvard College v. Stearn 159 Humpbreys v. Bragden 165 Hay v. Lecher 168 Hoffman v. Union Ferry Co. 170 Howe v. Young : 175 Haven v. Erie R. W. Co. 176 Haley v. Earl 176 Hance v. Cayuga R. R. Co. 176 Haycraft v. Crease 181 Hawkins v. Cooper 182 Huel Senkenkamp v. Citizens’ R. R. Co. 182 Harty v. Central Co. 183 Hughes v. Mayfie 185 Hatfield v. Roper 185, 186 Holly v. Boston Gas Light Co. 185, 186, 187 Hathaway v. Toledo, &c., R. R. Co. cl 185 Honingsberger v. Second Ave- nue R R. Co. 186 Horr v. Parks 186 Hughes v. Macfia 187 LAW OF DAMAGES. ' Section Hardcastle v. South Yorkshire R. W. 192 Houndsell v. Smith iM Holland v. Vance .G. TR. R. Co. 192 Holyoke v 202, ‘203 Higgins v. Dewy 197 Hendrickson v. Kingsbury 203 Harrison v Harrison 205 Howard v. Groves 206 * Hopkins v, Atlas R. Co. 207 Hunt v. Hoyt 207 Hanover v. Coyle 207 Hunt v. Chicago R. R. Co. 224 Huntington v. Decker 226 Hutchison v. York R. R. Co. 229 Hicks v. Foster 232 Hunt v. Jones 232 Hartcourt v. Harrison 234 Holly v. Burgess 234 Haun v. Wilson 234 Hosley-v. Brooks 234 Humphreys v. Parker 234 Harberson v. Shook 234 Hawes v. Stapord 234 Hayward v. Foster 236 Hurd v. Hubble 239, 245 Heldborn v. Brown 239 Haden v. Bartlett 239 Hyde v. Coopson 248 Harvey v. Harvey 253 Hurd v. Gallager 256 Hayden v. Anderson 258, 309 Hayward v. Mayor N Y. 263 Halderman v. P & C R.R. Co 263 Hatch v. Cincinnati lt. R. Hunt v. Smith 263 Homestein v. A. &G. W. R. R. 264 Henry v. Dubuque R.R. Co. 265 Hall v. Wiles 269, 327 Holland v. Fox 270, 271 Hubble v. U.S. 271 Holloway v. Holloway 274 Holliday v. Baird 274 Hostler v. Vansickle 274 Holten v. Smith 274 Hays v. Porter 279 Hamilton v. Marsh 279 Hudson vy. Wilkint 279 Hammer v. Griffith 279 Hartman v. Shriner 280 Hunter v. Bacon 281 Hopple v. Higbee 281 Hill v. Loomis 281 Holmes v. Peck 282 Hoby v. Built 283 Hogan v. Riley 286, 290 INDEX TO AUTHORITIES CITED. Section Hutchinson v. Schimmifelt 289 ‘Hope v. Ally 289 Hunt v. Donal 290 Holderman v. Burkhardt 295 Hawksworth v. Thompson 295, 297 Howard v. Ingersoll 297 Hill v. Newman 297 Humphries v. McCall 297 Haight v. Price 297 Hill v. Smith 297 Haldeman v. Buckhart 297 Haversteck v. Lipe 300 Hubbard v. Town 800, 301 Holmes v. Elliott 301 Helsteck v. Lipier 301 Hogson v. Jeffers 301 Hays v. Border 303 Hoct v. Reed 307 Henson v. Veach 307 Hawley v. Warner 309 Hecksher v. McCray 310 Hedges v. Wendham 311 Heanamlon v Kramer 317 Hunt v. Crane 317 Hassa v. Junger 319 Harrison v. Berkly 319 Hollawell v. Griffith 321 Hubbard v. Bonsti!l 323 Hoit v. Moulten 323 Hay v Graham 323 Hunt v. Peak 327 Harrison vy. Case 827 Hocker v. Blake 337 Hosford v. Wright 337 Hemuning v. Withers 337 Hoot v. Spade 346 Hiser v McCollis 349 Howell v. Richards 349 Hoyt v. Dimond 350 Harris v. Morris 350 Hamilton v. Wilson 350 Harlow v Thomas 353 Herrick v. Moore 353 Hall v. Dean 853, 354 Henderson v. !l]enderson 354 Hubbard v. Norton 355 Hopkins v. Grosback 257 Hill v. Hobart 357, 370 Hammon v. Hannier 361, 362 Hendon v. Venable 361 Hall v. Delaphaine 361 Hopkins v. Lee 370 Harding v. Wilson 375 Hart v. Windsor 376 Hexter v. Knox 377 Hinkly v. Beckwith 380 Holmes v Davis 380 xxi Section Hughes v. Hood 381 Hyatt v. Wood 383 Handon v. Johns 383 Harder v. Harder 386, 387 Harding v. Coning 405 Haywood v. Haywood 418 Hobert v. Kimberly 420 Hudson v. Noble 420 Hixson v. Hixson 420 Hollanback vy. Wilbard 423 Hubble v. Brown 429 Herold v. Scott 429 Harris v. Pierce 429 Hoa nd v. Hatch 435 Hunter v. Postlewaite 435 Harbert v. Dumont 435 Hall v. Thompson 436 Hubble v. Carpenter 437 Houston v. Hurly 442 Hemstead v. Watkins 443 Hamlin v. McCallister 443 Hite v. Campbell 444 Holmes v. Weed 444 Haden v. Cadat 444 Hough v. Ztna Life Ins. Co. 445 Honse v. Fort 449, 450 Hadley v. Baxendale 450, 521 Hawkins v. Berry 450- Howard v. Foster 451 Hermance v. Venoy 452 Hubbard v. Johnson 452 Hale v Smith 452 Huntington v. Hall 452 Holden v. Daikin 452 Hall v. Plassan 452 Hargrave v. Stone 454 Houghton v. Carpenter 454 Hook v. Stowell 454 Hogan v. Thornington 463 , Hamilton v. McPherson 464, ; 474, 529 Houg v. Myers 469 Haskell v. Iiunter 469, 476 Hamilton v. Ganyard 469 Hinde v Liddle 472, 477 Hamilton v. the G.N. R Co. 474 Hale v. London & N. W. R. Co 474 Hinkley v. Beckwith 474 Harper v. Smith 475 Harrison v. Harrison 478 Haskill v. McHenry 480 Howard v. Daly 485 Hunt v Crane 485 Hale v. Belden 486 Hensen v. Hampton 488 Hubbard v. Belden 489 Hayward v Leonard 491 XXli Section Heaton v. Colgrove 492 Hunt v. Collins 495 Hall v. Boston & Worcester R. R. Co. . 504 Hugh v. London R. R. Co. 504 Holbrook v. Wright 504 Hill v. Wiggins 504 Haver v. Love 507 Humaker v. Sturgis 508 Hutton v. Arnett 509 Homer v. Swing 510 Harper v. Bound 512 Huntingdon v. Drake 513 Hall v. Denfro 514 Hyde v. T. & M. N. Co. 517 Hobbs and wife v. L. &S W R’y Co. 527 Hawkins v. Hoffman 527. Hecksher v. McCray 529 Hubbard v. W. U. Tel. Co. 541 Hulston v. Norman 547 Hamilton v. Overton 550, 553, : 559, 562 Huff v. Lawler 551 Hazlewuck v. Tappen 551, 562 Hogland v. Sequr 551, 559 Hosmer v. True 553 Hannaman v. Breedenbock 555 Horner v. Flintaff 557 Hise v. Foster 559, 562 Hardee v. Howard 562 Holbert ex rel v. Commissioners of Martin County 565 Hancock v. Hazzard 565 Hellen v. Ardly 566 Hughes v. Wynn 566 Hughes v. Wickliff ° 566 Harrison v. Wright 566, 584 Hosham v. Hosham 568 Hayden v. Sample 568 Harper et al v. Keys 569 Hamilton v. Steele 574 Ham v. Groves 575 Ham v. Hill 576 Hayden v. Cabott 577 Hallock v. Belcher 578 Hugerford v. Kedford 579 Hedrick v. Young 579 Hamilton v. Brewster 583 Harvey v. Royal Exch. Asso. 0. 587 Haley v. Drenchler Mutual Fire Ins. Co. 692 Hoffman v. Ins. Co. 693 Home Ins. Co. v. Thompson 694 Hough v. People’s Ins Co. 696 Harris v. Protection Ins, Co. 696 LAW OF DAMAGES. Section Hutchins v. People’s Ins. Co 699 Hamilton v. Cunningham 708° Harris v Rupel 714 Harry v. Watson ; 722 Hall 'v. Bark Onily Banning 730 Howard v. Barnard 732 Hudspeth v. Allen 732 I. Illinois Central v. Hummer 50 L, B. & W.R. Co. v. McBowen 53 Ireland v. Ellart 64, 66 Ingersoll v. Jones 88 Irwin v. De Cannon 88 Ingram v. Morgan 104 Israel v. Brooks 151, 308 I. P. & C. R W Co v. Anthony 152 Indianapolis v. Miller 156, 161 Till. Cen. R. R. Co. v. Grabill 159 I. & P. R. RB. Co. v. Petty 177 I. C. R. R.Co. v. Finnegan 163, 314 I P.& C.R. R. Co. v. Rubey 175 Illinois Central v. Phelps 176 Ill. Cen. Co. v. Hutenison 177, 190 Indianapolis R. Co. v. Bowen 178 I. & St L. R. R. Co. v. Stout 178 Ill. R. R. Co. v. Craiger 178 Til. R. R. Co. v. Hall 178 I. & C. R. R. Co. vy. Caldwell 181 I. B. &W.R. R. Co. v. McBrown 181, 182 Ind. & Cin. R. R. Co. v. McCluer 182 Tl. v. 42d Street R. R. Co. 188, 223 I.B.& W. R.R. Co. v. Carr 193 Indianapolis v. Gaston 203 Til. Cen. R. R. Co. v. Baches 220 Til. Cen. R. R Co... Weldon 220 Innman v. Foster 234, 307 Ingalls v. Lord 250 Irvin v. Miss. C. R. R. 264 Irwin v Dixon 301 Irvin v. Greenwood 327 Izon v. Gaston 376 Ives v. Ives 883 Ind Ins. Co. v. Thomas 405 Inglethem v. North R. Co. 520 Insurance Co. v. Updegraff 694 Ill. Cen. R. R. Co. v. Welch 722, 723 Ill. Cen. R R. Co. v. Weldon 722 J. Jones v. Vanpotter 6 Jefferson v. Adams 13 Johnson v. Camp 18, 61 Jennings v. Maddox 13 INDEX TO AUTHORITIES CITED. . Section Jones vy. Rahilla 13 Jones v. Turpin 14 Judson v. Cook 23 Jonesv Jones 438, 51, 482, 489, 495 Johnson v. Jenks 55, 310, 325 Jobnson v. Thompkins 59 Jackaway v. Dooley 62 Jones v. Thompson 84 J8hnson v. Maxon 97 Jenkins v. Lang 101,:102 Junkins v. Simpson 104 Jenks v. Long 106 Jackson v. Wilcox 106 Johnson v, Cook 107 Jenks v. Simpson 107 Johnson v. Cookerly 108, 109 Johnson v. Jones 109 Jones v. Justice 112, 115 Jeffy v. Biglow 113 Jarrett v. Genathmey 121 Jarrett v. Gatling 122 Jackson v. Hathaway 122 Jones v. Gooday 129 Johnston v. Sutton 187. 141 Jacks v. Stimpson 149 James v. Phelps 151 Jenks v. Turner 161 Jeffersonville R. R. v. Swift 175 Jobnson v. Hudson R. 176 Johnston v. Stebbins 230 Johnson v. Stear 239, 290 Jenkins v McConico 248 Jones v Rohill 249 Jenuings v. Johnson 258 Jamesv.James , 274 Jewett v. Whitney 290 James v. Williams 297 Jackson v. Halstead 297 Johnson v Jordon 297 Johnston .. Calkins 812 Jones, adm.. v. Pattent 315, 316, 317 Jackson vy. Winslow 349 Jackson v. Wright 350 Jenks v. Hopkins 358, 359 Jetter v. Glenn 358 Johnson v. Arnold 382 Jones v. Reed 384 James v. Brooks 429 Jamison v..Grovenor 439 Joseph v. Heaton 441 Johns v. Reardon 441 Jenks v. Clark 443 Johns v. Johns 444 Jackson v. Adamson 445 Juda v- Neiure 445 Jones v. Bradford 446 Jones v. Zuick 450 Xxili Section Jones v Bright 450, 457 Johnson v. Coke 452 Jefferson v. Biglow. 459 Jones v. Van Patten 486 Jones v. Judd 486 Jennings v. Camp 488 Jewell v. Schappell 496 Johnson v. Hudson River Co. 503 Jenkins v. Bacon 504 Jackman vy. Partridge 505 Jourdon v. Reed 506 Jourdon v. Sherman 512 Jonnson v. Midland Co. 514 Jeff. R. R. Co. v. Cleveland 515 Jackson v. Rodger 519 Jordan v. Fall River & L. E. Railway Co. 527 Jamison v. Grey 559, 562 Jones v. Doneberger 575 Johnson v. Shelden 592 Jones v. Sparrow 722 K. Kepka v. Sargeant 11 Ky. R. R. Co. v. Dells 13 King v. Root 14 Kendal v. Stone . 14 Keanas v. Schuylkill 22 Judson v. Cook 22 Kloffer v Romane 44 Kiffin v. McConnell 55 Krone v. Schoonmaker 56 Keslard v. State 59 Kilper v. Hyer 60 Key v. Dembin 61, 66, 67 Knight v. Wilcox 86, 87 Kendrick v. McCray : 87 Koener v. Oberly 96 Kingley v. Wallis 106 Kilroy v. Ross 106 Kimble v. Cunningham 108 Kreesan v. Cloud 110 Knowles v. Nunn 118, 459 Kirkpatrick v Kirkpatrick 137, 149 Kidred v. Stilt 150 Kearney v. Farrell 153 Kerwhacker v. Cleveland R. Co 177 Kerwhacker v. C. C. & C. N. R. R. Co. 180 Kearnes v. Snowden 183 Keefe v. Chicago R. R. Co, 184 Kreig v. Wells 185 Kerr v. Forgue 188, 202 Kellogg v. C. & N. W. R.R. Co. 197, 201 Kimmel. v. Stone 205 XxXiv Section Keller v. N. Y. R. R. Co. 223 Karney v. Paisly 224 Kansas & Pacific R. R. v. Cutter 226 Kennedy v. Whitemill 239 Kennedy v. Strong 239 King v. Oesir 239 Kerr v. Patterson 246, 248, 313 Kohl v. U.S. 262 Keenas v. Schuylkill Bank 269 Kimble v. Kimble 290. Kaler v. Beamore 294 Kelly v. Notono Water Co. 297 Kemble v. Gilbert 297 Kidd v. Laird 297 Kauffman v. Gisner 297 Keato v. Hugo 300 King v. Miller 301 Klofer v. Brown 312 King v. King 328, 324, 328 Krufford v. McConnell 826, 329 Kelly v. Renfro 327, 328 Kelly v. Riley 329 Kansas Pacific R W. Co. v. Don- myer 336 King v. Norton 336 King v. Gibson 337 Keeler v. Wood 342, 349, 358 King v. Kersey | 846 Kimball v. Blaisdell 350 Kennedy v. McCarthy 350 Kerr v Shaw 350 Kingdom v. Nottle 351 King v. Jones 351 Kent vy. Cantrell 354 Kellogg v. Sweeny 405, 407 Kilgore v. Dempsy 412, 413 Kirkland v. Moulton 420 Kelsey v. Ross 429 Kuntz v" Hart 435 Kearsly v. Cole 436 Klingensmith v. Klingensmith 439 Knight v. Whitehead 441 Kaufman v. Wilson 443 Kelly v. Matthews 443 Kimball! v. Cummings 444 Kenly v. Fitzpatrick 450 Krone v. Lang 464, 474 Kent v. Ginter 468, 475, 476, 479 Kountz v. Kirkpatrick 469, 475, 477, 480 Kelly v. Bradford 496 Knowing v Manley 504 Kemp v. Falow 506 Klauber v. Am. Ex. Co. 513 Kent v. Hudson R R. Co. 521 King v. Woodbridge 521 Kemble v. Farren 551, 552, 553 LAW OF DAMAGES. Section Kury v. Jones 569 Kennedy v. Hammond 574 Kutzenger v. Reynolds 576 Kelléy v. State 585 Kroch v. Heilman 585 King v. State Mutual Ins.Co. 694 Kenston v. Merrimac Ins. Co. 696 Karasich v. Hasbrook 746 L. Locker v. Damon 6, 310, 319 Loften v, Voles ; 8 Lafayette R. R v. Sims 8 Lindsy v. Bushnell 13 Little v. Lingle 13 Leavenworth R. R. Co. v. Rice 13 Lift v. Centur 14 Lipe v. Esenlord 14 Lashly v Hollerock 18 Lyman v. WhiteR. R.R. Co. 22 Lancing v. Mont 22 L.C & Lex. R. Co. v. Dunn 47 Lane v. Wilcox ° 1, 52 Louisville R. Co. v. Smith A383 Logon v. Austin 59 Lee v. Wosley 62 Loger v. Conn 65 Little v. Johnson 66 Lowden v. Lowden 77 Larr v. Hicks 81, 82 Lipe v. Esenlord 88 Louchheim v. Gill 100 Long v. Woodman 104 Lowe v. Oldham 106 Law v. Oldham 108, 111 Lorder v Kikule 112, 115 Lickers v. Bair 115 Lallam v. Todd 116 Lunt v. Brown 120 Lewis v. Carsom 120 Lawrence v.G. N. W. R. R. Co. 127 Luken v. Godrell 128 Lacy v. Mitchell 135, 1386 Lawrence v. Laming 135, 136 Leener v. Hamill 148 Lyon v. Handcock 150 Long v. Rodgers 150, 152 Lauerone v. Mangiante 161, 162 Lafayette R. R. Co. v.Shriner 161 Lasala v. Holbrook 165 Lofton v. Vogles 175 Lafayette R. R. Co. v. Bruner 175 Louisville R R Co. v. Collins 177 Lafayette & Indianapotis R. R Co. v. Adams Litchfield Coal Co. v. Taylor 177 178 *” INDEX TO AUTHORITIES CITED. Section L &LR.R Co.v. Adams 182 L. & I.R. R. Co.v. Huflman 182 _Lynch v Nurdin 182, 185, 188 Leddy v. St Louis Co. 184 ‘Lafayette R. R. Co. v. Huffman 185 Leham v. Brooklyn 185, 220 ‘Lanner v. Albany Gas Co. 186 Lynch v. Smith 186. 187. 188 Lynch v. Knight 233 L’ & I. R R. Co. v. Huffman 189 Lent v. T., P.& W. R. R. 197 Leeds v. Amherst 201 Lindsy v. Town of Danville 202 Lindsay v. Bushnell 203 Lincoln v. 8. 8. R. R. Co. 203 ‘Landon v. Humphreys 206 Long v. Morrison 206, 207, 220 Lee v. Spears 207 Lewis v. Chapman 234 Leonard v. Al’en 235 Tamonda v. Daval 239 Lingle v Schneider 258 Louisville & Nashville R. R. v. Glazebrook 263 Litt'e Miami R R v, Collett 264 ‘Lion v. Archer 289 Little v. Stanback 289, 290- Ledbetter v. Morris 289, 290 Linder v Lake 290 Leffingwell v. Elliott 290 Luther v. the Wennet Corp. 296 Lewis v. Smith 297 Laldell v. Simpson 297 Lewis v. Baldwin 297 *Lukey v Blosser 323 Lawrence v. Cook 325 Leeds v. Cook 327 Lindly v. Dempsy 329 Lents v. Choton 329 Loey v. Marnan 337 Leland v. Stone 337 Laws v. Fury 338 Lockwood v. Sturdebaut 348 Lawless v. Collier 349 Lawry v. Williams 350 Logan v. Steele 350 . Logan v. Moore 350-3 Leffingwell v. Elliott 353 Lloyd v. Quinley 357 Loomis v. Wadham 361 Legget.v. M. Life Ins. Co. 362, 363 Lawrence v. Chase 870 Laird v. Pine 370 Lock v. Fiezer 376 Lay v. Hewett 384 Lewis v. Jnes 384 Lines v. Mack 392, 296 e XXV Section Lane v. Gulckauf 405 Lake v. Eddy 411 Lee v. Pile 429 Leaf v. Gibbs 434 Lahey v. Gaston 434 Lord Harberton v. Bennett 441 Long v. Fisher 450 Long v. Hicks 451 Lacy v. Strangham 454, 455 Lukes vy. Barr 454 Long v. Langridge 461 Lawrence v. Wardwell 461 Lewis v. Rountree 464 Lorder v. Allen 469 Lamb v. Brolaski 482, 489, 495 Lingdale v. Livingston 496 Lichtenhen v. Boston & R. Co 504 Lamply v. Scott 506 Lewis v. Graham 509 Lewis v. McAfee 510 Logan v Matthias 510 Leonard v. Dunton 512 Laird v. Eichold 513 Louisville, Cin. & Lex. R. R. ‘Co. v. Hedges Lemon v Western R. R. Co. Lee v. Lancaster & Yorkshire _R. R. Co. 522 Long v Mobile R. R. Co. 524 Leonard vy N. Y.. &c., Tel. Co - 531, 534, 588, 539, 540 Lane v. Montreal Tel. Co. 540 Lardsberger v. Magnet Tel. Co. 514 515 541, 546 Legget v. Mut. Life Ins. Co. of N.Y. 551 Leay v. Lafflin 551 Lorne v. Press 553 Lindsay v. Ainsly 553 Lord +. Gladdis 59 Lowe v. Peers 560 Long v. Werk 562 Langworthy v. McKelvey 578 Lavitt v. Dobsey 573 Loosemore v. Radford 577 Levering v. Lomme 578 Ledgator v. Charme! 583 Lightv. Mather — 587 Lindsy v. Jamison 587 Levi v. Jamison 590 Lamar Ins. Co. v. McGlashen 592 Lewis v. Buckner 592 Lucinda v. Crawford 690 Luce.v. Dorchester M. Ins. Co. 698 Lindly v. Downing 707. Love v Hess 707 Littlefield v. City of Norwick 711 xXxvi °¢ LAW OF DAMAGES. Section Sectiom M. Mooney v. Miller 103 Welanahan v. Universal Ins Co 106 McKnight v. Ratcliff 5 ‘atlock v Todd 107 - Murch v. Concord R. Co.: ‘ Mason v. Barrett 108. Moore v. Central R Co. Millikin v. Latchem .108: Masterton v. Mayor of Brooklyn 16 Mason v. Bonet 108. Mitchell v. Billingsby 12 | McFerran v. Taylor 110, 111 McNamee v. King 18, 42 | McCormick v. Malin 111 Millson v. Hock 13 | Moore v. Hutchinson if Maryland, Baltimore, &c., R. R. Miller v. Eno 112, 115- Co. v. Blacker 13 | Merny v. Jennings 112 McKeon vs. City R. R. Co. 13, 16 McAna v. Wright 112 Manly v. Dunbar Morris v. Hutchison 1138, 115. Marsher v. Allen i | Mullett v. Mason 113 Mahan v. Brown 17,18 | Mably v. Alexander 116 Moyer v. Lord 21 | McFarlang. Smith 120: McCray v. Guardian Poor 22 | Miss & Tenn R. Cov. Deaneny 123 McCall v. Price 23 | McLaughlin v. Bangor 125- McKeen v. McLaughlin 27 | Mitchell v. Bellezeber 125 Mencher vy. Harvey 41,42 | Moody v. Whitney 128, 313. Meyer v. Bohlfing 41,42 | Morton v. Porter 128 Mercer y. Butler 42 | Muller v. St. Louis R. Co. 129 McCarthy v. Niskin 43,51 | McKnight v. Roctriff 129 MemphisR.R.Co.v, Dunlap 48 McHenry v. Marr 131 Mendelsohn v. Anchor L. Co. 45 | McGuin’v. Grant 131 McManus v. Crechet 46 | Martin v. Porter 132 M. & C. R. Co. v. Whitfield 47 | Martin v. Powell 132 Mil. & St. Paul R. R. Co. v. Armo May v. Tappan 132 47, 56 Mitchell v. Jenkins 137, 138, 145, Marford v. Woodsworth 50 146, 148 Memphis Co. v. Greén 51 | Munns v. Dapant 141 McAnoy et al v. Wright 52 | Mitchell v. Williams 145 Mulison v. Hirsch 52 | McLain v. Bank 146 Moody v. Leverich 56 | McKowen v. Hunter 150 Matthew v. Olerton 59 | McLane v. Birdson 150° Matthew v. Long 62,72 | Martin v. Hardesty 151, 308 Morris v. Platt 66,68 | McKeon v. Lee 154 Mose v. A. & Y. R. Co, 67 | Miller v. Burch 155 McGue v. Stone 68'| McCowan v. Whiteside 158, 159 Morris v. Cornell 71 | May v. Burdette 162 Moore v. Z, &., R. R. Co. 73 | Murray v Lovejoy 171 Mason v. Canfield 89 | Munch v. the Concord 175 Monroe v. Merrill 93 | Moore v. Central R. R. 175 Modisett v. Johnson 93 | Michigan S. & N. Ind. R.R Moore v. Crose 96" Co. v. Lantz 175 Marsh v. Smith 96 | Morris v. Phelps “176 McCall v. McDowell 96 | Mengees v. Harlam R. R. Co. 176 Mortimer v. Thomas 96 | Morrissy v. Wigging Ferry Co. 177 McLane v. Cook 97 | Macon & Co. v. Davis 177 Monroe v. Prichett 98, 99, 110, 111 | Miss. R. R. Co. v. Mason 178 McConner v. Malin 99 | Manly v. Wilmington 178 McFerra v. Taylor 100 | Mayor of Colchester v. Brooks 180 Morgan v. Snapp 101 | Moore v. Morgue ee Mulberry v. Watson ~ 101 | Morgan v Atherton 185 McClellan v. Scott 101 Magam v. Atherton Ex. 486, 187, Manning v, Allen 103 200 Medly v. Watson 103 | McMahon v. N.Y. 187 ANDEX TO AUTHORITIES CITED. Section Mangan v. Brooklvn R Co 188 McMillan v. Burlington Co. 188 Meyer v. Pacific R. R. 190 Milwaukee, &c., R. R. v. Kel , logg 200, 202 Monted v. Mallison 200 Memphis, &c., R. R. Cov. Whit- field 202 Moody v. Osgood 203 Morse v. Auburn R R.Co. —.208 Morris v Chicago, &c. R. k. 203 Milwaukee & St. Paul R. R. Co. v. Arms 204 McCandless v. McWha 207 McIntyre v. N. Y Cen. R. Co. 220, 221, 223, 225 Matthews v. Warner 226 227 McGee v. Sodusky 234 Miles v. Vanhorn 234 McNutt v. Young 235 McCabe v. Blanter 235 McCabe v. Platter 235 Miles v. Harrington 236. Moore v. Clay 236 McClintock v. Crick 236 Mosler v. Harding 236 Maitland v. Goldrey 236 McCommock v. Penn. Cen. R. R. Co. 239 McDonald v. North 240, 245 Moody v. Whitney 246, 248 Menkins v. Menkins 250 Mitchell v. Burch 252, 256, 257, 259 Morgan v. Reynolds 256 McGarrock v. Chamberlain ong Mayberry v. Cliff 256 McNally v. Shobe * 256 Mootle v. Chicago, &c , R. Co. 256 McCormick v. Town of "Lafayette 262, 263 Meacham v Fitzburg R. R. Co. 264 Montgomery Gravel Road Co. v. Stockton 264 Minn Cen R RCo v McNamara 265 Marsh v. Billings 273 McClane v. Fleming 278, 274 Meneely v. Meneely 274 Morgan v. Schmackhofer 274 Menlue v. Menlue 274 Miller v. Sears 276 Maston v. Holsey 276 Morgan v. Dudley 277 Morgan v. Hughes 277 Mullett v. Chollis 279 Marshall v. Simpson 279 Mills v. Gilbert 280 McMichael v. Mason 281 XXvii ‘ Section McNeanly v. Jewett 286 Measely v. Hunter 286 Marzette v. Williams 287, 288, 290 Monroe v. Stickey ? 288 Monroe v. Gates 288 McConnell v. Kibbie 289 McElroy v. Globe 290, 297 McCarty v. Beech 290 Murry v Bishop 290 McLain v. Black 290 Morris v. Beckwell 297 Morgan v Mason 297 Mayor v. Commissioners 297 McCord v. High 297 Mandeville v. Comstock 297 McKinney v. Smith 297 Mitchell v. Parke 297 Miller v. Louback 298 Mark v Gault. 298 Muller v. Stricker 800, 301 Maynard v. Esher 300 Myers v. Grimmel 300, 301 Morrison v. Magarth 301 Marker v. Milligan 306 Mullet v. Hulton 807 Matson v. Buck 307 McAlexander v. Harris 307 Morris v. Baker 307 Moyer vy. Pine 307 Morris v. Summerville 309 Miller v. Mariners’ Church 310, 316, 319 Miller v. Stone 312 McGee v. Stone 319 Murvin v. Hastings 323 Moore v.’Graves 323 Miller v. Hays 330 Morgan v. Yasborough 330) Marshall v. Fiske 335. Marston v. Hobbs 337, 850: Martin v. Long 337 Morris v. Phelps 346, 349 Michaels v. Mills 346 McAlpin v. Woodruff 346: iller v. Catlin 348. McGay v. Hastings . 349, 357 Martin v. Baker 349, 351, 352: Mark v. Willard 852: Masse v. Sebastian 350 Mason v. Manchester 350 Mitchell v. Warren 350 ‘Maule v. Schu 351 Mason v. Cooksy 353 McGary v. Hastings 354 Mitchell v. Stanley 355 McClelland v. Moore 355 McDonald v. Dunlap 357 XXVili Section Manahan v. Smith 357, 448 Mills v. Catlin 359 McConnell Heirs v. Dunlap 362 Martin v. Wright 362 Margraf v. Muir 364 Mack vy. Patchin 365, 376, 377 Morgan v. Wood 370 Marshall v. Harney 370 Morris v. Saunt 374 Mayor v. Moline 376 Moffatt v. Smith 376 Myers v Burns 377 Moore v. Weber 378 Morrill v Mackman 378 Mugford v. Richardson 383 Morrill v. De La Granza 383 Merritt v. Judd 385 McGregor v Brown 386 McCaslin et al. v. State 386 McCulloch v. Maryland 401 Mann v. Cross 410 McDonald v. Hodge 410 Mix v. Insurance Co. 412 Moore v. Riff 418 Mason v. Biddle 420 Murry v. Gibson 423 Merriman v. Maple 429 McCue v. Smith 431 Miller v. Parker 434 McCarthy v. Peppers 434 Muller v. Stewart 434 Morgan v. Smith 436, 437, 439 McClelland v. Cumberland Bk 487 McAllister v. Sprague 437, 439 Mason v. Jewett 439 May v. Pettengill 440, 442 McNutt v. Wilcox* 440 Marby v. Dixon 442 McWilliams v Mason 443 Manufacturers’ Bank v. Cole 443 Macey v. Adams 444 Maxwell v. Day é 444 Muldoon v, Whitlock 445 MeMiller v. B H. B. 447 Mann v. Everston 450 Morrill v. Wallace 450 McFalon v. Newman 450 Marsh v. Weber 450 Margerton v. Wright 451 Mixer v. Coburn 452 McKinney v_ Fort 452 Moses v. Meade 452 McCleur v Jeffrey 453 Magee v. Lingsly 453 Mante v. Gross 454 Merriman v. Chapter 454 Muller v. Eno 454, 458 LAW OF DAMAGES, Section Moulton v. Parker | 454 Merrimac Manufacturing Co. v. Zuinter 454, 474 Moulton v. Santon 454 . McGarve v. Wood 454 McAlpin v. Lee 454, 466 Marsh v. Weber 459 Mullett v. Mason 460 McAfee v Crawford 461 Morgan v Ryesan 466 McKnight v. Dunlap 467, 475 Muller v. Marine Church 468 Millison v. Hoch 469 Messmore vy. N. Y. Shot and Lead Co. 475, 477 Northrup v. Cook 476 Montgomery v. Reese 477, 479 McCormickv.N. Y. & E. R Co 481 McKenny v Springer 482, 489, 495 McClure v. Secrist 482 McCoy v. Hedges 482 Mitchell v. Wiscotta 482, 489, 495 McAice v. Hale 482, 489, 495 McKing v Springer 482, 495 McClelland y. Snider 484, 498, 498 Milnes v. Van Horn 486 Masterdon v. Mayor 487, 496, 498 Morrison v. Lovejoy 488, 496. McMillan v. Vanderbig 488 Morris v. Cummings 459 McCoy v. Hedges 489, 405 Meash v. Richards 491 Mend v.-Ithaca & Oswego RR 491 Mayor v. McLester 402 McIntosh v. Sherman 495 Mosford v. Ambros 496 McNabb vy. Lockhart 506 McLane v. Rutherford 506 Martin v. Culberson 506, 507 Markham v. Joudin 508 Mayor of Col. ». Howard 510 McNeills v. Brooks 510 McCain v. Kimbell 611 Mich. South & N. E. Ind. R. R Co. v. McDonouogh 514 McManus v. Yorkshire dl4 Myers v. Linche 514 Marshall v. Am. Exp. Co. 519 Moses v. Boston & Maine RR 515 Morris & Essex R Rv. Ayers 515 Mobile & G. R Cov. Prewitt 515 McMaster v. Penn. R RCo 515 Man. Oil Co v. Cander & R R Co 517 M.D. T Co. v. Balles 518, 526 i INDEX TO AUTHORITIES CITED. xxix Section Section Mich.8.&N.I. R.v Carter 520] Neghengale v. Scaumon 13 McGregor v. Killgan , 520 | N.C., Greenville RR v. Parton 14 Meding v. N. Y. &c. R. R 520 | New York v. Merriman 14-52 Mecram v. G. West R. R. 527 | N. &S. R. Co. v. Peterson 20 Morow v. a 527 | Newell v. Brocknell 21 Morrison v. Lovejo 529 | Nassonnon v. Rickets 42-44 McAndrews v. E Pel. Co. 531, 585 | N O. R. Co v Statdon 54 Manuel v.W. U. Tel. Co. 535 | Nixon v. Brown 76 Miller v. The Mar. Ch. 540 | Norfolk ¢. Germania 78 Murschampt v. Lancaster etc. Norfolk v. Bedding i: 78 R.R 547 | Norton v. Warner 85, 311 Mitton v. the Mid R. R. 547 | Naegley v. Linds 107 Mason v. Calender 550 | Neblett v. Merarlavd 109 Mages v Lowell 550 | Newsam v. Carr 145-151 Mead v. Wheeler, 551,’5. ’62 | Newell v. Downs 145, 150, 152 Maurice v. Body 553 | Noell v. Rook 150 Muzzy vy. Shattuck 565 | Norris v..Baker 154 Mockworth v. Thomas 565 | N H.S.Co. v Vanderbilt 163 McCoy v. Elder 565, 575 | Nicholson v. Erie RR. Co. 183 Morton v Taylor 566 | North P. A R. v. Mahoney 188 Means v. Price 568 | Nones v. Northouse 202 Myers v. Farrall 568 | North Pa. Co. v. Robinson 220-229 McCollough v. Watson 569 | N. Y. Co. v. Silbeck 239 Miller v. Goodman 571 | Nuber v. Kelley 249 Miller v. Hays 571 | N. Y. E. Co. v. Flynn 254-256 McCrea v. Brown 573 | Noble v. Eppelly 258 Miner v. Bullard 573 | New OrleansG. W. R. R. v. Morgan v. Negley 574 Lagorda 264 Monthon v. Richardson 574 | N.J.&G.NRR.v. Mayo 264 Moore v. Crochet 580 | Nam v. Baird 282 Mosely v. Baker 580 | Nelson v. Russ 282 McGanock v. Chamberlain 581 | Nooman v. Illsby 288-290 Maxwell v. Egan 583 | Nosatti v Page 290 Martin v. Del. Ins Co 588 | Norton v. Valentine 295 ' Montagu v. London Ins. Co. 589 | Notoma etc. Co. v. McCoy 197 Matheson v. Eq. Mar. Ins. Co. Nevada Water Co. v. Powell 297 590, 291 | Newbol v. Iverson 297 Maryland Fire Ins Co v. White- Nepier v. Birlwinkle 3800 ford 695 | Nelson v. Evans 307 Mich Fire Ins Co v. Nichols 696 | Night v. Foster 307 Merick v. Ger. Fire Ins Co 696 | Noice v. Brown 321 Mayor of N.Y. v. Lord 696 | Nosler v. Hunt 337, 349, 359 McDonald v. Fithian 707 | Nichols v. Walters, 337, 359 Meyerman v. Davis 707 | Nutting v. Herbert . 337 Markle v. Steele 707 | Norton v. Babcock 355 Maning v. Gashtrie 710 | Newton v. Harland 383 Marshall v. Gunter 711 | Naylor v. Moudy 433 Macon v. Winn 712, 717 | Newcomb v. Gahn 441 McConnal v. Hampton 722 | Nichols v. McDowell 443 Moore v. Martin 722, 723 | Norton et al vy. Hooten et al 452 Mortimer v. Thomas 722 | Northrupt v. Cook . 469-480 Murry v Hudson 723 | Nebo v. Brown 482-495 Mobile & Mont. R. Co. v. Ash- Newman v McGregor 482, 489, ae craft 724 | Nelson v. Pleppston 485 Murry v. Hud. R. R. Co. 725 | Nearn v. Harbert 485 McDonald v. Waters 730 | Niles v. Brahn 489 Mariana v. Dougherty 730 | Newman v. McGregor 496 XXX Section Nelson v. King 505 Nevan v. Rupe 507 Nurgus v. Simpson 510 Nvnoles v. Howe 513 Norway Pl. M. Co. v. Boston Mfg. Co. 515-517 Newell v. Smitn 524 .N. Y. C. RR. v. Fraloff 527 N.Y. & Wash. Tel. Co. v. Daybury 526-547 Nutting v Conn. Riv. R. R. 547 Noyes v. Phillips 551 Niblo v. N. Ins. Co. 694 N.Y. Fire Ins. Co. v. Delamin 694 Newton v. Price 711 N.W. RR. Co. v. Vannatta 711 N.J. R. RK. Co. v. West 718 Neal v. Lewis 720 O. Owen v. Hud. RR. 8, 175 Oggs v. Cy of Lacing 20 Ober v. Chapman 52 Onery v. Harden 53 O’Leary v. Roman 69 Olerine v. Baltimore RR. 73 Osborne v. Dodd 108 Oleson v. Brown 125 Ottawa Gaslight Co.v. Graham 127 Ohio & C. C RR. v. Gullet 177 O. R. W. Co. v. Shelby 177-179 O. & M. RR. Co. v. Dixon 178 O. RR. Co. v. State 181 Omarer v. Hudson RR. 188 Oflarherty v. Union RR. 188 O’ Hagan v. Dillon Oakland RR. v. Field 207 Obio etc. RR. v. Lindell 219 O. & M. RR v. Tindal 220-228 Oldfield v. Harlem 222 Oldfield v. N. Y. ete. 223 Ohio v. Jones 281 O’Barr v. Alex. 282 Owen v. Riley 288-290 Opir Co. v. Carpenter 297 Ogden v. Marshall 305 Omstead v. Burk 329 Oweshirer v. McCallister 337-359 Old Colony R. v. Evans 370, 371, 481 ‘ Owsby v. Greenwood 390 Overturf v. Martin 443 Odine v. Greenleaf 445 Osgood v. Lewis 449 O’Neal v. Bacon 450 Oneida Mfg. Co. v. Lawrence 453 LAW OF DAMAGES. Section Overberg adm. ve Light 454, 455 Oliver v. Hanly 457 Ocum v. Routh 479 Oakly v. the State ve Ogden v. Marshall Ohio & M. KR, v. Yoke etal 525 Oldham v. Kerchner ' 551 Orrv. Churehill 555 O’ Keefe v. Armstrong 582 Oldfield v. N. Y. & H. RR. 711 Ps Parker v. Musi 12 Peoria Bridge Ass’n v. Loomis 13 Plumer v. Harbert 13 Peke v. Dellings 13 Perkins v. Somelee 14 Picket v. Cook 14, 53 Phila. RR. v. Quigley 14, 42, 42,52 Parker v. Boston x M. RR. 21 Peters v. Davis 23 Phillips.v. Rousall 23. Pike v. Dilling 42 Parks v Costen 42 Pittsburgh & Ft. W. 47 Platt v. Brown 52 Peoria B. Ass’n v. Loomis 53-67 Parrell v. Warren 54 Pickets v. Cook 55 Phillips v. Kelly 62-66. People v. Shorter ~ 65 Parrett v. Wells F. & Co. 71 Peters v. Lake 80 Pratt v. Fairclough _ 81 Palmer v. Cook 82-84 Phelps v. Holey 87 Phelen Kenderdison 88 Power v. Buckner 91 Perry v. Johnson 94 Parsons v Harper 94-95 Poulk v. Slocum 95 Prichard v. Parry 95 Pearson v. Morgan 99-110 Platt v. Scott 100 Post v. Williams 101 President ete. v. Connersville 101 Powell v. Bradle 105 Prentiss v. Russ 106 Potter v. Smith 107-110 Peters v. Gooch 107 Page v. Parke 111-112-114 Parson v. Dickson 120 Putnam v. Wiley 120 Perley v. Chandler 122 Potter v. Long 127 Perkins v. Hockleman 129 INDEX TO AUTHORITIES CITED. Section Parton Coal Co. v. Cox etal 182 Price v. Thompson 134-146 Parke v. Farly 150 Parke v. Hunt ° 150 Penoyer v Sangumad 158-159 Pettis v. Johnson et al 158-161 Pillsbury v Moore 159 Powers v City Council Bluffs 159 Page v. Hollingsworth 161 Putuam v. Payne 163 Banton v. Holland "165 Pennsylvania v. Hedson 176 Pennsylvania Co. v. St. Clair 177, 178, 179, 181 Pittsburgh Ft. W, & C. RR. v. Vining 185-186 .P. A. Co. v. Kelly 188 P. R. Co. v. Spearen 188 Penn. RR. Co v. Kerr 194-197 Penn. RR. v. Hope 197 Perly v. Eastern RR. Co: 197-200 Peoria Bridge Ass’n v. Loomis ~ 202, 203, 207 Perkins v. Concord RR. Co. 203 Phillips v. L &S. W. Co. 204 Patton v. Wiggin 206 Penn. RR. Co. v. Keller 220, 221, 223 Penn. RR. Co. v. McClaskey 220 Penn. RR. Co. v. Zebe 220, 224, 227 Penn. RR. Co. v. Vandever 220 Palmer v. Erie RR. 221 Paulmin v. Erie RR. 223 Peter v. Chicago RR. 224-227 Peck v. May 227 Peck v. RR. Co. 228 Penn ete. Co v. Ogier 229 Petrie v. Rose . 234 Polk v. Allen 239 Parks v Boston 239. Pierce v Berry 239 Pribble v. Kent 249, 512 Potter v, Merch Bank 250 Phoenix v. Clark 257 Pierce v. VanDyke 258 Pacific RR. Co. v. Crystal 265 Preston v. Dubuque 265 Parker v. Corbin 269 Pratt v. Gardner 276-277 Pease v. Clayton 278 Perkins v. Pittman 279 Pugh v. McRae 279 Pitt v. Golden 283 Paul v. Sloson 285, 287, 289 Pendar v. Wadsworth 290 Pollar v. Porter 290 Prescott v. Truman Perkins v. Dorn Parke v. Killham Polly v McCall Porter v. Burden Plumleigh v. Dawson Pettibone v Whitlock Parker v. Edgerton Palmer v Wetmore Pierre v. Fernal Powell v. Smith Proctor v. Haggson Parke v. Foote Prentiss v. Shaw Palmer v. Cook Palmer v. Andrews Polk v. Daly Potter v. Deboore Perkins v. Henry Prescott v. Guzler Perry v. Breakman Paul v. Frazer Patterson v. Win Phillips v. Rich Phipps v. Taplap Perkins v. Leavitt Xxxi Section 290 294-297 297 297 297 297 297 298, 300 300 300, 301 301 301 301 306 311 312 316, 317, 318 323 328-325 323 328 329 335 327-346 837 . 887 Patterson v Stewart 348, 353, 356 Parker v. Brown Pike v. Galvin Porter v. Welsh Pitcher v. Livingstone Prescott v. Truman Pomeroy v. Burnett Peter v McKeon Pumpelly v. Phelps Plumer vy. Higdon Paper v. Fravin Paradian v. Jaine Philip v. Stevens Pornley v. Walker Phelps v. Speyers Pratt v. Stearns Pierce v. Rowe Peck v. Mayo Pierce v. Hull Perry v. Gleason ‘Perry v. Smith Parks v. Marshall Pierce v. Spade Pamle v. Gunn Peppers v. State Palmer v. Rich Prout v. Branch Bank Price v. Barker Parmalee v. Turrace Pierce v. Sweet 349 350 350 352, 353 383 353 361-363 362-870 364-370° 370 384 384 384 405 405 405 412, 413 315 418 418 420 420 431 432-4 433 436 436 437 438° Perrin v. Fire Ins. Co. Mobile 442 Xxxii Section Payne v. Webster 443 Prescott v. Brinsley 444 Powell v. Smith 444 Pratt v. Prockett 448 Passinger v. Thornburn 450 Perry v. Andrews 460 Palmer v. Pierce 461 Pittsburgh Coal Co. v. Foster 464-474 Pillpotts v. Evans 467-475 Phaland v. Ardens 474 P.C. &St. L. RR.» Heck 480, 481 Pexler v. Nichol; 482, 489, 494 Prichard v. Mastin 485 Pory v, Garth , 488 Pearson v. Williams 551 Peters v. Whiteman 491 Parker v. Tiffany 503, 504 Phelps v.: Boswick 505 Propst v. Roseman 507 Petty v. Overall | 508 Parker v. Brancker 508 Parker v. Mel. & St. L. RR. 515 Perkins v. Portl. Rk. Co. 520 Pendal v. Rench 520 Pect v. Chicago &N W.RR. 521 Parks v. Ata. Cai. Tel. 531, 536, 539 Prin. Tel. Co. v. Durburgh 531 Perkinsv. P.S &P. RY Powell v. Brenoun 551 Price v. Green 560 Pierce v. Fuller 562 Plumb v. Woodmansee 568 Prader v. Grimes 573 Pierce v. Atly 574 “Powell v. Smith 577 Peele v. Merch. Ins. Bo. 588, 591 Patop Ins. Co. v. Southgate 590 Perie v. Steele 591 Parker v. Eagle Ins. Co. 694 Peoria Ins. Co. v. Lewis 696 Post v. Haup Mut Ins. Co. 699 Perry v. Providence Ins. Co. 700 Picking v. the State 704 Picquet v. McKay 711, 721 Penn. RR. Co. v. Goodman 711 Paulmire v. Erie RR. Co. 711 Pitts. RR. Co. v. Henning 711 Pattent v. Thompson 811 Pleasant v. Heard 711, 712 Pierce v.. Payne (2d Pinckney v. Pulsife ~ 727 Phillips v. London 727 Proteus v. Hazel 731 Phillips v. Phillips 732 LAW OF DAMAGES. Section Q. Quinby v. Vt. Cent. RR. 181 Quinn v. Moore ae 222, 228, 289 Rigby v. Hunt 6, 124 Runjen v. CS RCo 8, 175 Robb v. Mann il Reeder v. Purdy 13 Reno v. Wilson i3 Roberts v. Means 14 Ryson v. McGuire 14 Rochester W. L Co v. Roch- ester 19 Rooth v. Jureall 20 Russell v. Mayor N. Y. 21 Rydon v. Walcott 28 Roberts v. Mason 44 Roe v. Wilson 60 Ramonv.'N Y & ErieRR 67 Roberts v. Eldredge 71 Ramste’ v. Bost. & Alb. RR 73 Riggs v. Courgier 75 Roy v. Tucker 79, 311 Richardson v. Fout 87 Rea v. Sucker 88 Rohan v. Swane 92 Russell v. Hirab 93 Rench v. McGreggor 96, 97 Reed y. Devin 99 Reed v. Sidrner 100 Rose v. Hamly 108 - Reed v. Duine 110, 111 Reggio v. Broggiotti 112 Richardson v. Dunn 118, 117 Reed v. Taylor 134, 141, 146 Richter v. Koster 135 Richy v. Davis 137 Rodgwize v. Tadwire 140, 145 Richy v. McBean * 149 Rodridz v Tadmin 151, 308 Rex v. Roswell Russell v. the Mayor and City of New York 158 Raswell v_ Prio Salk 158 Repka v. Sergeant 160 Rob v. M. . 160 Rex v. Huggens 161 Radcliffe v. Mayer 165 Richardson v. Vermont Cen R. 165 R. R. Co. v. Jones Robinson v, N. Y. &E. R. R. Co176 R R. Co. v. Lockwood 177, 179 R. R Co. v. Hillmen 178 Raisin v. Mitchell 181 Rigley v. Huett 184, 193 INDEX TO AUTHORITIES CITED. Section Railroad Co.,v. Gladman 184, : 187, 188 Ranch v. Lloyd 188 Robinson v. Cone 188 Rockford R. R. Co. v. Delaney + 188, 226, 227 Ryan v. N. Y. Cen. R. R. Co. 193 Ransom vy. N. E. R. R. Co. 203 Reynolds v Grover 206 Richey v. West 206 R.R. Co.v. Barron 220, 221, 223 Rawley v. London R. R. 235, 227 Rafferty v. Buckman 226 Rumsey v. Webb 234 Rayborn v. Pryor . 239 Ripley v. Davis 239 Robinson v. Hartridge 239 Reed v. Fairbanks 239 Romain v. Van Allen 246 Robbins v. Packard 250 Ramby v. Gibbs 252 Ricketts v. Dorrell 254 Rhoads v. Woods 258 Rexford v. Knight 263 Richmond R. R. Co v. Burbank 264 Robbins v. M¥. & H.R. R. Co. 264 Russell v. Place 269 Rodgers v. Nowell 274 Reilly v. Cavanaugh 282 Rosenbaum v. McThomas 287, 289 Rodgers v. Page 297 Read v. Barker 297 Root v. Driscoll 298 Rodgers v. Swain 801 Rochester v. Anderson 805 Root v. King 307 Rundle v. Moore 309 Richards v. Edick 317, 318 Roy v. Smith 323 Roper v. Clay 328 Reasoner v. Edmundson 336, 353 Riles, adm.,v. Frauntlerays 348 Rathburn v. Rathburn 349 Rigg v. Cook 350 Robertson v. Gaines 350 Reeder v. Craigg 350 Randell v. Mallet 353 Richardson v. Dow 353 Raridon v. Walpole 354 Rea v. Menkler - 355 Robertson v. Lemon 358 Roe v. Heath 358 Reese v. Smith 358 Rogstray v. Lucas 375 Ricketts v. Lostetter 379 Reed v. Reed . 383 Relman v. Jamison 383 XXxili Section Reed v. Resselaer Glass Fac’y 390 Reeves v. Stearns 405 Robbins v. Check 411 Roberts v. Williams 423 Rice v. Ontaco 424 Roberts v. Master 429 Russell v. Longstiff 434 Redman v. Deputy 435 Rawly v. Stoddard 487, 488, 439 Rapp v. Rapp 438 Rice v. Morton 440 Robinson v. Gee 3 441 Royal Canadian Bank v. Payne 441 Ryan v. Shawneetown 441 Rowan v. Sharp’s Rifle Co. 441 Reed v. Cox 443 Routon, adm., v. Lacy 448 Rice v. Simpson 443 Russell v. Ballard 444 Riddle v. Bowman 444 Richmond y. Houston 445 Randall v. Roper 450, 459 Richardson v. Johnson 451 Reid v. Barber 452 Robins v. Rice 452 Randall v. Rhoads 453 Rostly v. Thomas 453 Ransdell v. U.S.: 453 Rawly v. Woodruff 464 Renand v. Peck 454 Reggio v. Bragiotti 458 Rawland v. Shelton 458 Rose v. Wallace 459 Rhoads v. Baird 462 Roberts v. Carter 466 Rand v. White M. Riv. Co 467,475 Rouden v. Eaton 467 Roper v. Johnson 473 Randon v. Barton 476 Ricks v. Yates 482, 489, 488 Ream v. Watkins 486 Reab v. Moore 488 Rogers v. Beard 496 Rose v. Hill 503 Railway Co. v. Sullivan 504 Rozt v. McClelland 508 ‘Ratch v. Hawes 510 Rapp v. Grayson 512 ‘Richards v. Goddard 515 Russell Man. Co. v. N. H. St. Bt. Co. 515 Redmond v. the Lan., N. Y. & Phil Steamboat Co. 515 Redmond v. Liverpool & Co. 515 Rice v. Bos & Worcester R. R. 515 Richards v. Mich. South. R. R. 517 ‘Rice v. Kan. Pacific R’y 518, 526 XXXIV » Section Riley v. Howe 519 Rice v. Ontario Steamboat Co. 520 Rodgers et al. v. West et al. 520 Rowe v. Steamer City of Dublin 521 Rute v. Mich. Cen. R. Co. 528 Reed v. Phil.,&c., R.R.Co. 528 Rittenhouse v. Ind. Tel. Line . 5381, 541, 544 Ruttenbaum v. Ind. Tel. Line 539 Ripley v. Mosby 540, 569, 584 Robinson v. Keny 550 Ricketts v. Trustee 550 Ross v. Ancell 557 Ranulaon v, Clark 560 Ruby v. Jones 560 Raner v. Webster 568 Ryan v. Anderson 573 Reeves v. Andrews 576 Railsbeck v. Greves 576 Redford v Height 576 Rugles v. Tilly 585 Rusker v. London Ins, Co. 587 Rodgers v. Hosack 588 Rice v. Sims 711 Russ v. St. Bt. War Eagle 712, 717 Rockwell v. Third Av. R. R. 719 Rundle v. Butler 720 Redshaw v. Brooks 720 Rowan v. People 727 Richards v. Sanford 730 Robinson v. Hudson R. R. Co 730 8. Seely v. Alden 5,11 Scott v. Shepherd 6 Shannon v. Comstock 6, 310, 315, 316, 317, 318, 529 Smith v. Smith 8, 175 Suydam v. Street RR. 8, 175 Somes v. Wright 10 Shepherd v. Mel. G. L. Co. 10 Scannoble v. Kochler 11 Somner v. Wilt 14 Siden v. Hepburn 17 Shagon v. Knowles 18 Smoot v. Wetnauppa 19 Strong v. Campbell 20 Smith v. Yosman 20 Stone v. Deckmon 23 Sears y. Lyons 41, 42 Stimpson vy. Railroad etc, 41, 42 Symon v. McCormic 42 Sutton v. Mandvill 42 Smith v. Sherwood 42 Smith v. Wunderlich - 43-51 Storns v. Greer 43 LAW OF DAMAGES. Section Southerd v. Rexford . 55 Simpson v. Black 55 Stout v Wen 59 State v. Sperman 60 Smith v. Railroad Co. 50 Sherby v. Billings 64 Smithuck v. Ward 54 Stella v. Nellies 65 Suggs v. Anderson 66 ‘Smith v. Holcombe 68 Stock v. Hersey 68 Smith v. Bieesby 68 Sharp v. Powell 68 Sheridon v. Fusleur 71 Sampson v. Smith 72 Sherwood v. Sitman 78 Stephens v. Walker 82 Sanders v. Nelson 82 Sanborn v. Nelson 84, 311 Stephens v. Belnapp 87, 88 Shortland v. Garrett 93. Smith v. Gates 93 Stewart v. Maddox 96 Shain v. Davis 97 Shackelford v. Handly 98, 99 Shaffer v. Slade 99, 110 Smith v. Richards 100 Slebbins v. Eddy 101 Smar v. Canada 102 Safford v. Handy 102 Slaughter v. Gerson 103 Shaffer v. Steed 107, 500 Samy v King 109 Scotland v. Addie 109 Smith v. Richardson 110, 111 Stevenson v. Greenlee 111 Stiles v. White 111, 112. 115 Sherwood v. Sutton 112, 115 Sharon v. Mosher 112 Seymour vy. McCormick 112, 268 Smith v. Green 116 Sangster v. Prather 116 Searles v. Cromle 120 Stackpole v. Healy 122 Street v. Eoumier 125 Sprague v. Brown 125 Schuylkill Nav. Co. v. Farr 124 Smith v. Gonder 128 Stock B. Iron Co. v. Conn. Iron Co 129 129, 131 130 Seeley v. Aldens Simmons v. Brown South B. Dock Co.v. Dunlap 132 Stockbridge Iron Co. v. Stove Iron Works 132 Star v. Crocker 134 Stone v. Stevens 136 INDEX TO AUTHORITIES CITED. Section Seibert v. Price 136 Stone v. Crocker 187, 145, 146 Stokely v Harding 138 Seeger v. Pfifer 145 Stancliff v. Palmer 146 Sharp v. Pichel 146 Sayles v. Biggs 147 Stokely v. Hamridge 148 Stull v. Howard 150 Sandback v. Thomas 150 Sancleve v’ Eland 150 Sears v. Hathaway 150, 151 Saul v. Roberts 150 Sheldon v. Carpenter 150, 151 Smith v. Hyberman 151, 152, 308 State v. Berthol 153 St Helena Smelting Co. v Tipping 155 Seeley v. Alden 160 Schredele v. Koehler 160 Scribner v. Kelly 161 Steel v Smith 162 Shelbyville L. B. R. Co. v. Lemark 163 Smith v. Kimrich 164 Stengly v. Barnard 165 Solom v. Ventriesco 165 Smith v. Hines 171 Stedley v. London & N. W. RR. Co. 176 Spooner v. Brookland 176 | Smith v. Thomas 176 Stout v. Foster 176 Scott v. Dublin RR Co. 177 Stuke q. Milwaukee 177 Shearman v. Redfield 180, 201 : 202, 220, 319 Shields v. Blackburn 180 Stines v.Q. &S. KR. Co. 183 Stines v. Loudermilk 183 Steele v. Burkhardt 183 Stevens v. Oswego R. Co. 183 Sweeney v. Old Colony 184 Sells v. Brown 184 Singleton v. Eastern RR. Co. 185 Stout v. Sioux City RR. 187 Smith v. O’Connor 188 Scmidth v. Milwaukee 188 St. L. RR. v. Valerins 188 Sleeper v. Sandouen 190 Spicer v. C. & N. W. RR. 202 Shaw v. B. & W. RR. 208, 228 Segar v. Town of Barham- stead 203 Suydam v. Jenkins 204, 241, 243, 246, 247, 250. 256, 477, 480 Smothers v. Hanks 206 %X KV Section Symond v. Henry 206 State v. Baker 207 Simonds v. Henry Shearman v. Western Stage Co. 207 4 209, 228 Safford v. Drew 220 State of Md. v. B. & O. RR. 220, 221, 228 Steel v. Southwick 230 Simpson v. Robinson 231 Sanderson v. Caldwell 232 Swift v. Dickinson 232 Shipman v Burrows 234 Severn y. Hilton 234 Scott v- McKinnick 234 Samuels v. Bond 234 Sheanan v. Collins 234 Syngreaves v Myat 234 Saunders v. Jonnson Shoult v. Muller 236 Sterling v. Garrett 239 Salsbury v. McCoom 244 Saunders v. Bouries 245 Sturges v. Keith 246 Stickney v. Allen 246, 247 Seals v. Cummings 250 Scott v. Rodgers 257 Seaman v. Luce 258 State v. Bockman 263 St. Joseph & D. RR. v. Orr 264 Schermer v. Lagorda 294 Stafford v. City of Prov. 264 St. L. & St. Joe RR. v. Rich- ardson 265 St. L & St. Joe RR. v. Rob- inson 265 Salter v. Burlington RR. 265 Schuylkill Nav. Co. v. Sherb. 265 Seymour & Dayton v. Morgan 267 Seymour v. McCormick 268, 269 Stimpson v. the RR. 269 Schwazel v. Hollenshade 270 Slack v. Landgraff 273 Sykes v. Sykes 274 Schueltzer v. Atkins 274 Stonebraker v. Stonebraker 274 Smith v. Took : 279 State v. Freeman 280 Sterritt v. ex. r. v. Keaster 286 Seal v. Morland 285 Southern RR. v. Kendick 286 Smith v. Whiting 287, 289 Stowell v. Lincoln 288 ‘Strong v. Kearn 288 Shannon v. Burr 289 State v. Runhardt 290 Smith v. Jefts - 290 XXXV1 Section Smelting Co. v. Tipping - 290 Smith v. Shockera 290 Smith v. Heuzar 290 Stowell v. Bennett 290 Selfridge v. Lithgow 290 Saunders v Stuart 290 Springfield v, Harris 292 Summers v. Brown 297 S. P. Hoffman v. Stone 297 State v. Glear 297 Smith v. Miller 297 Smith v. Adams 297 Salters v. Howard 802, 303 Spencer v. Halstead 310 Smith v. Wilburn 311 Sinner v. Dayton 815, 316 Stover v. Bieekill 318 Simmons v. Simmons 323 Sprague v. Craig 325 Southern v. Rexford 325, 326, 328 Simpson v. Black 327 Short v. Stone 328 Smith v Woodfine 828 Snowman v., Wardwell 328 Sherman v. Rawson 329 Sawyer v. Snelenberg 329 Seekit v. Sacitt 335 Sheets v. Andrews 337 Smith v. Strong 337 Stubbs v Page 337 Staats v. Ten Evke 337, 347 Scamour v. Harlan 337 Sweet v. Putrick 342 Swett v. Sprague 342 Sterling v. Peet 342 Sarpy v. New Orleans 342 Sumner v. Williams 347 Sparrow v. Kingman 349 Sherwood v. Barlow 350 Scott v Douglass 350 Schofield v. Homestead Co. 350 Schofield v Iowa Homestead Co 352 Stowell v. Bennett 353 Smith v. Jefts 353 Smith v. Ackerman 353 Stannard v. Eldridge 353, 354 St. Louis v. Bliss 354 Scribner v. Holmes 355 Smith v. Sprague 358 Staats v. Ten Eyke 358 Smith v. Hay 359 Sterling v. Peet 359 Seaman v. Harland 361 Sween v. Steele 361 Sadon v. Comstuck 370 Sanburn v. Chamberlain 370 Smith v. Theelen 380 LAW OF DAMAGES. Section Shulls v. Blackburn 382 Stearns v. Sampson 383 Spence v. Chadwick 384 Senior v. Armitage 284 Sturgis v. Warren 385 Selleck v. French 390 Sween v. Dodge 394 Sinag v. Cox 410 Smith v Dunlap 418 Swanson v. Cook 424 Simpson v. Griffin 428 Spears v. Clark 429 Shaw v. Woodcock 431 State v. Chrisman 433 State v. Baldly 434 Shaw v. Pratt 487, 439 Smith v. Bartholomew 437 Snow v. Chanler 437 Schock v. Miller 439 Stockton v. Stockton 439 State v. Matson 439 Story v. Johnson 439 Spear v. Ward 441 Standford Banking Co. v. Ball 441 Smith v. Townsend 441 State Bank v. Edwards 442 Spence v. Thomas 442 Shannon v..McMullen 442 Stewart v. Davis 442 Savings Bank v. Concord 442 Shehan v. Hampton 443 Stevens v. Campbell 443 Smith v. Clapton 443 Strade v. Hington 443 Simpson v. Blunt 443 Seber v. Tupp 444 Smith v. Bainbridge 446 Sweet v. Colgate 449, 452 Smeed v. Flood 450 South v. Howard 451 Sherman r. Chaplain Trans. Co 452 Stuart v. Wilkins 452 Salsbury v. Stainer 454 Sanders v. Taylor 454 Street v. Chapman 454 Sharon v. Marsher 454 Street v. Chapman 454, 455 Standenmire v. Willliamson 454 Shattuck v. Green 458 Smith v. Green 460 Singer v. Farnsworth 462 Smeed v. Ford 463 Smith v. McGuire 464 Simpkins v. Low 466 Straughter v. McRae 466 stewart v. Price 467, 475 -Shepherd v. Hampton ~ 468 INDEX: TO AUTHORITIES CITED. Section Seedam v. Jenks 468, 469 Startup v. Carterri 469, 476 Smeed v. Ford 474 Shepard v. Mil. G. L. Co. 474 Stewart v. Keith 479 Shaw v. Holland 479 Sinclair v. Talmage 487, 489, 495 Street v. Swine 484 Stumburg v. Gilchrist 485 Seoner v. Maron 486 Story v. N, Y. & Harlan RR. 487, 498 Seaton v. Municipality | 487, 498 Swift v. Harriman 489 Snelling v. Link 496 Schell v. Plume 500 Stewart v. Frazer 504 Stevenson v. Price 504 Storer v. Gowen 506 Stand v. Bell 506 Sodowiskiv. McFarland 506 Seranton v. Baxter 506 Sims v. Canfield 507 Spaar v. Holland 509 Sheck v. Strong 510 Smith v N H.R Co. 518, 514 St. L. &S.E.R R.v.Smock 514 Strahan v. Detroit 514 Shenk v. Phila. Steamb. Co. 515 Shepherd v. Eastern R. R. 515 Schiff v. N. Y. ect. R. RB. 518 Sturgess v. Bissel 520 Sherman v. Wells 520 Spring v. Haskill 520 S. P. O’Connor v."Garber 520 Sisson v. Cleve etc. R. R. 520 Smith v. Griffith 521 Scott v. Boston & N.W. Steam- ship Co. 521 Stiles v. Davis 525 Stoneman v. Erie R. R. 528 Smithson v. U.S. Tel. Co. 531 Smeathend v. Ills. Tel. Co. 535 State v. Sausser 536 Squire v W. U. Tel. 539, 540, 542 Shields v. Wash. Tel. Co. 544, 546 Scotthorn v. S. S. R. R. 547 Smith v. Dickens 580, 552. 555 Stuart v. White 550 Spicer v. Hooper 550 Sainter v. Ferguson 550, 560, 563 Streether v. Williams 553 Studebaker v. White 555, 559 Sutton v. Howard 562 State of Ohio v. Harper 565 State of Mo. v. Sandusky 565, 566 XXXVIi Section Swan v. Steele 566 Sanders v. Hughes 567 Smith v. Story 567 Seay v. Greenwood 568, 569 Silsby v, Lucas 568, 574 State Bank v. Morrison ~ 569 Stadler Bro. v. Parmalee 569 Spring v. McGee 569 Shayer v. Bash 571 Sturges v. Knapp 573 Southbarr v. Crawford * 573 Stewart v. State 574 Schrader v. Wolfland 579 Single v. Schrader 579 Stockwell v. Byrne 580 Story v. O’Deal 580 Suydam v. Jenks 580 Sapris v. Little 581 State v. Gibson 588 Swan v. Steele 584 Shaffer et al v. State ex rel Cox 585 Sea Ins. Co. v. Gavin 587 Strong v. Natally - 587 Sherwood v. Mut. Ins. Co. 695 Sloat v. Royal Ins. Co. 696 Seets v. Simel 708 Sherman v, Mitchell 711 Spencer v. McMasters 711 schul v. Pac. Ins. Co. 711 Sexton v. Brock 711 Smith v. Masten 715 Scherp v. Szadeczky 715 Sargent v. Dumston 716 Shute v. Barrett 720 Steadman v. Simmons 727, 728 a Toledo, &c., R. R. Co. v. God- dard 8, 175 Toledo, &c, R. R. Co. v. Thomas 8, 175 Tegarden v. Halfield 9 Tillotson v. Cheetham 13, 42 The Yankee v. Gallagher 14, Tate v.O.& M R.R. Co. 17 Trademan v. Astor 23 The State v. Johns 23 Taber v. Huston 42, 44 Turner v. N. B. R. R. Co. 45 Taylor v. Railway Co. 47 Thorn v. Knapp 55, 310 Tulla v. Reed 60 Taber v. Hudson 61 Thrall v. Knapp 63-64 Thorn v. White 72 XXXViii Section Terlarge v. Colman Taylor v. Moffatt 86 94, 277, 278 Taylor v. Aston 98 Turner v. Harvey 99 Tower v. Newcomb 102 Treebody v. Jacobson 104 Trigg v. Read 104 Tuttie v. Brown 112, 115 Turner v. Amble 136 Turner v. Turner 137 Tillotson v. Warner 138 Turner v. Ambler 141 Thompson v. Mussey 150 Tripp v. Thomas 150 Talley v. Corsie 150 Thayer v. Brooks 159 Terre Haute Gas Co. v. Teel 161 Tegarden v. Hatfield 163 Talley v. Ayres 175 T., W. & W. R. BR. v. Brennan 175 Timmons v.Cen. R. R. 176, 181 Tuff v. Warman 176 T., W. & W.B.R. v. Shuckman 178 T. R. R. Co..v. McGinnis 178 Trans Co. v. Vanderbilt 180 Thompson v. North Mo. R. R. 182 T., W. & W.R. R. v. Goddard 188 Tarwater v. Hannibal R. R. Co 190 Topeka v. Tuttle 202 Thebold v. R’y Pass. Ins. Co. 203 Taber v. Hudson 203 Terry v. Mayor, &c, of N. Y. 205 Telfer v North R. Co. 219, 220 Tilley, adm, v. Hudson R. R Co. 221, 222, 226, 227, 228 True v. Plumer 232 Terwilling v. Wands 233 Tilk v. Parsons 233 Treat v. Bronning 234, 307 Teaff v. Huett 252. 253 Tardy v. Howard 256, 260 Tunnam y. Smart 256 Taylor v. Carpenter 273, 274 Taylor v. Barnes 355, 357 Talbot v. Whipple 296 Thompson vy. Lee 297 Thompson v. Bowen 301 Tryson v. Booth 306 Tuck v. Moses 309 Threadgood v. Litogot 311, 312 Thorn v. Knapp 312, 326 Thomas v. Shattuck 319 Thurston v. Conner 323 Tubbs v. Vandeck 329 Taylor v. McGuire 329 Taple v. Lebrun 337 Turner v. Livingstone 348 LAW OF DAMAGES. Section Terret v Taylor 350 Treft v. Adams 3538, 354 Thomas v. Stukel 356 Truel v. Granger 357, 362, 377 Thompson v. Guthrie 361 Tone v. Brorce 376 Thorne v. Dias 382 The People v. Leonard 383 Taff v. Hurst 385 Troutman v. Gouring 401 Tarpy v. Shepherd 405 Trowbridge v. Holeomb 418 The People v. Boswick 434 Tuckman v. Newhall 437, 438 Thorp v. Thorp 438 Thompson v. Adams 439 Towns v. Riddle 443 Taylor v. Davis 443 _Thompson v. Perrysville 444 Tyner et al. v. Stoop 445 Tishune v. Dever 450 Thompson v. Dowell 452 Taylor v. Maguire 462 Thornton v. Thompson 466 Trout v. Kennedy 477 Tice v. Sherman 482 Trothnap v. Barrett. 482 Thompson v Wood. 485 Thorp v. White 488 Thomas v. Dike 489 Trowbridge v. Barrett 489, 495 Tomax v. Baile 492 Trowbridge v. Sherman 496 Tharger v. Wright & Hutchins 504 Tracy y. Wood 505, 506 Thompkins v. Saltmarsh 506 Thompson v. Andrews 507 Treadwell v. Davis 509 Thayer v. Dante : Thickstun v. Howard The Pitts. & St. L. R. R Co. v. Nash et al. 515, 517 Thomas v. Bos, & Prov. R. R. 517 Tourent v. Vaughn Taylor v. Collier 520 T, W. & W.R.R. v. Hammond 527 The Gt North. R. v. Shepherd 527 Tyler v. U. S. Tel. Co. 531, 541 True v. International, &c. 534 535, 539, 540 Tel. Co v. Dryburgh 534 Tea v. Whittaker 550 Taylor v. Sandford 552, 554, 555, 559 Thaine v. Quanware 572 Thompson v. McNair 573 Trustees v. Southern Illinois 574 Tonge v. Watts 587 509 513 INDEX TO AUTHORITIES CITED. Section Taylor v. Dunbar 589 Trueblood v. Trueblood 704 Tapley v. McGee 704 T. H. Co. v. Vanetta 711 Treaner v. Donhue 711 Travier v. Boyer 715 Tare v. Summers 715 Tullidge v. Wade 715, 716, 717, 719 Tegarden v. Hatfield 727 U. U. S.v. Ortega 58, 60 U.S. v. Colly 71 U. S.v. Levi 71 Underwood v. Linton 81 Unto v. Weaver . 91 Underwood v. Robins 97 U. 5. v Morgan 125 Underwood v. N.W. Scythe 127 Ulner v. Leland 137 Updegrover v. Zimmerman 234 U. S. Bank v. Chapin 390 Utica Ins. Co v. Toledo Ins. Co. 434 Union Bank v. Gravenner 441 U.S. Exp. Co v. Rush 514 U.S Tel. Co. v. Gildersleeve 535, 536, 546 Usher v. Noble 592 Union R R, v. Hand. 722 Uniou Cent. R. R v Hand 724 V. Vanderburg v. Truax 5, 193 Vanderburg v. Truax 6 Vance v. Erie R.R. 22, 152 V. J.B. Co. v. Patterson 54 Veedsburg R. R. v. Patten 54 Vancool v. Boughton 94 Varnersdale v Howard 104 Voorhees v. Earl 108 Vanderburgh v Lennox 124 Vinas v. Merchants, 152 Vedder v. Vedder 158 Vrooman vy. Lawyer 161, 162 Vaux v. Sheffer 167 Vanderplank v. Miller 172 Vere v. Lord Cawdan 180 Vaughan v. Melone 181 Vaughan v. Wood 205 Van. & T. H. R. R. v. Bowers 263 V. T.R. R. v. Henry 264 Van Wert v. Walley . 309 Veny v. Walkins 311 Vale v. Junction R. Co. 337 Vane v. Lord Barnard Gilbert 353 XXX1X 2 Section Vanwagoner v. Vannortrand 355 Van Rensselear v Planter 359 Vernan v, smith 376 VanRensseler v. Jewett, 384 Vanhoover v. Logan 418 Vace v. Hunt 429 Viale v. Hoag 436 Vandevere v. Clark 458 Vartie v. Underwood 441 Van Allen v. IN. C R. R. 466 Varble v. Bigle 519 VanWinkle v. U.S. Mail Str. 525 VanBuren v. Digges 555 Ww. Wadhour v. Meacham 6 Williamson v. Wes. Stage Co. 13 Wiley v. Keokuk: 13, 60 Wiley v. Manitoba 13 Wiley v. Smithman 13 Woset v. Jenkins 13 Walker v. Wilson 14 Whipple v. Walpole 14 Walker v. Smith . 14 W.& E. Canal v. Spear 18 Wheeler v. Cincinnati 19 Welch v. Bd. Supervisors 20 Whelen v. 2d Nat. Bank 22. Watson v. Moore 27 Wall v. Mean 27 Wagner v. Hollum 28 , Woodman v. Wattingham 29 Wernor v. Queen 30 Whiting v. Hithcock 42, 44 Williamson v. Wes. Stage 47 Wily v. Howard 52, 346 Wheeler v. Randall 52 Wallace v. At. R. Co. 53 Welch v. Durand 54 Walker v. Erie RK. R. Co. 54 Wardrobe v. Col st. Co. 54 Wallace v. Moyorite 54 Wells v. Paget 55 Walker v. Smith 56 Williams v. Jones 60 Weaver v. Bush 60 Weigh v. Cumpton 60 Wadsworth v. Treat 61 West v. Horist 61 Watson v. Christy 72 Wil. & Enlto. R. R v. Dunn 73 Weedon v. Lindwell 75 Winter v. Henn 75, 86 Welton v. Webster 7 Williams v. Williams 77 Wilson v. Sprouls 79 xl LAW OF DAMAGES. . Section Welton v. Webster 79, 86 Welton v. Welton 80 Webbee v. Woort 84 Winter v. Woroot 86 Wells v. Barnard 86 White v. Nellis 86 Wilkin v. Handcock 87 White v. Campbell 88 Witny v. Elner 88 Woods v. -state 89 Wright v. Court 91 Williams v. Ghonester 93 Wright v. Court 93 WM oodkirk v Williams 95 Wilson v. Hock 96 Warrick v. Faulk 96 Woodruff v. Garner 98 Warren v. Daniels 98, 99 White v. Cudden 102 Whitmore v. South Boston Iron Co. 111, 115 Woodward v. Shocker 2112, 115 Watson v. Morrison 112 Wheeler v. Randall 112 Wintz v. Morrison 113 Wright v. Roach 115 AW ilson v. Ellis 121 Woodruf v. Nealy 122 Williams v. Powell 123 Watson v. Lisborn 125. 206 White v. Marly 128 Whitebeck v. N. Y. C. R.R. * 129, 313 White v. Mosely 129, 130 Walker v. Smith 129 Walter v. Post 131 Wood v. Buckly 134 Wood v. U.S. 145 Williams v. Taylor 145 Wilkinson v. Arnold 145 Wood v. Brekley 146 Weeks v. Fentham 147 Wheeler v. Nesbett 148, 151, 152 Wilkinson v. Arnold 150 White v. Tucker 150 “ebb v. Nichols 150 Wheeler v. Z. National Bank 152 Willard v. City of Cambridge 159 Wagner v Jermain 159 Wolf v. Chalker 161, 162 Williams v. N. A. R.R. 161 Wright v. Ramscot 163 Williamson v. Barrett 163, 167,168 Webster v. R. R. 171 M right v. Gaff 176 Wright v. Brown 177, 180 Wherely v. Whiteman 177 Section Weaver v. Ward 181 Wilcox v. Watertown R. R. 183 Wait v. N. E.R. 188 Wright v. Malden ete. R. R. 185, 186 Waggoner J. in Isabel v. Hannibal R. R. 188 Wright v. Gray 193 Walrath v. Redfield 193 Webb v. Watertown 197 Wade v. Leroy 203, 207 Wily v. Keokuk 203 Wheeland v. Lynch 205 Whitelue v. N.Y. Cent. R. R. 205 Wood v. Clapp 206 Whitford v. Pana R. R. 220 Willett v. Buffalo etc. R. R. 229 Wigmore v. Joy 229 White v. Nichols 230 Willion v. Gait 232, 233 Weston v. Dobinet 235 Wilson v. Noonan 235, 236 Wright v. Schoeder 235 Watts v. Frazer 236 Wasson v. Canfield ©236 Whitbeck v. N.Y. Cent. R. R. 246, 248 Whitfield v. Whitfield 246, 247 Whitfield v. Whitself 246 Wetherel v. Green 248 Whitehouse v. Atkinson 249 Whitney et al v. Lehmer 252 Wood v. Gaynon 253 Walls v. Johnson 256 Woodburn v. Cogdale 256 Warner v. Matthews 258 Waterworks v. Burkhart 262, 263 Warrick v. Smith 263 Water Com v Lawrence Whitewater V.R. R. v.McC. 264 Whitman v. Boston & Maine R. R. 264 W.&St. P.R.R.v.Denman 264 Whitewater Valley Co. v. Mc- Clure 265 W.&St. P.R.R.v. Walden 265 Watson v. Pittsburg R. R. Co. 265 Whitmore v. Cutter 268, 269, 2 Wolf v. Burke ” 974 Walton v. Crowley 274 Waldo v. Wallace 278 Whipple v. Cumberland 285 Whittemore v Cutter 287 Wright v. Storm 289 Williams v. Mority 289 Waterer v. Freeman 289 INDEX TO AUTHORITIES CITED. Section White v Griffin 290 Wells v. Walting 290 Wislon v. Whitaker 290 Weller v. Baker 290 Weston v. Alden 293 ’ Wadsworth v. Tillotson 294, 297 Walrath v. Redfield 296 Watts v. T. G. RB. Co.. 296 Walker v. Butz 297 Wadsworth v. Smith 297 Wilson v. Blackbird Creek Manf. Co. 297 White v. Todd’s Valley Water Co 297 Weaver v. Congey 297 Weaver v. Eureka 297 White v. Chapen 297 Watkins v. Peck 297 Walls v. Kinney 297 Wilber v Brown 297 Wheatley v. Baugh 297 Ward v. Neal 300 Weathersby v. Marsh 306, 307 Watts v. Frazier 306 Walcott v. Hall 307 Waithmore v. Weaver 307 Woods v. Anderson 307 Wellister v. DeTastet 309 Wallace v. Tellfair 309 Wetherel v. Green 313 Walker v. Ellis 318 Walker v. Ports 319 Walters v. Bristol 323 Wigham v. Coots 323 Wilds v. Bogan 323, 329 Weaver v Bockhart 324 White v. Thomas 325 Willard v. Stone 325 Wood v. Bellamy 328 Walen v. Lamon 329 Wells v. Pagett 329 Wharton x. Peters 8235 Wilson v. Foles 337 Wyman v. Ballard 342 Webber v Coussy 342 . Wager v. Schuyler 346 Wilborn vy. Beeman 348 Whiting v. Davy 348 Williams v. Thurlow 850 Wade v. Lindsy 350 With v Mamford _. 350 Wyman v. Ballard 353, 354 Whistler v. Hicks 353 Wyman v. Bregdon 354 Waldo v Long 354 Willett v. Burgess 356 Wadew. Comstock 358 Winslow v. McCall Walker v. Moore Wells v. Aberthany Whiteside v Jennings Wenne v. Kelly Wamack v. McQuay Williams v: Williams Williams v. Obphian Wilson v. Raybald Whitney v. Sweet Williams v. Warren Wigglesworth v. Dallason Whitney v. Broston Ward v. Smith Wheaton v. Pike xli Section Whitewater Co. v. Hawkins White v. Thomkins Williams v. Jones Watson v Robinson Watrouse v. Clark Wright v. Shelby Worrell v. Munn Ward v. Lewis Webb v. Baird Webb v. Hewett Wood v. Britt Walker v. McCullough Ward v. Johnson White v. Ault Wallace v. Hudson Wolf v. Rauning Wilcox v Todd Winston v. Yeargin White v. Miller Wood v. Waterville Winder v. Diffenger Whitehead v. Pitcher Westfield v. Mayo Wood v. Carvin West v. Cunningham Werner v. Lambard Williams v. Conger Waring v. Mason Whitaker v Huesky Wells v. Selwood Witz v. Morrison White v Miller Woodward v. Powers White v. Manly 418, 467, 437, 453, 455, 457, West Gravel Road Co. v. Cox Woodward v Hocker West v. Wentworth 467, Woodward v. the G. W. BR. Co Wilson v. L. & Y. R. Co. Wolf v. Studebaker Worden v. Norris West v. Pritchard 358 361 370 370 3874 376 376 379 381 383 383 384 385 409 410 411 475 420 429 433 433 433 434 43 436 438 488 441 441 441 441 442 444 444 445 445 448 452 452 452 453 454 453 454 459 475 459 461 461 466 476 474 474 474 475 476 xlii Section Williams v. Jones 480 Wheatly v. Mascol 482 Wiley v. Hack 482 Western v.Sharp 482, 484, 489, 491, 495, 496 Wright v. Faulkner 486. 495 Williams v Chicago 486 Wolf v. Howe 486 Wiley v. T. S. Dis. No.1 489, 495 Walcott v. Yeager 492, 495, 496 Wilson v. Graham 496 Woodbury v. Jones 496 West v. Murphy 504 Wilson v. Brett 506 Watkins v. Roberts 506 Woods v. McClue 506 Walcott v Ruth 507 Ward v. Sumner 507 Wash v. Pond 508 Wheeler v. Aubold 508 Wilson v. Little 509 Wheelock v. Wheelright 510 Willard v Bridge . 512 Walpole v. Bridges 514 Wigginsv. Boston R. R. 518, 526 Watkins v. Loughton 520 Weston v. Grand T. R Co. 521 Wilson v. Lancashire &c R Co 521 Whalon v. Aldrich 521 Williams v. Vanderbilt- 527 bi cs Union Tel. Co. v. Gra- 531, 535, pe 547 W eshington & N. O. Tel. Hobson 5381, 539, 540, 542, 58 W. U. Tel. Co v. Crew W.U. Tel. Co v. Buchanan 535, ae Warm v. W. U. Tel. Co. 535, 536 W U Tel. Co. v. Casen 535 W. U. Tel. Co. v. Fentou 535, 541 W.U Tel. Co. v. Meek 535 Western Trans Co. v. Hall 536 W.U Tel. Co. v. Crum 536 Wyman v. Cochran 550 Wilson v. Greer 551 Watts v. Sheppard 555 Warren v. Steele 565 Walker v. Ford 565, 566 White v. Seely 565 Weld v. Clark 565 Wilson v. Root 568 Windship v. Clendening 572, 573 LAW OF DAMAGES. Section Washington v. Parks 573 Wallis v. Dilly 573 Wintzly v. Robinson 574 Watson v. Husson 576 Weler v. Farner 577 Wilson v. Stilwell 577 Weddle v. Stone 577 Westesvelt v. Smith 577 Walls v. Johnson 579 Wallace v. Clark 580 Waters v, Carroll 582 Warren v Franklin Ins. Co. 590 Wolf v. Home Ins. Co. 592, 693 Walters v. Merch. Life Ins. Co. 694 Waters v. Merchants’ Life and Fire Ins. Co. 693, 695 White v. Rep Fire Ins. Co 696 Worster v. Prop’s Ca. Brice Co 711 Wells v. Sawyer 711 Walker v. Erie k. R. Co. 712 Y. Young v. Austin 9 Yankee v. Gallagher 42 Yundt v. Rartuit 80 Young v. Bumpass 104 Yates v. Joice 122 Youmans v Padden 193 Young v. Bennett 235 Yates v. Miller 239 Young v. Loyd 246, 248, 318 Young v Willet 252, 580 Yokum v. Thomas 337, 358 Young v. Hill 416 Young v. McCreary 429 Yark v. Verplank 469 Young v. Smith 515 Young v. Poe U.S. 520 ‘Young v. White 551 ‘Yates v. Muller 718 Z Zigler v. Powell Zehner v. Kipler Zahla et al. Mining Co. v. Isley 129 Zerping v. Mower Zenkerd v. Newkink 329 Zehner v. Dale 467, 475 43, 96, 150, 151 CHAPTER I. THE Discussion oF PRIMARY PrincrpLtes. THe Arm AND Op- JECT OF THE Law in Assessing Damages. How it Acts. , Gives A ReMEDy To Every ONE WHO HAS BEEN INJURED. Tue Derinitions or Damages. Tus Morrves or tHe Torr FEASOR, WHEN ConsIDERED. Direct Damaces, REMOTE AND SPECULATIVE. DiscRETION oF AJuRY. THE NatuRAL AND PROXIMATE CONSEQUENCES ONLY CONSIDERED. 1. In entering upon the discussion of the measure of damages we propose in the first place to notice some primary rules that will assist’ the student in the investigation of the subject. The law is made for the purpose of regulating the conduct of men in society, and is enforced for no other purpose: than to compel them to do what in good conscience and fair - dealing they ought todo. And it adopts such methods and- , uses such means as in its opinion will be the most efficient in’ compelling every individual to perform his whole duty. It only acts for this purpose upon material matter, and never re- sorts to moral suasion or religious precepts to accomplish its object. From necessity it can only act on person and property. Where one encroaches upon the rights of another or refuses 2 EGGLESTON ON DAMAGES. to perform his legal duty, the law, on proper complaint, will give the injured party an impartial hearing, and if a wrong of sufficient magnitude has been committed it will investigate the injury and then award such damages as will place the in- jured party in as good condition as he was before the perpetra- tion of the injury. Damages have therefore been defined to be a recompense or satisfaction given to the plaintiff for an injury received by him from the defendant, or money given to a man by a jury as compensation or satisfaction for some injury sustained.’ The law aims to measure the damage by the injury. But so im- perfect are human tribunals that this just and equitable rule is seldom fully complied with. And it may be asserted with- out casting the least reflection upon the judicial department of the government that,if litigants fail to get complete com- pensation it is rather an incident to the imperfection of hu- man tribunals than the consequence of the inadequacy of the standard set up by the law. 2. The Law Upholds Menin their Natural Rights. Human laws are intended to uphold and protect men in the enjoyment of those natural rights they possess as members of society. And whenever an individual is interrupted in the enjoyment of any of these rights the law gives him a remedy. From the foregoing statements the importance of the law of damages is readily seen. In fact the sole object of almost every indi- vidual who commences an action in court is to recover dam- ages. 3. The Common Law. When our ancestors emigrated to the new world they brought with them the common law which consisted of afew, broad and comprehensive principles 1 2 Greenleaf on evid., p. 209, sec. 253; Co. Lit. 257; 2 Blacks. Com. 438; Rockwood v, Allen, 7 Mass. 256; Bursy v. Donaldson, 4 Hall, 207. INTRODUCTORY. . 8 founded on reason and natural justice, but they only adopted so much of it as was applicable to their situation. In many respects it was imperfect and failed to meet the wants and de- mands of the people. But by the untiring energy of men of great legal acumen these general principles have become more precise and specific and better adapted to practical use. The modification and expansion of the rules of common law have been brought about by the decisions of the courts of the high- est authority of this country and England. They have modi- fied, limited and applied these principles to particular cases, which have been acquiesced in until they have been engrafted into and become a part of the common law of the country. Owing to the elasticity of the rules of common law, when a new practice or new course of: business arises, the rights and duties of parties are not without a law to govern them, the general consideration of reason and justice which underlie the particular rules of that law will apply modified by the courts to the new circumstances. Therefore, if the new busi- ness or practice is such as to give rise to controversy and liti- gation, they are soon settled by judicial expositions, and the principles thus settled soon become. precise and practical rules... And much of the law of damages has been the out- : growth of the culture and forensic learning of men of recent times.” | 3. The Assessment of Damages not Uniform and Exact. Courts and law writers have never been able to frame rules for the assessment of damages based upon principles of justice and equity that were definite, uniform and exact. And there is much confusion and contradiction among the authorities at this time in regard to what shall be the measure of damages in certain cases. 1 Norway Plains Co. v. Boston & Maine R. R. Co., 1 Gray (Mass.) 137 *Vanwert v. Pecard, 2 Peter, U.S., 187. 4 LAW OF DAMAGES. 4. Direct, Remote and Consequential Dumages. When the in- jury can be traced by a direct chain of events back to the first cause, then we have what the law calls direct damages. But when the first effect becomes a cause, which in its turn re- sults in an injury, then there arises what is called remote dam- ages. Public policy demands that there should be a limita- tion of responsibility, and the law makers, in obedience to that demand, have limited the liability to the natural, direct or proximate result. It was an old maxim among the school men “causa causantis causa est causati.* This makes the chain of causation, by successive links endless." And this, in a certain sense, is true, for no event can occur which may be considered isolated and independent. Every event is the effect of some cause or combination of causes, and in its turn becomes a cause of many ensuiug consequences, more or less immediate or remote.’ 5. The Law looks to Particular Rules. The law looks to par- ticular rules adapted to the rights and duties of all persons in society in the common and ordinary concerns of actual and real life, and on account of the difficulty of unraveling a com- bination of causes and of tracing each result, as a matter of fact, to its true and efficient cause, it has adopted the rule be- fore stated of regarding the proximate and not the remote cause of the occurrence which is the subject of inquiry. As a general rule, damage, in cases of tort, is actual compensation for the injury. But to this rule there are qualifications, the law on some occasions inquires into the motives and intentions of the tortfeasor, and draws a line of distinction between inten- tional and unintentional injuries. Acts unaccompanied with bad motives draw after them only their direct and mme- diate consequences, and not those remote and speculative, 1Mable v. the City of Worcester, 4 Gray, Mass., 195. 2 Mable v. City of Worcester, supra. INTRODUCTORY. 5 while grossly negligent or malicious acts may be the subject of larger damages.® 6. The Proximate Cause. But in law the first efficient and adequate cause, as well as any intermediate cause necessarily following from the first cause is always held to be the proxi- mate cause, unless some new cause, independent of the first cause shall intervene between the first cause and the final in- jurious result.© The proximate and remote causes do not have reference to time nor distance, nor merely to a succession of causes and effects. A wrong-doer is not merely responsible for the first result of his wrongful act, but he is also responsible for any succeeding injurious result which could have been fore- seen by the ordinary forecast of mind. He is responsible for any number of injurious results consecutively produced by im- pulsion, one upon another, and constituting distinct, separate events, provided they all necessarily follow from the first wrongful cause.® 7. The Wrong-doer will not be Permitted to Apportion the Dam- ages. No “wrong-doer can be allowed to apportion his own wrongs; every person who does a wrong is at least responsible for all mischievous consequences that may reasonably be ex- pected to result under ordinary circumstances from such mis- conduct; a man who officially 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 the injury or not.” Where one does an illegal or sSeely v. Alden,61 Penn. st. 302; McKnight v. Ratcliff, 8 Wright, 168 ; Daughty v. Bird, 10, P. F. Smith, 48. 9A.,T. & S. Fe R. R. Co. v Standford, 12 Kansas, 354; 15 Am. R., 362. When one does an illegal or mischievous act in such a careless and im- proper manner that injury to a third person might ensue, he is answer- able in some form of action for all the consequences which may directly and naturally result from his conduct. Vanderburg v. Trex, 4 Davis, 467. 6 ' LAW OF DAMAGES. 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 di- rectly and naturally arise from his conduct. When the conse- quences of an unlawful act are immediate, he who does the unlawful act is considered the active doer of all that directly follows. And when two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonable be considered as 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 the parties at the time they made the contract as the probable result of a breach of it." 8. The Law Requires a Man to be Active to Prevent Loss. The law never permits a man to enhance his damages by his own negligence and want of diligence. ‘Therefore where one has been injured by the misconduct of another he must use or- dinary effort and reasonable means to protect himself from the consequence of the wrongful act, and he can only recover for such losses as he could not thus prevent." 9. Exemplary Damages. Where the wrongful act is done ina wanton and malicious manner and attended with circum- stances of outrage or oppression it is thought that the jury in "Hadley v. Baxendale, 9. Ecx. 341; Hille on Tort, 85; Broom’s Legal Maxims, 228; Scott v. Shepherd, 2 Wm. Blackstone’s Rept. 692; Vander- _ burgh v. Truax, 4 Devio, 364; Dent v. Toledo, etc., 59 Ill., 349; Atchison R. R. v. Sanford, 12 Kansas, 341, Wadham y. Mearlow, 1 H. Black, 439; Davis & Garrett, 6 Bing. 716; Rigley v. Hunt, 5 Exep., 243; Alli- son v. Chandler, 11 Mich. 542. iJones, Admr. v. Van Pattent, 3 Ind., 107; The Cin. & Chi. R. R. Co. v. Rodgers, 24 Ind., 103; Hamilton v. McPherson, 28 N.Y., 72; Shannon v. Comstock, 21 Wend.. 461; Heckscher v. McCrea, 24. Wend,, 309; Clark y, Morrigha, 1 Denio, 317; Locker v. Damon 17 Pick, 284. INTRODUCTORY. 7 assessing damages for the injured party is not limited to sim- ple compensation alone, but may assess against the wrong-doer exemplary or vindictive damages, to punish the defendant.’ But exemplary damages is not permitted in an action for a breach of contract, with very rare exceptions, perhaps in none, except the single case of a breach of promise of marriage.’ 10. Ligquidated Damages. Where the parties have by agree- ment fixed the amount of damages that shall be recovered on breach of the agreement, that amount can be recovered, pro- vided the contract is not made to evade usury law, or for the purpose of perpetrating a fraud or to oppress the defendant.’ 11. No Recovery in Case of Contributory Negligence. In the case of negligence the injured party, as a general rule, cannot re- cover where he has contributed to theinjury. But to this rule there are some exceptions that will be discussed under the head of negligence. 12. - The Difficulty of Showing the Non-liability of the Defendant. It is quite difficult to settle upon any set formula of words that will in any case that may arise show the non-liability of a defendant because of the acts of the plaintiff in regard to the same injurious act. When there is mutual negligence, ,if. the defendant cannot avoid the accident by reasonable care and skill, the plaintiff cannot recover. So when the negligence of the plaintiff directly contributed to the injury he cannot recover. Where negligence is the issue it must be a case of unmixed negligence to justify a recovery, and if both parties by their negligence t ae 1 Post Chapter Exemplary Damages. 2Hay v. Gronorlele, 34 Pa., St. 9. 3 Field on Law of Damages, 22; Frazer v. Pecksly, 7 C. A. & Payne, 621, 8 LAW OF DAMAGES. ‘immediately contributed to produce the injury neither can recover.! 13. The Complaint, The plaintiff when he commences his cause of action generally files with the clerk, of the court his complaint, in which he represents to the court the facts consti- tuting his supposed injury or cause of action. In his com- plaint the law conclusively presumes he has set out, every grievance and injury that he has sustained by reason of the wrongful act for which he sues. And he can only recover damages for such injuries as he has set out in the allegations of his complaint, whether his action is brought for a breach of contract or in tort.? But in proof of damages the plaintiff will not be confined to the precise number, sum or value laid in his declaration or complaint, nor is he bound to prove that he has sustained injury to the full extent alleged.’ 14. The Damages which Necessarily Arise can be Shown under the General Allegations. Those injuries which necessarily result from 1 Toledo & Wabash R. R. Co. v. Goddard, 25 Ind. 185; Butter- field & Forrester, 11 East. 60; The Evansville & Crawfordsville R. R. Co. vy. Hiatt, 17 Ind. 102, Loften v. Voles, Id. 106; The Evansville & Craw- fordsville R. R. Co. v. Loudermilk, ‘15 Ind. 120; The Teledo & Wabash R. R. Co. vy. Thomas, 18 Ind. 215; Smith vy. Smith, 2 Pickering, 621. ?Brooks v. The Buffalo &c. R. R., 25 Barbour 600; Suydam v. The Street Railway Company, 41 Barbour, 375; Runyen v. The Central R. R. Company, 1 Duch., 558; Dascombe v. The Erie R. R. Company, 27 Bar- bour, 221; Button, Adm’r v. Hudson R. R. Co., 18 N. Y., 248; Brown v. Maxwell, 6 Hill, 592; The Cleveland R. R. Co. v. Ferry 8 Ohio, 570; Clark v. Kimir. 4, E. D. Smith 21; Owen vy. The Hudson R. R. Co. 2 Bosworth. 374; 2 Hall v. Hall, 42 Ind., 585; Murch v. The Concord R. R. Co., 9 Fort., 9; Moore y. The Central R. R. Co. 4 Zabrisky 268, 828; The Evansville R. R. v. Durear, 28 Ind. 441; The Lafayette R. R. Co. v. Sims, 27 Ind. 59. 8 2 Greenleaf on evid section 260; 6 Yeats, et al. vs. Reed, et al., 4 Black., 463; 2 Greanleaf on evid. sec. 254, INTRODUCTORY. 9 the act of the defendant are termed general damages and may be shown under the general allegations of the complaint, and the demand for damages at the end. This is permitted on the pre- sumption that the defendant is aware of the necessary conse- quence of his own conduct, and therefore cannot be taken by surprise in proof ofthem. The law alway’s raises a presumption of damages when the evidence shows a violation of a right or duty implied by law, and where the extent of the injury or damages is not shown, the court will award nominal damages. But when the damages are the natural consequence of the act complained of. but are not the necessary result of it, they are called special damages, and in order for the plaintiff to re- cover for such damages they must be specified in his complaint. If this is not done he will not be permitted to give evi- dence of them on the trial.” . 15. The Jury at Common Law fixes the Measure of Damages. At common law the jury is left to fix the the measure of damages that the plaintiff shall recover, and when no amount is shown by the agreement either expressed or implied, the verdict of the jury will not be disturbed by the court, unless it is shown that there were actually prejudice or corruption in assessing the damages.1 The law in case of torts allows a jury a large discretionary power in assessing damages. And unless there has been a great abuse of that discretion a motion for a new trial on account of ‘excessive damages will be overruled. Thus it was said that new trials should be granted only in case of tort “when the finding has stamped upon it a palpable disre- gard of the rights of the parties and the indulgence of preju- dice rather than a just view of the case. A verdict however 7 1 Chitty on Pleadings 328, 346, 347 (4 ed.) 1 2 Greenleaf, evid. sec. 255; Gellent v. Buckingham, Lofft R. 771, Coup. 230; Day v. Holloway, 1 Jur. 794; Tegarden v. Hetfield, 11 Ind. 522; Young v. Tustin, 4 Black. 277; Reeves & Andrews, 7 Ind. 207; Harper v. Miller, 27 Ind. 277; 2 Picquet v. McKay. 16 LAW OF DAMAGES. to justify the intervention of a court should in the language of many decisions on the first blush appear to be outrageous and excessive.” ? _ 16. Only the Proximate Consequences of the Breach can be Allowed. The rule for the assessmeat of damages in case of a breach of contract only permits the plaintiff to recover for the proximate consequence of the breach. And there can be no allowance made for loss or injury which is not the proximate conse- quence of the breach. This excludes from the jury all remote or possible losses which have no direct and necessary connec- tion with the stipulations of the contract, or which depend upon contingencies other than the performance of the contract and which are therefore incapable of being estimated. Such losses cannot be traced with any degree of certainty back to the wrongful act or omission of him who has violated his en- gagement. But this rule does not exclude such loss of profits or advantages which must have resulted from a fulfillment of the contract. They are a part and parcel of the contract itself entering into and constituting a portion of its very element; something stipulated for, the right to the enjoymenit of which is just as clear and plain as to the fulfillment of any other stipu- lation. The parties are presumed to have taken them into consideration and deliberated upon them before the contract was made, and were perhaps the only object that they had in view in entering into the contract. 17. Hadly v. Bawendale.. The doctrine enunciated in the famous case of Hadly v. Baxendale, decided by the English 1 Black. 465. * Masterton v. Mayor of Brooklyn, 7 Hill 61; Adams Express Co. v. Egbert, 36 Penn. stat. 360; Blarchord v. Ely et al. 21: Wend. 342; Flet- cher v. Talun, 17 C. B. 21; Somes v. Wright, 115 Meap. 292; Griffin v. Coluer, 16 N. Y. 489; Shepherd v. Milwaukee Gas Light Co., 15 Wis. 349. INTRODUCTORY. ‘ 11 Exchequer Court in 1854, has been adopted by the courts of the great majority of the states as being a correct exposition of the rules of the common law. The court in that case held that where two parties have made a contract which one of them has broken, the damages which the other party ought to re- ceive in respect to such breach of contract should be such as may fairly and reasonably be considered, either arising natu- rally, i. e. according to the usual course of things, from such breach of contract itself or such as may reasonably be sup- posed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it. This rule is based on the presumption that parties when they enter into a contract take into consideration the damages that would naturally arise according to the usual course of things by a breach of it. And both parties are sup- posed to be cognizant of the result that is ordinarily produced by the failure of a party to comply with the stipulations of such contract. By this rule all remote or contingent losses are disregarded and the recovery limited to the proximate con- sequences of the breach.* | 18. Interest of the Plaintiff. The amount of the plaintiff's damages in an action for an injury to property, will depend to some extent upon the interest he had in it at the time of the commission- of the wrongful act. Thus the owner of a free- hold may recover for all injuries which permanently affect or depreciate his property, while a tenant or one having only a possessory right can only recover damages for an injury to his use or enjoyment of the premises.° There has been much controversy’ among the members of : Hadly yv. Baxendale, 9 Exch. 341. 4 Adams Express Oo. v. Egbert, 36 Pa. st. 360. Kep Kav. Sergeant, 7 W. & S 9; Schannable v. Kachler, 4 Cary 181; Rabb v. Mann, 1 Jones, 305; Seeley v. Alden, 61 Pa. st. 302 12 LAW OF DAMAGES. the legal profession in regard to the measure of damages in case of malicious and aggravated torts. It is contended on one side that the true principle in all cases is that of compensation. The advocates of this rule contend that it is broad enough to furnish a remedy for even the most aggravated wrongs. That under it proper allowance can be made for insult, outrage or | indignity, for suffering of mind ag well as pain of body. Prof. Greenleaf in his work on evidence says: “In the proof both parties must be confined to the principal transaction com- plained of and of its attendant circumstances and natural re- sults, for these alone are put in issue.” * And he has been one of the ablest advocates of the rule allowing only compensatory damages, maintaining his position with great legal accumen and solidity of argument. On the other hand it is claimed that damages should not only be allowed for the actual injury sustained, but that the jury should be permitted in aggravated cases where the evi- dence discloses the fact that the defendant was in the perpetra- tion of the wrongful act prompted by bad motives, to blend together the interest of the injured party and the interest of the community and assess exemplary or vindictive damages for the punishment of the wrong-doer or the defendant. This doctrine seems to rest on no rule or principle back of itself, and is unsupported by reason or the principles of natural right. *And it is a matter of great surprise that one possessing the breadth of thought and great forensic learning of Professor Sedgwick, would be the zealous advocate of aaule that seems to be so much in conflict with the principles of justice. But whatever valid objection may be urged to this rule, it is now recognized as law in almost every State in the Union.! _ s 2 Greenleaf on evid. sec. 268, 1 Alabama—Mitchell v. Bellingly 17 Ala. 391; Duey v. McQueen, Id. 409; Parker v. Musi, 27 Ala. 480; Denaghu vy. Heath, 37 Id. 395; Ar- NN OVA INTRODUCTORY. 13 19. The rule allowing Exemplary Damages is being tested. But the rule allowing juries to assess exemplary damages although recognized as a part of the common law by the courts of last resort both of England and this country for more than a cen- tury is now being tested, and it is thought by many that it will ultimately be overturned 20. Never was a Rule of the Gommon Law. It is hard to be- lieve that it was ever a principle of the ancient and genuine common law that men should be punished for crime in a civil action. It is clear that damages were not originally designed for such a purpose, because the ancient common law had its civil and criminal courts which were kept separate and dis- tinct. One was to award damages for injuries received, the kansas—Olark v. Bales, 15 Ark. 452; Connecticut—Lindsy v. Bushnell, 15 Conn. 225; Hutiy v. Bown, 15 Id. 273; Dibble & Morris, 26 Conn., 426; St. Peter’s Church v. Beach, 26 Conn. 365; Bastrom v Stone, 21 Id. 162; California—Nightengale v. Scammon, 18 Cal. 315; Dorsy v. Mem- low, 14 Cal. 554; see statutes sec. 19; Delaware—Steamboat Co. v. Wilden, 4 Harrington 228; Jefferson v. Adams, 4 Id. 321; [linois— Groleli v. Morgram, 3 Scam. 372; McNamer v. King, 2 Gillai 432; Hawks v. Ridgway 33 Ill. 473; Chicago R. R. Co. v. Flog, 43 Id. 364; Peori—Bridge Ass. v. Looms, 20 Id. 235; Foster v. Nich- ols, 28 Ill., 28 Ill, 486; Reeder v Purdy, 48 Id. 261; Reno v. Wilson, 49 ll. 95; Johnson v. Camp, 15 Id. 219; Booth v. Smith, 54 Id. 431 Iowa; Hendrixson v. Kingsbury, 2 Ia. 379; Plumer v. Harbert B. Ia. 308; Cochran v. Miller, 13 Ia 128; Denslow v. Vanhorn, 16 Ta. 476; Williamson vy. Wes. Stage Co 24 Ia. 171; Indiana—Anthony v. Gilbert, 4 Black. 384; Gurd v. Risk, 11 Ind. 156; Millsor v. Ilock, 17 Ind. 227; Little v. Lingle, 26 Ind. 168; Kentucky—Jennings v. Modox, 8 B. Monroe 430; Childs v. Drake, 2 Met. 146; Bonson v. Green, 2 Duvall 234; Kentucky, &e. R. R. Co. v Dells, 2 Burt 693; Kansas—Wiley v Keokuk, 6 Kan. 94; Wiley v. Manatoba, Id. 111; Leavenworth R. R. Co. v. Rice, 10 Kansas, 466; Mississippi—Chopper v. New Orleans R. R Co., 38 Miss. 242, 49 Id. 395; Maryland—Baltimore, &c. R. R. Co v. Blocker, 27 Md. 277; Missouri— Friedenstite v.. Kdmunson, 36 Mo 226; Buckly v. Knapp, 48 Mo. 152; Carmen & Walton, 18 Id. 71; McKeon v. City R. R. Co. 42 Id. 79; Maine—Peke v. Dellings, 48 Me. 539; Michigan—Hyatt v. Adams, 16 Mich. 180; Minnesota—Fox v. Stevens, 13 Minn. 272; Jones v. Rahilla, 16Id 320; North Carolina—Wiley v. Smithman, 8 Id. 236; Gelsett v. "Allen, 10 Id. 67; New York—Tilloton v. Cheetham, 3 Johns, 56; Woset 14 / LAW OF DAMAGES. other to punish the guilty.’ For a full discussion of the question, see “Exemplary Damages.” 21. The Law Opposed to Litigation. The law is not friend- ly to unnecessary ‘litigation and aims to conclusively settle all matters of difference between the partics, growing out of the injury complained of, by doing exact justice to both. These are its ends and its rules are the means by which it accom- plishes its ends. They are only of secondary importance, but as “without them there would be no certainty in ju- dicial action, and no accurate knowledge of personal rights and obligations, these rules are adhered to,” although they may work great hardship in certain cases. But when their general effect becomes mischievous they are then set aside or controlled by those general rules out of which spring the par- ticular rule which has proven injurious. A particular law al-- ways implies a general one, and when the former comes in con- flict with the latter it should cease to exist, from the fact that: its only function is to aid the general law. This rule may be illustrated by supposing that the general object of the law of damages is to do justice between the parties, and for this pur- v. Jenkins, 14 Id. 352; King v. Root, 4 Wend. 513; Biszer v. Maybell; 21 Wend. 144; Lift v. Centur, 3 Hill, 180; Lipe v. Esenler, 32 N. Y., 229; Kendal v. Stone, 1 Sela. 14; Walker v. Wilson, 8 Bown 586; New Hamp- shire—Whipple v. Walpole, 10 N. H. 130, Perkins v. Somelee, 43 Id. 220; Fay v. Parker, 53 N. H. 342; New Jersey—Achison v. Erie R R. Co. 3 Broom, 254, Ohio—Atlanta E R Co. v. Dunn, 19 Ohio st. 162; Roberts v. Means, 10 Id. 277 Penn.; Sommer v. Wilt, 48. & B., 19; North Carolina —Greenville R. R. Co. v. Partow, 14 Rich. L. 237; Texas—Gordon v. Jones, 27 Tex. 620; Tennessee—Rysom v. McGuire, 3 Head, 530; Jones v. Turpin, 6 Haik. 181; Vermont—Ney v. Meriman, 35 Vt. 488; Wiscon- sin—Picket v. Crook 20 Wis. 358; Manly v. Dunbar, 24+ Wis. 183; Hook- er v, Nutor, Ia. 292. Andthe Supreme Court of the United States has repeateely recognized the rule. Day v. Woodward, 18 Hourd 362; The Yankee v. Gallagher, 1 McCall 467; Philadelphia R. R Co. v. Quigley, 12 How. 202; Gould v. Christianson, Blotchy & H. 507; Walker v. Smith, 1 Was. C. C. 153. 3 2 Parson on contracts, 171. RM aS Me INTRODUCTORY. 15 pose it establishes certain rules for the assessment of damages in an action of Trover, Replevin, &c. The rule est&blished in the case of trover,is of such a charater that instead of meting out justice between the parties it actually robs one party for the benefit of the other. In such cases the object of the special rule having failed it should be set aside or so modified as to become an auxiliary to the general rule. The rule should never be in the way of the end to be accom- plished.” 2Arnold v. Cord, 16 Ind., 177; 56 Ind 569. CHAPTER IL. Piaintirr’s Inrerest. AN Unavutuorizep Act WitHout In- JuRY GIVES No CAUSE FOR ACTION. 22. A Party Cannot Maintain a Suit Without Interest in the Sub- ject Matter. As a general rule a party cannot maintain a suit in court unless he has an interest in the subject matter in hti- gation.1. If therefore the evidence shows that the plaintiff has no right in the person or property injured or the contract that has been violated. he cannot recover.’ 23. The Common Law Rule. At common law, actions on contract, whether expressed or implied, or whether by parol or in writing or of record must be brought in the name of the party in whom the legal interest in such contract is vested. And the common law courts will not enforce mere equitable rights.’ 24. Action for Tort at Common Law must be Brought in the name of the Person whose Legal Right has been Affected. At common law actions for tort must, in general, be brought in the name of the persou whose legal right has been affected, and who is legally interested in the property at the time the injury was com- mitted, for he is impliedly the party injured by the tort, and whoever has sustained the loss is the person to call for compen- INTEREST OF PLAINTIFF. “ 17 sation for the wrong done. An action for the injury to the natural or absolute right of a person, as for an assault and bat- tery, injury to health, reputation, and the like, can only be brought in the name of the party immediately injured, and if he dies the cause of action ceases and the remedy is gone.’ ¢ 24. The Common Law Rule Abolished. In most of the States the common law rule has been abolished, and the party having the real interest must sue.° 25. The Plaintiff Cannot Recover for an Unauthorized Act Re- sulting in no Damages. The plaintiff cannot recover even nomi- nal damages for an unauthorized act that resulted in no in- jury. In order for him to recover, the evidence must show that there has been a breach of duty, or an injury to person or property resulting in damages. No one can recover damages unless some right has been infringed.’ But it is not to be un- derstood that the law will interfere and restore every species of loss that one individual may sustain by the act of another 1 Goodnight v. Goor, 30 Ind., 418; Morsher v. Allen, 16 Mass., 451. ® 1 Chitty, p 2. ¢ * A parent is entitled to the earnings of his child, and a suit for such earnings must be brought in the parent’s name, 1 Pickering, 487. 41 Chitty pl. 3. . "1 Chitty Pl 59-60. An action for injury to personal property is right- ly brought in the name of ‘the owner at the time of the injury, alhough it has been subsequently sold, and in the possession of a third party at the commencement of the suit-~-Holly v. Huggerford. 8 Pick., 73; Boyn- ton v. Williard, 10 Pick., 166. Under the codes of many oe the States every action must be proseenteds in the name of the real party in inter- est. Ind. St. by G & H. p. 34,5. 3; Gray v. Goodman, 9 Barbour, 657; Seden v. Hepburn, 3 Sand 668; Tate v.0& M. R. R. Co., 10 Ind. 174; Mahan.v. Brown, 13 Wend., 260. 5G. & H. Ind. 34, sec. 3; Gray v. Goodman, 9 Barbour, 657; Seden v. Hepburn, 3 Sand. 668; Tate v. O. & M.R. R. Co., 10 Ind., 174; 6 Mea- han v. Brown 13 Wend. 260. The code of procedure has abolished all distinction between law and equity remedies and blended them into one system combining or professing to combine the principle peculiar to each. Getty v. H. R. R. a 6 Han. p 269. 18 LAW OF DAMAGES. or others. There are many trifling injuries that are the result of a breach of moral right and duty that the law fails to recog- nize. It is only the legal injury that causes its machine to move‘in the interest of the injured party. And this has given rise to the legal maxim that damages absque injuria gives no cause of action. The owner of property has a right to use it in a prudent, reasonable manner and if by such use another sustains damages, it is damnum absque injuria." 25. The Law Only Holds Tuan Liable for Voluntary Wrongs. The law makes individuals liable only for voluntary acts, and it charges no man with default where it is occasioned by compulsion, and is not voluntary. And the fact that it is impossible to do otherwise carries with it a privilege in itself, and the party will not be responsible in damages.’ Rights of Adjoining Land Owners, If one land owner builds his house so near the boundary line between him and his neigh- bor that as soon as his neighbor removes the dirt on the oppo- site side of the line up to the land of the plaintiff, the house falls down, the plaintiff cannot recover, not having an ease- ment over his neighbor’s land.? Supervisors Not Liable. A Supervisor of a highway, whose duty it is, under the law to keep in order the highways in his distriag, cannot be held responsible ina civil action for a fail- ure to perform his duty.* "Sedgewick on dam. 28. There are many consequential injuries that may happen to others from the legitimate use of one’s own property for which there is no redress. W. & E. Canal v. Spear, 16 Ind., 441; 9 Ind. 59 Id. 448. 1 Broom’s Legal Maxims, p. 1-6. aMeahan vy, Brown, 13 Wend. 1-6; Brown v. Roberts, 3 H. & N. 186; Shagan y. Knowles, 6 H. & N, 454; Dodd v. Holms, 1 A. & E., 493; ee alae v. Brown, 9 H. of Y. 503; Lashly v. Holbrock, 4 Page N. * Field on Dam., 32. INTEREST OF PLAINTIFF. 19 26. .A Municipal Corporation is not Liable for Failure to Perform Legislative and Goevrnmental Acts. A municipal corporation is in one sense a government, and possesses in a limited extent sov- ereign powers, which in their nature are legislative or judicial. The extent to which ‘it may be proper to exercise such, as well as the mode of their exercise by the. corporation within the limits prescribed by the law creating them, are of necessity entrusted to the judgment, discretion and will of the properly constituted authorities, to whom they are delegated. And, be- ing public and sovereign in their nature, the corporation is not liable in damages, either for a failure to exercise them or for error committed in their exercise.‘ The Supreme Court of the State of Iowa, in a case where the plaintiff brought an action to recover damages for the death of his two chileren by small-pox, which he alleged he caught by reason of the city of Lansing failing to take the necessary precaution to prevent a spread df that disease, and that he communicated the disease to his children, who died from the effects of the same. In commenting on the question as to the responsibility of the defendant, the court said: “The principle that would hold the plaintiff liable for the negligent act here complained of, would compel a city to respond in dam- ages for the neglect of its police to suppress a riot; the failure of its firemen to arrest a conflagration, and the negligence of its physician to prescribe for a patient. It is impossible to conceive of the endless complications and embarrassments which such a doctrine would involve and the extent that pub- lie interest would thereby suffer. It is safe to assume if such were recognized as the law, that no town would voluntarily 4Brinckmyer v. Evansville, 29 Ind, 187; Rochester W. L. Co. v. Rohester, 3 N. Y. 463; Floyd.v. N. Y. City, 3 N. Y. 369; Wheeler v. Cin- cinnati, 19 Ohio St. 19; Col. of Med. v. Cleveland, 12 Ohio St., 375; Smoot v. Wetumppa, 24 Ala., 112. 20 LAW OF DAMAGES. assume corporate functions, and every industrial and commer- cial interest would become paralyzed. The true doctrine is that the powers conferred in the section we have been consid- ering are of a legislative and governmental nature, for the de- fective execution of which the city cannot be held liable. In discharging these legislative functions the city acts as a quasi sovereign and is not responsible for neglect or non-performance of its officers or agents.” * 27. Whenever an Action is Brought for'a Breach of Duty the Party Bringing it Cannot Recover unless he Shows an Interest in the Contract. We think it may be laid down as a general rule that whenever an action is brought for a breach of duty, the plaintiff must show that he had an interest in the performance of the duty, and that the duty was imposed for his benefit, and the fact that a duty was imposed for the benefit of another or for the public and his own advantage is merely incidental and not a part of the design of the statute. He cannot recover for a breach of that duty.® 28. The Owner of the Surface of the Land Owns Downward to the Center of the Earth. The law gives the owner of the land whatever is found below the surface, whether rocks or mineral or earth or water, and he may dig and apply to his own use whatever lies under his soil. It is his absolute property; and the fact that in digging a well or mine on his own land he cuts off the subteranean veins and the channels which supply an- other’s well, gives no ground for damages. The injury is domnum absque injuria." So when the stream is an artificial one and the * Oges v. The City of Lansing, 35 Id. 495. * Strong v. Campbell, 11 Barber, N. Y. 135; Welch’ y. Board of Super- visors, 23 Id. 199; Smith v. Yosman, 37 Id. 89, ™N. A. & S. RR. Co. v. Peterson, 14 Ind. 112; Greencastle v. Hazelott, 23 Ind. 186; Acton v. Blundell, 12 M. & W. 324; Greenleaf v France, 19 Pick. 117; Rooth v. Juscall, 20 Conn. 033; Ellis v. Duncan, 21 Barber, 3 INTEREST OF PLAINTIFF. ‘ a1 works at its source which cause it are suspended whereby the supply of water is cut off and ceases, the party benefited by the flow through his land can recover no damages against the party who causes its suspension.! 29. Where a Public Highway is Obstructed a Traveler may Enter the Adjoining Land in order to Avoid the Obstruction. Where a pub- lic highway is obstructed so that a traveler cannot pass along he may enter upon the adjoining lands to avoid the obstruc- tion. So in order to arrest the progress of fire a house may be pulled down.’ In these cases the maxim salus populi suprema lez applies, and it is damnum absque injuria. 30. Parties at Common Law. The rules of the common law require the plaintiff in an action ex delicto to bring his suit against the persons committing the injury. The general rule is that all persons are liable to be sued for their own tortious acts unconnected with or in disaffirmance of contract.’ An infant asa general rule cannot be sued in an ac- tion in form ex contractu except for necessaries, yet he is liable for all torts committed by him, as for slander, assault and battery, &c.? A married woman is liable for torts actually com- mitted, but she cannot be held liable for a trespass committed 230; Clatfield v. Wilson, 28 Vt. 49; Parker v Boston and Maine R. R. Co.3 Cush. 107; Haswood v. Benton, 32 Vt. 737, Brown v. Allen, 25 Conn. 583. 1 Gavel v. Mearton, 19 C. B. N. 8, 732; Newell v. Brockwell, L. R. Ex. 1R. 2 Russell v. Mayor N. Y., 72 Demo. 461; Moyer vy. Lord, 17 Wed. 285, 2 Kent Com. 333; Field v. Desmoine, 39 Id. 579. . 11 Chittys P. 75, 87 R. 336, 337. * Boe Ali Infancy. -Ifan infant hires a horse to go to a place agreed ‘on but goes to another place in a different direction, he will be liable in trover for an unlawful concession of the horse; Homer v. Hinning, 3 Pickering, 492; Curtin v. Patton, 61 Serg. & Roub. 310. 29 LAW oF DAMAGES. by prior or subsequent assent. A lunatic is not liable for crimes committed by him, but the law holds him liable in a civil action for all torts he may commit* Corporations are liable by the common law in actions of ‘ trespass, trover trespass, on the case ex dilecto for torts com- manded or authorized by them, and for this purpose the acts of their agents are regarded as the acts of the corporation.’ It is now pretty generally settled that corporations are responsible for malicious prosecution.® 31. Responsibility of Parties for Joint Torts. There are some torts which in law may be committed by several persons and for which a joint action may be supported against all the par- ties. And it is a general rule that all persons who aid, com- mand, advise or countenance the commission of a tort by an- other or who approve of it after it is done are liable if done for their benefit in the same manner as if they had done the tort with their own hands. Thus a person who is present at the 3 1 Chittys Pl. 75. 4 Ex parte v. Ligton, 14 Mass. 207. A non compos must be made a defendant like other persons. Rogers v. Ellis, 1 Meigs 88. 5 Hawkins v. Duchess, &c. Steamboat Co., 2 Wend. 452; McCreary v. Guardian of the Poor, 9 Ser. & Raub. 94; Lyman v. White River Bridge Co. 2 Aik. 255, 2 Hill 573; Goodlove v. The City of Cincinnati, 4 How. 500, 514, Hamilton & Co. v. Cincinnati, &. Wright 603; Keanas v. Schuylkill Bank, Wash. C. ©. 106; Beach v. Fulton Bank, 7 Conn. 487. 5 Goodspeed v. Kasthodden Bank, 22 Com. 530; Hypely v. Grover, &c. Sewing Machine Co., 2 Wood 494; Fenton v. Wilson, Sewing &c. Co., 9 Phil. Pa. 189; Vance v. Erie R. R. Co. 32 N. J. 334; Green v. M. 0.7 Conn. But., N. J. 290; Whelen v. 2.N. B. 32 Sem. 469; Cooly on Torts, 120-121. 5 1 Chittys Pl. 85; also 37-42. An action for libel will be against two or more if it be a joint act by all. Hasses v. Huntington, 2 Tyler 129; Lancing v. Mont, 2 Johhs 382. 6 Judson v. Cook, 11 Barber 642. It was held in case of an injry toa coach passenger by a collision of the coach not lighted with a turnpike gate not safely fastened back. If both causes contributed to the injury the plaintiff might recover of the driver and Turnpike Company; Dan- ville, &c. v. Stewart, 2 Met, (Ky.) 119, INTEREST OF DEFENDANT. 93 commission of a trespass aids, commands, advises, encourages or excites the same by words, signs, gestures or looks, is in law deemed to be an aider and abettor and liable as principal." If one goes in aid of a person who commits a trespass though he have no further part in it, he will himself be guilty of trespass. 32. Defendant on Contract. At common law where several parties are jointly liable upon contract, they must all be made defendants.» And when the contract is joint and several, the plaintiff is at liberty to proceed against the parties jointly or separately. If there are more than two parties to a joint and several contract, the plaintiff must either sue them all jointly or each of them separately.” Asa general rule where a party will not be affected in any way by the result of the suit, he: should not be made a party. If no judgment in any form can be rendered against a party to the record, he should not be joined either in action or contract or in tort.* ™ Brown v. Perkins, 1 Allen 89, 2 Hilliard on Torts, 293. 1 Clarke v. Allen, 15 Ark. 452; Herring v. Hoppock, 15 N. J. 423; Jud- son v. Cook. 11 Barber, 642; Stone v. Dickenson, 7 Allen 26. Trespass may be maintained against a person who merely carries away the material of an old building that has been pulled down by a trespasser. Dreyer v. Ming, 23 Mis. 434. 11 Chittys Pl, P. 41. McCall v. Price, 1 McCord 82; Tradesman’s v. Astor, 11 Wend. 87; Peters v. Davis, 7 Mass. 257; Beach v. Hotchkiss, 2 Conn. 697. A covenant in a lease to two peysons as tenants in common that the lessee shall pay. the rent, is a joint covenant notwithstanding their several interests. Phillips v. Ronsall, &c. 2 Burn 138. 71 Chittys Pl. P. 43. Bangor Bank, v. Treat, 6 Geonl 207; The State, &c. v. John 25 Ind. 82. : 3 Conklin v. Thurston and others, 18 Ind. 290. CHAPTER HL. EXEMPLARY DAMAGES. Tur Ricut to Recover Exempiary DAMAGES QUESTIONED. Ir NEVER WAS A PART OF THE ComMMON Law. THE worD Damaces—its MEANING. THE JuRY SHOULD Not AssESs DouBLE, PUNISHMENT. THE ARGUMENT IN FAVOR OF THE Rute. OBJECTIONS STATED. THE Common Law. Dis- CUSSION BETWEEN GREENLEAF AND SEDGWICK. AN ErFort To RECONCILE THE CONFLICTING ViEWws. DAMAGES FOR MENTAL SUFFERING HARD TO ESTIMATE. EXEMPLARY DAMAGES ALLOWED AS A RULE IN THIS CouNTRY. THE DeE- CISION OF THE SUPREME CouRT oF THE U.S. ConFLict AmonG AUTHORITIES WHETHER IT SHOULD ALLOW WHERE THE OFFENSE 1S CRIMINAL. AUTHORITIES ENUMERATED. WHEN IT APPLIES To PRINCIPAL FOR CONDUCT OF HIS AGENT, MASTER FOR CONDUCT OF HIS SERVANT, MASTER NoT Lia- BLE FOR MALICIOUS TRESPASS OF THE AGENT. THe REta- TION OF THE PARTIES. CoMMON CarrigRs’ LIABILITY. OPINION OF THE CouRT OF AppEaALs or N. Y. WEALTH oF DEFENDANT NoT CoNSIDERED. For wuat Injurigs Ex- EMPLARY DAMAGES WILL BE ALLOWKD. FraupD, MALICE. Gross NEGLIGENCE. BREACH OF PromisE. Dors nor AP- PLY IN CASE OF AN INJURY BY A Domestic ANIMAL. Ex- CEPTIONS To THIS RULE—INFANTS AND MARRIED WoMEN. Tue NATURE OF THE OFFENSE SHOULD BE CONSIDERED. 33. The Right to Recover Exemplary Damages Questioned. The right of the plaintiff to recover exemplary, vindictive or ' HXEMPLARY DAMAGES. 95 punitive damages in a certain class of cases at Common Law has been a source of much controversy among the members of the legal profession for more than a quarter of acentury, and courts of the last resort, both of England and this country have ” attempted in vain to reconcile the rule with the broad and well-defined principles of that law. 34. The Rule Allowing the Assessment of Exemplary Damages Never Was a Part of the Ancient Genuine Common Law. The rules of the ancient genuine common law were founded on the prin- ciple that each man should pay his just debts and compensate those whom he hadinjured. And before they became confused with statutory provisions could be traced back to primary principles and reconciled with the rules of common sense, rea- son and natural right. But the rule allowing the recovery of - exemplary damages rests on no foundation back of the rule itself.? ' 36. The Meaning of the word Damages shows it was Never In- tended as a Punishment. The original meaning of the word dam- ages furnishes very satisfactory evidence that at common law the recovery of exemplary damages was not allowed. The word damages is derived from the word demo, to take away. And, at the time the rules of the common law were being collected and fitted together, it never was used in the sense of punish- ment. From this fact alone one can readily infer that it never was the intention of the ancient common law to make the as- sessment of damages a punishmeut for a crime, or that the civil remedy provided for injuries received at the hands of the tort feasor should be punitive to the wrong-doer as well as compensatory to the’sufferer.. That this rule was not a part 28 Parson on cont., 171; Davis v. W. F. Coff., 7 N. Y., 191; Hay v. Par- ker, 53 N.H., 342. § Hay v. Parker, 53 N. H., 342. 96 LAW OF DAMAGES. of the ancient genuine common law, we think clearly appears from the remarks of the Lord Commissioner in the case of Bal- lew v. Bryant. He said: “I cannot help thinking that Lord Keyon introduced into cases of this sort a principle as to dam- ages extremely dangerous in its consequences. He considered such damages not merely as calculated to repair the injury done to the one party, but as a punishment to the other, and as intended to correct the morals of the community. The morals of the community have not been improved, and I am afraid its feeling has been much impaired. A civil court, in matters of a civil injury, is a bad corrector of morals; it has only todo with the rights of the parties.”* From these remarks, which fell from the Lord Commissioner on this occa- sion, it seems as though the rule for the assessment of exem- plary damages was engrafted into the rules of the common law by Lord Keyon himself, and that it had not been recog- nized as law prior to his time. “i 37. The Law Aims to Restore the Loss. The law is made for the purpose of upholding men in their natural rights, and not for the purpose of robbing one for the benefit of another. Where a party has sustained an injury by the wrongful act of another, the law interposes its strong arm and takes a sufficient amount of property from the wrong-doer and gives it to the in- jured party as will recompense or pay him for the loss he has sustained. This is in harmony with our notion of right and justice. If one kills a horse belonging to another of the value of one hundred dollars, the injury sustained is the loss of the horse. If the wrong-doer at once pays the injured party the full value of the horse or gives him a horse of equal value, it would seem that the demands of justice ought to, and wouldbe, satisfied. But under the rule allowing the recovery of exem- plary damages, more than this can be recovered. “Ballew v. Bryant, 1 Mass.. 317 to 337. EXEMPLARY DAMAGES. 97 38. The Jury should not assess Damages. Aftér a jury has ‘ gone to the full length of adequate compensation for the whole injury sustained by the plaintiff, then to permit them to com- mence anew and assess damages to punish the wrong-doer at their option, is allowing them to exercise a wide and danger- ous discretionary power.‘ 39. The Argument in favor of the Rule and the Reasons Assigned. The basis upon which the advocates of the rule have seen proper to rest their argument is that society has been injured by reason of wrongful act. This proposition can be admitted and yet there are very many well-grounded objections that can be urged with great propriety against the rule. 1. Society or the State is a body corporated or politic, and can sue like an individual. Its interest should not be confused with the interest of its citizens; the two should be kept sepa- arate. The rule should be to render unto the State-the things that belong to the State, and unto the individual the things that belong to the iudividual.” 2. If society has been injured, why should the injured party be permitted to sue and recover damages for that injury. It may be that he lives in a different neighborhood and per- haps in a different State from where the injury. was received, 43 Parsons on contracts, 169. 1In Bodwell v. Swan, 3 Pick., 376, it was held that the repetition of the word for which the action was brought or the uttering of words of similar import might be given in evidence to show that the first writing of the words was malicious. But the Court also declared that they could not go further, and could not distinct calumny uttered by the defendant to be given in evidence to prove his malice for speaking the words for which the action was brought. See also Watson v. Moore, 2 Cush., 133. In Wall v. Mease, 3 Bing., that other words than those in the declaration could be introduced to show malice; but that damages must be given for those words only for which the action was brought. McKeen v. McLaughlin, 2.8 & B., 469. 28 LAW OF DAMAGES. and will not be affected in the least by the shock that society has sustained by the wrongful act for which he sues. Why then should he be armed with the power of the State to punish the offender and be permitted to put the afflicted penalty into his own pocket. The State in all well regulated governments is clothed with full authority and power to declare what acts ‘deserve punishment. The legislative bodies are delegated with full power to define crime and to fix the penalty thereof, and no other body or tribunal is delegated with such authority. If a given act or class of acts deserve punishment, let the legisla- tive authority of the State put it into the criminal code and fix the punishment and not suffer it to be inflicted at the in- stigation of the individual for his own benefit at the discre- tion of a jury.’ ‘x e 3. Society or the State is made up of a multitude of in- dividuals, each of which contribute something towards its sup- port. If, therefore, it is injured, each is compelled to assist in making up the loss or repairing the injury. Then the rule should be that whatever the State is able to recover from the ' tort feasor should go into the general fund for the benefit of all. But under this rule allowing the recovery of exemplary, vin- dictive or punitory damages, money is taken from the pocket of the wrong doer and placed in the hands of a single indi- - vidual.* This is wrong. It is robbing the public treasury to enrich a citizen or perhaps a stranger. Cro mwell vy. Wilkinson, 18 Ind. 365. If there is a mass of general wrong which no one man can take hold of it, the State can come with her criminal process. 3 Parson on con- tract, 169; Burson v. Edwards, 1 Ind. 7; Rigdon v. Walcot, 6 Gil. & J., 413; Wagner v. Hollum, 7 Gill. 296; Coffin v. Baithwait, 8 west 875 In fixing the compensation the jury have no right to give vindictive or punitive damages against a municipal corporation. 52 Ill. 256. * It appears to us that the true measure of damages should be limited and measured by the rule to one full actual compensation for the injury received, neither more nor less. Professor Greenleaf in his work on evidence, saya: ‘“ Damages are EXEMPLARY DAMAGES, 29 4. The welfare and happiness of the whole people of a State demand that crime should be clearly defined and the punishment fixed by law. In the dark ages laws were fre- quently passed making crimes out of acts that were not crimes when they were committed. But at this advanced age of civilization men should be informed what acts are in deroga- tion of the right of the people of the State and forbidden by law. In ordinary cases of misdemeanor the legislatures of the different States have defined the offense and restricted the power of the court in the imposition of a penalty within certain definite limits. Buta jury in a civil action have by this rule: an unlimited discretion to determine the crime and to fix the penalty or measure of redress demanded by the public interest.‘ This is permitting the jury to legislate in the criminal affairs of the Government and to afflict such punishment on the wrong doer as they may think proper, being unrestrained by the laws of the State.° 5. There is no principle better established at common law and none more fully recognized in the federal and state constitutions than thaf an individual shall not be put in jeop- ardy twice for the same offense. This rule so long recognized only applies to the respective governments, but it serves to illustrate a great principle that applies with equal force to a double punishment for the same act by the state and federal given as a compensation, recompense or satisfaction to the plaintiff for an injury actually received by him from the defendant. They should be precisely commensurated with the injury, neither more nor less, and this whether it be to his person or estate. All damages must be the result of the injury complained of whether it consists in the withholding of a legal right or a breach of duty, legally due to the plaintiff. 2 Greenleaf, sec. 253-254; Woodman v. Watting- ham, 49 N. H. 387. 4 Daine v. Wycoff, 7 N. Y.191; Lord commissions in case of Ballew v. Byant, 1 Mass. R. 817-337. 5 Hay v. Parker, 5 How. 435; Fox v. Ohio, 5 How. 435. # 30 LAW OF DAMAGES. courts.’ These constitutional provisions are merely a reitera- tion of the rules of the common law, and it will assist us in interpreting them by refering briefly to some of the rules:and maxims of that law. One of the well recognized maxims of that law is nemo bis nexari debet pro eadem causa. No man ought to be twice tried or brought into jeopardy of his life or liberty more than once for the same offense.’ That the principles enumerated in these constitutions apply with equal force to proceedings in both civil and criminal cases is too well settled to admit of controversy... There is certainly no distinction be- tween the two as to the application of the fundamental rule from the fact that the plea of autrefois acquit or its converse in a criminal case, or a plea of judgment recovered, or its con- verse in a civil action would be a bar or full defense to an- other action. The rule is recognized in almost every civil- ized nation of the earth that when a matter has been once litigated and brought to an end by the proceeding having gone on to a termination, the verdict or jugdment shall be a bar to the second trial or litigation upon the same matter. The idea or rule is fully expressed by the maxim “nemo debet bis nevari.” And means that a man shall not be tried again for the same offense after a previous decision upon it.’ It is very clear that the rules of the common law and these constitutional provisions prohibiting a double pen- alty is applicable alike to civil and criminal cases making a judgment. in one action a bar to another action founded on the same cause. It follows logically therefore that punitive dam- ages are a violation of the general principles of the common law and these constitutional provisions, unless indeed they 6 See authorities above. * Brooms Com. 992; Bird v. Dennison crim. case, 222. 1 Winsor v. Queen Law, R. 12 Q. B. 289. " Windsor v. The Queen Law Rep., 120 R. 289; Fay v. Parker, 53 N. H. 342. \ EXEMPLARY DAMAGES. 31 shall be subject to this condition that they cannot be given when the defendant has been previously subject to a fine im- posed by a criminal prosecution, and where exemplary dam- ages have been allowed in a civil suit, then a fine cannot be imposed for the same cause in a criminal prosecution. This would result in the abolition of what is now looked upon as the ambiguous, confused and absurd rule of double punish- ment cloaked under'the name of exemplary damages. It seems obvious that if the defendant is compelled in a civil action to pay to the plaintiff a fine for the injury that his wrongful act has done to the community, or as a pun- ishment for his guilty act, together with the damages that the plaintiff has sustained by reason of such act. That the pun- ishment would be just as severe as though he had been in- dicted, tried and convicted in the first instance by the State and fined and afterwards compelled to pay the damages to the injured party by reason of a civil suit. To illustrate: Sup- pose that John Smith commits an assault and battery on ‘Thomas Ray. He is indicted by the State, tried and con- victed and fined twenty dollars. Ray afterwards brings a civil action against him for damages on account of personal in- juries received by his beating. The case is tried, and the jury finds for the plaintiff damages to the amount of one hun- dred dollars. In these two suits-Smith is compelled to pay the aggregate sum of one hundred and twenty dollars. But suppose that before the State prosecution was commenced Ray had brought his suit for damages. On the trial the court had instructed the jury that they could assess against Smith a fine or damage to punish him for his crime against society. They assess exemplary damages for his punishment at twenty dol- lars and the damages to the plaintiff for personal injuries at one hundred dollars, making in the aggregate one hundred and 11 Fay v. Parker, 53 N. H. 342. 32 LAW OF DAMAGES. twenty dollars. The punishment to Smith would be just the same in each case. The amount is neither more nor less. The money that is extracted from him by the law, whether the punishment innures to the benefit of the individual or to him and the State, would be just the same. In one case he has paid to the State a fine, and to the injured party compen- satory damages. In the other he has paid the injured party compensatory damages and a fine. But let us pursue the subject a little farther. Sup- pose before Ray brings his suit for damages Smith is indicted by the State, tried and convicted, and fined twenty dollars, Ray then brings his suit for damages, the jury assess against him as exemplary damages by way of punishment—twenty dollars and one hundred dollars damages for personal injuries to Ray. Noone would pretend to say that Smith had not been fined or punished twice for the same offense. From these illustrations it at once becomes apparent that innumerable practical difficulties must be encountered, involving absurdi- ties and contradictions disgraceful to the administration of the science of law, and. in utter contempt of common law and constitutional right and time honored principles of justice in the attempt of courts or law writers to evade, conceal or har- monize the incongruities resulting from an effort to recaver damages in a civil action of tort beyond strict compensation.® 40. Common Law Issues. The pleadings at common law are composed of written allegations of the parties terminating in a single proposition, distinctly affirmed on one side and denied on the other called the issue. And it is an established-rule governing the production of evidence of universal application that the “evidence must correspond with the allegation and be confined to the point in issue”* When a plaintiff brings 5 Fay v. Parker. 53 N. H. 342. * 1 Greenleaf on evid. sec. 50. EXEMPLARY DAMAGES. 83 his suit to recover damages for an assault and battery, he does not allege that the morals of the community have been in- jured by the wrongful act of the defendant, but he simply re- ports to the court his personal injuries and asks the court to allow such damages as will fully recompense him for the in- jury he has: received. The defendant comes into court and denies by his answer that he committed the wrong complained of andthat the plaintiff has not been damaged in the sum alleged in his complaint. The issues to be tried are first, did the defendant assault the plaintiff in manner and form as alleged in the complaint, and if he did was the plaintiff damaged. A jury is empanneled and sworn to try the issues between the parties and a true verdict given according to the law and evidence. The evidence is introduced and shows that the defendant committed the wrong complained of, and that the plaintiff had suffered great pain, &c., but fails to show that the assault in any way disturbed the peace of the com- munity. After the close of the trial the court instructs the jury that if they believe that the defendant committed the act ina bad spirit they may assess against him exemplary damages by way of punishment. And the jury composed of twelve men, in no way responsible for their verdict, after in- demnifying the plaintiff for'the injury he has sustained, pro- ceed as conservators of the public morals to go beyond the issue to punish the defendant for his undefined crime against society.’ They could with as much propriety assess under the issues the amount of damages that one of the plaintifi’s neighbors had received by a blow from the hand of the de- fendant while the fight between him and the plaintiff was go- ingon. Every rule of practice and pleading known to the " Dain vy. Wycoff, 7 N. Y. 191. fi 34 LAW OF DAMAGES. common laws are violated in assessing exemplary damages as a punishment. 41. Greenleaf and Sedgwick. The discussion of this ques- tion a few years ago by Professor Greenleaf and Judge Sedg- wick, attracted the attention of the legal profession. through- out the country, aud it was a matter of great surprise that men holding views so diametrically opposite should be able to present such a formidable array of authorities in support of their respective opposing theories. It was contended by Pro- fessor Greenleaf that damages “are as a compensation, recom- pense or satisfaction to the plaintiff for an injury actually re- ceived by him from the defendant. They should be precisely commensurated with the injury, neither more nor less, and this whether it be to his person or estate. All damages must be the result of the injury complained of. It is frequently said that in actions ex delicto, evidence is admissable of facts and circumstances which go in aggravation or mitigation of dam- ages. But this it is conceived means nothing more than that evidence is admissable of facts and circumstances which goin aggravation or mitigation of the injury itself. The circum- stances thus proved ought to ve those only which belong to the act complained of. The plaintiff is not justly entitled to re- ceive compensation beyond the extent of the injury, nor ought the-defendant to pay to the plaintiff more than the plaintiff is entitled to receive. Injuries to person or to the reputation consists in pain inflicted, whether bodily or mental, and in the expense and loss of property which they occasion. The jury, therefore, in estimation of damages, are to consider not only the direct expense incurred by the plaintiff, but the loss of his time, his bodily suffering, and if the injury was wilful, 1 Fay v. Parker, 53 N. H. 342. A jury may weigh every fact which goes to the plaintiff’s injury, whether in mind, body or estate, but are not at liberty to consider facts which do not relate to the injury itself nor to its consequence to the plaintiff. In other words they cannot go beyond the issue. EXEMPLARY DAMAGES. 35 his mental agony; also the injury to -his reputation, the cir- cumstances of indignity and contumely under which the wrong was done, and the consequented public disgrace to the plain- tiff, together with any other circumstances belonging to the wrongful act, and tending to the plaintiff’s discomfort. And on the other hand they are to consider any circumstances of recent and immediate misconduct on the part of the plaintiff in respect to the same transaction tending to diminish the de- gree of injury on the whole are fairly to be attributed to the defendant. Where an evil intent has manifested itself in acts and circumstances accompanying the principal transaction, they constitute a part of the injury, and if properly alleged may be proved like any other fact material to the issue. Thus, in trespass for taking goods, besides proof of their value, the inconvenience and injury occasioned to the plaintiff by taking them away under the particular circumstances of the case, and the abusive language and conduct of the defendant at the time are admissable in evidence to the jury, who may give damages accordingly. And evidence of improper language or conduct of the defendant is also admissable upon proper alle- gations in an action of trespass on the case or trespass quan clausum regit, as constituting a part of the injury. And gen- enerally, wherever the wrongful act of the defendant, was ac- companied with circumstances of indignity and insult, wheth- er in the time, place or manner, though they may not form a separate ground of action, yet' being properly alleged they may be given in evidence to show the whole degree of injury.” ” The theory of Judge Sedgwick is that “where elements of fraud, malice, gross negligance or oppression mingle in the controversy, the law, instead of adhering to the system, or even language of compensation, permits the jury to give what is termed punitive, vindictive or exemplary damages. In other 22 Greenleaf on evid., sc. 253, 254, 266, 267, 272. 36 LAW OF DAMAGES. words, blends together the interests of the society, and the ag- grieved individual, and gives damages not only to recompense the offender, but to punish the defendant.° 42. Recent Efforts to Reconcile. There has been some recent efforts made by courts and law writers to harmonize the con- flicting theories advanced by these two noted commentators on the law of damages and even Mr. Sedgwick himself in a note to page 38 of his treatise on damages, concludes that the differ- ence between himself and critics is after alla little more than a verbal one. The attempted effort to reconcile the conflicting views of these jurists has been on the theory that Mr. Sedg- wick, in using the words exemplary, vindictive and punitory damages intends to convey the idea to his readers that certain elements should be considered'by the jury in assessing dam- ages in actions of tort, where the elements of fraud, malice, gross neglinence or oppression are shown to have mingled in the controversy. And that the only difference between him- and Prof. Greenleaf is that one claims that the plaintiff in such actions should have damages for physical and mental suf- fering, and that damages for such injuries shall be called com- pensatory damages, and the other thinks the plaintiff should have damages for physical suffering, to be called compensatory, and damages for mental suffering, to be called exemplary. If this was the idea that Mr. Sedgwick intended toconvey by the use of the words exemplary, vindictive and punitory dam- ages, the controversy would then be reduced down to a ques- tion of the propriety of the use of language or words. But we can hardly presume that one so skilled in the use of languages as Mr. Sedgewick would use words so carelessly. The controversy has not been as to what rule shall prevail $Sedgwick on dam. (5 ed.) 34. “Field on the law of dam., p 70, sec. 73. EXEMPLARY DAMAGES. 37 but what is the rule established by the common law. In order then to arrive at a correct conclusion upon the disputed point, we must push aside the rubbish and dig down to the original bed rock upon which the rules of the common law rests and ascertain as best as we can the origin of the word damage. The word “damage,” in French, dommage. Latin, : damnum from demo, to take away, signifies the thing taken away—the lost thing which a party is entitled to have re- stored to him, so that he may be made whole again. The word damages is derived from the word “demo,” to take away, and therefore is not derived from “ punio,” to punish. And when used to signify money, which the plaintiff ought to recover, damages is never nor in any sense synonymous or collatteral to the term example, fine, penalty, punishment, revenge, dis-. cipline or chastisement.’ In the formation of the common law the civil and criminal practice were kept entirely separate, and were not blended together under any circumstances. The State was the complaining party in all criminal cases, and civil cases were prosecuted in the name of the party having the legal interest. The rule allowing the recovery of exem- plary damages therefore has been the growth of more recent time, for it was not a part of the ancient genuine common law. Mr. Rutherford in his institute in commenting on the question of damages, says: As the heirs of the criminal have no claim to such goods as he loses by way of punishment, so neither has the injured person. He has indeed a right to so much of the criminal’s goods as will make him amends for the damages which he has suffered, but no reason can be given why he should have a right to more unless some positive law has given him such a right, the ends which justify punish- ment will by no means extend his claims any further than this. The criminal by suffering in his goods may discourage or prevent him from offending again, but a design to discour- 5 Fay v. Parker, 53 N. H., 342. 3 Parsons on cont. 171. 88 LAW OF DAMAGES. age or prevent him from offending again can be no ground for that person whom he has injured by offending once to claim property in goods which he is deprived of. The ends of pun- ishment may be answered by taking the criminal’s goods from him, but these ends do not require that the property he loses should be vested in the pereon whom he has injured.° 43. The Opinion of the Supreme Court of Iowa. The ques- tion of exemplary damages was recently up before the Supreme Court of the State of Iowa, in the,case of Hendrick- son y. Kingsbury, which was an action for an aggravated as- sault and battery, and was carefully considered by that learned jurist, Justice Cole. In reviewing the authorities he took occasion to notice the controversy between Professor Green- leaf and Judge Sedgewick, and said: “The controversy on this subject between Professor Greenleaf and Mr. Sedgewick 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 to the extent of the right of recovery or the real measure of damages.” i “That while the plaintiff can only recover com- pensation, he is not confined to the proof of actual peouniary loss, but that the jury may take into consideration every circumstance of the act which injuriously affects 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 neighbors, and therefore to this ques- tion alone the jury should be restricted. While Mr. Sedge- wick holds that whenever the elements of fraud, malice, gross negligence or oppression mingle in the controversy, the law * Rutherford’s Inst. Book, 1, chap. 17, sec. 1, p 385. Fay v. Parker, p 342. 1 HXEMPLARY DAMAGES. 89 ‘instead of adhering to the system or even the language of compensation, adopts a wholly different rule. It permits the jury to give what is termed punatory, vindictive or exemplary damages. In other words blends together the interest of so- ciety and the aggrieved individual, and gives damages not only to recompense the sufferer but to punish the offender.” It is perhaps true that the broad and general language of the tule as stated by Mr. Sedgewick, tends more to convey toa jury the idea of unlimited and unrestrained power, jurisdic- tion or control over the amount of their verdict than the rule stated by Professor Greenleaf, ‘and that under that rule juries would more frequently return verdicts based more or less upon their passion and prejudice than under the other rule. For instance the instruction as given in this case (omitting the objectionable claim heretofore considered) would tend to con- vey 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 consequen- tial pecuniary loss as to the value of the time lost by the plaintiff, the expense (if any) incurred for medicine, phy- sician’s bill, compensation to the attendant and board while sick and the like. Third, physical suffering consequented upon the injury, including any temporary, protracted or per- manent 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 thé defendant, as by the exposure of her naked person to the ‘public, the sense of wrong in- flicted, insult, affected, the degredation felt and the like. Fifth, injury to the business, reputation, social standing and the like. It is not unreasonable to suppose that such an in- struction would more certainly exclude passion and prejudice, and that a jury would feel themselves more constrained to 40 LAW OF DAMAGHS. limit their verdict to the compensation to the plaintiff for the injury inflicted by the defendant, and at the same time would render a verdict which would amply compensate for the injury in every phase and manner wherein it could operate. And, indeed, it seems tous under such instruction the verdict would be far more likely to approximate.to justice and to exclude passion and prejudice, than under a general instruction as given by the court in this case and justified by the rule laid down by Mr. Sedgewick, 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 they would not in any event have any pecuniary standard by which to measure the damages under the third, fourth and fifth subdi- visions of instruction as specified.” " 44, Damages for Mental Suffering Hard to Estimate. The fact is obvious to every one that it is very hard to estimate damages for mental suffering, public disgrace and physical pain by a money standard. At best it can only be a conject- ure. But it would be a monstrous wrong to close the doors of the courts against the recovery of damages in such cases. The task of assessing the amount of recovery or damages must then rest on some one, and the law has, we think, wisely placed the responsibility on the jury. The question then arises shall the jury, clothed with this responsibe power, be circumscribed by certain rules or left free to exercise their own discretion. The history of the past demonstrates that the passions of the human mind very frequently dethrone the judgment and shape the conduct of individuals. And that the interest of society demands that there should be restriction and limita- tions thrown around us in every position in life, and especi- ally is this the case when we are called upon to estimate the damages that one has sustained by an aggravated injury at the hand of another. 1 21 Iowa, 379, HXEMPLARY DAMAGES. 41 We think, therefore, that the rule laid down by Judge Sedge- wick, and which is adopted by the courts of the majority of the States allows a jury too wide a discretionary power, and is calculated to confuse and mislead their minds in a way that will reflect no credit on the judicial department of our gov- ernment. 45. The Rule is Adopted as the Law in this Country. But notwithstanding the many well grounded objections that have been urged against the rule allowing the assessment of exem- plary damages, it’is now upheld by the decided weight of authority, and exemplary damages may be recovered in all cases resting on fraud, malice, gross negligence or oppression.’ 46. The Decision of the Supreme Court of the United States. The Supreme Court of the United States, in commenting upon this question, says: “It is a well established principle of the com- mon law, that in an action of trespass, and in all actions upon the case for torts, the jury may inflict what are called exemplary, vindictive or punitive damages upon the defendant, having in view the enormity of the offense rather than the measure of compensation tothe plaintiff. We are aware that the proprie- ty of this doctrine has been questioned by some writers, but if repeated judicial decisions for more than acentury are to be re- ceived as the best exposition of what the law is, the question will not admit of argument. By the common as well as by the ' The assessment of damages is a matter which must be unavoidably in a great measure left to the discretion of a jury. It is proper for them to take into consideration all the circumstances under which a trespass has been committed, and wherever malice, insult or deliberate oppres- sion has been an ingredient in the wrongful act, to award in addition to the actual loss sustained, such exemplary damages as shall tend to pre- vent a repetition of the injury. Anthony v. Gilbert, 4 Black. 348; Bracegirdle vy. Oxford, 2M. & 8.77; Merser wv. Harug, 5 Iowa 442; Sears v. Lyons, 2 Stack 317; Wait & Jenks. 14Johns 352; Churchill v. Watson, 5 Day 140; Mey v. Bohlfin. 44 Ind. 238; Stimpson v. Railsord & Co. 2 Wallace jun. 264, 49 LAW Gf DAMAGES, statute law, men are often punished for aggravated misconduct or lawless acts by means of civil action ‘and the damages in- flicted by way of penalty or punishment given to the injured party. In many civil actions, such as libel, slander, seduc- tion, &c., the wrong done to the plaintiff is incapable of being measured by a money standard, and the damages assessed de- pend upon circumstances, showing the degree of moral turpi- tude or atrocity of the defendant’s conduct, and may properly be termed vindictive rather than compensatory. In an action of trespass, where the injury has been wanton and malicious or gross and outrageous, courts permit juries to add to the mea- sure of compensation of the plaintiff, which he would have been entitled to recover had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called smart money. This has always been left to the discretion of the jury as the degree of punishment must depend on the peculiar circum- stances of each case.” * It is a well settled doctrine of the common law, though somewhat disputed of, late, that a jury in an action of trespass or tort, may inflict exemplary or vindictive damages. Stimpson v. Railway Co., 2 Wallace Sur. R. 164, 3Horace H. Day v, W. James Wadsworth and others, 13 Howard (U. 8.) 3634; Huchel v. Money, 2 Wilson, 205; Mesit v. Havey, 5 Iowa, 442; Sears v. Lyon, 2 Starkie, 282; Doe v. Felleter, 13M. & W , 50; Beasmore v. Carrington, 2 Wilson, 244; Enoble v. Myers, 6 N. H. 54; Tellatson v. Chusthom, 3 Johns, 56 and 64; Pike v. Dilling, 48 Me., 539; The Yankee vy. Gallagher, 1 McAIl. 469; Symore v. McCormic, 16 Howard, 480-489; Parker v. Costen, 4 McClam, 462; Philadelphia &c., R. R. Co. v. Quig- ley; 21 Howard. 202; Sutton v. Mandville, 1 Cranch Cf., 187; Dibble v. Moris, 26 Conn., 416; Dean v. Blackwell, 18 Ill., 336; Dewaugh v. Heath, 37 Ala., 595; Kuntz, et al., v. Stewart, et al., 54 Ind., 178; Cleghorn v. The New York Central & Hudson River R. R. Co., 56 N. Y., 44, 15 Am. R. 375; Taber v. Huston. 5 Ind., 322; Mercer v. Butler, 14 Ind., 479; Nassaman v. Rickert, 18 Ind., 350; Humphries v. Johnson, 20 Ind., 190; Meyer vy. Bohlfing, 44 Ind., 238; Whiting v. Hitchcock, 4 Denio, 463; Grobe v. Margrave, 3 Scammon, 495; McName y. King, 2 Gilman, 432- 436; Smith v. Sherwood, 2 Texas, 460. HXEMPLARY DAMAGES, ‘48 There are many other authorities that hold to the same doctrine.‘ 47. Should Exemplary Damages be Allowed when the Offense is Punishable by the Criminal Court. There is a great conflict in the decisions of the courts of the different States as to whether the rule allowing the assessment of exemplary damages should apply in those cases where in addition to the civil remedy allowed the injured party, subject the offender to a State prosecution. The Supreme Court of the State of In- diana in the case of Taber v. Huston, says: “But there is a class of offenses the commission of which in addition to the civil remedy allowed the injured party, subjects the offender to a State prosecution. To this class the case under considera- tion belongs, and if the principle of the instruction be correct, Taber may be twice punished for the same assault and battery. This would not accord with the spirit of our institution. The Constitution declares that no person shall be twice put in jeopardy for the same offense, and though that provision may not relate to the remedy secured by civil proceeding, still it serves to illustrate a fundamental principle inculcated by every well regulated system of government, viz: That each violation of the law should be certainly followed by one appro- priate punishment and no more. We think the jury had no right as charged by the Circuit Court to give such additional By 4 Whenever the injury complained of has been inflicted maliciously or wantonly and with circumstances of contuinely or indignity, the jury are not limited to the ascertainment of simple compensation, but may give the plaintiff punitive or exemplary damages. Philadelphia R. R. Co. v. Quigley, 21 Howe, 203; Dibble v. Morris, 26 Conn.,16; Dean v. Blackwell; 18 Ill., 403; Baltimore &c., R. R. Co. v. Blocker, 27 Md., 277; Bell vy. Marion, 27 Miss., 68; Hopkins v. Atlantic &c. R. R. Co., 36 N. H. 9; Wallace v. M. J. R. R., N. Y., 2 Holt, 440; Smith v. Wunderlich, 70 Ill, 426; Jones v. Jones, 71 Ill., 562; McCarthy v. Niskin, 22 Minn.. 90; Storm y. Green, 51 Miss., 103; Memphis & R. R. Co. v. Dunlap, 56 N. H., 456; Zigler v. Powell, 54 Ind., 173. : 44 LAW OF DAMAGES, ’ s damages as would tend to prevent such conduct and give peace and security to private rights in general.”° There are quite a number of of authorities that uphold this doctrine.’ 48. Authorities that Hold the Other Way. But there are quite a number of authorities that hold the other way. The Supreme Court of Vermont in commenting upon this question makes use of the following language: “The fact that ina civil action founded on a criminal act the guilty party has been compelled to pay exemplary damages to the party in- jured on account of the act, would be no bar to a prosecution for the same act, nor to any part of the fine imposed by law upon such offense. Neither should the liability to nor the actual imposition of a fine in a criminal proceeding bar any portion of the liability in a civil action for the same act.” * 49. Principal and Agent. It is not well settled by the authorities whether the rule allowing the assessment of ex- emplary damages applies to the principal for the wrongful act of his agent while in his employ. But there are quite a num- ber of decisions that hold that the principal cannot be im- mersed in exemplary damages for the torts of his agent unless he is culpable, but his culpability may be inferred from cir- cumstances. It may be laid down however as a settled rule that the principal is not liable for exemplary damages for the gross negligence or the wilful wrongs of his agent unless he 6 Taber v. Huston, 5. Ind. 322. ' Whitney v. Hitchcock, 7 Denio (N. Y.) 461; Austin v. Wilson, 4 Cush, 273, 9 Law Rep. 529, 10 Law Rep. 238; Nassaunon v. Rickets, 18 Ind. 350; Humphries et al v. Johnson et al, 20 Ind. 190; Butler v. Mer- ser, 18 Ind. 279; Fay v. Parks 53 N. H. p. 342; Hendrickson v. Kings- bury, 21 Iowa 379. “ Hoodly v. Watson, 52 Vet. 289; Cook v. Ellis, 6 Hill, 466; Fry v. Bennett, 4 Dur. 247; Roberts v. Mason, 10 Ohio (N. 8S.) 277; Klopfer v. Bromane, 26 Wis. 472; Hendrickson v. Kingsbury, 21 Iowa 379; Gar- land v. Wholeham, 26 Iowa 189. EXEMPLARY DAMAGES. 45 has consented to or authorized or ratified his agent’s acts." We will now notice the responsibility of the master in exemplary damages for the wrongs of his servant. 50. Master and Servant. A master is responsible ordina- rily for the consequences resulting to others from negligence or want of skill in which his employes do his business. This responsibility results from duty which he owes to others as a member of the community to employ careful and skillful ser- vants to the end that his fellow men may not suffer by the neg- ligence or ignorance with which his business is done. This is but a reasonable rule easily fulfilled, and no one should com- plain of the law which only requires the performance of that duty which the rights of their persons demand.‘ 51. The Master is Not Liable for Malicious Trespasses of the Servant. The master is not liable however for the wilful and malicious trespass of the servant not commanded or ratified by the master, but evidently perpetrated to gratify the private hate or malignity of the servant, under mere color of discharge of duty which he has undertaken for hisemployer. But it is not to be inferred from this that the master is never liable for the wilful malicious acts of his servant unless he has directed those specific acts to be-done. The rule is not so broad and comprehensive as that. If the act of the servant, was neces- sary to be done to accomplish the purpose of the servant’s em- ployment, or if it was essential as a means to attain the end directed by the master and was intended for that purpose, then it will be implied in the employment, and the master will be liable though the servant may have executed it wilfully and * Cadwell v. N. J. Straw B. Co. 47, 282; Mendelshon v. Anchor Light Co. 40 Cal. 657; Turner v. North Beach R. R. Co. 34 Cal. 594; Hill v, The N. O. & Opelousa, &c. 11 La. 292. 4 The Evansville & Crawfordsville R. R. Co. v. Baum, 26 Ind. 70. 46 LAW OF DAMAGES. maliciously. But when it is unnecessary to the performance, of the master’s service and not really intended for that pur- pose but is committed by the servant merely to gratify his own malice, though under pretense of executing his employ- ment it is not done to serve the master, and is not within the scope of his employment and the master is not liable.* 52. Courts and Juries in Assessing Damages Should Inquire Into the Relation of the Parties. In arriving at a conclusion as to the liability of the master for the torts of his servant—the court or jury should not fail to inquire into the relation of the parties. A passenger on board a stage coach or railroad car and a person on foot in the streets of a town or city or in the public highway, do not stand in the same relation to the car- rier. Towards the one the liability of the carrier springs from contract, expressed or implied, and upheld by an adequate consideration. Towards the other he is under no obligation but that of justice and humanity. Hence a passenger who is injured by a servant of a carrier may have a right of action against him when one not a passeng:r for a similar injury would not." 58. Carriers’ Liability. The ground of the carriers’ liabili- ty may be briefly stated thus: The law requires the common carrier of passengers to exercise the highest degree of care that human judgment and foresight are capable of, to make his passenger’s journey safe. Whoever engages in business im- pliedly promises that his passengers shall have this degree of care. In other words the carrier is conclusively presumed to ®The Evansville & Crawfordsville Railroad Company v. Baum, 26 Ind. 70; Gregory v. Piper, 9 B. & C. 591; Croft v. Alison, 4 B. & Ald. 590; McManus v. Crechet; 1 Eart. 106. “' Band v. Railroad, 8 Barber, 368; Angle and Amers on Corporation, 388, p. 404; Goddard y. Grand Trunk Railway Co. 57 Maine, 202; Rail- road y. Finny, 388; Railroad v. Vandiveer, 42 Penn. stat. 368. EXEMPLARY DAMAGES. 47 have promised to do what, under the circumstances the law re- quires him todo. If the passenger does not have such care, _ but on the contrary is unlawfully assaulted and insulted by one of the persons to whom his conveyeance is entrusted, the earrier’s implied promise is broken, and his legal duty is left unperformed, and he is necessarily responsible to the passen- ger for the damages he thereby sustains. The passenger’s rem- edy may be either in assumpsit or tort, at his election. Inone case he relies upon a breach of the carrier’s common law du- ties in support of his action, and in the other upon the breach of an implied promise. 54. The Rule Applies to Corporations. The authorities are not uniform as to whether the rule allowing the assessment of exemplary damages should apply to corporations for the torts of their agentsor servants. But the weight of the more recent authorities seem to be much inclined to extend the rule to such artificial persons the same as to an individual? And it may now be considered settled that where the injury complained of has been inflicted maliciously or wantonly and with circum- stances of contumely or indignity, the jury are not limited to the ascertainment of simple compensation for the wrong com- mitted against the aggrieved person. But the malice means * *Hopkins v. The A. & St. Lawrence R. R. Co., 36 N. H., 9; Taylor v. The Railway Co., 48 1d. 304 to 308; ‘Goddard v. The Grand Trunk R. R., 57 N. H., 202; Redfield on Railways. 515 et sq report in American Law Regs., vol. 10, p 17; Sherman and Redfield on Neglect, 600; N. 0., J. & Great Northern R. R. Co. v. Patton, 36 Miss., 242; Same v. Bailey, 40 Miss , 390; V. J. R. R. Co. v. Patton,31 Miss., 156; M. & C. R. R. Co. v. Whitfield, 44 Miss., 466; L. C. & Lex. R.R. Co. v. Dunn, 19 Ohio st., 162; Pitts. & Ft. Wayne R. R. Co. v. Shumer, 19 Ohio st , 157, 57 Pa. st. 339; B. & O. RB. R. Co. v. Bloocher; 27 Md. 277; Williamson vy. The West Stage Co., 24 Iowa, 271; French & Co., y. Coe, 4 Green., 555; Ch., Rock I. & & St.L v. McKean, 40 IIL, 218; iG, R.I. & P. R. R. Co. v. Harris, 57 IL, 59; Spirce v. G. & N. W. R. R., 29 Wis., 580; Milwaukee & St. Paul R. R. Co. vy; Armo, et al., 91 U.S. a Otto ) 489, 48 LAW OF DAMAGES. / that the wrong was conceived ina spirit of mischief or crimin- al indifference to civil obligation.’ And where the agent or servant of a corporation has done an act ina spirit of mischief or with a criminal indifference to civil obligation, the jury in assessing damages against the corporation for the injury occa- sioned by such may in addition to compensatory damages add something more by way of punishment.‘ But before they can assess exemplary damages, the evidence must show that the agent or servant has been guilty of wilful misconduct or the entire want of care which would raise the presumption of a conscientious indifference to consequence‘ The Supreme Court of the State of Maine in commenting on this question in the case of Godard v. Grand Trunk Rail- way Company, say: It seems to us that there is no class of cases where the doctrine of exemplary damages can be more beneficially applied than to a Railroad Corporation in their capacity of common carriers of passengers, and it might as well not apply to them at all as to limit its application to car- riers when the servant is directly or impliedly commanded by the corporation to maltreat and in«ult passengers, or to cases where such an act is directly or impliedly ratified, for no such case will occur. A corporation is an inorganic being. It has no mind but the mind of its servant; it has no voice but the voice of its servant; and it has no: hands but the hands of its servant. All its schemes of mischief as well as its.schemes for public enterprise are conceiyed by human minds aud exe- cuted by human hands. All attempts therefore to distinguish between the guilt of the servant and the guilt of the corporation or the malice of the servant and the malice of the corporation is sheer non- 5 Day v. Woodard, 13 Howard, 371. ‘See authorities cited, also Milwaukee & St. Paul R. R. Co. v. Arms, 91 U. 8. 489. EXEMPLARY DAMAGES. 49 sense, and only tends to confuse the mind and confound the judgment. Neither guilt, malice nor suffering is -predicable of this ideal existence called corporations. And yet under cover of its name and authority there is in fact as much wickedness and as much that is deserving of punishment as can be found anywhere else. And since the ideal existence can neither be hung, imprisoned, whipped, nor put in stocks—since in fact no corrective influence can be brought to bear upon them except that of pecuniary loss. It does seem to us that the doctrine of exemplary damages is more beneficial in its ap- plication to them than in its application to a natural person. If those who are in the habit of thinking that it is a terrible hardship to punish an innocent corporation for wickedness, of its agent and servants will fora moment reflect upon' the ab- surdity of their own thoughts, their anxiety will be cured. Careful engineers can be selected who will not run their trains into open draws; and careful baggage men can be secured who will not handle and smash trunks and band-boxes as is now the universal custom—and conductors and brakemen can be had who will, not assault and insult passengers, and if the courts will only let the verdict of upright and intelligent juries alone and let the doctrine of exemplary damages have its legitimate influence, we predict these great and growing evils willbe much lessened if not entirely cured. There is but one vulnerable point about these ideal existences called corporations, and that is the pocket of the money power that is concealed behind them, and if that is reached they will wince. When it'is thoroughly understood that it is not pro- fitable to employ careless and indifferent agents or reckless. and insolent servants, better men will take their places and not be- fore. It is our judgment therefore that actions against cor- porations for willful and malicious acts of their agents and servants in executing the order of the corporation should not form exceptions to the rule allowing exemplary damages. On the contrary we think that this is the very class of cases of 50 LAW OF DAMAGES. all others where it will do the most good and where it is the most needed.” 4 It will be seen from the reading of the above decision that the Supreme Court of the State of Maine has taken a wider range than the most of the courts of other States. The Supreme Court of the State of Wisconsin in commenting upon the question, says: “A principal is liable in compensatory damages for injuries done by his servant act- ing within the scope of his employment, and if the act is such that the servant would be liable in punitory damages if the action was against him, the principal is liable in dam- ages of that character in case he authorizes the act or subse- quently ratifies it but not otherwise.” ° 54. The Opinion of the Court of Appeals of the State of New York. The Court of Appeals in the State of New York in commenting upon the liability of a master for the torts of his servant, says: “For injury by negligence of a servant while engaged in business of the master within the scope of his employment, the latter is liable for compensatory damages, but for such negligence however gross or culpable, he is not liable to be punished in punitive damages unless he is also charged with gross misconduct. Such misconduct authorized or ratified, or that the master employed or retained the servant, knowing that he was incompetent or from bad habits unfit for the position he occupied. Something more than ordinary neg- ligence is requisite. It must. be reckless and of a criminal nature and clearly established. Corporations may increase 4 Goddard v. Grand Trunk Railway Co., 57 Maine 202. A private corporation cannot be held liable for exemplary damages ‘for the negligence of its servant, merely, though if it knowingly employ incompetent, drunken or reckless servants that may make it liable for such damages. Illinois Central R. R. Co. v. Hummer, 72 Ill. 347. 5 Bass v. The G. & N. W. Railway Oo., 42 Wis.; Hagan v. Providence R. BR. Co., 3 R. I. 88; Morfford y. Woodworth, 7 Ind. 83; Hamilton v. 3 Ausnee R. R. Co., 53 N. Y. 25. ~ HXEMPLARY DAMAGHS. 51 this liability as well as private persons.” The court after commenting on the application of the rule to corporations says that if a corporation employs a drunken servant, knowing of his habits, they should be amenable to the severest rule of damages, but that it was not aware of any principle which permitted ‘a jury to award exemplary damages in a case which did not come up to the standard or to graduate the amount of such damages by their view of the propriety of the conduct of the defendant unless such conduct was of the char- acter already mentioned.” 55. The Pecuniary Condition of the Defendant. Not to be Con- sidered. The question whether a jury in assessing exemplary damages should be permitted to take into consideration the pecuniary condition of the defendant and assess such damages as he is in their opinion able to pay, has been discussed recently in the supreme courts of several States and the con- clusion reached is that the damages assessed to punish the defendant for crime against society or the State should be commensurated with the offense and not by his ability to pay. But the jury may in assessing such damages take into consid- eration the defendant’s rank and influence in order to arrive at a conclusion as to the extent the injuries are increased thereby.’ ‘ ’ 56. When and for what Injuries Exemplary Damages will be 7 Cleghorn v. The New York Central & Hudson River Railroad, 56 N. Y. 44, Against carriers of passengers severe punitive damages will not be allowed in the absence of any circumstance of malice, oppression, insult, personal injury, damages to business, mental or physical: suffering, | although something more than actual damages may be awarded against common carriers by way of punishment for neglect of duty and pro- tection to the public. Memphis, &c. R. R. Co. v. Green, 52 Miss. 779. ‘Smith v. Wunderlich, 70 Ill. 426; Jones v. Jones, 71 Ill. 562; Mc-. Carthy v. Nirkern, 22 Minn. 9; Collins v. Mock, 31 Ark. 684. 52 LAW OF DAMAGES. Allowed. We have already said that exemplary damages will be allowed in cases based on fraud, malice, gross negligence or oppression. We now propose to notice these cases in detail. Commencing with fraud. It is not every case of fraud that will authorize the assessment of exemplary damages. But on the contrary in no case of fraud will such damages be allowed unless it was committed under such circumstances as to imply malice. There must be something more than mere fraud in the transaction to warrant the finding of punative or exem- plary damages.’ “If one knowingly or fraudulently misrep- resents to his vendee the quantity or quality of a farm or the condition or quality of personal property which he sells to him whereby he is induced to purchase and is injured thereby or knowingly and fraudulently misrepresents the pecuniary standing of third person to one from whom such third person is desirous of obtaining property on credit, whereby the per- son to whom such representations are made is induced to give such credit and is injured thereby, the well settled rule of damages is one of compensation.” * 57. Malice. Next in the order we have named is malice. ‘The word malice in law means, in a general sense, willfulness. The law collect the facts in the trial of a cause and judges of the intention by the act. The act being itself wrong and un- i Lane y. Wilcox, 55 Barber 615. Fraud without damages gives no cause of action. Wiley v. Howard, 15 Ind. 169. If the plaintiff therefore has purchased property through fraudulent representation or concealment of material facts, cannot recover vin- dictive damages when he fails to show he has sustained damages. Barber v. Kellborn, 16 Wis. 489. ? Lane v. Wilcox, 55 Barber 615; McAvoy & Anthony v. Wright, 25 Ind. 22; Wheeler v. Randell, 48 Ill. 182; Ober v. Chapman, 15 Texas 400; Nye v. Murriam, 35 Vt. 438; Platt v. Brown, 30 Conn. 336; Mulleson vy. Herch, 17 Ind. 227; Wheeler v. Randall, 48 Il. 182. EXEMPLARY DAMAGES. 53 lawful, an evil intent is inferred. That mischief which a man does he is supposed to mean.” *® In other words the law will ‘in all cases of an unexplained injury to a third person pre- sume malice or bad intention. The law presumes every man to have acted with good motive until it is established by the -evidence that he has committed a wrongful act. Then the presumption shifts and he is presumed to have intended the necessary consequence of his act.* In order to recover exemplary damages it must be shown that the act complained of was conceived in the spirit of mis- chief or criminal indifference to civil obligation.‘ 58. Gross Negligence. The next in the order we have adopted is gross negligence or oppression. “Gross negligence is the omission of that care which even the most inattentive and thoughtless men take of their own concerns.” But to authorize the assessment of exemplary damages, the negli- gence must be so great as to amount to recklessness—that is to a degree where a general, malicious or malignant purpose, careless of consequences, might perhaps be presumed, although no hostile purpose were entertained against the individual. In other words the act must be wilful or of such a nature as to show a reckless disregard for society or person and prop- erty.® 3 Townsend on Slander and Libel, p. 87; Dexler v. Spear, 4 Missouri 115; Gaul and wife v. Fleming, 10 Ind. 253. 4 Philadelphia R. R. Co. v. Quigly, 21 Howe 202; Debble v. Morris, 26 Conn. 416; Dean v. Blackwell, 18 Ill., 336; Peoria Bridge Association v- Looms, 20 Ill. 235; Overy v Hardin, 23 Ill. 403; Baltimore, &c. R. R. Co. v. Blocher, 27 Md. 277; Bell v. Maunson, 68; Wallace v. The Atlantic R. R., 36 N. H. 9; 9 Abb. Proct. 40, 18 1d. 169. 5 Pickett v. Crook, 20 Wis. 358; Louisville R. R. Co. v. Smith, 2 Du- yall 556; Hull v. The Town of Richmond, 2 Woodruff & M. 337; The Indianapolis, Bloomington & Western R. W. Co. v. McBowen, 46 Ind. 4 54 LAW OF DAMAGES. 59. Breach of a Contract to Marry an Exception to the Rule. The general rule as to action upon contract is that the plaintiff can only recover compensation for the.damages he has sus- tained by the breach of the defendant, and exemplary or puni- tory damages are not allowed. To this rule a breach of con- tract of marriage is an exception, and so far as our research has gone, is the only exception. As to the measure of dam- ages, this action has always been classed with actions of torts —as libel, slander, seduction, criminal conversation, &c. It is the policy of the law to encourage matrimony, and society has an interest in the contract of marriage, both before and after they are consumnated. A man who enters into a contract of marriage with improper motives and then ruthlessly and un- justifiably breaks it off, does a wrong to the woman, and also in a more remote sense to society, and he needs to be punished in the interest of society as well as the man who commits a tort under a circumstance showing a bad heart. The rule of damages applicable ‘to ordinary contract would be wholly inadequate. So much depends in each case upon the circumstances surrounding it and upon the conduct, standing and character of the parties. In all cases where vin- dictive damages are allowed is upon the theory that the de- fendant’s conduct has been such that he deserves to be punished, and with a view of measuring out punishment to him as well as compensation to the plaintiff, it is always competent to in- quire into his motives and intentions to show that the act com- plained of was done wantonly, maliciously or with a bad and 229; Banon v. Baltimore and Ohio R. R. Co., 24 Md. 108; Welch v. Du- rand, 36 Conn. 182; Walker v. Erie R. R. Co., 63 Barber 260; Farrell v. Warren, 51 Ill. 467; Green y. Craig, 47 Mo. 90; New Orleans, &c. R. R. Co. v. Stateborn, 42 Miss. 607; Wardrobe v. Cal. Stage Co., 1 Col 118; Wallace v. Mayorite, 2 Hilt. (N. Y.) 440; Hill v. Glanding; 42 Pa. stat. 493; Caldwell v. New Jersey Steamboat Co. 47 N. Y. 282; Coochrane v. Miller, 13 Iowa 128; Bannon v. Baltimore R. R. Co., 24 Md. 108; Vicks- burg et al R. R. Co. v. Patton, 31 Miss. 156. : EXEMPLARY DAMAGES. 55 wicked heart, for the purpose of enhancing the damages.® 60. The Rule Does Not Apply in Case of an Injury by a Domestic Animal. The rule allowing exemplary damages does not apply in case of an injury to a person by a domestic ani- mal, unless the defendant knew the animal to be vicious and disposed to injure mankind and had been guilty of gross and criminal negligence, evincing a wanton disregard of the safety of others, amounting in law to malice, in controling said ani- mal.® 61. Infants and Non Compos Mentis Not Liable for Exemplary Damages. As has already been intimated the basis upon which - the rule for the assessment of exemplary damages rests is an evil intention. “Hence an infant or other person non compos mentis cannot be held liable for exemplary damages, nor the penalty provided by the statute for wilful and malicious acts ‘ € Thorn v. Knapp, 42 N. Y. 474, 1 American Report 561; Southard v. Rexford, 6 Cowen 254, Kiffin v. McConnell, 30 N. ¥. 285; Wells v" Pagett, 8 Barber 323; Johnson v. Jenks 24 N. Y. 252; Burns v. Burk, 1 Lansing 268; Denstone v. Van Horn, Iowa 476; Davis v. Slagle 27 Mo 600; Simpson v. Black, 27 Wis. 206. David S. Blackburn Vv. Mary Jane Mann, 85.1. 222. Fidly v. McKinly, 21 Tl. 308. 2 Panon on Contract, 68. 3 ee 171. Dryden v. Knowles, 33 Ind. 148. The Supreme Court of the State of Ohio have decided that the filing of a plea setting up the bad character of the plaintiff and failing ‘to have it will not authorize exemplary damages. 12 Ohio stat. R. 312. 5 Pickett v. Cook, 20 Wis. 358. ; Exemplary damages grow entirely out of the nature of the act of the defendant for which the plaintiff recovers. They are given in enhance- ment of ordinary damages on account of bad spirit and wrong intention of the defendant manifested by the act, and are recoverable with ordin- y 56 LAW OF DAMAGES. beyond actual compensation, for they cannot be supposed to act malicious.” * 62. The Nature of the Offense Should be Considered. In as- sessing of exemplary damages the jury should consider the nature of the offense; its probable effect on society ; the stand- — ing of the parties, and measure the damages accordingly. And if in the exercise of the discretion given by the law the jury should go beyond reason in the assessment of punitive damages, the court on proper application should grant a new trial} 4 ary damages under the common allegation that the act declared for was done to the damage of the plaintiff. Hoadly v. Watson, 45 Vt. 289. 3 Field on Damages, 85. Krom v. Schoonmaker, 3 (N. Y.) Barber 647. 5 Busket v. Lanato, 15 La. Arv. 337; Walker v. Smith, 1 Was c. c. 157. When a servant was wrongfully dismissed, it was held that he might recover exemplary damages. Moody v. Leverich, 4 Daly 404. It is held by the Supreme Court of the United States that to author- ize the infliction of exemplary damages for an injury to a passenger on a railway train occasioned by a collision, the absence of care necessary under the circumstances is not sufficient. There must have been to do this some wilful misconduct, or.that entire want of care which would raise a presumption of a conscious indifference to consequences. Mil- waukee & St. Paul R. R. Co. vy. Arny et al 91 U.S. (1 Otto) 489. Now, why all the unnecessary trouble and confusion and perplexity, when the course of procedure should be plain, straight and unterrified. The true rule, simple and just, is to keep the civil and the criminal pro- cess and practice distinct and separate. Let the criminal law deal with criminals and administer punishment for the legitimate purpose and end of punishment, namely: the reformation of the offender and the safety of the people. Let the individual whose rights are infringed and who has suffered the injury go to the civil courts and there obtain the fruits which he is not entitled to, and which belongs to others. Why longer tolerate false doctrines which in its practical exemplification de- prives a defendant of his constitutional right of indictment or complaint on oath before being called into court, deprives him of his right to meet the witness against him face to face, deprives him of the right of being acquitted unless the proof of his offense is established beyond all rea- sonable doubt, deprives him of his right of not being twice punished for the same‘offense? Punitive damages destroy every constitutional safeguard within their reach. And what is to be gained by this anni- EXEMPLARY DAMAGES. 57 hilation and obliteration of fundamental law? The sole object in its practical result seems to be to give a plaintiff something which he does not claim in his declaration. If justice to the plaintiff requires the de- struction of the constitution there would be some pretext for wishing the constitution was destroyed. But only demolish the plainest guaran- tees of that instrument, and explode the very foundation upon which the constitutional guarantees are based for no other purpose than to per- petrate false theories and develop unwholesome fruits. Undoubtedly this precious doctrine has become so fixed in the law, to repeat the lan- guage of Mr. Justice Campbell, of Michigan, “that it may be difficult to get rid of it.” Butitis the business of courts to deal with difficulties, and this heresy should be taken in hand without favor, firmly and fear- lessly. It was once said: “If thy right eye offend thee, pluck it out, and if thy right hand offend thee, cut it off.’ Wherefore, not reluct- antly should we apply the knife to the deformity, concerning which every true member of the sound and healthy may well exclaim, “I have no need of thee.” ; Fay v. Parker, 53 N. H., 342. The radical difficulty in the position of the counsel; appears to be that judgment for the criminal offense is for the offense against the pub- lic; judgment for the tort is for the offense against the private sufferer; that though punitory damages go in the sight of the public for example, they do not go by way of public punishment, but by way of private dam- ages for the act as a tort, and not asa crime to the private sufferer, and not to the State. Though they are allowed beyond compensation of the private sufferer they still go to him for himself as damages allowed by the statute, considered as strictly punitory, the damages are for punish- ment of the private tort, not of public crime. It is unfortunate that damages should ever have been suffered to go beyond actual compensa-~ tion under a liberal. Brown v. Swinford, Supreme Court of Michigan, vol. 7, Central Law Journal, 1879, p. 208. 3 Greenleaf evid. 841; Hill on Torts 181; Hamkin B 10. & P. 62 stat. 21; Hill on Torts 182; Conn. v. McLaughlin, 5 Allen 507. CHAPTER IV. : ASSAULT AND BATTERY. ts DEFINITION. THe Derense. Tue ELEMENT oF Dam- AGES. AmountT oF Damaces, AGGRAVATING C1RCUM- stances. MiricgaTion of Damaces. THE RES GESTA PROVOCATION MAY BE SHOWN. Tue Court 1g JUDGE WHAT IS RES GESTA SELF DEFENSE. THE LAW PERMITS A MAN TO ACT ON APPEARANCES. GREAT CAUTION TO BE USED. As- SAULT WILL GENERALLY JUSTIFY A BLOW. COMPENSATION AS A GENERALRULEIS THE DAMAGES. THE PLAINTIFF NEED NOT FLEE. Wuar DAMAGES MAY BE PROVED UNDER GEN- ERAL ALLEGATIONS. Elow DEFENDANT MAY DEFEAT THE PLAINTIFF’S CLAIM. No DAMAGES CAN BE RECOVERED FOR A LAWFUL AND PROPER ACT. SCHOOL TEACHERS, PARENT AND CHILD. CORPORATIONS. 63. Definition of an Assault and Battery. An assault and battery may be defined as the actual infliction of violence on the person of another, or the touching of another in a rude in- solent or angry manner by the defendant, or by a substance put in motion by him.’ The striking of a horse on which a man is riding, whereby he is thrown or taking hold of his clothes, in an angry or insolent manner, or to drive against a carriage in which another is sitting, isan assault and battery.’ 2 Greenleaf evid. sec. 841; Hill on torts 181; Hampkin B., 1 C. & P. 62 stat. 21; Hill on torts 182; Conn. v. McLaughland, 5 Allen 507. 1 Dodwell v. Buford, 11 Mod. 24; United States v. Ortega, 4 Wash. 534 ASSAULT AND BATTERY. 59 If two men fight by agreement, the fighting is illegal and the injured party may recover damages in an action against the wrong doer. 64. The Defenses That May Be Set Up. The defenses that may be set up have been enumerated in a brief and concise manner by a commentator as follows:. “Where one who has authority as a parent or master gives moderate correction to his child, his scholar or his apprentice, so also on the principle of self-defense. For if one strikes me first or even only as- Hopper v. Reece, 7 Taunt. 698; 1 Hill on Torts 182; Kerland vy. The State, 43 Ind. 146. If an individual fires a pistol, either with malice, purpose or a total disregard of human life, he and all acting with him are guilty of an as- sault with intent to murder. Perry v. The People, 14 III. 496. If one encourages a dog to bite another, be is guilty of an assault and battery. Russell on crim. vol. 1, p. 751. An assault-is an offer to strike, hurt or committ an act of violence on the person of another without actually doing it. Johnson v. Thompkin, 1 Balt. 511-6. “A battery is the actual infliction of violence on the person. Thus the touching of the person in an angry, revengeful, rude or insolent manner. Spitting upon the person, jostling him out of the way, push- ing an other against him, throwing a squib or any missle or water upon him, striking the horse he is riding, whereby he is thrown, taking hold of his clothes in an angry or insolent manner to detain him, is a battery. So to strike the skirts of his coat or cane in his hand, is a battery. For any thing that is attached to his person partakes of its inviolability.” 2 Greenleaf, sect. 84; Kerland v. The State, 43 Ind. 146. 1 Adam v. Wagoner, 33 Ind. 531; 2 Greenleaf on evidence, sec. 85; Baulter v. Clark, Butler N., p. 16; Stout v. Wen, 1 Hawkins, 420; Mat- thew v Ollerton, comb. 218; Bell v. Honsley, 3 Jones, N. C. 131; Lagan y. Austin, 1 Stuart 476; Dole v. Eskin. 37 N. H., 503; Exodus, 21 chap. 18 and 19 verses. ; It is a settled doctrine that if one be attacked, he may lawfully defend himself; using no more force than is ‘necessary for that purpose. He is authorized to use sufficient force to repel the attack, but if he goes be- yond this and uses more force than is necessary to repel the attack, he becomes a trespasser himself and his assailant, though first in the wrong, may maintain an action for-damages against him. Fisher v. Bridges, 4 Black. 518; Filbeck v. Foster 14 Ind. 442; Dole v. Eskin, 35 N. H. 503; Adams v. Wagoner, 33 Ind. 531. 60 LAW OF DAMAGES. saults me, I may strike in my own defense, and if sued for it may plead son assault demense or that it was the plaintiff’s own original assault that occasioned it. So, likewise, in de- fense of my goods or possession. If a man intends to deprive me of them, I may justly lay my hands on him to prevent an injury, and in case he persists with violence proceed to beat him any.* 65. The Elements of Damages. The elements of damages in cases of this kind are: 1st. “Loss of time and labor from the date of the injury until the party recover therefor. 2. Dim- inished capacity to work at the trade or the business of the party injured. Bodily pain and mental anguish. 3. The ex- pense of medical, surgical and other attendance and value of clothing injured or destroyed.” ° 8 Blackstone com. 120; 1 Hill on Torts 184; 2 Greenleaf on evid 155- 156; Gregory v. Hill, 8 T. R.- 297; Williams v. Jones, 2 Stark 10,149; Green v. Batsam, 4C.& P. 308; Roe v. Wilson, 1 Bing 353, 8 J. B. Moore, 362 S. C.; Weaver v. Bush, 8 T. R 78; Tulla v. Reed, 1 C. & P. C.; Adams v. Freeman, 12 Johns 408; Hawk Pl. 1, chap. 31, sec. 49. The mere taking hold of the coat, or laying the hand gently on the person of another, if done in anger or in a rude and insolent manner, or with a view of hostility, amounts not only to an assault but to a battery. U.S. v. Ortega, 4 Wash. 534. 6 Field on the law of damages 471; 2 Greenleaf evid., stat. 267; Cox v. Vanderbleed, 21 Ind. 164; Hendrixson v. Ringley, 21 Id. 379; Wiley v. Keokuk, 6 Kan. 111; State v. Sherman, 5 Bush. (Ky.) 206; Smith v. Rail- road Co. 23 Ohio st. 10; Sedgewick on damages 35-36; Flag v. R. R. Co. 43 Ill. 365; Fay v. Parker 53 N. H. 342; Daily Post v. McArthur, 16 Met. 447 Ruth Inst. B. 1, chap. 17, sec. 1; 102 Garrard, sec. 80; Harrison & Swift, 13 Allen 144. In an action for injury to the person, damages to the reputation can- not be allowed. Kilper v. Hyer, 38 Ind. 499. In an action to recover damages for an injury to the person of the plaintiff, caused by the wrongful act or the omission of the defendant, the jury in estimating the amount of recovery, may consider the suffering and anxiety of mind of the plaintiff caused by such injury. Wright v. Crumpton, 53 Ind. 337. Evidence of previous threats made by the defendant in the presence of the plaintiff, is admissable to increase the damages. 2 Hay 402. ASSAULT AND BATTERY. 61° 66. The Rule for the Assessment of Damages. The general rule for the assessment of damages is for the jury to take into consideration every circumstance of the act which injuriously affects the plaintiff, not only in his property, but in his per- son, his peace of mind—in short his individual happiness.’ 67. Aggravating Circumstances. The law is well settled that if the defendant was actuated in making the attack by malice, or perpetrated the wrong in a total disregard of the law, and the plaintiff was not in the fault or in no way to blame, the plaintiff may not only recover the pecuniary loss sustained, but for his mental anxiety, public degredation and wounded sensibility which an honorable man might be sup- posed to feel from a violation of the sacredness of his person for pain of feeling as well as to the body, and in addition ex- emplary damages are sometimes allowed. * 68. Mitigating Circumstances. The defendant may show in mitigating of damages that he in making the attack, acted in the honest belief produced by the acts of the plaintiff that he was in danger of receiving some bodily harm at the hands of the plaintiff, which he could only repel by the use of force, and that in making the assault, he only used such force as he deemed sufficient to defend himself and no more.’ 69. Time of Provocation, But before the defendant can give evidence of provocation in mitigation of damages, he must 7 Taber v. Hutson. 5 Ind. 322; Cox v. Vanderkleed, 21 Ind; 164. 1 Wadsworthfv. Treat, 43 Me. 163; West v. Forest, 22 Mo. 344; Wilson vy. Middleton, 2 Cal. 54; McNamer v. King, 7 Ill. 432; Jefferson v. ' Adams, 4 Harr. 321. _ Fay v. Parke, 53 N. Y. 342; Cox v. Vanderkleed, 21 Ind. 164, * Key v. Dembin, 3 E. D., N. Y. 518. 62 LAW OF DAMAGES, show that they were so recent and immediate as to influence his conduct.* 70. The Plaintiff's Character Cannot be Attacked. The de- fendant has in some cases been permitted to attack the plain- tiff’s character and to show that he was a worthless, lazy vaga- bond. But as the action is not brought to recover damages for injury to character or reputation, such evidence should be ex- cluded.‘ Both parties should be confined on the trial to the principle transaction complained of and to its attendant cir- cumstances and natural results, for they are the only questions at issue.® 71. The Defendant's Good Nature Cannot be Shown in Miti- gation of Damages. The defendant cannot show in mitigation of damages that he is and always has been a peacable, good natured man, nor can such evidence be introduced for the pur- pose of rebutting the presumption of malice.’ Nor will he be permitted to show that statements made by the plaintiff at * Lee v. Wosley, 19 Johns N. Y. 319; Jackaway v. Dula, 7 Yerg, Tenn. 82; Fullerton v. Warrick, 3 Black. 219; Matthew v. Terry, 10 Conn. 455; Greermyer v. Morris, 2 Root (Conn.) 252; Ellsworth v. Thompson, 13 Wend. (N. Y.) 658; Cox v. Whitney, 9 Me. 531; Barry v. Ingles, 2 Hayne, 102. A man may repel force by force in defense of -hi person or property against an effort to commit felon on either common. Smith vy. Ellinger. 1 Burns, (Pa.) 452. 4 Ward v. State, 29 Ala. 53. 5 Butler v. Gould, 34 Ind. 552; 2 Greenleaf evid. stat. 268. The amount of damages in case of an assault and battery is not fixed by law, but is left to the discretion of a jury, and they should look to the nature and extent of the injury and the circumstances under which they were inflicted, and then say what is just and proper under all the cir- cumstances. 26 Ind. 168. The defendant cannot prove in mitigation of damages that he has been indicted, tried and convicted and fined by the State. Philips v. Kelly, 27 Ala. 628, ASSAULT AND BATTERY. 63 the time of the assault and connected with it were known by the plaintiff to be false.® 72. The Res gesta may be Shown. The law is well settled that all the circumstances which immediately accompanied the transaction will be considered a part of the resgesta and may be given in evidence, and are sometimes material in ar- riving at the amount of damages the plaintiff ought to re- cover." 73. The Defendaut may show Provocation in Mitigation of Dam- ages. The defendant may show in mitigation of damages that he was provoked to make the assault and battery by the in- sulting language of the plaintiff. But before he will be per- mitted to introduce such evidence, he must show that the pro- vocation was so recent as to raise a reasonable presumption that he was actuated by the heat of passion caused by the use Thrall y. Knapp, 17 Id. 468. - ® Butt v. Gould, 34 Ind. 552. The difficulty between the parties grew out of a dispute about some house rent which Butt claimed was due, and which Gould insisted he had paid. Each party roughly impeached the veracity of the other, and immediately following this the defendant struck and beat the plaintiff. The defendant then proposed to show what he said about the rent, was then it was rejected and not held right. Butts v. Gould, 34 Ind. 55. 72 Greenleaf evid. stat. 267. In a civil action for damages for an assault and battery, evidence that the plaintiff had said that he did not think the defendant always in his right mind, there being no evidence that it was communicated to the de- fendant, and no pretence that he ever was insane will not be admissable. Gaither v. Blower, 11 Md.536. | A person guilty of a wilful assault and battery cannot show that from the intemperate habit of the other party the injury was more aggravated than it would have been upon a person of temperate habits. 11 Cush. 360. 64 LAW OF DAMAGES. , of such language.’ Whatever occurred during and immediate- ly before and after the assault, being so closely connected with it as to form a part of it can be given in evidence as a part of the res gesta. 75. The Court is to Judge if the Act is a part of the Res Gesta. The question as to whether the language or the act proposed to be proved were a part of the res gesta or not must be deter- mined by the court when the proof of such facts is offered. If the records or acts were just recently previous to the as- sault or were a part of a series of insults and irritating provo- cations, they should go to the jury in order to show the true character of the whole transaction.* 76. The Law Recognizes the Passions of the Human Mind. The law recognizes and respects the passions of the human mind, and looks at man when his conduct is under investiga- tions as an infirm creature governed and eontrolled to a cer- tain extent by passion and prejudice, and inflicts npon him just such punishment as his conduct deserves. Therefore while it is held as a general rule that words spoken long be- fore the assault occurred cannot be admitted in evidence to show provocatiou and to mitigate the damages. Yet where such acts or words are a part of a series of provocation fre- quently repeated and continued down to the time of the as- ’ Thall v. Knapp, 17 Id. 468. 4 Ireland v. Eliot, 5 Iowa 478. 5 Shirly v. Billings, 8 Rush (Ky.) 147. On the trial of a civil action for assault and battery, it is competent for the purpose of mitigating vindictive damages to show that the de- fendant has been convicted and punished at the suit of the State for the same transaction. Smithwick v. Ward, 7 Jones (N. C.) L. 64. ASSAULT AND BATTERY, 65 sault, they may be admitted as evidence in mitigation of dam- ages." 76. The Degree of Force to be Used will Depend on Circwm- stances. The degree of force that one may use in repelling an attack will depend upon the surrounding circumstances. If the defendant knows the plaintiff to be a large man, much stronger than himself, and believes that he intends to do him great bodily harm, the law will permit him to use greater force than if his assailant was a small, infirm man. 77. The Law Permits a Man to Act on Appearances. The law recognizes the fact that man is fallible, and therefore permits him to act on appearances, and when he acts on appearances, the question should be submitted to the jury as to whether the defendant had reason to believe and did believe that he was in danger of receiving a severe injury from the plaintiff, and used just such force as he under the circumstances thought was necessary to repel the attack.® / 78. Great caution should be used by the Defendant in making his defense less he uses more force than is necessary. If, as has already "Stella v. Nellies; 60 Barber (N. Y. ) 525, 42 Howe Proct. 163. Field on the law of damages, 476. Dolan v. Fagan, 63 Barber (N.*Y.) 73. Evidence may be given on mitigation of damages without having filed answer on the execution of the writ of inquiry in an action of assaalt and battery and false imprisonment. Hays v. Berrymore, 6 Bosue (N. Y.) 679. 5 Field on damages, sect. 607. A man may repel force by force in the defense of his person or prop- erty against an effort to commit a known felony on either. In such case the defendant should be excused if he acted upon reasonable appear- ances, though it turned out that they were false, and that there was no _ actual danger. Commonwealth v. Ellinger, 1 Bund. (Pa.) 352. 8 People v. Shorter, 4 Barber 460; Loge vy. The Commonwealth; 2 Wright; Pa. 265, 66 LAW OF DAMAGES. been said, the defendant in repelling the attack goes beyond what was apparently necessary for self-defense, it seems that the excess may be given in evidence against him.’ The rule is that when the defendant pleads justification, he must estab- lish by evidence that no more force was employed than the exigency reasonably demanded. Whenever justification is founded on a defense of personal or real property in ordinary cases it is sufficient for the defendant to show that he was in lawful possession of the same, and that he used no more force thar was necessary to protect his property.” The question as to the degree of force that was necessary to be used must be submitted to-and determined by the jury under the instruction of the court.! 79. An Assault will generally justify a Blow. As a general rule, an assault will justify a blow, but if the defendant’s beating is excessive he will be held responsible in damages. In order for the defendant to defeat the plaintiff’s claim for damages on account of misconduct of plaintiff not amounting to an assault, he must show that he was wholly free from fault. No words of provocation will justify an assault and battery, although they may constitute a ground for the reduction of damages.’ ” 6 2 Greenleaf evid., Sect. 95, p. 77. Curtis v. Casson, 2.N. H. 539; Haner v. Elder, 15 Mass. 347; Bennett v. Appleton, 25 Wend. 539. 7 2 Greenleaf evid., Sect. 98, p. 79. _ A right to the possession of real estate will not justify an assault and battery to obtain the same. Possession in fact justifies the use of violence if necessrry to defend it. Parson v. Bronson, 15 Barber, 590. 3 Greenleaf evid. Sect. 95, 1; Hazel v. Clark; Commonwealth v Ellinger 1, Barns 352; Mons v. Platt, 32 Com. 75, 3; Hassing 22, 2; Phillips v. Kelly, 29 Ala. 528, ’ Cushman v. Ryon, 1 Story 21; Keys v. Delwin, E. D. Smith, 518; Ireland v. Elliott, 5 Clark (Iowa) 478; Suggs vs. Anderson, 12 Geor. 461. ASSAULT AND BATTERY. 67 80. Compensation as a general rule the measure of damages. As a general rule in this class of cases where no element of outrage or malice enters into the conduct of the defend- ant, the plaintiff can only recover compensatory damages, or such as will fully compensate him for the injury he has sustained, including loss of time, medical and other “ex- penses, physical pain and mental anguish, as they are the natural consequence of the plaintiff’s injury” of which he complains.‘ _ 81. The righttorecover exemplary damages questioned. And where the element of malice, etc., enter intothe commission of the offense the right to recover more than compensatory, damages is now questioned. Andit is thought that the weight of the most re- cent authorities is against allowing exemplary damages where the assault and battery for which damages is claimed is pun- ishable by indictment and fine. 82. Exemplary damages allowed in certain cases. But the weight of authority holds that where the offense for which damages are claimed, is not made punishable by the laws of the State, and the elements of malice, fraud and oppression enter into and form a part of the wrongful act, that the jury in assess- The amount of damages is not fixed by law, but is left to the sound dis- cretion of the jury; they should look to the nature and extent of the injury inflicted, the circumstances under which it was inflicted, and. then say what is just and proper under all the circumstances. Little v. Johnson, 26 Ind. 168. 4 Field on the law of damages, 432; Peoria Bridge Ass. v. Looms, 20 Tl. 235; Hunt v. Hoyte, Ind. 544. The inhabitants of Elsworth 32, Md. ° 271; More v. Auburn & Troy R. R. Co., 10 Barber, 621; Ranson v. N. Y. & Erie R. R. Co., 15 N. Y. 415; Keys v. Delwin 3 E. D. 8. (N. Y.) 518; West v. Forest 22 Md. 344; Bannon v. Balt. & R. R. Co. 24 Md. 390; Fanchila v. Cal. Stage Co. 13 Cal. 599; Wells, Fargo & Company 5 New. 224; Penn. Canal Co. v. Graham, 63 Pa. St. 390. » 5 See exemplary damages. ‘ 68 LAW OF DAMAGES. ing damages, may blend together the rights of the injured party and the interest of the community, and assess damages not only to compensate the plaintiff for the injury he has sus- tained, but to punish the defendant.* 83. The plaintiff need not flee. The law does not require one to flee from an assailant before he willbe entitled to recover damages for an assault and battery. If he uses ordinary care to prevent injury, and injury ensues from the wrongful act of the defendant the plaintiff may recover. 84. The plaintiff’ may under the general allegation of the complaint recover such damages as naturally and necessarily arise from the injury. In an action to recover damages for an assault and battery * Hendricks v. Kingsberry, 21 Iowa 379. Exemplary damages grow entirely out of the nature of the act of the defendant, for which the plaintiff recovers. They are given to enhance ordinary damages on ac- count of bad spirit and wrong intention of the defendant manifested by the act, and are recoverable with ordinary damages under the common allegation that the act declared for, was done to the damage of the plain- tiff, Hoodley v. Watson, 45 Vt. 892. Smith v. Holcomb, 99 Mass. 255; Holyorke v. G. J. R. R. Co. 48 N. H- 541; Stock v. Hersy, 4 Gill. (Md.) 406; Smith v. Veesly 30 Gro. 241; Cox vy. Vanderleed 21, Ind. 164; Gould v. Christian 1 B. & H.507; McGrew v. Stone 53 Pa. St. 436; Sharpe v. Powell, 7 C. & T. 250. 6 Heady v. Wood, 6 Ind. 82. When a man is assaulted under circumstances that are of such a char- acter as would lead a reasonable man to believe that the assault is made with a design to take his life, or to inflict extreme bodily injury, he will be justified in both civil and criminal law, if he kills or attempts to kill his assailant. And the question whether the belief was reasonable or not, must be passed upon by a jury, but a person does not act in such case at the peril of making that guilt, if appearance prove false, which would be innocence if they proved true. Morris v. Platt, 32 Conn. 755 Commonwealth v. Ellinger, 1 Burs. (Pa.) 352; Gallagher v. State, 3, Minn. 270. Asa general rule, the law will not justify a man who: repels a plow with a fist by stabbing his assailant, whether or not such stabbing amounts to self-defense, depends upon the nature and violence of the assault thus repelled. Floyd v. The State, 36, Gv 91. When a person in lawful self-defense fires a pistol at an assailant and misses him, and wounds an innocent bystander, he is not liable fur the injury if not guilty of negligence. _ Morris v. Platt 32 Conn. 75, ASSAULT AND BATTERY. 69 where the petition is general, containing no allegation of any special damages, the plaintiff may on the trial give evidence of any damages naturally and necessarily resulting from the act complained of, where the damage is consequential it must be specially set forth in the petition or complaint.’ 85. How the Defendant may Defeat the Plaintiffs Claim for Damages. The defendant may defeat the plaintif’s claim for damages by showing— { 1. That he never committed the assault and battery com- plained of. \ 2. That the injury was done while in the detense of him- self or some member of his family or his property. But to jus- tify an assault and battery bya man in defense of himself, some member of his family or his property, the danger should be such as to induce one exercising reasonable and proper judgment to interfere to prevent the consummation of the injury.? In de- fense of the possession of property, the plaintiff is not justified in the use of force until he has requested the trespasser to de- sist, except in cases of violence or taking of the property by a trespasser or the like, for otherwise the party interfering to pre- vent wrong will himself be guilty of an assault. | Oleay v. Roman 81 Mo. 117. It is not necessary in an action for a ‘ simple assault and battery for the plaintiff to allege in terms that it was willful or malicious to entitle him to maintain his action. Andrews v. Stone, 10 Minn. 72. The plaintiff in an action for an assault and bat- tery need not set out in his declartion such damages, as the law will pre- sume to see the necessary or usual consequences of the injury received, and for such damages he may recover, even though they accrued after the commencement of the suit. Birchard v. Booth, 4 Wis. 67 2 Greenleaf evid. Sec. 95; Hill v. Rodgers 2 Iowa 67; Field on the law of dam. Sec. 616. In the case of Paton vs. Boyer the Supreme Court of the State of Illinois: “This is an action for trespass for an assault and battery and verdict for $450 damages. The jury found this special ver- dict: That-from the evidence the blow complained of was struck by the 70 LAW OF DAMAGES. 3. That the injury complained of was unintentional on his part, resulting from a lawful act, and that in the exercise of his lawful right that neither negligence or folly was im- puted to him. defendant without malice and under circumstances which would have lead a reasonable man to believe it was necessary to his proper self de— fense. This conduct was found, under the instructions of the court, that the jury in addition to the general verdict find a special verdict em- bracing this proposition or its converse. The testimony shows that the trespass by the defendant against an unoffending party, against one that gave no cause or provocation of any kind. The defendant asked this, which was refused: ‘The defendant cannot be found guilty in an ac- tion of this kind, unless in inflicting the injury complained of he has been guilty of some wrong, evil intent or want of care, and if you find from the evidence that he struck the blow without fault you will find for the defendant.”’?’ On coming in of the verdict the defendant moved for a verdict on the special finding, which the court denied. This is the ‘ first point made by the appellant. He insists that judgment should have been rendered for the defendant upon the special verdict, as that ignores malice and unlawful intent, and finds that the act was done un- der circumstances which would have led » reasonable man to believe that it was necessary to his proper self defense. Appellant’s theory is that he mistook the plaintiff for his brother, with whom he was in con- flict and who had felled him to the floor by violence. The court for the plaintiff instructed the jury that it was no defense, so far as actual damages are concerned, that the defendant had been violently assaulted by other than the plaintiff, or wasthen being assaulted by such other per- son, or that he may have honestly believed that he was striking Peter Boyer when he struck the plaintiff, or that he may have honestly be- lieved it was necessary for his self defense to assault the plaintiff. If the jury find from the evidence that the plaintiff was not a party to such assault upon the defendant, such evidence of mistake of fact or good in- tention on the part of the defendant can only be considered in this case by the jury as a defense against inflicting by the jury of vindictive dam- ages, and not as a defense against such actual damage as the evidence may show the plaintiff has suffered from such assault or as natural re-. sulting from such. These instructions involve the merit of the contro- versy. Appellant relies in support of his theory upon Morris v. Platt, 32 Conn. 75, and Brown v Kendall, 6 Cush. 292. These cases are fully discussed and sustain appellant. The facts in both cases are similar to those in this case, and were actions of assault and battery. The princi- ple is announced in those cases that a person is not liable for an uninten- tional injury resulting from a lawful act where neither negligence nor folly is imputed to him who does the act, and that the burthen of proving the ASSAULT AND BATTERY. 71. 86. The defendant is not liable on a lawful and proper act.—The law is well settled that if the defendant at the time the injury occurred was doing a lawful and proper act which he might do by the use of lawful and safe means and while he was engaged in the act using all proper precaution necessary to the exi- gence of the case to avoid hurt to others the plaintiff is injured, the defendant will not be liable.” 87. Chastisement of a Seaman. The law is pretty well set- tled that the master or commander of a vessel may, under cer- tain circumstances, chastise his seamen and he will not be lia~ ble to an action for an assault and battery for such chastise- ment where he acts under a sincere conviction that it was necessary to enforce discipline or compel obedience to orders and not from passion or revenge.’ And if the master, acting in the exercise of a sound discretion and believing from the circumstances that there is imminent danger from mutiny or from honest motives, makes use of dangerous or deadly weapons to reduce a seaman actually in mutiny to obedience, he will not be liable to an action or prosecution therefor, al- though it may appear that less severe measures might have answered.* negligence or folly when the act is lawful is upon the plaintiff. * * * The rule is well established that in an action of an assault and battery the plaintiff must be prepared with evidence to show either that the in- tention was unlawful or that the defendant was in the fault. ? Greenleaf evid. Sec. 85.”’ 67 Ill. 132, see also authorities above cited. | ° Parrett v. Wells, Fargo & Co., 15 Wall 524; Dixon v. Bell, 5 Me. and Sec. 1198. Brown vy. Collins, 53 N. H. 442; Bissel v. Baker, 19 Ark. 308. 8 Dinsman v. Wilks, 12 Hom. 390; Morris v. Cornell, Sprague 62; Sheridan y. Fusleur, 1 Blatchf. and H. 423; U.S. v. Freeman, 4 Mass. 505 and 511. 4 Roberts v. Eldridge,. Sprague 54; U.S. v. Colley, id. 119. U.S. v. Lent, id. 311. But where personal violence is inflicted not excessively but wantonly, 92 LAW OF DAMAGES. 88. School Teachers may Administer Reasonable Punishment. The law permits a school teacher to administer to his pupils for the purpose of maintaining order and good government in his school, moderate correction. So long as the power to punish corporally in schools is recognized and upheld by the law, courts should put it under wholesome restrictions. The teacher should understand that whenever correction is administered in anger or insolence or in any other manner than in moderation and kindness, accompanied with that affection and moral suasion so eminently due from one placed by the law in loco parentis—in the sacred relation of parent—he will be deemed guilty of an assault and battery, the more aggravated and wanton in proportion to the tender years and the dependent position of the pupil. 89. AParent may Injlict Moderate Correction. The law is well settled that a parent may inflict moderate correction upon his child such as is reasonable under the circumstances. If he goes beyond this he is indictable and responsible in damages for an assault and battery.‘ The question as to what is mod- erate correction the law has not attempted to define. And we think that, perhaps, it is well that no definite rule can be laid down on this point, for after all “that might be said the in- stinct of court and jury, as expressed in each particular case, will usually be found to be the best guide.’* , and without provocation or cause, or where there was a provocation or cause, but the punishment was cruel or excessive. Forbes v. Parson, Craleb 283, 12 Han. 390. ® Cooper v. McJunkin, 4 Ind. 290; 14 Johns R. 1191 ; Hillon Torts, 183 ; Hathaway v. Rice, 19 Vt. 182. ° 2 Greenleaf, Sec. 971; Sanders’ Plea and Evidence 107; Matthews v. Terry, 10 Conn. 455; 1 Hawkins P. C. C. 60; 23 Watson v. Christy. 2 B, and P. 224; Sampson v. Smith, 15 Mass. 365; Thorn v. White, 1 Pet. Adx. 173. § 1 Bishops Crim. Law, 8. 880. AssauLT AND Battery. a3 91. Corporation Liable for Assault and Battery. Where a rail- road conductor uses unwarrantable violence in attempting to collect fare, the company will be guilty of an assault and bat- tery and responsible to the injured party in damages.’ ? Ramsden v. Boston & Albany R. R. Co., 104 Mass. 117; Moore v. Fitchburgh R. Co., 4 Gray 465; Huett v. Swift, 3 Allen 420; Holmes v. Wakefield, 12 Allen 580; O’Brien v. Boston & Worcester R.R Co, 15 Gray 20; Philadelphia, Wilmington & Baltimore R. R. Co. v. Quigley, 21 Howard (U. S.) 202; A. & G. W. R. R. Co. v. Dunn, 19 Ohio st. 162. ! . CHAPTER V. CRIMINAL CONVERSATION AND SEDUCTION. AN ACTION AT Commen LAW LIES IN FAVOR OF A HusBAND FOR CRIMINAL CONVERSATION AND SEDUCTION OF HIS WIFE. THE PLAINTIFF MUST PROVE A MARRIAGE. EvIDENCE To SHOW MARRIAGE. THE ACT OF ADULTERY—HOW PROVEN, TIME AND PLACE NEED NOT BE PROVED AS ALLEGED. THE PLAINTIFF MAY SHOW THE STATE OF DOMESTIC FEELING THAT EXISTED BETWEEN HIMSELF AND WIFE BEFORE THE ADUL- TEROUS INTERCOURSE. LETTERS OF THE WIFE. WHEN THEY CAN BEINTRODUCED AS EVIDENCE, THE WIFE’S CHAR- ACTER BEFORE SEDUCTION PRESUMED TO BE GOOD. PLAIN- TIFF CANNOT RESENT DIRECT PROO! OF ACTS OF ADULTERY BY GOOD REPUTATION. THE WIFE’S CHARACTER AND REPU- TATION IN ISSUE. THE OPINION OF WITNESS AS TO WHETH- ER PLAINTIFF AND HIS WIFE LIVED HAPPILY TOGETHER CAN- NOT BE RECEIVED. THE FACT THAT THE PLAINTIFF CON- TINUED TO LIVE WITH HIS WIFE NO BAR TO THE ACTION. MITIGATING CIRCUMSTANCES MAY BE SHOWN BY THE DE- FENDANT. THE DAMAGES, ELEMENTS OF DAMAGES. SE- DUCTION. ACTION FOR DAMAGES EMBRACES EVERY LOSS AND INJURY. AGGRAVATION OF DAMAGES MAY BE SHOWN. 92. Action at Common Law. An action at common law lies in favor of a husband for criminal conversation and seduction of his wife. It is based on the loss of comfort, fellowship and ' assistance of his wife.? 2 1 Saunders, P. and E. P. 395; 1 Chitty Pleadings 642. The usual form of the complaint is as follows: John Smith com- plains of Henry Adams, and says that heretofore, to-wit, the defendant 8 CRIMINAL CONVERSATION AND SEDUCTION. "5 93. The Plaintiff Must Prove an Actual Marriage. The plain- tiff in order to recover, must prove an actual marriage. The law raises no presumptions of marriage from proof. of cohabita- tion, recognition, reputation or other circumstances. The authorities are not uniform as to whether the defendant’s ad- missions of the marriage of the plaintiff and his wife may be given in evidence against him, but there is no good reason why such declaration should not be received as a link in the chain of evidence, though it may not be sufficient to establish the fact. And they are admissable for the purpose of showing that the defendant committed the offense with a full knowledge of the relations of the parties.® But it may now be considered pretty generally settled that if the defendant has seriously ad- mitted the marriage it will be sufficient proof of the fact. Thus when the defendant deliberately declared that the female was married to the plaintiff, and that with full knowledge of that fact he had seduced and debauched her, this was held sufficient.® combining and wrongfully intending to injure the plaintiff and deprive him of the comfort, society, aid and assistance of Nancy Smith, the wife of this plaintiff, and to alienate and destroy her affection for him, here- tofore, to-wit, on the 19th day of July, 1879, and on divers other days thereafter and before the commencement of this suit wrongfully and wickedly debauched and carnally knew the said Nancy Smith, she being then and ever since has been the wife of the plaintiff, by means whereof the affection of the said Nancy Smith for the plaintiff was wholly alien- ated and destroyed. And by reason of the premises the plaintiff has wholly lost the comfort, society and assistance of his said wife, which all the time aforesaid he otherwise might and ought to have had, tothe damage of the plaintiff of ten thousand dollars, for which he demands judgment. A. B., Attorney for Plaintiff. 4 2 Greenleaf on evid. s. 49; Weedon vs. Limberell 5 T. R. 357; Cam- bers vs. Caulfield, 6 East 244; Winter v. Henn, 4 C and P. 494; Bastelet v. Henn, Peaks case 7; Welton v. Webster, 7 C. and P. 494; Haugh v. Watson, 7 M. and G, 644; Field on damages, 117 S. 103; 1 Greenleaf evid. S. 49; Cook y. The State of Georgia, 11 Georgia 53; Riggs v. Curgeon, 2 Wels 399. 51 Greenleaf, Sect. 49. 6 Forney v. Hallock 8 S. and R. 159. 46 LAw oF DAMAGES. 94. If the Plaintiff can show that the Marriage was in Accordance with the Law of the State it will be Sufficient. As almost every State in the Union has its own laws governing marriage contracts and the solemnizing of marriages, it will be sufficient to prove that the marriage was in accordance with the law of the coun- try, state or territory where it took place." There must be sat- isfactory proof of the identity of the parties.’ 95. How the Acts of Adultery may be Proved. The plaintiff must prove the fact of adultery, but he is not required to prove it by eye-witnesses. It may be established by circumstantial evidence alone. Lord Stowell, in commenting upon the amount and kind of evidence required in such cases, said: “Tt isa fundamental rule that it is not necessary to prove the direct fact of adultery, because, if it were otherwise, there is not one case in a hundred in which the proof would be attain- able. It is very rarely, indeed, that the parties are surprised in the direct act of adultery. In every case almost the fact is inferred from circumstances that lead to its fair inference asa necessary conclusion, and unless this were the case, and unless this were so held, no protection whatever could be given to the marital rights. What are the circumstances which lead to such conclusion cannot be laid down universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manner and by many other incidental circumstances apparently slight and delicate in themselves, but which may have most important bearing in 7 Bulls, N. P. 28; Catherwood vy. Carlton, 13 M. and W. 261; Nixon v. Brown, 4 Block 157. 12 Greenleaf on evid., Sect. 50. In a suit for criminal connection, a marriage license issued in Tennessee, with certificate indorsed thereon by a Justice of the Peace that he had solemnized the marriage, the official character of the office granting the license, and also that the Justice of the Peace being certified to by the clerk, the keeper of the record, under his official seal and the presiding justice having attached his certificate of authority, was held properly admitted. 1Scam. Ill. 513. CRIMINAL CONVERSATION AND SEDUCTION. 77 decisions upon the particular case. The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reagon- able and just man to the conclusion, for it is not to lead a rash and intemperate judgment moving upon appearances that are equally capable of twointerpretations—neither is it to be a matter of artificial reasoning, judging. upon such things dif- ferently from what would strike a careful and cautious con- sideration of a discreet man. The facts are not of a technical nature; they are facts determinable upon common ground of reason, and courts of justice would wonder very much from their proper office of giving’protection to the rights of man- kind if they let themselves loose to subleties and remote and artificial reasoning upon the subjects. Upon such subjects the rational and the legal interpretation must be the same.’ ‘ The rule may be stated in a much briefer way, and yet with as much clearness, force and precision by averring that the plain- tiffmust present tothe court or jury trying the cause such proxi- mate circumstances as to convince his or their judgement that the defendant committed the crime.” Thus it has been held that general cohabitation excludes the necessity of proof of particular facts of adultery.’ 3 Lowden v. Lowden, 2 Hogg Conn. R. 23; Dunham vy. Dunham, 6 Law Reporter 14. . 2 Williams v. Williams, 1 Hogg. con. R. 299; Dunham v. Dunham, 6 Law Rept. 141. 5 2 Greeleaf evid., Sect. 41; Codagon v. Codagon, 2 Hogg. R. 4; Bowers admt.,-v- Vanwinkle, 41 Ind. 432. The consorting with a prostitute by a married m.n raises a presump- tion of adultery, unless explained and rebutted by the character of the man, and when character is relied upon asa defense and fails in that respect the presumption is increased. Civici v. Civici, 26 Eng. L, and E. R. 604; Astty v. Astty, 1 Hogg. Eed, R. 719, 78 LAW OF DAMAGES. 96. Time and Place need not be Proved as Alleged. Ordinarily it is not necessary to prove the act to have been committed at any particular place or time. It will be sufficient if the circumstances are such as tolead the court or jury, traveling with every necessary caution, to the conclusion that the de- fendant committed the act inside of the statute of limitation. i ’ 97. Anterior Acts of Adultery may be Shown. And where the plaintiff alleges in his complaint that the criminal commerce took place at a specified time after he has introduced proof of improper freedom within the specified period, he may then intro- duce, proof of acts anterior to the time alleged in his complaint as explanatory of the acts of indecent familiarity within the time alleged.’ 98. The Plaintiff may Show the State of Domestic Happiness to which he and his Wife Lived in Aggravation of Damages. The plain- tiff may show in aggravation of damages the state of domestic happiness in which he and his wife had previously lived and the marriage settlement or othcr provision, if any, for the children of the marriage, the relation, whether of friendship or ‘blood, confidence, gratitude, hospitality, and the like, which subsisted between him and the defendant.' And the condition , Gardner v. Meaderia, 2 yeats Pa. 466; 2 Greenleaf evid. 47; Duke of Norfolk v. Germania, 12 Howells st. R. Tr. 929,945; 2 Greenleaf evid., Sect. 47; Sherwood v. Titman, 55 Pa. st. 77; Gonaway vy. Nichols, 34 Iowa 533. In an action of criminal conversation, an improper intimacy between the defendant and plaintifi’s wife having been shown for over a year prior to a separation between the plaintiff and his wife, evidence of such intimacy continued after the separation is admissible as acts serving to interpret their previous conduct. Sherwood v. Titman, 55 Pa. st. R. 77. 1 2 Greenleaf on evid., Sect. 55; Duke of Norfolk v. Bedding, 6 C. and P. 589. CRIMINAL CONVERSATION AND SEDUCTION. 79 in life and the pecuniary circumstances of the respective par- ties.’ 99. The Plaintiff may Introduce Evidence Showing the Affection Existing Between Him and his Wife Before the Adulterous Intercourse. The plaintiff may, for the purpose of proving the state of affec- tion and feeling that existed between him and his wife prior to the adulterous intercourse, show their previous conversation, deportment and letters.» And the language and letters of the wife written before the alleged adultery to other persons he can introduce for the same purpose.* 100. Letters of the Wife to a Friend in the Defendant’s Hand- Write may be Introduced to Show Intimacy. For the purpose of showing the intimacy that existed between the defendant and 2-Considering as a civil injury (and surely there can be none greater) the law gives a satisfaction to the husband for it by action of trespass ot et armis against the adulterer, where the damages recovered are usually very large and exemplary. But these are properly increased and diminished by circumstances, as the rank and fortune of the plain- tiff and defendant, and the relation or connection between them, the seduction or otherwise of the wife, founded on her previous behavior and character, and the husband’s obligation by settlement or otherwise to provide for the children, which he cannot but suspect to be spurious. 3 Block com. 136. See Ray v. Tucker, 51 Ill. 110; Wilson v. Sproule, 2 yeats Pa. R. 49. The general bad character of the wife may be shown in mitigation of damages. If it was not occasioned by her seduction by the defendant in that case it would not necessarily reduce them to a merely nominal sum. Clouser v. Clapper, 59 Ind. 548. In yindictive actions, and this is now regarded as one the jury are al- ways permitted to give damages for, the double purpose of setting an example and of punishing the wrong doer. For these purposes proof of the condition in life and circumstances, as well of the father and his family as of the party committing the injury, is highly proper and should be given to the jury. Grable v. Margrave, 3 Scam. 272. 32 Greenleaf, Sect. 55. ' ,2 Greenleaf, Sect. 55; Barker v. Mosley, Bull N. P. 28; Welton v. Webster, 7 C. and P. 198. 80 LAW OF DAMAGES, his wife, he may introduce the letters of his wife to a friend in the hand-writing of the defendant.* y \ But before the letters of the wife can be admitted in evi- dence forthe plaintiff, the fact must be established by extrinsic evidence that they were written before the attempt at adul- terous intercourse had been made by the defendant.* 101. The Time when the Letters were Written must be Proved by Oral Evidence. The time when her letters were written must The general principle upon which damages are given in case for crim- inal conversation in England, were laid down with great clearness by an eminent Judge Hesaid: “The action lies in this case for the injury done to the husband in alienating his wife’s affection, destroying the comfort had from her company, and raising children for him to support and provide for, and as the injury is great, so the damages given are commonly very considerable, but they are properly increased or diminished by the particular circumstance of each case. The rank and quality of the plaintiff, the condition of the defendant, his being a friend relation or dependent of the plaintiff, or being a man of substance, proof that the plaintiff and his wife having lived comfortably together before the acquaintance with the defendant and her having always bore a good character till then, are all proper circumstances of aggravation. Bullers N. P. 27; see May on dam. 385. 5 2. Greenleaf on evid., Sect. 55. If exemplary damages may be given for the seduction of the wife, of which there is no doubt the plaintiff may recover for loss of service if he allege and proves it, we are unable to see why the pecuniary circum- stances of the defendant should not go to the jury to enhance the dam- ages. Peters v. Lake, 66 Ill. 206. In acase for an assault and battery committed upon the wife, evidence of the pecuniary circumstances of both parties is admissible to aggravate the damages. Cochrane v. Anmon, 16 Ill. 316; Yundt v. Hartruft, 41 Ill. 9; Peters v Lake, 6 Ill. 206. This is an action of trespass vi et armis, but in substance is an action on the case for seduction of the wife—the alienation of her affection from the husband exposing him to shame, ridicule and hazard of maintain- ing a spurious issue. Reeves on Domestic Relation, 66. 8 Welton v. Welton, 7 C. and P. 198; 2 Greenleaf on evid., Sect. 55. On the trial of a cause for criminal conversation, ‘the plaintiff offered in evidence a certain paper written by his wife, tending to show the alleged criminal intercourse, but which was not sent to or ever in pos- session of the defendant. The plaintiff was introduced and testified in CRIMINAL CONVERSATION AND SEDUCTION. 81 be accurately proved; the date of the letters are not sufficient for the purpose.’ 102. The Wife’s Character Presumed to be Good. The charac- ter of the wife before the alleged adulterous intercourse is pre- sumed to have been good, and the plaintiff cannot go into general evidence in support of it until it has been attacked and impeached by the defendant either in cross-examination or in chief." 108. The Plaintiff Cannot Show General Reputation to Rebut Instances of Misconduct. The question is not quite settled whether the husband can, after evidence has been introduced showing particular instances of misconduct on the part of his wife, rebut such evidence by proof of her general good reputa- tion and character. ’ The weight of authority seems against its admission.’ : relation to the paper that he came home on a certain occasion and found his wife writing it, and told her that he would take charge of it, and did so and had it in his possession until it was attached to the deposition of the witness; held that it was not admissible. Underwood y. Linton, 54 Ind. 468. 72 Greenleaf evid., Sect. 57; Edwards v. Crock, 4 Esp. 39. 72 Greenleaf evtd., Sect. 58; Edward v. Crock, 4 Esp. 39; Bamfield v. Meany, 1 Camp 460; Dodd v. Norris, 3 Camp 519; Larr v. Hicks, Bull N- P. 296. In fine, it is presumed till the contrary is proved, that every man obeys the mandate of the law and performs all his official and social duties. The like presumption is also drawn from the usual course of men’s private offices and business, where the primary evidence of the fact is wanting. 1 Greenleaf on evid., Sect. 40; Doe v. Tuford, 3 B and Ad. 890-895; Champner v. Peck, 1 Stark R. 404; Pritt v. Fairclough, 3 Camp 305. , 1 Though the general character of the wife is in issue in this action, the plaintiff cannot go into general support of it until it has been im- peached by evidence on the part of the defendant, either in cross-exam- ination or in chief, but where the plaintiff can rebut the proof of par- \ \ 82 LAW OF DAMAGES. 104. The Wife’s Character and Reputation in Issue. The plaintiff, by bringing his action, puts his wife’s character in issue, and the defendant may attack that character and show by way of mitigation of damages the previous bad character of the wife,’ and he can do this under the general issue without setting it up by way of special defense.* And he may show for the same purpose the reputation and standing of the wife for chastity. And he will not be confined, to her general repu- tation and character for chastity, but may show particular in- stances of unchastity, her letters to and general deportment towards himself, tending to prove that she made the first ad- vancement.®> But he will not be permitted to show the mis- conduct of the wife subsequent to the alleged connection with him.* That ‘the husband connived at the adulterous inter- course® and his criminal connection with other women.” He ticular instances of misconduct by proof of general good character may be doubted, and the weight of authority seems against it. 2 Greenleaf on evid., 8. 58; see Bamfield v. May, 1 Camp 460; Dodd v. Norris, 3 Camp 519; 2 Greenleaf evid., sepa.; Farr v. Hicks, Bull N. P. 296, 4 Esp. 5 8. C.; Stephens v. Walker, 4 Esp. 51; Bales v. Hill, 1 C. and P. 100 inst., vol. 1 sect. 54-55. ? Sanders v. Nelson, 4 N. H 501; 2 Greenleaf evid., Sect. 56. 5 Harter v. Crill, 33 Barber 283-4; Bullers N. P. 296; Hodges v. Wend- ham, Peaks case 39; Gardenir v. Jadis, 1 Adm N. P. 24. 5 2 Greenleaf evid., Sect 56. 6 Palmer v. Cook, 7 Gray 418; Bennett v. Smith, 21 Barber 431; 2 Greenleaf evid., 8. 56; Field on dam. 563. ® 1 Stephens N. P. 26; 1 Sm N. P. 23-4. " Bromly vs. Wallace, 4 Esp. 276. In an action for the seduction of the plaintiff’s wife it is competent for the defendant to prove under an answer of general denial in mitigation of damages, that owing to the wicked and depraved disposition of the plaintiff, he and his wife, before the alleged improper intimacy, lived unhappily together; that the plaintiff frequently cursed, abused and struck her, and about three years before their final separatién drove her from home under threat of killing her. Coleman v. White, 43 Ind. 429. CRIMINAL CONVERSATION AND SEDUCTION. 83 may also show for the same purpose the bad terms on which the plaintiff and his wife lived together, that he mistreated her, that his gross neglect and inattention in regard to her conduct with the defendant, and any other fact tending to show the little intrinsic value of |her society or the light esti- mation which he held it. He may show for the same purpose a want of chastity in the wife before marriage, but the jury may also consider evidence tending to show that the unchaste acts were with the defendant exclusively. 105. The Opinion of a Witness not Admissible'as to Affection Existing Between Plaintiff and his Wife. But he will not be per- mitted to show by a witness that from what he had observed and knew of the language and conduct of the plaintiff and his wife towards each other, there was not in his opinion any affection existing between them at and before the seduction.” The Supreme Court of Indiana, in the case of Vanwater v. McKillip, in commenting on the admissibility of evidence in mitigation of damages, says: “There are many facts and cir- cumstances which a defendant in an action of this kind may show in mitigation of damages, but we have met with no case in which it has been decided that a bad temper or the occa- sional collisions that may take place between husband and wife in consequence of bad temper of either or both of them, afforded the slightest extenuation of the guilt of the seducer. The ebullition of passion soon passes away and domestic peace and comfort, though interrupted temporarily, are not destroyed. They inflict no wound on the husband’s honor. Why then should these momentary outbreaks of feeling mitigate the damages for an injury that forever destroys his domestic en- joyment and inflicts a wound upon. his honor that cannot be healed? What excuse can the seducer have in such unhappy discord for his guilt? If by artfully taking advantage of them he draws the wife off from her allegiance to her husband and 84 LAW OF DAMAGES. weans her affection from him entirely, does it not rather aggravate than extenuate the injury?” 106. The Fact that the Plaintiff Continues to Live with his Wife ‘may be Proved to Mitigate Damages. The fact that the husband, after he has discovered the adulterous conduct of his wife, still continues to live and cohabit with her, may be given in evi- dence to mitigate the damages, but cannot be pleaded as a bar to the action. Condonation as to the wife is not condonation as to the defendant.* 107. The Defendant may Show in Mitigation of Damages that the Plaintiff and Wife Lived Unhappily Together. The defendant may show in mitigation of damages that the plaintiff and his wife lived unhappily together, and that he treated her in an inhuman manner, and that such treatment was produced by 1 7 Blackford 578. 2 2 Greenleaf, Sect. 56; Bromly v. Wallace, 4 Esp. 237; Felowny v. Col- man, 2 Stark R. 191 1B. and Side 90; Jones v. Thompson, 6 C. and P. 415; Weber v. Woort, 1 M. and B. 404; Dallas v. Sellers, 17 Ind. 479. 4 Clouser v. Clapper, 60 Ind. 548; Sanborn y. Nelson, 4 N. H. 501; Beglow’s leading cases on Torts, 338. The defendant may show in mitigation of damages that the plaintiff and his wife lived together as husband and wife, and that before the alleged improper intimacy between him and the plaintiff’s wife that the plaintiff and his wife lived unhappily together; that he frequently cursed and abused her, and often struck her, and that at times the plaintiff drove her from his house by beating her and by threats that he would kill her, at the time presenting a pistol at her which caused her to fly from her home and her children, and that this trouble grew out of the fact that the wife wanted one of the children to wash before coming to breakfast, and that the plaintiff determined it should not; that they after- ‘wards lived together as husband and wife, but unhappily as before, and that they finally separated, and that the said trouble between the plain- tiff and his wife existed on account of the wicked, depraved and selfish disposition of the plaintiff, and not on account of any alleged improper intimacy between the defendant and his wife. Coleman v. White, 43 and 429; see Sedgewick on dam. 547; Gilchrist v. Bale, 8 Watts, 355; Pal. mer v. Crook, 7 Gray 418; 1 Greenleaf evid. 117; Sect. 102. CRIMINAL CONVERSATION AND SEDUCTION. 85 drunkenness or otherwise, but the plaintiff's general character is not in issue, but only his character as a husband; therefore the plaintiff’s general character can not be attacked.5 108. The Amount of Damages. After considering all the elements, the jury should award the plaintiff such damages as, in their opinion, will be sufficient to compensate him for his loss and suffering." 109. Elements of Damages. The court or jury in trying a cause of criminal conversation in assessing the plaintifi’s dam- ages, should take into consideration the “ injuries resulting from the alienation of the wife’s affections, destroying the com- fort had from her society, the raising of spurious children for the husband to support and provide for, rank and social standing of the parties, the pecuniary standing and the private and social relation 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.’””* Norton v. Warner, 9 Conn. 172. ‘The action lies in this case for the injury done to the hus- band in alienating his wife’s affection, destroying the comfort had from her company, and raising children for him to support and provide for, and as the injury is great, so the damages given are commonly very considerable, but they are properly increased or diminished by the particular circumstance of each case. The rank and quality of the plaintiff, the condition of the defendant, his being a friend relation or dependent of the plaintiff, or being a man of substance, proof that the plaintiff and his wife having lived comfortably together before the acquaintance with the defendant and her having always borne a good character until then, and proof of settlement or provision for the children of the marriage, are all proper circumstances of aggravation. Bullers N. P. 27; see Moyne on dam. 385. Twenty-five hundred dollars was held not excessive damages in the case of Clouser v. Clapper, 59 In.d 548; Hill on Torts, 509; Peters v. Lake, 66 Ill. 206; Yundt v. Handruft, 41 Til. 9. 8 Field on the law of damage, P. 563; Smith,v. Allison, Bull, 2 N. P. 27; 86 LAW OF DAMAGES. 210. Seduction, Action can be Maintained. A common law and action can be maintained by a parent, guardian or other person: standing in loco parentis to a female who has been seduced, or by the husband for the seduction of his wife, or by the master for the seduction of his servant, and this “only when the relation of master and servant existed actually or constructively at the time of the seduction.”?. The foundation of the action is the loss of the service of the servant, occasioned by the defendant’s casual intercourse with her by which she became pregnant.’ As’a general rule the action will not lie unless the plaintiff can show that the female was his servant, and that the defendant had had*connection with her, and that she became pregnant from such'sexual intercourse. But to this rule there are some exceptions. This action will lie against a defendant for debauching the plaintiff’s servant and communicating to her a venereal disease by which she was made sick and unable to labor.* It must appear from the evi- dence that the servant has in some way been injured by reason of the commerce between her and the defendant, for otherwise it is in principle nothing but the case of an assault upon the servant without damages to the master. The plaintiff's claim for damage is founded on the legal fiction of loss of service, and unless the evidence show that the female was in the ser- Winter v. Henn, 6 C. and P. 494, Winter v. Wroot, 1 M. and A. 404; Duberly v. Gunning, 4 T. R. 655; Edwards v. Crock, 4 Esp. 39; Terlang v. Colman, 1 Band A. 90; Welton v. Webster, 7 C. and P. 198; Calcroft v. Lord Harbaugh, 4 C. and P. 499; Wells v. Bernard, 8 Bing 376; 2 Hill Torts 509; Hillard Remed. 398. 1 Hill v. Wilson, 8 Blackf. Ind. 123; 13 Black com. 140 Conn. Dg. 318; Mayne on dam. 284, ? Eager v. Grimwood, 34 legal obs. 360; Bartley v. Ritchings, 4.N. Y. 38; Knight v. Wilcox, 14. N. Y 413. ® White v. Nellis, 31 N. Y. 405. 2 Greenleaf on evid., Sect. 577; see authority above, CRIMINAL CONVERSATION AND SEDUCTION. 87 vice of the plaintiff there can be no recovery.” The reign of fiction having passed away and vanished before the progress of culture and civilization, the injured and humiliated female may now, in many of the States by legislative inactments, have redress in the courts of justice for damages in such cases. 111. Damages to Embrace Every Loss or Injury. - As a general rule the damages will embrace every loss or injury resulting from the wrongful act or all that the plaintiff can feel from the nature of the injury; therefore, in case of a parent suing for ° the seduction of a daughter, the jury may “consider his loss of comfort, as well as the service of his daughter, in whose virtue he can feel no consolation, and his anxiety as the father of other children"whose morals may be corrupted by her exam- ple.” And they should also consider the disgrace cast upon the parent and its effect on the domestic peace and happiness of the plaintiffs family. After considering all the losses and injuries the jury should award such damages as will recom- pense’ the’ plaintiff for all the losses and injuries he has sus- tained, and unless there qre mitigating circumstances they may, in addition to this, allow exemplary damages to punish the defendant.) 112. Aggravation of Damages how Shown. The plaintiff may show the rank of his family, the pecuniary condition and circumstance of the defendant, the standing of both parties 5 Hill v. Wilson, 8 Blackf. 123; Richardson v. Fout, 11 Ind. 466; Gunell v. Wells, 7 Man. & Gran. 1,033; Ellington v. Ellington, 47 Mass. 329; Gray v. Darland, 51 N. Y. 424; Field on the law of dam. 556 6 See Sect. 24 Ind. stat. vol. 2 Res. by G. and H. P. 55. 7 Field on the law of dam. 557 8. 698; Kendrick v. McCray, 11 Geor. 603; Andrews v. Asky,8 C. and P. 7; Phelps v. Holey, 4 Gray (Mass.) 568: Knight.v. Wilcox, 18 Barber 568 14 N. Y. 413; Falkner v. Scarlet, 29 Ind. 154; Wilkin v. Hancock, 5 Burt 567. 1 Sargent v. Denison, 5 com. 106; Stevenson v. Belknap, 6 Iowa 97. 88 LAW OF DAMAGES. and the natural consequence of the defendant’s act, even though it took place after the commencement of the cause of action, such as expense of lying in, &c., in aggravation of damages.* And he may show for the same purpose that the defendant succeeded in debauching his daughter by a promise of mar- riage. But it is not to be inferred from this that the parent can recover damage for a breach of promise to marry. An ac- tion for such damages must be brought by the daughter or ser- vant alone.’ The right to aggravate the damages by showing that the defendant debauched the daughter under a promise of marriage, is a question, and in some States it is absolutely for- bidden.* Ingersoll v. Jones, 5 Barb. 661; Irwin v. Decannon, 11 East 23; Ed- mondson v. Marshall, 2T. R, 4, Ballv. Bruce 21 Ill; 161 Bartleby v. Richtmyer, 4.N. Y. 38 Lipe v. Esenlerd, 32 N. Y. 229; Badgley v. Decker, 44 Barber 577. ’ 8 Rea v. Tucker, 511 Ill. 110. Hewett v. Prime, 21 Wend. 79. 8 White v. Campbell, 13 Gratt 573. * Phelen v. Kinderdein, 20 Pa. st. 354. 5 Stevenson v. Belknap, 6 Iowa 97; Grove v. Dill, 3 Iowa 337; see Whit- ney v. Elmer, 60 Barber N. Y. 250; Moyne on dam. 284, and English cases cited. CHAPTER VI. FALSE IMPRISONMENT. Fase IMPRISONMENT DEFINED. THE RIGHTS OF PRIVATE CITIZENS AND PEACE OFFICERS TO MAKE ARRESTS. THE RIGHT OF A CITIZEN TO MAKE AN ARREST DISCUSSED. THE RIGHT OF A PEACE OFFICER TO MAKE AN ARREST WITH- OUT A WARRANT ‘THE OPINION OF THE SUPREME COURT OF MASSACHUSETTS. THE CRIMINAL ARRESTED BY A PRIVATE CITIZEN OR PEACE OFFICER MUST BE TAKEN WITHIN A REA- SONABLE TIME BEFORE A COURT AND CHARGES PREFERRED AGAINST HIM, ARREST UNDER A VOID WRIT. THE RESPON SIBILITY OF THE PARTY CAUSING THE ARREST. JUSTIFICA- TION MUST BE ESTABLISHED BY THE DEFENDANT, ‘THE ELE- MENTS OF DAMAGES, AGGRAVATING CIRCUMSTANCES. Mirt- IGATING CIRCUMSTANCES. FULL DEFENSE, 113. False Imprisonment, ats Definition. False imprisonment may be defined to be “the unlawful restraint of a person con- trary to his will with or without, process of law.’” In general no actual force or manual touching of the body, no compulsory seizure, is necessary to constitute an arrest or imprisonment.’ 71 Hill on Torts, 195; Fuller v. Bueher, 11 Mich. 204. 11 Hill on Torts. A false imprisonment may be effected by threats, and a conviction thereof sustained without proof of expressed threats or answered restraint. Herring v. The State, 3 Tex. App. 108, Malice need not be averred or proved to sustain the action for false imprison- ment. Akin v. Newell; Woods v. State, 32 Ark. 605; Colter v. Lower et al, 35 Ind. 285; Hall v. Rodgers, 2 Block 429; Mason v. Canfield, 6 Block 406; Poulk v. Slocum, 3 Block 421. 90 LAW OF DAMAGES. If the plaintiff is compelled to move or not to move either by threats or force against his will, he will have a cause of action against the wrong doer. 114. The Right of Private Citizens and Peace Officers to Make Arrests. The constitutions of most of the States forbid unrea- sonable searches and seizures and arrests of individuals with- out due process of law. But they do not abrogate the rules of the common law which authorizes private persons and peace officers to make arrests in certain emergencies without war- rant.” 115. The Right of « Private Citizen to make Arrests. The law is ever mindful of the rights and liberties of the people, and it permits private citizens to make arrests in certain emergencies. Buta private citizen will only be justified in making an arrest where’ it appears, first, that a felon has actually been com- mitted by some person or other against the laws of the State; second, that the circumstances were such that any reasonable 2 Starkey evidence, 1,112. In order to sustain a charge of false im- prisonment it is not necessary for the plaintiff to show that the defendant used violence or laid hands on him, or shut him up in jail or in prison, but it is sufficient to show that the defendant at any place or manner re- strained the plaintiff of his liberty or detained him in any manner from going where he wished or prevented him from doing what he desired. 33 Tl. 473. Rohan v. Swain, 5 Cush. 285. In this case the court, in commenting on this question,said: “It has been some times contended that an arrest of this character without a warrant is a violation of the great fundamen- tal principles of our National and State constitutions, forbidding unrea- sonable search and arrest, except by warrant founded upon complaint made under oath. These provisions doubtless had another different pur- pose, being in restraint of general warrant to make search and requiring warrant to issue only upon a complaint made under oath. They do not conflict with the authorities of a constable or other peace officers or pri- vate persons under limitations to arrest without warrant those who have committed a felony.” FALSE IMPRISONMENT. 91 person acting without passion or prejudice would have fairly , suspected that the plaintiff committed the crime or was im- + plicated in it. And as a general rule no private person can, without warrant, arrest another for a misdemeanor. But there are ex- ceptions to this rule. A private person may arrest another for a breach of the peace while the strife is going on and to prevent its continuance. But after the strife has ended and order restored, his authority to make arrests ceases.° 116. A Peace Officer may Arrest Without Warrant. A peace officer is authorized to arrest without warrant when he sees the offense committed or when he knows a felon has been com- mitted and the circumstances are such as to lead a reasonable man, without passion or prejudice, to suspect the plaintiff guilty, or where it appears that he had probable and reason- able ground to believe that the prisoner had committed a felon against the laws of the State where the arrest is made. But to justify a peace officer in apprehending without process for an affray, the affray must take place in his view and be still con- tinuing. After it is over he has no more power to arrest an offender than any other person.’ 3 Addson on Torts, 700; Griffin v. Colmer, 4 H. and N. 265; 28 Law Exch. 134; Wright v. Coust, 4 B. and C. 596; Power v. Buckner, 3 Ind. 475; Unto v. Weaver, 41 Me. 430. *2 Addson on Torts, 701; Hawkins P. C. chap. 12 8. 20. _5 Poen vy. Beckner, 3 Ind. 475; Cook v. Neither, Cote 6C and P. 741; Coupey v. Henly, 2 Esp. 540; Fox v. Gaunt, 3 B. and Ad. 798; Holley v. Mix, 3 Wend. 350; Dering v. The State, 49 Ind. 56; Wakely v. Hart, 6 Bin, 316; 1 Hill on Torts, 210. 7 Dering v. The State, 49 Ind. 56; Poen v. Beckner, 3 Ind. 475; Cook v. Nethercote, 6 C. and P. 741; Coupey v. Henly, 2 Esp. 540; Fox v. Gaunt, 3B. and Ad. 798. 92 LAW OF DAMAGES. The Supreme Court of the State of Massachusetts, in commenting upon the question of the right of private citi- zens and peace officers to make arrests, says: “The public safety and the due apprehension of criminals charged with various offenses, imperiously require that such arrests should be made without warrant by the officers of the law. As tothe right pertaining to a private person to arrest without warrant is a much more restricted authority, and is confined to cases of actual guilt of the party arrested, and the arrest can only be justified by proving such guilt. But as to constables and other peace officers acting officially, the law clothes them with greater authority, and they are held to be justified if they act in making the arrest upon probable and reasonable grounds for believing the party guilty of a felony, and this is all that is necessary for them to show inorder tosustain a justification of an arrest for the purpose of detaining the party to await further proceedings under a complaint on oath and warrant thereon.” The probability that ‘the prisoner will escape, if not forthwith arrested, ought to have its proper effect upon the mind of the officers in arriving at aconclusion whether he will arrest without warrant or not. “But the question of the reasonable necessity for an im- mediate arrest, in order to prevent the escape of the party charged with a felony, is one that the officer must act upon under his official responsibility, and not a question to be re- viewed elsewhere.’” 1 Rohan v. Swain, 5 Cush. 281-83. ? Rohan v. Swain, Sup. 1 Chitty Crim. Law 252; Hale P. C. 871 Dec. on L. 47. Peace officers are bound upon directed charge of felony and reasonable ground of suspicions to apprehend the party aécused. Deer- ing v. The State 49 Ind. 56. FALSE IMPRISONMENT. 93 117. The Law Requires a Private Citizen or a Peace Officer who has made an Arrest to Take the Prisoner to a Court having Jurisdiction and Prefer Charges. After a private citizen or a peace officer has made an arrest without warrant on suspicion, he must take the prisoner as soon as he reasonably can before an officer having jurisdiction to examine into the nature of the offense and file or cause to be filed a charge against him.” 118. The Legality of Arrest Under Warrant. Every man has the right to the enjoyment of his liberty and the use of his property, except so far as restrained by law, and who ever in- terferes with the enjoyment of one or the use of the other is a trespasser. A man who seizes the property or arrests the per- son of another by legal process or other equivalent authority conferred upon him by law, can only justify himself by a strict compliance with such process or authority. If he fails to exe- cute or return the process or authority as thereby required, he may not, in the strict sense, be said to be a trespasser abintio, but is often called such, for his whole justification fails and he stands as if he had never had any authority to make the arrest or take the property, and, therefore, appears to have been a trespasser from the beginning.’ 119. Arrests Under a Void Writ. It may be laid down as a general rule that when an officer makes an arrest under a war- rant which is in fact void, as where the court or magistrate ~ issuing the writ had no jurisdiction of the offense or subject ? Davis v. Russell, 2 Moore & Payne 90; William v. Glenester, 2 B. and C. 699; Wright-v. Courts, 4 B. and C. 596; Bouglon v. Jackson, 11 East L. E. 386; 1 Hill on Torts 209; Baz. et al. v. Tate, 43 Ind. 60; Law v. Evans, 16 Ind. 486; Scorles v. Nevins, 47 Ind. 290. « Bock v. Stimpson, 108 Mass. 520; 2 Rol. Ab. 563; Shortland v. Gar- rett, 5 B. and C. 485, 8 D. & R. 257; Smith v.. Gates, 21 Peck 55; Coffin v. Vincent, 12 Cush 98; Russell v. Hirab, 15 Gray 166; Monroe v. Merrill, 6 Gray 236 14 Ia. 141; Modesett v. Johnson, 2 Block 431. 94 LAW OF DAMAGES. matter for which the warrant was issued, which fact appears from the writ itself, or where the officer arrested the wrong person, in all such cases the officer will be liable in damages. to the injured party, and the writ will be no protection to him unless the complaining party has, by his own misstatement and misrepresentation, caused the officer to arrest him in place of the real offender.t. But asa general rule an officer will not be held in damages if the warrant under which he made the arrest is fair on its face and shows jurisdiction in the officer issuing it as against the person named in the warrant.® 120. . The Responsibility of the Party who Procured the Writ. It is well settled that if a judicial officer, whether possessed of a general or special jurisdiction, acts erroneously or even oppres- sively in the exercise of his authority, an individual at whose suit he acts is not answerable as a trespasser for error or mis- conduct of the officer. But a judicial officer whose jurisdiction is special and limited transcends his authority and acts in a case in which he has no cognizance. His proceedings are coram non judice, and no person, much less a suiter, can justify under them.” . 121. Where a Ministerial Officer Pleads Justification he Must Sustain it by his Evidence. The rule is universally recognized that when a ministerial officer justifies under authority, he must clearly show that authority, and it must appear that he’ 4 Field on dam 540; Perry v. Johnson, 31 Conn. 32; 2 Hill on Torts 185; note 189; Davis v. Jenks, 11 M and W. N.S 495; 26 L. C. P. 267; 2 / Addson on Torts 701; Duston v. Peterson, 2 C. B. N. 8. 495; 2 mane or Torts 701. 6 Field on law of dam. 538; Bonesteel v. Bonesteel,1C. and M. 77 733 Blyth v. Thompson, 2 Ala. Proct. 468; Farrell v. Barnett, 22 Eng. L. and E. 179; Parson y. Harper, 16 Gront 64; Sedgwick on dam. 700; Field ‘on dam. 538. 1 Taylor v. Moffatt, 3 Black 305; Sandcool y. Boughton, 5 Wend. 170. FALSE IMPRISONMENT. 95 acted under a court having jurisdiction of the subject'matter, that the process or command that he executed was on its face legal and such as the court had the power to issue, and that he did no more than to execute the process or command in a legal manner.! i 122. The Elements of Damages. 1. Bodily and mental sufter- ing. 2. Lossof time. 38. Expenses of all kind, including attor- ney’s fee incurred in procuring discharge. 4. Interruption of business. The general rule for the assessment of damages, where the evidence fails to show expressed malice, is the actual damage suffered in consequence of the imprisonment, includ- ing attorney fees and all other expenses incurred in procuring a discharge, loss of time, interruption of business, bodily and mental suffering.* And in some cases exemplary damages have been allowed.® 1 Poulk v. Slocum, 3 Black 421; Woodkirk v. William, 1 Black 110; Hall v. Rodgers, 2 Black 429. In an action against a magistrate for false imprisonment of the plain- tiff in the house of correction, it appeared by the defendant’s record that the plaintiff was duly convicted before him of being a common drunkard, and was thereupon sentenced to said house, and that the plaintiff appealed from the sentence to the Court of Common Pleas, and that upon his failure to procure sureties for the prosecution of his appeal: the defendant issued a mittimus pursuance to the sentence. Held, that the defendant could not be permitted to show by parol evidence, in jus- tification of his proceedings, that the plaintiff after failing to procure surety waived and withdrew his appeal. Kendall v. Powers, 4 Mt. 553. * Bonesteel v. Bonesteel, 30 Wis. 511; Prichard v. Parry, 1 C. and M. 775; Blyth v. Thompkins, 2 Able Pr. R. 468; Farrell v. Barnett, 22 E. L. E. 179; Parson vy Harper, 16 Grot (Va.) 64, Sedgwick on measure of dam. 700 and notes; Field on law of dam. 538. ; 5 Fellows v Goodman, 49. Mo. 320. Besides damages for the direct pecuniary injury, as by taking away or injuring property, the jury may allow damages for indirect pecuniary injury, where it is a necessary consequence of a direct act and when the averment in the complaint warrant it as a loss of time, delay in business, . expense.in, etc.,and for injury to business or profession, reputation, or | 96 LAW OF DAMAGES. 123. Matters that may be Shown in Aggravation of Damages. The plaintiff may show in aggravation of damages that the defendant in making the arrest and imprisonment was actuated by malicious motives. Thus where a person was arrested and imprisoned merely for the ‘purpose of enabling the defendant to accomplish an object that he otherwise could “not have done, the prosecution being a mere sham, the court held that the circumstances went to aggravate rather than to diminish the amount of recovery.° 124. Mitigating Circumstances, what the Defendant may Show. The defendant may show in mitigation of damages every cir- cumstance connected with the transaction that has a ten- dency to show that he acted with honest motives and in good faith in making the arrest and imprisonment. For this pur- pose he may show that before he made the arrest he consulted an experienced attorney, and that he followed his advice in making the arrest. So he may show that the plaintiff insulted him with vile epithets and gross seditious language that caused him to make the arrest.2, And he may show for the ‘ social position and for physical suffering, as bodily pain, disability, dis- figuration, etc., and for mental trouble, as for anguish of mind, sense of shame or humiliation, loss of honor, all of which is considered compen- satory and not exemplary. or punitive damages. Stewart v. Maddox, 63 Ind 51; Anthony v. Gilbert, 4 Black’348; Moffatt. v. Woodworth, 7 Ind. 83; Wilson v. Hock, 17 Ind. 227; Cox v. Vanderleed, 21 Ind. 164; Moore v. Crose, 43 Ind. 30; Zigler v. Powell, 54 Ind. 173; Koener v. Oberly, 56 Ind. 284. * Fellows v. Goodman, 49 Mo. 62; Harlin v. Spaulding, 27 Wis. 360; Buehabor v. Slegmann, 22 Mich. 300; Brown v. Carady, 39 Barber, 253; Marsh v. Smith, 49 Ill. 396; Warrick v. Faulk, 12 Me. Weles 507, where it was held that the plaintiff should be taken in aggravation. ? McCall v. McDowell, 1 Able U. 8. 212; Mortimer v. Thomas, 23 La. Ann. 165; Deody U. S. C. 238; Rench v. McGregor, 32 N. J. L. 70. 2 McCall v. McDowell, U. 8. Supra. FALSE IMPRISONMENT. 97 same purpose that the plaintiff was strongly suspected and . accused by the public of the crime for which he was arrested.’ 125. Full Defense. The defendant may defeat the plain- tiff’s claim for damages by showing justification. If at the time he made the arrest and caused the plaintiff to be im- prisoned he was acting as an officer of the law and was com- manded to arrest the plaintiff by a warrant that was valid on its face, this would be a justification, and there could be no re- covery.* 126. Justification by a Private Person. A private person may defeat the plaintiff's action by showing that a felon had actually been committed by some person or another, and that the circumstances were such that a reasonable person acting without prejudice or passion would have fairly suspected that the plaintiff had committed the crime or was implicated: in it, | or arrested him to prevent a breach of ~ peace while the strife was as yet going on.? 8 Rerich v. McGregor, Supra.; Carpenter v. Pocker, 23 Ia. 450; May on dam. 263; Field on dam. 541. , 4McLane v. Cook, 23 Wis. 364; Underwood v. Robins, 106 Mass. 296; Shain v. Davis, 55 Barber 389; Johnson v. Maxon, 23 Mich. 129; Addson on Torts, 700-701. , See anti-page on justification. Ss CHAPTER VI. FRAUD AND DECEPTION. FRAUD DEFINED. —THEINTENTION WILL NOT BE CONSIDERED, MISREPRESENTATION MUST BE A MATTER OF FACT. ON WHAT A PARTY MAY RELY. | REPRESENTATION THAT A PARTY HAS A RIGHT TO RELY UPON. REPRESENTATION WHERE NO RELIEF IS GRANTED. THE LAW RAISES NO PRESUMPTION OF FRAUD. THE PLAINTIFF MAY RECOVER OR RETAIN THE PROPERTY AND SUE FOR DAMAGES, THR DAMAGES MEASURE OF RECOVERY. WHERE THERE ARE NUMEROUS REPRESENT- ATIONS. DAMAGES WHERE PROPERTY IS EXCHANGED. OB- JECTION TO THE RULE, RULE OF DAMAGES TO REAL PROP- ERTY. 127. Fraud Defined. Fraud has been defined to be “all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence justly imposed and are injurious to another.” 1 Burrell’s law dictionary, 1 Story Eq. 187, Sect. 193; 1 Kent 483; Woodruff v. Garner, 27 Ind. 4; 2 Parson on cont. 775; Taylor v. Aston, 11 M. and W. 401; Warren v. Daniels, 1 Wood, &c , 181; Ainsly v. Medly, Scott 9 Verse 13; Shackelford v. Handly, 1 A. and H. Marshall 500; Mun- roe y. Pritchett, 16 Ala. 785, 6 Ind. 28. If the representations of one party in a case where such representa- tions are calculated to inspire confidence are confided in and acted upon by another as true, when in reality they are false, and thereby the latter is induced to contract that which he otherwise would not have made, the law will declare the transaction fraudulent and void, without refer- ence to the motives of the party inducing the fraud. It is sufficient in civil cases that fraud has been committed by means adequate to deceive. That facts without the motives furnish all the elements essential for the law to operate upon. Bishop v. Coffet, 6 1nd. 23. FRAUD AND DECEPTION. 99 128. It ts now Held that the Intention will not be Corisidered Unless Exemplary Damages are Claimed. It is now generally held that the intention of the party who misleads another to his injury will not be considered, unless the assessment of exemplary damages are insisted upon. It may, therefore, be laid down as a general rule that if the statement made by the defendant be, in fact, false and misleads the plaintiff to his damage, it has the whole effect of fraud in annulling the con- tract, although the person uttering the statement did not know it to be false, but believed it to be true, or where a party misrepresents a material fact, knowing it to be false, or made the assertion without knowing whether it was true or false, tor the affirmation of what one does not know or believe to be true, is equal in morals and law as unjustifiable as the affrma- tion of what is known to be positively false.’ These principles are upheld by sound morals, and rest on the basis of equity and right. When a party sells property he must be presumed to know whether the representations which he makes of it are true or false. If he knows them to be false, that is fraud of the most positive kind, but if he does not know it then it can only be from gross negligence, and in contem- plation of a court of equity representation founded on mistake resulting from such negligence is fraud.’ | 2 Warren v. Daniel, 1 Wood and Min. 90; Ainsly v. Medly, Scott 9 Verse 13; Shackelford v. Handly, 1 A. R Marshall 500; Munroe v. Prichett, 16 Ala. 785; McConner vs. Malin, 5 Black (Ind.) 509. The doctrine is now well settled that actual misrepresentation avoids the sale, even though made through ignorance of the seller himself. It is said a seller is bound with the utmost good faith, and if he misleads the purchaser by false or mistaken statements as to any one ecsential circumstance, the sale is voidable. Hill on venders 325. 5 Feenzel et al. v. Miller, 37 Ind. 1; Daniel v. Mitchel, 1 Story 172; 1 Story E. J. 8. 193; Ainsly v. Medley, Scott 9 Verse 13; Groves v. White, Freem. 57; Pearson v. Morgan, 2 Brown ch. 388; Fuzan v. Toulmen, 9 Ala. 662-684; McCornie v. Malin, 5 Black 522; Turner v. Harvy, Jacob 169; Shaffer v. Slade, 7 Black 178; Burson v. Lock, 10 Verse 470; Reed y. Devin, 7 Ind. 189. 100 LAW OF DAMAGES. The rule is that he who sells property on a description given by himself is bound to make good that descciption, and if it be untrue ina material point, although the variance be occasioned by mistake, he must still remain liable for that variance.* 129. The Misreprcesentation Must be, to a Material Fact. To constitute a misrepresentation a ground fraud for avoiding a contract, or to entitle the injured party to his action for damages, it must be in regard to a material fact operating as an inducement to the purchaser or person making the con- tract, and upon which he had a right to and did rely.* 130. Every Person is Conclusively Presumed to Know the Law. Where the false representation relied upon by the plaintiff relates exclusively to the law and not to a material matter of fact, there can be no recovery. For no principle of law is better settled than that every person is conclusively presumed to know the law, both civil and criminal.* 131. A Party Cannot Rely Upon Vague Commendation. The jury or judge trying the cause, in considering whether the plaintiff relied upon the representations, should discriminate between such statements as are in conscience a part of the bar- gain and mere vague commendations, as the holding out of * Smith v. Richards, 13 Peter U.S. 38; McFerra v. Taylor, 3 Croch. (U. 8.) 28. 5 Cromwell v. Cliford, 45 Ind. 392; Feenzel v. Miller, 37 Ind. 1-17. ® Reed vy. Sidener, 32 Ind 373; Platt v. Scott, 6 Black 889; Clem v. Newcastle, &c., R. R. Co. 9 Ind. 488; Louchheim v. Gill, 17 Ind. 139. A misrepresentation, in order to effect the validity of a contract, must relate tosome matter of inducement to the making of the contract -where a purchaser relies on the superior knowledge and information of the seller; not where the purchaser has equal means of information and relies on his own judgment, founded on actual examination. Hill v. Bush, 19 Ark. 522; Bell y. Henderson, 6 Miss. 311. FRAUD AND DECEPTION. 101 hopes or expectations which ought to put the other party upon further inquiry. . For it is not every erroneous representation that a party has a right to rely upon.’ 132. What Representation will be Sufficient to Enable a Party to Rescind a Contract or to Recover Damages. The representation that will entitle a party to rescind or to recover damages on a con- tract, must be representations as to a fact or facts, and go toa material matter. It must be a representation on which the party to whom it was made had a right to and did rely. If it be a mere matter of opinion or exaggeration, general represen- tations of quality, capacity, value or usefulness, or be as toa matter equally open to the knowledge of both parties, or is of a trifling character or of an immaterial thing, or if the other party did not trust to it or was not mislead by it, or if it was } Gatling v. Newell, 9 Ind. 572; Foley v. Cogill, 5 Blackford 18; Post v. Williams, 6 Ind. 380; President, &c., v. Connersville, 6 Ind. 219; Hum- phreys v. Comline, 8 Black. 516; Morgan v. Snapp, 7 Ind. 537. , The defendant contends that the representations alleged to have been made by the defendant were not such as afford a ground for an action. It is first insisted that the statement as to the value of the lands and the mortgage thereon were mere matters of opinion and belief, and that'no action can be maintained upon them if false. Ifthey were such, no lia- bility is created by the utterance of them, but all statements as to the value of property sold are not such. They may be under certain cir- cumstances affirmation of facts. When known to the utter to be untrue, if made with the intention of misleading the vendee if he does rely upon “them and is mislead to his injury, they avoid the contract. And where they are fraudulently made of particulars in relation to the estate which the vendor has no equal means of knowing and where he induces to for- bear inquiries which he would otherwise and damages ensue, the party ‘guilty of fraud will be liable for the damages sustained. Slebbins v. Eddy, 4 Mason 414-423; Mulberry v. Watson, 6 Met. 246 per Hubard J.; McClelland v. Scott, 26 Wis. 81. When a party relies on his own judgment with means of knowing the facts equal to those of his opponent, and he does not make use of them, he cannot, complain. It is useless to say he was defrauded by false rep- resentation, unless he believed them to be true and acted upon them ac- cordingly. Jenkins v. Long, 19 Ind. 29; Hague v. Grossman, 31 Ind. 223; Hess v. Young, 59 Ind. 379. 102 LAW OF DAMAGES. vague and inconclusive in its own nature, or it was upon matters of opinion equally open to the observation and inquiry -of both parties, or in regard to which neither could presume to trust the other, in these and like cases courts will grant no relief. And especially will this be the case where the parties stand mentally upon an equal footing and in no fiduciary rela- tions." ™ Gatling v. Newell, 9 Ind 572; Hess v. Young, 59 Ind. 379; Jenks v. Long, 19 Ind. 28; Hagee v. Grossman, 31 Ind. 223; Bowman v. Carithers, 40 Ind. 90; Kerr on frauds and mistakes, 77, note 1; 1 Parson on con- tracts 770; Green v. Gordon, 4 Scott N. R. 13; 3 Man. & G. 446; Van v. Cobbold, 1 Exch. 798; Edwards v. Owen, 15 Ohio, 500. Whether the repre- sentation as to the value of the property is a mere expression of opinion or the affirmation of a fact, is a question for the jury. Smar v. Canada, 53.N. Y. 298; 13 Am. R. 523. Our law adopts the rule of the civil law simplex commendatis non obligat. If the seller merely made use of those ex- pressions, which are usual to sellers who praise at random the goods which they are desirous to sell, the buyer could not procure the sale to be dissolved. An action of deception cannot be maintained against a vendor for having falsely affirmed that a person bid a particular sum for the estate, although the purchaser was thereby induced to purchase and was deceived in the value. Neither can a purchaser obtain any relief against a vendor for false representation of value, for value consists in judgment and estimation in which many men differ. Sugdon on vendors, 4 ed. 3; Harney v. Young, yelee 21; Duckinfield v. Whihcott, 2 ch. C. 204. i A miisrepresentation to be material, should be in respect to an ascer- tained fact as distinguished from a mere matter of opinion. A repre- sentation which merely. amounts to a statement of opinion, judgment, probability or expectation, or vague rumors, or is vague or indefinite in its nature and terms, or is merely loose conjectures or exaggerative statements goes for nothing, though true, fora man is not justified, in placing reliance on it. Kerr on frauds and mistakes, p. 82. It has been frequently held that an action cannot be maintained for a false assertion as to the value of property or the representation of the agent of the vendor that the title was good. Hume y. Polock L. R.1 ch. App. 385; Fenton v. Brown, 14 Verse 144; Towerv. Newcomb, 3 Mer. 704; Scott v. Hanson, 1 R. and H. 129; White v. Cudden, 8 Cl. and 8S. 766; Colley v. Gadsden, 34 Beam. 415. The representations as to the location of the land are actionable, if the purchaser is unacquainted with the land and had no opportunity to examine it. Safford v. Handy, 23 Wend. 260. FRAUD AND DECEPTION. 108 133. The Law will not Relieve a Man who has been Deceived by his own Negligence. The law is well settled that when the plain- tiff has been injured by his own negligence and want of proper care in making a contract he cannot recover. He is required to exercise his common sense and judgment, and if he fails to exercise proper care and discretion and is thereby defrauded and injured, courts will not extend their aid to relieve him.’ 134. Representations as to the Amount the Vendor Paid for the Property or its Value or what he has been Offered for it, the Court will Grant no Relief. Where a vendor of real or personal property make false representations to the purchaser as to the amount he paid for it or its value, or the amount he has been offered for it, and the purchaser is misled thereby to his damage, the courts will assume that such representation are so commonly made by those holding property for sale, in order to enhance its value, that any purchaser who confides in them is too care- less of his own interest to be entitled torelief.2 The same rule applies to the common language of puffing and commendation of commodities which are looked upon in morals as a wide de- 1 Gatling v. Newell, 9 Ind. 572, and authorities cited where the means of knowledge is equally available to both parties and the subject of pur- chase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunity, he will not be heard to say that he was deceived by the vendor’s misrepresentations. Slaughter v. Ger- son, 13 Wall (U. 8.) 379; Crouk v, Cole, 10 Ind. 485. The cases have gone so far as to hold that if the seller should even affirm that a particular sum had been bid by others for the property by which means the purchaser was induced to buy and was deceived as to the value, no relief was to be offered, for the buyer should have informed ‘himself from proper sources of the value, and it was his own folly to re- pose on such assertions made by a person whose interest might so readily prompt him to invest the property with exaggerated value. 2 Kent com. 486; Georgia v. Higgenbottoms, 9 Peter 48; Craig v. Ward, 36 Bar- ber 377. 2 Manning v. Allen, 11 Allen (Mass.) 522; Cooper v. Vanermy, 106 Mass. 79; Medly v. Watson, 6 Met. 246-260; Cross v. Peters, 1 Me. 389; Holbrook v. Conner, 60 Me. 578, Sam. 11, Am. R. 212; Mooney v. Miller 104 LAW OF DAMAGES. parture from the truth and injurious to the growth of virtue and morality, yet the law does not treat them as frauds which will avoid a contract or authorize a person who has been de- ceived thereby to recover damages. To such the rule applies: “The seller représents the quality or value and leaves them to the judgment of the buyer.” 185. The Law Raises no Presumption of Fraud. It is well settled that if there are no false representation the law will raise none by implication, and the rule of caveat emptor, or let the buyer take care of his own interest, applies. This rule is apparently severe, and sometimes works hardships and seems to clog the wheels of justice. But experience has proved its its utility and value. “The rule never applies to cases of fraud, never proposes to protect a seller against his own fraud, nor to disarm a purchaser from a defense or remedy against a sell- er’s fraud. It becomes, therefore, important to know what the law means by fraud in this respect and what is recognized as such fraud as will prevent the application of the general rule- If the seller knows of the defect in his goods which the buyer does not, and the seller is silent, and only silent, his silence is ~ 102 Mass, 220; Long v. Woodman, 58 Me. 52; Hubble v. Mesis, 50 N. Y. 480; Ellis v. Andrews, 9 Ala. Law Journal 263. Every contracting party has an absolute right to rely on expressed statements of existing facts, the truth of which is known to the opposite party and unknown to him as the basis of mutual engagement, and he is under no obligation to investigate and verify statements, to the truth of which the other party has deliberately pledged his faith. 32 N. Y. 289. 81 Story’s E. J,, Sect. 201. See Feenzel v. Miller, 37 Ind. 1 to 21. The concealment or non-disclosure of facts to amount to a fraud must be of those facts and circumstances which one party is under some legal or moral obligation to communicate to the other,,and which the other has aright to know, not merely in foso conscientia but juris et de jure. Vanarsdale v. Howard, 5 Ala. 596; Barnett v. Stanton, 2 Ala. 181; True- body v. Jacobson, 2 Cal. 269; Aortson v. Ridgway, 18 Ill. 23; Junkins v. Simpson, 14 Me. 364; Young v. Bumpass, 1 Freem. ch. 241; Trigg v. Read, 5 Humph. 529; Ingram v. Morgan, 4 Humph. 529; Dickison v. Davis, 2 Ligh. (Va.) 401. FRAUD AND DECEPTION. 105 nevertheless a moral fraud, and ought, perhaps, on moral grounds, to avoid the transaction. But this moral fraud has not yet grown into a legal fraud. In cases of this kind there may be circumstances which causes this moral fraud to become legal fraud, and give the buyer his action on his implied war- ranty or on the deception. And if the seller be not silent, but produce the sale by means of false representation, then the rule of caveat emptor does not apply, ‘and the seller is answerable for his fraud. But the weight of authority requires that this should be actual fraud: The common law does not oblige a seller to disclose all that he knows, which lessens the value of the property he would sell. He may be silent, leaving the purchaser to inquire and examine for himself, or to require a warranty. He may be silent and be safe, but if he be more than silent, if by acts, and certainly if by words, he leads the buyer astray, inducing him to suppose that he buys with war- ranty or otherwise preventing his examination or inquiry, this becomes a fraud of which the law will take cognizance. The distinction seems to be, and is grounded upon the apparent necessity of leaving men to take some care of themselves in their business transactions, the seller may let the buyer cheat himself ad libitum, but must not actively assist him in cheating himself.’ 136. The Law Leaves Men to Judge of their Own Wants and the Nature and Kind of Property.they Want to Buy. The law aims to leave men to judge of their own wants and the nature, kind and quality of the property they purchase. If the purchaser ‘choses to be his own judge and is not misled by the buyer, and 41 Parson on cont. 578; see Feenzel v. Miller, 37 Ind. 1 to 21. The mere fact that the vendees at the time of the sale are insolvent and know themselves to be so, and do not communicate that circumstance to the vendors who are ignorant thereof, and know the vendors to be ignorant, does not render the sale fraudulent and void. Powell v. Bradle, 9 Gill and J. Md} 220. 106 Law oF DAMAGES. in so doing cheats himself, the seller is not responsible. Where the means of knowledge is accessible to both parties, each must judge for himself. The above rules are in conflict with some good authorities, but we think the weight of authority in this country sustain them.’ 137. A Party who has been Defrauded by False Representation has one of two Remedies; He may Sue for Damages or Rescind the Con- tract. A party who has been defrauded has one of two reme- dies; he may rescind the contract and recover back the con- sideration or sue for damages. If he desires to rescind, the law requires him to be active in notifying the defendant and in applying for his remedy. But after he discovers the fraud he will be allowed a reasonable time to commence his action. But it should be remembered that in the meanwhile time has not stood still, and on recision of a contract what has fled can- not be returned. He will be allowed to make such use of the property as will enable him to discover the fraud or to have the benefit of his bargain.‘ 188. The Plaintiff after he Discovers that he has been Defrauded Must be Active in Enforcing his Remedy. The bringing of the suit to rescind a contract is not governed by the statute of limita- tion, but it is a question of diligence on the part of the plain- tiff who seeks to enforce the recision of the contract on the > Hess v. Young, 59 Ind. 377; Jenks v. Long, 19 Ind. 28; Hagee v. Grossman, 31 Ind. 223; Bowman v. Carithers, 40 Ind. 90. Fraud may be committed by the artful and purposed concealment of facts exclusively within the knowledge of one party and known by him to be material, and where the other party had not had equal means of information. Prentiss v Russ, 16 Me. 30; McLanahan v. Universal Ins. Co.; 1 Peter 185; Jackson v. Wilcox, 2 Ill. 344; Durell v. Haley 1 p. 492. “ Gatling v. Newell, 9 Ind. 572; Cain v. Gurther, 8 Black 409; Hills- brook v. Burke, 22 Pick 456; Kingley v. Wallis, 14 Maine, 57; Kilroy v. Ross, 6 Black 536; 2 Kent com. 10 ed. 664; Chandle v. Loupus, 1 st. Smith leading cases, 3 ed. 188, 189 and 190; Lowe v. Oldham, 22 Ind. 51. FRAUD AND DECEPTION. 107 ground of fraud. Where a bill is filed to rescind a contract on account of fraud, the court will look to the circumstances surrounding the transaction, to ascertain if the plaintiff has been prompt in seeking his remedy in a reasonable time after the facts which constitute the fraud are discovered, and grants relief to the vigilant and denies it to the negligent.’ The facts must appear that the plaintiff who seeks to rescind a contract has exercised at least reasonable care in ascertaining the facts, if readily within his power, and that he has been prompt in commencing his action after the facts constituting the fraud have been discovered.® 189. A Contract on Account of Mistake or Fraud Cannot be Rescinded in Part and Affirmed in Part, but Must be Rescinded in Toto or not at All. The law is well settled that a party who has been defrauded cannot rescind the contract in part and affirm it in part. Therefore, it will not permit a party to re- pudiate a contract on account of fraud and at the same time retain the benefit derived from it, but must, when he discovers the fraud, restore or offer to restore to the other party what he has received, and if he fails to do this he affirms the contract. But the fact that the parties cannot be put precisely in statu quo, as to the subject matter of the contract will not always preclude a decree for recision. If the plaintiff can return to the defendant in substance what he has received, affected only by time and legitimate experimental use, this will be suffi- + Matlock v. Todd, 25 Ind. 128; Barton v. Simmons, 14 Ind. 49; Potter v. Smith, 30 Ind. 231; Hammon v. Shields, 34 Ind. 84, 31 Maine 143. * Matlock v. Todd, supra; Barton v. Simmon, supra; Cain v. Gurthur, 8 Black 409. 6 Johnson v. Cook, 33 Ind. 151; Negly v. Lindry, 67 Pa. st. 217; Peters v. Gooch, 4 Elack 515; Compart v. Hedges, 6 Black 416; Shaffer v. Stead, 7 Black 178; Jenks v. Simpson, 14 Maine 364. 108 LAW OF DAMAGES. ' cient.’ If, however, the consideration received is of no value to either party, it need not be returned. The law not only requires the return or offer to return everything the plaintiff has received from the defendant, but there must also be a return or an offer to return every benefit which the terms of the contract or its execution has conferred upon the plaintiff. If he has received rents and profits, or if there has been an increase among animals received, or he has been benefited in any other way, he must return or offer to re- turn such benefit.2 The rule is that a contract will not be re- scinded unless both parties can be restored to the same condi- tion that they were before it was made.’ There are, however, afew cases in the reports where this rule has been re- laxed and parties have rescinded a contract on account of fraud without returning or offering to return the consideration re- ceived. But there is none, however, that we have been able to find in which the party seeking to rescind did not surrender every benefit which the terms of the contract or its execution had conferred upon him, and so far as he could had restored the other party to his original condition, except the single case of Daniel vy. Mitchell,’ in which, however, the court was 7 Gatling v. Newell, 9 Ind. 572; Mason v. Barrett, 1 Dennis 69; Colson v. Smith, 9 Ind. 9; Law v. Oldham, 22 Ind. 512, Black 123; Howard v. Cadwalider, 5 Black 135; Garret v. Headstone, ed. 349. Millikin v. Latchem, 7 Black 136, ed. 501; Hardesty v. Smith, 3 Ind. 89; Cooley v. Hampton, 4 Ind. 451, ed. 378, 6 Ind. 26. ? Rose v. Hamly, 39 Ind. 17; Hanna v. Shields, 34 Ind. 84; Osborn v. Dodd, 8 Black 467; Hadly v. Smith, 3 Ind. 39; Cooly v. Harper, 4 Ind. 454. 1 Johnson vy. Cookerly, 33 Ind 151; Chitty on contracts, 678-752; Hunt v. Silk, 5 East 449; Kimble v. Cunningham, 4 Mass. 502; Conner y. Henderson, 15 Mass. 320; Voorhees v. Earl, 1 Hill 228; Hogan v. Meyer, 5 Mass. 389; Mason v. Bonet, 1 Denio 69. 21 Story 172, The doctrine is now established by a preponderance of authority that a party not intending to pay, who, as in this instance, induced the owner to sell him goods on credit by fraudulently conceal- FRAUD AND DECEPTION. 109 able to substantially restore the former status. The Supreme Court of Kentucky, in the case of Shackeford v. Hadley, held that where the defendant “without. the concurrence in act or will of the injured party, that the defendant alone had fraudu- lently produced such a change in the state of affairs that the parties could not be put in their former condition, and great stress was laid upon the fact that it was done for fraudulent purposes of inflicting still further injury upon the plaintiff that a recision could be had without placing the parties in statu. quo.”* But the correctness of this decision has been seriously questioned, and will, perhaps, upon further investi- gation, be ultimately overruled. ing his insolvency and his intent not to pay for them, is guilty of fraud which entitles the vendor, if no innocent third party has acquired an in- terest in them, to disaffirm the contract and recover the goods. Donald- son v. Farwell, 93 U. S. (3 Otto) 631; Johnson v. Monellid, 2 Keys 655; Byrd v. Hall, ed. 647; Noble v. Adams, 7 Taunt 59; Killey v. Wilson, Ryan and Moody, 178; Bristol v. Wilsmore 1 Bam and Cress 513; Stewart v. Emmersyn, 52 N. H. 301. $1 A. K. Marsh 505; 4 Johnson v. Cookerly, 33 Ind. 151; Hannon v. Shield, 34 Ind. 84. “Fraud destroys the contract, but if a party defrauded would disaffirm the contract, he must do so at the earliest practical moment affter the discovery of the cheat, and he must return whatever he has received upon it. But if the thing received is entirely valueless and a different thing from that contracted for he may rescind the contract without re- turning or offering to return it” Edwards on bills and promissory notes, 326. : ' 4 Colville v. Besly, 2 Denio 69. In cases of this character, the general principle is that he who seeks equity must do equity; that the party against whom relief is sought shall be remitted to the position he occu- pied before the transaction complained of. The court proceeds on the principle that as a transaction ought never to have taken place, the par- ties are to be placed as far as possible in the situation in which they would have stood if there had never been any such transaction Neblett v. McFarland, 92 U.S. (11 Otto) 101; Bellamy v. Sabine, 2 Phil 425; Samy v. King, 5 H. L. 627; Scotland v. Addie, L. R. Scotch App. 162; Gatling v. Newell, 9 Ind. 572; Johnson y. Jones, 13 Small 580; Kerr on frauds, 335-343. . 110 LAW OF DAMAGES. 140. The Plaintiff May Retain the Property and Sue for Dam- ages. As has already been said, the plaintiff may, after he dis- covers the fraud, retain the property and sue for damages. There is some conflict among the authorities as to whether a party who has induced another to enter into a contract by false statement of material facts which he believed at the time to be true, will be responsible in an action for damages. The law is laid down by Smith in his work on contract, as follows: “Tf the representation be not known to be false by the utterer of it, or be not used with intent to deceive, it will not amount to fraud although really false.”* The conflict in the decision upon this question has been mainly produced by the nature of the action and the character of the court trying the cause. The courts of equity would afford relief by reforming or re- scinding the contract, founded upon mutual mistake of fact upon a material matter, although the misrepresentation was in- nocently made by mistake, while the courts of law would afford no remedy in the absence of a warranty unless there was either positive or constructive fraud. We think that it may now be considered pretty well settled by the most recent decisions that in those States where the distinction between actions at law and suits in equity and form of all such action are abolished that an action may be maintained to recover damages for in- jury from fraudulent representation without alleging a Scienter, or that the defendant knew that the representations were false.© And we are led to believe that the old rule of the com- mon law is now being modified and expounded in such a way 4 Smith on cont. 152; Zehner v. Kepler, 16 Ind. 290. § Feenzel v. Miller, 37 Ind. 1; Potter v. Smith, 36 Ind. 231; Kreesan v. Cloud, 45 Ind. 273; Brooks v. Riding, 45 Ind. 15; Ainslie y. Medly, Scott 9 Verse 21; Pearson v. Morgan, 2 Br. ch. R. 388; Burrows y. Lock, 10 Verse 470; Reed v. Duine, 7 Ind. 189; Shaffer v. Slead, 7 Black 178; Daniel v. Mitchell, 1 Story 172; McFerron v. Taylor, 3 Cranch 281; Smith v. Richards, 13 Peter (U. S.) 36; Fuzan v. Toulmine, 9 Ala, 662-664; Mun- roe y. Prichett, 16 Ala, 785. FRAUD AND DECEPTION. lit that in an action on the case to recover for the consequential results from fraudulent misrepresentations of matter of fact that the plaintiff may recover, if he can show that the repre- sentations were false and that he was injured thereby. And this belief is based upon the ground that the party selling property must be presumed to know whether the representa- tion which he makes of it are true or false.’ 141. The Damages. We have shown that when fraud en- tere into a contract that the party injured has a choice of rem- edies. He may rescind the contract and return the considera- tion received, or he may retain the goods and sue for damages, and where a suit is brought to recover purchase money he may set up his damages in across action as a counter claim as a defense to the action.’ In case of fraudulent representation of the quality or quantity of property sold, where the plaintiff retains the property and sues for damages, the general rule 78 that the measure of his recovery will be the difference between the value of the property as it i3 and its value if it had been as represented.” The rule of damages in case of a contract of sale and de- livery of an article which proves not to conform to the repre- sentation of it, is the difference between its actual value at the place of delivery and what such value would be at that place if the representations were true.’ The price paid by the pur- * Munroe v. Prichett, 16 Ala. 785; McCormick v. Malin, 5 Black 522; Reed v. Duine, 7 Ind. 189. 7 Smith v. Richards, 13 Peter 38; McFerron v. Taylor, 3 Cranch 281; 6 Verse 180-189, Jerimy 385-386; Cabot v. Christie, 42 Vt. 121. 1 Law v. Oldham, 22 Ind 51. 2 Groves v. Spier, 58 Barber (N. Y.) 349; Page v. Parker, 43 N. H. 368; Carr v. Moore, 41 N. H. 131; Stevenson v. Greenlee, 15 Iowa 96; Field on the law of damages, 568. Sedgewick on the measure ‘of damages, 358; Moore v. Hutchison, 102 Mass. 439; Whitmore v. South Boston Iron Co, 2 Allen 52; Stiles v. White, 112 LAW OF DAMAGES. chaser or plaintiff will be very strong, but not conclusive evi- dence of the value of the property as it was represented to be.‘ And, in addition to this, the jury are in some cases allowed to assess exemplary damages where such damages are allowed.® In other cases of fraud the injured party may recover such damages as he has sustained. Thus it was held by the Supreme Court of the State of Texas when a drove of horses were sold infected with a contagious disease, that if the contract was not rescinded and the plaintiff sued for damages he would be entitled to recover the “value of such as died and the dif- ference 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 to other ani- mals of the purchaser without his fault.’ And it may be laid down a general rule that where the vendor of live animals falsely represents them to be free from infectious disease, knowing that they are not, and they are placed by the purchaser with other animals of the plaintiff, which take the disease and die or are injured, the owner may 11 Met. 356; Tuttle v. Brown, 4 Gray 457; Fisk v. Hicks, 11 Foster 535; Woodward v. Shocker, 21 Vt. 580; Miller v. Eno, 4 Kenon 597; Sher- wood y. Sutton, 1 Mason 1; Lorder vy. Kikule, 3 C. B. N. 8, 128; Dingle v. Hare, 7 C. B. N- S. 145; Jones y. Justice law R. 32,2 B. 197; Watson v. ‘Morrison, 17 Texas 372. § Durst v. Burton, 47 N. Y. 167, 12 N. Y. 40, 22 Barber 154. * Page v. Parker, 43 N. H. 363; Merny v. Jennings, 42 Conn. 9; Field on dam. 569. * Wheeler v. Randall, 48 Ill. 182; McAna y. Wright, 25 Ind. 22; Field on dam. 569; Page v. Parker, 43 N. H. 363. ® Wheeler vy. Randall, 48 Ill. 182; McAmay v. Wright, 25 Ind. 22; Sherwood v. Sutton, 5 Mason 1; Stiles v. White, 11 Met. 356; Reggio v. Braggiotti, 7 Cush. 166; Sharon y. Mosher, 17 Barber 518; Seymour v. . McCormick, 16 How.. 480. FRAUD AND DECEPTION. 113 recover from the defendant all the injury he has sustained.* In case of fraud, the plaintiff can recover such damages as may fairly and reasonably be considered either arising naturally a. é., according to the usual course of things, from the wrongful act or such as may reasonably be supposed to have been in con- templation of the parties at the time they made the contract as the probable result, provided the representation were not true,’ or the defendant will be held responsible for such dam- ages as “must be presumed to have been within his contempla- tion at the time of the commission” or perpetration of the fraud.’ In a case where the defendant induced the plaintiff by false representation to invest his money in an oil specula- tion, it was held that the plaintiff could recover the money back that he had invested and was lost, but that there must be deducted from such money the value of the oil that the plaintiff retained.” 142. The Rule for the Assessment of Damages Where There are Numerous Representations. In an action for deception and fraud in the sale of property, where the purchaser retains it and where numerous misrepresentations in relation to the property or in relation to several distinct particulars or qualities of the Freeman 8 T. H. 51. ¢ Wintz v. Morrison, 17 Tex. 372; Morris v. Hutchison, 102 Mass. 439; Knowls v. Nunn, 14 L. T. R. N.S. 2 B. 592; Sedgewick leading cases on damages, 545; Smith v. Green, 1 R. R.1 C. P. I. 92; Mullett v. Mason, L. R. 1 C. P. 559; Jeffy v. Biglow, 13 Wend. 518, Bradly v. Rea, 14 Allen 20; Field on damages, 569; Hadly v. Baxendale, 9 Exch. 341. ™Hadly v. Baxendale, 9 Exch. 341; Sedgewick leading cases on measure of damages, 126; Richardson v. Dunn, 30 L. J. R. N. 8. (C. P.) 442; L. T. R.N. S. 430. 1 Duret v. Burton, 47 N. Y. 167; Richardson v. Dunn, 30 L. J. R. N.S. (C.P.) 2 L. T. N.8. 480, 8 C. B. N.S. 655; Carter v. Biniger 43 N. J. L. 513. 2 Carter v. Biniger, 43 N. J. L. 513. 114 LAW OF DAMAGES. property are found to have been made by the vendor, some of which may be materially and others immaterial, some fraudu- lently and others honestly made, though all are false, in fact the rule of damages is the difference between the value as it would have been if it had been such as it was represented to be in these particulars, concerning which the false and fraudu- lent representations were made on which the verdict was founded.’ 148. In Case Where Property is Exchanged and Represented to be Sound and is Not. In the case of Murry v. Jenks, where the plaintiff exchanged a yoke of oxen for a horse of the defendant, worth one hundred and twenty-five dollars. The horse was. unsound, but was fraudulently represented by the defendant to be sound. But for the unsoundness it would have been worth two hundrsd and twenty-five dollars. The defendant wanted the oxen for beef. The plaintiff valued them at two hundred dollars, but there was no evidence as to their value other than for beef. They were worth for beef one hundred dollars, and this sum was assumed in the opinion of the court to be their genuine market value. The court held that the rule of dam- ages could not be affected by the circumstances that the horse was actually worth more than the oxen, and the plaintiff was held entitled to recover the difference between the value of the horse as represented and its actual value.* 144. There has been Some Controversy. Over the Measure of Damages in this Class of Cases. There has been objections urged by law writers to the rule allowing the plaintiff in this class of cases to recover the difference between the actual value of ( * Page v. Parker, 43 N. H. 363; Sedgewick’s leading cases on the measure of damages, 553. 4 42 Conn. 9. FRAUD ‘AND DECEPTION. 115 the property at the time and its value if it had been as repre- sented to be. They contend that the rule should be the dif- ference between the real value of the property and the price which the plaintiff was induced to pay. But this would give the advantage lawfully secured to the innocent purchaser in the original bargain, to the defendant or wrong-doer, and in proportion, as the original price was low, would afford a pro- tection to the party who had broken it, at the expense of the party who was ready to abide by the terms of the contract. And it may now be considered a settled general rule, upheld by the great weight of authority, that in an action for fraud and deception the measure of damages is the difference between the actual value of the property at the time of the purchase and its value if it had been what it was represented to be.® 145. The Rule for the Assessment of Damages in Case of Fraud- ulent Sale of Real Estate. The rule for the asssssment of damages for the fraudulent sale and exchange of real estate does not differ from the rule in case of the fraudulent sale and exchange of personal property. Thus it has been held that when the defendant fraudulently represented the quality and location of the land purchased by the plaintiff to be different from what it was, that the measure of damages was the difference between the value of the land purchased at the time of the sale 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, to which might be added interest ‘on the sum of difference from the time the contract was made and money paid.® 5 Stile v. White, 11 Met. 356; Tuttle v. Brown, 4 Gray 457; Whitmore v. South Boston Iron Co, 2 Allen 52; Fisk v. Hicks, 11 Foster 535; Wood- ward. v. Shocker, 21 Vt 580; Miller v. Eno, 4 Keanan 590; Sherwood v. Sutton, 5 Mason 1; Loder v. Kirkule, 3 C. B. N. 8. 128; Dingle v. Hare, 7 C. B. N. 8. 145; Jones v. Justice, Law Rept. 32 B. 197; Morse v.. Hutchins, 102 Mass. 439. ; ® Wright v. Roach, 57 Me. 600; Lickers v. Bair, 8 Iowa 368; Hirer v 116 LAW OF DAMAGES. The Supreme Court of Indiana recently held when the defendant sold to the plaintiff the undivided one-half of a tract of land and falsely and fraudulently represented to him that there was then upon such land a house of particular size and description, which was untrue, that the measure of damages for the lack of such house was one-half the amount of the increase there would have been in the value of said land if there had been such a house upon it at the time of the sale.’ ( 146. The Rule for Damages Where There are False Representa- tion as to the Quantity of Land. In case where the defendant has made false representation as to the quantity of land, the measure of damages is the contract price per acre for the deficit, with interest thereon, and in case of an exchange of land proof may be introduced to show what was the estimated value of the property received by both parties.” 147. Where Improvement have been Made and the Vendor Pre- vents the Conveyance, the Measure of Damages. When, after a part performance of the contract for the conveyance of real estate by the vendee he makes improvement on it such as were con- templated by the contract, the vendor by his own wrongful act puts it out of the power of the vendee to fully comply with the provisions of the contract, the measure of damages in an action by the vendee against the vendor for such breach is the : Richter, 51 Ill. 299; Gates v. Reynolds, 13 Iowa 1; Mably v. Alexander, 19 Iowa 162; Hohn v. Cummings, 3 Iowa 583; Field on L. dam. 570 S. 708 ' Sangster v. Prather, 34 Ind. 504; Cabot v. Christie, 42 Vt. 121. * Lallam y. Todd, Hunter 24 Iowa 166; Boatman y. Smith, 50 Ind. 403, FRAUD AND. DECEPTION. 117 difference between the unpaid purchase money and the actual value of the land at the time of the breach.’ 3 Case v. Walcott, 33 Ind. 5; Hopkins v. Lee, 6 Wheat-109. The plaintiff cannot recover remote or spectlative damages; his re- covery will be confined to the natural and proximate consequence of the wrongful act of the defendant, Richardson v. Dunn, 30 L. J. R. N. ' 8. C. P. 44. CHAPTER VIII. TRESPASS. Trespass DEFINED. TRESPASS TO REAL AND PERSONAL HROPERTY. POSSESSION ESSENTIAL TO MAINTAIN THE AC- TION. WHEN A BAILEE FORFEITS HIS POSSESSION. AN OF- FICER WHEN LIABLE FOR ABUSE OF HIS POWERS. THE IN7 TENTION. DAMAGES FOR INJURY TO ANIMALS, DaMAGES WHERE PROPERTY IS TAKEN AND NOT RETURNED. DAMAGES ARISING FROM STRIKING PLAINTIFFS HorRSE, INJURY TO WATER PRIVILEGES. REMOVING ADAM, THE USE OF LAND MAY BE RECOVERED. DECISION OF DAMAGES. DAMAGES TO COAL MINES, 148. Trespass Defined. The term trespass in law. is very comprehensive, and includes a great variety of injuries to the person, property or relative rights of another. Blackstone says that a “trespass, in its largest and most extensive sense, signifies any transgression or offense against the laws of nature, of society, or of the country in which we live, whether it re- lates to man’s person or his property." Therefore, beating 7 3 Black com. 208. . TRESPASS. 119 another is a trespass; taking or detaining a man’s goods are, respectively, trespass, for which an action for trespass vi et armis, or on the case, or in trover and conversion, is given by law. So, also, the non-performance of a promise or under- taking is a trespass upon which an action of trespass on the case in assumptit is grounded, and in general any misfeasions or acts of one man, whereby another is injuriously treated or damnified, is a transgression or trespass in its largest sense. But the word trespass is now used in a more restricted sense, and means in common parlance a wrongful entry or the taking or injuring of real and personal property, or property of a corporal or tangible nature without the consent of the owner. The respective writers of this subject distinguish it from a mere conversion on the one hand, which is the subject of an action of trover, and from a nuisance on the other.® We propose in this lecture to treat only of trespass to real. and personal property. 149. Trespass to Real and Personal Property Defined. Tres- pass against real and personal property may be defined as the injury of such property, with violence against the will of the owner or without his consent. The violence may be either actual or implied. Though the right of property may and fre- quently does come in controversy in this action, yet the gist of the action is the injury done to the plaintiff’s possession." 13 Black com. supra. ? Blackstone’s com. supra., 2; Hill on Torts 70, ed. 71. Trespass does not lie for damages caused by building a house so near another’s land that the same projects over and shadows and casts water drips upon the land. Barnes v. Duffy, 7 R. I. 476; Bango v. Smith, 49 Me. 9. 52 Greenleaf evid., 8. 613. 120 LAW OF DAMAGES. 150. Who will be Regarded as Having Possession. The law presumes that every person is in peaceable possession of what- ever belongs to him. Property in the possession of an agent, overseer, servant, or lessee for custody, carriage or other care or services as a depositary mandatary, carries borrower or the like where they have no vested interest or title to the beneficiary use and enjoyment, and the owner may at any time take it into his own hands and at his pleasure he may sue for any in- jury to said property, and the possession will be considered in him. A suit may be maintained by one in actual possession, but on the trial he must prove his possession de facto, and an authority coupled with an interest, as where asheriff has goods in his possession by virture of a writ. So a tenant may sue for an injury to the crop which is in his possession. As has already been said, if it appears on the trial that the plaintiff had the property in his possession at the time of the commis- sion of the injury, the law raises a presumption that he is the owner of it.® 151. The General Owner has a Constructive Possession. The general owner has in law what is called a constructive posses- sion of his property against his bailee or tenant, who have a special property in the object injured. Thus, if one injures a horse which he has hired or wheat which is deposited in his grainery, or any other property intrusted to his care, he for- feits his right to possession, and the owner may at once sue him for such injury.* 4 1 Chitty Pleading, 188. 5 Crenshaw v. Moor, 10 Ga. 384; Hume v. Tupts, 6 Block (Ind.) 136; Cannon v. King, 4 Ill. 9; McFarlon vy. Smith, 1 Mass. 172; Hamer v. Welsy, 17 Wend. 91; Edwards v. Edwards, 11 Vt. 587; Lunt ¢. Brown, 13 Me. 236; Brown v. Coblaugh, 11 N. H. 557; Parson v. Dickson, 11 Pick 382; Putnam v. Wiley, 8 Johns 432; Brown v. Wase, 25 Me. 411; Gibson v. Wood, 20 Ill. 37; Searls v. Cromle, 28 Ill. 396; Lewis v. Carsom, 15 Pa. st. 31. 6 See.authorities above. TRESPASS. 121 152. If an Officer by Virtue of his Writ Get Possession of Property and Afterwards Injures It, he is Liable for Such Injury. If an officer takes property on a lawful execution against the plaintiff, but afterwards abuses his authority by refusing the plaintiff the right of selection and appraisal under the exemp- tion act, he will be treated as a trespasser from the beginning.’ If an officer levies an execution on personal property, adver- tises it for sale, and neglect to sell it, he will be held as a tres- passer from the beginning. This rule is based on the pre- sumption that every man intends the necessary consequences of his own acts. “The law in some cases judges of a man’s pre- vious intentions by his own subsequent acts,” and on this principle it has been frequently decided that if a man abuses authority given him by law, he becomes a trespasser ab intio or from the beginning. The reason assigned for this rule be- ing that when a general authority has been given by law, the law judges of his subsequent act quo animo or to what intent the original act was done, but when a party himself gives an authority or license to do anything, as to enter upon land, he cannot for any subsequent cause convert that which was done under the sanction of his own authority or license into a tres- pass ab intio, and in this latter case, therefore, the subsequent acts only will amount to trespass. For instance, the law gives authority to a common inn or tavern, in like manner to the _owner of the ground, to distrain damage feasance, and to ‘the commoner to enter upon the land to see his cattle. But if he who enters into an inn or tavern commits trespass, or if the owner, who distrains a beast damage feasance, works or kills 5 If an officer acting under a legal warrant abuses his authority he be- comes a trespasser ab intio. This principle is conceded on all hands. But every irregularity is not such an abuse as makes the officer a tres- passer from the beginning. The nature of the irregularity must deter- mine the form of action. Jarrett v. Genathmey, 5 Black (Ind.) 237; Freeman v. Smith, 30 Pa. st. 264; Wilson v. Ellis, 28 Pa. st. 238, 1 122 LAW OF DAMAGES. the distress, or if the commoner cuts down a tree in these and similar cases, the law adjudge that the party entered for the specific purpose of committing the particular injury, and be- cause the act, which demonstrates the intention is a trespass, he shall be adjudged a trespasser from the beginning, or in other words the subsequent illegal conduct shows the party’s bad spirit, and the law raises the presumption that he was actuated by that spirit in making the entry, and, therefore, holds him a trespasser ab intio.6 Thus the owner of the soil, over which a highway is located, is entitled emblements grow- ing thereon and to the entire use of the land, except the right which the public have to use the land and material for the purpose of building and maintaining a highway suitable for the safe passage of travelers.'"’ Therefore, where the defendant’s wife, under the direction of the highway surveyor or super- visor, cut down the grass that was standing and growing on a public highway over the land of the plaintiff, in order that her cnildren may go and come from school without getting their clothes wet, and carried it away and fed it to her hus- band’s horse, the court held that although she had a right to cut the grass for the purpose she did, that she had no right to carry it away, and by so doing she became a trespasser ab intio.” So when an officer attached an attorney’s desk and library of not more than two hundred dollars in value, situated * Burton v. Calaway, 20 Ind. 469; Jarrett v. Gatling, 5 Blackf. 237. ™ Cole v. Drew, 44 Vt 49; Goodlittle v. Alker, 1 Burr 122; Holden v. Shattuck, 34 Vt. 336; Perly v. Chandler, 6 Mass. 454; Stackpole v. Healy, 16 Mass. 33; Jackson v. Hathaway, 15 Johns 447. 1 Cole v. Drew, 44 Vt. 49. , The public can only use the road for the purpose of travel. The owner of the fee owns the soil of the highway and the crops and embelments thereon. Angell on highways, s. 305 et seq.; Perley v. Chandle, 6 Mass. 454; Chamberlain v. Enfield, 43 N. H 356; Garrett v. Anderson, 21 Vt. 342; Clark v. Crinth, 41 Vt. 449; Goodlittle v. Alker, 1 Burr 133; Stack- pole v. Healy, 16 Mass, 33; Woodruff v. Nealy, 28 Vt. 165; Yates v. Joice, 11 Johns 136; Cole v. Drew, 44 Vt. 49. TRESPASS. 123 . in an office of a broker, kept possession of the office for more than five hours of daylight and then, after demanding and be- ing refused the key, obtained one from a locksmith for the purpose of continuing his possession. The broker caused an- other lock to be put-on the door, and after giving the officer notice to remove the goods immediately, and on his refusal to do so, locked him in for the night. In an action for an assault and false imprisonment, the court held that the plaintiff’s de- lay in removing the goods for such an unreasonable length of time, that he abused his authority and became a trespasser from the beginning, and that he could not recover.’ 153. The Intention Make the Wrong. If a party enters upon a piece of land in good faith, under the belief that he has a . title thereto, he is not a trespasser, eee the title be in fact in another.’ 154. Case Where Individuals are Injured and Have no Remedy, There are many cases in which individuals sustain an injury for which the law gives no action, for instance pulling down a house or raising bulworks for the preservation and defense of the government, or to remove a building to prevent the spread of fire, etc. The maxim of the law is that private mischief is to be endured rather than public inconvenience. But the right to destroy private property for the public good is only permitted in case where there is reasonable grounds to believe it to be necessary.* ‘ 155. The Damages. The plaintiff, as a general rule, in an action for trespass, may recover all the damages that necessarily 2 Williams v. Powell, 101 Mags. 467. 3 Am. R. 396, 3 Miss. & Tenn. R. Co. v. Deaneny, 42 Miss. 555. 4 Connell v. Emric et al., 2 Ind. 35; Kent’s com. 2 vol. 238. 124 LAW OF DAMAGES. result from the trespass; that “every person who does a wrong is at least responsible for all the mischievous consequences that may reasonably be expected to result under ordinary cir- cumstances from such misconduct.” “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 result from his conduct.”* Indeed, it may be laid down as a general rule that a tortfeasor is responsible for every injury which is the natural and probable consequence of his misconduct. He is not only liable for injuries directly or immediately following from his wrongful act, but also for such consequential injuries as, according to the common ex- perience of men, are likely to result from his unauthorized act And he will not be exonerated from liability by the fact that intervening events or agencies contributed to the injury. The court or jury trying the cause should inquire whether the in- jury was such, according to common experience, and the usual course of events might reasonably be anticipated.’ 156. Damages for Injury to Animals. In all cases of trespass the law measures the damages by the injury received, and in some cases where great aggravation is shown exemplary dam- ages may be allowed. And where an action is brought for in- jury to animals, not resulting in their destruction, the measure of damages will be the difference in the value of the property with the injury and its value before the injury, and all neces- sary medical expense, including careful attention and the value of the use of the property while disabled and unfit for use. ® Per Pollock C. B. in Rigby v. Hunt, 5 Exch. 243. ® Vanderburgh v. Lenox, 4 Denio 464. ' Derry v. Fletnir, 118 Mass. 131. *1C. RB. R. Co. v. Finegan, 21 Ill. 648; Hass vy. Borders, 1 Gil. 46; TRESPASS. 125 157. Damages Where Property is Taken and not Returned. In an action to recover damages for the unlawful taking of per- sonal property where it has not been found or returned, the owner may recover for loss of time necessarily and reasonably expended in searching for the property, as well as the “ex- pense thereby in addition to the value of the property and in- terest on the same.” 158. Damages Arising from Striking Plaintif?s Horse. In an action for damages accruing to the plaintiff from the de- fendant’s wrongfully striking the plaintiff's horse attached toa sleigh, and causing them torun so as to throw off the load of wood then upon the sleigh, the court held, in determining the plaintiff's actual damage, it was proper to consider as elements thereof the labor and trouble of reloading the wood, the delay in getting to market or place of destination, the time and ex- pense lost and incurred in making repairs to the harness and sleigh, and the injury done to the horses by causing them to run away, though they were not physically injured thereby— such acts of running away having a tendency to create a vicious habit.? i 159. Injury to Water Privileges. The Supreme Court of the State of Illinois in a case where the plaintiff brought suit to 1 Street v. Eoumier, 34 Mo. 469; Edwards v. Beebe, 48 Barber 106, Mc- Laughlan v. Bangor, 58 Me. 398; Watson v. Lisborn, Bridge 14 Maine 201; Gillett v. West. R. Co., 8 Allen 50, 102 Mass. 80, 17 Ala. 391; United States v, Morgan, 3 McClane 171; Mitchell v. Bellezeber, 17 Ala. 391. Where one sued for the interruption of the use of the mill, the court held that the plaintiff could recover all the damages resulting from the trespass. 8 Pick 356. 3 . 4 Oleson v. Brown, 41 Wis. 413. The measure of damages in an action against a sheriff for a wrongful seizure and sale of the plaintiff's goods on an execution against a third person, in case where the plaintiff has bought back the goods from a third person who purchased them at sheriff’s sale, is the sum paid to regain them, not exceeding, however, the market value.and in addition any special damages alleged and proved, Sprague v. Brown, 40 Wis. 612. 126 LAW OF DAMAGES. recover damages for an injury to the water in his well, etc., in commenting on the question of damages, says: “On the trial below appellant offered to prove how much it would cost to obtain a supply of good water by purchasing the rights from the Water Works Company, or by the construction of a cistern. The court refused to permit the introduction of the evidence, and that decision is assigned as one of the errors in this record. If the erection of the gas works produced injury to the appellee’s well and poluted the water, he has the undoubted right to recover a sum sufficient to cover any loss he has there- by sustained. The company has the right to so use their franchise as to produce no injury to the rights of others. When they obtained their charter there was no implied duty imposed that they should not in its exercise deprive or even incommode in the exercise of their rights without, becoming liable to respond in damages. In ascertaining. the true measure of such damages, all the circumstances connected with the injury are proper to be considered by the jury. In this case it may be a fair measure of damages to ascertain the costs of furnishing a sufficient quantity of water equally pure with that which supplied the plaintiff below from his well before its injury by the gas works. When the cost is ascertained and the costs of keeping the conductor and other machinery in re- pair, the allowance of such a sum as would produce an annual interest sufficient to furnish the water from the company and make the repairs would be a fair measure of damages. But if the supply when thus obtained was inferior in salubrity or taste, that should also be taken into account. So, ifthere was danger that it would not be permanent or of an inferior quality, would be of less value than if supplied with an abundance of water of a good quality, if the resort to a cistern as the only means of replacing the proper supply of water, then the quality should be taken into consideration, and if inferior in quality that fact should have itsdue weight. Andother means of arriving at the damages would be to ascertain the depriva- TRESPASS. 127 tion of the value of the property by the erection of the gas works.” ‘ 160. In Case of Injury to Water Rights Actual Damages may be Recovered. In case of an injury to water rights or from water, the measure of damages is the same as that allowed for injury to the soil. And it may be laid down as a general rule that whereby the wrongfully act of the defendant the land of the plaintiff has been injured-by overflow, or his rights and privi- leges in a stream of water have been abridged or destroyed, he may recover damages where the injury is less than the total destruction of his right, but if the injury is of a permanent character the damages will be the difference between the value of his property or right before the injury and immediately afterward.?, But when the injury is but slight, the rule is dif- ferent in cases of this kind. The plaintiff must use reasonable care and diligence to protect himself from injury, and he can recover only such damages as he could not avoid by the exer- cise of the required care and skill and the use of reasonable means and expenses and value of the time spent for such pur- poses.* 161. Where the Defendant Damaged the Plaintiff's Sluceway, the Measure of Damages. In one case where the defendant had destroyed the sluceway to the plaintiff’s mill, the court held that the plaintiff could recover the damages to the sluceway and the value of the use of the mill during the period he was thus deprived of the use of it or its rental value. “But in this s 3 Ottowa Gas Light Company v. Graham, 28 Ill 73. 2 Field on damages, 597; Schuylkill Nav. Co. v. Forr, 4 Walls 362; Un- derwood v. N. W Scythe, Fort 38 Me. 75; Bryan v. Gidden, 36 Me. 36; Lawrence v. G. N. W. RB. Co., 16 Q. B. 643. 3 Potter v. Long, 58 Barber 278. 128 LAW OF DAMAGES. case, as in all others of a similar character, the court held that the plaintiff could not recover for injuries or such losses,.as he might have avoided by reasonable care and diligence in the use of the means in his power.‘ 162. Damages for Removing a Dam. Where the defendant wrongfully pulled the plaintiff's mill dam down and thereby prevented the flow of water to his mill wheel, and by reason thereof his mill stood idle for several months, the court held that the plaintiff could recover an amount sufficient to repair the injury to the dam and the demunition of the plaintiff's profits on account of the mill standing idle.® 168. The Use of the Land may be Recovered. The owner of land may recover the value of the use of the land from a dis- ewor for the time he has been kept out of possession. But he cannot recover the crop grown by the diseizor while he was out of possession.® 164. Damages for Cutting Timber. The law is pretty well settled that when one cuts timber on another’s land and man- ufactures it into spokes or staves or cuts it into fire wood, the in- jured party in an action for damages may recover the value of timber, spokes, staves or wood at the time they were cut, shaped or became chattles.® ‘Hammond y. Reese, 16 Me; 171; Fralton v. McGally, Peak N. P. 205; Haskins v. Phillips, 3 Ex. 168; Luken y. Godrell, Peak C. 15; Field on- dam., 592. ° 5 White v. Marly, 8 Peck 356. * Berry v. Fletcher, 1 Dill (C. C. R.) 67; 2 Stark on evid., 807; 2 Hill on Torts, 464. * Bement v. Thompson, 13 Ind. (N. C.) 146; Field, on damages, 593; Moody v. Whitney, 38 Me. 174; Smith vy. Gonder, 22 Geo. 353; Cushen v. Longfellow, 26 Me. 306; Morton v. Porter, 5 Mass. and W. 361. TRESPASS. 129 But in case where an action is brought for cutting down. and destroying shade, ornamental or fruit trees, the plaintiff can recover the value of the trees for the purpose for which they were used.” But in this, as in most other wrongful acts, the law looks at the intention of the party, and where the cut- ting of the timber was by mistake the measure of damages will be only the actual loss sustained.! 165. For Cutting and Removing Soil the Measure of Damages is the Actual Injury Sustained. In an action for cutting and remov- ing soil, the plaintiff should be allowed such damages as will fully compensate him for the injury and loss he has sustained, provided no aggravated circumstances are shown. In some cases the damages have been estimated by considering the ex- pense of restoring the soil. But where the injury is great and the expense of restoring the soil would exceed the value of the land at the time or just before the injury, then this manner of estimating cannot be resorted to, and the plaintiff will be allowed as damages the difference between the value of the -land just before and its value after the injury? And where the premises are rendered worthless, then the value of the land before the injury may be recovered. And in no case can the plaintiff recover an amount in excess of the value of the land or property injured, except in those States where exemplary damages are allowed. 7 Whitebeck v. N. Y. C. N. R. Co., 3 Bar. 644. 1 Zahla et al. Mining Co. v. Isley, 40 Geo. 479; Perkins v. Hockelman 26 Miss. 41. 2 Jones v. Gooday, 8 M. and W. 146; Muller v. St. Louis R Co., 31 Mo. 262; Stock B. Iron Co. y. Conn. Iron Co., 102 Mass. 80; Field on dam., 592; White v. Mosely, 8 Pick 356; Seeley v. Alden, 61 Pa. st 302; Mc- Knight v. Roctriff, 8 Wright 168; Douty v. Bird, 10 P. F. Smith, 48; Fasyth v. Palmer, 2 Harris 98; Hart v. Evans, 8 Barr 22; Walker v. Smith, 1 Wash. C. C. R. 1,544, Dallas 206. 130 LAW OF DAMAGES. 166. Consequential Damages. In one case where the plain- tiff was the owner of a cotton mill propelled by a stream of water, the defendant prevented him from using his mill by erecting a dam across the.creek just below the plaintiffs mill that interfered with the operation of the cotton mill by back- ing the water upon the plaintiff’s mill wheel and decreased the capacity of the plaintiff’s mill to his damage. The court, on the trial of the cause after reviewing the authorities, held that wherever a loss of profit is the natural and necessary re- sult of the act charged such as the party probably would have made—not what by chance he might have made, but what any prudent:man must naturally have made—evidence has been most usually admitted as to them.* 167. Division of Damages. The question as to the division of damages from an injury to real property arises occasionally in cases where a tenant sues for an injury to the leasehold property. But the question can be solved without much diffi- culty by inquiring into rights of the parties. The tenant has no interest in the freehold, except a temporary use and occupa- tion. The landlord is the owner in fee of the land, and hence whatever is calculated to produce a permanent injury to his premises affects his interest. The tenant while in possession may recover damages for an injury to his temporary use and occupation, and the landlord for injuries that permanently affect his land.” Where a tenant leased a certain-building and premises in Baltimore, which was used as a bowling alley, and agreed to keep the same in good repair, the adjoining owner being lessor made an excavation and demolition on his property in such a negligent and careless manner that the plaintiff's bowling alley was about to fall. The defendant, see- ing the injury that was likely to occur, obtained permission ? Simmons v. Brown, 5 R. I. 299; White y, Mosley, 8 Pick 356, TRESPASS. 181 from the plaintiff to enter the premises and secure the wall and make other repairs, with the proviso that the work should be done 1n a skillful and substantial manner. The defendant pursuant to said agreement entered the premises and com- menced the work. He soon after completed the same. In making the repairs he faile to use proper material and that skill and care that he should have done. For these reasons the whole wall soon after fell down and caused to fall a large part of the bowling alley building. The plaintiff brought suit for damages and alleged that by reason of the acts and negli- gence of the defendant his entire business was broken up and destroyed, and his customers and patronage prevented and the use and occupation of the messuage and building made im- passible.” The court held that the measure of damages was the loss sustained by the plaintiff in consequence of the negli- gence and unskillfulness of discharge by the defendant of a commission he had undertaken to perform.’ 168. The Tenants’ Damages. The law seems to be pretty well settled that ordinarily a tenant can only recover damages for the actual injury received, ‘and that the maximum limit of his recovery would be the value of his lease. But to this rule there are some exceptions that we will notice. When it ap- pears “by the terms of his lease that he is bound to restore the premises in as good condition” as they were where he took possession, damages may exceed the value of the lease. In such case he could recover damages sufficient to enable him to put the premises in as good condition as they were at the com- mencement of his lease, provided it does not exceed the value of the premises.‘ “Inan action by atenant against reversioner for trespass it has been held that the plaintiff should recover ? Gilbert v. Kennedy, 22 Mich. 117; Seely v. Alden, 61 Pa. st. 302. § McHenry v. Marr,'39 Md. 510; McGuin v. Grant, 1 Dutch N. J. 356. Walter v. Post, 4 Abb. Pr. 382, 8. C.6 Duer. 363; Field on L. Dam. 595, 132 LAW OF DAMAGES. his actual loss sustained, but if the action is against a strariger and wrong-doer the tenant is entitled to recover the full amount of injury to the ee he being treated as the owner.” 169. Damages in Cases of Injury to Mines. Where a de- fendant in working his coal mines broke through the barrier and worked the coal under the land of the plaintiff and raised it for the purpose of sale. Held, in an action for damages, that the plaintiff could recover the value of the coal when it was gotten out without deducting the expense of getting it out.’ But when there is no wrongful purpose or wrongful negligence in the defendant, compensation for the real injury done is the purpose of all remedies, and if courts will constantly keep this rule in view they will have but little difficulty in managing the forms of actions so as to secure a fair result. And if a de- fendant has dug and taken from the plaintiff's mines coal through mistake, and was in no way guilty of an intentional wrong, then the measure of damages should be the value of the coal in the mines and the damage to the land his mining may have caused.’ As has already been said that in all cases of willful trespass the plaintiff is entitled to recover full com- pensation for all injuries resulting from the wrongful act. * Field on the law of damages, p. 395. The Supreme Court of New York held where the action was for the loss of a life estate that the damages should be estimated by a calculaiton of the length of time the plaintiff would probably live, then take the annual rental value of the land, deducting taxes. » Martin v. Porter, 5 Mees. and W. 351; Sedgwick’s leading cases on the measure of damages, 677; Parton Coal Co. v. Cox et al., 39 Md. 1. Heard v. James, 49 Miss. 236; Field on law of dam., 601; South Branch Dock Co. v. Dunlap, 32 Ill. 207; Martin v. Powell, 32 B. 278. * Fayth v. Wells, 41 Penn. st. 291; May v. Tappan, 23 Cal. 306; Cham- berlain v. Collison, 45 Iowa 429; Stockbridge Iron Co. v. Stove Iron Works, 102; Mass. 80. TRESPASS. 133 Therefore, if it be made to appear in an action of trespass for breaking and entering the plaintiff’s coal land and making ex- cavations there-under and removed the coal from its original bed and thereby injures the remaining coal left as pillars, or by bad mining or otherwise renders it difficult or impossible for the plaintiff to get out or remove such pillars or remaining coal, or render the mines of less value to him, he is entitled to recover the price of the coal removed, and in addition all dam- ages to the mines resulting from the acts and conduct of the defendant.* 4 Sedgwick leading cases on damages, note p. 684. CHAPTER IX. MALICIOUS PROSECUTION. Matictious PROSECUTION DEFINED. PropasLE Cause Dr- FINED. THE DEFENDANT WILL BE RESPONSIBLE IF HE HAD NO EVIDENCE OF THE PLAINTIFF’S GUILf WHEN HE COM- MENCED THE PROSECUTION. EVIDENCE THAT WILL SHOW A WANT OF PROBABLE CAUSE. MALICE AND WANT OF PROBA- BLE CAUSE MUST CONCUR. WHAT THE PLAINTIFF MUST PROVE. A FULL DEFENCE. ELEMENTS OF DAMAGES. Dam- AGES. MITIGATING CIRCUMSTANCES. THE PROVINCE OF THE JURY. 170. Malicious Prosecution Defined. The law is well settled that when one maliciously and without probable cause prose- cutes another in a civil or criminal action, and the prosecution is at end and the party has been damaged thereby, he may maintain an action against the wrong-doer for the recovery of his damages." 12 Greenleaf on evid., 8. 449; Reed v. Taylor, 1 Taunt 616; Wood v. Buckly, 4 co. 14; Price v. Thompson, 6 Pickering 193; Star vy. Crocker, 24 Pickering 2; 2 Greenleaf on evid., Sect. 449; 1 Hill on Torts, 412. MALICIOUS PROSECUTION. 135 171. Probable Cause Defined. Probable cause may be de- fined to be “that apparent state of facts found to exist upon reasonable inquiry, that is such inquiry as the given case ren- ders convenient and proper, which would induce a reasonable, intelligent and prudent man to believe the accused person had committed in criminal cases the crime charged, and in civil cases that a cause of action existed against him.’ 172. Probable Cause to be Determined by the Court. “The pre- vailing law of reasonable and probable cause is that the jury are to ascertain certain facts and the judge is to decide whether these facts amount to such cause. But among the facts to be ascertained is the knowledge of the defendant of the existence of those which tend to show reasonable and probable cause, be- cause without knowing of them he could not act upon them, and also the defendant’s belief that the facts amounted to the offense which he charged, because otherwise he will have made them the pretext for prosecution. In other words reasonable and probable cause must appear not only to be deducable in point of law from facts, but to have existed in the defendant’s mind at the time of the proceeding, and, perhaps, whether they did so or not is rather an independent fact for the jury to be decided on in their view of all the particulars of the defen- 3 Richter v. Koster, 45 Ind. 440; Lacy v. Mitchell, 23 Ind. 67, Hays ~ Blizzard, 30 Ind. 437; Lawrence v. Laming, 4 Ind. 194. The mere belief that a person has been guilty of a crime is not suffi- cient to authorize a criminal prosecution against him. Hays v. Blizzard, supra. But where the facts known to the prosecutor or information re- ceived by him from sources entitled to credit are such as to justify the belief in the mind of a person of reasonable intelligence and caution that the accused is guilty of the crime charged and the prosecution is in- duced thereby, such a state of facts constitutes probable cause, though it may subsequently appear that he was not guilty. 136 LAW OF DAMAGES. dant’s conduct than for a judge to whom the legal effect of the facts only is more properly referred.’” 173. Sf the Plaintiff was Guilty, but it was not Known to the Defendant at the Time he Commenced the Prosecution, it will Avail Him Nothing. The gist of this action is malice or bad intentions, and if the defendant at the time he commenced the prosecu- tion of his suit against the plaintiff had not sufficient evidence to establish a probable cause he will be responsible, notwith- standing the fact that the plaintiff was guilty of the charge preferred. The facts constituting the probable cause must be known to the defendant at the time he commenced the prose- cution.© And it is now well settled that a mere belief that a person has been guilty of a crime is not sufficient to authorize a criminal prosecution.® But where the facts known to the prosecutor or the information received by him from sources en- titled to credit are such as to justify the belief in the mind of a person of reasonable intelligence and caution that the accused is guilty of the crime charged and that the prosecution is in- duced thereby, such state of facts constitute probable cause though it may subsequently appear that the accused is inno- cent.’ * Turner v. Amble, 10 Queen’s Bench 2525, see also Delegal vy. Higby, 3 Bing. N. C. 950; Galloway v. Stewart, 49 Ind. 156. * Galloway v. Stewart, 49 Ind. 156; Lacy v Mitchell, 23 Ind. 67. ° Lawrence y. Lanning, 4 Ind. 194; Stone v. Stevens, 12 Conn. 219; Delegal v. Higby, 3 Bing N. C. 950; Seibert v. Price, 5 Watts and Seg. 438; Fosha v. Ferguson, 2 Denio 617. Facts not known to the defendant at the time he proeured the plain- tiff’s arrest are not competent to show pr esence or absence of probable cause Cecil v. Clark, 17 Md. 508. " Hays v. Blizzard, 30 Ind. 457; Bacon v. Towne, 4+ Cush. 238; Addison on Torts, 613; Lacy v. Mitchell, 23 Ind. 67. Mere general reputation will not alone constitute probable cause. For a prudent man in instituting an important criminal prosecution would ordinarily look farther and inquire for testimony. Barron y. Mason, 31 Vi. 189. MALICIOUS PROSECUTION. 137 174. What will Show a Want of Probable Cause. The author- ities all concur in saying that the plaintiff in order to make out his case must prove malice and a want of probable cause, and if he can establish the fact that the defendant at the time he commenced his prosecution against him was not in the pos- session of such facts and circumstances as would lead a careful and conscientious man to believe that the plaintiff was guilty, or that there was a cause of action existing against him, he will have succeeded in establishing a want of probable cause.’ 175. What the Plaintiff Must Prove. Perhaps no point, of law is better settled by the authorities than that in every case of malicious prosecution the plaintiff in order to maintain his action must prove that the prosecution was malicious and without probable cause; and he must show that both of these concurred. If the defendant instituted the prosecution maliciously and it was unfounded, but there was probable cause or such evidence as would have led a reasonable, intelli- gent and prudent man to believe that the plaintiff was guilty as charged, or that the defendant had a cause of action against him, there can be no recovery.’ - 176. There can be no Recovery Where There isa Want of Malice. And the authorities all agree that where there does not exist a reasonable or probable cause for the prosecution that the pe- 1 Mitchell v. Jenkins, 7 B. and Ad. 588-594; Johnston y. Sutton, 1T. R. 510. Probable cause such a suspicion as would induce a reasonable man to commence a prosecution, Ulner v. Leland, 1 Greenl 135, or a reason- able ground of suspicion, supported by circumstances sufficient to’war- rant a cautious man that the party is guilty of the offense. Calbaness v. Martin, 3 Duer. 454. 2 Farmer v- Darling, 4 Burr 1971; Stone v. Crocker, 24 Pick. 81-83; Bell y. Graham, 1 Natt. and M. C. 278; Hall v. Suydam, 6; Barber S. C. 83; Richy v. Davis, 11 lowa 124; Kirkpatrick v. Kirkpatrick, 39 Pa. st. 288; Arbuckle v. Taylor, 3 Dawl. 160; Turner y. Turner, Gam. 202; Greenlea on evid., Sect. 453. 188 LAW oF DAMAGiis. fendant will not be responsible in damages where there is a want of malice. But malice may be.inferred or proved by cir- cumstances. Ina legal sense any unlawful act done inten- tionally, willfully or purposely to the injury of another, is as against that person malicious.’ ‘S 177. The Fact that the Defendant had been Guilty of Other Simi- lar Offense or that He was Reputed Guilty will not Establish a want of Probable Cause of Malice. In the case of Barron v. Mason the court, in commenting on the question of malice and probable cause, said: “If it be admitted by the testimony that the plaintiff has been guilty of other similar offenses, or that he was reputed guilty, and that this had come to the knowledge of the defendant before he instituted proceedings, the prosecu- tion has no legal tendency to show either probable cause or want of malice in ordinary cases, such aslarceny. It must also be admitted, we think, that in that class of offenses where the gist of the crime consists of the bad purpose which an act otherwise innocent is done, this kind of testimony is admissi- ble even upon the question of actual guilt, and much more upon that of probable cause, for probable cause is not to be con- founded with actual guilt. Probable cause is only such a state of facts and circumstances as would lead a careful and con- scientious man to believe that the plaintiff was guilty. This case only requires that the defendant, upon prudent and care- 5’ Commonwealth v. Snelling, 15 Pick. 321-330; Stokely v. Harding, 8 C. and P. 11; Mitchell v. Jenkins, 7 B. and Ad. 588-589. Where the malicious prosecution of the plaintiff by the defendant was on the charge of maliciously breaking down and leaving open a fence between the land of the plaintiff and of the defendant, the dividing line between which had been settled by arbitration in an action to recover damages for such malicious prosecution, evidence of prior wrongful re- moval of the fence before the submission of arbitration cannot be shown by the defendant to prove a probable cause for the prosecution. Tillot- son v. Warner, 3 Gray 574. MALiciovUs PROSECUTION. 139 ful inquiry, shall find the reputed or declared existence of such facts as indicate guilt with reasonable certainty. Mere general reputation will not alone constitute probable cause, for a pru- dent man in instituting an important criminal prosecution would ordinarily look further and inquire for testimony. But this he might fairly believed existed short of being told so by the witnesses themselves. It is notoften the case, perhaps, that a public prosecuting officer before making complaint have an opportunity to converse personally with the witnesses, but they should know something more than a mere vague general re- port of guilt. They should have information with such dis- tinctness and certainty as to gain credit with prudent men of the existence and susceptibility of proof of such facts as to show guilt, or which the defendant upon proper advice sup- posed would constitute ‘guilt. This is the fair result of the de- cided cases of common experience upon the subject. Now in the class of cases referred to where the guilt or innocence of the act depends upon motives, the conduct and declarations of the party as to other similar transactions about the same time are always admissible to prove actual guilt. As for instance, the case of passing or having in possession with intent to pass counterfeit coin or bills, it is familiar that the prosecutor may give in evidence other similar oftenses committed by the ac- cused about the same time for the purpose of showing nis in- tent in the particular transaction. So also in case of embez- zlement and some other similar offenses, and the rule would, no doubt, extend to the proof of the very fact which the court in this case told the jury had no other effect but to mitigate damages. * * * We should infer that the court below did not regard the question of malice as directly and independently involved in the case. From what of the charge is given in the question of malice seems to have been treated as a mere inference from the proof of the want of probable cause, and so it is prima facie, but nevertheless it may be disproved by a great variety of proof of a much lower grade than that which 140 LAW of DAMAGKS. is requisite to show probable cause. For this purpose common repute not only as to general bad character, but also as to the particular offense, may, we incline to think, be shown, for this latter is nothing less than the declaration of third parties that the plaintiff was guilty of the particular offense which is declared admissible. * * * It is undeniable that the gen- eral belief of one’s guilt in regard to particular offenses will in- fluence to a certain extent the conduct of the most prudent prosecutor in regard to instituting proceedings. How then can it be said that it has no legitimate bearing upon the ques- tion of malice? We think that it is impossible to so hold without violating the most obvious principle of human ex- perience and human conduct.t * * * And general bad reputation is often a direct element in proof of respondent’s guilt where he offers proof of good character in exculpation. This testimony was admitted to go the jury upon the question of damages. But its chief, if not its only legitimate, bearing upon the question must have. depended upon its tendency to rebut the inference of malice, and so far as it had any such tendency it was for that very reason competent evidence upon the main issue in the case. It is said, indeed, that good faith merely is not enough to protect the party from liability for malicious prosecution in regard toacriminalcharge.® * * * For it is found in almost every book upon the subject that if the defendant, however, causelessly did really act in good faith and without malice in preferring charges, he cannot be made liable for malicious prosecution. The question of malice is al- ways one of intent and open to the jury in this class of cases, but it’is not so in an action of slander. The law then implies malice and will not allow it to be rebutted by general evi- dence, but only by specific proof which the law declares a jus- tification or excuse as the truth of the words, or that they were *1 Phil. evid., 115; Rodgwize v. Tadmire, 2 Esp. cases 720, ® Hall v. Suydam, 6 Barber 83, MALICIOUS PROSECUTION. 141 spoken confidentially and upon a justifiable occasion., So to in regard to probable cause, the fact being admitted or proved without controversy it becomes a mere question of law to be determined by the court, and for this purpose the same proof is required in all cases. It is not enough to show that the cases appeared sufficient to this particular, but it must be suf ficient to induce a sober, sensible and discreet person to act upon it or it must fail as a justification for the proceeding upon general grounds. But upon the question of malice the law is more tender towards the inexperienced or the infirmi- ties or the idiosyncrasies of the parties, and whatever fairly tends to show that he acted with good faith and without malice must be received. There is no necessary or even natural connection between probable cause and want of malice. One may and often does act with malice when there is a proba- ble cause, or may act without malice where there is no propa- ble cause shown, but in neither of these cases is he liable to this action. Want of probable cause and malice must concur to make the party liable.® It is true the want of probable cause need not be shown to extend to all the particulars charged, nor is any defense that there was probable cause for a’ part of the prosecution.’ * %* > But the importance of the question in this case will justify a more extended‘examination | of the case upon the subject and a more minute discussion of the principles involved! * * * And it seems to be ad- § Turner v. Ambler, 10 Q. B 252. " Ellis v. Abraham, 8 Q. B. 709; Reed v. Taylor, 4 Taunt, 615. . }! The history of the common law in regard to this action is well stated in the elaborate note of Messrs. Hare and Wallace to Munns v. Dupont, 2 Was. C. C. 31-34; 1 Am. leading cases, 200. The law is defined in Far- mer v. Dowling, 4 Barrows 1971-1974, where all the judges agree that to maintain an action malice (either expressed or implied) and want of - probable cause must concur. The case of Johnson v. Sutton, 1 Tenn. 510, S. C.1 Tenn 493, 1 Browns P. C. 76, is also a most important and satisfactory case, maintaining the general view above stated. 142 LAW OF DAMAGES. mitted in all the cases where the question has arisen that the proof of a want of probable cause is not sufficient alone to maintain the action, provided the defendant can satisfy the jury that in his conduct he acted in good faith and without malice, which is much the same thing as applied to this sub- ject. For although the word malice in popular language is often used to indicate anger or vindictiveness, in law it is held to impart nothing more than bad faith, and applied to the subject of malicious prosecution the want of sincere belief of the plaintiffs guilt of the crime for which the prosecution was instituted. The difterence then between the proof of probable cause and of malice consists chiefly in this that pro- bable cause has reference to the common standard of human jadgment of the defendant in particular acts charged as a malicious prosecution. If the defendant-can show that he had probable cause for his conduct, that is from such information as would induce a reasonable and prudent person to believe the plaintiff guilty ofa crime, he instituted the prosecution, he is not liable, whatever may have been his own personal malice for setting it on foot. Probable cause in this sense is a defense to the action without regard tomotives. To this point he must show that he was told or knew of the existence of specific facts which either would constitute crime, or which, upon competent advice he supposed would constitute crime. * * * Butifa party fail to show such ground of action as would have induced a prudent and careful man to have be- lieved in the plaintiff’s guilt and to have instituted the prose- cution, he may, neverthelss, if he chooses, claim that in fact he did act upon what he at the time regarded as good cause, either from common report, or remote circumstances such as excited ° suspicion in his mind to the extent of creating belief of guilt, although short of probable cause. If this were not so, the want of probable cause and malice would be equivalent terms * French v. Smith, 4 Vt. 363. MALICIOUS PROSECUTYON. 143 which the case shows they are not. The only distinction which can be supposed to exist in regard to them is that one is general and the other is particular—one has reference to the common standard and the other to the mind and motive of the defendant. But how can the mind be reached without receiv- ing proof of every fact which exists, and which may be pre- sumed to have influenced the conduct of the defendant. If the subject res integra, I should certainly regard the common repute both of the plaintifi’s general bad character and of his being guilty of the particular offense good evidence of probable cause. Upon principle it should so be held. But in regard to common report of guilt of the particular offense, we are not prepared to say that the decision justifies us in regarding it as evidence of probable cause. General reputation of guilt in re- gard to the particular offense may not be sufficient ground in itself for instituting proceedings against one in regard to a critainal offense, but in doubtful cases where the testimony is conflicting, and especially it is expected to be drawn from those in confidence or under the influence of the party accused, and where consequently there is a difficulty of learning the full extent of the testimony which can be obtained, until the witness are put upon giving testimony and where, of course, a preliminary inquiry is often justified, partly upon suspicion as an experiment, it is no doubt undeniable that the general belief in the guilt of the accused in regard to the particular offense will influence almost any one in deciding upon the propriety of instituting the prosecution. It ig, therefore, upon principles I think admissible as a part of the ground consti- tuting probable cause, and is, as we have before said, in point of character equivalent to hearsay or the declaration of a third person in regard to the guilt of the plaintiff which seems to be admitted everywhere in this class of cases. * * * But, notwithstanding the satisfactory basis upon which the propo- § French v. Smith, supra. 144 LAW OF DAMAGES. sition seems to rest that this evidence of common reputation in regard to the particular offense is upon general principles admissible, among other things, to show probable cause even and especially to rebut the inference of malice in the defen- dant, the decisions do not show that such proof has been re- ceived or offered. This may have resulted from two reasons. That the same kind of evidence is! attainable by showing a general bad reputation of the plaintiff at the time of the pros- ecution, and also that we do not always distinguish between the class of proof which is admissible in this action, when the issue is in regard to the suspicion of guilt and probable cause, to believe one guilty and proof of the very fact of guilt. The general rule undoubtedly is that general reputation of guilt in regard to a particular offense is not admissable to prove the fact of guilt and never, unless it be upon the question of dam- ages, in regard to reputation in ordinary actions. Hence, it is natural to throw this cause of action for malicious prosecution into the general class. These two grounds may account for this kind of proof not having been offered. Prudent counsel do not often desire to offer testimony in one form when its ad- missability is questionable, ifthere is a safe ground upon which it is clearly admissable. It may not, therefore, be improper to decide this point. But ifit were necessary, we must certainly make the proof admissable. This brings us to the question of the admissability of evidence of the general reputation of the plaintiff at the time of the instituting of the prosecution in regard to whether he would be easily induced into the commis- sion of a similar offense, for this is the view in which charac- _ter has any proper bearing in regard to crime, if the offense is one of outrage and violence, whether the accused is com- monly reputed a peaceable, quite and orderly behaved citizen or a noisy and boisterous one. And if on the other hand the offense is one involving fraud, collusion, dishonesty and a secret practice, whether the man is of a fair, frank, honest and out-spoken character, or the contrary, some of the case go to MALICIOUS PROSECUTION. 145 exclude all evidence of this kind‘ * * * But it seems to us there can be no doubt to this extent., It is admissable upon the strictest principles for the purpose of showing probable cause. It is precisely that kind of proof which the accused might show in his own defense, and its absence must weigh, more or less, against him in regard to the very offense for which the prosecution was instituted. To say then that the prosecutor, in calculating the reasonable and probable ground of instituting a prosecution for crime, is not to take into ac- count one of the very elements of defense, and in one event of prosecution also, is simply absurd. It is a proposition ad- mitting of no question whatever, and which never could have been made a question had its proper application to the subject in view just alluded to been fully appreciated.”® 178. Malice and a Want of Probable Cause Must be Shown. While the authorities seem to be somewhat confused in regard to the necessity of the plaintiff proving malice and want of probable cause, we think that it may be laid down as a general rule that the plaintiff cannot recover unless he proves that the prosecution was instituted maliciously and without proba- ble cause.® * Newsam v. Carr, 2 Stark cases 69. 5 31 Vt. 189; see Bacon v. Towne, 4 Cush. 217; Rodsiquez v. Tadmire, Esp. 721; Wood v. U. S. 6 Peter 342-366; 2 Greenleaf evid , 8. 458; Wil- liams v. Taylor, 6 Bing. 183; Mitchell v. Jenks, 5 B. and Ad. 588, Mit- chell vy. Williams, 11 M. and W. 205. ‘The text writers lay it down as a settled practice upon this point that the question of malice in the defen- dant’s mind in doing the act isa distinct issue in the action, and what- ever tends to prove or disprove it is competent to be rescinded.” 2 Greenleaf on evid., Sect. 453. § Arnmerman v. Crosley, 26 Ind. 451; Newell v. Downs, 8 Blackf. 523; Wilkinson v. Arnold, 11 Ind. 45; Seeger v. Pfifer, 35 Ind.13; 1 Hill on Torts, 217, S. 22; 2 Greenleaf on evid., 8. 453; Farmer v. Darling, 4 Burr 1971; Stone v. Crocker, 24 Pick. 81-83. 146 LAW OF DAMAGES. 179. Distinction between Malicious Prosecution and False Im- prisonment. Courts and law writers have some times been much puzzled in drawing the line of distinction between malicious prosecution and false imprisonment, but it has finally been established, and the distinction between malicious prosecution and false imprisonment is now pretty well settled. “When the arrest is upon valid process issued by a court hav- ing jurisdiction, trespass for false imprisonment will not lie, though such arrest is maliciously procured by the prosecutor without probable cause.6 False imprisonment, more especially in civil action, is some times termed in legal language malicious arrests, and an action for this precised form of in- jury: requires substantially the same allegation and proof of malice and want of probable cause as the action for malicious prosecution.”” 180. What the Plaintiff Must Prove in Order to Sustain His Case. The plaintiff must, in order to maintain his action, show: 1. That he has been prosecuted by the defendant either criminally or ina civil action, and the prosecution is at an end.’ If he can show by the record or a duly certified copy thereof that there was a finding and judgment for him in a civil suit, this will be sufficient, or if he can show that there was arule “to discontinue on payment of costs and that the costs were taxed and paid, without proof of a judgment or pro- ® Bell v. Graham, 1 Nott and M. Mc. 278; Hail vs. Suydam, 6 Barber 8. 8. R. 83; McLaine v. Bank. of Cumberland, 9 L. R. 82. "1 Hill on Torts, 217 S. 22;8Stancliff v. Palmer, 18 Ind. 321; 1 Common- wealth v. Snelling, 15 Pick. 321-330; Stokely v. Harding, 8 C. and P. 11; Mitchell v Jenks, 7 B. and Ad. 588-594, 2 Greenleaf on evid., S. 1532; Barnes v: Cress, 2559 Met R. 93, Burrill’s law dict. 1 2 Greenleaf evid., S. 449; Reed v. Taylor, 4 Taunt 516; Wood v. Buck- ly, 4 co. 14; Pierce v. Thompson, 6 Pick. 193; Stone v. Crocker, 24 Pick: 81; Sharp v. Pichel, 30 Ind. 457. MALICIOUS PROSECUTION. 147 duction of the record,’ but an order to stay proceedings, is not sufficient.”* What will be considered in law the ending of the prosecution, the authorities are not in harmony upon. But we think that if the plaintiff can show a trial and finding for him either in a criminal or civil case, or in case of a crimi- nal prosecution that the indictment or information has been quashed, or that a nolle prosequi has been entered, it will be sufficient. Professor Greenleaf, in his work on evidence, says that “it must appear that the plaintiff was acquitted of the charge; it is not enough that the indictment was ended by the entry of nolle prosequi.” But the most recent decisions hold that if the plaintiff can show that the original prosecu- tion is at an end, it is sufficient. And that if the record shows that the suit that the defendant instituted has been disposed of by the court in such a way that no process or proceeding can be had against the plaintiff without commencing a new action, that it will bea sufficient ending of the suit to authorize a recovery. If this was not so men might be subject to the most wanton outrages and oppression without any remedy whatever, for when a man is maliciously indicted he may not be able to obtain a trial on the merits, if the prosecuting attor- ney is determined to and actually does nolle pros the indict- ment or the information. If, therefore, the plaintiff can show on the trial that he was arraigned and tried before a magis- trate who was authorized only to hear his case and bind him over, and that he was acquitted by such a magistrate, or that the information or indictment has been quashed or a noile pros entered, or that his case has been discontinued, or that he was tried in a court of competent jurisdiction on the merits and 2 Chapman v Wood, 6 Black (Ind.) 604. ? Chapman v. Wood, 6 Black.(Ind.) 514; Weeks v. Fentham, 4 T. R. 247; Fisher v. Bristow, 1 Douglas 215; Hays v. Blizzard, 30 Ind. 457; Sayles v. Biggs, 4 Met. 421. 148 LAW OF DAMAGES. was acquitted, it will be a sufficient showing of the termina- tion of the prosecution as will entitle him to recover.’ 2. He Must Show that the Prosecution was Instituted Maliciously and Without Probable Cause. The plaintiff must, in order to re- cover, establish by the evidence the material allegation of his coinplaint. One of the elements that enters into a case of malicious prosecution is that of malice, and unless the plaintiff alleges in his complaint and establishes on the trial that the prosecution was maliciously commenced, he cannot recover.’ Malice may be inferred from want of probable cause, but not necessarily so. Anything done willfully and purposely to the injury of another in a legal sense is done maliciously.’ The plaintiff may, for the purpose of showing malice, show the de- fendant’s conduct during the transaction, his declaration in re- gard to the subject, and all his acts in exposing the plaintiff by publication or otherwise.’ 3. The Onus is on the Plaintiff to Show Affirmatively by Circum- stances or Otherwise that the Defendant had no Ground for the Prosecu- * See authorities above. But the appellant insists that the evidence does not show a final determination of the prosecution complained of and the discharge of the appellant therefrom. It is true no record evi- dence was shown of a final discharge of the appellee, but his arrest for larceny and imprisonment at the instance of the appellant are shown, and that the appellee appeared before the mayor in obedience to the writ; that no prosecuting witness appearing the case was continued; that he appeared again, according to the continuance; that still no witness appeared against him and no trial was had, but that he was allowed to go at liberty, allof which was shown by parol without objection and which stands uncontradicted. We think this is sufficient to authorize the jury to find that the prosecution was at an end. Leener v. Hamill, 57 Ind. 433. 5 2 Greenleaf on evid., Sect. 453. ® Commonwealth v. Snelling, 15 Pick. 321; Stokely v. Hamridge, 8 C- and P. 11. 71 Hill on Torts, p. 421; Mitchell v. Jenkins, 5B. and Ad. 504; Wheeler v. Nesbett, 24 How. U. 8. 552. MALICIOUS PROSECUTION. 149 tion. No such reasonable ground of suspicion sufficiently strong in itself to warrant a cautious man in believing that the person arrested is guilty of the offense with which he is charged.’ What these circumstances may be cannot be speci- fied or named with any degree of certainty, but it has been re- cently held that the plaintiff, for the purpose of showing a want of probable cause and that the defendant had no grounds for his prosecution, may show that prior to the commence- ment of the suit that he was a man of good character, and that the defendant when he commenced his prosecution was fully apprised of that fact. The court, in commenting upon the case, says: “As the onus of proving a negative—the absence of probable cause—is thrown upon the plaintiff, slight evi- dence will usually suffice for such purpose. But the evi- dence of a uniform good character up to the time of the charge is something more than slight evidence, and the plaintiff should have the benefit of it. If known to the prosecutor what single fact is better calculated to weaken a belief, he be- ing a prudent man, in the guilt of a suspected party. On the other hand his bad character may be shown by-the defense as good ground for augmenting suspicion against him.”* 3. That he has been damaged by reason of the prosecu- tion. The amount of damages that the plaintiff ought to re/ cover is left to a very great extent to the judgment of a jury under the instruction of the court.’ e 1 Blizzard v. Hays, 46 Ind, 166. 1 Blizzard v. Hays, 46 Ind. 160; Jacks v. Stimpson, 13 IN. 701; Richy v. McBean, 17 Il. 63; Hurd v. Shaw, 20 Ill. 456; Galaway v. Stewart, 49 Ind. 156. It must clearly appear that the prosecution was groundless, and that it was so known or might have been known to the prosecutor. Kirk- patrick v. Kirkpatrick, 39 Pa. st. 288. 2 2 Greenleaf on evid., Sect. 436. , 150 LAW OF DAMAGES. 181. A Full Defense. The defendant may defeat the plain- tiff’s recovery by showing that he never instituted the prose- cution complained of, or that the cause of action is barred by the statute of limitation, or that there was a want of malice, or that he had a probable cause for commencing the prosecution.* 182. Elements of Damages. The jury in assessing the plain- tiff’s damages should take into consideration: 1. The peril occasioned to him in regard to his life or liberty. 2. The in- . jury to his reputation. 3. Injury to his feelings. 4. Injury to his person. 5. All necessary expenses which he has been subject to on account of the prosecution, including attorney’s fees.’ 183. The Damages. The measure of damages in cases of this kind is full compensation to the plaintiff for all losses sus- tained, including injury to his reputation, feeling and person, * Stull vy. Howard, 26 Ind. 451; Newell v. Downs, 8 Black (Ind.) 523; Wilkinson v. Arnold, 11 Ind. 45; McKowen y. Hunter, 30 N Y. 625; Barron vy. Mason, 31 Vt. 189; McLane v. Birdson, 24 Ga. 265; Lyon v. Hancock, 35 Cal. 625; White v. Tucker, 16 Ohio st. 468; Goggons v. Mes- more, 31 Ga. 331; 2 Greenleaf on evid., 8. 457; Sandback v. Thomas, 1 Stark 306; Gould v. Barrett, 2 M. and Rob 171; Doe v. Davis, 1 Esp 358; Noell v. Rook, 7 B. and C. 404. A verdict of guilt in a criminal prosecu- tion founded upon correct legal instructions, is conclusive evidence of probable cause in a subsequent action for malicious prosecution, al- though such a verdict was set aside for newly discovered evidence. Parke v. Farly, 10 Cush. 279; Parke v. Hunt, 2 Guy 125, Bibbs 286. 2 2 Greenleaf, S. 456; Zigler v. Powell; 54 Ind. 173; Field on dam , Sect. 687; Thompson v. Mussey, 3 Greenleaf 305; Tripp v. Thomas, 3 B. and C. 427; Sandback v. Thomas, 1 Stark 306; Gould v. Bennett, 2 M. and R. 171; Doe v. Davis, 1 Esp. 158; Sancleve v. Eland, 4 Taunt 7; Webb v. Nichols, R. and C 417; Closson v. Stapple, 42 Vt 209; Sears v, Hatha- way, 12 Cal. 277; Talley v. Corsie, 16 L. T. (N. C.) 796; Kidred v. Stilt, 51 IL 401; 2 Addison on Torts, 767; Saul v. Roberts, 1 Ld. R. 378; Chapman v. Pickersville, 2 Will 145; Sheldon v. Carpenter, 4 N. Y.578; Mayne on dam. 259; Goldsmith v. Picard, 27 Ala. 142; Donnell v. Jones, 13 Ala. 490; Field on dam., 8. 549. MALICIOUS PROSECUTION. ibt and peril to his life and liberty, all necessary expenses in- curred in defense of the original suit, including attorney’s fees, and some times in aggravated cases the jury are permitted to assess exemplary damages. 184. Circumstances in Mitigation. The defendant may show in mitigation of damages all the suspicious circumstances go- ing to establish the plaintiff's guilt. There is some conflict among the authorities as to whether the defendant can attack the plaintiffs character for the purpose of reducing the amount of his recovery. But it may now be considered pretty well settled by the weight of authority in this country that the plaintiff is entitled to damages for injury to his reputation, and that, therefore, the value of that reputation is in issue and must be fixed by the jury in making up their verdict, and that evidence is admissible not only to rebut the presumption of malice and want of probable cause, but also in mitigation of damages. The English authorities hold that the plaintiff cannot recover damages for injury to his reputation unless it is expressly alleged in the complaint.’ 3 Zigler vy. Powell, 54 Ind. 173; Field on law of damages, S. 687; same 445; Sheldon v. Carpenter, 4 N. Y. 578; Israel v. Brooks, 23 Ill. 575; Mar- tin v. Hardesty, 27 Ala. 458; Downy v. Burch, 2 M. & R. 374; Smith v Hyderman, 10 Cush. 554; Mayne on dam., 261; Goodrich v. Warner, 21 Conn. 432; Beal v. Robinson, 8Ind 276; Bacon v. Town, 4 Cush. 217; Fitzgibbon v. Brown, 43 Peter 342; 2 Greenleaf evid., 458; James v. Phelps, 11 Add. & El. 483; Sears v. Hathaway, 2 Cal. 277; Wheeler v. Nesbet, 24 Hom. 548; Cooper v. Watson, 50 Me. 80; Add. on Torts, 767. 4 Israel v. Brooks, 23 111. 575; Martin v. Hardesty, 27 Ala. 458; Downy v. Burch, 2 M. & R. 374; Smith v. Hyderman, 10 Cush. 554; Mayne on dam., 261; Goodrich y. Warner, 21 Conn. 432; 2 Greenleaf evid., 8. 458; James v. Phelps, 11 Add. & El. 483; Sears v. Hathaway, 2 Cal. 277; Newell v. Downs, 8 Black 523; Long v. Rodgers, 19 Ala. 327; Wheeler v. Nesbet, 24 How. 545; Cooper v. Watson, 51 Me. 81. 5 Addison on Torts, 767; Rodridz v. Tadmin, 2 M. & Rob. 374; Newson v. Carr, 2 Stark 70. 159 LAW OF DAMAGES, 185. The Power of the Jury. In cases of this character, as well as all others which are brought to recover damages for in- jured feeling, reputation or character, the jury is allowed a wide discretionary power. They must determine the want of probable cause and of malice from all circumstances surround- ing the case. They may infer malice from a want of probable cause, but are not compelled to do so. They can have no means of arriving at the actual damages the plaintiff has sus- tained in injury to his feelings and reputation, and at best their verdict for damages of this character is not much more than a conjecture.® 186. Liability of Corporation for Malicious Prosecution. The authorities are very much in conflict as to the liability of a corporation for malicious prosecution. But there is a strong tendency to hold a corporation liable to the same extent for an injury done by its servant in the course of his employment as an individual is held. And we think that the weight of authority upholds the doctrine that corporations are responsi- ble for malicious prosecutions." 6 Newell v. Downs, 8 Blackford, 523; Long v. Rodgers, 19 Ala 327; Wheeler v. Nesbet, 24 How, 545; Cooper v. Waldron, 50 Me. 80; Smith v. Hyderman, 10 Cush. 554; Field on damages, S. 689. ™ Copley v. Grover & Baker Sewing Machine Co., 2 Wood, U. 8S. d. Rep. for La, p. 494; 97 Common Bench 290;1, P. & C. R. W. Co. v. An- thony, 43 Ind. 183; First Baptist Church yv. Schenectady & Troy R. R. Co., 5 Barb. (N. Y.) 197; Vinas vy. Merchants’ Mett. Ins. Co., 27 La. 367; Wheeler v. Q. National Bank, 57 Tenn. 469; Vance v. Erie R R Co.} 32 N. Y. 334; Fenton v. Wilson Sewing Machine Co, 9 Philadelphia Rep. 189; Goods v. East Haddan Bank, 22 Conn. 530; Opposit Gillett v. the Missouri Valley R. R. Co. v. 55 Mo. 315; 17 Am. Rep. 653; 37 Ala 560. ‘ CHAPTER X. NUISANCE. A Nutsance DEFINED. PrRivaTE AND Pusiic. REMEDIES. THE RIGHT OF AN INDIVIDUAL TO ABATE A NUISANCE. A PARTY WHO MAINTAINS A NUISANCE LIABLE IN DAMAGES, THE MEASURE OF DAMAGES, PENNSYLVANIA Court. In- DIANA SUPREME COURT. DANGEROUS ANIMALS RUNNING AT LARGE A NUISANCE. FEROCIOUS DOGS A NUISANCE. WHEN. 187. 4 Nuisance Defined. A nuisance, in its largest, most comprehensive sense, signifies anything that worketh hurt, inconvenience or damage.’ \ 188. Two Kinds of Nuisances. There are two kinds of nui- sances, public and private.’ A public nuisance is one that'an- ~ noys all the membersofthe community. A private nuisance is something that injuriously affects the land, tenement or heredi- 13 Blackstone com, 215; State v. Berthol, 6 Black. (Ind.) 474. 22 Greenleaf on evid., 465, Call v. Buttrick, 4 Cush, 345; Kearny v. Farrell, 28 Conn., 317. 154 LAW OF DAMAGES. tament of an individual.? Thus it has been held that any act done by another from without which renders the enjoyment of life within a house uncomfortable, whether it is produced by infecting the air with noisome smells, or with gases injuri- ous to health isa nuisance* A construction of any kind on one’s own land, which, of itself, or by its use, directly injures a neighbor is a nuisance.® 189. The Remedies, A party affected by a private nuisance “has, as a general rule, one of two remedies: 1. He may abate it withhis own hands. 2. He may sue to recover damages and have it abated by order of a court of competent jurisdiction.’ We will notice these remedies in their order. 190. The Right of an Individual to Abatea Nuisance. Therights of an individual vary as the circumstances around him change. Asa general rule one individual has no right to enter upon the land of another without his permission and remove or injure his property in any way. , But this rule is based on the suppo- sition that every man will use his property in such a way as ‘not to interfere with the rights of others. 3 Grady v. Walmer, 46 Ala., 382; 2 Greenleaf on evid., s. 465. ‘McKeon vy. Lee, 51 N.Y. 300; Grady v. Walmer, 46 Ala., 381; 2 Greenleaf, s. 468. * Where one carries on the business of finishing steam boilers in the compact part of a city, whereby the occupant of an adjoining dwelling was annoyed by noise and dust, that such occupant might maintain an action for damages against the manufacturer. The manufacturing of steam engine boilers is a lawful business, yet if it is carried on in such a manner as to make a great annoyance to others, the injured party is entitled to redress in damages. Fish v. Doge, 4 Denio, 311; McKeon v. Lee, 51 N. Y. 300. T Addson on Torts, 234. 11 Addson on Torts, 234. Norris y. Baker, 1 Rall R. 393. In an action for a nuisance to a messuage dwelling house and premises, caused by noxious vapors, proceeding from a smelting works upon lands NUISANCE. 155 Hence, if one so uses his land or other property on his premises in such a manner as necessarily tends to injure the property of another, he is liable to that other for any injury which may result from such use without regard to the care and skill exercised in the use of the property’ and the injured par- ty may, under certain circumstances enter the premises and abate the nuisance. The law, however, is jealous of its pre- rogatives and seldom commissions one to exercise such power. But where an individual is in imminent danger of receiving great injury either to person or property, the law will justify him in resorting to such a summary remedy, and he can use just such force as is necessary to prevent the threatened in- jury? 191. A Party will only be Liable in Removing a Nuisance for Un- necessary Injury. In abating a nuisance a party will only be re- of the defendant, to which they pleaded the general issued the juge di- rected the jury that every man is bound to use his own property in such a manner as not to injure the property of bis neighbor unless by the lapse of certain periods of time he has acquired a prescriptive right to do so. But the law does not regard trifling inconveniences. Everything must be looked at from a reasonable point of view, and therefore in an action for a nuisance to property by noxious vapor, arising on the land of another, the injury, to be actionable must be such as to visibly dimin- ish the value of the property, and the comfort and enjoyment of it. Thatin determining the question, the time, locality and all the circum- stances should be taken into consideration, that in countries where great works have been erected and carried on, which are the means of developing the national wealth, persons must not stand on extreme rights and bring actions in respect,to every matter of annoyance. If that were so business could not be carried on in those places. Held no misdirection. St. Helena Smelting Co. v. Tipping, 4 B. & S., 408—6,016 Exch. cham. and 11 Jur. N. 8. 785. House of Lords, Bamford v. Tur- ley, 3B. & S. 66, 8. c. 9 Jur. N.S. 377. 2 Rex v. Roswell, 2 Salk, 459; Miller v. Burch; 32 Texas, 208; Ely v. Supervisor Co., 36 N. Y., 297; Barclay v. Commonwealth, 23 Pa. st., 503. 3 Graves v. Shattuck, 35 N. H., 257. The party abating a nuisance ‘is only liable for a wanton and unnec- essaryinjury. 27 Ind. 394, 156 LAW of DAMAGES. sponsible for wanton and unnecessary injury. But in deter- mining the question as to whether the defendant in abating the nuisance committed wanton and unnecessary injury, the court or jury trying the cause should take into consideration the kindof property constituting the nuisance and all the at- tending circumstances.! Thus, where the superintendent of two of the Erie canals, in making repairs, destroyed a canal boat belonging to the plaintiff, and suit was brought for dam- ages, the Court of Appeals of the State of New York, in com- menting on the question of the liability of the defendant said: “It was the duty of the defendant, as superintendent of canal repairs, to keep in repair that section of the canal in- trusted to him, and to remove obstructions to navigation, and he claims protection in this case on the ground that he was in the discharge of his duty, when he cut up the plaintiff’s boat. He bases his claim to protection upon several grounds, which T shall proceed to notice: 1. He claims this case comes under this provision of our statute which provides that whenever the navigation of any of the canals shall be interrupted or endan- gered it shall be the duty of the commissioner, without delay, to repair the injury causing or threatening such interruption and for that purpose they shall have power, by themselves or their agents to enter upon and use any contiguous land, and to procure therefrom all such material as in their judgment may be necessary or proper to be used in making such repairs. This section confers an authority on the canal commissioner. It is their judgment that is to determine the necessity or pro- priety of entering upon the adjoining lands for the purpose in- dicated. It confers no authority whatever upon the superin- tendent. Theymay undoubtedly act, but must be under the special direction and authority of the commissioner in charge, whose judgment is to determine the necessity. Here it is not claimed that the defendant had any direction whatever from 4 Indianapolis v. Miller. 27 Ind. 394. NUISANCE. 157 the canal commission to take and cut up this ‘boat. * * * But in this case, if the canalcommission had done the act com- plained of, instead of the superintendent, he could not have found protection under the statute, as the act done does not come within its terms. It is difficult to perceive how it can well be claimed that a statute which confers authority upon canal commissionersto enter upon adjoining lands and take material to repair the canal, justifies the destruction of prop- erty that might be in the canal. It would not be claimed that a canal commissioner could take a loaded boat and appropriate her or her cargo to stop or repair a break in the bank of the canal. It is clear, therefore, that the statute affords no pro- tection to the defendant. 2. It is claimed that the canal is in law a public highway and that this boat was a public nuis ance in such highway, interrupting navigation, which any person and certainly a public officer had a right to remove. It is not alleged in the answer, and it was not found by the referees, that it was a nuisance. N avigation was interrupted by the want of water, caused by the breaking not so much by the boat. This boat was not in the canal in such a way as to. interfere with the passage of boats. But there should have been an issue and finding upon this point. If the referee had found that this boat was a nuisance, the defendant would not necessarily been justified in destroying it. ‘In removing or abating nuisance no unnecessary damage or injury to property can be justified, and the referee might have found still, as he has found, that: the defendant should have adopted some other method to restore navigation than the destruction of the boat. * * * The plaintiff’s boat was valuable private property. The plaintiff was in no degree in fault, and he did not in any way. contribute to the break that caused the interruption of navigation. The duty of the defendant was imperitive to re- pair the canal, and though the plaintiff's boat was private property he had a right to destroy it, if such destruction was necessary to enable him to restore navigation. The right did 158 LAW OF DAMAGES. not arise simply because it was more convenient to repair the canal by destroying the boat, nor because this was the cheapest or speedy way to doit. The destruction of this private prop- erty should have been the last resort after other reasonable ex- pedients had failed.”* 192. The Purchaser of Real Property Responsible for the Injury Received from a Nuisance Erected by His Vendor. The law is well settled that where a nuisance is erected upon a tract of land by the owner, and he afterwards sells and conveys the title to another, and the nuisance is permitted to remain on the land after the change of possession and a party is injured, he may maintain his action against the person who erected the nuis- ance, or the purchaser who suffers it to remain on his land, or perhaps against them both.* But he can have only one satis- faction. Each injury the plaintiff receives will be considered in law a new nuisance and affords a new cause of action.’ Therefore, a purchaser may maintain an action for the con- tinuance of a nuisance erected before he purchased the realty, and an heir for the continuance of one erected during the time of his ancestors. But a private individual can maintain an action in case of a public nuisance only on account of some particular special injury, which he sustains from it over and above what is common to the general public. 5 Hicks v. Dorn, 42 N. Y. 47; Russell v. The Mayor and City of New York, 2 Denio 475. ® Raswell v. Prio Salk, 460 id. 12, Meade 635; Penoyer v. Sanguman, 8 Mett. 534; Vedder v. Vedder, 1 Denio 257; Body v. Weeks, 3 Barb. 157; Baugh v. The State, 14 Ind 29. ? Pettis v. Johnson et al. 56 Ind. 189; McCowan .v. Whiteside, 31 Ind. 235; Biglow v. The Hartford Bridge Co , 14 Conn. 565; Grigley v. C. Lake W.Co., 40 Cal. 390; Field on damages, 605. The question in the case is, can a private person enjoin the obstruc- tion of a public highway without showing a special injury to himself not common to the public? It is claimed that the appellants have a property in the road which a court of equity is bound to protect against NUISANCE. 159 193. The Measure of Damages. The plaintiff may recover in an action for an injury caused by a nuisance, all. the damages that he has sustained up to the time of the commencement of his action, but as a general rule no prospective or permanent injury will be considered.? But if the nuisance is of a perma- nent character that will continue without change from any cause but human labor, then the damage is an original dam- age, and may at once be fully compensated. The rule for the assessment of damages in case of injury to real property apply in actions for injuries by a nuisance.’ 194. The Supreme Court of Pennsylvania. In the Supreme Court of Pennsylvania the plaintiff, in the court below, brought his suit to recover damages occasioned by the defen- dant throwing tanbark in the Lackwaken creek above the plaintiffs mill, which, being carried down by said stream, had been deposited upon the said land and said millpond of the plaintiff's, thereby filling and obstructing said pond and inter- fering with the free and beneficial use by the plaintiff of the water of said creek. In commenting on the measure of dam- ages the court said: “In general, the rule for the measure of damages in cases of tort may be said to be that which aims at actual compensation. There are qualifications, however, in- the wrong-doer. The appellants have no legal rights that can be en- forced at law. Willard v. The City of Cambridge, 3 Allen 574. Nor can a bill in equity in the abatement of a nuisance be maintained. From an injury common to all, arising from a public nuisance, the — remedy is by indictment or public prosecution. McCowan v. White- side, 31 Ind 235; Hartshorn v. Ink 8. Reading, 3 Allen 501; Barnard v. Conn. River R. R. Co., 7 Cush. 506. Harvard College v. Stearn, 15 Gray 1. 2 Blunt v. McCormick, 3 Denio 283; Penoyer v. Sanguman, 8 Mett. 534; Wagner v. Jermain, 3 Denio 306; Pillsbury v. Moore, 44 Me. 154; Thayer v. Brooks, 17 Ohio 489. 8 Black com 220; Ill. Cen. R. RB. Co. v. Grabill, 50 Ill. 241; Battishell v. Reed, 18 C. B. 696; Powers v. The City of Council Bluffs, 45 Iowa 410; Barr v. Hoffman, 79 Pa. st. 71. 160 LAW OF DAMAGES. advertent or unintentional injuries or acts, unaccompanied with malice, draw after them only their direct and immediate consequence, and not those remote of speculation, while gross negligence or malicious acts may be the subject of larger dam- ages, but in the latter they rest in the sound discretion of the jury, uninfluenced by prejudice or passion. Damages for in- juries to property vary also according to the nature of the claimant’s rights. The owner of the freehold may undoubtedly recover for an injury which permanently affects or depreciates his property, while a tenant or one having only a possessory right may recover for an injury for his use or enjoyment of it. vk * & Tf, therefore, a permanent injury was created by the lodgment of the tanbark in the pool of their dam, which actually depreciated the property as a water power, it must affect the price or value of land to which it belongs, and why should this not be compensated in damages? * * * Com- ‘pensation for diminished enjoyment or use of the property for a certain number of years, is not compensation for the diminished value of the estate itself.” 194. Supreme Court of Indiana. In a recent case the Su- preme Court of Indiana held when the plaintiff had obstructed one of the streets of Indianapolis by piling a large amount of sand and gravel thereon and was notified to remove the same, but neglected and refused to do so, the city authorities removed the sand and scattered it on the streets at an expense of two hundred dollars. Suit was brought against the city to recover the value of the sand; that in settling the question of damages that it was proper to take into consideration the value of the sand and gravel, its condition on the street, the costs of re- moval, the benefit of the plaintiff himself in having it placed " Seeley v. Alden, 61 Penn. st. 302; see Repka y. Sergeant, 7 W. & 8. 9; Schredele v. Koehler, 4 Carey 181; Robb v, M., 1 Jones 305, NUISANCE. 161 on the street bordering on his own premises, the convenience or inconvenience of its removal to the lot of the plaintiff, and the costs thereof compared with the value of it, and if from the facts it was made to appear that there was no unnecessary injury that the plaintiff could not recover.' 195. tis a Nuisance to Let Dangerous Animals Run at Large. The law is well settled that a man has no right to suffer torun at large animals of a fierce nature, such as lions, tigers, etc., and he will be held responsible for all injury that may be com- mitted by such animals without notice of their vicious pro- pensities.' But in case of a domestic animal not naturally inclined to commit mischief.as cows, oxen and the like, the owner is not liable for any injury committed by them against a person or personal property, unless he had previous notice of their mischievous propensities, or that the injury is attributed to his negligence.” But he is bound at his peril to take notice of their natural and notorious disposition to rove, and he is bound to confine them on his own land, and if they escape and commit a trespass on the land of another the owner will be held responsible, although he had no notice of the fact.’ Re- cently the Supreme Court of California, in a case where suit was brought by the plaintiff to recover damages for injury re- ! City of Indianapolis v. Miller, 27 Ind. 394. : A city has no power to authorize the construction of anything which, when constructed, will be a public nuisance. Pettis v. Johnson, 56 Ind. 139; the Terre Haute Gas Co. v. Teel, 20 Ind. 131. 1 Rex v Huggens, 2 Ld. Raym. 1583; Jenks v. Turner, 1 ib. 110; Mason v. Keeling, 1 ib. 608; Scribner v. Kelly, 38 Barb. 14; Brozzi vy. Harris. 1 F. & F. 92; Lauerone v. Mangiaute, 41 Cal. 138. ” Page v. Hollingsworth, 7 Ind. 317; 1 Chitty Plea, 82-93; Vrooman v. Lawyer, 13 Johns 339; Lauerone v. Mangiante, 41 Cal. supra.; Woolf v. Chalker, 31 Conn. 131; Buckly v. Lenard, 4 Denio 500. 5 Page v. Hollingsworth, supra.; Williams v. New Albany R. Co.,5 Ind, I11; Lafayette R. R Co. v. Shriner, 6 Ind, 141, 162 LAW OF DAMAGES. ceived from being bitten by a dog, says: “It is insisted on behalf of the defendant that a person may lawfully keep a ferocious dog, one that is accustomed to bite mankind. That position may be true, and it may also be conceded that he has the same right to keep a tiger. The danger to mankind. and the injury, if any suffered, comes from the same source—the ferocity of the animal. In determining the responsibility of the keeper for an injury inflicted by either animal, the only difference I can see between the two cases is that in case of an injury caused by a dog the knowledge of the keeper must be alleged and proven, for all dogs are not ferocious, while in the case of a tiger such knowledge will be presumed from the nature of the animal. The knowledge, however, established, whether by evidence or by presumption, is the same in sub- stance and works the same result. When the facts in two or more cases are alike the law will pronounce similar judgments. It will not be doubted that for any injury inflicted by a tiger his owner will be responsible, and, in my opinion, there is as little to doubt that the owner of a dog which he knows to be ferocious is equally liable for similar injuries occasioned by it. In either case the owner, knowing the vicious propensitie and ferocious nature of the animal, keeps it at his own risk, and he should bear the responsibility of the injury inflicted by it upon a person who is free from fault.’* 196. Ferocious Dog. As has already been intimated, the keeper of a ferocious dog that is inclined to bite mankind or attack and injure other domestic animals, will be held responsible for such injury, provided he had previous no- tice of his ferocious disposition.® There is no rule of law that 4 Lauerone v. Mangiante, 41 Cal. 188; Bozzi v. Harris, 1 Fost & F. 92; May v. Burdette, 92 B. 101. : 5 Vrooman v. Lawyer, 13 John 339; Fairchild v. Bently, 830: Barb. 147; Woolf vy. Chalker, 31 Conn. 131; Fleming v. Orr, 29 Eng. L. & E. 16; Steel v. Smith, 3 E. D. Sinith 321; Cox v. Burbridge, 13 G. B. N. 8. 430. NUISANCE. 163 requires proof of any particular number of instances of unpro- voked biting in order to charge the owner with notice of his mischievous and ferocious. disposition. If the plaintiff can show by sufficient evidence of a single instance of biting it will be sufficient. A dog that is accustomed to bite is con- sidered a common nuisance, and if suffered to run at large un- muzzled any person may kill him, whether he is doing or at- tempting to do mischief or not.’ And where the inhabitants of a dwelling house are con- tantly annoyed day and night by the barking of a dog of an- other to such an extent as to disturb the family, the inmates may kill the dog if he cannot be otherwise prevented from an- noying them.! Any person may kill a mad dog or a dog which he has reason to believe has been bitten by a mad dog, or a dog he has reason to believe is mad.” (For the assessment of dam- ages see anti-page 286.) In case of the entire destruction of personal property, the measure of damages is the value of the property at the time of the destruction, and in some cases in- terest on the value has been allowed.’ But in case of the in- jury to.property not resulting in destruction, the measure of damages is the difterence in the value of the property with the injury and its value before the injury, the value of the use of -it, and in cases of animals the cost of medical attention.* 6 25 Conn. 92; 11 Ind. 1 N. C. ? Putnam v. Payne, 13 Johns R..312; see also 9 Johns R. 233. 1 Brill & Brill v. Flagler, 23 Wend. 353; Wright v. Ramscot, 1 Saund. 84; 17 Barb. 561; 13 Allen Pract. 167; 24 How. Pract. 481; 26 Vt. 638. 231 Conn. 121; 13 Johnson 312. 3 Gillett v. West R.-R. Co., 8 Allen 560; 34 Mo. 469; I. C. R. RB, Co. v. Finnegan, 21 Ill. 648; Shelbyville L. B. R. R Co v. Lemark, 4 Ind, 471. 4 Shelbyville L. B. R. R. Co. v. Lemark, 4 Ind. 471, N. H. 8. Co. v. Vanderbilt, 16 Conn. 420; Williamson v. Barrett, 13 How. 101. But to recover special damages it must be alleged in the complaint. Tegorden v. Hatfield, 11 Ind. 522. 164 LAW OF DAMAGES. 198. The Owner of Land Cannot Encroach on His Neighbors. The right of one land owner to take down his building and ex- cavate the soil, is regulated by the rules of the common law. One cannot, by altering the condition of his land, deprive the owner of thé adjoining land of the privilege of using his own as he might have done before. Thus he cannot by building a house near the margin of his land prevent his neighbor from excavating, although it may endanger the house, nor from building on his own land, although it may obstruct windows, unless, indeed, by lapse of time or by expressed grant the ad- joining land has become subject to a right of servitude.? But a distinction is made between an injury to a house and other buildings and an injury to thesoil. Where an adjoining owner so excavates the dirt from his own land as to withdraw the natural support of his neighbor’s soil, he is liable for damages, and an injunction may be had to prevent him performing the threatened injury, provided the owner of the land has not, by building, increased lateral pressure upon the adjoining soil. “Tt is in consequence from this principle that for the injury to his soil, resulting from the removal of the natural support to which it is entitled by means of excavation on an adjoining tract, the owner has a legal remedy in an action at law against the party by whom the work has been done and the mischief thereby occasioned. This does not depend upon negligence or unskillfulness, but tipon a violation of a right of property which has been invaded and disturbed. But this unqualified rule is limited to injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures. For an injury to a building which is unavoidable, incident to the depression or slide on which it ‘stands, caused by the excavation of a pit on adjoining’ land, an action can only be maintained where a want of due care or skill, or posi- tive negligence, has contributed to produce it.” Where an in- ? Smith y. Kimrich, 7 Conn, B. 565-566; Durant v. Palmer, 5 Dutch, 544. NUISANCE. 165 jury of this kind is produced, the plaintiff can recover for all in- jury occasioned by the wrongful act. The damages may be assessed by taking the difference in the value of the land with the injury and before the injury. But vindictive or exemplary damages, sometimes called smart money, can not be allowed unless malice or criminal intent is shown.’ 1Stengly v. Barnard, 1 Rolle R. 88,12 Mass. 227; Panton v. Holland, 19 Johns 92; Farland v. Marshall, 19 Barb. 380; Humphries v. Bragden, 12 Q. B. 739; Foley v. Wyeth, 2 Allen 131; Solom v. Ventriesco, 4 Heal. & Nor. 585; Lasala v. Holbrook, 4 Paige 169; Radcliff v. Mayer & Co., of Brooklyn, 4 Conn. 195; Richardson v. Vermont Central Railroad, 5 Vt. 465. © CHAPTER XI. COLLISION. DAMAGES IN CASES OF COLLISION, WHERE DEFENDANT IS SOLELY TO BLAME. DAMAGES WHERE BOTH PARTIES ARE TO BLAME. DAMAGES IN CASE OF A PARTIAL Loss. DAMAGES IN CASE OF INJURY BY TWO VESSELS. THE cAUSES. THE ELEMENTS OF DAMAGES. THE PLAINTIFF’S CHOICE OF COURTS. THE RULE OF THE COMMON LAW AND ADMIRALTY THE SAME. DAMAGES FOR THE CARGO. THEDEFENSE. THE AcT oF Gop. 199. Damage in Case of Misconduct of the Defendant. The rule for the measure of damages in the case of collision be- tween ships, steam and other boats on the seas, oceans, lakes and rivers in case of an injury resulting in a total loss, caused by the misconduct of the defendant or respondent alone, is the market value of the vessel at the time of the injury or loss. The Supreme Court of the United States in case of the ship At- COLLISION. 167 las, in commenting on the question of damages, says: “Satis- faction to the libellant for the injury sustained is the true rule of damages.”” 200. Damage Where Both Parties are in the Fault. The rule laid down in the preceding section only applies in cases where the injury is caused by the sole misconduct of the defendant or respondent. But where both parties are to blame and the in- jury complained of has been the result of the misconduct or fault of both parties, a court of admiralty will add together the damage done to both vessels and divide the aggregated amount equally between the parties. This is virtually deducting the less from the greater and dividing the remainer. And this tule applies in all cases of mutual fault, whether the injury is to one or both the vessels. 201. The Moiety Rule Applies Without Regard to Which was the Most to Blame. On the trial of a case in a Court of Admiralty, if the evidence discloses the fact that both vessels were in the fault, the inquiry as to which was the most to blame will be considered immaterial, as the damages must be divided be- tween the parties according to the moiety rule established by such courts.® 193 U. 8. R. 302; W. Roberts, 297; the Baltimore, 8 Wall 377; 1 Parson on shipping, 542; the Granite State, Bl. & H. 347; the New Jersey, Olcott 444, 6 N. Y. 312; the Shannon, 1 W. Robert, 470; the Itinerant, 2 id. 243; the Locklibo, 3 Rob. 318; the Morning Light, 2 Wall 560. The actual damages sustained by the party at the time and place of injury, and not probable profits at the port of destination, ought to be the measure of damages. Smith v. Condry, 1 How. 28. 2 Williams v. Barrett, 13 Howard 101; the Atlas, 93 U. S. 302; the Sapphire, 18 Wall 51. Where both vessels are in fault, the sum representing the damages are added together and the amount equally divided between the par- ties, and that rule prevails in all cases where it is mutual fault. Vaux -y. Sheffer, 8 Moore P. C. ©. 87. 7 a Both vessels being in fault, the positive rule of the Court of Ad 168 LAW OF DAMAGES. 203. Damages in Case of Injury not Resulting in Total Loss. Restitutio in Integrum is the leading maxim in cases resulting in a partial loss, and where repairs are practical the rule fol- lowed by the Admiralty Courts in such cases are that the damages assessed against the respondent for injury caused by his fault or misconduct alone, shall be sufficient to restore the injured vessel to the condition in which she was at the time the injury was inflicted. It may be laid down as a general rule that in all cases of this character the measure of compen- sation shall be equal to the amount of the injury.’ 208. Jn Case of an Injury Occasioned by Two Vessels. Where a collision occurs from the fault of both vessels and damages is thereby done to an innocent party as the owner of a cargo of either, or toa vessel in tow without fault, a decree should be rendered not against both vessels zn solido for the entire damage, interest and costs, but against each for the moiety thereof so far as the value extends,> and it should provide that any bal- ance of such moiety over and above such stipulated value of either vessel, or which the plaintiff or libellant shall be una- ble to collect or enforce, shall be paid by the other vessel to miralty, says Lord Denmon, requires the damages done to both ships to be added together andthe combined sum to be equally divided between them as having been occasioned by the fault of both. Hay v. Lecher, 2 Shaws H. of L. cas. 400; the Washington, 5 jur. 1067; the Atlas, 93 U. S. R. 302. * The Baltimore, 8 Wall 377; Williamson v. Barrett, 13 Howard 110; the Gazella, 2 W. Robinson 281; Sedgewick on dam (4 ed.) 541; Mc- Lockland on shipping, 285. 5 Gamecock, 91 U.S. R. 605. Allowance for freight is made in such cases recovering the gross freight, less the charges, which would necessarily have been incurred in earning the same, and which were saved to the owner by accident, to- gether with interest on the same from the date of the probable termina- tion of the voyage. The Baltimore, 8 Wall 377; the Canada, Lush. 586. ~ COLLISION. 169 the extent of the stipulated value beyond the moiety due from her.® / 204. The Causes. It is quite obvious to every thoughtful man that disasters on the waters of this kind occur from dif- ferent causes and under varying circumstances, but the rules of the admiralty law are so framed as to meet the different cir- cumstances which give rise to the accident. It may be laid down, therefore, as a general rule that accidents of this charac- ter occur under four possibilities : 1. It may happen without blame being imputable to either party, as where the loss is occasioned by storm or any other vis major. In that case the loss must be borne by the party on whom it happens to fall, the rule being the party that is not injured is not responsible to the injured party in any degree. 2. The misfortunes of the kind may and frequently do arise where both parties are to blame, as where it appears that’ there has been a want of due diligefice or skill on both sides. In such cases the loss must be apportioned between them as being occasioned by both. 3. It sometimes happens by the misconduct of the suffering party only, and then the rule is that the sufferer must bear his own burthen. 4, It may happen from the fault of the ship which ran the other down.’ 205. The Elements of Damages. The elements of damages in case of an injury not resulting in a total loss are: 692 U.S. R. 695. . 7 'The Atlas, 93 U. 8. R. 302; the Woodrop, 2 Dodson 85, 170 LAW OF DAMAGES. 1. The expense of the plaintiff, necessarily incurred in re- taining his crew after the collision and in attempting to save the cargo.’ 2. The cost of repair.’ 8. The rental value of the vessel while undergoing repair.’ 4. Interest on the amount recovered.’ 5. The injury to the cargo.‘ In case of a loss of a cargo by a collision, the plaintiff or libellant can only recover its value where the ship or boat and her cargo constitute one opposing force and a single ship or boat the other. Where the vessel and cargo belong to the same owner in aggregating the damages, the court will con- sider the vessel and her cargo on one side and the single vessel on the other, and award,a moiety of the loss to each. But where the cargo belong to a stranger and is injured, he is en- titled to full compensation for his whole loss, and if the injury was caused by the misconduct of both vessels the court will apply the moiety rule, but if it should happen that the owner of the cargo is unable to collect the moiety from either of the parties, he would have recourse on the other. And for the purpose of preventing litigation and expense the Admiralty Courts enter their decrees that each vessel pay a moiety of the loss so far as the stipulated value of said vessel shall extend, 1 Hoffman v. Union Ferry Co., 68 N. Y. 385, * Hoffman v. Union Ferry Co., 68 N. Y. 385. 5 Alabama v. The Gamecock, 92 U.S. R. 695. ‘Hoffman v. Union Ferry Co., supra; the Alabama y. the Game- cock, 92 U. 8. R. 695; the Sapphire, 11 Wall 51; the Baltimore, 18 Wall- 377. COLLISION. 171 and any balance of such moiety over and above such stipulated value of either vessel, or which the libellant shall be unable to collect or enforce, shall be paid by the other vessel or her stip- ulators to the extent of the stipulated value beyond the moiety due from said vessel or her stipulators to the extent of the stip- ulated value thereof beyond the moiety due from said vessel.? 206. The Plaintif’s Right at Common Law. Where the plaintiff has been injured and suffered loss he may bring his action in a common law court against all the wrong-doers or any one of them, and if he did not contribute to the disaster he will be entitled toa judgment for the full amount of his loss. If he sues the wrong-doers all jointly and has judgment, ‘he cannot afterwards sue them separately, or if he sues one separately and has judgment he cannot afterwards sue them all in a joint action, because the prior judgment against one is, in contemplation of law, an election as to that one to pursue his several remedies, but is no bar to the suit for the same wrong against any one or more of the other wrong-doers.* 207. The Rule of the Common Law and of the Admiralty Law are the Same in, Certain Cases. Contributory negligence on the 292 U.S. Rept. 695; the Washington and the Gregory, 9 Wall 516. Experience shows that injured vessels sunk, especially when the disaster happens in givers or harbors, may be raised at moderate expense, and ‘that the cargo, if perishable, may be saved and restored to the shipper or carried forward to the port of destination, and the rule in such cases is to award such damages only as will compensate the owner for the loss incurred, which is held to include expenses of raising the vessel and putting her in repair, with a proper allowance for the loss of freight, for damage to the cargo and for detention of the vessel during the time necessary to make repairs and fit the vessel to resume her voyage. The Baltimore, 8 Wall 377. 5 The ship Atlas, 93 U. 8. R. 302; Murray v. Lovejoy, 2 Cliff 196; 8. C. 3 Wall 19; Smith v. Hines, 2 Sumn. 348; Webster v. Railroad, 38 N. Y. 261. 172 LAW OF DAMAGES. part of the libellant cannot defeat a recovery in collision cases if it appears that the other party might have prevented the disaster, and that he also did not practice due diligence and was‘guilty of négligence, and failed to exercise proper skill and care in the management of his vessel. It is true that proof of contributory negligence would defeat the plaintiff’s action at common law, but as has already been said in Court of Admiralty it is different, and the loss in such cases is appor- tioned between the offending vessels, but the rule of the com- mon law ‘and of admiralty is the same where the suit is pro- moted by an innocent party, except that the moiety rule may be applied in the admiralty, if all the parties are before the court and each of the wrong-doers is able to respond for his share of the damages. The measure of damages in either court being full compensation for the injury suffered by the collision.‘ 208. Damages for Cargo. Where goods shipped as cargo and their owner is innocent of all wrong, he may sue the owner of one ship or both either at common law or go into the Admiralty Courts at his election, and if he can prove that each by their misconduct contributed to the injury he will be as much entitled to full compensation in the Admiralty Court as at common law.’ 209. The Defense. The defendant or respondent may de- feat the plaintiff or libellant’s claim for damages by showing that he in no way contributed to the injury. A universal rule, recognized everywhere, is that freedom from fault is a good and perfect defense in all claims for damages arising from col- lision of vessels.® The Atlas, 93 U. 8. R. 302; Colgrove v. The Railroad, 20 N. Y. 493; Collins v. Hill, 8 C. B. 125; Vandeplank v. Miller, 1 Moore & Mal. 169. 5 The Atlas, supra. °The ship Atlas, 98 U. S. R. 302; the Shannon, 1 W. Rob. 470; the Itinerant, 2 W. Rob, 243, 2 id, 318; the Morning Light, 2 Wall 560. NUISANCE. 178 210. The Acts of God a Good Defense. Inevitable accident is a good defense in all controversies of this character, where both vessels are free from blame, but it is utterly unavailing if either or both were in the fault. The rule is that where the collision occurs exclusively from a natural cause without any fault of either of the parties, there can be no recovery, and the loss must rest where it happens to fall.’ 7 The Atlas, 93 U. S. R. 302. CHAPTER XII. NEGLIGENCE. NEGLIGENCE DEFINED, IN oRDER FOR PLAINTIFF TO RECOVER HE MUST SHOW A CASE OF UNMIXED NEGLIGENCE, ExXcEp- TION TO THE GENERAL RULE, MALICE, PROXIMATE AND REMOTE. THEILLINOIS RULE. GREAT DIFFICULTY IN LAY- ING DOWN A GENERAL RULE. THE RIGHT TO USE PROPERTY THE PLAINTIFF MAY RECOVER IF THE INJURY OCCURRED FROM THE DEFENDANT’S INEXCUSABLE NEGLECT. APPLICA- TION OF THE RULE IN CASES OF GROSS NEGLIGENCE. APPLI- CATION OF THE RULE IN CASE OF CONTRIBUTORY NEGLIGENCE, INJURY TO A CHILD. CoNTRIBUTORY NEGLIGENCE OF PAR- ENTS, &C. REMOTE CONSEQUENCES. THE RULE AS TO THE POINT WHERE PECUNIARY LIABILITY WILL CEASE NOT DEFI- NITELY SETTLED. How to ASCERTAIN WHETHER THE DE- FENDANT IS LIABLE. THE CONFLICTING VIEWS. DAMAGES 211. Negligence Defined. The word negligence in its broadest sense includes almost every breach of duty not clearly intentional. Thus we say a man has neglected his business or neglected to perform his contract, but it has a legal defini- tion that is generally understood to be “omitting to do some- NEGLIGENCE. - 175 thing that a reasonable man would do, or doing something that a reasonable man would not do; in either case causing an unintentional injury to a third party.” 212. In Order for the Plaintiff to Recover he Must Show Un- mixed Negligence. As a general rule where negligence is the issue it must be a case of unmixed negligence to authorize a recovery, and if both parties by their negligence immediately contributed to the injury neither can recover.? But it is only the contributory fault of the injured party or of some one whose fault is imputable to him, that will exculpate the de- fendant. He cannot defeat the plaintiff’s claim for damages by showing that the conduct of a mere stranger contributed to the injury.’ 1 How. v. Young, 16 Ind. 312; 1 Hill on Torts, 124; Shearman & Red- field on Neg., Sect. 1; Touawanda R. Co. v. Munger, 5 Denio 255-267; Gardner v. Heart, 3 Denio 232; Amick v. O’Hara, 6 Black 258; Tally v. Ayres, 3 Sneed 677. Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may be in omission or commission. Railroad Co. v. Jones, 95 U. S. 439. 2 Butterfield v. Foster, 11 East 60; Evansville & C. R. R..Co v. Heath, 17 Ind. 102; Lofton v. Vogles, 17 Ind. 106; Evansville R. R. Co. y. Lou- dermilk, 15 Ind. 120; the Toledo & Wab. R. R. Co. v. Thomas, 18 Ind. 215; Brooks v. the Buffalo, &c , R. R. Co., 25 Barb. 600; Smith v. Smith, 2 Pick. 621; Sudam v. the Street R. R. Co.; 41 Barb. 375; Runyon v. the Central R. R., 1 Ducher 558; Dascomb vy. Erie R. R., 27 Barb 221; Mackey v N. Y. Cen. R. R. Co., 27 Barb. 528; Button, Adm., v. Hud- son Riv. R. Co., 18 N. Y. 248; Brown v. Maxwell, 6 Hill 592; the Cleve- land R. R. Co. v. Ferry, 8 Ohio 570; Clark v. Kernan, 4 E. D Smith 21; Owen v. the Hudson R. RB. Co, 4 Boston 37; Munch y. the Concord, 9 Fost. 9; Moore v. the Central R. R. Co., 4 Zabb 268-828; the Toledo R. R. €o. v. Goddard, 25 Ind. 185; the Michigan Southern and North Ind. R. R. Co. v. Lantze, 29 Ind. 528; E. &C. R. R. Co. v. Dexter, 24 Ind. 411; Jeffer- sonville R. R. Co. v. Swift, 26 Ind. 459; Toledo, Wabash & Western R R. Co. v. Brenin, 26 Ind. 448; the Lafayette R. R. Co. v. Bruer, 28 Ind. 287; L, P. & C. R. R. Co. v. Rubey, 23 Ind. 133; the Chicago & Mississippi v. . 176 LAW OF DAMAGES. And the contributary negligence by the plaintiff must be proximate and not remote, and it must be a negligence occurring at the time the accident happened. If the plaintiff had by his previous negligence placed himself in a helpless condition and this fact was known to the defendant, the plain- tiff can recover if at the time when the injury occurred it might have been avoided by the exercise of reasonable care by the defendant.’ Packen, 16 Ill. 198; G. C. U. RB. R. Co. v. Dill, 22 Ill. 264; Ill. Central R. R. Co. v Phelps, 29 Ill. 447; Pennsylvania v. Hedson, 43 Pa. st. 449; Beswig v. N: Y. Cen. R. R. Co., 40 N. Y. 9; Haven vy. the Erie R. W. Co., 41 N. Y. 296; Stedly v. London & N. W. R. W. Co., LR. 1 Ex. 13; But- terfield v. the Western R. R. Co., 10 Allen 532; Bellefontaine R. R. Co. v. Hunt, adm., 33 Ind. 355; 1 Hill on Torts, 125-126; Spooner v. Brook- land R R. Co., 54 N. Y. 230; 13 Am. R. 570; Sherarman & Redfield on Neg., p. 29 and 30. The plaintiff lent his gun to four boys, the defendants The gun was loaded. The boys returned the gun loaded with a dangerous charge and told him they had not discharged it, for the mischievous purpose of having the plaintiff kicked when he might shoot it off. Plaintiff sus- pected the boys of falsehood; tried to see them, but did not; examined the gun for himself; found from six to eight inches of load in it; then discharged it voluntarily, holding it around the corner of the house to shield himself, and was wounded. Held, that the conduct of the boys was not the proximate cause of the injury. Smith v. Thomas, 23 Ind. 69; Indianapolis co. v. Wright, 22 Ind. 376. 5 Austin v. Steamboat Co., 43 N. Y. 75; 3 Am. R. 663; 28 N. Y. 256; Davis v. Mann, 10 M. & W. 545; Haley v. Earl, 830 N. Y. 208; 40 Vt. 487; Cummings v. Spruce, 4 Harr 315; Stout v. Foster, 1 How. U.S. 89; C.,C. &C.R R. Co. v. Crawford, 24 Ohio st. 631; Timmons vy. Central R. R. Co., 6 Ohio st. 105; Wright v. Gaff et al., 6 Ind. 416; E.& C. R. R. Co. v. Hiatt, 17 Ind. 102. Where the plaintiff rode upon the locomotive of the defendant with notice that it was contrary to the defendant’s orders to the engineer, it was held that the plaintiff could not recover for an injury received .through the defendant’s negligence while on the engine. Robinson v. the N. Y. & Erie R. R. Co, 22 Barb. 91; Button v. Hudson Riv. R R., 24.N. Y. 430; Johnson v Hudson River; Delafield v. Union Ferry Co., 10 Bosw. 216; Morris v. Phelps, 2 Hilt 38; Menges v. Harlam R. Co., 1 Hilt 425; Clark vy. Kirwan, 4 E. D. Smith 21. Sometimes the language used is that the plaintiff cannot recover if his own negligence concur. Hance v, Cayuga R. Co , 26 N. Y. 428; Tuff v, Warman, 5 C. B. 573; Davis NEGLIGENCE. 177 213. Exception to the General Rule. It is now pretty gener- ally settled that where the negligence of the defendant is so gross as to imply a disregard of consequences, or a willingness to inflict the injury, the plaintiff may recover, though he be a trespasser or did not use ordinary care to avoid the injury.‘ v. Mann, 10 Mees. & W. 546; Scott v. Dublin & R. Co., 11 Irish C. L. 377; Wright v. Brown, 4 Ind. 95; Lafayette-& C. R. Co., 26 Ind. 76; Ker- whacker v. Cleveland & R, Co., 3 Ohio st. 172; Louisville R. Co. v. Col- lins, 2 Duvall 114; Morrissy v. Wigging Ferry Co. 43 Mo. 380; Foster v. Holly, 38 Ala. 76; Chicago R. Co. y. Still, 19 Ill. 499; Button v. Hudson R. Co., 18 N.Y. 248-258. 4 The Latayette and Indianapolis R. W. Co. v. Adams, 26 Ind. 76; In- dianapolis & Pittsburg R C v. Petty, 30 Ind. 261; E. & C. R R. Co. v. Loudermilk, adm., 15 Ind. 120; Ohio and C. & C. R. Co. v. Gullett, id. 87; Stuke v. Milwaukee, 9 Wis. 202; Wherely v. Whiteman, 1 Head 610; Macon & Co. v. Davis, 27 George 113; 1 Hillard on Torts, 125-126. There is a manifest want of uniformity in the authorities in their at- tempt to define the precise circumstances under which the plaintiff may, recover for an injury when it is shown that he, by his negligence, con- tributed to the injury for which he sues, and it is to be regretted that this want of uniformity prevades some of the cases heretofore decided by this court, but we think many of the apparent differences which have arisen on this subject result more from inapt use of words and phrases than from any difference in the ideas intended to be expressed. There has been of late a very strong tendency of judicial opinion ad- verse to the distinction between gross negligence and ordinary negli- gence in the sense in which those terms are used in the class of cases to which we have above referred, and with that tendency the doctrine has been gaining ground in this and at least in some of the other States that something more than mere negligence, however gross, must be shown to enable a party to recover for an injury when he has been guilty of con- tributory negligence; that in such cases something more aggressive than mere negligence must be alleged and proved. Strictly speaking, negli- gence is non-feasance, not a malfeasance. It is an act of omission rather than commission. The Pennsylvania Co. v. Sinclare, 62 Ind. 301; Shearman & Redfield on Neg., Sect. 2; Wharton on Neg., Sect. 22; O. R. W Co. v. Shelby, 47 Ind. 471: R. R. Co v. Lockwood, 17 Wall (U. 8.) 357. The wrong-doer is always liable for the result of his willful, malicious act, although the act of the plaintiff contributed to the injury. Ml. Cen. R. Co. v. Hutchison, 47 IL. 408. 178 LAW OF DAMAGES. So where the negligence of the defendant is proximate and that of the plaintiff remote he may recover.® 214, The Illinois Rule. The Supreme Court of the State of Illinois has held, in several well considered cases, that the plaintiff may recover if he can show that notwithstanding the fact that he may have been guilty of some contributory negli- gence, still, if it was slight as compared to the defendant’s negligence, he should have judgment, but it must appear that the defendant’s negligence clearly and largely exceeded that of the plaintiff’ This rule is in direct conftict with the most recent authority. Indeed, the tendency of the modern de- cisions are to the effect that it is only when the injury sued for is alleged either in terms or in substance to have been willfully or purposely committed that contributory negligence ceases to be a defense.’ 215. The Great Difficulty in the Way of Framing a General Rule. Courts have found it quite difficult to frame a definite and satisfactory rule on the subject of mutual negligence of ®° Mississippi R. R. Co. v. Mason, 51 Min. 234; Johnson v. C. R. R. 27 La. 53; Manly v. Williamington, 74 N. C. 655; Cleander R. R. Co v. Elliott, 28 Ohio st. 340. Where a parent suffers a child two years and nine montbs old to wonder unattended eight hundred and seventy-five feet from its home, near a railroad, and there to go upon the railroad tract and was injured, - it was held that there was such contributory negligence that the parent could not recover for the death of the child. O. & M.R.R Co. v. Dickson, 59 Ind 89; Indianapolis R. R. Co vy. Bowen, 40 Ind. 545, 49: Ind. 154; T., W. & W. R. R. Co. v. Shuckman, adm., 50 Ind. 42; I. & St L. R. R. Co. v. Stout, 53 Ind. 148. "Chicago R. R Co. v. Clark, 70 Ill. 276; 1 R. R. Co. v. Craiger, 71 Ill. 177; T. R. BR. Co. v. McGinnis, 72 Ill. 141; Ill. R. R. Co. v. Hall, 72 Ill. 222; R. R. R. R. Co, v. Hillmen, 72 Ill, 235, 347, 386, 404, 504, 394; Litchfield Coal Co. v. Taylor, 81 Ill. 595, at 379, 38 Ill. 485. ° Penn. Co. v. Sinclair, 62 Ind. 301. NEGLIGENCE. 179 the parties. And there is at this time a manifested want of harmony and uniformity among the authorities in their at- tempt to define the precise circumstances under which the plaintiff may recover for an injury when it is shown that he, by his own negligence, has directly contributed to the injury for which he sues. The tendency of the modern judicial opinions is adverse to the distinction between gross and ordinary negligence. “These expressions are indicative rather f the degree of care and diligence, which is due from a party and which he fails to perform, than of the amount of inatten- tion, carelessness or stupidity which he exhibits. If very lit- tle care is due from him and he fails to bestow that little, it is called gross negligence. If very great care is due and he fails to come up to the mark required, it is called slight negligence. And if ordinary care is due, such as a prudent man would ex- ercise in his own affairs, failure to bestow that am ount of care is called ordinary negligence. In each case the negligence whatever epithet we give it, is a failure to bestow the care and skill which the situation demands, and hence it is more strict- ly accurate to call it simple negligence.” It certainly would be more accurate to draw the line between acts of omission and commission; for, strictly speaking, negligence is non-feasanée, not malfeasance. It isan act of omission rather than commis- sion. Wherea bad intention enters into an act, whether that in- tention be actual or constructive only, the wrongful act ceases tobe merely a negligent injury, and becomes one of violence or aggression. In order then for the plaintiff to recover, where his own negligence has directly contributed to the injury, he must allege and prove either in terms or substance that the defendant committed the wrongful act willfully or purposely.’ 7 Railroad Co. v. Lockwood, 17 Wall 357. 1 Pa. Co. v. Sinclair, adm., 62 Ind. 301; Wharton’s Neg., 8. 22; the Ohio Co. R. W. v. Shelby, 47 Ind. 471; Railroad Co. v. Lockwood, 17 Wall 357; Cin. & Mart. R. R. Co. v, Eaton, 53 Ind. 307. Negligence, in correct legal phraseology, is more nearly synonymous 180 LAW OF DAMAGES. 216, The Right to Use Property Does Not Authorize One to do Wrong. The law gives the owner of property the free and ex- . elusive use of it, but it requires him to use it in such a way as not to do any unnecessary or avoidable injury to another, and the fact that one party is in the wrong does not of itself dis- charge another from the observance of due and proper care to- wards him, or of the duty of exercising his own rights or using his own property as not to injure him unnecessarily. It may, therefore, be laid down asa rule that while a party on the one hand shall not recover damages for an injury which he has brought upon himself, neither shall he on the other hand be permitted to shield himself from an injury which he has done because the party injured was in wrong, unless such wrong, contributed to produce the injury, and even then it would seem that the party setting up such defense is bound to use ordinary caution to be in the right.’ with carelessless than with any other word. It signifies primarily the want of care, caution, attention, diligence, skill or discretion in the per- formance ofan act by one having no positive intention to injure the per- son complaining thereof. Where such intention exists the act ceases to be merely negligence, and becomes one of violence or fraud. Shearman v. Redfield on Neg., Sect. 2. 1 Kerwhacker v. the 0, C. & C. N. R. R. Co., 3 Ohio State 172; Wright * y, Brown, 4 Ind. 95; Brown v. H. & St. Joe R. R. Co., 50 Mo. 461; Trans- portation Co. v. Vanderbilt, 16 Conn. 421; Bright v. Gardner, 19 Conn. 507; Vere v. Lord Cawdor, 1 East 568; Mayor of Colchester v. Brooks, 53 Eng. com. law 376. Where a person is walking on a railroad track and is run over and killed by an engine belonging to the railroad company, the company is responsible in damages for such killing, though the deceased was guilty of a want of ordinary care and prudence in so walking on the track, provided it appears that the accident would not have occurred if the agent of the railroad company had used, in running the engine which occasioned the killing, ordinary prudence in giving reasonable and usual signals of its approach and in keeping a reasonable lookout. Baltimore. & Ohio R. R. Co. v, State, 36 Md. 366; see Shields v. Blackburn, 1 Hen. Black 158; Moore v. Morgue Co., 480 Bulls E. P. 73; Broom’s Legal Max. 248, Puffendorf’s Law of Nature, B. III. ch. I.; Rutherford Inst. of Natural Law, p. 201; Bird vy. Holbrook, 15 Eng. com. law rep, 559; NEGLIGENCE. 181 217. The Plaintiff may Recover if the Injury Occurred from In- excusable Neglect. If the plaintiff was in the fault, yet he may recover if the injury for which he sues was occasioned by the inexcusable neglect of the defendant.” . 218. Instances of the Application of the Rule in Case of Gross Negligence: Where the track of a railroad passed through a cut eight rods long and a horse of the owner of the land was near the entrance of the cut, and the whistle of the approaching en- gine was sounded, and the horse ran upon the track and into thecut, from whence it could not escape upon the side, and the engine was run on and the whistle sounded, thereby continu- ing to frighten the horse, until it jumped into the trestle work and was killed. It appered dn the trial that the engine could have been stopped after the horse got into the cut, and before he jumped into the trestle work. The court held that | Raisin v. Mitchell, Nal. 38 Eng. com. law rep. 252; Dean v. Clayton, 2 Eng. com. law rep. 183; Vaughan v. Melone, 3 Bing. N. C. 486; Dixon v. Bell, 5 M.S. 198; Sedgewick on dam. 471; Cook v. Champlain Trans. Co., 1 Denio Rep. 89. In which it was ‘held that where a person in lawful use of his own property exposes it to the danger of accidental in- jury from the lawful acts of others, he does not thereby loose his remedy for an injury caused by the culpable negligence of such other person, so that the owner of land on the shore of a stream‘or lake or adjoining the tract of a railroad, may lawfully build on his land, though the situation be one of exposure and hazard and be nevertheless entitled to protec- tion against the negligent acts of persons lawfully passing the same with vessels or carriages propelled by steam engines by which such building may be set on fire, on the ground that the owner undertook the risk and hazard of injury by mere accident, but not the risk of in- jury by negligence. See Quinby v. the Vt. Cen. R. R, Co, 23 Vt. Rep. 388, 14 Paige Rep. 553; Amick v. O’Hara, 6 Black 258; Weaver v. Ward, Hobart 1384; Haycraft v. Crease, 2 East 92; L. Kenyon, Indianapolis & Cin. R. R, Com. v. Caldwell, 9 Ind. 397. 2 Ind. & Cin. R. R. Co. v. Caldwell, 9 Ind. 397; Pa. Co. v. Sinclair, 62 Ind. 301; I., B. & W. R. R. Co. v. McBrown, 46 Ind. 229; B. & O. R. R. Co v. State, 36 Md. 366; the C., C. & C.R. R. Co. v. Crawford, 24 Ohio st. 631; Timons v. Central Ohio R. R. Co. 6 Ohio st. 105. 182 LAW OF DAMAGES. the horse was killed by the willful misconduct of the defend- ant. 219. A lady was walking on the street of a populous town, when the locomotive of a railroad company was also pass- ing thesame place. She was, while on the track, run over and injured. She brought suit for damages. The train was running at the rate of ten or twelve miles per hour. The court held that the rate of speed was so great as to show that those managing the train had no care whatever as to who or how many might be killed or injured. The employees of the railroad company did not see the plaintiff until a moment before she was struck. The court held that the plaintiff was wilfully or purposely injured.* 220. And where a person was walking ona railroad track and was killed by an engine belonging to the defendant, the court held that the company was responsible in damages for such killing, though the deceased was guilty of a want of care -and prudence, provided the accident would not have happened if the agent of the defendant had used ordinary prudence and. care in running the train which caused the death, and ordinary care and prudence in giving reasonable and the usual signals of its approach, and in keeping a reasonable lookout.® 21, B. & W.R. R. Co. v. Merown, 46 Ind., 220. *L. IR. R. Co vy. Adams, 26 Ind., 76. If the wrong on the part of the defendant is so wanton and gross as to.imply a willingness to inflict the the injury the plaintiff may recover, notwithstanding his own ordinary negligence. Hawkins v. Cooper, 34 Eng. Com. Law, 842. Ind. & Cin. R. R. Co. v. MeCluer, 26 Ind. 370. L. & I. R, R. Co. v. Huffman, 27 Ind. 287. * Baltimore, etc. R. R Co. v Stae, 36 Md., 366. See also Brown v. H & St. Joseph R. R. Co, 50 Mo. 461; Thompson v. North Mo. R. R. Co., 51 Mo., 190; Huel Senkenkamp v. Citizens’ R. R. Co , 37 Mu., 537, Lynch v. Nurdin, Ala. & El, (N, 8.) 29; Burdge v. Gardner, 19 Conn., 507. NEGLIGENCE. 183 221. Application of the Rule in Case of Contributory Negligence. It is settled that ordinary prudence’ requires a person in the full enjoyment of his faculties and senses to use them before attempting to cross a known railroad track for the purpose of avoiding danger from a passing train, and a failure to do so without a reasonable excuse therefor is negligence, and will de- feat an action for injury to which such negligence contributed.* 222. So if a footman enters upon a street crossing in a city where the moving vehicles are numerous, and a collision with them is likely to produce serious injury, without first looking in both directions along the street to ascertain where any are approaching, and if so their rate of speed and how far a dis- tance they are from the crossing, he is chargeable with con- tributory negligence that will defeat an action for an injury oceasioned by such negligence. These decisions rest on the ground that vehicles and footmen each have the right of pass- ing in common, and in its use are bound to exercise reasonable care for their own safety and to avoid doing injury to others who may be in use of the right of way with them. 223. Where Injury Occurs to a Child. The authorities are very much in conflict as to what degree of care should be re- The C., C.C. R Co.,v. Crawford, 24 Ohio st , 631; 15 Am. Rep. 633 Toledo & Wabash R. R. Co. v. Goddard, 25 Ind., 185; Stines v. O. & S. R. R. Co., 18 N. Y. 422, 29 Id. 315; 25 Barb. 600, 13 Id. 9; E& C. R. RB. Co. v. Hiatt; 17 Ind., 102; Same v. Loudermilk, 15 Ind., 120, Steele v. Burkhardt, 104 Mass., 59 Kearus v. Snowden, 104 Mass., 63: Nicholson vy. the Erie R. R. Co., 41 N. Y. 542; Baxter v. Troy & Roston Co., 41 N 502; Harty v. Central Co., 42 N..Y., 472; Barker v. Savage, 45 N. Y., 191. 5 Baker v. Savage, 45 N. Y. 191; Stevens v. Oswego R. Co., 18 N. Y. 423; Ernest v- Hudson Riv R.R. Co 39 N. Y. 68; Wilcox v. Water- town R. R. Co., 29N. ¥. 358-368; Griffin v. N. ¥. Cen. R R. Co., 40 N. Y. 51; Nicholson v. Erie R. R. Co., 41 N. Y. 542; Baxter v. Troy & Boston Co., id. 505; Harty v. Central R, R, 42 N. Y. 472; BONO v. Com. Bench, (N. 8.) 571 S. C. 98, com. law 571. 184 LAW OF DAMAGES. quired of a child of tender years, and whether the negligence of those having the care:and custody of a child shall be im- puted,to it. The caution and care required varies with the capacity and maturity of the child, and this is to be deter- mined by the jury from all the circumstances of the case.° It looks like a bard rule that would hold a child to the same legal rules in regard to care, danger and diligence in avoiding the consequences of other’s negligent or wrongful acts that is required of a person of full age and in possession of all his physical and mental powers, but the law presumes that parents, in accordance with the instinct of our natures, will watch and guard with an unabating care the person of their thoughtless and helpless offspring. This duty is enjoined upon them by the law that is written in our mental constitu- tions and clearly demonstrated: by our sympathetic. natures. If they neglect this duty and their child is injured by the neg- ligence of another, there can be no recovery. For the reason that the parent is the natural guardian of his child, who has the custody of its person and is responsible for its safety, it is his duty to watch over and guard his child § Railroad Co., v. Gladman, 15 Wall 401. The following instruction was held correct: The fault or negligence of the deceased, which will preclude a recovery by the plaintiff if there was mutual negligence, is not the least degree of fault or negligence, but it must be such a degree as amounted to a want of ordinary care on the part of the deceased at the time of the injury By ordinary care is meant that degree of care which may be reasonably expected of a per- son in the deceased’s situation. Although the deceased may have been guilty of misconduct or negligence which contributed remotely to the injury, yet if the misconduct, negligence, unskillfulness or criminal in- tent of the defendant, its agent or servant was the immediate cause of ‘the injury, with the exercise and care the defendant might have pre- vented the injury, then it isliable Leddy v. St. Louis Co., 40 Mo. 511; see also Keefe v. the Chicago R. R. Co; 827id. 468; Sweeny v. Old Colony, &c., Co., 11 Allen 369; Sells v. Brown, 9 C. & P. 601; Rigley v. Huett, 5 Exch, 239. NEGLIGENCE. 185 from danger and to provide for its welfare, and it is the duty of the child to submit to his government and control. It is entitled to his superintendence and protection, and is conse- quently subject to the disadvantages resulting from the exer- cise of that parental authority, which is both his right and duty to exert. Any want of ordinary care, therefore, on the part of the parent is attributed to the child in the same degree as if it was acting wholly for itself.’ But it should be remembered that the only negligence of those who have the control of a child that can be imputed to it, is such as related to the exercise of their authority in con- trolling the conduct and actions of the child. We think the. true rule is that a child is chargeable with any negligence of his guardian in putting or keeping the child in a position of danger, or in permitting it to be in such position, but not for any negligence of his guardian in an individual capacity. Suppose, for illustration, that a child is riding on a boat pro- pelled by steam with his guardian, and while the boat is in motion the guardian, by some means, causes the boiler to the engine ‘to explode, and the child is injured, the act of the guardian could not be imputed to the child; or, suppose that a father permits the gas pipe of his house to leak, his negligence in this respect could not be chargeable to the child so as to bar 1 Pittsburg, Fort Wayne and Chicago R. W. Co. v. Vining, adm., 27 Ind. 513; Hughes v. Mayfie, 2 Hul. and Colt. 744; Morgan v. Atherton, Law Rept Ex, vol. 1 page 239; Hatfield v. Roper et al., 21 Wend. 615;. Holly v. Boston Gaslight Co. 8 Gray 123; Lynch v. Nurdyne, 12 B. 29; Wait v. N. E. RB. Co., 96 E. Com L. 719; Singleton v. the Eastern R. R. Co., 97 Eng: Com. L. 287; Campbell on Neg, Sect. 81; Lafayette R. R. Co. v. Huffman, 28 Ind. 287; the Jeffersonville R R. Co. v. Brown, 40 ind. 545; Hathaway v. Toledo, &c., R. R. Co., 46 Ind. 25; Magam v. Brooklyn R. Co., 36 Barb 230, 38 N. Y. 455; Flynn v. Hatton, 43 How. Pract. 333; Leham v. Brooklyn, 29 Barb. 234; Kreig v Wells, 1E. D. Smith 74; Callahan v. Bean, 9 Allen 404; Wright v. Malden, &c., R. R. Co., 4 Allen 283; Chicago v. Starr, 42 Ill. 174. 186 LAW: OF DAMAGES. an action by the latter for an injury caused by an explosion of the gas through the defendant’s negligence. But it would be different if the circumstances of the case made it the duty of the father, as father, to remove his child from the house. His failure to do so would be chargeable to the child precisely as if he had been of full age and had neglected to remove.’ But if the parent or guardian has taken reasonable care of the child and, notwithstanding the use of such care the child escapes into a dangerous place and is injured, there is no negli- gence on the part of the parent or guardian that can be im- puted to the child.® 224. The Conflict of Authoritzes. As has already been said the authorities are very much in conflict upon the question of ‘the amount of care that the law requires children to exercise in avoiding danger. But as law and reason generally har- monize, it may be laid down as a general rule that the caution and care required varies with the capacity and maturity of the child and the surrounding circumstances, and this is to be de- termined by the court or jury trying the cause from all the ? The Pittsburg, Fort Wayne & Chicago R. R. Co. v. Vining, adm., 27 Ind. 513; Wright v. the Malden & Melrose R. R. Co. 4 Allen 283; Shear- man & Redfield on Neg., S. 48 P 61; Lannen v. Albany Gas Co., 46 Barb. 264, 44 N. Y. 459; Lynch v. Smith, 104 Mass. 52; Ihl v. 42 D. St. Co., 47 N. Y. 323; Hatfield v. Roper et al., 21 Wend. 615; Magon v. At- terton Law Exch., vol. I 239; Holly v. the Boston Gas Light Co., 8 Gray 123; Campbell on Neg., 81. 8 Shearman & Redfield on Neg., Sect. 48, P. 61; Lannen v. Albany, 46 Barb. 264; affirmed 44 N. Y. 459; Honingsberger v. Second Avenue, &c., R. Co., 33 How. Pract. 193; reversing S C.1 Daly 89; Burke v Broadway R. R. Co., 49 Barb. 529; 34 How. (N. Y.) 289; Horr v. Parks, 40 Cal. 188. Unless there is unusual exposure to danger there is no negligence whatever in allowing a child between ten and twelve years of ordinary activity and intellect to be on the street. Horr v. Parks, 40 Cal. 188. » NEGLIGENCE. 187 facts and circumstances of the case.1 Reason would say as a rule that less caution and prudence would be required of a child five years old than one ten years old, and of one ten years old than of one fifteen. The law recognizes the fact that chil- dren, and especially those of tender years, are incapable of ex- ercising that degree of care that is ordinarily expected of per- sons of mature years, from the fact that they are incapable of reasoning from cause to effect and of apprehending the dan- ger that surrounds them. Thus, where a child was permitted by his parents to cross the street, and while crossing he was injured by the negligence of a traveler, the court held that the child could recover for the injury if he was using that degree of care of which he was capable to avoid the injury, though it was a less degree than an adult would have used under the circumstances.” 225. The General Rule in Reference to Children. The weight of authority in this country is almost unanimously in favor of holding an infant, so far as he is personally concerned, only to such degree of care as is usual among children of his age. Therefore, what would be considered negligence on the part of an adult might not, under exactly the same circumstances, be ' Railroad Co v. Gladman, 15 Wall (U. 8.).401; Stout v. Sioux City, &ce, R. R. Co., 2 Dill C. C. 294; Field on the law of dam., Sect. 192. * Lynch v. Smith, 104 Mass. 52; Field on the law of damages, S. 192: Shearman & Redfield on Neg.; see Ihl v. 42 R. Co., 47 N. Y. 323; Mc- Mahon v. New York, 33 N. Y. 64. Where the defendant exposed in a public place for sale, unfenced and without superintendence, a machine which. might be set in motion by any passer-by and was dangerous when in motion, the plaintiff, a boy four years old, by the direction of his brother, seven years old, placed his finger within the machine while another boy was turning the handle which moved it, and his finger was crushed, the court held that he could not recover for the injury. Magon v. Atterton Law Rep. Ex., vol. 1 p. 239; see Hughes v. Macfie, 2 Hurls & Colt 744; Holly v. Boston Gas Light Co., 8 Gray 123. . 188 LAW OF DAMAGES. considered negligence on the part of achild. The law judges of the negligence by the capacity or ability of the party to comprehend the danger that surrounds him.® 226. State in Which the Contributory Negligerice of Parents and Guardians are Held to be No Defense. In Vermont, Connecticut, Pennsylvania, Ohio, and perhaps in Missouri, the whole doc- trine that the negligence of the parent or guardian is to be imputed to the child is repudiated, and it is held that such negligence is not to be considered in an action brought by a child.’ 227. The Distinction Where the Action is Brought by the Parents. The decision of almost all the courts of this country draw a distinction between action by or on behalf of parents or other persons and action by the injured child. They uniformly hold that in an action brought by the parents or representa- ® Railroad Com. v. Gladman, 15 Wall (U. S.) 401; Ihl v. 42d St. R. Co., 47 N. Y.317; Mangam v. Brooklyn R. Co., 38 N. Y. 455; O’Mara v. Hud- son R. Co., 38 N. Y. 445; Rauch v. Lloyd, 31 Pa. st. 358; Pa. Co. v. Kelly, id. 572; Smith v. O’Connor, 48 Pa, st. 218; North Pa. R. Co. v. Mahony, 57 Pa. st: 187; Robinson v. Cone, 22 Vt. 213; Munn v. Reed, 4 Allen 431; Lynch v. Smith, 104 Mass. 52; Berger v. Gardner, 19 Conn. 507, Brown v. Southberry, 37 Conn. 199; Lynch v. Nurdine, 12 B. 29; Baltimore R. Co. v State, 30 Md. 47; Schmidt v. Milwaukee, &c., 23 Wis. 186; Kerr v. Forgue, 54 Ill. 482; O’Flarherty v. Union R. Co, 4 Mo. 70; P. R Co. v. Spearen, 47 Pa. st. 30; Chicago R. R. Co. v. Denny, 26 Ill. 255; Rockford, &c., R. R. v. Delany, 82 Ill. 198; McMillan v. Burlington, &c., R Co., 46 Iowa 231. Where the question of constructive negligence is raised as to acts of a young and inexperienced person employed in a dangerous vocation, his acts are to be judged with reference to his youth and experience. St. Louis R. Co. v Valerius, 56 Ind 511. * Robinson v. Cone, 22 Vt. 213; Daly v. Warrick Co., 26 Conn. 591; North Pa. R Co. v. Mahony, 57 Pa. st. 187; Smith v. O'Connor, 48 id, 218; Bellefontaine R. R. Co. v. Snyder, 18 Ohio st. 239; Mo. opinion of Wagner, J., in Isebel v. the Hannibal, &c., R. R., May term, 1815, Cent. L. J., vol. 2, p. 590, NEGLIGENCE. 189 tive of the deceased that there can be no recovery if the evi- dence shows that the injury was caused by the contributory negligence of those to whom the law gives the damages. This rule is based upon the old maxim that a man shall not take advantage of his own wrong and in pari delicto potior est conditio defendentis, And it may be laid down as a general rule that when a parent or master or representative sues for the loss of service, caused by the‘injury to the child, there can be no re- covery, if the real plaintiff or the party who is entitled to the damages by his negligence directly contributed to the injury.‘ \ 228. The Degree of Care Required of a Defendant When Chil- dren are Likely to be Injured. Where the question is one of sim- ple negligence we think that the weight of authority makes no distinction between the case of a child unnecessarily ex- posed and that of a person of mature years, but where the question becomes one of gross negligence the rule is not the same. Thus, if the engineer of a locomotive discovers a child on the railroad track, the law would require him to use greater eftort to stop the train than if had discovered a grown person in the same situation. In the latter case he could reasonably presume that the adult would use a reasonable effort to save himself from injury, but in the former he could entertain no such presumption.® 229. Drunkenness. The fact that the plaintiff, at the time the accident happened was in a state of intoxication will not excuse him from using that degree of care that the law re- 4 Glassey v. Hestonville & R. Co., 57 Pa. st. 172; Birmingham v. Dorer, 30 Brewster 69; Field on the law of dam , Sect. 195; Shearman & Redfield on Neg., Sect. 48. 51. & I, R. R. Co. v. Huffman, 28 Ind. 287. = \ 190 LAW OF DAMAGES. quires of sober men in the same situation. But we think that where the defendant is charged with gross negligence, the fact that the plaintiff was in a helpless condition from the ex- cessive use of intoxicants, should be considered by the court or jury trying the cause in arriving at a conclusion as to the de- gree of negligence that should be attributed to the defendant. 230. Blind, Insane and Foolish Persons. The law respects human infirmities, and watches with a guardian care over the person and property of those who are unable to protect them- selves. And when one’s conduct is called in question it in- quires into his capacity, in order to measure the degree of care that he is required to exercise. -And when one is destitute of the faculty of seeing, or is insane or foolish, he is only required to exercise the faculties that he has, according to the best. of his ability. The same degree of care that is required of an infant in respect to acts of contributory negligence, is applicable to blind, insane and foolish persons. They are only required to excrcise the faculties they have.’ 231. “The question whether a party has been negligent in a particular case is one of mingled law and fact. It includes, indeed, two questions: (1) whether a particular act has been performed or omitted; (2) whether the performance or omis- sion of this act wasa breach of legal duty. The first of these is a pure question of fact; the second, a pure question of law.’? Thus: : Il. Cent. v. Hutchinson, 47 Ill, 408; but see Meyer v. Pacific R. Co., 40 Mo. 151; Field on the law of dam. sect. 198; O'Hagan v. Dillon, 42 N. Y. Superior Court, 456. ‘Sleeper v. Sandouen, 52 N. H., 244; see ant. page on infants. Field on the laws of damages, sects. 199-200. *Shearmon and Redfield on Neg., 11-12; Tarwater v. Hannibal R. Co., 42 Mo., 193, -NEGLIGENCE. 191 In the case of Young v. Harney, which was an action brought to recover damages for the negligent killing of.a horse, the defendant was the owner of an unenclosed lot, in a suburb of the city of Indianapolis, near the line of the streets. He commenced digging a well on his lot, forty-two inches across, andsunk it tothe depth of six feet, and then abandoned it. It rerhained a long time in this condition, except that it was sometimes partially covered over with loose boards, but never entirely, and most of the time not atall. The holeor pit was useless. The city of Indianapolis contained about twenty-five thousand inhabitants. Horses and cattle were permitted to run at large, by aii order of the Board of Commissioners of the county, and they were in the habit of grazing in large num- bers near the defendant’s well. On acertain day the plain- tiff’s horse fell into the defendant’s well and was killed, andthe plaintiff brought suit for damages. The cotrt held that the defendant’s liability depended upon the degree of probability there was that such accident might happen from thus leaving exposed the partially dug well, considered in connection with the usefulness of the act or thing causing the damage. If the probability was so strong as to make it the duty of the owner of the lotasa member of the community, to'guard that com- munity from danger to which the pit exposed it, members in person and property, he was liable to an action for loss occurring through his neglect to perform that duty. Held thatthe leav- ing the well in the condition it was, with the surrounding cir- cumstances was negligence, and that the defendant was liable.' 232. How a Man Should Use his Own Property. An clemen- tary principle and one that we have referred to in a former 116 Ind. 314; Durham v. Musselman, 2 Black (Ind.) 96. Where the defendant cut a tree on his unenclosed land so that it was nearly ready to fall, and set it on fire, and it fell afterward and killed plaintiff’s horse, held that defendant was not liable. 2 Black 96. 192 LAW OF DAMAGES. part of this work, is that a@ man must so “use his own rights and property as to do no injury to those of his neighbors, for in all civil acts the law does not so much regard the interest of the actor as the loss and damages of the party suffering.”? This principle can be applied to the facts and circumstances of almost every case involving the question of negligence. It has, therefore, been frequently held that every person who occupies land, who allows wells or mining shafts to remain on his land unguarded and unpro- tected, is responsible in damages to all persons who sustain injury from falling into them, provided they were lawfully traversing the land on which the shaft or well existed and fell into it without negligence or misconduct on their part, but if they were at the time trespassers on the land they could not recover.’ 233. Negligence Not Imputed to a Person in the Act of Saving Ife. Where one sees a little child on a railroad track and a train is rapidly approaching, so that the child unless rescued would be instantly killed, and he makes an effort to save the child and rushes upon the track for that purpose and is killed, the law has such a high regard for. human life that it will not impute negligence to the deceased, unless made under circum- stances constituting rashness in the judgment of a prudent ? Saunders’ Negligence, 61; Gagg v. Vetter, 41 Ind. 228. 5 Hardcastle v. the South Yorkshire R. W., 4 H. & N. 67; 28 L. J. Exch. 137; Blyth v. Topham, 29 L. J. 203; Hounsell v. Snyth, 7 C. B. N. 731; Gantrel v. Egerton, 36 L. J. C. P. 318; Gallagher v. Humphries, 6 Law Times 684; Groveatt v. Williams, 4 Best and S. 149, 82 L. J. Q. B. 237; Holland v. Vince, 10 Met. 371; Bush v. Brainard, 1 Comen. 78; Gagg v. Vetter, 41 Ind. 228. When the defendant is liable in the action, the plaintiff was entitled to recover as a part of his damages compensation for his loss of physical and mental capacity so far as proved to have been caused solely by the defendant’s negligence, and the jury must ascertain from the evidence what injury the plaintiff has sustained. Holyoke vy. G. T. R. R. Co., 48 N. H. 541. NEGLIGENCE. 198 person, and it is for the jury to say in such case whether the conduct of the party injured is to be deemed rash and reckless.* 234. Remote Consequences. It is a well settled rule that every person who does a wrong is responsible for all the mis- chievous consequences that may reasonably be expected to re- sult under ordinary circumstances from such misconduct. When one officiously interferes with or makes use of the prop- erty of another without his permission, he will be held re- sponsible for all the consequences of such interference, whether he intended the injury or not.! Where the consequence of an unlawful act are immediate, he who does the act is considered as the active doer of all that directly follows.’ But the general rule is that the wrong doer will only be held responsible for the natural and proximate consequence arising from his negli- gent act, and will not be held for such consequence as could not have been foreseen by the exercise of due diligence and reason. He will not be responsible for consequences arising from a combination of causes or a conjunction of his fault, with circumstances of an extraordinary nature.’ If the defendant by his negligent conduct has produced a cause, if uninterfered -with would harm no one, and a third person or a new inde- ‘Eckert v. Long Island R. Co., 43 N. Y. 502; Youmans vy. Padden, 1 Mich. (N. P.) 127. A person is not to be charged with negligence because he does not, when suddenly startled by the cry of danger, do exactly whatone not ex- posed might think he might or ought to do. I, B. & W. R. Co. v. Carr, adm., 35 Ind. 510; see Chicago v. Hesing, 83 Tl. 204. 1 Burdock v. Worrell, 4 Barb. 596; Cruft v. Newark, &c., R. Co., 35 N. Y.17; Wharton on Neg., Sect. 134; Tindle, C. J., in Davis v. Garrett, 6 Bing. 716; Rigley v. Hewett, 5 Exch. 243; Albertson v.Chandle, 11 Mich. 542; Wright v. Gray, 2 Bay 464; Vanderburg v. Truax, 4 Denio 464; Fent v. T. R. Co., 59 Ill. 49. ? Burdock v. Worrell, 4 Barb. 596; 1 Hillard on Torts, 85; Fairbanks v. Kerr, 7 Pa. st. 86; Ryan v. N. Y. C.R.R. Co., 30 N. Y. 210. 5 Walrath v. Redfield, 11 Barb. 368; Butler v. Kent, 19 Johnson 223. 194 . LAW OF DAMAGES. pendent agency intervenes, and by the “conjunction of the two the plaintiff is injured, there can be no recovery.’ 235. The Rule as to the Precised Point Where Pecuniary Re- sponsibility Ceases Not Definitely Settled. There is quite a conflict and not a little confusion among the authorities as to the pre- - cised point at which pecuniary accountability for the conse- quence of a negligent act is to cease. There has been effort after effort put forth by the courts of last resort, both in this country and England, to lay down some definite rule that would be applicable alike to all cases, but so far they have only succeeded in laying down a principle that can be applied with a degree of accuracy to most cases. It is embodied in the common law maxim, “Causa proxima non remote a spectature,” the mmediate and not the remote cause is to be considered.* , As we have already said the damages: that the plaintiff can recover must be the natural and proximate consequence of the act complained of. The difficulty that the courts have encountered in attempting to establish a general rule is to draw the line between the proximate and remote consequence.® It is obvious that in almost every considerable disaster the result of human agency and dereliction of duty, a train of con- sequence generally ensues and so ramifies as, more or less, to affect the whole community. It is clear that indemnity can- not reach all these results, although parties suffer who are innocent of blame. This is one of the viccitudes of organized society, and every person who is a member of society must take the risk of these viccitudes.’ This is clearly illustrated 5 Cruft v. Newark, &c., R. R. Co., 85 N. Y. 17; Wharton on Neg., 134. Penn. R. R. Co. v. Kerr, 62 Pa. st. 383; 1 Am. Report 4381. 5 2 Greenleaf evid., Sect. 256. 6 Penn. R. R. Co. v- Kerr, 62 Pa. 353. "Penn. R. R. Co, v. Kerr, 62 Pa, 353; Report in 1 Am. Report 481. NEGLIGENCE. 195 by supposing that A owes B five thousand dollars, which he agrees to pay at a designated time. A fails to pay the money at the time specified B, by reason of which he is unable to meet his engagements and is thrown into bankruptcy and ruined, and many of his creditors are crippled financially. The result is plainly traceable to the failure of A to pay as he agreed. But, notwithstanding the fact that B has been ruined by A’s misconduct, the law in case he is sued would only com- pel him to pay his debt with interest. “He is not held for consequences which he had no direct hand in producing and no reason to expect.” The immediate cause of B’s bankruptcy was his failure to pay his debts. ‘The cause of the cause was the failure of A to pay him, but this was the remote cause be- ing thrown back by the interposition of the proximate cause, the non-payment of B. of his own debt.” 236. How to Ascertain Whether the Defendant is Liable. The best way to arrive at a conclusion as to the liability of the defendant is to ask the question, ‘ Did the cause alleged pro- duce the effect or injury complained of without another cause intervening, or was it made to operate only through or by an intervening cause?” But this test is not perfect, for there are cases in-which the cause of the disaster, although seemingly removed from the original cause, are still incapable of being separated from it. ‘We are inclined to the opinion that the general rule should be that every defendant should be held responsible for all those consequences arising naturally, that is according to the usual course of things or such as might have been fore- seen and expected as the result of his conduct, and not for those that arise unusually or which could not have been foreseen and which he was under no moral obligation to take into consideration.’ 11 Penn. R. R. Co. v. Kerr, 62 Pa. 353; 1 American R. 481; | 8 Parson Cont. 198. 2 2 Parson on Contract, Vol. IT, P. 880. ’ Hadley v. Baxendale, 9 Exch. 341; Pa, R. R. Co. v. Kerr, 353. 196 LAW OF DAMAGES. Under this rule the first efficient and adequate cause, as well as every intermediate cause necessarily following from the first cause, is considered the proximate cause, unless some new cause independent of the first cause shall intervene be- tween the first cause and the final injurious result. The prox- imate and remote cause and effect do not have reference to time nor distance, nor merely to the succession of events or to the succession of cause and effect. A wrong-doer is not merely responsible for the first result of his wrongful act, but he is also responsible for every succeeding injurious result that could have been foreseen by the exercise of reasonable dili- gence, as the reasonable, natural and probable consequence of his own act. He is held responsible for any number of in- jurious results consecutively produced by impulsions, one upon another, and constituting distinct and separate events, pro- vided they all necessarily follow from the first wrongful cause. And where any number of causes and effects intervene between the first wrongful cause and the final injurious consequence, and if they are such as might with reasonable diligence have been foreseen, the last result, as well as the first and every in- termediate result, is to be considered the proximate result of the first wrongful cause. But the fact should not be over- looked that if a new cause intervenes that is not the conse- quence of the first wrongful cause and which is not under the control of the wrong-doer, or which could not have been fore- seen by the exercise of reasonable diligence by the defendant — and except for which the final injurious consequences could not have happened, then such injurious consequences must be deemed too remote and there can be no recovery.® 237. The Conflicting Views. We have already referred to the fact that the authorities are not harmonious upon the 5 A.,T. &S. Fe R. R. Co. v. Standford, 12 Kansas 354; Pa. R. R. Co. v. Kerr, 62 Pa. 353. NEGLIGENCE. 197 question of the liability of the wrong-doer for the consequences of his act. The Supreme Court of the State of Pennsylvania, in a recent well-considered case, held that where the plaintiff's warehouse, situated on a railroad, was set on fire by the negli- gent escape of sparks from the defendant’s locomotive, which was running on said road, and the burning warehouse com- municated fire to the plaintifi’s hotel, (situated thirty-nine feet distance), whereby it was destroyed, the plaintiff could not recover, as the burning of the hotel was too remote.* In this decision the Pennsylvania Court follows the decision of the Court of Appeals of New York, in the case of Ryan v. the New York Central Railroad Company.° Those cases have been the subject of much criticism since they were decided, and it may, perhaps, be doubted whether they have always been quite understood. If they were in- tended to assert the doctrine that when a building has been set on fire through the negligence of a party, and a second building has been fired from the first, it is'a conclusion of law that the owner of the second has no recourse to the negligent wrong-doer, they have not been accepted as authority for such a doctrine even in the States where the decisions were made.° And they are certainly in conflict with the weight of authority." . In a recent case in the Supreme Court of the United States in an action to recover compensation for destruction by 4 Penn. R. R. Co. v. Kerr, 62 Pa. st. 353. 5 35 N. Y. 210. ® Pa. RB. RB. Co. v. Hope, 80 Pa. st. 373; Webb v. Watertown & Ogdens- burg R. R. Co., 49 N. Y. 420. ' Kellogg v. C. & N. W. RB. R. Co., 26 Wis. 224; Perly v. Eastern R. R. _ Co., 98 Mass. 414; Higgens v. Dewy, 107 Mass. 404; Lent v, T., P. & W. R. R., 49 Ill. 349. 198 LAW OF DAMAGES. fire of the plaintiff's saw-mill and a quantity of lumber, situated and lying in the State of Iowa on the banks of the Mississippi River, it was admitted that the property was de- stroyed by fire. The fire was negligently communicated from the defendant’s steamboat, Jennie Brown, to an elevator built of pine lumber one hundred and twenty feet high. The mill stood five hundred and eighty feet from the elevator, and that the nearest of the plaintiff’s piles of lumber was three hundred and eighty feet from the elevator. It was claimed by the defendant that the plaintiff could not recover, as the prox- imate cause of the burning of the mill and lumber was the burning of the elevator and the injury was to remote. After reviewing the authorities the court said: “The true rule is that what is proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of facts attending it. The primary cause may be the proximate cause of the disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by force applied to the other end, that force being the proximate cause of the movement, or, as in the oft-cited case of Squib, thrown into the market place. * * * * * * * * * The question always is, Was there an- unbroken connection between the wrongful act and the injury a continuous opera- tion? Did the fact constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application, but it is generally held that in order to warrant a finding that negligence or act not amounting to wanton wrong is the proximate cause of the injury. It must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of attending circumstances. These cir- NEGLIGENCE. 199 cumstances in a case like the present are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximate and combustible nature of the saw-mill and the piles of lumber. Most of these circum- stances were ignored in request for instruction to the jury, yet it is obvious that the immediate and inseparable consequences of negligent fire the elevator would have been very difterent if the wind had been less, if the elevator had been a low build- ing constructed of stone, if the season had been wet, or if the lumber and mill had been less combustible. And the de- fendant might well have anticipated or regarded the probable consequence as much more far-reaching than would have been natural or probable in other circumstances. We do not say that even the natural and probable consequence of a wrongful act or omission are in all cases to be chargeable to the mis- feasance or non-feasance. They are not when there is a suffi- cient and independent cause operating between wrong and in- jury. In such case the resort of the sufferer must be to the originator of the intermediate cause. But where there is no intermediate efficient cause the original wrong must be considered as reaching to the effect and proximate to it. The inquiry must, therefore, always be whether there was an in- termediate cause disconnected from the primary fault and self- operating which produced the injury. Here lies the difficulty. But the.inquiry must be answered in accordance with the common understanding. In a succession of dependent events an interval may always be seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. Thus, if a building be set on fire by negligence and an adjoining one be destroyed with- out any negligence of the occupant of the first, no one would doubt that the destruction of the second was due to the negli- gence that caused the burning of the first. The same might be said of the burning of the furniture in the first. Such re- finements are too minute for rules of social conduct. In the 200 LAW OF DAMAGES. nature of things there is in every transaction a succession of events more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts and ascertain whether they are naturally and probably connected with each other by a continuous sequence or are disserved by new and indepentlent agencies, and this must be determined in view of the circumstances existing at the time.” The finding for the plaintiff in the court below was confirmed. In a recent case in California, where sparks from the de- fendant’s locomotive set fire to cut and dried grass and weeds which the Railroad Company had permitted to lie in a com- bustible state upon its land along the track and the fire was communicated thence to an adjoining field and through stub- ble and uncut, but dry, grass to a wheat stack, which was thus consumed, it was held that the defendant was liable? It was also held by the Supreme Court of the State of Wisconsin in 1870 that where fire caused by sparks from the engine used by a Railroad Company were communicated to the land of an ad- joining owner by means of dry grass,weeds and bushes allowed to accumulate along the line of the track, that the defendant ‘ Milwaukee, &c., R. R. Co. v. Kellogg, 94 U. S. Report 469. The general rule of damages for tortious acts is this: One who com- mits such an act is liable for the injury which is the natural and proba- ble consequence of his misconduct. He is liable not only for those in- juries which are caused directly or immediately by his act, but also for each consequential injuries as, according to the common experience of men, are likely to result from it. Nor is he exhonerated from liability by the fact that intervening events or agencies, such as according to common experience and the usual course of events might reasonably be anticipated. Derry v. Fletner, 118 Mass. 131; Propeller Mont. ed. v. Mallison, 17 How. 252; Perely v. East R. R. Co., 98 Mass. 414. 2A.,T. &8. F. R. R. Co. v. Standford, 12 Kansas 354; 15 Am. R. 362; Flynn v. 8. F. & 8. J. R. R. Co., 40 Col. 14; Milwaukee, &c. R R. Co. v. Kellogg, 94 U. 8. (4 Otto) 469. NEGLIGENCE. 201 was liable, and that the fact that the property destroyed was at adistance from the place where the fire originated, did not affect the question of the liability of the company or render the fire the remote and not the proximate cause of the injury.’ 238. The Measure of Damages. The liability of the defen- dant for damages in case of tortious negligence is broader than in an action on contract. The amount of recovery will vary with the circumstances of each case. But the defendant will be held responsible not only for all the damages which a pru- dent man would expect to result from his fault, but also for all that a prudent man would anticipate as a possible consequence thereof, and where the amount of damages cannot be accurately determined the law compels the wrong-doer to bear the burthen of such difficulty, and where there is no preponderance of evidence on either side in favor of one of two or more amounts he must pay the largest sum.* 239. The Proximate Consequences. The defendant will be held responsible for all the proximate consequences of his act or default. But courts have found great difficulty in drawing the litte between the proximate and remote causes. But this difficulty can he obviated to some extent by considering the first efficient and adequate cause, as well as the intermediate causes necessarily following from the first cause as the proxi- mate cause, unless seme new cause independent of the first 3 Kellogg v. the C. & N. W. R. Co., 26 Wis. 223. The defendant put a dangerous spike hurdle on a private road over which he and others had a right of way. Some person without the knowledge of the defendant moved the hurdle a few yards. On a dark night the plaintiff, who was not a trespasser, without negligence and thinking to avoid the original position of the hurdle, came into collision with it and was injured Held, that the plaintiff could recover. Man- gan v. Alterton, 4 H. & C. 388, L. R. 1 Ex. 239. 4 Shearman & Redfield on Neg., S. 594; Leeds v. Amherst, 20 Bean 239, \ 202 LAW OF DAMAGES. cause shall intervene between the first cause and the final injurious result.’ 240. Prospective Damages. It is well settled that the plaintiff is entitled to recover one compensation for all his in- juries, past and prospective, in consequence of the defendant’s wrongful acts. But damages for future suffering must be lim- ited to such as would result with reasonable certainty from the injury complained of—a mere probable injury is not enough.® / 241. Element of Damages that May be Recovered in Case of a Personal Injury. Expense of nursing ; medical expense ; loss of time during disability ; loss of both bodily and mental powers, or for actual suffering both of body and mind.” 5A.7T.&S F.R R Co. v. Standford, 12 Kansas 354; 15 Am. R. 362; Milwaukee, &c., R. R. Co. v. Kellogg, 94 U. S. 469; Shearman & Redfield on Neg., 679; See -anti-page of this chapter under the head of remote conseqnences. 6 Fry v. Dubuvue & § R. R. Co., 45 Iowa 416; Curtis v. Rochester, 18 N. Y. 534; Fulsom v. Concord, 46 Vt. 135; Holyoke v. Grand Trunk R. Co., 48 N. H. 541; Lindsy v. Town of Danville, 46 Vt. 144; Nones v. Northouse, 46 Vt. 587; Kerr v. Forque, 54 Ill. 482; Shearman & Redfield on Neg., Sect. 595-596; Topeka v. Tuttle, 5 Kansas 312-425; Daily v. Dis- mal Swamp Canal Co., 2 Ired (N. C.) law 222; Peoria Bridge Asso. v. Looms, 20 Ill. 235; Frink v. Schroyer, 18 Ill. 416; Memphis, &c., R. R. Co. v. Whitfield, 44 Miss. 466; Spicer v. C.& N. W. R. R. Co., 29 Wis. 580. In actions on the case, unless the injury complained of be of such a nature that actions can continually be brought from time to time, the jury may assess all the damages the plaintiff has sustained up to the time of the trial. They are not confined to damages sustained previous to the date of the writ. Daily v. Dismal Swamp Canal Co., 2 Ired (N. C.) law 222. A jury in assessing damazes against a railroad corporation for an in- jury occasioned hy its neglect, may take into consideration any promi- nent damage which the evidence shows in the nature of a consequential injury. Peoria Bridge Asso. v. Looms, 20 Ill. 235, 18 Ill. 416. "Holyoke v. G. T. R.Co., 48 N. H. 541; Hopkins v. Atlantic & St. NEGLIGENCE. : 203 242. Damages in Case of Personal Injury. The damages should embrace indemnity for medical expense; also loss of time or loss from inability to perform ordinary labor, or capacity to earn money; the reasonable satisfaction for loss of both bodily and mental powers, or for actual suffering both of body and mind, which are shown to be the immediate and necessary consequence of the injury wrongfully received, and in case of willful injury exemplary damages are some times added.’ Lawrence R R. Co., 36 N. H. 14; Shaw v. B. & W. BR. R. Co., 8 Gray 28; Ransom v. N. E. R. R. Co., 15 N. Y. 415; Thebold v. the Railway Pass Insur. Co., 26 Eng. Com. Law and Eng. Report, 482; 18 Adolphus & Ellis Rep., N. S. 93; Blake v. the Midland R. R. Co., 10 Eng. Law and Eng. Rep. 437; Lindsy v. Bushnell, 15 Conn. 290; Canning v. Williams- town, 1 Cush. 451; Lincoln v. 8.S. R. R. Co., 28 Wend. 425; Segar v. the Town of Barhamstead, 22 Conn. 290; Cadwell v. Murphy, 1 Duer. 233; Perkins v. Concord R. R. Co., 44 'N. H. 155; Peoria Bridge Asso. v. Looms, 20 Ill. 235; Barksley v. Swan, 4 McLain 333; Moody v. Osgood, 50 Barb. 628; Wade v. Leroy, 20 How. (U. S.) 34; Morse v. Auburn, &c., R. Co., 10 Barb. 621. 1In an action for damages for personal injuries the amount of the award for loss of power to earn money and fer pain and anguish suffered by reason of the injury, rests with the discretion of the jury. Morris v. Chicago, &c., R. R. Co., 45 Iowa 29; Indianapolis v Gaston, 58 Ind. 224; 2 Greenleaf evid., S. 267; Cox v. Vanderleed, 21 Ind. 164; Hendrickson v. Kingsbury, 21 Ia. 379; Wily v. Keokuk, 6 Kansas 94, Holyoke v. G. T, R. R. Co., 48 N. H. 541; Hopkins v. the Atlantic & St. Law. R. R. Co., 36 N. H. 14; Shaw v. the Boston & Wore. R. R. Co , 8 Gray 82; Ransom v. the N. Y.& E k. R. Co., 15 N. Y., 415; Thebold v. R. R. Pass. Ins. Co., 26 Eng. L. & E. 432; 18 Adolphus & Ellis, N. 8. 93; Blake v. Midland R. R.Co,10E.L & Eng. R. 437; Lindsly v. Bushnell, 15 Conn. 225, Segar v. Town of Barkhamstead, 22 Conn. R. 290; Canning v. Williamstown, 1 Cush. 451; Lincoln v faratoga & Sch. R. R. 23 Wend. 425; Cadwell v. Murphy, 1 Duer. 233; Perkins v. Concord, 44 N. H. 155; Taber v. Hud- son, 5 Ind. 322. In case of a personal injury the plaintiff can recover for the bodily in- juries sustained, the pain undergone, the effect on the health of the suf. ferer according to its degree and its probable duration as likely to be temporary or permanent, the expense incidental to attempts to effect a ‘cure or to lessen the amount of injury, the pecuniary loss sustained through inability to attend to professional business, which again may be a temporary character or may incapacitate the party for the remainder XV 204 LAW OF DAMAGES. 248. The Jury Should Consider all the Facts. The general rule in all cases of torts is redress commensurate with the in- jury complained of. In ascertaining its extent the jury should consider all the facts that relate to wrongful acts of the defend- ant and its consequences to the plaintiff, but they are not at liberty to go farther, unless the act was done willfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case the jury, in some states, are authorized, for the sake of public example, to give such additional damages as the cir- cumstances require. The tort is aggravated by evil motives. On this rests the rule of exemplary damages.’ 244 The Rule for the Assessment of Damages in Cases of Injury to Real and Personal Property. There are principles of natural justice the application of which the amount that the in- jured party ought to recover, may in all cases be readily and certainly determined, and it is that the owner, to whom the compensation is due, must be fully indemnified, and that the wrong-doer must not be permitted to derive any benefit or ad- vantage whatevecrfrom his wrongful act. The injured party must be placed in the same situation in which he would have been had the wrong not been committed or had it been in- stantly repaired by the payment of the compensation then due. As the actual loss to the owner is the same whether the injury arise out of trespass or omission of duty, the rule of com- plete compensation in both classes of cases should be the rule for the assessment of damages. As has already been said, in of his life. Phillips v. L. & South W. Co., No. 7 Cent. Law Journal of August 15, 1879, page 125, ? Milwaukee & St. Paul R. R. Co. v. Arms, 91 U.S. stat., 489; Day v Woodworth, 13 How., 371; Baltimore R. R. Co. v. Quigley, 21 How. 213; Suydam v. Jenkins, 3 (Sandford) N. Y. Superior Court, 641. ‘Suydam v. Jenkins (3 Sandford) N. Y. Superior Court, 641. An amount sufficient to indemnify the party injured for the loss which NEGLIGENCE. 205 aggravated cases of torts, exemplary damages are sometimes added. 245. Damages to Real Estate. The general principle of full compensation for actual loss sustained, which we havercferred to as applicable in assessing damages generally in actions of tort, are applicable in cases of negligence, whether of miss- feasance or non-feasance. Therefore, in case of injury by neg- ligence to real property, the ordinary rule of damages is the difterence between the market value of the property immedi- ately before, and its like value immediately after the injury oc- curred.* This, however, is not a universal rule. Sometimes, where the injury can be repaired at a slight expense, that ex- pense will be taken as the measure of damages. And in case of injury, to fruit, shade, or ornamental treess, destroyed or in- jured, the value of the tree, or damages for the injury may be assessed apart from the land.’ & 246. Personal Property— Damages. For injury to personal property by negligence, the same old rule of full compensation for all injuries, to which we have prequently referred in treating of the measure of damages in cases of torts, applies. If the property is entirely destroyed, the owner is entitled to its full value. But in case of aninjury not resulting in its de- 2 is the natural reasonable and proximate result of the wrongful act com- plained of, and which a proper degree of prudence on the part of the plaintiff would not have averted, is the measure of damages which the jury are usually instructed to assess except in cases where exemplary damages are allowable. Baker v. Draker, et al.,53 N. Y., 211; see Whecland y. Lynch, 60 N. Y., 469; Kimmel v. Stone, 6 Hiersis, 157; Harrison vy. Harrison, 1 C. & P. 412; Vaughan v. Wood; 1 Mylne & Keem, 403. 4 Field on the law of dam., 536, sect. 669; Terry v. Mayor, etc., of N. Y 8 Bosw., 504: see anti-page under head of trespass. 5 Whitelue v. N. Y. Cent, R. R, Co., 36 Barb., 644. 206 LAW OF DAMAGES. struction, its value immediately before ani again im- mediately after the injury usually furnishes ‘h+ meu.sure of damages. And in case the property injured is a do- m2stic animal the owner should be remunerated for any reasonable care bestowed upon it in endeavoring to restore it, in addition to their depreciated value by reason of the injury. And in some cases allowances have been made for expense in- curred in searching for animas when they have strayed and become lost by the negligence of the defendant.® 247. Malpractice. At common law, an action can be brought and maintained against a physician or surgeon for an injury growing out of a want of skill, or for negligence in treating a patient.2 The law requires persons engaged in the practice of medicine or surgery to possess a certain amount of skill. But it sets up no arbitrary standard by which their skill is to be tested. It judges of that by the surrounding cir- cumstances. The advanced state of the profession and im- provements are always considered: in determining the skill of the physician or surgeon. And afterall the facts have been considered, if the defendant has failed to exercise such skill and diligence as is ordinarily exercised by the members of his profession as a whole he will be responsible in damages. ® Field on law of wlam., sect. 670; Watson v. Lisborn Bridge Co., 14 Me., 201. The whole sum recovered cannot exceed the value of the an- imal. Gillet v. West. R. R. Co., 8 Allen, 560. * Smothers v. Hanks, 34 Ia., 286; 11 Am. R. 141; Shearman and Red- field on Neg., s. 436, p. 491; Landon v. Humphries, 9 Conn. 209; How- ard v. Groves, 28 Me., 97; Wood v. Clapp, 4 Sneed, 65; Renolds v. Grover, 3 Wis., 416; Richey v. West, 23 Ill., 385; Simond y. Henry, 39 Me., 155; Gramm y. Brewer, 56 Ind., 497; Galliger ‘v. Thompson, Wright, 456. Howard v. Grover, 28 Me , 97; Wood v. Clapp, 4 Sneed, 65; Long v Morrison, 14 Ind., 595; Patton v. Wiggin, 51 Me., 595. NEGLIGENCE. 207 249. The Damages. The measure of damages in case of an injury not resulting in death is complete compensation for the loss and suffering the plaintiff has sustained. The element to be considered in making the estimate of the plaintiff’s damages are: 1. The loss of time. 2. All necessary expenses. 8. Suffering of mind and body. 4. Permanent injury, such as disability to labor or pursue his usual avocation, or prospect- ive damages. 3 Peoria Bridge Ass. v Loomis, 20 IIL, 235; Caning v. Williamstown, 1 Cush., 451; Ballou v. Farmer, 11 Allen; 73; Cents v. Rochester, et al. RB. Co., 20 Barb. 282; Hopkins v. Atlas R Co, 37 N.H, 9; Wade v, Leroy, 20 How. 34; Oakland R. Co. v. Field, 48 Pa. st. 320; Fink v. Scroyer, 18 Til., 416; Hunt v Hoyt, 20 Tl, 544; Murphy R. R. Co. v. Whitfield, 44 Miss, 466; 40 N. Y., 9; Hanover v. Coyle; 55 Pa. st. 396; Long v. Morrison, 14 Ind., 595; Conner v. Weston, 8 Ind., 315; Lee v. Spears, 17 Ind.; 114; Hill on Torts, 224-225; McCandless v. McWha, 22 Pa. st., 261; State v. Baker, 2 Wis., 259; Simonds v. Henry, 39 Maine, 155; 43 Ind., 343; 46Ind., 160. CHAPTER AIL INJURY RESULTING IN DEATH. Tur Common Law DID Not ConsIDER DEATH AN InJuRy. Lorp ' CaMPBELL’s acT. THE New YorK STATUTE. THE STATUTES OF THE DIFFERENT STATES DO NOT DIFFER’ MATERIALLY FROM THE New Yorx«K sTaTUTES. THE THEORY OF THE STATUTES. THE DAMAGES, ACTUAL AND PECUNIARY LIABILITY. NotTH- ING ALLOWED FUR PHYSICAL AND MENTAL SUFFERING. Dam- AGES FREQUENTLY LIMITED BY THE STATUTE. 250. The Common Law Rule. The rules of the common law are based on a few broad and comprehensive principles of natural right and justice, and it was framed for the purpose of giving each person a remedy for every injury received by the negligent or wrongful act of another. But, notwithstanding its sweeping provisions, it was held at an early day that the death of a human being cannot be complained of as an injury.? But we are much inclined to criticise this construction of the 1 Lord Ellenborough in Baker v. Bolton, 1 Camp’ 493; Cary v. Berk- shire, &c., R Co, 1 Cush. 475; Hyatt v. Adams, 16 Mich. 180; Edon v. Lexington R. R. Co., 14 B. Mon. 20; Hill on Torts, 83. INJURY RESULTING IN DEATH. 209 rules of the common law, because it ignores the natural rela- tions. If a child that is unable to take care of itself is the owner of a small amount of personal property, and that prop- erty is injured by the wrongful act of another, the law gives it a remedy, but if some one by a negligent or willful act takes the life of both of its parents and leaves it poor and unable to support itself, it has no remedy. In this instance the law recognizes a little minor injury that only results in the loss of afew dollars and ignores the loss of parental care and training and the duty and ability of the parent to supply the physical wants of their child. This looks so unreasonable that it is hard to believe that it was ever the rule of the ancient genuine common law, but this defect, if it is a defect, has been supplied by legislative enactment in England and in most, if not all, of the States. 251. Lord Campbell’s Act. The British Parliament in 1846 passed what is known as Lord Campbell’s act, which pro- vides: “Section 1. Whensoever the death of a person shall be caused by the wrongful act, negligence or default, and the act, neglect or default is such as would, if death had not en- sued, 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, notwithstand- ing the death shall have been caused under such circumstances as amounts in law toa felony. Section 2. Every such action. shall be for the benefit of the wife, husband, parent and child 2 Shearman v. the. Western Stage'Co., 24 lowa 543; Ford v. Monroe, 20 Wend. 210; Boston, &c., v. Dana, 1 Gray 83; Drew v. the Sixth Ave- nue R Co., 26 N. Y. 49; Donaldson v the Mississippi, &c , R. Co., 18 Ia. 280; 1 Cent. Law Journal, 595; Jones v. Perry, 2 Esp. 482; Cross v. Guth- rey, 2 Root (Conn.) 90; discussion of question in 1 Central Law Journal 590, 614, 622, 1247. 210 LAW OF DAMAGES. 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 of the 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, respec- tively, for whose benefit such action shall be brought, and the , amount so recovered shall be divided among the before men- tioned parties in such shares as the jury by their verdict shall find and direct.”" 252. ‘The Statuteof New York. The New York statute pro- vides as follows: “Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neg- lect 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 any 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 afelony. Every such action shall be brought by and in the name of the personal representative of the de- ceased person, and the amount recovered in any such action shall be for the exclusive benefit of the widow, and next of kin of such deceased person.” 253. The statutes of the majority of the states do not differ materially from the New York statute on this subject,. 19 and 10 Vt., chap. 93, sect. 2. *.N. Y. statute, 1847, chapt. 450, sect. 1 and 2. Indiana statute: Where the death of one is caused by the wrong- ful act or omission of another, the personal representative of the former may maintain an action thereof against the latter if the former, had he ‘ INJURY RESULTING IN DEATH. 211 except, perhaps, in some the amount of the recovery is lim- ited. We give in our notes a copy of the statutes of several of the States upon this subject. lived, might have maintained an action for the same act or omission. 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, and next of kin, to be distributed in the same manner as personal property of deceased. 2 Davis rev. st., p. 309, sec. 784. Vermont: Whenever the death of a person shall hereafter be caused by the wrongful act, neglect or default of any person either natural or artificial, 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 or corporation who would have been liable to such action, if death had not ensued, shall be liable to an action for damages, notwithstand- ing the death of the persons, and, although the death shall have been caused under such circumstances, as shall amount in law toa felon. Every such action shall be brought in the name of the personal repre- sentative 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 proportion as pro- vided by law for the distribution of the personal estate of a person dying intestate. Genl. statute of Vt., 1863, chap. 15, sects. 15 and 16. New Jersey: Whenever the death of a person shall be caused by the wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, entitle 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, although the death shall have been caused under such circumstances as amounts in law to afelon. Every such action shall be brought by and in the name of the personal representative of such deceased person, and the amount re- covered 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 proportion provided by law. In the relation to the distribution of persoual property left by a person dy- 212 LAW OF DAMAGES. 254. The Theory of the Statute. The theory of the statute is that the next of kin have a pecuniary interest in the ing intestate, and every such action, the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury re- sulting from such death to wife and next of kin of such deceased person, provided that every such action shall be commenced within twelve cal- endar months after the date of such deceased person.” Nixon digest, p. 234, sects. 1 and 2. North Carolina: Whenever the death of a person shall 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 de- ‘fault is such as would have entitled the party injured to maintain an ac- tion and recover damages in respect thereof, if death had not ensued, then and in every such case the corporation which would have been lia- ble, 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 wrongful act of another person, and the wrongful act is such as would have entitled the party injured to main- tain 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, 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 name of the personal representative of the deceased, and the amount recovered shall be dis- posed of according to the statute for distribution of personal 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. * * * The amount recovered in every such action shall be for the exclusive and sole benefit of the widow and the issue of the deceased in all cases where they are surviving.” N. -C. Rew. Code, 1855, p. 65, chap. 1, sects. 8 and 9. Ohio: Whenever the death of a person shall be caused by the wrongful act, or neglect, or default is as would (if death had not ensued) have entitled the party injured to maintain an action and recover dam- ages 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, INJURY RESULTING IN DEATH. 218 life of the person killed, and the value of this injury is the shall be liable to an action for damages, notwithstanding the death of the person injured, and although death shall have been caused under such circumstances as amount in law to murder in the first or second degrees, or to manslaughter. Every such action shall be brought by and in the name of the personal representative of such deceased person, dy- ing intestate, and the amount of recovery inany such action shall be for the exelusive benefit of the widow and next of kin of such deceased person, and the amount of recovery in any such action, the jury may give such damages as they may deem just, not exceeding five thousand dollars, with reference to the pecuniary interest. resulting from such death to the wife and next of kin of such deceased person, provided that any sucb action shall be commenced within two years after the death of such deceased person. Swan & Cr., rev. stat. 1139, chap. 87, 8. 636-637. The statutes of Illinois and Michigan are substatially copies of the Ohio statute. Ill. rev. 1874, p, 582; 1 Ill. rev. 1858, p, 422,s. 1-2. The Michigan statute limits the damages to five thousand dollars. Compiled laws (Duy) 1872, p, 1881. California: 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 of a person is caused by an injury received in falling through an opening or defective place in a sidewalk, street, alley, square or wharf, his heirs or personal representatives may maintain an action against the person whose duty it was at the time the injury to have kept in repair such sidewalk or other place. In any 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 civil prac., 8, 377 Wisconsin: The Wisconsin statute is an exact copy of the Ohio stat- ute, sec. 12, except the last clause in relation to murder and manslaugh- ter. Section 13 provides: ‘“Every such action shall be brought by and .in the name of the personal representative of such deceased person, and the amount recovered shall belong to and, be paid over to the husband or widow of such deceased person, if such relatives survive him or her, but if no husband or widow survives the deceased, the amount recov- ered shall be paid over to his or her lineal ancestors in default of such 214 LAW OF DAMAGES. amount for which the jury are to give the verdict. Neither decedents In any such action the jury may give such damages, not exceeding five thousand dollars, as they shall deem fair and just. in ref- erence to the pecuniary injury resulting from such death, to the rela- tives of the deceased specified in this section, provided any such action shall be commenced within two years after the death of such deceased person. Rev. stat. (Taylor) 1858, p. 800, ch. 135, sec. 12-13. Oregon: When the death of a person is caused by the wrongful act or omission of another, the, personal representative of the former may maintain 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 ex- ceed five thousand dollars, and the amount recovered shall be adminis- tered as other personal property of the deceased person. Oregon code, 1862, sec. 367, gen law, 1872, p. 187. Missouri: Whenever the death of a person shall be caused by a wrong- ful 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 any 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, not- withstanding the death of the person injured. Gen. stat. of Mo., sect. 2, chap. .147, Wag st., p. 528. All damages accruing under the last prece- ding section shall be sued for 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 judgment, or if either of them be dead, then by the survivor. * * And in any such action the jury may give damages as they may deem fair and just, not exceed- ing five thousand dollars, with reference to the necessary injury result-, ing from such death to the surviving parties who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default. Wag st., 519. Minnesota: Where death is caused by the wrongful act or omission INJURY RESULTING IN DEATH. 215 the personal wrong or the outrage to the deceased, nor the of any party the personal representative of the deceased may maintain an action if he might have maintained an action had he lived for an in- jury caused by the same act or omission, but the action shall be com- menced within two years after the act or omission by which the death was caused. The damages thereon cannot exceed five thousand dollars, and the amount recovered to be for the exclusive benefit of the widow and next of kin, to be distributed to them in the same proportion as the personal property of a deceased person. Rev. st. of Minn., 1866, chap, 77, s. 2; Bliss stat. at large, 1873, p. 913,s. 25; Butler v. Steamboat Mil- waukee, 8 Minn., 97. Kansas: When the death, if one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action, therefore, 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 the personal property of the deceased. Kansas Gen. Stat., 1868, p. 799, chap. 80, sec. 422. Alabama: When the death of a person is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action against the latter at any time within one year there- after, if the former could have maintained an-action had he lived against the latter for an injury for the act or omission had it failed to produce death. Rev. Code, Ala., 1867, sec. 2297. The damages recovered in such action cannot 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, then to be distributed as other per- sonal property among the next of kin of the deceased. Ibid 2298. Mississippi : Whenever the death of any person shall be caused by such wrongful 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 person or corporation, or both, that would have been liable, if death 916 LAW OF DAMAGES, s pain and suffering he may have endured, nor the pain and had not ensued, and the personal representative 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 a parent for the death of the child, or in the name of a child for the death of an only parent, the damages to be for such widow, husband or child, except that in case the widow should have children, the damages shall be distributed as per- sonal property of the husband. Rev. Code, 1851, p. 486, sec. 48. Iowa: Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corpora- tion, in consequence of the neglect of the agent or by mismanagement of the engineer or other employes of the corporation. In consequence of the willful wrong, whether of commission or omission of such agent, engineer or other employes, when such wrongs are in a manner connected with the use and operation of any railway on or about which they shall be employed, no contract which restricts such liability shall be legal or binding. Iowa Code, I873, sec. 1307. Arkansas: For wrong done to person or property of another, an ac- tion may be maintained against the wrong-doer, and such action may be brought by the person injured, or after his death by his executor or ad- ministrator against ‘such wrong-doer, or after his death against his ex- ecutor or administrator in the same manner and with like effect in all respects as actions founded on contract. State of Arkansas, 1859, p. 120, chap. 4, sec. 28. Louisiana: Every act whatever of a man that causes damages to an- other 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 surviving father and mother, or either of them, for the space of one year from the death. Res st. Louisiana, 1857, sec 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 iniured to main- tain 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 ac- tion for damages, notwithstanding the death shall have been caused. INJURY RESULTING IN DEATH, . 217 suffering of the claimant on account of the death of the de- under such circumstances as amount in law to felony. Code Maryland, 1860, article 65, sec. 1, p.449. Every such action shall be for the wile, husband, parent and child of the person whose death shall have been go caused and shall be brought by and in the name of the State of Mary- land for the use of the person entitled to damages, and in every such ac- tion 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 cost not recovered from the de- fendant, shall be divided among the above named parties in such shares as the jury, by their verdict, shall find and direct, (Id., Sec. 2.) Pennsylvania: Whenever death shall be occasioned by unlawful vio- lence or negligence, and no suit for damage 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 representative may maintain an action for and recover damage for the death thus occasioned. Purdon’s Penn. dig., 1862, p. 754, sec. 2. The person entitled to recover damage for an injury causing death, shall be the husband, widow, children or parent 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, Sec. 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 fire arms 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 of Ky., 1866, App. p. 681. Maine: Any railroad corporation by whose negligence or careless- ness, or by that of its servants or agents while employed in its business, the life of any person in the exercise of due care and diligence is lost, forfeits not less than five hundred dollars for more than five thousand dollars to be recovered 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. Res. stat., 1857, p. 370, chap. 51, sec. 42. The provisions are also made applicable to 218 : LAW OF DAMAGES. ceased, are to be taken into an account. These would be the steamboats, stage coaches and common carriers. Id., p. 376, chap. 52, sec.97. New Hampshire: If the life of any person not in their employment shall be lost by reason of the negligence or carelessness of their servants or agents in this State, such proprietors shall be fined not exceeding five thousand nor less than five hundred dollars, and one-half of 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 goto the widow, and ifno widow to his heirs, according to the law regulating the distribution of intestate estate. Gen. stat. N. H., 1867, p. 529, chap. 264, sec. 14. Connecticut: If the life of any person being on a passing or crossing upon a public 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 unfitness or negligence or carelessness of its servants or agents, such railroad company shall be liable to pay damage not ex- ceeding 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 de- ceased person. One moiety thereof shall go to the husband or widow, the other to the children of the deceased, but it there shall be no chil- dren the whole shall go to tne husband or widow, and if there is no husband or widow to his heirs, according to the law regulating distribu- tion of intestate personal estate Res. stat. Conn., 1866, p. 202, chap. 7, sec. 544. The statute of thisstate also provides that an action for the death ofa p*rson shall survive. Id., p. 22,sec.98. See gen. statute of Conn., 1875, p. 422, sec. 9. ‘ Rhode Island: If the life of any person being a passenger fn any stage coach or other conveyances, 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 crossing upon a public highway with reasonable care, shall be lost by reason of the negligence or carelessness of such common car- rier, proprietor of proprietors, or by the unfitness or negligence or agents in this State, such common carriers, proprietor or proprietors shall be liable to damages for the injury caused by the loss of life by such person to be recovered by action or the case for the benefit of the husband or | | ‘INJURY RESULTING IN DEATH. 219 foundation of an action and criterion of damages if death had not ensued, and the injured party had brought the action. But the claim of the administrator, and through him’ the next of kin, is altogether different." x 255. The Damages that the Plaintiff may Recover. The plain- tiff’s recovery will be restricted to an amount sufficient to widow and next of kin of the deceased person. One moiety thereof to go to the husband or widow and the other to the children of the de- ceased. Gen. statute of R. I., 1875, p. 444, chap. 176, sec. 16. Texas: If the life of any person is, by reason of the negligence or carlessness of the proprietor, own:r, 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 careless ness of their servants or agents, and whensoever the death of a person may be caused by a wrongful act, negligence, unskillfulness or defanlt, and the act, ne- glect, unskillfulness or default is such as would, if death had not en- sued, have entitled the party injured to maintain an action for zuch in- jury, then, and in any such case, the person who would have been lia- ble if death had not ensued, shail be liable to an action for damages, notwithstandihg the death of the person injured, and although the death shall have been caused under such circumstances as amsunt in law to a felony. Paschal’s dig , 1866, p. 98, art. 15, sec.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 three calendar months to institute suit, then it shall be the duty of the executor or administrator of the de- ceased, unless specially requested by all of said parties entitled not to prosecute the same In every such action the jury may give such damages 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 to this act, or such of them as’ shall then be alive, in such shares as the jury shall find and direct, and shall not be liable for the debts of the deceased. Id, Sect 1. 7 Quinn v. Moore, 15 N. Y. 435; Ohio, &c ; R. R. Co. v. Lindell, 13 Ind. 366; Telfer v. North R. Co., 3N. J. L. 188. 220 LAW OF DAMAGES, compensate the persons for whose benefit the suit is brought for the loss, in a pecuniary sense, that they have sustained by reason of the death of the injured person, or, in other words, that nothing can be allowed for in damages which is not of a definite pecuniary value.’ The suffering of the deceased person from the injury and the grief and distress of his relatives are never considered in estimating the damages. “These statutes seem to have been enacted upon the idea that as a general fact the personal assets of the deceased would take the direction given them by law, and hence the amount recovered is to be distributed to the wife and next of kin in the proportion provided for in the dis- tribution of personal property left by a person dying intestate. If the person injured had survived and recovered he would have added so much to his personal estate which the law on his death, if intestate, would have passed to his wife and next of kin; in case of his death by injury the equivalent is given by asuit in the name of his representative.”* Hence, there ' Safford v. Drew, 3 Duer. 627; Lehman v. Brooklyn, 29 Barb. 234; Tel- fer v. Northern R. R. Co., 30 N J. 188; Chicago vy. Major, 18 Ill. 349; Chicago, &c., B. Co. v. Morris, 26 Ill. 400; Pa. R. R. Co. v. Henderson, 51 Pa. st. 315; Rredes v. Smith, 66 N. C. 154; Pa. R. Co. v. Keller, 67 Pa. st. 300; Shearman & Redfield on Neg , 701; Duckwood v. Johnson, 4 H. & N. 653; 8. C. 7 Law Reg. 630: Franklin v. S. E. R. Co., 3 H. & N.* 211; Blake v. Mid. R. Co., 18 B. 93; S. C. 83, English com. law and eq. 93; 10 Eng. law and eq. 437; Gilard v. Lan & Y. R. Co., 12 L. T. 356; Pa. R. Co. v. McCloskey, 23 Pa. st. 526; Whitford vy. PanaR. Co., 23 N. Y. 465; Canning v. Williamstown, 1 Cush. 451; North Pa. R. Co. v. Robinson, 44 Pa. st 175; State of Md., &., v. the B. & O. R. Co., 24 Md. 84; S. C.5 Am. Law Redgs. (N. 8.) 397; Cleveland, &c., R. Co. v. Rowan, 66 Pa. st. 393; II. Cent. R. Co. v. Baches, 55 Il. 379; TL. Cent. R. Co. v. Weldon, 52 Ill. 290; Pa. R Co. v. Zebe, 33 Pa. st. 318; Pa. R. Co. v. Kelly, 3 Pa. st, 372; Pa. R. Co. v. Vendever, 36 Pa. st. 298; Mclntyre v. N. Y. Cent. B Co , 47 Barb. 515; Donaldson v. Miss & Mo. R. Co., 18 Id. 280; Conant v. Griffin, 48 Ill. 410; Field on the law of damages, sect 630; Long v. Mor- rison, 14 Ind. 595; O. & M. R. Co. v. Tindal, 13 Ind. 366. 8 R, R. Co. v. Barron, 5 Wall 90; 1 Bessell, 543, INJURY RESULTING IN DEATH. 221 can be no recovery for the loss of the society of deceased, ex- cept so far as implies the loss of valuable service. And, where any claim is made for the loss of training or education, the capacity of the deceased as an instructor must be shown. Ex- emplary damages are never allowed in this class of cases un- less they are expressly provided for by statute.’ The plaintift may recover for the pecuniary value of the life of the deceased to those interested therein as provided by the statute and such as arise from the loss of personal care and training and intel- lectual and moral culture which would have been received by the parties had the deceased lived. The rule is that the al- lowance for injuries embraces whatever may be a source of pecuniary injury to the widow and next of kin, and the jury is allowed great latitude in estimating the damages.’ Courts have experienced great difficulty in getting at the pecuniary loss with precision or accuracy, and the question must be left in almost every case to the sound sense and deliberate judg. ment of the jury.t 256. The Pecuniary Damages that may be Recovered Must be Definite. The pecuniary damages that can be recovered in most of the States for the death of any person must be some- thing definite and almost of a commercial value, but there may be a recovery, however, without showing that the deceased. was under any legal obligation to the next of kin. If the 5 It has been intimated in some cases that even in the absence “of statutory provision that exemplary damages might be allowed. Shear- man v. West. Stage Co., 24 Iowa 516. 6 McIntyre v. N. Y. Cent. R. Co., 37 N. Y. 287; How. Pract. 36, 15 N. Y. 435; Field on the law of dam., sect. 631; Tilley, adm., v. the Hudson River R. R. Co., 29 N. Y. 253. 7 Pa, R. Co. v. Keller, 67 Pa. st. 300; Tilly v. Hudson River R. R. Co, supra; Duckworth, adm., v. Johnson, 4H. & N. 653; Palmer v. Erie R. R. Co., 34. N. J. L. (5 Broom) 151. 1 Railroad Co. v. Barron, 5 Wall 90. 222 LAW OF DAMAGES. plaintiff can show that they had a reasonable expectation of pecuniary advantage from the continuance of the life of the deceased, it will be sufficient. Thus, if he was in the habit of bestowing gifts and presents upon them at regular intervals, this would lay the foundation for damages.’ e Much more are damages recoverable where the deceased was legally bound to take care or render service to the next of kin,? as in case of a minor child whose service belong to the parent.’ . 257. The Expectations are to be Considered. As has already been said,the legal liability alone isnot the test of injury in re- 1Tn an action by the father to recover damages for the death of his son, it appeared that the son, who earned good wages, had been in the habit for several years of contributing to the support of his parents, who were in humble circumstances, by making them frequent and small presents of groceries and by becoming responsible for their supply of meat. Held, that damage might be given to the plaintiff in respect of his being disappointed in a reasonable expectation of pecuniary advan- tage by the continuance of his son’s life. Dalronv. 8. E.R. R. Co., 4C. B. (N. 8.) 296. * The charge of the Judge was explicit that the damages must be lim- ited to the pecuniary injury, and he said that in estimating them they had a right to consider the loss (that is the pecuniary loss) which the children had sustained in reference to their mother’s nurture and in- strnction and moral, physical and intellectual training. I think that this does not imply that the children are necessarily and inevitably sub- ject to such loss, but leaves it to the jury to determine whether any such loss has been, in fact, sustained, and if so the amount of such loss. This is the fair scope and meaning of the charge, and if it was not sufficiently explicit should have been made so by direct request for such purpose. This understood, I regard as unexceptionable. It is certainly possible, and not only so, but highly probable, that a mother’s nurture, instruction and training, if judiciously administered, will operate favorably upon the wordly prospects and pecuniary interest of the child. The object of such training and education is not simply to prepare them for another world, but to act well their part in this and to promote the temporary welfare. Tilly, adm., v. the Hudson River R. R. Co., 29 N. Y. 252. * Quinn v. Moore, 15 N. Y. 432; Oldfield v. Harlem R. Co.,14.N, Y. 310 INJURY RESULTING IN DEATH. 223 spect of which damages may be recovered under these statutes, but the reasonable expectation of pecuniary advantage by the surviving relatives is sufficient to authorize a recovery. The plaintiff or injured party, in order to recover must show some ground on which his expectations are founded. The law has not limited the evidence that may be introduced upon this point to any definite channel, but leaves the parties free to select from the circumstances and facts such as are calculated to lead to such conclusion. The jury will not be permitted to makea mere guess in the matter. 258. The Presumption. In case of an action brought un- der these statutes for the benefit of the widow and minor chil- -dren, after the relation that the deceased sustained to the claimants has been established, the law will presume that they have been injured.? And also in case of a suit for the death of a child for the benefit of a parent.’ 255. The Situation of the parties. It is now settled beyond controversy that the damages that may be recovered in a case 1 Dalton v. Southeastern R. R. Co.,4C. B. N. 3, 296; Franklin v. §. E, R. R. Co., 3 H. & N., 211; Condon v. G. &. R. R. Co., 16 Ir. C. L.R., 415; 10Ir. Jur. N.S, 194. Railroad Co. v. Barron, 5 Wall., 90; Keller v. N.Y. &. R. R. Co., 27 How. Pr., 102; Paulmin v. Erie R. R. Co., 34 N. J., 151; Pa. R. R. Co. v Keller, 67 Pa st., 300; Oldfield v.N Y. &., 14 N. Y., 310; McIntyre v. N. Y. &c., R. Co, 37 N. Y., 287; Grotenkemper v. Harris, 25 Ohio st., 870. It has been held that in most instances there must be evidence of pecuniary loss on the part of the survivor, for whose benefit suit is brought. Chicago R. R. Co. v. Morris, 26 T1l., 400- 403; Dickens v. N. Y. etc. R. R. Co., 1 Able Dec. 504. ? Dunhene vy. Ohio Life &c. Co., 1 Disng. 257. 8 Chicago v. Scholten, 75 Ill., 468; Condov.G.S R. R. Co., 16 Ir. C. L. R., 415; Baltimore R. Co. v. Kelly, 24 Md., 271. But see Bell v. Wooten, 53 Ga., 648; Allen v. Atlanta Street R. Co., 54 Ga, 503; Ibl v. Forty- -Second Street, &c. k. Co, 47 N. Y., 317. And it would seem that wher- ever it is established that the deceased was under legal obligation to support the claimants, that the court or jury trying the cause will pre- sume damages. . 224 LAW OF DAMAGES. of thie nature are, by the statute, to be assessed with refer- ence to the pecuniary injury resulting from such death, to the wife, children, or next of kin of such deceased person. They are never assessed on the wants or needs of the claimants, or on any moral obligation which may have rested upon the de- ceased to supply their wants. Asa rule what the claimants would lose by the death would be what they were accustomed to receive, or had reasonable expectation of receiving in the lifetime of the deceased. And to show that the claimants were poor has no tendency towards showing that this was, or was likely to be large or small. But we think there are cases where such proof would be admissable for the purpose of show- ing a moral obligation to demand assistance in the future from one at the time incapable of’.giving it, as when the person killed was a mere young child, and at the time contributed nothing in aid of any one 260. Limitation. In many of the States the amount of re- covery is limited. There is no such limitation, however, in Lord Campbell’s act. But with the exception of two or three States where exemplary damages are allowed the recovery is limited to the pecuniary injury sustained by the claimants by reason of the death of the deceased. The damages may include the pecuniary value of the life of the deceased to the claimants, and such as arise from personal care and training and intellec- * Chicago R. R. Co. v. Bayfield, 37 Mich., 205; Ewen v. The Chicago R. R. Co., 38 Wis., 613; Baily v. Railroad Co., 4 Bliss, 430; Chicago v. Pow- ers, 42 Ill, 169. Butit isa sort of evidence that when necessarily re- ceived ahouta be handled with great caution. Potter v. Chicago R. R. Co., 21 Wis., 372; Penn. R R. Co v. Zelee, 33 Pa. st., 318; Belknap v. Boston ete. R. R., 49 N. H 358; Hunt v. Chicago R. R. Co., 26 Iowa; Gu- engerrech v. Smith, 34 Ia., 358; Karney v. Paisly, 13 Ia, 89; Condon v. G.S ete. Co., Ir. C. L. R., 415. It was held in one case that if the fam- ily was poor, the fact that the boy would probably have early begun to assist in supporting his parents might be considered by the jury; Baily v. Chicago R. Co., 4 Biss,, 430. INJURY RESULTING IN DEATH. 225 tual and moral culture which would have been received by the surviving relatives had the deceased lived.® 261. What the Plaintiff may Show to Enhance Damages. The plaintiff may show for the purpose of enhancing his damages the pecuniary situation, the annual earnings, habits and health of the deceased, the profits of his labors and business, - what he would probably have earned for the support of those for whose benefit the suit is brought, the reasonable expecta- tion of life of the deceased at the time he received the injury, and for this purpose he may refer to the “Carlisle,” “or other tables of recognized scientific accuracy relating to expectation of human life.” 262.. Damages that may be Recovered by Children for Loss of Parents. The rule is that damages are to be assessed with ref- erence to the pecuniary injury sustained by the next of kin on account of the death, and the jury are not confined to the actual present loss which the party has sustained, but they should consider prospective losses, provided the prospective loss is such as they believe, from the evidence, will actually re- sult to the next of kin or claimant as the proximate damages arising from the wrongful death. Thus, it was held that the ‘Injury to the children by the death of the mother is a legiti- mate ground of damages, and that in estimating such damages the jury had theiright to consider the loss of the children of the deceased in reference to such intellectual, moral and phy- sical training and such instruction as they would otherwise have received at her hands; that they should consider the bus- ® McIntyre v. N. Y Cent. R. B., 37 N. Y. 287; 35 How Pract. 36; Field on the law of damages, sect. 631. 5 Rawley v. London, &c, R. Co., 8 Ex. 221; 41 L. J. R. N.S Exch. 153, David v. 8S. W., R. Co., 41 Ga. 223; Danaldson v the Mississippi, &c, R. Co., 18 Ia. 280; Field on the law of damages, sec, 632. 226 LAW OF DAMAGES. iness and other capabilities of the mother in reference to her competency to discharge her duty towards the pecuniary ben- efit of the children in her intellectual, moral and physical training of the children.® 263. How to Estimate the Damages. The rule in this class of cases is not an exception to the general rule in all cases of ‘tort, that the claimants shall be allowed such a sum as will fully compensate them for the pecuniary loss they have sus- tained. And where the suit is brought for the benefit of the widow and children, the jury should allow such sum as would be equal to the probable earnings of the deceased, taking into consideration the age, business capacity, experience and habits and health, energy and preseverance of the deceased during his probable lifetime, if he had not’been killed. By adding these to the value of ‘his services in the superintendence, attention to and care of his family and the education of his children, of which they have been deprived by his death.*’ 268. ~ Elements of Damages. 1. The health of the deceased. 2. His business calling or profession. 3. His age. 5 Tilly, adm., v. the Hudson River R. R. Co., 29 N, Y. 252; Kansas Pa- cific R. R. Co. v. Cutter, 19 Kansas 83; Huntington R. R. Co. v. Decker, 84 Pa. st. 419; March v. Walker, 48 Tex. 372. Damages recoverable by the wife for causing the death of the husband may be estimated with reference to the fact that it is the duty of the husband to provide the wife with present support as well as maintain- ance for the future, and she is entitled to such sum as, in a pecuniary point of view, would make her whole. Rafferty v. Buckman, 46 Iowa 195; see Rockford, &c., R. R. Co. v. Delany, 82 Ill. 198; Chicago v. Hes- ing, 83 II. 204. ® Baltimore, &c., R. R. Co. v. Wrightman, 29 Gratt 431; 8. P. Matthews v. Warner, Id. 570; Chicago, &c., R. R. Co. v. Bayfield, 37 Mich. 205; 7 Cent. Law Journal 421.. INJURY RESULTING IN DEATH. 227 4. His business capacity. 5. His habits. 6, The profits of his labor, profession or business. 7. The probability for reasonable expectation of the life of the deceased at the time of the injury. ‘ 8. His energy and inclination to pursue his business. And where the suit is-brought for the death of a parent, the jury, in addition to these, should consider the loss that the children have sustained, the nurture, education and physical, moral and intellectual training which they would have received from the deceased parent.’ 264. Death of a Child. Where an action is brought 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 expense of care and attention, etc., during his life.”! So, under Lord Campbell’s act, in an action by a father for the death of his son, it appeared on the trial that the father was old and infirm and the son young and ™ Telly v.the Hudson River R. Co., 28 N. Y. 252, 24 N. Y. 477; Duck- worth v. Johnson, 4 N. & N.653; Rawleyv. London, &c., R. Co., 8 Ex. 221, 42 L. J. R. (N. 8.) Exch. 153; David v.S W.R. BR. Co., 41 Ga. 223; Don- aldson v. the Mississippi, &c., R. Co., 18 Ia. 280; Blake v. Midland R. Co., supra.; Field on the law of damages, sect. 632; Baltimore, &c., R. R. Co. vy. Wightman, 29 Gratt 431;S P. Matthews v. Warner, Id. 570; Chicago, &e., R. R. Co. v. Bayfield, 37 Mich. 207; 7 Cent. Law Journal 421; 3 Law Journal 1880, page 48. » Penn. R. Co. v. Zebe, 33 Pa. st. 318; Condon v. the G. 8. W. R. Co. 16 Irish L. R. (N. S.) 415; Peck v. May of N. Y., 3 Court 489; Potter v the Chicago R. Co., 21 Wis. 372; Rockford, &c, R. R. Co. v. Delany, 82 TIL. 198; Chicago v. Hesing, 83 Ill, 204; Field on the law of dam., sect. 640. : ; 228 LAW OF DAMAGES. earning good wages, and had assisted the father, and that the father had a reasonable expectation of pecuniary benefit from the continuance of the son’s life, the court held that the action could be maintained.” The parents’ recovery of prospective damages will be lim- ited as a rule to the period of minority.’ 265. Actions by the Parents. Quite a number of the States have statutes authorizing parents to sue in their individual names for the death of their child or children. But the nature of the action is so near alike the one we have been considering in the preceding sections that the rule for the assessment of ‘damages is the same. The statutes that authorize the execu- tor or administrator to sue, only makes him a nominal party, and he has no interest in the claim whatever.’ 266. In Pari Delicto. In. the case of Martin v. Wallace, the Supreme Court of Georgia held that since the gstablish- ment of the national authority in that State that no action could be maintained by a widow against a Railroad Company for negligently, causing the death of her husband where the casualty occurred while the company was transporting the de- ceased as an officer in the Confederate service for hire and was 2 Franklin, adm., v. the S. E. RB. Co., 3H. & N. 211; Dalton v. 8. E. R. Co., 4 C. B. (N. 8.) 296, 27 L. J. R. C. P. 227; 3 Cent. Law Journal 1880, page 48; Quinn v. Moore, 15 N. Y. 482; 0. & M. R. Co. v. Tendal, 13 Ind- 366; Shaw v. Boston, &c., R. Co., 8 Gray 45. 3 Ford v. Monroe, 20 Wend. 210; State of Maryland v. Baltimore, &c., R. R. Co., 24 Md, 84; 5 Am. Law Register 397; Tilly v. Hudson River R. R. Co., 29 N. Y. 252; Connant v. Griffin, 48 Ill. 410; Pa R. R Co. v. Zebe. 33 Pa. st. 318; Condon v. G. 8. W. R. Co., 16 Irish L. R. 415; Peck v. R: R+ Co., 21. Wis. 372. : * Field on the law of damages, sect. 649; opinion of Cole in Sherman Vv. West. Stage Co., 24 Ia. 550; 8 Jur. N. 8. 819; 31 L. Q. B. 249, 10 W. R. 737, 6L.J.R.N.S8. 759. INJURY RESULTING IN DEATH. 229 paid by the Confederate government, on the ground that the employes of the company and the decedent were, while en- gaged in such transportation, in in part delictor.* 267. Contributory Negligence. The rule that the plaintiff cannot recover in case of contributory negligence applies in an action for injury jn causing death, and there can be no re- covery where the deceased immediately contributed to the in- jury that caused his death. Nor can there be a recovery where the death occurred from the negligent conduct of a fel- low servant engaged in the same employment.* * 40 Ga. 52. 5 Willett v. Buffalo, &c, R. R. Co., 14 Barb. 585; Penn, &c., Co. v. Ogier, 35 Pa. st. 60; North Pa. R. R. Co. v. Robinson, 44 Pa. st. 175. -6 Hutchison v. York R. R., 5 Exch. 348; Wigmore v. Joy, Id. 354; see post chap. master and servant. ; CHAPTER XIV. LIBEL AND SLANDER. Liset DEFINED. SLANDER DEFINED. Matice. THE GEN- ERAL DAMAGES. SPECIAL DAMAGES. THE LOSS OF A HUS- BAND MAY BE AVERRED AND PROVED. AGGRAVATED AND EX- EMPLARY DAMAGES. FULL DEFENSE. PARTIAL DEFENSE, MITIGATING CIRCUMSTANCES. 268. Inbel and Slander Defined. The word libel has been defined to be any publication charging another with infamy, crime, or of anything that tends to degrade, disgrace or injure the character of a person, or bring him into contempt, ha- tred or ridicule.’ The word slander has been defined to be “the utterance of false, malicious and defamatory words, tending to the damage and derogation of another.? “Slander and libel have this in } Johnson v. Stebbens, 5 Ind., 364; Dexter v. Spear, 4 Mason, 115; Commonwealth v. Clapp, 4 Mass., 163-168; Steel v. Southwick, 9 John- son, 14; White v. Nichols, 3 How. U. 8. 266; Armstrong v. Moronda, 8 Blackford, 426; DeArmond y. Armstrong, 37 Ind., 35. *3 Blackstone’s com. 123-125; LIBEL AND SLANDER. 231 common, that each may be, and usually is, effected by means of language.” The only distinguishing feature of difference is that the one is effected by oral, and the other by written lan- guage.® 269. Malice. Malice is essential to the maintenance of a suit for either libel or slander, and means in its common ac-° ceptation, il will toward some person, but in its legal sense it is defined to be a wrongful act, done intentionally, without le- gal justification or excuse. In ordinary actions for libel or slander, malice in law is sufficient to authorize a recovery, and it is to be inferred from the publication of libelous or slanderous matter. The law only examines into the intention of the au- thor of the mischief when it becomes an element in the cause that produces the injury. In most, perhaps in all, injuries against the person or property of another, the actual intention of the tort feasor is only considered, if at all, for the purpose of en- hancing the damages. If one killsa horse belonging to another the fact that he did it in a negligent manner or maliciously would not increase or decrease the plaintiff’s injury, arising from the loss of the use of the animal. But thelaw considers that the bad spirit that actuates an individual in the perpe- tration of an injury to the peson or property of his neighbor, is an injury to that neighbor, and allows him damages for that injury. Therefore, the law permits the plaintiff in an action for libel or slander to show expressed malice in aggravation of damages.* 3 Townsen on Slander and Libel, sec. 18, p. 26. 4Dunn vy. Hall, 1 Ind., 344; 2 Greenleaf evid. sec. 418; Starky on Slander, p. 47; Bodwell v. Osgood, 3 Pickering, 379-383. Where the truth of the words had been pleaded in justification, and the plaintiff at the trial offered to accept the apology and nominal damages if the de- -fendant would withdraw the justification, which the defendant refused, but did not attempt to prove it. This conduct was held proper for a jury with reference to the question of malice, as well as that of damages. . Simpson v. Robinson, 18 Law J., 73. 932 LAW OF DAMAGES. 270. The General Damages. The amount of damages that the plaintiff may recover in this class of cases depends to a very great extent upon the reputation and the character of the parties, the nature of the publication and the surrounding circumstances. The plaintiff is entitled to full compensation for all actual losses that he has sustained by reason of the pub- lication.® 271. Elements of Damages. The jury should consider: 1. Mental suffering. 2. Circumstances of indignity. 3. The public disgrace and all other actual discomfitures. 4. They should also consider the probable future, as well as the actual past. 5. The expense to which the plaintiff has been put by being compzlled to come into court to vindicate his character.® 272. Special Damages. The plaintiff may allege and prove and recover any special damages sustained by reason of the slander or libel complained of. Thus, it has been held that he may, when properly alleged, recover for injury to his trade, business, the loss of a marriage,’ the loss of a sale of his real estate,’ loss of customers in his business or profession,’ for the desertion of chapels or theaters, the loss of a situation, the loss of companionship and hospitality of friends. In general, the plaintiff is entitled to full compensation for every injury that is the natural consequence of the publication of the language. 1 True v. Plumer, 36 Me. * Hicks v. Foster, 13 Barb 663. 3 Sanderson y. Caldwell, 45 N. Y. 398. *1 Hill on Torts, 408. 5 Field on the law of dam. | 549, ® Hill on Torts, 408; Field on dam., 549; Fry v. Bennett, 4 Duer. 247; Swift v. Dickinson, 3 Conn. 285; Duford v. Abadi, 23 La. 280; Fuller v. Fenner, 16 Barb 433; Terwelling, 17 N. Y. 54; Willion y. Gait, 17 N. Y. 442; 1 Hunt v Jones, Cros. Jac. 499.. ° Fry v. Bennett, 4 Duer. 247; Swift v. Dickerson, 2 Conn. 285; Dufort, LIBEL AND SLANDER. 233 273. The Case of Lynch v. Knight. In this case the plain- tiff brought suit against the defendant for slanderous words, imputing to her a want of chastity. She alleges in her com- plaint, by way of special damages, that by reason of the slan- derous words her husband had abandoned her and failed to support and provide for her. The court was somewhat divided upon the question whether. she could recover such damages or not. The question, however, was not directly decided, as they held that the words spoken were not slanderous and that the plaintiff was not entitled to recover anything. But the ques- tion was a new one and elicited remarks from several members of thé court. Lord Campbell, Chancelor, in commenting upon the question, said: “Had the words contained the charge of adultery by the wife, which the defendant pretended to know and which he asserted as a fact, I should have thought the al- ‘legation of special damages sufficient to support the action. In that case, the husband believing the charges to be true, would have been justified in separating from his wife, and this separation would have been the natural and direct and proba- ble consequence of the slander. Although not the necessary consequence, it would not have arisen from any idiosyncracy in this particular husband. Most husbands would have done the same, and the effect might have been foreseen and might be taken to have been intended by the defendant when he 293 spoke the words. 274. Aggravated and Exemplary Damages. The plaintiff may show for the purpose of enhancing his damages the pecuniary y. Abadi, 23 La, 280; Fuller v. Fenner, 16 Barb. 333, but see contra as to mental distress; Terwilling v. Wands, 17 N. Y. 54; Willion v. Gait, 17 N. Y. 442; Field on law of dam., 549; see Evans v. Harras, 338 Eng. L. & E. 347; Tilk v. Parson, 2 C. & P. 201. 8 Lynch v. Knight, 94 L. & E. 5777; 5 L. J. N. J. 291; Sedgewick’s -leading cases on the measure of damages, 729. 234 LAW OF DAMAGES. circumstances of the defendant and his position and influence in society, the rank and condition in life of himself, that the defendant has reiterated the language at different times and to different persons and any effort which the defendant has made to have him indicted.* And if he can satisfy the jury by all facts and circumstances that the publication or speak- ing of the words complained of was wanton and malicious, they may give, in addition, exemplary damages.° 275. Full Defense. The defendant may defeat the action by showing that he never published the language complained of.! He may also defeat the action by showing that he, at the time of the speaking of the-words, was acting in the capacity of a legislator and spoke the words in the legislative chamber in discharge of his official duty as a legislator; or, that he was, at the time he spoke the words, in litigation in a court of jus- tice, and that he believed that the utterance of the words were + Townson on slander and libel, sect. 387; Mayne on dam., 274; Guy v. Gregory, 9 C. & P. 587; Armstrong v. Pierson, 8 Iowa 29; Shipman v. Burrows, 1 Hall 399; Harcourt v. Harrison, 1 Hall 474; Cornwall v. Richardson, 1 Ry. & M. 305; 1 C. & Y. 106; Severance v. Hilton, 4 Foster 147; McGee v. Sodusky, 5 J. J. Marshal 185; Inman v. Foster, 8 Wend. 602; Dame v. Kedny, 5 Foster 318; Petrie v. Rose, 5 Watts and Seg. 364; Holly v. Burgess, 9 Ala. 728; Chubb v. Gill, 34 Penn. st, R. 114; Miles v. Vanhorn, 17 Ind 245; Haun vy. Wilson, 28 Ind. 296, 5 Field on law of dam , sect. 649; Hosly v. Brooks, 20 Ill. 115. " Pelier v. Mit, 50 Ill, 511; Lewis v. Chapman, 19 Barb. 250; Humphries v. Parker, 52 Me. 502; Ptayhersen v. Shook, 41 Ill. 142; Bodwell v. Swan, 3 Peck 376; Alderman v. French, 1 Pick; Updegrover v. Zimmerman, 13 Penn. st. 619; Scott v. McKinnish, 15 Ala. 662; Rumsy v. Webb, 1C. & M. 104; Elere v. Evans, Anthony N. P. 23; Burns v. Webb, 1 Tyler 17; Samuels v. Bond, Little sel. can. 158; Treat v. Broning, 4 Conn. 408: Bisby v. Shoen, 2 Kernan 67; Sheahan v. Collins, 20 111. 325; Haws vy. Stapord, 4 Sneed 520; Sydgreaves v. Myatt, 22 Ala. 617 ; Golderman y. Stearns, 7 Gray 181. 3 Townson on slander and libel, sect. 217, LIBEL AND SLANDER. 235 necessary for the successful maintenance of his action or de- fense, or that he was acting as counsel or attorney in conduct- ing a suit and spoke the words while acting in that capacity.‘ An attorney has the privilege to speak anything that is perti- nent to the matter in question between his client and the opposite party,’ or he may defeat the action by showing that he was, at the time of the publication of the words, acting as the judge of a court of justice, and that in the discharge of his official duty he uttered the offensive language;® or, he may de- feat the action by showing that when he spoke the alleged slanderous words he was a witness testifying in the trial of a cause.” ‘ 276. Partial Defense. The defendant may show in mitiga- tion of damages: 1. That the plaintiffs general reputation is bad. The right gf the defendant to attack the general character or reputation of the plaintiff has been questioned and in some cases contra- dicted, but he will only be permitted to introduce evidence to attack that particular trait or quality to which the imputation * Townson on slander and libel, 281. 5 Townson on slander and libel, 281. ® Townson on 8S. & L., Sect. 227; Goodman v. Topin, 1 Harm 60. 7 Garr v. Seldon, 4 Coms. 91; Weston v. Dobinet Cro. Joc. 482. A witness is not bound to determine the materiality of the evidence, and he may answer without liability for so doing questions put to him ’ and not objected to or not ruled out by the court. The fact that the tes- timony is irrelevant or that the witness is influe:.ved by malice will not render him liable for an action of slander. Calkins v. Sumner, 13 Wis 193; Barnes v. McCrete, 32 Maine 442; Grove v. Bundenburg, 7 Black 234; Wilson v. Noonan. 27 Wis. 598; Wright v. Schoeder, 2 Curtis 548; McNutt v. Young, 8 Leigh 542; Young v. Bennett, 4 Scam. McCabe y. Blanter, 6 Black 405; Saunders v. Johnson, 6 Black 50; Leonard v. Al- len, 11 Cush. 241, 52 Ind. 442. A femme sole brought an action of slander for words charging her with fornication and adultery, Held, that the defendant might prove in miti- gation of damages that the plaintiff’s character for chastity was bad. Young v. McNutt, Leigh 542; McCabe and wife v. Platter, 6 Black 405. 236 LAW OF DAMAGES. relates. ‘Thus, in an action of slander founded on the charge of perjury, no evidence as to the character of the plaintiff can be given in mitigation of damages, except for veracity.? And he will be confined to the plaintiff's general reputation or char- ' acter and will not be permitted to prove particular instances of bad conduct and corrupt acts entirely disconnected with the offense charged in the libel or slander.® 2. He may show that he was provoked by the words or con- duct of the plaintiff to utter the slanderous words.‘ 3. He may show that the words were spoken in the heat of passion or under excitement.® 4. He may show circumstances and conduct of the plaintiff that led him to believe that the plaintiff was guilty of the crime charged.‘ 5. That he made the charges under mistake, which, on dis- covery, he forthwith retracted.’ 7. That the publication was communicated to him by are spectable citizen.) * Bell v Farnsworth, 11 Humph. 608; 1 Hill on Torts, 404. . Where a woman sues for slanderous words spoken of her chastity, the defendant may show that she has by her own dissolute conduct. destroyed ‘her reputation or character, and that, therefore, she is not damaged. Field on the law of dam., 551. ; * Field on dam., 551; Wilson v. Noonan, 27 Wis. 598; Fountain vy. West, 23 Ia 9; Fisher v. Tice, 23 Ia. 9. * Freeman v. Tinsly, 50 Ill. 497; Miles v. Harrington, 8 Kans. 425; Moore: v. Clay, 24 Ala. 235; McClintock v. Crick, 4 Ia. 453; Watts v. Frazer, 7 Ala. & Ell. 223. ® Mosler v. Harding, 33 Ind. 176. * Shoult v. Muller, 1 Ind. 544; By. R. v. Monahan, 7 Black 83; Wasson v. Canfield, 6 Black 406; Hayward vy. Foster, 16 Ohio 88; 1 Hill on Torts, 707; Field on dam., 552. ™Bradly v, Heath, 12 Pick. 163. ‘ Duncan y.. Daniels, 2 jur, 32; Maitland v. Goldrey, 2 East. 426. LIBEL AND SLANDER. 237 8. “That he copies the same from another paper giving the authority, or that he was demented or partially insane at the time, or a monomaniac upon the subject matter of the charge.” 9. He may prove that when the words were spoken his mind was so besotted by intemperance and his character so depraved that no one who knew him would regard what he said or give credence to any slanderous word he might have uttered. . ? Field on law of dam., 552. 2 Gates v. Meredith, 7 Tud. 440. When words have been uttered with malice and deliberate purpose, or are merely low and idle expressions, the drunkness of the person ut- tering them is proper to be considered. 7 Ind. 440; 3 Greenleaf evid., S. 6; Taylor’s Med. Jus. 656. CHAPTER XV. TROVER. TrovER Drrinep As AN Act TO RecovER DAMAGES FoR RE- TENTION OF PROPERTY. THE MEASURE OF DAMAGES. THE PLAINTIFF WAIVES ALL DAMAGES FOR INJURY TO HIS PROPER- ty. PRoFITS TO BE ALLOWED. THE CONFLICT OF AUTHORI- TIES. THE RULE ALLOWING THE VALUE OF THE PROPERTY AT THE TIME OF THE CONVEYANCE THE BEST. PROPERTY OF PECULIAR VALUE. DAMAGES, HOW ESTIMATED. THE MARKET VALUE NOT ALWAYS CONSIDERED. THE OLD RULE OF THE COMMON LAW. EXEMPLARY DAMAGES AS A RULE NOT AL- LOWED. GENERAL RULES. 277. An Action to Recover Damages for Retention. An action of trover is a proceeding to recover damages against a person who has had in his possession by any means personal property of another, and has sold or used it without the consent of the: owner, or who refused to deliver the same to the plaintiff ‘when demanded. The gist of the action les in the conver- sion and deprivation of the plaintiff’s property.1. The plain- tiff cannot recover unless he shows the right of immediate 11 Chitty’s Pleading, 135. TROVER. 239 possession before or at the time of the conversion. The dif- ference between trover and trespass is this, in trover the de- fendant may have taken the goods by permission of the plain- tiff, or in a lawful manner, as by finding, as has already been said, the gist of the action is conversion. In trespass, the tak- ing is always wrongful.’ 278. The Measure of Damages. The measure of damages for a conversion is generally the value of the property converted, and interest at the legal rate per cent.‘ ‘ 278. The Plaintiff Waives all Damages for Violation of his Pos- sessions. In this action, though the plaintiff’s possession has been violated, he waives all claims to damages on account of that violation, and seeks indemnity only for the loss of his property. ‘ Hence it is that the value of the property at the time of the conversion is prima facie the measure of damages ?1 Chitty’s Pleading, 149; Edmonson v. Nuttol, 17 C. B. N. S., 280. ® Cooper v. Chitty, 1 Burr,, 31 W. Bl, 67; Hill on Torts, 95 Field on the law of dam., 3627. 4Kennedy v. Whitemill, 4 Pick., 466: Greenfield Bank v. Leavitte, 17 Pick. 1; 3 Camp, 477; Caster v. Feeland, 17 Mo., 150: Kennedy v. Strong, 14 Johnson, 128; Bucher v. Dennison, 13 Gray, 354; Dixon v. Caldwell, 15 Ohio st., 412; Sterling v. Garrett, 18-Md., 468; Rayborn v. Pryor, 14 Ark., 505; Ripley v. Davis, 15 Mich., 75; Yates v. Miller, 24 Ind , 277; Polk v. Allen, 19 Mo., 467; Hurd v. Hubble, 26 Conn., 389; Cook v. Loomis, 26 Conn., 483; Vaughn v. Webster, 5 Har., 256; Trall v. La- thorpe, 30 Vt., 580; Culler v. Farring, 2 Vt. 580; Haden v. Bartlett, 35 Me., 203; Chase v. Monroe. 12 ; Heldborn v. Brown, 6 Texas, 45; Carrier v. Minshall, 18 Cal.. 685; Parks v. Boston, 12 Pick., 198; An- drews v. Durant, 18 N. Y., 496; McCommock v. Penn. Cent. R. R. Co., 40 N. Y., 303; King v. Oesir, 4 Duer, 431; Robinson v. Hartridge, B. Fla., 501; Dillenback v. Jerome, 7 Conn., 294; N. Y. Co. v. Silbeck, 52 Ill, 249; Pierce v. Berry, 14 Pick., 356; Ching v. Vial, 5 H. & N., 288; Mayne on damages, 215; Read v. Fairhanks, I2 C. B., 692; Brisby v. Kendall, 172 B., 937; Lamonda v. Daval, 9 id., 1030; Chambers v. Shaw, 18 Pick., 277; Johnson y. Stear, 15 C. B. N. 8., 330; Edmonson vy. Nuttal, 17 C. B. N.S. 280. f 240 LAW OF DAMAGES. But if the circumstances are such that the plaintiff can be in-. demnified by asum of money less than the full value, there seems to be no good reason why it should not be done, as where the plaintiff has a special property, subject to which the de- fendant is entitled to the goods. Suppose, for example, that a factor has alien on goods to half their value. The principal or owner of the goods becomes bankrupt, and the property vests in his assignee, subject, of course, to alllegal liens. The assignee, denying and intending to contest the factor’s lien, gets possession of the goods and converts them. The factor brings trover and recovers. .How shall damages be assessed? To avoid circuity of action why should not damages be assessed to the amount of his lien.’ A principle of law is that a man cannot, by merely changing the form of his action, entitle him- self to recover damages greater than the amount to which he is in law entitled, according to the true facts in the case and the real nature of the transaction.’ In the case of Bement v. Lockwood, where the defendant took the plaintiff's horse and wagon wrongfully and used them, the plaintiff, believing the property had been stolen, went in pursuit of it and expended considerable time and money in such pursuit. The plaintiff brought suit to recover. The court held that he could recover for his time and also for the money necessarily expended in the use of reasonable means to repossess himself of the prop- erty." 5 Chamberlain v. Shaw, 18 Pick 278. Conner y. Val, 5 Hurl. & Noy. 288; Mayne on dam , 215. Where one sells property to another on condition subsequent, and has paid a part of the money by monthly installments, and the property is taken from him, he may, in action of trover, recover the full value of the same. Anger v. T. P. M. Co, 1 Gray 621. 720 Wend. 223; McDonald v. North, 47 Barb. 530. If the property has been restored that fact is to go in mitigation of damages, but if the restoration is obtained by the offer and payment of a reasonable reward, this amount, with interest from the time of pay-. ment, is to be deducted from the property restored. Greenfield Bank v. Lennett, 17 Pick 1; 14 Pick 356. TROVER. 241 279. Suydam v. Jenks. In this, Duer, J.. commenting at considerable length on the question of damages in an action of trover, said: “It may be shown that had the owner retained possession he would have derived a larger profit from the use of the property than the interest upon its value, or that he had contracted to sell it to a solvent purchaser at an advance upon the market price, -or that when wrongfully taken or con- verted it was in 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 right 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 such is to be in- cluded in the amount for which the 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 dis- possessed, the difference may fairly be considered a 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. * * * Even when the market value of the property, where 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 the defendant has himself realized or might realize that he is bound to account, which judgment should be rendered against him. Hence, should it appear in evidence upon the trial that he had in fact obtained on the sale of the property a larger price than its value when he acquired possession, or that he still retains possession, and that an advanced price could then be obtained, in each case the increase upon the original value (which would otherwise remain a profit in his hands) ought to be allowed as cumulative damages. * * * ‘It seems to us exceedingly clear that the highest price for which the property could have been sold at any time after the \ 242 LAW OF DAMAGES. right of action accrued and before the entry of the judgment, cannot, except in special cases, be justly considered as the measure of damages. When the evidence justifies the conclu- sion that the highest price would have been obtained by the owner had he kept possession, or has been obtained by the wrong-doer, we have admitted and showed that it ought to be included in the estimate of damages in the first case as a por- tion of the indemnity to which the owner is entitled, and in the seeond as a profit which the wrong-doer cannot be per- mitted to retain, but we cannot admit that the same rule is to be followed where nothing more is shown than a bare possi- bility that the highest price would have been realized, and still less where it is shown that it would not have been ob- tained by the owner and has not been obtained by the wrong- doer.” 280. The Conflict of Authorities Ought to be Reconciled. From’ all the authorities that it has been our pleasure to examine we find that different rules prevail in different States for assessing damages in actions to recover personal property or the value thereof in case of conversion. It does seem that this want of a uniform rule should not exist, and that a rule should be estab- lished which would be applicable to all cases of this kind. This could be done without difficulty by saying that the in- jured party, in all cases where personal property is wrongfully taken or unlawfully detained, whether by force or fraud or process of law, shall recover the property and damages for its 13 Sandf. 614; see also Cheney v. Wall; 5 Hurl. & Nov. 288, The above case has been overruled by Baker v. Drake, 53 N. Y. 211. When the defendant, who was employed by the plaintiff to dig a canal, converted the dirt to his own use, the court held that the measure of damages was not what the clay was worth over and above the value of the labor of excavating, but what it was worth to the defendants who appropriated it to their own gain and profit. Chicago & Dock Co. v. Dunlap, 32 Ill, 207. TROVER. 243 use and all necessary expenses incurred in trying to regain possession or when the recovery of the property cannot be had, then its value with damage, interest and expense. Such a rule would have a strong tendency to break down the technical forms of actions as they exist at common law, simplify the practice and lessen the labor of the courts. Some of the States have adopted a rule for the assessment of damages in this class of cases that authorizes the plaintiff to recover the highest market value of the property at any time between the conversion and the time of the trial.’ 281. The Supreme Court of Indiana. The Supreme Court of Indiana, commenting in a recent case upon this question, says: “The time of conversion is not, it seems, always fixed . . by the same circumstances. Thus, a tortious taking is suffi- cient proof of a conversion, but yet it appears from many of the cases that the plaintiff may elect to consider the property as still his own, and ‘treat a sale of it by the wrong-doer or a refusal to deliver on demand as a conversion, or it has been held that the law will, upon the principle of natural justice that a wrong-doer ought not to be allowed to make a profit by his own willful tort, treat the conversion of the property of fluctuating value as occurring at such times between the tak- ing and the trial, as’the property bears the highest price in the market. The confusion in these cases seems in part to have arisen out of the form of action. Some courts and judges hold that by bringing trover the plaintift precludes himself from showing that the taking was willful, and hence the in- jury concerning damages must, in that form of action, be con- 2 Suydam v. Jenks, 5 Sandf. 614. 5 Ellis v. Wise, 33 Ind, 127; Emart v. Kerr, 2 McMullen, 141; Jenkins v. McConico, 26 Ala. 213. , 244 LAW OF DAMAGES. fined to the value of the property at the time of the conver- sion, without reference to the manner of taking. * O* a Some loose ideas in reference to the time of the conversion have also tended to darken counsel as to the measure of dam- ages in trover, where the general rule that the value of the property at the time of conversion has been held to be a uni- versal rule. A wrongful taking and a demand and refusal are each held in trover to be not a conversion, but merely a suffic- ient evidence of it. And yet nothing can be clearer than that these things do not change the title to the property. It still remains in the plaintiff, and may by action of replevin be re- covered in specie so long as its identity is perceptible to the senses. It may be so recovered, though its form has been changed and its value greatly increased. * * * The sale of the wheat was its actual conversion by the defendant, and its value at that time, in the form in which he sold it, was the measure of damages, if the plaintiff was content therewith, though we think he was entitled to the highest price of the property at any time between the taking and sale. * * * It is held otherwise in Massachusetts, but the ruling is main- tained to preserve consistency of decisions, and not because it was the doctrine of the common law. We do not like the Massachusetts rule, and if the question was res integro we would not adopt it, for the reason that it is too tender of the willful tort feasor.” * 282. The Law Aims at Compensation. But reading the dif- ferent conflicting opinions the fact should not be overlooked that the law in awarding damages aims at compensation. Keeping this in view, we think that an amount sufficient to indemnify the plaintiff for all losses he has sustained, which * Ellis v. Wise, 33 Ind., 127; see also Green v. Wilkins, 1 C & P., 625; Brown vy. Saxe, 7Conn., 95; Bettsv. Lee, 5 Johns, 348; Barker y. Wheeler, 8 Wend., 505; Salsbury v. McCoom, 3 N. Y., 379. TROVER. 245 are the natural, reasonable and proximate result of the wrong- ful act complained of, and which a proper degree of prudence on the part of the complainant would not have averted, should in all cases be the measures of damages for the conversion of property.* 232. The Value of the Property atthe Time of the Conversion and Interest. The rule allowing the value of the property at the time of the conversion, with legal interest, should be generally adopted, for the reason that in the large rule or the rule allow- ing the highest value between the time of conversion, and the trial is so uncertain, indefinite, and is a wide departure from the principle of compensation of actual loss. In the adoption of the large rule the fact must have been overlooked that in most cases of this kind the defendants retain the property in good faith and in the henest belief that they are the real own- ers and lawfully entitled to the possession. They should not, therefore, be treated as wrong-doers in the strictest sense of the term. Besides, the large rule leaves the time when the damages are to be assessed indefinite and uncertain. The basis upon which this rule rests is that the title to the property still re- mains in the plaintiff, and that if the defendant had not con- verted the same and retained it from the plaintiff he would have sold it at the highest market price. But the presump- tion has no foundation to rest upon, from the fact that the gaeat majority of men retain personal property but a short length of time, andif the true owner is permitted to retain his property, in the great majority of cases he will sell or consume it within a year. Suppose, that a defendant through the ‘Baker v. Drake, 53 N. Y. 211; Davis v. Oswell, 7 Cor. & Payne, 804 Hurd v. Hubble, 26 Conn 389; Saunders v. Bouries, 52 Mo. 50; Bizee v. Mayber, 21 Wend. 144; Farmers’ Bank v. McKee, 2 Pa. st. 318; McDon- ald v. North, 47 Barb., 580; Foythe v. Wells, 41 Pa. st. 291 » Bennett v. Lockwood, 20 Wend. 223. 246 LAW OF DAMAGES. honest belief that a colt three months old is his property, which, at that time, was worth only fifteen dollars. He takes possession of it, feeds and cares for it until it grows up to be a large horse, worth, at the age of three years, one hundred and fifty dollars. At that age he becomes diseased, and in a short time perfectly worthless. It is now discovered for the first time that the colt belonged to his neighbor, who at once brings an action in trover for the property. To allow the plaintiff the full value of the horse at any time between the taking and the time of the trial would give him judgment for one hun- dred and fifty dollars, ten times the value of the colt at the time of conversion. This would be such a hardship as no court ought to tolerate.® 284. Property of a Peculiar Value, Damages Hard to Estimate. The courts have always had difficulty in adopting a rule for the assessment of damages in cases of the conversion of property of a pecular value to the owner, such as gifts and articles of virtu. In this class of cases the general rule has been re- laxed, and the plaintiff will not be confined to the ordinary market value of the chattel, but the jury should be left to assess its value under all the circumstances of the cases.® * Romain vy. Van Allen, 26 N, Y. 309; Field-on law of damages, 641. In Pennsylvania, where the defendant in good faith and in the exer- cise of what was supposed to be proper authority, cut timber on plaintiff's land to the value of $25, which he converted into hooppoles worth $700, that the title passed to the defendant, he having in good faith expended his labor in making the change. Forsyth v. Wells, 41 Pa. st. 291; Kerr v. Patterson, 41 Pa. st. 357; Moody v. Whitney, 38 Me. 174; Chipman v. Hibbard, 6 Cal. 162; Whitbeck vy. N. Y. Cent. R. R. Co , 36 Barb. 644; Cox. v. England, 65 Pa. st. 212; Young v. Loyd, Id. 199; Sturges v. Keith, 57 Ill. 451. 6 Suydam y. Jenks, supra.; Whitfield v. Whitfield, supra.; Field on dam., 649, Sedgewick on dam., 474; Stickney v. Allen, 10 Gray 352; Whitfield v. Whitself, 40 Miss 352, 44 Miss. 254. 41 Miss. 368. When the property converted has a fixed value, the measure of dam- S TROVER. 247 285. Chief Justice Parson. A very learned commentator, in discussing the question, says: “We think it quite clear, however, that this pretium affectionis cannot be recovered, unless in case where the conversion or appropriation by the defendant was actually tortious, and in that case we snould 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 damages.”? 286. The Market Value Not Always Considered. Judge Duer, in the case of Suydam v. Jenks, says: In most cases the mar- ket 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 willing to pay. The value to the owner may be enhanced by personal or family considerations asin case of family pictures, plates, etc., and we do not doubt that the pretium affectionis, instead of the market price, ought then to be considered by the jury or court in estimating the value. In these cases, however, it is evident that no fixed rule to govern the estimate of value can be laid down, but it must of necessity be left to the sound dis- cretion of a jury in the exercise of a reasonable sympathy with the feelings of the owner.” ages is that value with legal interest from the time of the conversion. Where the value is fluctuating, the plaintiff may recover the highest value at the time of the conversion, or at any time afterwards. Douglass v. Kraft, 9 Cal. 562, 33 Cal. 117. 1 2 Parson on con., 196 The measure of damages for the conversion of plates for printing labels or advertisements of great value to the owner, but of very trifling value to others, is the value to the owners, and in estimating this the costs of replacing the plates may be considered. Stickney v. Allen, 10 Gray (Mass.) 352. ; 23 Sand. 621; see Whitfield v. Whitfield, 40 Miss. 353, 44 Miss. 254; Bickell vy. Colton, 41 Miss. 368; Stickney v. Allen, 10 Gray 352. - ’ 248 LAW OF DAMAGES. 269. The old Rule of the Common Law. The old rule of the common law, established several hundred years ago, that made but little or no discrimination in the assessment of damages in this class of cases between those who acted wilfully, and those | who acted through mistake, has gradually yielded to thé force of Christian influence, and is being modified in harmony with rules of ethics and the law of conscience. And it has been held in several well-considered cases that where the defendant acts in good faith he “should enjoy the enhanced value and the plaintiff only recover the value of the orignal material.”* In the case of Wetherell v. Green, the Supreme Court of Michigan held that where the defendant, in the exercise of what he supposed to be legal authority, had cut down timber of the value of twenty-five dollars into hoops worth seven hundred dollars, which he converted, that the measure of damages was the price of the timber.“ So where an action of trover was brought to recover the value of coal, and it appeared that the defendant had dug the coal from the plaintiff’s mines by mistake, the court held that the measure of damages was the value of the coal before it was mined, and such other damages to the land as the mining may have caused.® And we think that this distinction should be ob- served in all cases where the evidence shows that the defend- ant actedin good faith in converting the property. The rea- son for the establishment of the old rule was that to permit a party to retain any part of goods which he had acquired wrongfully would encourage vice and crime. The fact, how- ever, was entirely overlooked that by the enforcement of the rule innocent men were often made to suffer. But in order to °2 Parsons on cont., 479; Field on dam., 653; Hyde v. Coopson, 21 Barb., 92. 422 Mich., 311; Foster v. Wells, 41 Pa. st., 291. Forsyth v. Wells, supra; Keer v. Patterson, 41 Pa. st., 357; Moody v. Whitney, 38 Me., 174; Chipman v. Hibbard, 6 Cal. , 162; Whitebeck v. N. Y. Cent. R. R. Co., 36 Barb., 644; Cox v, England, 65 Pa. st. 212; Young’ vy. Lloyd, 65 Id, 195. TROVER. 249 -prevent fraud and crime, the courts should require the strict- est proof that the defendant acted in good faith, and in the hon- est belief that he had a right to convert the property to his own use. This rule should be applied in the case of an inno- cent confusion of goods.® 288. Should Exemplary Damages be Allowed? The gestion as to whether exemplary damages may be allowed in an action of trover is not well settled by the authorities. The old decisions are against the allowing of such damages. But the recent cases, where the question has been properly raised, have gen- erally held the other way, and have failed to confine the jury to the assessment of compensatory damages only,” From what has been said we will proceed to lay down some general rules: 1. The plaintiff in an action of trover may recover the value of his property at the time of the conversion, with legal interest, and all expense incurred by him in the use of reasona- ble means to repossess himself of his property. 2. To the above rule there is one exception, to-wit: When it can be shown that had the plaintiff retained possession of the property he would have derived a larger profit from the use of it than the interest upon its value,or that he had contracted to sell it to a solvent purchaser at an advance upon the market 6 Field on the law of dam., 654. If the property has been restored that fact is to go in mitigation of damages, but if the restoration is obtaind by the offer and payment of a reasonable reasonable reward, this amount with interest from the time of payment is to be deducted from the property restored. Greenfield Bank v. Leavitt, 17 Peck. (Mass.) 1. 7 Dennis v. Barber, 6S. & R., 420; Nuber v. Kelley, 69 Penn. st., 403; Backenstor’s v. Stahier, 33 Pa. st , 251; Baker v. Wheeler, 8 Wend., 505; Whitehouse v. Atkinson, 3 C. & P., 344; Pribble v. Kent, 10 Ind , 325, Jones v. Rohill, 16 Minn., 320. 250 LAW OF DAMAGES. price, or that when wrongfully taken or converted it was in course of transportation to a profitable market, which it would certainly have reached. In each of these cases the difference in the market value when the right of action occurred, and the advance which the owner, had he retained possession would have realized, should be allowed as damages in addition to its value at the time of conversion.’ 1 Suydam v. Jenkins, 3 Sandf., 641. In a suit for conversion of a promissory note, in the absence of proof, the presumption is that the instrument is worth the sum payable on it. Menkins v. Mekins, 23 Mo.; 252; Bedo v. Mutual Saving Inst, 28 Mo., 181; Ingalls v. Lord, 1 Cnm. N. Y., 240; Potter v. Merch. Bank, 28 N. Y., 541; Seals v. Cummings, 8 Hump. (Tenn.) 442; Robbins v Packard, 31 Vt., 570. ’ CHAPTER XVI. REPLEVIN. AcTION oF REPLEVIN “UNDER STATUTES. WuHAT PRUPERTY MAY BE REPLEVIED. EXCEPTION TO THE GENERAL RULE. FIXTURE, HOW DETERMINED. INSTANCES IN ILLUSTRATION *» OF THE RULE. THE MEASURE OF DAMAGES. DAMAGES WHEN THE PROPERTY CANNOT BE RETURNED. RuLeE IN Kansas, EXEMPLARY DAMAGES. THE PLAINTIFF’S INTEREST. THE AMOUNT OF THE PLAINTIFF'S RECOVERY. DAMAGES IN CASES WHERE THE PROPERTY IS NOTRETURNED. ARTICLES OF PECU- LIAR VALUE. DEFENDANT’S DAMAGES IN CASE A JUDGMENT OF RETURN IS RENDERED. 289. Action Under the Statutes. At common law trespass was the proper form of an action for the recovery of special damages for the wrongful taking of goods, and that in trover for the value of the goods converted. But under the statutes of most of the States the action of repleving is now generally used for the recovery of specific personal property wrongfully taken or detained and the damages for its detention. The ac- tion under these statutes combines all the elements both of-re- plevin and detenure at common law. The plaintiff can re- 252 LAW OF DAMAGES. cover in this action his property and all damages that he has sustained by being kept out of possession.’ And if for any feason the property cannot be found or returned by the officer holding the writ, he should let his return of the writ show _ that fact; and, if the plaintiff can show the value of the prop- erty on the trial, he can recover the value: thereof, together with his damage for its detention. The statutes of several of the States provides, in fact we believe the general rule is,where the officer holding the writ has failed to return the property to the plaintiff, the court will render a judgment in favor of the plaintiff in the alternative that he recover the possession of the property, or in case it is not being returned, then the value thereof, together with the damages for its detention.’ 290. What Property may be Recovered. A question not free from, difficulty occasionally arises in this class of cases as to what property can be recovered in this action. Law commen- © tators and courts have never been able to draw an accurate line between real and personal property, and there is a want of uniformity in the decision of the courts of the different States upon the question” Land is always regarded as real property, and ordinarily, whatever is erected or growing upon it, as well as whatever is contained within it or beneath its surface, as mineral and the like.® 291. The Exceptions to the General Rule. There has been ef- fort after effort put forth by courts of this and other countries to lay down some definite rule by which to distinguish real ‘ Mitchell v. Burch, 36 Ind., 529. ? Whitney et al. v. Lehmer et al. 26 Ind. 508; Ramly v. Gibbs, 15 John- son, 385; Young v. Willet, 8 Bos. (N. Y.) 486; Frazier v. Frederick, 4 Zab. N. Y., 162; Gordon v; Jeny, 16 Mass., 455. ?Teaff v. Huett, 1 Am. Law Redg., 723. * Washburn on real property, 32 Blackstone’s com., 17-19. REPLEVIN. 253 from personal property, but so far they have only partially succeeded, and the old vexed question as to what is or is not a fixture now and then is presented to the courts for their con- sideration and adjustment. It would be out of place for us to even attempt to discuss the question in this work, and we will only lay down a few rules that may assist the student to un- derstand the subject: 1. A fixture is any article which was a chattel, but by being physically annexed or affixed to the realty becomes a part of it.’ 292. The Rule for Determining What is a Fixture. In order to determine whether an article is a fixture or not, inquiry , should be made as to whether it is attached to the realty in such a manner as to preclude the idea of its removal by the person who placed it there. In settling the question, the bus- iness of the party who placed it on the land and the general usage of the country in regard to the subject matter should be considered. The intention of the party in making the annex- such action. How is thearticle attached to the freehold? What was the general practice and usage of the county in regard to articlesat the time of the annexation? Ifthe answers to these questions are not sufficient to afford any clear indication in regard to the matter, then resort must be had to time and pur- pose of the erection and the expectation and understanding of the parties’ interest in opposite directions at the time the an- nexation was made.‘ 293. Instances in Illustration of the Rule. And it has been held that between a vendor and purchaser growing crops planted by the owner of the soil, constitutes a part of the realty. o a Teaff v. Huett, 1 Am. Law Kedg.. 723. 6 2 Redfield on wills, 158; Dudley v. Ward, Amb. 113; Harvey v. Har vey, 2 Strange, 1141; Wood v. Gaymon, Amb. 395. 254 LAW OF DAMAGES. But, if planted by a tenant who holds under the owner of the soil, they will be regarded as personal property.’ The Supreme ‘Court of Indiana, in a recent case, held that a house built by mistake upon the streets of a city was personal property, and could be replevied.1 But where an article is made personal property by being severed from the realty to which it first be- longed, it may be replevied as long as its separate identity can be ascertained whatever shape it may take, but when an ar- ticle of personal property, though wrongfully taken, has be- come real estate by being attached to the realty, it cannot be replevied because it has lost its separate identity and its char- acter as personal property. Therefore, if rails are wrongfully taken from a fence, they become personal property, and may be replevied by the owner; but, if after their wrongful taking they are again attached to realty by the wrong-doer, they at once become fixtures and cannot be' replevied by the owner.? 294. The Measure of Damages. The measure of damages, as has already been said in an action of replevin, as a rule under these statutory provisions, where the property has not been delivered to the plaintiff, is the vaule of the property at the time of taking or ‘the highest subsegent value at the time of the bringing of the suit or the trial of the action, according as the courts of the different States may hold upon the question.’ The damages for the detention are the same whether the plain- tiff recover his property or not.’ 71 Washburne on real property, 5. 1 Fay and others v. Reddick, 3! Ind. 414. Ricketts v. Dorrell, 55 Ind. 470. 2 Dewitt v. Morris, 13 Wend. 496. But in a recent case in New York it was held that the plaintiff could, where the property could not be found, recover its value at the time of the trial. Co .v. Flinn, 55 N. Y. 633. es , ® Allen v. Fox, 51 N. Y. 562; the N. Y. G. Co. v. Flinn, 55 N. Y. 423; Field on dam., 660. The general question which we deem it necessary to examine is what REPLEVIN. 255 ~ 295. Damages where the Property Cannot be Returned. If, for any reason the property cannot be returned to the plaintiff, he will be entitled to a judgment for its value at the time of the is the proper measure of damages? The rule for ascertaining the sum which the injured party ought to recover in all cases where personal property is wrongfully taken or detained, whether by force, by fraud or by process of law. It is a question of wide extent and corresponding interest, and we are not without hope that the observations which we intend to make may have some tendency to redeem this branch of the Jaw from its present state of confusion and uncertainty. Unless we are greatly mistaken, there are certain indisputable” rules or, more correctly, principles of natural justice, by the application of which the amount that the injured party ought to recover may in all cases be readily and cer- tainly determined Sctting aside the exceptionable cases in which ex- emplary damages may be justly claimed’ and given, and confining our- Selves to those in which the remedy sought is simply pecuniary, the principles which, as it seems to us, are manifestly just and universal in their application are that the owner to whom compensation is due must be fully indemnified, and that the wrong-doer must not be permitted to ‘derive any benefit or advantage whatever from his wrongful act ‘It may frequently happen that these principles when applied will coincide in the result, but there are many cases in which it will be seen that the ap- plication of both is necessary. An indemnity must always be given to the injured party, but it is not in all cases the measure of damages which the wrong-doer ought to pay. First, the injured party must be indem- nified ; he must be placed in the same situation in which he would have been had the wrong not have been committed, or had it been instantly repaid by the payment of compensation then dle. As the actual loss to the owner is the same, whatever may be the form of the action in which its reparation is sought, the sum due to him for its compensation must be the same, whether he is plaintiff in trespass or trover or the defendant in replevin. There can be no variance in the amount of an indemnity, and, if a criterion can be fixed, any departure from the standard which is established must be capricious and arbitrary, and must involve more or less of injustice to one or the other of the parties to the injury. Then what are the rules? What is the process of computation by which the just amount of the indemnity may be ascertained? We reply with some confidence that it will be ascertained in all cases by adding to the value -of the property, when the owner is dispossessed, the damages which he ‘is proved to have sustained from the loss of his possession. It is when the property is wrongfully taken or detained that the right of action occurs to the owner. He is then entitled to demand compensation for his loss, and, if his demand is then complied with, it is plain that the value of the property at that time, by which we mean its market value, 256 | LAW OF DAMAGES. trial, and damages for its detention.* Or its value at any sub- sequent time, according the different rules heretofore stated. But if the officer seizes and returns the property to him, he will be obliged to take it although it has been ey reduced in value by the defendant or from any other cause.* But the plaintiff will be entitled to recover damages for the difference in the value of the property at the time of taking and its value at the time of the trial, together with the value of its use from the day he was deprived of it to the time of the trial. But in most of the States, where the officer returns his writ that the property has not been found, the plaintiff recovers the value of the property at the time of the taking, or unlaw- ful detention, with interest up to the time of the trial.” 296. The Rule in Kansas,'where the Property Cannot be Re- turned. In Kansas, if the property cannot be returned, the plaintiff can recover its value at the time of the wrongful taking' and interest on that valu.2 An elementary writer the sum for which it could then be sold, would constitute at least a por- tion of the amount that the wrong-doer would be bound to pay. This sum may, therefore, be fairly considered as a debt then due, and conse~ quently interest, until the time of trial or judgment, must in all cases be added to complete the indemnity. Suydam v. Jenks, 3 Sandf. 641. * Allen v. Fox, supra. The N. Y. G. Co. v. Flynn, 55 N Y , 423. 5 Allen v. Fox, supra; Field on law of damages, 660. 6 Allen v. Fox, supra; Clapp v. Walters, 2 Tex , 189; Darley v. Cara- way, 2H. J., 413; Butler v. Mishering, 15 1]1., 488; Michel v. Burch, 36 Ind., 529; Tardy v. Howard, 12 Ind., 404; Chessom v. Lancool, 9 Ind. 530; Blacwkell v. Action, 38 Ind, 425. ™ Morgan v. Reynolds, 1 Mat, 163. Field on dam., 659; 3 Sand., 641; McGarrock v. Chamberlain, 20 Ill., 219; Walls v. Johnson, 16 Ind., 374. 1 Garrett v. Wood, 3 Kansas. 231; Field on dam., 661; see also Tun- nom y. Smart, 4 laws N. J., 262; Mayberry v. Cliff, 7 Cold (Tenn) 401. ? Barthol v.. Fox, 13 Minn., 501, Tunnom v Smartt, supra, Mayberry v, Cliff, supra; Woodburn v, Cogdale, 30 Mo., 222; Hurd v. Gallagher, 14 Ta., 394; McNally v. Shobe, 22 Ia., 49; Motte v. Chicago &c. R. R. Co., 2v Ja., 22; Conoway v. Flint. 5 Col., 327; Chicago R. Co. v. Shultz, 55 Ill., 421; Chapman v. Chicago R. Co., 26 Wis , 295; Suydam v. Jenkins, 3 Sand.. 614; Field on dam., 669. REPLEVIN. 257 states the law thus: “When the property has been delivered to the plaintiff and the jury find for him, they should assess the damages for the detention, and he is entitled to compensa- tion for deterioration in the value of the goods replevied,while they were in the hands of the defendant, and also for his time lost, and expenses incurred in searching for his property, and to the hire of a slave. When the property has not been de- livered to him the jury should also find the value of the prop- erty. In this case the damages for the detention are usually interest.’” a 297. If no Proof of Damages is Made Nominal Damages are Al- lowed. If the plaintiff makes no proof of damages, but shows a wrongful taking or detention the court will allow nominal damages.’ There are several authorities which hold that the same principle should govern the damages, whether “the ac- tion is in trover or replevin. In such case the value at the time of taking, or the highest subsequent value to the time of bringing the suit, or the trial of the action, according as the courts may hold in case of trover. But there are many well- grounded objections to this rule, and it is only adopted in a few States.® . ? Morrison’s Replevin, 193-4; see also Bement v. Lockwood, 20 Wend. 224; Chitty’s R., 333; Saunders Pie. & Evid., 186; Mitchell v. Burch, 36 Ind., 529; Gordon v. Finney, 16 Mass., 470; Butler v. Silliman, 38 N. J., 423. _ If the plaintiff fails to recover the property, to show a wrongful tak- ing the damages should be the same as in an action in trover. Field on law of dam., 659. ® Phenix v. Clarke, 2 Gibbs, Mich., 327. 5 Field on law on law of dam., 661. Scott v. Rodgers, 31 N. Y., 588. In an action for the recovery of personal property of a fluctuating value, where exemplary damages are not allowed, the correct measure of damages isthe highest market value within a reasonable time after the property was taken, with interest from the time such value was esti- tated. 39 Cal., 412. 258 LAW OF DAMAGES. 298. Exemplary Damages. There is some question in re- gard to the right of the plaintiff to recover exemplary dam- ages in an action of this character, but we can see no reason why such damages should be allowed in case of trespass de bonis asportatis, and not in one of this nature, for frequently property is replevied from the hands of persons who have will- fully taken it with intention of converting it to their own use. Then if exemplary damages are allowed in an aggravated case of trespass they should also be allowed the plaintiff in replev- in under similar circumstances." 299 The Plaintiff’s Interest. In cases where the property cannot be returned to the plaintiff, a question of some diffi- culty may now and then arise in assessing the plaintiff's dam- ages. If he is the owner of the property he is entitled toa judgment for its value at a specified time. But suppose that he is a mere bailee and has no interest in the property except a temporary possession, he could then only 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, he can only recover an amount sufficient to satisfy his debt.’ 300. The Amount of the Plaintif’s Recovery in an Action of this Character. The judgment for the plaintiff may be for the delivery of the property or the value thereof, in case a delivery cannot be had, and damages for the detention. The only dif- ° Field on the law of dam., sect. 830, Lingle vs Schneider, 30 Wis., 570. * Hayden y. Anderson, 17 Ia., 158; Warner v. Matthews, 18 IIL. 83; Rhoads v. Woods, 41 Barber, 471; Fitzhugh v. Wiman, 9 N. Y. 559; Sea- man v. Luce, 23 Barber, 240; Jennings v. Johnson, 17 Ohio, 154; Noble v. Eppelly, 6 Ind., 468. The defendant being entitled to the return of the property, was entitled also tosome amount of damages, but how great would depend upon his interest in the property, whether as bailee or ab- solute owner, the time he nad been deprived of it, and its character. 6 Ind., 468; Pierce v. Van Dyke, 6 Hill, N. Y., 613. % REPLEVIN. 259 ficult point in assessing the damages is to ascertain what ele- ments are to be considerd in estimating the damages far the detention. The plaintiff is entitled to recover full compensa- tion for all the proximate consequence resulting naturally from the wrongful act. He should in case the property has been delivered tohim, have judgment for the deterioration in the value of the goods replevied while they were in the hands of the defendant, and also for time lost and expense incurred in searching for his property, and tothe hire of a servant.! The plaintiff can only recover such expense as arise in the use of reasonable means to repossess himself of the property, and will not be allowed to recover expense unreasonably made or for time spent in making unnecessary searches for the prop- erty.’,, And he must act in good faith in his efforts to recover the possession of his property, and will not be allowed to spend his time and‘money in search of it, merely for the purpose of increasing his damages against the defendant. 301. Damages where Property is not Returned. In case the property is not returned to the plaintiff he is entitled toa judgment for its value at the time of the wrongful taking or detention, with interest, or any subsequent value to the time of bringing the suit or the trial of cause, as the courts of the differ- ent States may hold. 1 Mitchell v. Burch, 36 Ind., 529; Morris on replevin, 193-4; 21 Chitty Rept. 333. In case where the defendant took the plaintiff’s hogs, and retained them for several months, the plaintiff testified that he lost two weeks time hunting his hogs; hands were worth one dollar per day, team to plow worth one dollar and fifty cents per day, had’ to stop the plow while hunting the hogs; held that plaintiff could recover damages for the time lost, 36 Ind., 529. ; Any deterioration of the goods while in the possession of the defend- ant, after the unlawful taking is a proper subject of damage. Gordon v. Jenny, 16 Mass., 470; But after they are restored if they should be injured, decay, or otherwise impair in value, it must be at the plaintiff's risk, Ib. 260 LAW OF DAMAGES. For the detention, the same as given in the preceding sec- tion. 302 Articles of Peculiar Value. In case replevin is brought for the recovery of property of peculiar value, the same rule for the assessment of damages applies as in case of conversion. See the discussion of the question under the head of trover. See also the discussion of the question as to when the value of the property should be considered under the same head. 303. The statues generally provide that where the prop- erty has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for the return of the property or its value, in case a return of the property cannot be had, and the damages for the taking and withholding of the property. The same rule for the assessing of damages as in the case of detention by the defendant ap- plies.’ > Tardy v. Howard, 12 Ind., 404; Chesion v. Lamcool, 9 Ind., 530. CHAPTER XVII. EMINENT DOMAIN. THE RIGHT TO TAKE Private Property. How tur Srate MAY TAKE PROPERTY. THE DAMAGES THAT THE OWNER MAY RECOVER. THE AMOUNT OF DAMAGES. VALUE OF THE LAND WHEN A WHOLE TRACT. 304. The Right of a Government to take Property. It is inci- dent to the sovereignty of any government that it may take private property for public use. If this was not so, the gov- ernment would fail to meet the public wants, and to carry out the object of its creation, for without this power the State could not establish or open a highway, build a railroad, dig a canal or turnpike, no ground could be procured on which to erect public buildings, save by contract with the owner.’ This 1 Waterworks v. Buckhart, 41 Ind., 364. In the case of Kohl et al. v. United States, which was a case involving the right of the United States government to exercise the right of eminent domain. Justice Strong livered the opinion of the court. He said: “It has been seriously con. tended during the argument that the United States government is with- out power to appropriate lands or other property within the State for its own use, and to enable it to perform its proper functions. Such an 262 LAW OF DAMAGES. power is not conferred by the constitution of the States, but is generally limited by them.’ 305. How the State may Take Property. The State may exer- cise this right directly, or she may delegate it to corporations, companies or individuals.’ The right of a government to take and appropriate the property of citizen is one that should be watched with great care. And it should never be exercised except when the public interests clearly demand it, and then \ authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person or if any other authority can prevent the acquisition of the means or instrument by which alone governmental functions can be performed. The powers vested by the constitution in the general government demand for their exercise the acqnisition of land in all the States. These are needed for armories and arsenals, for navy yards and for light houses, for custom house, postoffices and court houses, and for other public uses, If the right to acquire property for such use may be made a barren right by the unwillingness of property holders to sell, or by the action of the State, prohibiting a sale to the Federal Government, the constitutional grant of power may be rendered nugatory and the government is dependent for its practical existence upon the will of a State or even upon that of a pri- vate citizen. This cannot be. No one doubts the existence of the State government, of the right of eminent domain—a right distinct from and paramount to the right of ultimate of ownership. It grows out of the necessity of there being no act of tenure by which the lands are held. It may be exercised, though the lands are not held by grant from the government either mediably or immediately and independent of the consideration whether it would escheat to the government in case of afailure of heirs The right is the offspring of political necessity, and is inseparable from sovereignty. * * But the right of eminent domain exists in the Federal Government. It isa right which may be exercised within the states as far as necessary to the enjoyment of the power con- ferred upon it by the constituion. Kohl v. United States,91 U.S. R., 367; See Ableman v. Booth, 21 How., 523; Cooley on constitutional limitation, 526. : * Waterworks v. Burkhart, supra. ® McCormick v. town of Lafayette, 1 Ind., 364; Waterworks v. Burk- hart, 41 Ind., 364. EMINENT DOMAIN. 263 ~ with great caution. The way it is to be exercised should be marked out in the clearest possible manner by the. law.’ 306. The title the State may in this: way acquire an easement, an estate for years, for life, or in fee, just at the op- tion of its legislative body.’ But where an easement is taken, as isusually done on the establishing of common highways, the government only acquires the right to use the property for certain public purposes, and the fee remains in the owner, and when she ceases to use it for the specified purpose, then the owner may repossess himself of it again, and the public loses its interest in the same.’ 307. The Damages that the Owner may Recover. The amount of damages that the owner of the property may recover ‘in this class of cases must vary with the surrounding circum- stances and the interest appropriated. If the government ap- propriate a fee the damages will be greater than if she only ac- quires a life estate, or an easement. The authorities uniformly hold that no benefit that the owner of the property may share in common with the’rest of the inhabitants of the vicinity shall he taken into consideration in assessing his damages.’ 7 Cooley on.court lim., 527.; Deekman v. Mayor, 5 N. Y., 434; Allen v. Jones, 47 Ind., 438; State v. Bockma, 8 Black, 246; McCormick v. La- fayette, 1 Ind., 364. 1.2 Kent com., 3 ed.,.340; Beckmon v. Saratoga, etc., R. R. Co, 3 Paige, 73; Warick v. Siaith, 5 Paige, 159, 160; Waterworks Co. v. Burkhart, 41 Ind., 364; Hayward v. the Mayor, 7 N. Y. 314; DeVaraigne v. Fox, 2 Blackf., C. C., 95; Haldernon v. Pa. C RR. 50 Pa st., 425; Rexford v. Knight, 1 Kernon, 308; Dingly.v. Barton, 100 Mass., 544; Brooklyn Park Cmo. v. Armstrong, 45 N. Y., 234; Hatch v. Cincinnatti R. R. Co., 18 Ohio st., 92; Cooper v. Williams, 4 Ohio 552; Craig v. Mayor, 53 Pa. st. , 477; Water Commissioners v. Lawrence, 3 Edw., 552. 2 Waterworks Co v. Burkhart, 41 Ind., 364. 3 Van. & Terre Haute R. R. Co. v. Bowers, 58 Ill., 61; Louisville & Nashville R. R. Co. v. Glazebrook, 1 Buhs, Ky., 325; Hunt v. Smith, 9 264 é LAW OF DAMAGES. It has been held where land was taken for railroad pur- poses, that the owner was entitled to recover: 1, the actual value of the land taken, without any deduction for benefits; 2, such damages as he actually sustained, resulting imme- diately and directly from the proper construction of the road, but not remote or speculative damages; 3, necessary fencing caused by the construction of the road should be considered; 4, damages to the entire tract caused by the construction of the road. That benefits peculiar to the owner and not enjoy- ed by the community in common, should be considered.’ 308. The Amount of Damages. In this class of cases the damages are assessed once for all, and the owner of the land is entitled to compensation for every injury resulting from the appropriation. And where a whole of one’s land is taken, its value at the time of taking is generally the measure of dam- ages. This rule also applies where an isolated tract of land belonging to an individual is taken." Kas., 137, Richmond R. R. Co. v. Burback, 5 Ind., 543; Irom v. Miss. C. R. R. Co., 5 Ind., 300; Whitewater Valley R. R. Co. v. McClure, 29 Ind., 536; St. Joseph & Denver R. R. Co. v. Orr, 8 Kas., 419; Giery v. Cin., Wil. &c. R. R. Co., 4 Ohio st., 308; N.O.G. W.R. R. Co. v. Lagorda, 10 La., An. 150; ast ¥. Ss. & St. Paul R. R. Co, 16 Minn., 260; Polernery same, 508; Brown v. Beatty, 34 Mis, 297; N. J. &G. N. R. R. Co. v. Maye, 3 Miss., 374; Lee v. Teho & Neosha R. R. Co,. 53 Mo., 178; Home- stein v. A. & G. W.R. R. Co., 51 Pa. st. 87; Whitmon v. Bastin & Maine R. R. Co., 3 Allen, 133; same y. same, 7 ib, 313; Little Miami R. R. Co. v. Collett, 6 Ohio st., 182; Meacham v. Fitchburg R R. Co., 4 Cush. 291; Davis v. Charles R. B.R. R. Co., 11 Cush , 506; B.S. R. R. Co. v. Budlong, 6 How. prac., 467; Honstur v. A. & G. Ww. R. Co., 51 Pa. st., 87; D. L. W. RB. R. Co. v. Payne, 16 Barb., 273; A.S.R. RB. Co. v. Dayton, 10 Abbott prac., N. S. 182; Boston R. R. Co. v. Lee, 13 Barb., 169; V. T. R. R. Co. v. Henry, 8 Neva., 165; W.St. P. R. R. Co. v. Deccan, 10 Minn., 267; 8 Kansas, 409 5 Robbins v, Milwaukee & Harecon R. R. Co., 6 Wis., 636; Elizabeth- town & Paducah R. R. Co. v. Helmes’ heirs, € Bush, 681. Where land is taken subsequent to the building of a railroad, its value at the time of taking is the damages. Stafford v the city of Providence, 10 R. L, 867. i Montgomery Gravel Road Corp. v. Stockton, 43 Ind, 828; the White- EMINENT DOMAIN. 265 308. The Rule of Estimating the Damages in case a Part of the Tract is Taken. The correct-rule for the estimation of the dam- ages, is to ascertain the value of the whole tract of the owner, without the right of way, and also what will be the value of the part not taken, after the appropriation has been made, or the land not taken together with the damages assessed should always equal the value of the wh le land immediately before the appropriation.* water Valley Co. v. McClure, 29 Ind., 536; Stafford v. city of Providence 10 B. I. 567; Dillon on munic. corp., 487; 52 Ind., 163-229; Freeland v. N.C. R.R. Co., 4 Jones’ law, 89; Pacific R. R. Co. v. Crystal, 25 Mo., 544; St. Louis & St Joe R. R Co. v. Richardson, 45 Mo., 466; same v. Robin- son, ib., 483; W. St. P. R. R. Co. v. Waldon, 11 Minn., 515; Minn. Cent. R. R. Co. v. McNamara, 13 Minn., 508. ‘Henry v. the Dubuque R. R. Co., 2 Ia., 288; Salter v. Burlington R. R Co, 11a, 386; Watson v. Pitt. R. R. Co., 37 Pa st., 469; Schuylkill Nav. Co. v. Sherburne,7S & R., 411; Deaton v. Polk Co., 9 Ia., 594; Preston v. Dubuque Co., 11 Ia., 15; F. A. & 8. R. R. Co. v. Caldwell, 31 Cal., 367; E. P. R. R. Co. v. Hattenstine, 47 Pa. st., R. 28. CHAPTER XVIII. DAMAGES UNDER THE PATENT LAWS. DAMAGES FoR INGRINGEMENT OF Patents. THE METHOD OF ASSESSING DAMAGES. THE GENERAL RULE FOR THE AS- SESSMENT OF DAMAGES. THE METHOD OF ASCERTAINING THE DAMAGES. THE DAMAGES: GENERALLY ESTIMATED FROM THE PROFITS. WHERE NOMINAL DAMAGES. RULE OF DAM- AGES IN EQUITY. CopyRIGHT. THE MEASURE OF DAMAGES. ‘Act oF Conaress. THE DAMAGES. TRADE MARKS PRO- TECTED AT COMMON AW. THE MEASURE OF DAMAGES. THE RULE WHEN THE PROFIT CANNOT BE ASCERTAINED. 310. The Government of the United States Frequently Grants Titles. The Government of the United States frequently grants to an individual on his application, the exclusive privilege of making, using and vending, and to authorize others to make, use and vendan invention. This right is generally granted by what is called letters patent. If any one infringes upon the right of the patentee, he can maintain an action to recov- er damages. And the question as to what shall be the meas- ure of damages was for years one of great annoyance to the courts and the members of the legal profession. PATENT LAWS. 267 311. The Method of Assessing Damages. The Supreme Court of the United States in commenting on the question, say “It must be apparent to the most superficial observer of the im- mense variety of patents issued every day, that there cannot in the nature of things be any one rule of damages which will equally apply to all cases. The mode of ascertaining the ac- tual damages must necessarily depend upon the peculiar na- ture of the monopoly granted. A man who invents or discov- ers a new compusition of matter, such as vulcanized india rub- ber, or a valuable medicine, may find his profits to consist in a closed monopoly, forbidding any one to compete with him in the market, the patentee being himself able to supply the’ whole demand at his own price. If he should grant license to all who might desire his compostion, mutual com petition might destroy the value of each license. This may be the case also where the patentee is the inventor of an entire new machine. If any one could'use the invention or discovery by paying what a jury might suppose to be a fair value of a li- cense, it is plain that in such case the profit of the infringer may be the only criterion of the actual damages of the pat- entee. But one who invents some improvements in the machinery of a mill could not claim that the profits of the whole mill should be the measure of damages for the use of the _ improvement. And where the profits of the patentee consists neither in the exclusive use of the thing invented or discovered, nor in the monopoly of making it for others to use, “it is evi- dent that the rule allowing damages to the same extent as if the defendant had pirated the whole machine or invention, 1 does not apply. 312. The General Rule for the Assessment of Damages. But it ‘may now be laid downas a general rule that the plaintiff is en- 1 Seymour & Dayton v. Morgan, 16 How. 480. 268 LAW OF DAMAGES. titled to recover for the actual loss he has sustained, or that the patentee may recover the actual damages he has sustained by the infringement of his right.’ 313. The Method of Ascertaining Damages. The mode of as- certaining the actual damages is given by the court in the case of Wilber v. Beecher. Justice Nelson said: “Ifthe defendant has been guilty of violating the plaintiffs right, the rule on the question of damages is that that the plaintiff is entitled to all the actual profits which the defendant may have made by the use of the principle of the plaintiffs 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 plaintifi’s property. This is in effect the same thing, because the law presumes that if the defendant had not put his machine into market the demand would have been for the plaintiffs, and that he would have received the profits on the machines which have been made and sold by the defendant. Vindictive or exemplary damages are not allowed. The jury are confined to actual damages, and the law has provided that the court may increase the damages in certain cases.’” 314. The Damages Generally Estimated from Profits. The usual way of determining the actual damages is to ascer- tain the amount of the profits received by the unlawful use of * Field on damages, 574; Phillip on patents, 2; 1 Hill on Torts, 678; Sey- mour v. McCormick, 16 How. 480, 19 Id. 96, 2 Blatch. 132. Damages for infringement may be recovered not only where the patent covers the whole machine, but where it is for an improvement merely. Seymour v McCormick, 16 How. 480, 19 How. 96. : “We are of the opinion that where the law gives an action for a par-. ticular act, the doing of that act imports of itself damages to the party.” Flint v. Clark, 13 Conn. 861; Whitmore v. Cutter, 1 Gall 429; S. C. Ibd. 483. 2 2 Blatch. 132. 4 PATENT LAWS. 269 the machine or the profits which the party infringing has de- rived from the use of the invention. The jury should, in as- sessing damages, take into consideration the price of the ma- chine, the nature, actual state and extent of the use of the plaintiff's invention and the particular loss to which he may have been subjected by the piracy—should all be weighed in forming the verdict.’ 315. Where There is Only an Infringement in the Making, Nomi- nal Damages. If there has only been an infringement of the patent in the making of the machine and there has been no use of it, the jury should assess only nominal damages.’ Re- mote and consequential damages should not be allowed’ It is provided by the act of Congress, approved July 8, 1870, that in this class of cases 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 costs.’ But an application to the court for treble damages, as provided by this law, should be refused, ‘unless special reasons are shown, * Buck v. Hermance, 1 Blatch. 398; Parker v. Corbin, 4 McLane 462: Seymour v. McCormick, 16 How. 480; Stimpson v. the Railroad, Wallace, Jr., 164; Blanchard v.. Warner, 1 Blatch. 258. In settling the account between the patentee and an infringer of his letters patent, the question is not what profit the latter made in his busi- ness or from his manner of conducting it, but what advantage he derived from the use of the patented invention. Russel v Place, 94 U.S 606. 5 Whitmore v. Cutter, 1 Gall 481; Keenas v. Schuylkill Bank, 4 Wash. 14. < 6 Carter v. Baker, 4 Fish (P. C.) 404. 7 Act of July 8, 1870, sects. 55-59. 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 dam- ages are insufficient there is a provision of law authorizing the. court to treble. Hall v. Wiles, 2 Blatch. U. 8. 0. C. 194. 270 LAW OF DAMAGES. such as malice and insufficiency of the verdict.”" The eourt will, in certain cases where the defendant has been guilty of an infringement of a patent and the circumstances are such that the court deem it proper that the defendant should render an account of the articles manufactured, order him to do so.’ 316. The Rule of Damages in Equity. In cases where profits are the proper measure of damages it is the profit which the infringer makes or ought to make which governs, and not the profits which the plaintiff can show he might have made. But profits are not the primary or true criterion of damages for infringement in an action at law. That rule applies emi- nently and mainly to cases in equity, and is based upon the idea that the infringer shall be converted into a trustee as to those profits for the owner of the patent which he infringes—a principle which it is very difficult to apply in a trial before a jury, but quite appropriate in reference to a master who can examine the defendant’s books and papers and examine him on oath, as well as all hig clerks and employes. The sales of license of machines or of the royalty established constitutes the primary and true criterion of damages in an action at law.® 317. The remedy for the infringement of a copyright is an action for damages. The plaintiff in order to make out his ' Schwazel v. Holenshade, 3 Fish (P. C.) 116. » Holland v. Fox, 25 Eng. L. & Eq. 69; Field on the law of dam., 580. The courts ha ing jurisdiction of cases under this law may grant an injunction restraining the defendant from violating the law and infring- ing on the plaintiff’s rights. Sect. 4921; U. 8 st. at large, 206. * Burdell v. Dening, 92 U.S. R. S C.716. The nature and price of the machine should be considered among the damages. Opinion of Story in Early v. Sawyers, 4 Mason 14. © If, on the trial, the evidence shows the defendant has been guilty of infringing the patent, the court may, if it sees proper, order him to ren- der an account of the articles manufactured by him in violation of the PATENT LAWS. 271 case must show that he has complied with the acts of Congress bearing on the subject; but a copy of the book and the certifi- cate of the Librarian of Congress will be prima facie evidence of that fact.’ 318. The Measure of Damages.’ As to the measure of dam- ages in case of an infringement of the author's rights, it is provided by an act of Congress, that “Every person, who, af- ter recording the title of a book, as provided by this chap- ter, shall within the term limited and withont the con- sent of the proprietor of the copyright first obtained in writ- ing, signed in the presence of two or more witnesses; print, publish or impart, or knowing the same to be so printed, pub- lished or imparted, shall sell or expose for sale a copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent ju- risdiction ’* It will be seen by the reading of this act that it expressly provides that the defendant may recover such dam- ages as may be recovered in a civil action. But it is not to be presumed that Congress intended by this act that the plaintiff should recover damages whether he had sustained aloss or not. It simply authorizes the injured party to commence a suit, and leaves the question of damages to be determined by a jury in accordance with the rulesof law. And it is clear that under this provision of the law the plaintiff may recover.dam- ages for the actual injury sustained and the books forfeited.‘ 319. Itis provided by the same act, that “If any person after the recording of the title of any map, chart, musical plaintiff's right and account for the value of those sold by him, also for the value for such as he may have on hands. Holland v Fox, 25 Eng. L. & E. 69; Hubble v. United States, 13 Court of C. 1. 12 Greenleaf on evid., 511. 3 3 Act of July 8, 1879, chap. 230, sect. 90. + Field on the law of dam., 582, Sect. 721. 272 LAW OF DAMAGES. composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statu- ary, 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 pro- prietor of the copyright first obtained in writing, signed in the presence of two or more witnesses, engraving, etch work, copy, print, publish or impart, either in whole or in part, or by varying the main design with intent to evade the law, or knowing the same to be so printed, published or imparted, shall sell or expose for sale, any copy of such map or other ar- ticle aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, ei- ther copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either print- ing, printed, copied, published, imported or exposed for sale, and in case of painting, statue or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale, one half thereof to the proprietor and the other half to the use of the United States.”* It is pro- vided further by said act, that “Any person publicly perform- ing or representing’ any dramatic composition for which a copy- right has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages, in all cases to be assessed at such sums not less than one hundred dollars for the first, and fifty dollars for every subsequent per- formance, as to the courtmay appear just.”> These provisions will not be so construed as to make any quotation or sentence that may be found in the defendant’s work, a violation of the the plaintiffs copyright. “If the main design be not copied, the circumstance that a part of the composition of one author is found in another, is not of itself piracy sufficient ‘ Sect. 4965, U. S. st., states at large. 5 Sect. 4906, U. 8. st., states at large. PATENT LAWS. 273 to support an action.”* Nor will the fact that that the new publication is prejudicial in some degree to that of the plaintiff enable him to maintain an action. In order for the plaintiff to sustain his action he must show that the defend- ant’s work is substantially a copy ora colorable selection or abridgment of his work. The greatest difficulty generally lies in what is called the middling class of cases, where there is only a part of the plaintiff's work taken, in this case the question to be determined is “whethes it isa legitimate use of the plaintifi’s publication in the fair exercise of a mental op- eration entitling it to the character of an original work.”’ 319. The Damages. The same damages can be recovered in these cases by the plaintiff that can be in an action fora violation of patent laws,? (which see). The plaintiff can re- cover his actual loss. , 820.° Trade Marks.—The Common Law Rule. The common law protects an individual in the use of whatever trade mark, sign, brand, label, words, or other devices that he may adopt to designate the article of his make or manufacture. They are treated as the private rights of the originator, and if there is a violation of his right he can recover damages for whatever in- jury he may have sustained. There is an act of Congress pro- viding that if a trade mark is duly registered, that the exclus- ive right to use it shall remain in force for thirty years.’ 2 Greenleaf evid., sect. 514. , 2 Greenleaf evid., sect. 514. 2 Field on the law of dam., 583. . 1 Taylor v. Carpenter, 11 Paige 292; Graham v. Plate, 40 Cal.; Marsh v. Billings, 7 Curtis, 322; Slack v. Landgraf, 17 Barb., 608; Christy v. Murphy, 12 How. prac., 78; Coruw v. Derby, *16 U.S. st., 210; Res. st, sects. 4937, 4941; McClane v. Fleming, 96 U.8., 245. (Since writing the above the Supreme Court of the U.S. have pronounced this law unconstitutional. Cent. Law Journalof Dec. 274 LAW OF DAMAGES. Whatever name or device a party may adopt to advertise his business, he by adopting and using it acquires a right thereto, and may recover damages from any one who uses it to his in- jury. In order to acquire the exclusive right to use a trade mark, it must be one that denotes the goods, ownership, place of business, and kind and quality of the article in which the party deals.’ 320. The Measure of Damages. In this as in all other ac- tions in tort, the rule of complete compensation for all injuries is the true measure of damages.’ It is sometimes quite diffi- cult to arrive at the exact damages that the owner of the trade mark has sustained by reason of the infringement or the de- fendant’s wrongful use of his property, and courts have adopt- ed different methods for this purpose. The general rule for damages is the profit the defendant has made by the use of the trade mark, or what he ought to have made, together with the 5, 1879, page 449.) Sykes v. Sykes, 3 B. & C. 411; Rodgers v. Nowell, 5 M. G. & Scott, 109; Holloway v. Holloway, 13 Barb., 209; Burgess v. Burgess, 17 Eng. L. & E., 257; Clark v. Clark, 25 Barb , 79; Schueltzer v. Atkins, 46 L. & R., chys. 780; James v. James, L. R., 13 Eq. case 421; Wolfe v. Burke, 7 La., 151; Meneely v Meneely, 3 N. Y., 540; Gilman v. Hunnell, 122; Morgan v. Schmackhofer; 55 How. N. Y. prac., 37; Dun- bar v. Glen, 42 Wis., 113; Deelim v. Deelim, 67 Barber, 290; McClane v. Fleming, 96 U. 8. 245; Coats v. Holbrook, 2 Sandf. ch. 586; Colladay v. Baird, 4 Phil., 189; Holloway v. Holloway, 13 Barb., 209; Boardman v. M. B. Co., 35 Conn., 418; Walton v. Crowly, 3 Blatch., 440; Emener v. Badger, 101 Mass., 82. * Ferguson v. Daniel Miller, 2 Bruce, 314; Stonebraker y. Stonekraker, 33 Md., 252; Hortter v. Vansickle, 1 Dill 329; Menlue v. Menlue, 12 Ala., L. J., 22. Elsewhere courts of justice proceed upon the ground that a party has a valuable interest in the good will of his trade, and in the la- bel or trade mark which he adopts to enlarge and perpetuate it. Hence it is held that he as a proprietor is entitled to protection, as against one who attempts to deprive him of the benefit resulting from the same by using his name and trade mark without the consent of the author. Meneely et al v. Meneely, 62 N. Y., 427. * Field on the law of dam , 587; Taylor v. Carpenter, 2 Wood & M., 1; Colt v. Hollerook, 2 Saund., ct. 586. PATENT LAWS. 275 damages, if any the plaintiff has sustained by having the credit of his trade mark reduced, and the injury he may have sustained by the introduction of the spurious article in the trade. This is perhaps as correct a rule as can be laid down in this class of cases. While the profits made by the defendant does not limit the recovery, the owner of the trade mark is en- titled to all the profits which the defendant realized. 321. The Rule where the Profits Cannot be Ascertained. It some- times happens that from the very nature of the case it is im- possible to ascertain how much of the profits result from the intrinsic value of the commodity in the market, andhow much from the credit given to it by the trade mark, where the prof- its produced by the trade mark, and from the intrinsic value of the commodity, cannot be separated, then a question that is not free from difficulty arises as to how the damages.are to be estimated. Following a principle laid’ down by law writers in cases of confusion of goods by a wrong doer, the owners of the trade mark would be entitled to the whole of the profits.‘ And where the proof showsthat a violation of the right to use is shown and there is no proof of damage, the plaintiff will be allowed nominal damages.’ The defendant may show in miti- gation of damages that he was ignorant of the plaintiffs right to use the mark.§ * Graham v. Plate, 40 Cal., 593. 5 Burnett v. Pharlan, 21 How. prac., 157; Blackfield v. Payne, 4 B. & A., 410. 6 Faber v. Dunty, 11 Able. N. Y. pract., 399. CHAPTER XIX. PUBLIC OFFICERS. Tue Opsect oF A Court. THE Division oF AUTHORITIES. THE RESPONSIBILITY OF A JUDICIAL OFFICER. THE MEAS- URE OF DAMAGES. MINISTERIAL OFFICER. HIs RESPONSI- BILITY. EsScAPE OF A PRISONER. PResuMPTIONS. EXEM- PLARY DAMAGES. MITIGATING CIRCUMSTANCES. ATTOR- NEYs. THEIR RESPONSIBILITY. 322. The Object of a Court. The object of a court is to set- tle in an impartial manner, controversies between individuals. And itisa principle that lays at the foundation of all well organized jurisprudence, that every judge, whether of a high or lower court, exercising jurisdiction vested in it by law, and deciding upon the rights of others, should act upon his own free unbiased conviction, uninfluenced by any apprehen- sion of consequences. And it is well settled that no judicial officer will be held responsible for error of judgment in render- ing his opinion, if it appears that he had jurisdiction of the person and subject matter, and this rule applies as well to jus- tices of the peace as to the higher courts.? » Pratt v. Gardner, 2 Cush., 68-70; Hall on torts, 164; Airie v. Sedg- wick, 2 Roll Rep. 195-197; Miller v. Sears, et al., 2 Blackf., 1145; Maston v. Holsey, Ib. 1147. PUBLIC OFFICERS. 277 298. The Division of Authorities. The authorities are very mauch in conflict upon the question of the liability of a judic- ial officer for fraudulent, corrupt and malicious conduct while acting within the scope of his authority. Some hold that the motives that prompted him in rendering his decision ina cause cannot be inquired into.’ While others hold that he should be held responsible for all injuries to litigants and third parties, arising from his fraudulent, corrupt and malicious conduct.t To hold a judicial officer responsible for his decis- ions and conduct while acting within the province of his au- thority is to open the door to almost endless litigation. And: to say that he should answer in damages only tor those fraud- ulent, corrupt and malicious acts resulting in injury to others, has no tendency to prevent litigation from the fact that the losing party could allege that the judge who presided at the trial acted fraudulently, corruptly and maliciously in all his rulings on the trial of the cause.*® 324. Where Officers have no Jurisdiction they are Responsible. While a judicial officer is not responsible for misconduct, mis- take of judgment, or erroneous decisions, they are liable for trespass committed under color of authority. And where his jurisdiction is special and limited, and he transcends his au- thority and acts in a case in which he had no cognizance, his 3 Hill on torts, p. 162; Pratt v. Gardner, 2 Cush., 68-70; Durtrich Y, Schell, 12 Mass., 506; Elder v. Morris, 10 Wend.; 128; Bullett v. Clem- ent, 10 B. Monroe, 693; Taylor v. Moffett, 2 Blackf., 305; Burly v. Beth- im, 3 Iowa, 580; Doer’s case in error, (Conn.) 315; Bernard v. Hoffman, 18 Md.. 479. * Bernard v. Hoffman, 18 Md., 479; Bullett v. Clement, 16 B. Monroe, 193; Gregory v. Brown, 4 Bib., 28; Margan v. Dudley, 18 B. Monroe, 693; Morgan vy. Hughes, 2 T. K., 225; Burly v. Bethim, 5 Iowa, 580; Field on law of dam., sect. 760. 5 Pratt v, Gardner, 2 Cush., 68-70. 278 LAW OF DAMAGES. proceedings will be coram non judici, and void, and no person much less a suitor can justify under them.° 325. The Measure of Damages. The rule of full and complete compensation for all injuries resulting from the wrougful act,is the measure of damages. This rule applies to injury to person and property, except in case where exemplary damages are au- thorized. “If the injury resulting from the fraudulent, cor- rupt and malicious act of the judicial officers was imprison ment, then the general rule of damages, as laid down in our chapter on False Imprisonment applies. But if the injury was tothe property of the plaintiff, then the rule in our chap- ter on Trespass, applies. 326. Ministerial Officers. Suits are frequently brought against constables, sheriffs, marshals and other ministerial of- ficers for neglect to perform their duties in the service of legal processes. The most frequent suits in this class of cases are those brought by judgment creditors against such officers for failure tolevy executions and writs of attachment on property and to sell the same according to law, or a failure to make the return required. 327. . The Damages. The actual damages to a judgment creditor, where a constable, sheriff or marshal fails to levy an execution or a writ of attachment on property and expose it 6 Taylor v. Moffatt, 2 Blackf., 305; Blood v. Sayer, 17 Vt., 609; Cabel vy. Cooper, 15 Johnson, 157; Holton v. Smith, 14 Adl, & Ell. (N.S ) 840; Pease v. Clayton, 1 Best & S. 658; 2 Hill on torts. 174-175; Field on the law of dam., sect. 160. A judicial act is an act performed by a court, touching the right of parties or property brought before it, by voluntary appearance or by prior action of a ministerial officer, in short by ministerial acts. Flour- noy V. the city of Jeffersonville, 17 Ind., 169; Walldo v. Wallace, 12 Ind., 569. PUBLIC OFFICERS. 279 to sale are suchas the goods would have sold for at public aue- tion, not exceeding the amount of the plaintiffs judgment or debt. Ifthe action is brought against the constable, sheriff or marshal for failure to levy the writ upon property belonging to the judgment defendant, and the property that he might have but neglected to levy upon, was equal to or exceeded in value the plaintiff’s judgment, then the measure of damages should be the amount of the judgment and interest.! 328. Property taken not subject to Execution. Where property is taken by a constable, sheriff or marshal, on execution or other writ, that is exempt from sale on execution, or which belongs to a third person, the damages will be the same as in replevin or trover. 329. Escape of a Prisoner. The law allowing imprison- ment for debt has been abolished in most, if not all, of the States, and now about the only way that a person can be imprisoned for debt ison capias. This keeps up the demand for the old rule for the assessment of damages in case of a negligent es- cape. The Supreme Court of theState of Ohio in comment- ing on this question lays down the rule in a clear and forc- ible manner as follows: 1, “On proving the judgment, ar- _ rest and escape, the plaintiff is prima facie entitled to récover the whole amount of his debt.” 2, “To reduce the amount of ' Field on law of dam., 611; Burton v. Fulton, 49 Pa. st,, 151; Mullett yv. Chollis, 39 Barb, 69; Perkins v. Pitman, 2 Eng. L. & E., 260; 10 Wend. 367; Bowman v. Crowell, 39 Barb., 69; Smith v. Took, 20 Texas, 750; Clarke v. Miller, 47 Barb., N. Y., 38; Hays v. Porter, 22 Me., 371; Bickford v. Hood, 7T. H., 620; Farmer v. Turnpike Co., J Coventry, 10 Johnson, 389; Pugh v. McRae, 2 Ala., 393; Clark v. Smith, 40 Conn., 1; Hamilton v. Marsh, 2 Tyler )Vt.), 403; Arnold v. Commonwealth, 8 B. Monroe, Ky., 109; Marshall v. Simpson, 13 Ala., 437; Danforth v. Pratt, 9 Cush., 318; Hudson v. Wilkint, 7 Me., 113; Ackley v. Chester, 5 Doy Conn., 221; Hammer v. Griffith, I Grant (Pa) Con., 193; Barrett v. Reed, 51 Pa. st., 190. 280 LAW OF DAMAGES. the recovery below the amount of debt due from the escaping prisoner, the onus probandi rests upon the defendant.” 3, “For this purpose the defendant may not show that the amount of the debt isstill 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 nominal damages.” 5, “Wherea jury finds the escape to have been not only voluntary on the part of the officer, but that in permittIng he was actuated by fraud, mal- ice or corruption, they are not restricted in the amount of the injury actually sustained, and may include reasonable exem- plary damages, but with this exception, where evidence in mitigation is given the actual injury sustained, is the proper measure of damages.” . 330. Presumptions. The law raises a presumption in! fa- vor of an officer and that he has discharged all his official du- ties.» And where attached goods are lost in an action against the officer, the loser if he can show such a state of circum- stances as to overturn all presumption of negligence, the bur- then of proof will then rest on the plaintiff, and in case of loss by theft it has been held that it was not even presumption of negligence. 331. Exemplary Damages. The rule which allows exem- plary damages applies to ministerial officers as well as to other persons. A ministerial officer is not responsible for any act done in accordance with the law of the State in which he of- ficiates. But when he violates the law his official authority is no protection to him whatever, and he is responsible like 2 Hartman v. Shriner, 15 Ohio st., 43; Field on the law of dam., 3770. 5 State v. Freeman, 8 Ohio, 428, 4 Mills v. Gilbert, 47 Me., 320. PUBLIC OFFICERS. 281 any other individual, for the damages resulting from his un- lawful act. And where the evidence discloses the fact that he has been guilty of actual malice, fraud or oppression, the jury will not be confined in assessing damages to actual compensa- tion, but may give exemplary damanes.® 332. Mitigating Circumstances. In actions against public officers for wrongs or torts, as we have already said, they are held responsible for the injuries and consequences resulting from their unlawful acts the same as other persons. And as the motives that actuate a party in the commission of a wrong is always proper for the jury to consider in assessing damages in this class of cases, the defendant will be permitted to rebut the presumption of malice, by showing that he acted inno- cently and in the honest belief that he was authorized todo the act complained of. Thus in an action against a sheriff or constable for seizing and selling goods of the plaintiff on ‘an exe- cution against another party; the sheriff or constable may show in mitigation of damages that the goods were bought in by the plaintiff at an under price.6 As arule a sheriff or constable who has wrongfully levied an execution upon goods of the de- fendant in the execution, cannot generally show in mitigation of damages that he has applied the proceeds of the sale to pay- ment of the debt of the plaintiff.’ In the case of McMichael 5 Hunter v. Bacon, 15 Conn, 271. See also ante. page on exemplary damages. Field on the law of dam., sect. 771. * Forsyth v Palmer, 18 Pa. st., 96; Baker v. Freeman, 9 Wend., 36; Clark v. Hallock, 16 Wend., 607; Alexander v. Helber, 35 Mo., 334. ; 7 Forsyth v. Palmer, 18 Pa. st., 96; Baker v. Freeman, 9 Wend., 36; Clark v, Hallock, 16 Ib., 607; Alexander v. Helber, 35 Mo., 334; Mc- Michael v. Mason, 13 Pa. st. 214; Ohio v. Jones, 21 Wend., 594, Hopple v. Higbee, 3 Zab. N. Y., 342; Hill v. Loomis, 6 N. H., 268. In Alabama in an action against the sheriff for the wrongful levy on property of the plaintiff on an execution against another person, the fact that the goods were in the possession of the defendant at the time of the levy may be shown in the mitigation of damages. 282 LAW OF DAMAGES. vy. Mason it was held that in trespass for taking on execution a debtor’s only cow, which was exempt, the plaintiff was held entitled to recover the value of the cow, although the proceeds of thesale of thecow had been applied in satisfaction of the execution." 333. Attorneys, their Responsibility. Attorneys are a class of judicial officers, and it is awell settled rule of law that an at- torney is always responsible in consequence of his ignorance, carelessness, or want of skill in the transaction of his client’s business, or in the trial of his cause. The task of an attorney to always determine, in 4 critical case, the proper steps to be taken in its prosecution or defense, is sometimes very difficult. A small circumstance, a slight injudicious movement, some- times has.a tendency to injure his client’s cause. In such cases he should advise his client to the best of his judgment, and where there is a doubt in his mind as to the best course to pursue or what should be done in order to be safe, he should follow the advice and wishes of his client, and if he fails to do so and his client sues for damages, if he can show that the fail- ure of the attorney to carry out his wishes has injured him, he can recover damages for that injury.’ 334. The Measure of Damages. The general rule of full compensation for all actual loss sustained by the client on ac- count of the negligence and want of knowledge and skill on the part of his attorney, as a rule will be the damages.’ The attorney may show in mitigation of damages where he is sued for neglecting to order an execution, or to exercise proper dili- gence in looking after his client’s claim, that the execution de- ' Ala , see case 404, Sterrett v. ex. r. v. Kaster. ° Nam v. Baird, 12 Ind., 318; Reilly v Cavanaugh, 29 Ind,, 435; Cox v. Sullivan, 7 Ga., 144; O’Barr v. Alex, 37 Ga., 195; Holmesv. Peck, 1 R. ° I., 242; Nelson v. Russ, 19 Me., 44; 2 Hill on torts, 480-484. PUBLIC OFFICERS. 283 fendant has plenty of property out of which the plaintiff's claim can be made. 335. Damages for being kept out of Office. The amount of dam- ages that a legally elected officer may recover, who has been wrongfully kept out of his position of trust is not well settled by the authorities. But there are familiar principles that will assist us-in arriving at a definite conclusion upon the question. The old remedy for deseizin of office of profits seem to have been by assizes, and the suit was allowed by analogy to proceeding for the recovery of possession of real property and its appurten- ances. And in such actions the courts will not permit any de- duction on account of the personal service of the defendant. And in an action for mean profits the defendant can not show in order to reduce the plaintiff’s recovery that he has made more money in any other business, than he couldby farming. And inno case will a trespasser be allowed for his services in clear- ing the land which he wrongfully withholds from the true ow- ner. There is a principle in law that where the labor of one inures to the benefit of ‘another the defendant will be liable on an implied contract to pay forthe labor. But this rule only applies where the labor is done under such circumstances as to raise a presumption of consent on the part of the employe, and never applies where the labor is performed against the will of the defendant or the supposed employe, for no rule of law will permit one to make another his debtor in spite of his pro- test and against his will. And where one unlawfully keeps another out of an office to which he has been duly elected or appointed, and suit is brought for damages, the plaintfff can re- cover the full amount of his salary for the time he has been ® Hill on torts, 478 et seq 4 ed.; Governor v. Raly, 34 Geo., 175; Hoby v. Built, 3 Born & Adel., 350, pr. ld. Mansfield; Pitt v. Yalden, 4 Burr, 2961; Field on the law of dam., sect. 775; Glasscock v. Lyons, 20 Ind., 1; Douglas v. the State on the relation of Wright, 31 Ind., 429. 284 LAW OF DAMAGES. kept out of office. And the defendant can not set off against his claim the price of his labor for performing the duties of the office while he wrongfully kept the plaintiff out of possession.’ 1 People ex rel. Benott v. Miller. 24 Mich., 458, 9 Am. Rep., 131. CHAPTER XX. NOMINAL DAMAGES. Nomina, Damages. Wuen THEY MAY BE ALLOwED. ALLUW IN ALL CASES WHERE A RIGHT HAS BEEN EVADED. ALLOW IN CASE FOR BREACH FOR LABOR. IN CASES OF BANKERS. IN covENANT. THE SUPPOSED HARDSHIP OF THE RULE. 336. Nominal Damages. As we have already said, the law affords a remedy for every injury that one may receive in per- son, property or reputation. Therefore, whenever an injury is done to the legal right of another, the injured party has a remedy for damages sustained. And where there is a breach of agreement or the evasion of a right established, the law in- fers some damages to the plaintiff, and where there is no evi- dence introduced showing the amount of the loss the law au- thorizes the court to declare the right by awarding nominal damages, being some very small amount, as one cent." Ld. Holt in Ash v. White, 1 Salk., 19; Sedgwick on the measure of dam., 44; Field on law of dam., 679; Fullmon v. Stearns, 30 Vt., 443; Whit_, more v. Cutter, | Gall., 429; Paul v. Sloson, 22 Vt., 231; Whipple v. Cumberland Mfg. Co., 2 Strong, 661; Bagby v. Harrass, 9 Ala., 173; Brown v. Davis, 15 Cal., 9; Deuendorf v. Werf. 42 Barb., 227; Bond v. Hilton, 2 Jones, (N. C.) L. 149; Seal v. Morland, 7 Hump., 575. 286 , LAW OF DAMAGES. 337. When Nominal Damages may be Recovered. The plain- tiff may recover nominal damage where property is delivered and accepted, pending asuit in reference to title before verdict. In an action against a sheriff who failed to levy an execution issued on a judgment recovered against a certificated bankrupt for debt due before the bankruptcy.’ Wherea case is submitted upon an agreed statement of facts but without an agreement respecting damages. For'a brecch of an agreement for good consideration to withdraw a suit without proof of actual dam- ages.» For injury arising from the neglect of a common car- rier where no loss is established. From a breach of covenant of warrant where there has been no eviction.’ 338. In an action for a breach of an agreement to convey real estate where no want of good faith appears, the vendor being unable to make a good title and nothing having been paid by the purchaser, nominal damages may be recov- ered? It may be laid down .as ageneral rule that nom- inal damages will be allowed in all cases where a breach of contract is shown but no evidence is introduced to establish the loss. And this. rule applies to both expressed and im- plied contracts. As the only difference in an expressed and an implied contract isin the mode of substantiating it. An express contract is proved by an actual agreement, an im- plied contract by circumstances and the general course of deal- ing between the parties. But whenever 4 contract is once proved the consequences resulting from a breach of it must be 5 Conroy v. Flint, 5 Cal., 327; Selfridge v. Lithgom, 2 Mass , 374. + McNeany v. Jewett, 10 Allen, 151. § Hogan v. Riley, 13 Gray, 515. * Southern R. R. Co v. Kendick, 40 Miss., 374. 7 Measely v. Hunter. 18 Mo., 103. 1 Conger v. Weaver, 20/N. Y., 140. NOMINAL DAMAGES. 287 the same, whether it be proved by direct or circumstantial evi- dence.” 339. Allow in All Case where a Right has been Evaded. And that in all cases where the evasion of a right is shown, either by misfeasance, nonfeasance, or malfeasance, the injured party has aremedy for damages sustained. And whenever the fact - is established that the plaintiff has sustained an injury, thelaw presumes or implies damages; and where there is no proof of loss the party injured is entitled at least to nominal damages.” Thus in an action for a breach of an agreement to exchange farms, in the absence of any showing that the plaintiff had paid any part of the consideration money, parted with any- thing, or put in any worse condition than he would have been in had not the allegations of false representation been made, the court held that the plaintiff could recover only nominal dam- ages.* 340. Nominal Damages in Case of a Suit for Labor. Where a plaintiff sues for wages and proves that he performed labor, but omits to prove the value of it, he can recover at least nom- inal damages. “No proprietor has a right to the water of a running stream to the prejudice of other proprietors above or below, unless he has a prior right to divert it, or title to some exclusive enjoyment. Without the consent of the a joining proprietors he cannot divert or diminish the quantity which would otherwise descend to the proprietor below, nor throw the water back on the proprietor above, without a grant 2 Marzette v. Williams, 1 Barn & Adol., 415-541; Smith v. Whiting, 100 Mass., 122; Rosenbaum v. McThomas, 34 Ind., 331; Dormon v. Ames, 12 Minn., 451. ° 3 Whittemore v. Cutter, 1 Gall., 429; Paul v. Sloson, 22 Vt., 231; Full- mon v. Stearns, 30 Vt., 443; Champion v. Vincent, 20 Tex., 811. 4 Frese v. Cary, 29 Ind., 524. 288 LAW OF DAMAGES. or an uninterrupted enjoyment for twenty years.”° Therefore, where suit is brought to recovet damages for diverting water from its channel, or stopping the flow, or for backing it upon another’s mill or premises, if the facts of diverting, etc., are established and there is no proof of loss the plaintiff is entitled to nominal damages." 341. Nominal Damages in a Breach of Covenant. Ina breach. of covenant of seizin by a vendee who is in possession, nomi- nal damages can only be recovered ‘unless the plaintiff shows an eviction." 342. In Case of a Banker. Where a banker receives a sum of money belonging to his customer he becomes his debtor the moment he receives it, and is bound to pay a check drawn by such customer, after the lapse of such a reasonable time as would afford an opportunity to investigate the account of the party and to ascertain whether the drawer has any money in the bank or not, and if in action against the banker for fail- ing to honor a check drawn on him by the depositor, the plain- tiff, where no actual damages are shown, is entitled to nominal damages. 343. Ina Covenant. Where a grantor in a conveyance stipulated that the purchaser should have a specified time for the payment of an existing mortgage, and also agreed to pay the first instalment of the mortgage, and to indemnify the pur- chaser for any damages for a breach of these agreements. Ina Owen v. Riley, 2 Mo, 203. 63 Kent, p. 439. " Munroe v. Stickey, 48 Mo., 462; Munroe v. Gates, 48 Mo. 468; Stow- ell v Lincoln, 11 Gray, 434; Cory v. Silcox, 6 Ind., 39. 7 Nooman vy. Ilsby, 22 Wis., 27; Marzetta v. Williams. i Barn. v. Adol., 415-541. NOMINAL DAMAGES. 289 suit for a breach it was held ‘that the plaintiff might recover nominal damages though no actual damages were shown.! 342. The Supposed Hardship of the Rule. The rule allowing the recovery of nominal damages at first view looks like a departure from the long and well settled maxims that the law “regards not as mere trifles,” De minimis curiat Lex. But we should keep in view the fact that the importance of a law suit is not always to be determined by the amount of damages that may be recovered. There are many cases brought, where the amount of damages cannot exceed a nominal sum that affect the dearest interests of the parties litigant. But courts should be careful not to enforce the rule to such ‘an extent as to encourage useless and malicious © litigation and legal strife over small, insignificant, and trifling matters. The rule when properly guarded has a ten- dency to promote the ends of justice, and is now recognized by 1 Loin v. Archer, 12 N. Y., (2 Kern) 277. In an action to recover damages for flowages, if the damage is so small that it cannot be estimated, the plaintiff under the rules of the common laws is entitled to nominal damages. Cory v. Sileox, 6 Ind., 39; Wright v. Storm, 4 Jones, (N. C.) L. 516; Little v. Stanbock, 36 N. C., 285. + “There are some injuries of so small and little consideration in law that no action will be for them; for instance, in respect tothe payment of tithes, the principle which may from the cases appear to be that for asmall quantity of corn involuntarily left in the process of raking, tithes shall not be payable, unless there be a particular fraud or intention to deprive the person of his full right.” Brooms legal maxims, 143; Paul v. Sloson, 2 Vt , 231; Williams v. Morty, 4 Vt., M. & W., 144; Field on law of dam., 682. 2 Sedgwick on the measure of dam., 44, Waterer v. Freeman, Hobart, 266; Strong v. Kearn, 13 Irisn law, 93; Smith v. Whiting, 100 Mass., 122; Rosenbaum v. MeThomas, 34 Ind., 331; Burnap v. Wight, 14 IIl., 301; Hutchinson v. Schimmefelt, 40 Pa., 396! McConnell v. Kibbe, 33 IIl., 175; Shannon, v. Burr, 1 Hilt, 39; Comly v. Davidson, 10 Minn., 392; Queen v. Moore, 15 N.-Y.,(1 E. P. Smith,) 432; Hope v. Alley, 9 Tex., 394; Bond v. Hilton, 3 Jones (N. C.) L. R., 149; Ledbetter v. Morris, 3 290 LAW OF DAMAGES. the courts of this country and England, and is upheld by the rules of equity and justice.’ id., 543; Kimel vy. Kimel, 4 id., 121; White v. Griffin, id. 139; Amoskeag Manfg. Co. v. Goodale, 46 N. H., 53; Dorman v. Ames, 12 Minn., 451; Nosatti v. Page, 10 C. B. R., 643, sc. Eng. law and eq., 326; Bank v. Tencka, 48 N. Y. 305; Deuendorf v. Wert, 42 Barb., (N. Y.) 227; Basset v. Saulsbury Mfg. Co., 8 Fost., 438; Brown v. Watson, 47 Me., 161; 10 Fost., 478; Wells v. Walting, 2 W. Blackf., 1233, 9 Co., 113; Pendar v. Wadsworth, 2 East , 154; 2 B. & Cres., 145; 12 Adons v. Ellis, 488; Moor & M., 172; Cory v. Silcox, 6 Ind., 39; Burden vy. Mayor of Mobile, 21 Ala., 309; McElroy v. Goble, 6 Ohio st., 187; Jewett v. Whitney, 48 Mo., 242; White v. Griffin, 4 Jones, (N. C.) L. R., 139; Fray v. Vouls, 1 Ellis & E., 839; Fullmon v. Stearns, 30 Vt., 448-513; Owen v. O’Reilly, 20 Mo., 603; Hagan v. Riley, 13 Gray, 515; McCarty v. Beach, 10 Cal., 461; Hunt v. Donal, Dudley, 180; Cox v. Sprigg, 6 Md., 274; Murry v. Bishop, 24 Md., 310; 10 B. Mow. 330; State v. Runhardt, 31 Mo , 95; Smith v. Jefts, 44 N. H., 482; Dent v. Davidson, 52 Ill., 109; Linder v. Lake, 6 Iowa, 164, Wilson v. Whititoke, 49 Pa. st., 114; Brown v. Price, F. C. B. N. S., 598; Pollar v. Porter, 3 Gray, 312; Donohue v. Henry, F. E. D.S., N. Y., 162; 1 Duer., 363, 12 C. B. 770; Smelting Co. v. Tipping, H. H. L. C. 642; Smith v. Shockera, L. R. I. C. P., 564; Smith v. Heuzar. 25 Tex., 205; Noonan v. Isle, 22 Wis., 27; Mecklain v. Blake, 22 Wis., 495; 40 Meigs, 374; 15 Mo., 322; Field on law of dam., 679-682; 2 Story R. 661; Little v. Staunbock, 63 N. C., 285; Copeland v. Copeland, 30 Me., 446; Stowell v. Bennett, 34 Me., 422; Dye v. Mann, 10 Mich., 291; Collier v. Gamble, 10 Mo., 467; 48 Me., 462-3; 11 Gray, 438; Ledbetter v. Morris, 3 Jones, 543; Conroy v. Flint, 5 Cal, 327; Selfridge v. Lithgow, 2 Mass , 874; Bowen v. Emerson, 3 Mass , 150; Marzetti v. Williams, 1 Barn. & Adol., 415-541; Weller v. Baker, 2 Wils., 422; Johnson v. Slear, 15, C B. N. S., 330; San- ders v. Stuart, L. R., 1 C. P. D., 826; Prescott v. Trueman, 4 Mass., 927; ‘Leffingwell v. Elliott, 10 Pick., 204. CHAPTER XXI. WATERCOURSES. THe Lanp Owner Has A RicGuT TO USE THE WATER THAT PASSES THROUGH HIS LAND. CASE OF GOULD V. Boston. THE LAW MAKES A DISTINCTION BETWEEN NATURAL AND ARTI- FICIAL WANTS. STREAM BELOW THE SURFACE. THE SURFACE WATER MAY BE PREVENTED FROM FLOWING ON LAND. Dam- AGES. PROFITS SHOULD BE CONSIDERED. 343. The Right of a Land Owner to Use the Water on his Prem- ises. A person owning land on a stream of water may lawful- ly use the water thereof for husbandry, for mills, or other pur- poses, whatever may be the effect upon the proprietors below. But he should exercise great care and not retain the water un- necessarily by damming it upor by diverting it from its original channel. If he wishes to use it for the purpose of propelling a mill or other machinery, and is compelled to elevate it by means of a dam, his dam should be such as is adapted to the size of the mill and the capacity of the stream and the quan- tity of water that usually flows therein, and he must make a reasonable use of the water. The question as to whether the defendant made a reasonable use of the water is one that should 292 LAW OF DAMAGES. be left to the jury to be determined by the custom of the coun- try in cases where dams have been erected and maintained upon similar streams.’ The right of the upper proprietor is not susceptible of being definitely defined in all cases, but will vary with the circumstances of cach particular case.’ 344. Gould v. Boston. In the case of Gould y. Boston the facts as shown by the evidence were about as follows: The defendant’s mill was adapted and appropriated to the size, ca- pacity and water of the stream, and caused no further disturb- ance or interruption of the flow of the water to the plaintifi’s mill than was necessary and unavoidable in its reasonable use for the defendant’s mill, but without reference to the plaintiff's necessities or demands for water in a period of extraordinary drouth, as occasionally occurs in the stream when the water, though sufficient to operate the plaintiff's mill, would be in- sufficient to operate the defendant’s, and without any prescrip- tion or prior right of the plaintiff as occupant of the older priv- ‘ilege. The defendants, in order to create the proper head and supply of water for their mill, were compelled to shut their gate occasionally during the working hours and thus interrupt the flow of the water to the plaintiff’s mill in a material man- ner, but with reasonable regard to the best interest and -ad- vantage of the defendant as proprietor of their mill, and in conformity to the general usage of mill owners, running mills on this and other similar streams. The defendant in his con- duct acted wholly irrespective of the plaintiff’s interest and of his necessities or demands for water, and neither acknowledge nor conform wholly or in part to any claim made by the plain- tiff that a sufficient quantity of water should be left flowing to operate the plaintifi’s mill. Held, that an action would not ' Springfield v. Harris, + Allen (Mass.) 494. ” Ellen v. Dunean, 21 Barb, 230. WATERCOURSES. 293 lie As has already been said, a man owning a close on an’ ancient brook may lawfully use the water thereof for the pur- pose of husbandry, as watering his cattle or irrigating his close, and he may do this either by dipping the water from the brook and pouring it upon the land or by making small sluces for the same purposes, and’ if the owner of the close below is injured he cannot recover damages.’ 345. The law sometimes makes a Distinction between Artificial and Natural Demands. The law sometimes draws a nice distinction between man’s natural and artificial wants, and holds that where both are demanding water from the same source, that the natural demands must be preferred over the artificial. It defines natural wants to be such as are absolutely necessary to preserve life. That artificial wants are such only as supply the comforts of life. “To quench thirst and for household pur- poses water is absolutely indispensable. In civil life water for cattle is necessary. These wants must be supplied, or both man and beast will perish. The supply of man’s artificial wants are not essential to his existence—he could live if water was not employed in irrigating lands, or in propelling his machinery. So of manufactures, they promote the prosperity and comforts of mankind, but cannot be considered absolutely necessary. to -his existence. An individual owning a spring on his. land, from. which water flows in a current through his neighbor’s land, would have a right to use’ the whole of it if necessary to satisfy his natural wants. If he desires to use it for irrigation or manufactures, and there be a lower proprietor to whom its use is essential to supply hss natural wants, or for his stock, he must use the water so as to leave enough for such lower proprietor. When the stream is small and doesnot supply wa- ter more than sufficient to answer the natural wants of the 5 Clinton v. Myers, 46 N. Y. 511. +13 Gray 442; 2 Weston v. Alden, 8 Mass. 136. 294 LAW OF DAMAGES. different proprietors living on it, none of the proprietors can use the water for irrigation or manufactures.” ° 346. No Rule as to How or When Water may be Used. The law lays down no rule as to how or when water may be used, as between different owners; it looks to the quantity used and not the mode of using it.) When two steam mills or factories are located on the same stream, the rule is that so far as the water is used by being converted into steam, neither is entitled to its exclusive use, it is to be divided between them as nearly as it may be, according to the respective requirements. If each re- quires the same quantity, but while the water is incapable of being thus divided with mathematical exactness, if the juty should find that the upper factory has used more than its rea- sonable share, or has diverted the water, after using it, from its natural channel, or so corrupted it as to deprive the lower pro- prietor of its use to such a degree as to cause a material injury, it would be ground for damages, ultimately for an injunction.' 347. Streams Below the Surface. The law makes a distinc- tion between the title of streams above ground and subterra- nean streams of water percolating, oozing or filtering through the earth. The owner of the surface may dig down to and’ use all the water there found to his own purpose, at his will and pleasure. And if in the exercise of this right he inter- cepts or drains off the water collected from under the ground springs into his neighbor's well, that no damages can be recov- ered. It has been held that the owner of a farm may dig a ditch to drain his land or open and work a quarry upon it, * Evans v. Murriworth, 3 Scam , (IIl.) 496; Kaler v. Beamon, 49 Maine, 207. 1 Perkins v. Dorn, 1 Root, (Conn.) 535; Wadsworth v. Tillottson, 15 Conn., 366; Bliss v. Kennedy, 43 IIL, 67. PUBLIC OFFICERS. 295 even if by so doing he intercepts one of the underground sources of a spring on his neighbor's land, which supplies a small stream of water flowing through the land of each, there- by diminishes the supply of water to the injury of the adjoin- ing proprietor, that no damages could be recovered.’ So if a spring produced by percolation through the land above in the use of land for mining is destroyed by the owner above, he is not liable unless guilty of negligence or malice.» The owner of land through which a stream of water runs, may obstruct the natural channel and divert it into any portion of his land, if the water is returned into the former channel before it passes upon the land of another. 348. Surface Water may be Prevented from Flowing on Lands. The owner of land may prevent surface water from flowing upon his land by erecting barriers or changing the level of the soil, or may alter its flow after it has come upon his land, al- though it may thereby be caused to pass off in a different di- rection and in larger quantitiesthan previously, to the injury of adjoining lands.* The authorities are somewhat in conflict as to what should be the measure of damages in an action for flooding the plaintiff's land. In some States the rule is that the jury are, in assessing the plaintiff’s damages, authorized to consider the benefits to the plaintifi’s land, caused by the flow- ing. But this doctrine has lately been modified, so that it may now be said that the measure of damages is a sufficient amount to compensate the plaintiff for all loss he has sustained by reason of the wrongful act of the defendant. The jury should, in assessing damages, take into consideration all the circum- * Ellis v. Duncan, 21 Barb., 230. 495 Penn., 528; Holderman v. Burkhardt, 45 Penn., 514. 5 Norton v. Valentine, 14 Vt., 239. 6 Howksworth v. Thompson, 98 Mass., 77. LAW OF DAMAGES. 296 stances surrounding the case, and award the plaintiff such damages as will make him whole. 349. Profits to be Considered. And in case of injury to mills and machinery propelled by water, evidence of the profits of such machinery during the time of the interruption should be considered by the jury as a basis on which to estimate the plaintiff's damages. In other words, the plaintiff can recover the value of the use of the mill or other machinery during the time it necessarily remained-idle by reason of the defendant’s acts, and the amount it was permanently diminished in value by reason of the defendant’s acts. The rule is sometimes stated in this way: “the difference between the price of the plaintiff's premises before the injury happened and the value immediately after the injury, taking into account only damages which have resulted from the defendant’s act. If injury is occasioned to personal property by reason of the overflow, then it should be considered at its true value? When there is no evidence as to the amount of damages, and the wrongful act is proved, the court will assess nominal damages. Exemplary damages are sometimes allowed against persons for maliciously stopping a watercourse.’ 350. The Injured Party must use reasonable means to Prevent Loss. But in cases of this kind as well as all others, it is the duty of the injured party to use reasonable care to protect him- self from further injury and loss, and he can only recover such damages as he could not by reasonable effort have avoided, to- 3 Field on law of dam , 507. > 11 Barb., 368, Walrath v. Redfield. 18 N. Y., 457; 16 Q. B, 643; Chase v. N. Y. Central Railway Co., 24 Barb., 273; 51 Barb., 94; Luther v. The Wennet Corp., 9Cush., 171; Talbot v. Whipple, 7 Gray, 122; Watts v. “T. G. R. C., 32 Lant, (N. 8.) Q. B., 279. WATERCOURSES. : 297 gether with the reasonable expense and value of time spent for such purpose. But he must act in good faith in * Walker v. Butz, 1 Yates, (Pa.) 574); Summers v. Brown, 5 R. I , 299; Brown v. Brown, 80 N. Y., 519; Elliott v. Fletcher, 10 Cush., 191; Bur- den v. Mayor of Mobile, 21 Ala., 309; McElroy v. Goble, 6 Ohio st., 187; ‘Gillett v. Johnson, 30 Conn., 180; Wadsworth v. Smith, 11 Me., 278; Earl v. Dutest, 12 N. Y. Eq., 280; Curtis v. Kiesler, 14 Barb., 511. Wil- son v. Blackbird Creek Manf Co., 1 Peter, 245; Lewis v. Stein, 16 Ala., 214; Howard v. Ingersoll, 17 Ala., 780; Eddy v. Simpson, 3 Col., 249; Hill v. Newman, 5 Col., 445; Kelly v. Notono Water Co., 6 Col., 105; S. P. Hoffman v. Stone, 6 Col., 46; Morris y. Beckwell, 7 Col., 261; Parke v. Killham, 8 Col., 261; Thompson v. Lee, 8 Col, 275; Bear River auben W.and M. Co. v. York Co., 8 Col., 327-336; White v. Todd’s Valley Water Co., 8 Col., 443; Humphries v. McCall, 9 Col , 59; Weaver v. Con- _gey, 10 Col. 233; Brown v. Smith, 10 Col. 508; Kemble v. Gilbert, 12 Col. 27; Weaver v. Eureka, &c., Co., 15 Col. -271; James v. Williams, 31 Col. 211; Davis v. Gale, 32 Col. 26; Wadsworth v. Tillotson, 15 Conn. 366; Per- kins v. Dow, 1 Root (Conn.) 535; Bliss v. Kennedy, 48 Il. 67; Blanchard v. Baker, 8 Me. 253; Dwinel v. Barnard, 28 Me. 554; Ganel v. Looney, 14 Allen 40; Labdell v. Simpson, 2 Nev. 274; Ophir Co. v. Carpenter, 4 Nev. 534; Buller v. Runnels, 2 N H. 255; Brakely v. Sharp, 10 N. Y. Eq. 206; _ Delhi v. Yeamans, 50 Barb. N. Y. 316; Morgan v. Mason, 20 Ohio 201; Coen v. White, 8 Ohio st. 401; Mayor v. Commissioners, 7 Pa. st. 348; Dalington v. Panter, 7 Pa. st. 473; McCord v. High, 24 Iowa 336; State v. Glear, 7 Jones (N. C.) 321-512; Polly v. McCall, 37 Ala. 20; Cotton v. Po- casset Manufacturing Co., 3 Met. (Mass.) 429; Smith v. Miller, 11 Gray 145; White v. Chapen, 97 Mass 101; Watkins v. Peck, 18 N. H. 360; Campbell v. Smith, 8 N. J. L. 140; Smith v. Adams, 6 Paige (N. Y.) 435; Haight v. Price, 21 N. Y. 241; Rogers v. Page, Bryant Vt. 169; Givanch y. Burbank, 12 Allen 459; Mandeville v. Comstock, 9 Mich. 536; Jackson v. Halstead, 5 Law (N. Y-.) 216; Hill v. Smith, 32 Col. 166; Carbert v. Auburn Gas Light Co., 22 Barb. 297; Porter v. Burden, 38 Ala. 651; Ben- nett v. Whitney, 15 Col. 35; Kidds v. Laird, 15 Col. 161; McKinney v. Smith, 21 Col. 374; Notoma, &c., Co. v. McCoy, 23 Col. 490; Nevada Wa- ter Co. v. Powell, 34 Col 109; Lewis v. Baldwin, 9 Conn. 291; Brown v. Owens, 27 Conn. 84; Plumleigh v. Dawson, 6 IIl. 544; Mitchell v. Parke, 26 Ind. 354; Addison v. Hock, 2 Gill 221; Greenleaf v. Force, 18 Pick. 117; Newbol v. Iverson, 8 Cush. 595; Read v. Barker, 30 N. J. L. 378; Shield’s Amdt., 4.N. J. Eq. 234; Amola v. Foot, 12 Wend. 330; Walls v. Kinney, 23 Wend.. 484, Wilber v. Brown, 3 Denio 356; Smith v. Adams, 6 Paige 435; Billinger v. New York, &c.; R. R. Co., 23 N. Y. 42, Wheatly y. Baugh, 25 Pa. st. 528; Haldeman v. Buckhart, 45 Pa. st. 514; Pettibone v. Whitlock, 27 Vt. 267; Clatfield v. Wilson, 27 Vt. 670; Johnson v. Jor- dan, 2 Me., ete, 234; Gorman v. Hargadon, 10 Ala. 106; Hawksworth v. Thompson, 98 Mass. 77-428; Kauffman v. Gisner, 26 Pa. st. 407; Miller v. 298 LAW OF DAMAGES. making his outlay of money to prevent further injury. Louback, 47 Pa. st. 154; Allen v. McCorkly, 3 Head (Tenn ) 181; Mark vy. Gault, 10 Wis. 513; Root v. Driscoll, 20 Conn. 533; Sedgwick on measure of damages, p. 153 to 156; 1 Hilliard on Torts, p. 582 to 625; 1 Wash. on real property, p. 63 to 72. CHAPTER XXII. LIGHT. THE Common Law oF Enatanp. A RicHt on EasEMENT MAY BE ACQUIRED TO USE ANOTHER’S LAND TO OBTAIN LIGHT. THE RULE 1S NOT ALLOWED IN THIS COUNTRY. IN SOME OF THE STATES IT Is ALLOWED UNDER CERTAIN CIRCUMSTANCES. 351. The Common Law of England. By the common law of England, as declared by the English courts, light istconsidered an essential part of a house, and the right to use another’s land for the purpose of obtaining it may be acquired by prescrip- tion or a long continued uninterrupted possession. But in this country the rule of the common law as declared by the English courts has not been adopted to any extent. When the ques- tion was first presented for adjudication to the courts of this country they followed the common law rule as laid down by the English courts, but in more recent times the doctrine has been repudiated by the great majority, if not by the courts of all the States.’ ' 1 Parker v. Edgerton, 19 Wend. 308; Keato v. Hugo, 115 Mass. 204; 15 Am. 80. 300 LAW OF DAMAGES.- 352. The Common Law Rule in this Country. In this coun- try each individual freeholder is entitled to the uninterrupted enjoyment of everything under or over his land, and no one has the right to disturb him in the enjoyments of these rights. But in every other direction the law confines him inside of the bounds of his own premises. And if the owner of one tract of land erects a house upon his premises with a window over- looking his neighbor’s land, and his neighbor erects a house on his land in such a manner as to destroy the light received through that window, the owner of the house could not main- tain an action for damages. And the fact that he had enjoyed the benefit of the flow of light and air for a long continuous length of time over his neighbor’s land would not give him a right or easement over the premises that the law would recog- nize. Therefore, implied grants and implied reservations, based upon necessity or use alone, should not be applied to easement for light and air over the premises of another in any case.’ 353. The Rule Adopted by Some of the States. The courts of some of the States hold that an implied grant of an easement of light will be sustained in case of real and obvious necessity, and denied where the owner of the dominant estate can, at a reasonable cost and expenditure, have or substitute light to his building so that he may continue and have a reasonable enjoy- ment of the same, leaving the owner of the servient estate also to the enjoyment of his own property free from restriction that would otherwise imposed upon it. In the application of this > Parker v. Edgerton, 19 Wend. 308; Keato v. Hugo, 115 Mass. 2 Muller v. Stricker, 19 Ohio stat. 135; Maynard v. Esher, 17 Penn. st. 222; Harverstick v. Sipe, 33 Penn. st. 868-371; Dodd v. Burchell, 1 H. & C. 112; Myers v. Gimmel, 10 Barb 537, Palmer \. Wetmore, 2 Sanf. sup. C. R. 316; Collier v. Pierce, 7 Gray 18; Pierre v. Fernal, 26 Me 436; Napier v. Bulwinkle, 5°"Rich. 311; Cherry v. Stein, 11 Md. 1; Hubbard v. Town, 33 Vt. 295; Ward v. Neal, 37 Ala. 500; Atkins v. Chilson, 7 Meet. 398. 4; LIGHT. 301 principle some embarrassments will occasionally arise in deter- mining the degree of necessity that ought to be required to support the right to-the easement, and each case must neces-’ sarily be settled on the facts and circumstances surrounding it. And after all this rule is not in opposition to the principles of justice and equity.’ For the amount of damages see Nuisance. 5 Powell v. Smith, 5 W. Va. 1, 1 Saunders; Holmes v. Elliott, 2 Bing 76; Proctor v. Haggson, 29 Eng. Law & Eq. 453; Washburne* on ease— ments, 586-7; 2 Hill on Torts, 1-8; 2 Washburne on real property, 316; Perry v. Fennal, 26 Maine 436; Glane v. Harding, 3 Huel. & Nor. 939; Fifty Association v. Tudor, 6 Gray 259-60; Rogers v. Swain, 10 Gray 376; Carriage v. Dee, 14 G@ray 583; Hubbard v. Town, 33 Vt. 295; Helstick v. Sipice, 33 Pa 368; King v. Miller, + Halst. ch 559; Myers v. Gammel, 10 Barb. 537; Atkins v. Chilson, 7 Meet. 398; Irwin v Dixon, 9 How. 10; Thompson v. Bowen, Sayes 216; Blunk v. McCormick, 3 Denio 283; Washburne on easements,’ 492 to 497; Gaber v. Grabel, 16 Ill. 558; Hog- son v. Jeffers, 52 Indiana 334; Morrison v. Magaith, 24 Iowa 35; Parke v. Foot, 19 Wend. 309; Mullen v. Strickler, 19 Ohio st. 135. . CHAPTER XXIII. . DAMAGES FOR ENTICING AWAY A SERVANT. 354. Damages for Enticing Away a Servant. When the plain- tiff has employed a servant for a definite time and he is enticed away by the defendant and the plaintiff is injured thereby, he may maintain an action to recover damages for such injury. In such cases the plaintiff can generally re- cover the value of the services lost up to the time of the trial. And where he has lost the entire service, the recovery should be for the whole time. In estimating the damages the jury would not be authorized to take as a basis for calculation the amount per day or month the plaintiff was paying his servant. But it should take as a basis the value of the servant’s labor to the plaintiff over and above the wages he was receiving. The rule that the plaintiff can only recover such damages as are the natural.and proximate consequence of the act com- plained of, and cannot be allowed for remote and speculative damages, such as poor crops occasioned by the loss of the ser- vant’s labor, etc., applies.! : Salters v. Howard, 43 George 601; 48 Penn, 320. DAMAGES FOR ENTICING AWAY A SERVANT. 303 335. But where the servant is employed to work by the piece, and is enticed away by the defendant, the plaintiff may recover the loss he has sustained by reason of his servant fail- ing tocomplete his work. But in this class of cases as well as in most all others the damages will be either enhanced or re- duced by the conduct of the parties or the surrounding cir- cumstances. The plaintiff cannot, after his servant has been induced to leave him, fold his arms and make no effort to sup- ply his plaee, and recover damages for the value of the service ‘for the time that he had him employed. He must make use all reasonable means to supply the loss, and if, after a proper effort, he fails, he may then, but not until then, recover for the loss of the whole time. The defendant, therefore, may show in mitigation of damages that the plaintiff could, by reasona- ble diligence, have piocured other labor that would have been equal to and supplied the place of the servant abducted away.” 2 Hays v. Borders, 6 Ill. 46; Salter v. Howard, £3 Georgia 61; 48 Penn. 330. CHAPTER XXIV. MITIGATING CIRCUMSTANCES. Mirigatinc Circumsrances. Tue AIM or THE LAw. EXeEn- PLARY DAMAGES. LIBEL AND SLANDER. MAaLicIous PROSE- CUTION. FALSE IMPRISONMENT. NEGLECT OF AN AGENT. In TROVER. BREACH OF CONTRACT. CRIMINAL CONVERSA- TION. SEDUCTION. BREACH OF PROMISE TO MARRY. THE OLD RULE OF THE COMMON LAW WHICH MADE NO DIFFERENCE BETWEEN A MALICIOUS ACT AND A MISTAKE, IS BEING MODI- FIED. 356. The Aim of the Law. The law aims to measure the damage by the offense and injury, and it is always proper for the jury to inquire into all facts and circumstances surround- ing the parties at the time of the commission of the injury sued for, in order to arrive at a correct estimate of damages sustained by the injured party. All the facts constituting the resgesta should go to the jury. 357. Case of a Common Carrier. Thus in an action against a common carrier for negligence in suffering goods to be dam- aged by exposure to the weather, the defendant may show in MITIGATING CIRCUMSTANCES. 305 mitigation of damages that the plaintiff received the goods in their damaged condition.! 358. Personal Injury. The law in tenderness to human , frailties, distinguishes between an act done deliberately and an act proceeding from a sudden heat. If, therefore, upon a sud- den quarrel two persons fight, and one kills the other, this has been adjudged only manslaughter. Soif a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable, the offense is mitigated homicide. But in every case of homi- cide upon provocation, if there be any time intervening be- tween the insult and killing sufficient for passion to subside and- reason to interpose, the offense becomes murder. In analogy to this principle, evidence in civil action for an assault and battery is admitted in mitigation of damages to show a provocation on the part of the person complaining of the in- jury, but the provocation must be so recent as to induce a fair presumption that the violence done was committed during the continuance of the feeling and passions excited by it before the blood has time to cool. A different rule from this would have a tendency to encourage breaches of the peace.? The character of the attacking party, the circumstances that sur- round the defendant, whether he was alone or surrounded by persons who would aid him, whether his life or personal safety were in peril, and the disposition of the persons present to- wards him, whether they were friendly or unfriendly, can be shown.’ 1 Bowman vy. Teall, 32 Wend. 306; Ogden v. Marshall, 8 N. Y. 340. 2 Fullerton v. Warrick, 3 Black (Ind.) 219; Avery v. Ray, 1 Mass. 12; Lee v. Woolsey, 19 Johns R. 319; Rochester v- Anderson, 1 Bibb 428. 3 Castner v. Sltker, 83 N. J. L. 507. In the case of Lee v. Woolsey the defendant, offered to prove in miti- gation of damages that in the month of February preceding the plaintiff had addressed to the Secretary of the Navy a scandalous and defamatory 306 LAW OF DAMAGES. 359. Exemplary Damages. But it has been held that where the plaintiff i in an action for an injury to his person claims exemplary damages, that the defendant should not be confined and restricted in proving matters which took place at the very time of the injury complained of, but that he has a right to show the true relation existing between him and the plaintiff in order to enable the court or jury trying the cause to deter- mine how far it was wanton, malicious, vindictive or unpro- voked, or how far extenuated by the conduct, declaration or provocation of the plaintiff. And where the plaintiff had, in combination with another, made repeated attacks on the de- fendant, the court held that proof that he had taken part in the previous attacks, could be introduced in mitigation of damages.* 360. Libel and Slander. In an action for libel or slander, the defendant may show in mitigation of damages any fact that has a tendency to disprove malice or bad motives. Thus, he may show that at the time the words were uttered there waa a general report in the plaintiff's neighborhood that he had committed the crime charged.‘ And-in case of slander he may show for the same purpose that the words were spoken in the heat of passion or under excitement, or that the miscon- duct of plaintiff gave rise to the charge and caused it to be be- lieved. And in either libel or slander the defendant may,- in letter respecting the defendant, charging him with having embezzled the public property under his care as a post captain, and that the letter had been circulated among the citizens of the place where the parties re- sided, and had been known to the defendant only an hour or two. The evidence was rejected. 19 Johns 319. ° ® Prentiss v. Shaw, 56 Me. 427; Tryson v. Booth, 100 Mass. 258; Cast- ner v. Sliker, 33 N. J. L. 507; Butt v. Gould, 34 Ind. 552; 2 Greenleaf, sec. 263; Marker v. Miller, 9 Md. 338; Anderson v. Johns, 3 Har. & J. 162; Allis v. Nauson et al., 41 Ind. 154. * Wetherbee v. Marsh, 20 N. H. 561; Walls v. Faser, 7 C. and P. 369; Chil v. Homer, 13 Pick. 503. MITIGATING CIRCUMSTANCES. 307 mitigation of damages, show that the plaintiffs reputation has sustained no injury because he had no reputation to lose.® 361. And he can show in mitigation of damages that prior to and at the time of uttering the words there was a general suspicion and common report of the guilt of the plain- tiff of the crime imputed to him by the defendant for which the action was brought. 362. Malicious . Prosecution. Thus in case of a malicious prosecution, the defendant may show in mitigation of dam- ages all the suspicious circumstances going: to establish the plaintiffs guilt. There is some conflict among the authori- ties as to whether the defendant can attack the plaintiff's 5 Root v. King, 7 Cow. 618; Inman v. Foster, 8 Wend. 602; 1 Green- leaf, sec. 55; Dewitt v. Greenfield, 5 How. 275; Eastland v. Cadwell, 2 Bibb 21; Calaway v. Middleton, 2 A. K. Marsh 372; Burnon v. Lyden, 1 Root 354; Austin v. Hanchett, 2 Root 148; Gales v. Meredith, 7 Ind. 440. The proof of bad reputation of the plaintiff must be confined to the time before the uttering of the language complained of. Townsend on libel and slander, sec. 409. « Field on damages, 114; 2 Stark on slander, 84 to 88; 2 Greenleaf on evid., sec. 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., 618; Matson v. Buck, 5 Cow., 499; McAlexander v. Harris, 5 Mass , 465; Boice v. McAllister, 3 Fair, 310; Fuller vy. Dean, 31 Ala., 654; Morris v. Baker, 4 Har., 520; Fletcher v. Burrows, 10 Ia., 557; Moyer v. Pine, 4 Mich., 409; Bradly v. Gibson, 9 Ala., 406; Nelson v. Evans, 1 Deu., 9; Caloma v. Middletown, 2 A. K. Marshall, 372; Bevins v. Stokes, 27 Miss., 239; Weatherby v. Marsh, 29 N. H., 561; Case v. Marks, 20 Conn., 248; Budgeman v. Hopkins; 34 Vt. 532; Waithmon v. Weaver, 11 Price, 257; Night v. Foster, 39 N. H., 576; Wolcott v. Hall, 6 Mass., 514. Alderman vy. French,1 Pickering, 1; Henson v. Veach, 1 Blackf., 369; Woods v. Anderson, 5 BI., 598. The question whether the defendant ‘can give evidence of rumors as to the guilt of the plaintiff is not fully settled. Townshend on L. &6&., 410. The defendant may show when the words were uttered that his mind was so besotted by intemperance, and his character so depraved that no one who knew him would have regarded what he said. 7 Ind., 440. 308 LAW OF DAMAGES. character for the purpose of reducing the amount of his recov- ery. But it may now be considered pretty well settled by the weight of authority in this country, that the plaintiff is en- titled to damages for injury to his reputation, and that, there- fore the value of that reputation is in issue and must be fixed by the jury in making up their verdict, and that evidence is admissible, not only to rebut the presumption of malice and wantof probable cause, but also in mitigation of damages. The English authorities-hold that the plaintiff cannot recover damages for injury to his reputation, unless it is expressly alledged in the complaint. 363. False Imprisonment. The defendant in case of false imprisonment may show in mitigation of damages, every cir- cumstances connected with the transaction that has a tendency to show that he acted with honest motives and good faith in making the arrest. So he may show that the plaintiff in- sulted him with vile epithets and gross seditious language that caused him to make the arrest. And he may show for the same purpose that the plaintiff was strongly suspected and accused by the public for the crime for which he wasarrested.’ 364. Damages for Neglect of an Agent. The law imposes on an agent who undertakes to collect a bill, the duty of present- ing it for acceptance and payment without unnecessary delay, and the fact that it was not put in his hands until some time - after its date is no excuse for his neglect of this duty. When under such circumstances the bill is not collected the agent is prima facie liable for the whole amount thereof, with interest. 1 Israel v. Brooks, 23 Ill., 575; Martin v. Hardesty, 27 Ala., 450; Dow- ny v. Burch, 2M.& K., 374; Goodrich v. Warner, 21 Conn., 432; Smith v. Hyderman, 10 Cush, 554; see ant. sect. 184; 1 Addison on torts, 767; Rodredz v. Todmin, 2. 2 Carpenter v. Packer, 23 Ia., 450; May on dam., 263; Field on law of damages, 541. MITIGATING CIRCUMSTANCES. 309 But he may show in mitigation of damages the actual loss sustained. And also that the drawee of the bill would not have accepted it had it been presented at the proper time, and that the drawees credit at the time it should have been ac- cepted was not good, etc.’ 365. In Trover. In an action of trover or replevin, the defendant may show in mitigation of damages, that the prop- erty has been restored to the plaintiff. But if it becomes sub- jected to a charge after the conversion or wrongful detention, and before it was returned, such charge should be deducted from the value when restored. If, as for example, the conversion or wrongful taking or retention were of a watch, which the de- fendant threw into a well, and the plaintiff hired a man to descend into the welland get it, the expense of reclaiming it should be deducted-from the value when returned. Or, if one takes and wrongfully retains another’s horse, and leaves him at an inn, and the owner reclaims him, the charge for his keep- ing should be deducted from his value at the time the plaintiff recovered him.® And where property has been delivered, pending the suit, only nominal damages can be given, unless for detention, inter- est, or lien created, or charges made after the taking of the property. A plaintiff who fails in a replevin suit, may show in mitigation of damages, that the defendant’s only interest in the property was by being under execution, which has been satisfied.’ And the defendant may also show for the same pur- 2 Allen y. Suydam, 20 Wend.. 321; VanWert v. Walley, 5 Daniel & Ryl., 374; Delaney v. Stoddat, 1 T. R. 188; Welister v. DeTastet, 7 T. R., 757; Rundle v. Moore, Johnson cases, 36; Morris v. Summerville, 2 Wash., R., 203. Walloce v. tellfair, 2 T. R. 108. ; Greenfield Bankv. Leavitt, 17 Peck, 1; Tuck v. Moses, 58 Me., 461. s Conroy v. Flint, 5 Cal., 327. 1 Hayden v. Anderson, 17 Ia., 158; Hawley v. Warner, 12 Ia., 42; Buck y. Rhoads, 11 Ia., 348. 310 LAW OF DAMAGES. ‘ pose that the plaintiff is a mere bailee and has no interest in the property except the right of a temporary possession.’ 366. Contract. In case of a suit for a breach of contract, the defendant may show in mitigation of damages that the plaintiff could have, by a reasonable care and effort, prevented the whole or any part of the injury resulting from his failure to comply with the condition of hiscontract. The rule is that if the injured party, through negligence or willfulness, allows the damages to be unneccessarily enhanced the increased loss justly falls upon him.’ 367. Bad Spirit. And it may be laid down as a general rule that in all actions where a bad spirit or malicious motives enter into and form an element in the injury, and where they may be inferred from acts and are considered in assessing the plaintiff’s damages, or where they would furnish a basis for assessment of exemplary, vindictive or punitory damages the defendant may show in mitigation of the amount of recovery that in the doing the act complained of he was not actuated by a malicious motive.® 368. Criminal Conversation. In an action for criminal con- versation and seduction of the plaintiff's wife the defendant may show in mitigation of damages the previous bad character ‘of the wife for chastity, and he will not be confined to her gen- eral reputation, but may show particular instances of unchas- 1 Bement v. Lockwood, 20 Wend., 223; Greenfield Bank v. Bennett, 17 Peck 1; 14 Peck, 356. ® Hamilton v. McPherson, 28 N. Y. 72; Miller v. Mariners’ Church, 7 Greenleaf 51; Shannon v. Comstock, 21 Wend. 461; Hecksher v. McCray, 24 Wend. 309; Clark vy. Massiglia, 1 Denio 317; Spencer v. Halstead, id. 606; Loker v. Damon, 17 Pick. 284. * Johnson v. Jenks, 24 N. Y. 252; Thorn v. Knapp, 42 N.Y., 474, MITIGATING CIRCUMSTANCES, 8311 tity—her letters to and her general deportment towards him- self tending to prove that she made the first advancement, But he will not be permitted to show the misconduct of the wife subsequent to the alleged connection with him.’ And he may show for the same purpose that after the husband had discovered the adulterous conduct of his wife he still continued to live and cohabit with her. And he may also show for the same object that the plaintiff and his wife lived unhap- pily together, that he treated her in a cruel, inhuman manner and that such treatment was produced by drunkenness or otherwise, and the plaintiff's bad character asa husband.* The condition in life and pecuniary circumstances of the respective parties may be shown as properly affecting the amount of damages.’ That the wife had been guilty of adultery with other men before with the defendant.? 369. Seduction. In an action by a parent for the seduction of his daughter, the defendant may show in mitigation of damages that the daughter prior to his alleged commerce with her had had intercourse with other men.? And that the plain- tiff was careless and indifferent in regard to his daughter, and that he by his conduct afforded her opportunities for criminal intercourse with men.’ And under a statute that authorizes a female to sue for her own seduction, the plaintifi’s bad charac- * Sanders v. Nelson, 4.N. H. 501; 2 Greenleaf evid., sec. 56; Hasler v. Crill, 33 Barb. 283-4; Hodges v. Wendham, Peaks case 39; Gardner v. Jadis, 1 Adm. N. P. 24; Palmer v. Cook, 7 Gray 418; Field on law of dam., 563; Coleman v. White, 43 Ind. 429. -5 Clause y. Clapper, 60 Ind. 548; Sanders v. Nelson, 4 N. H. 501; Big- low’s leading cases on tort. 6 Norton v. Warner, 9 Conn. 172. 7 Rea v. Tucker, 51 Ill. 110; 1 id. 110, but see Case v. Marks, 20 Conn 248. * Veny v. Watkins, 7 C. & P. 308. 2 Zerping v. Mouer, 2 Green. (Ia.) 520, 3 Threadgood v. Litogot, 22 Mich. 371. 312 LAW OF DAMAGES. ter before the seduction may be shown in mitigation’ of damages.‘ And he may show for the same purpose any fact bearing on the relation of the person whose conduct is in ques- tion and which fact constitutes a part of the res gest1.® 4 370, In a case of a breach of promise to marry, the defendant may show in mitigation of damages all the circumstances, such, for instance, as the limited time during which the engagement has existed; that the plaintiff before the promise to marry was made had an illegitimate child, if unknown by the defendant ;? that she was wanting in virtue and sobriety, and her dissolute conduct after the engagement or before, if unknown to the defendant; that the “plaintiff had connection with.other men before or after the promise, and this, notwithstanding the engagement was formed, or con- tinued after knowledge of the fact by the defendant, on the ground that an unchaste woman cannot be injured by a breach of a promise of marriage to the same extent as a vir- tuous one.” 4 Smith v. Wilburn, 17 Ia. 30. 5 Threadgood v. Litogot, 21 Mich. 271. 3 Grant v. Wiley, 101 Mass. 189; Klofer v. Browne, 26 Wis. 372; Thorn _ Vv. Knapp, 42 N. Y. 474; Bonlor v. Kelloge, 3 Mass. 189; Denslow v. Van- horn, 16 Ia. 476; Johnson v. Calkins, 1 Johns case 116; Miller y. Stone, 7 Com. 22; Palmer v Andrews, 7 Wend. 143; Faulke v. Selway, 3 Esp. 236. 1 Burnett v. Simkins, 24 Ill, 264; Field on the law of damages, p. 120, sec. 108. On the trial of an action for a breach of marriage contract, where the evidence did not tend to show any fraud in making the contract or in its violation, the court instructed the jury as follows: “Ifthe marriage contract and its breach by the defendant have been proved to your sat- isfaction in this case, and if you further believe from the evidence in the case that the elements of fraud mingles in this controversy as an in- gredient in the act of the defendant, cither in making the marriage con- tract with the plaintiff or its violation or breaking that contract, then you may award to the plaintiff, in addition to the actual loss sustained by her, such exemplary damages as shall tend to prevent a repetition of MITIGATING CIRCUMSTANCES. 313 371. Good Faith. Theoldrules of the common law, estab- tablished three or four hundred years ago, that made but little or no discrimination in the assessment of damages between those who acted willfully and those who acted through mis- take, has gradually yielded to the force of Christian influences, and is being modified in harmony with the rules of ethics and the law of conscience, and now the defendant may show that in doing the acts complained of he acted in good faith and in the honest belief that he had the right to do what he did do. Thus, it was held where the defendant in the exercise of what he supposed to be legal authority, had cut down timber of the value of twenty-five dollars and manufactured it into hoops worth seven hundred dollars, that the plaintiff could only recover the price of the timber in an action of trover.’ the injury and to punish the defendant.” Held, though the instruction state a correct principle of law, yet under the evidence it was erroneous. Dyden v. Knowles, 33 Ind. 148. 4 Wetherell v. Green, 22 Mich. 311; Foster vy. Wells, 41 Pa. st. 357; Kerr v. Patterson, 41 Pa. stat. 357; Moody v. Whituey, 38 Me. 174; Chip- man v. Hibbard, 6 Cal. 162; Whitebeck v. @ Y.Cent R. R. Co., 36 Barb. 644; Cox v. England, 65 Penn. 212; Young v. Lloyd, 65 Penn. st. 195. . CHAPTER XXV. THE DUTIES OF THE PLAINTIFF. Tue Duty or THE PLAINTIFF To Protect HimseLF. THE PLAINTIFF MUST BE ACTIVE TO PREVENT Loss. AGREEMENT TO FURNISH FRIGHT. ILLUSTRATION OF THE RULE. THE AP- PLICATION OF THERULE IN CASE OF CONTRACT. CONTRACT TO PERFORM JOB WORK. CONTRACT FOR SERVICE. THE GENER- AL RULE. CASE OF TORT AGGRAVATE INJURY BY PLAINTIFF. 372. The Plaintiff Must be Active to Prevent Loss. As has al- ready been said the law is no friend to those who make no ef- fort to protect themselves, and where one has been injured by the wrongful act of another the law requires him to use reason- able diligence and means to prevent loss, and if he fails to do this he can only recover such damages as he could not have, by the use of reasonable diligence and care, prevented. And it may be laid down as a general rule that where the plaintiff has failed to use the proper diligence and care to prevent loss, he will not be permitted to say that the loss that he might have avoided by the use of the required means was the result of the wrongful act of the defendant.' | Douglas v. Stephens, 18 Mo. 362; Illinois C. R. R. Co. v. Fening,21 Ill Ill. 646; Brooms Leg.Max., 279; Field on the law of dam., 181, sec. 126. DUTY OF PLAINTIFF. 315 373. Thus, where the defendant agreed to furnish the plaintiff with a boat load of corn to be carried at eighteen cents per bushel to the city of New Orleans and failed to fulfill his contract, the court held that it was the duty of the plaintiff after he had ascertained that the defendant would not furnish the corn, instead of lying idly by he should have employed himself to as good advantage as he reasonably could for his own gain and made the earliest and best disposition of his boat to prevent loss. If he could not have got freight he might perhaps have done something else to as good advantage, and if his-boat could not have been used by him he should have pre- served it with reasonable care, or sold it,as would have been most judicious. And he could only recover such damages as would make him reasonably whole at the time of the breach, all the circumstances of the case being considered. 374, Illustration of the Rule. The rule can, perhaps,‘be as well illustrated by supposing that a man has entered into a contract to build a public work, which would occupy him ten years and profit him a million of dollars. Just as he is ready to commence operations he is notified that the contract must be abandoned. He sues for damages for the breach of the. agreement. Now, though he may be unable to obtain another contract upon a public work, still shall he recover in the pend- ing suit the million of money that he could have made had he gone on and lived to complete the job he had contracted for and have his time for ten years to be operating elsewhere? That is, be as well off then as he possibly could have been at the end of. ten years. We think not. He ought to recover what would make him reasonably whole at the time of the 1 Jones, adm., v. Van Pattent, 3 Ind. 107; see Shannon v. McComstock, 21 Wend. ‘457; Skinner v Dayton, 19 Johns 513; Clark v. Marsella, 1 Denio 317. 316 LAW OF DAMAGES. breach, all the circumstances of the case being considered.’ 375. The Duty of a Party to a Contract to Protect Himself. “If a party entitled to the benefit of a contract can protect him- self from a loss arising from a breach at a trifling expense or with reasonable exertion, he fails in social duty if he omits to do so regardless of the increased amount of damages for which he may intend to hold the other contracting party liable Qui non prohibet cum prohibere possit jubet. And he who has it in his power to prevent an injury to his neighbor and does not exercise it, is often in a moral, if not in a legal view, accounta- ble for it. The law will not permit him to throw a loss re- sulting from damages to himself upon another, arising from causes for which the latter may be responsible, which the party sustaining the damages might by common prudence have prevented. Foranexample,a party contracts for a quan- tity of brick to build a house to be delivered at a given time, and engages masons and carpenters to goon with the work. The brick are not delivered. If other brick of equal quality and for the stipulated price can be at once purchased on the spot, it would be unreasonable by neglecting to make the pur- chase to claim and receive of the delinquent party damages for the workmen and the amount of rent which might be obtained for the house if it had been built. The party who is not chargeable with a violation of his contract should do the best he can to prevent loss in such cases, and for any avoidable loss occasioned by the failure of the other he is justly entitled to a liberal and complete indemnity.’ 376. Personal Contract to Perform Work. Where a person * Jones v, Van Pattent, 3 Ind. 107; Shannon v, Comstock, 21 Wend. 457; Skinner y. Dayton, 19 John 318. : 8 Miller v. Mariner Church, 7 Greenleaf 51; see Hamilton ». McPher- son, 28 N. Y. 72; Polk v. Daly, 4 Daly 411. ’ DUTY OF PLAINTIFF. 317 contracts to do a certain amount of work at a stipulated price upon material to ve furnished by his employer within a speci- fied time and is ready and willing to perform, but is prevented by a failure of the employer to furnish material as promised, he is entitled to merely compensatory damages, and where during such time he is offered other employment of the same kind, he is not entitled to the whole amount of profits he would have made if the contract had been fully performed by both parties.‘ . 377. .The Application of the Rule to Contracts for Service. The rule that we are now considering applies in case of a breach of contract to perform personal service, as where one is employed at a stipulated price for a certain length of time and is dis- charged before the expiration oftime and brings an action for damages. In such case the employe cannot recover the full amount pro rata of the unexpired term, provided he could have found other suitable employnient elsewhere or, if after the dis- missal, he was afterwards engaged in profitable business or em- ployment. In either case whatever he might have earned or has earned during the balance of the time, if less than the pro rata, amount contracted to be paid by the defendant, should be deducted from the stipulated amount. And ifit is shown that the amount he might have earned by reasonable exertion or the amount he earned exceeds the amount contracted to be paid, there can be no recovery.’ 378. The General Rule. The law for wise reasons imposes 4 Heauamlon v. Kramer, 31 Ind. 241; Dunn v. Johnson, 33 Ind. 54; 39 Ind. 373; Field on the law of damages, sec. 133; Hunt v. Crane, 4 George (Miss.) 669; Costigan v. Mohawk & Hud. R. Co, 2 Denio 609. 5 Jones v. Van Pattent, 3 Ind. 107; Hunt v. Crane, 4 George (Mass.) 669; Costigan v. Mohawk & Hud. R. Co., 2 Denio 609; Polk v. Daily, 4 Daily 411; Shannon v. Comstock, 21 Wend. 460; Richards v. Edick, 17 Barb. 260; Bennett v. Smith, 15 Wend. 493; Dustin v. McAndrew, 44 N. Y. 78; Costigan v. the M. & H. R. R. Co., 2 Denio 609. 318 LAW OF DAMAGES. upon a party subject to injury from a breach of contract the active duty of making reasonable exertion to render the injury as light as possible. Public interest and sound morality ac- cord with the law in demanding this, and if the injured party through negligence or willfulness allows the damages to be unnecessarily enhanced, the increased loss falls upon him, and he can recover nothing for damages which, by reasonable dili- gence on his part, could have been prevented. 379. Damages Where the Injury is Aggravated by the Plaintiff. It is a general rule of law recognized both in England and this country that the defendant is to be held responsible for all the “losses that are the direct and natural consequence of his wrong, such as by a wound inflicted, sickness, disability, and expense incurred in consequence thereof. But where the con- sequences have been aggravated by the gross neglect or the want of ordinary care on the part of the plaintiff the defendant is not responsible for such damages.’” “It is easy to imagine,” says Justice Wadom, “Some trivial misconduct or slight neg- lect 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 ensue. The wrong-doer unfortunately, rather than seriously blamable, cannot be made answerable for these consequences. He shall not answer for those which the party aggrieved has contributed by his own * Polk v. Daily, 4 Daily 411: Hamilton v. McPherson, 28 N. Y 76; Dus- ton v. McAndrews, 43 N. Y. 237; Shannon vy. Comstock, 21 Wend. 460; Richards v. Edick, 17 Barb. 260, and cases cited 265. " Walker v. Ellis, 1 Sneed (Tenn.) 515; Davis v. Fish, 1 Green. (Ia.) 406; 3 Parson on contracts, 177; Darwin v. Potter, 5 Denio 306; Stover v. Bleekill, 51 Me 439. Suppose a man should enter his neighbor’s field unlawfully and leave the gate open. If, before the owner knows it, cattle enter and destroy the crop the trespasser is responsible, but if the owner sees the gate open and passes it frequently and willfully or obstinately, or through gross DUTY OF PLAINTIFF. 319 blamable negligence or wrong to produce, or for any which such party by proper diligence might have prevented.” negligence leaves it open all summer and cattle getin, it is his own folly. So if one throws a stone and breaks a window the cost of repairing the window is the ordinary measure of damages, but if the owner suffers the window to remain without repairing a great length of time after notice of the fact and his furniture or pictures or other valuable articles sustain damage, or the rain beats and rots the window, the damage would be remote We think the jury was rightly instructed that as the trespass consisted in removing a few rods of fence, the proper measure of dam- age was the costs of repairing it, and not the loss of the subsequent year’s crop arising from the want of such fence. Loker v. Damon, 17 Pick. 284; see Thomas v. Shattuck, 2 Met. 615; 3 Parson on contract, 177, 2 id. Flower v.-Adams, 2 Taunt 314: Miller v. Marine Church Company, 7 Greenleaf 51; Hamilton v. McPherson, 28 N. Y. 72; Davis v. Fish, 1 Green (Ia.) 407; Chase v. the N. Y., &c, R. R. Co., 24 Barb. 278; Hassa v. Junger, 15 Wis 598; Bridge v. Grand J. R. Co., 3 M. & W. 244; Davis v. Mann, 10 M. & W. 546; Walker v. Ports, 2 Duer N. Y. 363. ’ Harrison v. Berkly, 1 Stable (S. C.) 548; Shearman & Redfield on negligence, sec. 598; McGee v. ‘Stone, 53 Pa st. 436; Bennett v. Lock— wood, 20, Wend. 223; Field on the law of damages, sec. 129. CHAPTER XXVI. DAMAGES ON CONTRACTS. BreacH oF Promise. Common Law AcTION. WHAT THE PLAINTIFF MUST PROVE. THE ELEMENTS OF DAMAGES, Ex- EMPLARY DAMAGES. Cas oF SouTHARD Vv. RExFoRD. THE GENERAL RULE AS TO EXEMPLARY DAMAGES. THE PROVINCE OF THE JuRY. SEDucTION. MITIGATION OF DAMAGES. Mar- TERS THAT CANNOT BE CONSIDERED AS A DEFENSE. 880. Action at Common Law. An action of assumpsit at common law is the proper remedy for a breach of promise to marry.!. And the rules of pleading in such cases are generous and the time and place need not be alleged with great particu- larity.” If, however,the time was fixdd (on a day certain)when the marriage should take place, then it should be so alleged in the plaintiff’s declaration or complaint.’ And if the defendant was to marry the plaintiff on request, the complaint or declar- ation should allege a request and refusal. And if there was 12 Saunders on plead and evidence, 663. 2 2 Chitty pleadings, 321. 5 See authorities above. * See above authorities. BREACH OF CONTRACT. 321 an agreement to marry and no time fixed when it should be consummated, the law presumes that they were to marry in a reasonable time, which should be alleged in the complaint. And in all cases the declaration or complaint should show that the defendant has failed or refused to fulfill his contract or to marry the plaintiff, and that the plaintiff has ever since the making of the contract held herself in readiness to marry the defen dant.® 5 See 2 Chitty pleadings, 321. ; Where one of the parties to a marriage to take place at a designated time renounces the contract before that time has arrived, the other con- tracting party may treat such renunciation as a breach of the contract -and at once maintain an action. Hollawell v. Griffith, 32 Ia. 409; Burts v. Thompson, 42 N. Y, 246; Frost v. Knight, Law Rep. 227, 19 Weekly Rep. 77. An agreement to marry until a breach is shown that terminates it,may be regarded as a continuing contract by consent of the parties, and hence in no just sense within the statute of fraud. Blackburn v. Mann, 85 Ill. 222; Short v. Stotts, 58 Ind. 29. A promise of aman to marry when a divorce is decreed, is against public policy and void. Noice v. Brown, 39 N. Y. L. 133. The following is the usual form for the declaration at common law: Section 2. Fora Failure to Marry on Request. After entitling, etc.: “For that whereas heretofore, to-wit, on —— day of 18— the plaintiff being then and there sole and unmarried, at the special instance and re- quest of the said defendant, had then and there undertaken and faith- fully~promised the said defendant to marry him, the said defendant, when she, the said plaintiff, should be thereunto afterwards requested, , and he, the said defendant, undertook and then and there faithfully promised the said plaintiff to marry her, the said plaintiff, when he, the said defendant, should be thereunto afterwards requested. And the said plaintiff avers that she, confiding in the same promise and under- taking of the said defendant, hath always from thence hitherto remained and continued and still is sole and unmarried and hath been for and during the time aforesaid, and still is ready to marry him, the said de- fendant And although the said plaintiff after making of the said promise and undertaking of the said defendant, to-wit, &c., at &c., afore- said, requested the said defendant to marry her, the said plaintiff; yet the said defendant not regarding his said promise and undertaking, but contriving and fraudulently intending, craftly and subtlely, to deceive and injure the said plaintiff in this respect, did not nor would at the said time when he was so requested as aforesaid or at any time before or af- 322 LAW OF DAMAGES. 381. What the Plaintiff must Prove in Order to Recover. After the issues are closed, the plaintiff, in order to make out her case, must show that she was, at the time of the making of the contract, an unmarried woman, and that there was a mutual terwards marry her, but said plaintiff, but hath hitherto wholly neglected and refused to do so to her damage, &c.s y Joun Suirn, Attorney for Plaintiff.” 3 2 Saunders’ pleading and evidence, 663; 2 Chitty pleadings, 321. In most of the States the distinction between actions at law and suits in equity and the form of all such actions as they formerly existed at common law and in equity are abolished, and there is substituted in their stead one form of action for the enforcement or protection of pri- vate rights and the redress of private wrongs, which is denominated a civil action. The rules of pleading generally laid down by these statutes are these: ‘A statement of facts constituting the cause of action in a plain and concise manner without repetition, and in such a manner that a man of common understanding will know what is intended.” Under a statute of this character the following form of complaint has been held good on demurrer, after entitling the cause, etc.: ‘The plaintiff complains of the defendant and says that the said defendant entered into a contract with her in the month of June, 1867, by which it was agreed by and be— tween them both that they would get married in the month of Septem- ber following, and she avers that she made all necessary arrangements and preparation to consummate said contract, and was ready and willing at the time fixed aforesaid to fulfill the same, but she avers that the said defendant wholly failed to fulfill his said contract to the great distress, mortification and disgrace of the plaintiff, wherefore she demands judg- ment for five thousand dollars.” Joun Smitu, Atty. for Plff. 2 Coles v. McKinney, 48 Ind., When the complaint alleged a mutual promise to marry, and averred that the plalntiff, confiding in the defendant’s promise to marry, and his representation that he was unmarried and competent to marry, contin- ued, and still was, unmarried, and that she had, at the time no knowl- edge, or information to lead her to believe that the promises and repre- sentations of the defendant were false, and averred that the defendant was, in fact,a married man. Held, that the complaint was sufficient without alleging he knew the representation to be untrue. Blattmacher v. Saal, 29 Barb., N. Y. 22; 7 Abb., 409. The allegation of a promise to marry is generally supported by proof that he promised to marry on re- quest or in a reasonable time, but is not supported by proof of a prom- ise to marry on a specified future time, or on the happening of a future event, &c. Clark vy, Pendleton 20 Conn., 495. BREACH OF CONARACT. 323 promise or agreement between herself and the defendant to marry.? And she may show this fact by circumstances from which a jury may infer a mutual promise.’ The jury-may infer a mutual promise from the conduct of the parties towards each other. In the absence of direct evidence, the law always raises a presumption that the. parties intend what their conduct fairly indicates.‘ Hence, a jury may infer a promise on the part of the defendant from such attention and respect on his part as are usual in courtships, or in making matrimo- nial engagements. The conversations and acts before the es- trangement may be given in evidence for the same purpose. The plaintiff may, for the purpose of showing a promise on her part, show her apparent distress on learning that the defend- * 2 Saunders on Pl. ev., p 664. 32 Saunders on Pl. & ev., p. 664; Potter v. Deboore, 1 Stark, 82. Walters v. Bristol, 26 Conn., 398; Thurston v. Cownor, 8 Iowa, 185 Wigham v. Coots, 15 Mass., 1; Coil v. Wallace, 24.N. & L., 291; Hubbard v. Bonstill, 16 Barb, 360; Perkins v. Henry,1 R.1I., 493. Murrion v. Hastings, 12 Vt.. 345; Whitcomb v. Walcott, 21 Vt., 368. When, in an action for a breach of promise of marriage, the date when the promise was to be be fulfilled, &c., are laid under a vede lecit, they need not be proved as laid, Prescot v. Guzler, 32 IIl., 312. A jury is not authorized to infer a promise to marry on the part of the defendant, from such attention and respect on his part, as is usual in courtship or in making matrimonial engagements, nor that such a prom- ise within the time limited by the statute for bringing an action in such cases, even if such attention was continued up to within the time limit- ed. 16B. Monroe (Ky) 284. The plaintiff may prove on the trial the acts and conversation between herself and the defendant; their writ- ten correspoiidence, and everything that took place between them be- ore the estrangement, that would have a tendency to establish the alle- gations of her complaint. Roy v. Smith, 9 Gray, 141; Hoit v. Molton, 21'N. H. 586; Conaway v. Shelton, 3 Ind., 334;Hay v. Graham, 8 Watts & S. (Pa.) 27; Balda v. Stratton, 11 Pa. st., 316; King v. King, 2 Ind., 402; Ellis vy. Guggenheimer, 20 Pa. st., 287. Lickey v. Blosser, 24 Pa. st. 401; Moores v. Graves, 2 Ind., 354; Simmons v. Simmons, 8 Mich., 318; Green v. Spencer, -3 Mo, 285. 5 Burham v. Cornell, 16 B. Monroe (Ky.) 284; Ray v. Smith, 9 Gray, | 141; King v. King, 2 Ind, 402; 2 Saunders Pl. & evid , 664; Wilds v. Bogan, 47 Ind., 453. 324 LAW OF DAMAGES. ant would not marry her, or was married to another, and also her declarations made-to her sister or other near relative while the defendant was visiting her as a suitor, and before the es- trangement, that she was engaged to be married to him.’ But such declarations are never received to prove a promise upon the part of the defendant.’ And whatever the circumstances may be which are relied upon to show a promise on the part of the plaintiff they must be such as are sufficient to establish the fact of a promise on her part to marry the defendant. And as has already been said, the engagement or contract must be mutual in order to be binding on the part of either. For there is no other consideration for the promise of one than the promise of the other. Hence the contract on the part of the plaintiff must be such and must be so established that the de- fendant could maintain an action thereon in the event that the plaintiff had failed to perform it on her part.1 The dec- laration and acts of the plaintiff that are so equivocal that they may mean one thing as well as another should not be allowed to go to the jury as tending to show a promise.” 385. The Elements of Damages. The elements that go to make up, the damages, and which should be considered by the jury, may be summarized as follows: 1. Her expense in preparing for the marriage. 2. The disappointment of her reasonable expectations. 3. The money value of the worldly advantage of the marriage, which would give her a permanent home, and the nature and character of that home. 4. Her wounded affections. 6., Her pain, mortification, and distress oa ° King v. King, 2 Ind., 402; Cates v. McKinney, 48 Ind., 562; Lukey v. Bloser, 24 Pa. st., 401. " Cates v. McKinney, 48 Ind., 562. Cates v. McKinney, 48 Ind., 562. > Weaver v. Bockert, 2 Penn. st., 80; Cates v. McKinney, 48 Ind., 562. ‘ BREACH OF CONTRACT. 325 of mind on account of her sore disappointment.’ The plaintiff should recover in all cases such damages as would place her in as good pecuniary condition as she would have been if the de- fendant had fulfilled his contract, and hence the plaintift may always show the pecuniary ability of the defendant,’ “as well as injuries sustained from anguish of mind, blighted affection, disappointed hopes, and injury to the character directly result- ing from the breach.’”* 383. Exemplary Damages. The question whether exem- plary damages may be allowed in this class of cases has been a source of much controversy among the members of the legal profession for centuries. But it may now be considered pretty generally settled that if the element of fraud enter into the act of the defendant, either in the making of the contract or in its breach, exemplary damages may be allowed.?, And where 6 Johnson v. Jenks, 24 N. Y., 252; Sedgwick on damages, p. 248; ib. 455; Buy v. Dontz, 1 L. R. OC. 31. 7 Laurence v. Cook, 36 Me., 185; Sprague v. Craig, 51 IIl., 288. ’ Field on dam. p. 480, sec. 535. \ ; 2 Field on dam.. sec. 538; Draydon v. Knowles; 33 Ind., 148; Thorn v. “Knapp, supra, Denslow v. Van Horn, 16 Ia., 476; Southern v, Rexford, 6 Cow., 254. In an action for breach of promise, the fact that the de- fendant has set up and attempted to prove the plaintiff’s bad character, should not be considered by the jury as a circnmstance to aggravate damages, if such defense was pleaded in good faith, and with a reasona- ble expectation of establishing it. D(nslow v. Van Horn, 16 Iowa, 476; White v. Thomas, 12 Ohio, 312. In such a case the plaintiff is entitled to show circumstances of contumely and aggravation attending a breach of promise in order to enhance the damages, Chesby v. Chesby, 10 N. H., 327; Greenleaf v. McCobb, 14 N. H. 303; Balay v. Stratton, 11 Pa. st. 316; Perkins v. Henry, 1 R.J., 493. Unchaste conduct on the part of the plaintiff in an action of breach of promise to marry may be consid- ered in mitigation of damages, although it was known to the defendant at the time he made the promise. Denslow v. Van Horn, 16 Iowa, 476. The defendant cannot give in evidence of general reputation that an- other had supplanted the affection of the plaintiff; Willard v. Stone, 7 Cord, N. Y., 22. On drunkenness, see Butler v. McCauley, 38 Barb. N. Y., 413. 326 LAW OF DAMAGES. x the defendant in his answer attempts to justify his breach of promise of marriage by stating therein, and thus placing upon the record as a cause of his desertion of the plaintiff that she has had criminal intercourse with various persons, and fajls to prove it, the jury have aright to take this circumstances in aggravation of damages.” 384. The Case of Southard v. Reaford. In the case of South- ard y. Rexford, the plaintiff brought suit for a breach of prom- ise of marriage. The defendant, with the general issue gave notice that he would prove in his defense that the plaintift had at various times and with various persons—specifying them—committed fornication, after the alleged promise. He attempted at the trial to prove this branch of his defense, but failed. “On the question of damages, the Judge charged that in a case of this kind the damages are always at the discretion of the jury, and in fixing the amount, they have a right to take into consideration the nature of the defense setup by the defendant; that in his defense he had attempted to excuse his abandonment of the plaintiff on the ground that she was un- chaste and had committed fornication with different individ- uals. But it appeared from the testimony of his own witnees that her character in that respect had not been tarnished even by the breath of suspicion; that with such a defense on the record, a verdict for nominal or trifling damages might be worse for her reputation than a general verdict for the defend- ant; that if the defendant had won her affections and prom- ised her marrige, and had not only deserted her without cause but had also spread this defense upon the record for the pur- pose of destroying her character, the jury would be justified in giving exemplary damages.* « 2 Thorn v. Knapp, 42 N. Y., 474; Southard v. Rexford, 6 Cow., 254; Knifford vy. McConnell, 30 N. Y.,; 286; Davis v. Slagle, 27 Mo., 60. *6 Cow. N. Y., 254; Parsons on contract, 551. - BREACH OF CONTRNOT. 827 885. The General Rule as to Exemplary Damages. And it may be laid down as a general rule that where the defendant at- tempts dishonestly to injure the plaintiff’s reputation by alle- gatioas made under pretense of justification or excuse for his own acts, exemplary damages may be allowed. But it must appear that the defense so set up was wanton and without any reasonable belief or expectation that it could be established on the trial.® 386. A Full Defense. The defendant may defeat the ac- tion: 1. By showing that he never made the promise or agreement. 2. That subsequent to the making of the marriage contract plaintiff committed fornication.’ 3. That at the time the contract was made he was an infant and not capable of contracting. 4. That the marriageis prohibited by the law of the State”? 5. That the plaintiff, prior to the time the mar- riage was totake place used false and injurious language concern- ing him. 6. That his health is such as to incapacitate him from marriage, or render it unsafe or improper.’ But a pleaof bad health by the defendant, subsequent to the promise has been held bad.? But entire deafness or blindness, or other im- 5 Simpson v. Black, Black, 21 Wis., 206. 6 2 Irving v. Greenwood, 1 C. & P., 350; Field on the law of damages, 432; Dinslow v. Van Horn, 16 Ia., 476. : 7 Denslow v. Van Horn, supra; Simpson v. Black, supra; Kniffin v. McConnel, 30 N. Y., 285; Davis v. Slagle, 27 Mo., 600; Field v. McKin- ley, 21 Ill, 315. ‘ f 1 Hunt v. Peak, 5 Conn., 475; 1 Parsons on cont , 329. 2 2 Parsons on cont., 64; Harrison v. Caze 1Ld. Rogers, 387. In an action for breach of promise to marry it is a full defense for the defendant to show that he has bona fidely offered to marry the plaintiff, and this too when the conduct of the defendant had been such as would lead the plaintiff to believe that he never intended to marry her. If the offer was made before she signified her intention to terminate the en- gagement. Kelly v- Renfro, 9 Ala., 325. 1:Leeds v. Cook, 4 Esp., 256. . 2 Atchison v. Baker, Peake Ad. Case 103-124. 3 Hall v. Wright, 96 Eng. C. L., 645. 828 LAW OF DAMAGES. portant physical incapacity accruing after the promise should be a good defense.! 7. That there was a dissolution of the con- tract by common consent, but it must be shown tobe a real and honest consent. An offer to renew or execute the contract after the refusal is no defense, nor is change of feeling, nor the fact that another has supplanted the plaintiff in the affections of the defendant.’ 387. The Damages at the Discretion of the Jury. The dam- ages are peculiarly within the power of the jury in cases of this kind, and courts both of England and this country are very unwilling to grant a new trial on ‘account of excessive damages.’ 4 Short v. Stone, 8 Q. B., 369. 5 Southard v. Rexford, 6 Cow., 264; Kelly v. Renfro, 9 Ala , 326. 72 Parsons on contract, 67. It is no defense of a breach of promise to marry, if the plaintiff at the time of the promise was engaged to marry another person. Roper v. Clay, 18 Mo., 888. When the declaration avers that the defendant has married another, it is not necessary to aver in the complaint a request and refusal. King v. King, 2 Ind., 402; Clements v. Moore, 11 Ala., 35. A declaration in case of a breach of promise to marry should allege that the plaintiff was ready and willing to marry the defendant, but that she had failed or had offered to perform the contract on her part, and that the defendant refused to comply. Feble v. Caplinger, 13 B. Monroe, 464; Roper v. Clay, 18 Mo., 383; Grant v.Durgin, 45 N. H., 167. 1 Smith v. Woodfine, 1 C. & B. (N. S.) 660. GrneraL Notses.—A single woman to whom a married man represents that he is single and promises marriage may maintain her action against him for a breach of promise. Blathmather v. Saal, 29 Barb (N. Y.) 22. 7 Able Prat. 400. If a man has been paying his address to one that he supposes a modest person, and afterwards discovers that she is loose and immodest, he is justified in breaking any promisc of marriage he may have made to her, but to entitle a defendant to a verdict on that ground the fact that she was a loose, immodest woman must be estab- lished, and that he broke his promise on that account. Espy v. Jones, 1 Ala., 454; Wood v. Bellamy, 2 Root, (Conn.) 354; Butler v. Esplemer, 18 Ill., 44; Bell v. Eaton, 28 Ind.,.468; Denslow v. Van Horn, 16 Iowa, 476; Speman y. Wardwell, 32 Me. , 275 Perry v. Breakman, 44 Me., 164; Goodale vy. Thurman, 1 Head. (Tenn, ) 209. BREACH OF CONTRACT. 829 388. The Question of Seduction. The question as to whether the plaintiff may introduce evidence of her own seduction to enhance the damages, has been much controverted, and the au- thorities are very much at variance upon the question. The common law rule is that the plaintiff may show her own se- duction for such purpose.’ But at common law a woman could not sue for her own seduction, and as the statutes of many of the States*‘authorize her to bring an action for her own seduc- tion, the common law rule in those States has been abrogated or modified by expressed legislation. And it may be laid down as a rule in the States having such civil codes that such dam- ages can only be allowed when the fact of her seduction is al- leged in her complaint Where this is done it will bear an- other action for the same injury. Seduction under a promise of marriage is, in the eyes of the law viewed as special dam- ages, and in order fora party tu recover for such injury it must be alleged in the complaint® Because it is a rule of pleading that whenever the damages sustained have not nec- essarily accrued from the act’ complained of, and consequently are not implied by law, then, in order to prevent surprise on the defendant, the plaintiff must state the particular damages she has sustained, or she will not be permitted to give evi- dence of it.’ - 3 Walen v. Lamon, 2 Blackf. (Ind.) 191; 2 Stock. En. 942, note 1; Paul v. Frazer, 3 Mass., 71; Boynton v. Kellogg, 3 Mass., 189; Burke v. Strain, 2 Bible, 341; Fidler v. McKinly, 21 Ill., 308; Espy v. Jones, 1 Ala., seld case, 464; Tubhs v. Vandeek, 12 Ill , 446; Kenffen v. Connell, 30 N. Y., 285; Wells v. Paget, 24 Pa. st R. 404, Sherman v Rawson, 102 Mass., 395; Sawer v. Seulenberg. 23 Md., 288; Cow v. Wilson, 2 Overton, 233; Coil v. Wallace, 4 Zab., 291; Kelly v. Riley, 106 Mass., 339. * Wiles v. Bogan, 57 Ind., 453; Cates v. McKinney, 48 Ind., 562; Lind- ly v. Dempsey, 44 Ind., 246. 5 Cates v. McKinney, 48 Ind., 562; Lindly v. Dempsey, 45 Ind., 246; 2 Parsons on contract, 70. 6 Olmstead v. Burk, 25 Ill., 86; Lindly v. Dempsey, 45 Ind., 246; Arm- strong v. Piercy, 5 Wend., 535; Furlong v. Pollys, 30 Maine, 491; Taylor v. Maguire 18 Mo, 517; Lentz v. Chotou, 42 Pa. st., 489; Fleming v. Beck, 48 Pa. st. R. 309. 330 LAW OF DAMAGES. ; 389. Mitigation. The defendant may show in mitigation of damages that the plaintiff is given to bad habits, such as being an excessive drinker of intoxicating liquors and there- fore not a fit or desirable companion and help meet in the race of life! “But he cannot show in mitigation of damages that since the commencement of the action the plaintiff has made declaration to the effect that she had no affection for him, and could not think of marrying him but for his property.’ The fact that the plaintiff, at the time of making the marriage contract, was a lewd woman is no defense in an ac- tion for a breach of it, if the defendant was aware of that fact at the time he agreed to marry the plaintiff. But general lewdness or lascivious conduct, even where known to the de- fendant at the time he made the contract, may be shown in mitigation of damages.* 390. Matters that Cannot be Considered as a Defense. As has already been said the plaintiff is not precluded from recover- ing damages if the defendant, at the time he made the promise, knew that she was a loose or immodest woman, or if she pros- tituted her person with the defendant’s connivance. Nor will the fact that the plaintiff, prior to making the engagement had been delivered of a bastard child, if known to the defend- ant at the time he made the promise, bar an action for a breach of it.* ) Burton v. McCauley, 1 Abb (N. Y.) 282. ? Miller v. Hays, 34 Ia., 496. * Denslow‘’v. Van Horn, 16 Ia., 275. * Birch v. Merrick, 1 Cor. & Ks., 463; Erwin v.Greenwood, 1 C. & P., 350; Woodman vy. Bellamy, 2 Root, (Conn) 354; 2 Saunders P. & E., 347; Parsons on Con., 550; Chitty on Con., 538; Morgan v. Yasborough, 5 L. An. 316; 24 IIl., 264. CHAPTER XXVII. COVENANT OF WARRANTY. Common Law oF THIs CountRY. FEuDAL TENURE. RIGHT oF THE VASSAL. CONFUSED RULE. OVERTHROW OF THE FEUDAL SYSTEM. BREACH UF DIFFERENT COVENANTS. Duty oF THE GRANTEES. DAMAGES. CONSIDERATION OF THE QUESTION., OB- JECTION TO THE GENERAL RULE. THE TWO RULES. THE REASON FOR BOTH. DAMAGES WHERE PART OF A TRACT IS TAKEN. THE RIGHT OF THE PLAINTIFF TO RECOVER INTER- EST. REASON FOR THE SAME. RULE OF FULL COMPENSATION APPLIES. AFTER ACQUIRED, TITLE ENURES TO THE GRANT- EE. THE Britiso AND AMERICAN RULES. COVENANT FOR A GOOD RIGHT TO CONVEY. DAMAGES UNDER: COVENANT AGAINSI INCUMBRANCE. DAMAGES UNDER. QUIET’ ENJOY- MENT. DAMAGES UNDER. COVENANT OF WARRANTY. Dam- AGES UNDER. 891. The Common Law of this Country. The American common law relating to real property is the outgrowth of the feudal system that existed in England several hundred years ago. And inorder to clearly understand the terms in daily use in treating of the sale and transfer of real property and 332 LAW OF DAMAGES. the right and duties of vendor and purchase, we must go back and examine into some of the characteristics of that system. The student should remember that prior to the introduction of , the feudal system into England all lands were held in allodi- um or in fee simple, nulli sirvetuti obnoxium. But from the un- settled condition of Europe during the tenth and eleventh centuries, most of allodial estates were voluntarily changed into a tenure or feudal estate by their proprietors for the pur- pose of obtaining the protection of some neighboring lord or chief by becoming his vassal. The theory of this system was that all the land of any country belonged originally to the king or chief who held dominion and ruled over it. And that it was by him parceled out to others who were permitted to hold them on condition subsequent that they should perform certain duties and services for the superior who in theory re- tained the property in the land itself‘ The donee, by this ar- rangement, was said to hold of or under his superior; the one taking the name of lord and the other vassal, and the right to hold was called sizin.5 392. The Right of the Vassal. The right that the vassal acquired to hold his land, having been granted to him as a gratuity at first took the name of benefice, and was so desig- nated by the early writers. But the common name was the “feud, feod, fief or fee.” This holding of land under another was called a tenure. The act by which the vassal was inducted into and admitted to the right of possession and right of en- joyment was called an investure.6 The condition on which the vassal held the premises was that he must perform some act or render some service to his lord for the privilege of hold- ing possession of the land, which were called the services of ‘Spencer, Dg. Jus., 34-135; Law Mag., 605; 2 Black com., 53. ® Spencer, Eg. Jur., 185; 1 Washburn on real prop., 20-22. * Wright on Tenure, 37. COVENANT OF WARRANTY. 333 his tenure. These services could be varied at the will of the lord. The lord was bound to protect the vassal, and the vas- sal was sworn to uphold and protect his lord, and without the oath of fealty no feud could subsist.® 392. The Feudal Grant was Hereditary. The feudal grant Was an hereditary one. The vassal was also required to do homage to the lord, which consisted in kneeling in the pres- ence of other vasaals and declaring in a certain formula that he became his homo, or man. The lord was under strong ob- ligations to the vassal to protect him in the énjoyment of his feud, and if he was unable to do this, then he had to supply ‘him with a new one of equal value. This was the origin of the doctrine of warranty.7. And upon this doctrine is based the rule in the assment of damages in a breach of covenant _ of warranty, which gives the vendee anamount equal to what he paid out, with a specified per cent. for the use of it, where he got no title.’ 393. The Confused Rule in this Country. Owing to the pecu- liar character of the structure of our government, it being composed of many States, holding limited sovereign power, with full authority to enact laws governing the sale and trans- fer of real property, and the further fact that most of these States have municipal laws bearing upon the subject, the question of the measure of damages in case of a breach of any agreement relating thereto, becomes very complicated and hard to understand. As has already been said, the doctrine of covenant of warranty had its origin in the feudal system. 6 Wright on Tenure, 35; 1 Wash. on real prop., 22. - 7 Wright on Ten., 5, 27; same, 38; 2 2 Black., 57; 1 Washburn on real prop., 22. / 11 Flureau v. Thornhill, 2 W. Bl., 1078; same, Sedgwick leading cases on measure of damages, 3. 334 LAW OF DAMAGES. The lord was bound to recompense his vassal, on eviction, with other lands to the value of the feud at the time of the eviction. Fudum restuat ejusdem estimationis quod erat tempore ret judicatia.* , 394. The Feudal System Overturned. The overthrow of the feudal system; and the compilation of the rules of common law in reference to the sale and transfer of real property, the covenant of warranty was brought into use. A deed, with full covenant of warranty contains the following covenant on the part of the grantor: 1. That he (the grantor) is lawfully seized. 2. That he hasa good right to convey. 8. That the land conveyed is free from all incumbrance. 4, That the grantee shall quietly enjoy the same. 5. That the grantor will warrant and defend the title against all claims.’ a 395. The Common Law of the United States. The common law of England, and the British statutes made in aid thereof, were brought by our ancestors to this country, and so much thereof as was suited to the condition of the people like that of the early settlers were adopted as our common law. They brought it with them as they did their language and regarded it as a heritage of inestimable value, by which their rights of ? Flureau v. Thornhill, 2 W. & BI., 1078. * Rawle on Covenant of Title, p. 43; Humphries on Real Proper- ty, 126. COVENANT OF WARRANTY. oe person and property were to be regulated and secured.t Es- pecially was this true in regard to the law of real property.® 396. Breaches of the Different Covenants. It may be laid down as a general rule that the grantee cannot recover sub- stantial damages for a breach of any of the covenants we have just mentioned, until he has sustained actual injury. Sup- pose, for illustration, that at the time of the conveyance, with full covenant of warrant, the grantor was not lawfully seized, or the premises not free from incumbrance, there would be a breach of covenants at the time of the conveyance, but if the grantee has been placed in possession, and enjoys actual pos- session, or where he has not removed or paid off the incum- brance, can only recover nominal damages until injured by an ouster,” and so with all the other covenants, nominal damages can only be recovered, until actual ouster or eviction by para- mount title.’ We will now consider the measure of clamages on a breach of these covenants: 397. Tne Duty of the Grantee. Before the grantee can bring an action against the grantor for a breach of a general covenant of warranty of title, there must have been some hostile assertion of a paramount title to which he yielded, or which was brought in by him. That he shall have been sued: is not necessary, but it is essential that the true owner shall 4 Wharton v. Peters, 8 Pet. (U. S.) 659; Paulet v. Clark, 9.Cranch (U. S.) 292; Patterson v. Win, 5 Peter (U. 8S.) 241; 1 Kent com., 333-473. 5 Seekitt v. Sacitt. 8 Peck, 315-318; Marshall v. Tiske, 6 Mass. 31; Commonwealth v. Knowlton, 2 Mass., 535; Washburn on real proper- ty, 17. 1 Field on law of dam., sect. 442; Green v. ‘Tig 54 Miss , 450; Kan- sas Pacific R. R. Co. v. Dunnyse, 19 Kas., 539. 336 LAW OF DAMAGES. have given notice in some way of his intention to assert his claim. He cannot, merely because he has ascertained that some other person holds a title superior to his own, abandon that possession which he received from the grantor, and de- mand areturn of the purchase money because the holder of the paramount title may never claim or demand possession of him, and the flow of time may have so ripened his possession and title that he can successfully combat any hostile claim that may be brought against him.’ 398. The Consideration of the’ Question. There are but few if any subjects, in the law that has given rise to more discus- sion in this country than the question of the measure of dam- ages for a breach of covenant of warranty. And this is owing to the fact that land is constantly changing hands and the value of land continually varying. But the rule for the assess- ment of damages on a breach of covenant for quiet enjoyment, and of warranty has been regulated by different States. But in respects to the covenant of seizen and good right to convey the rule as established in a few early cases has been consist- ently followed, and it may now be considered a settled rule that where the grantee has taken possession, and there has ? Green v. Irving, 54 Miss.; 450; Kansas Pacific Ky. Co. v. Dunmeyer, 19 Kansas, 539. Held, that the sale of wild land by the State is such a hostile assertion thereof, that a person in possession under a defective title can abandon possession, as upon eviction, and maintain his action. Pacific R. R. Co. v. Dunnyre, supra. The discharge of an incumbrance subsisting at the time of the con- conveyance, and capable of being enforced, operates as an eviction pro- tanto and a breach of general warranty of title, and an action may be brought by the orginal or subsequent vendee, who discharges such in- cumbrance. King v. Nortou, 10 Husk. (Tenn.) 384. A covenant of warranty cannot be broken until there is an eviction or something equivalent to an eviction. Bostwick v. Williams, 35 IIL.. 66. An evic- tion is turning out of, or placing the party in such a situation that his expulsion being inevitable he voluntarily surrenders possession to save expenses. Reasoner v. Edmundson, 5 Ind., 393. COVENANT OF WARRANTY. 337 been a partial or entire failure of title, but no eviction or where there is an incumbrance that has not been paid off, the grantee can maintain an action for a breach of his covenant, but, as has already been said, he can only recover nominal damages.‘ But where there has been an entire failure of title and eviction, the measure of damages is the purchase money, with legal interest.? In addition to this, when the grantee has been put to expense in trying in good faith to maintain his title, or in defending the same, he may recover such ex- pense, including counsel fees.” This is on the ground that as the plaintiff received no title by the conveyance he has lost no land by the breach of the contract, and having lost the consid- eration money with interest, he can recover it back with ex- pense of former suits.® XN 4 Nosler v. Hunt, 8 Ind. 212; Hocker v. Blake, 17 Ind. 97; Field on law of damages. 367. And where the grantee goes into possession under the deed, and his title is fendered perfect by the statute of limitation, although there was - abreach of covenant, yet he can only recover nominal damages. Wilson v. Foles, 2 Duer 80; Cow v. Sill, 4 Duer 46. 3 Loey v. Marnan, 37 Ind. 168; Sheets v. Andrews, 2 Black 274; Over- hiser v. McCallister, 10 Ind. 41; Burke et al. v. Clement, 16 Ind. 132; Phillips et al. v. Rich est., 17 Ind. 120; Burton v. Reeds, 20 Ind. 88; Cin., Peru & Ft. W. BR. R. v. Pearce, 28 Ind. 502; 48 Ind. 385; Bickford v. Page, 2 Mass, 445; Matson v. Hobbs, 2 Mass. 433; Casewell v. Wendell, 4 Mass. 108; Nichols v. Walters, 8 Mass. 243; Leland v. Stone, 10 Mass. 459; Smith v. Strung, 14 Pick. 128; Taple v. Lebrun, 1 Mo. 550; Hosford v. Wright, Kirley (Conn.) 3; Stubbs v. Page, 2 Me. 378; Bonta v. Miller, 1 Little (Ky.) 250; Cummins v. Kennedy, 3 Little 118; Martin v. Long, 3 Mo. 391; Brant v. Foster, 5 Ia. 287; Phipps v. Tapler, 31 Mo. 463; Nutting v. Her- bert, 29 Vt. 437; Wilson v. Forbes, 2 Den. N. C. L. 30; Heming v. With- ers, 3 Bur. S. C. 458; Blossom v. Knox, 3 Chone, Wis., 295; Farmers’ Bank v. Glenn, 68 N. ©. 35; Vale v. Junction R. Co., 1 Cin. (C.) 571; 4 Kent com., 475; Field on law of dam , 368; Foster v. Thompson, 41 N. H. 373; King v. Gibson, admx., 32 Il. 348. 2Staats v. Ten Eyke, 3 Cain 111; Perkins v. Leavitt, 13 Vt. 379; Scamour v. Harlan, 3 Dana (Ky.) 415; Daily v. Shirley, 8 Kans. 276; 4 ‘ Kent, 534; Yokum v. Thomas, 15 Ia. 67. 3 Field on law of dam., 368. In an action by a grantee on a covenant of general warranty, he may 338 LAW OF DAMAGES. 398. Objection urged to the Rule. The rule allowing the plaintiff, in a case of a failure of title and eviction, to recover back in the way of damages only his purchase money with in- terest, has been severely criticised by men of great legal at- tainments and forensic learning. It is contended that the rule is in conflict with many well settled principles of law, and favors the vendor. That the personal covenants in a deed of conveyance of real property should be construed like other personal covenants and contracts, and that when they are broken, the damages occasioned by the breach should be as- sessed in the same manner. 399. We will notice these objections. The general rule for the assessment of damages in cases of breaches of contracts is that the plaintiff may recover for all injuries resulting from the breach that might have been seen by an ordinary forecast of mind, or such damages as may reasonably be presumed to have been in the. contemplation of the parties at the time of making the contract, as the probable result of the breach of it. Contracts, according to this rule, should never be construed so as to run the intention of the parties beyond the comprehen- sion of the finite mind. To contend that the vendee, in case of a failure of title and eviction, shall recover the value of the land at the time of the eviction, is either to ignore the rule above laid down, or presume that the contracting parties pos- sessed more than finite comprehension. For instance, suppose that a vendor, a half century ago, had sold a piece of land in some of the coal oil regions of Pennsylvania. At that time it was a poor, barren tract, broken and hilly, worth, say, two dol- recover money paid for copies of record, and for counsel fees in defend- ing an action brought by a former owner to recover possession, and in prosecuting the action to reform the first deed, if such expense were necessarily incurred in obtaining paramount title. Laws v. Fury. 31 Ohio stat., 574. COVENANT OF WARRANTY. 339 lars per acre. He got a mere trifle for it, and believing his title good, he makes the grantee a warranty deed. A quarter of a century afterwards his grantee bores an oil well upon the premises and obtains oil in great abundance. The land, after the completion of the well, becomes worth half a million of dollars. Suit isbrought after its completion by a third person who recovers the land by a paramount title. Can it be said that the grantee should, in an action on his covenant of war- ranty, recover by way of damages the value of the land, at the time of the eviction, because at the time of the sale the par- ties had foreseen or contemplated that such damages might arise, when the fact of the existence of coal oil under the sur- face of the earth had never, at that time been thought of by the most learned scientist? Chancellor Kent, in the case of Staats v. Ten Eyke, Ex., which was brought to recover dam- ages for a breach of a covenant of warranty. Ten Eyke, dur- ing his life time, sold two lots of ground in the city of Albany to the plaintiff, with the covenant that he was rightfully seized in his own right of a good, indefeasible estate of inher- itance in the premises that he had full power to sell in fee simple, and that the grantee should forever peaceably hold and enjoy the premises without interruption or eviction from any person whatever, lawfully claiming the same. Walsh conveyed his moiety to Staats, who took possession thereof, and afterwards sold one of them to Margaret Chim, with covenant of warranty. The consideration paid was £300. Margaret Chim was evicted,and brought suit on her covenant of warranty. Staats brought suit against Ten Eyke’s estate, to recover on his warranty. He said: Thiscase resolves itself into these two points: 1. Whether upon the covenants the plaintiff be entitled to re- cover the value of the moiety of one lot at the time of the evic- tion, or only at the time of the purchase, and to be ascertained by the consideration given. 2. If the latter-be the rule of damages, thenwhether the plaintiff be also entitled to recover interest.up- on the purchase money and costs ofeviction. There are twocov- 340 LAW OF DAMAGES. enant contained in the deed, the one that the testator was seized in fee and had a good right to convey, the other that the grantee should hold the land free from any lawful disturb- ance or eviction. The present case does not state distinctly whether the eviction was founder of an absolute title to the moiety of one lot, or upon some temporary incumbrance. But I presume from the manner of stating the question, and so I shall presume the fact to be that the testator was not seized of the moiety so recovered when he made the conveyance, and had no right to convey it. The last covenant, then, in this case, does not have any greater operation than the first, and I shall consider the question as if it depended upon the first covenant merely. At common law upona writ of warrantia charta, the demandant can recover in compensation only the value of the land at the time the warranty was made, and although the land had become increased in value aftewards by the discovery of a mine, or by building or otherwise, yet the warrantor was not to render in value according to the then state of things, butas the land was when the warranty wasmade. * * ¥* This recompense in value, on excambium, as it was anciently .termed, consisted of lands of the warrantor, or those which his heirs inherited from him, of equal value with the land from which the foffle was evicted. That this was the ancint uni- form rule of the English law is a point, as I apprehend, not to be questioned, yet in the early age of the feudal law on ‘the continent, as it appears, * * * the lord was bound to rec- ompense his vassal on eviction, with other lands equal to the value of the feud at the time of the eviction. * * * But there is no evidence that this rule ever prevailed in England, nor do I find in any case that the law has been altered since the introduction of personal covenants to the disuse of the an- cient warranty. These covenants have been deemed prefera- ble because they secure a more easy, certain and effectual re- covery. But the change in the remedy did not affect the es- tablished measure of compensation, nor are we at liberty now COVENANT OF WARRANTP. 341 to substitute a new rule of ‘damages from mere speculative reasoning, and that, too, of a doubtful solidity. * * * Upon the sale of land 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 proof and knowledge of the title. The want of title is therefore usually a case of mutual error, and it would be ruinous and op- pressive to make the seller responsible for any accidental or ex- traordinary rise in the value of the land. Still more burden- some would the rule seem to be if that rise was owing to the taste, fortune or luxury of the purchaser. Noman could ven- ture to sell an acre of land to a wealthy purchaser without the hazard of absoluteruin. * * * If this question was now res integra, and we were in search of a fit rule for the occasion, I know of none less exceptionable than the one already estab- lished. * * * The next point arising in this case is wheth- er the the plaintiff is entitled to recover interest upon the purchase money, and the cost of eviction. It is evident that originally the vendee recovered only what was deemed equiv- alent to the purchase money without interest, for he recovered other lands, equal only in value to the lands sold at the time of the sale. The rule would have been the same at this day had not the action for mesne profits been introduced, which takes away from the purchaser the intermediate profits of the land. As long as he was permitted to reap the rents and prof- its they formed a just compensation for the use of his money. Whether the action for mesne profits has not been carried too far in our law by extending it to all cases instead of confining it to a modified possession, it is now too'late to inquire. * * Iam of the opinion that the seller is generally bound to an- swer for interest for the purchase money, and that the interest ought to be commensurate in point of time to the legal claim to mesne profits. This right to interest rests on very plain principles. The vendor has the use of the purchase money, and the vendee loses the equivalent by the loss of the mesne 342 LAW OF DAMAGES. profits. The interest ought to commence from the time of the loss of the mesne profits. * * * As to the costs of the suit attending the eviction, stated in the case it is very clear that the defendants are responsible under the covenants, for the.testator was bound to defend and protect the plaintiff in his assigns, in the titlehe had conveyed. * * * My opin- ion accordingly is that the plaintiff in the present case is en- titled to recover the consideration paid for the moiety of the lot evicted, together with interest thereon from the date of the purchase, and the costs of the suit in ejectment for the recov- ery of the same.’* 400. Objection to the Rule. But this rule has been rejected in Massachusetts, Maine, Vermont, Connecticut and Louisi-. ana, and the rule adhered to during the reign of the feudal system adopted, that the grantee shall recover the value of the land at the time of the eviction, without regard to the consid- eration paid therefor, and in some of them, in addition thereto, the expense incurred in defending the eviction suit, including attorney’s fees.” The argument in favor of this rule has al- ready been considered briefly, but for the purpose of giving the student a clearer conception of the basis upon which it rests, we will notice it more in detail. Judge Spencer, in the case of Picker v. Livingston, re- views the argument of Kent in the case of Staats v. Ten Eyke, and in commenting on the question he takes issue with the 3 Caines (N. J.) 111; Sedgwick, leading cases on the measuae of dam- ages, p. 4. "Gore v. Bazire, 3 Mass, 526; Sweet v. ‘Patrick, 12 Me.,9; Keeler v. Wood, 30 Vt., 242; Swett v. Sprague, 40 Vt., 43; Biglow v. Jones, 4 Mass. 512; Wyman vy. Ballard, 12 Mass., 304; Sterling v. Peet, 14 Conn., 245; Elder v. Tene, 32 Me., 104; Webber v. Coussy, 12 La. An., 535; Sarpy v. New Orleans, 14 La. An., 311. COVENANT OF WARRANTY. 343 learned Chancellor on many points discussed by him in that case. Hesays: “This question, I think, has not been settled in the English courts. It has never been decided in our own, and consequently it appears to me, we are at full liberty to fix the rule which shall bear analogy to other cases, and attain complete justice between the parties. I cannot pretend to say that the rule I shall lay down shall be free from objections when applied to all cases and I am not sensible that any gen- eral rule in almost every given case will invariably be free from exception. It is the very nature of a general rule. Sometimes it operates harshly, but the necessity of a fixed standard of justice is of more importance to the interest of men than one which is capricious and fluctuating. It has, I think, been erroneously said that the defect of titleis a case of mutual error. On the contrary, from my observation and knowledge of the sale of land, I think the defect of a title is a matter generally and almost universally in the peculiar knowledge of the vendor. It isa rare case for a purchaser to investigate the seller’s title, and in most cases it is impossible The buyer relies on the allegation of the vendor on his apparent responsibility to reimburse in case of eviction, upon his pos- session of the property, and emphatically on his covenants of title and for quiet enjoyment. These covenants, where they occur in a deed, seem to me to indicate beyond all question that the purchaser did not mean to relie on the title of the vendor alone, but that he meant to have his personal liberty as his guaranty, The language of the vendor corresponds with that of the purchaser, and 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 erroneous injustice of the rule that the vendor must be answerable for improvements. It has been asked if a piece of land thus sold with covenant should become the site of a flourishing city, that the vendor must be answerable for im- provements and withstand ruin. It may be retorted, what is 844 LAW OF DAMAGES. to become of the industrious citizen or mechanic, who has spent his hard earnings in erecting his little house or work- shop, relying on the covenant in his deed, if he can only get back his purchase money with interest? It is not fair, how- ever, to test the rule by extreme cases. To settle a general rule wisely and equitably, we should have an -eye to a case which generally occurs, and not to be startled on the one hand or the other by those occurrences which are rare and few. In general a defect of title happens in sales between man and man, where the improvements are of ordinary and beneficial kind. Ifthe improvements are merely to gratify the eye of the individual, and to pamper his vanity and pride, a jury would be warranted to take those things into consideration in their assessment of damages. I lay it down as a rule which cannot require much illustration to enforce it on the score of analogy and justice, that in an action fora breach of covenant the damages are to be estimated according to the value of the thing when the covenant was broken. Thus in covenant for the de- livery of specific property at a given day. In caseof a failure the rule is invariably 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 also on contract for the delivery of stock, the value at the time it ought to have been delivered, and even at the time of trial has beon the criterion of dam- ages. * * * In the present case the defendant 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 en- joyment of the land, but the usufruct of those evictions and improvements without which it is fair to say that the land it- self could not have been enjoyed agreeable to the intention 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. I confess myself incapable of perceiving, when he has under- COVENANT OF WARRANTY. 845 taken for a price paid to assure to the vendee the validity of the title. Very often, and perhaps generally, there is a want of due caution on the part of the vendor, who sells without | title, and not infrequently there is a mixture which sets de- tection at defiance. The rule I have advanced, while it will restore to the innocent vendee no more than he has actually lost, will induce greater caution in sellers, who, if only respon- sible for the principal and interest, will find the selling of land without title an easy and excellent method of raising money, instead of resorting to borrowing.’”” 401. The Reason for Both Rules. The are several good argu- ments and reasons that can be produced in favor of each of the rules now under consideration, as well as several well-grounded objections, and we are led to the opinion that no general rule can be laid down in this class of cases that will be free from ‘objections. The advocates on both sides have seen the hard- ships that the enforcement of their rule would bring about, and have attempted in vain to cover them up by holding up in the strongest light the evils that would result by the en- forcement of the rule laid down by the others. Ithasoccurred to us that a more just and equitable rule than either of these we have been considering, might be laid down and enforced. It is admitted by the advocates of both of the old rules that the intention of the contracting parties should govern and be enforced. And this is in accordance with the rule laid down for the construction of contract. In order to ascertain their intention, the court or jury trying the cause should take into consideration the character of the country, and soil, the loca- tion of the land, the prospective value, and, in fact, all the surrounding circumstances, and then say what was the inten- tion of the parties, at the time the contract was made. If, 14 Johns(N. J.) 1. 346 LAW OF DAMAGES. from these facts, the jury can discover no evidence of the in- tention or understanding of the parties at the time of the sale, then they should find for the plaintift in the amount of the purchase money with interest. But to this rule there arises a well grounded objection, and it is this: On a subject of such general interest and concern as the usual covenants in a con- veyance of land, the standard for the computation of damages upon a failure of title ought, at least, to be certain and notori- ous. The parties are each equally interested in having the rule definite and fixed. And we have arrived at the conclusion after a careful examination of the authorities, that the rule al- lowing the vendee, in case of a breach and eviction, to recover back his purchase money with interest, is about as free from objections as any that can be laid down. 402. Damages where Part of a Tract is Taken. Having con- sidered the measure of damages in case of an entire failure of title and eviction, we will now proceed to notice other breaches, where the damages may be less than the purchase money, with interest. Where there is a failure of title to a part of a tract of land, purchased and taken possession of, and there is no recision of the contract on that account, the measure of damages on eviction from such part in the absence of special circumstances is a sum bearing the same proportion to the prices of the whole that such part bears to the entire tract of land, with interest and expenditure in defending the title? ? Hoot v. Spade, 20 Ind., 326; Philips v. Ruch., 17 Ind, 120 Kent’s com., sec. 477; Morris v. Phelps, 5 Johns. R., 49; Gurther v. Pugsley, 12; John 126; Wager v. Scuyler, 1 Wend., 555; Denmick v. Lockwood, 10 Wend , 142; Griffith v. Reynolds, 1 How. (U. S.), 609; Rawle on covenant of title, 2 ed., 110, Funiss v. Ferguson, 15 N. Y., 437; Giles v. Durgo, 1 Duer, 331; Sedgwick on measure of damages, 17; Michaels v. Mills, 15 Ohio, 604; Wiley v. Howard, 15 Ind., 169; Bond v. McQuattleboum, 1 McCord, 584; McAlpin vy. Woodruff, 11 Ohio st., 120; King v. Kersey, 5 COVENANT OF WARRANTY. 347 408. Right of the Plaintiff to Recover Interest. The right of the plaintiff to recover interest on the purchase money, has not been adopted in this country without qualification. It is evident that originally the plaintiff recovered what he deemed equivalent to the purchase money without interest, for he only got a tract of land equal in value to the one he purchased at the time the conveyance wasmade. Atthat time, however, a plain- tiff in ejectment could not recover the mesne profits. But sub- sequently the action for mesne profits was introduced, and the purchaser, on eviction, was compelled to pay for the rents and prof- its of theland,while heoccupiedit. Aslongas he was permitted to reap the rents and profits they were considered equal to the interest on the purchase money. The action for mesne profits is almost universally recognized in this country, therefore, inan action on a covenant of warranty for damages in case of afailure of title and eviction, it will be presumed that the plaintiff has lost the mesne profits until the contrary is established. The right to recover interest rests on very plain principles. The vendor has the use of the purchase money, and the vendee loses the equivalent by the loss of the mesne.profits. The interest ought ta be computed from the time of the loss of the mesne profits. And if the land was improved, and the plaintiff occupied it, and was not compelled to pay any mesne profits, he should only be allowed to recover his purchase money.’ Ham. O. R, 98; Backus v. McCoy, 3 Ham., O. R., 211; Foot v. Burnett, 10 Ohio, 326; 4 Hale, 148; 2 Black. 274; 8 Pickering, 455; 10 Conn., 442; Daniels v. the State, 16 Ind , 456; Field on dam., 369 7 Staats v. Ten Eyke, 3 Cains (N. J.) 111; Sedgwick, leading cases on Measure of Dam.; 4 Field on the law of dam., 393; Sedgwick on the mea- sure of damages, p. 170-171 and notes. Where land has been conveyed with covenant of warranty, and the vendee is evicted by a title bara- mount, the measure of damages is the value of the land as shown by the consideration paid, with interest, but if it be improved land, and the vendee has been in possession his claim to interest is thereby extin- guished except for the term he has been compelled to account for mesne profits, Cox v. Henry, 32 Pa. st, 18. Sumner v. Williams, 8 Mass., 222; Gurther v. Pugley 12 Johns, 126; Pat- 348 LAW OF DAMAGES. 404. The Rule of Full Compensation Applied. The old rule of full compensation for all loss sustained, that we have re- ferred to so often in this work, applies in all actions for a bréach of covenant or agreement in reference toland. And where it appears that the plaintiff’s loss has been less than the purchase money with interest, his recovery will be limited to the actual loss sustained. “Thus, where the grantor was seized of two-sixths of a tract of land, and only had a life es- tate in the remainder, it was held that the damages for a breach of the covenant of seizin in such cases was not the four- sixth part of the purchase money or consideration paid, but that amount less the value of the estate during the life of the grantor, and the value of such life estate may be estimated by a table of expectation of human life, recognized as authority, such as the Carlisle life table, and the life table of Dr. Wiggles- worth.” . 404. The student should remember that the rules for the assessment of damages upon covenants in deeds for the con- veyance of real estate, have been passed with a view of giving the grantee full compensation for the damages he has sustained. Thus, if the covenant of seizin is broken, and the grantee evicted, and there is a total failure of title, the law restores to the purchaser the consideration paid, with legal interest. But in this, as well as in other covenants in deeds of conveyance, if there is anything that would render that rule inequitable, the court or jury trying the cause should take it into con- sideration. The sole object of a covenant of this kind is to se- cure the plaintiff a legal seizin in the land conveyed. If it is terson v. Stewart, 6 Watts & Seg., 528; Riles, Admr., v. Frauntleroys, Admr., 9 B. Monroe, 720; Wilbom v. Beeman, 2 Devreaux, 488; Rawle on com. title, 117. ? Miller v. Catlin, 22 Vt., 98; Donaldson v. the M. & M. Railroad Co., 18 Ia., 280. COVENANT OF WARRANTY. 349 broken, and he fails of his seizin, he has aright to the pur- chase money with legal interest. But if he has, by another deed, or 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 inequitable that he should have the seizin and be allowed to recover back from the grantor the purchase money with interest.’ Thus, where the grantor, after a breach of covenant, and even after suit brought for a breach acquired the title, it was held that such subse- quently acquired title inured to the benefit of the grantee, and went in mitigation of damages. So, where a failure of title has been such as to constitute a technical breach of a covenant of seizin, but was not such as visited upon the plaintiff the loss of the land or any part thereof, he can only recover nom- : inal damages.‘ 406. After Acquired Title Inures to Purchaser. It may be con- sidered well settled that where a grantor conveys land with a full covenant of warranty, and he afterwards acquires by pur- chase or otherwise, a paramount title, it immediately inures to the purchaser or those claiming under him by operation of the doctrine of estoppel. And in case the grantor, who has pur- chased the outstanding title, is sued for a breach of covenant of warranty, he may show in mitigation of damages that he has completed the plaintiff’s title by purchasing the outstand- ing title, which is the breach complained of. Baxter v. Bradbury, 20 Me., 260; Whiting v. Dany, 15 Pick., 428 Lockwood v. Sturdevant, 6 Conn., 313; Turner v. Livingstone, 12 Wend., | 83; Morris v. Phelps, 5 Johns, 49. 4Nosler v. Hunt, 18 Ia., 212; Barber v. Cobert, 28 Ia., 317; McGay v- Hastings, 39 Cal., 360; Cornell v. Jackson, 3 Cush., 506; Lawless v. Col- lier, 19 Mo., 480; Ouer Hiser v. McCollis, 10 Ind., 41; Martin v. Baker, 5 Blackford, 232; Parker v. Brown, 15 N. H., 176; Howell v. Richards, 11 East., 663; Rawle on cov. title, 105. 5 Jackson v. Wihslow, 9 Cow., 18; Kellogg v. Wood, 4 Paige; Rawle on cov. of title, 414; Sparrow v. Kingman, 1 Comstock, 247; Rathburn v, 350 LAW OF DAMAGES. 407. Does a Covenant of Seizin Run with the Land. There is some confusion among the authorities as to the correctness of the rule adopted by the majority of the courts of this country, that if there is no seizin of the land in the grantor, there is at once a breach of the covenant, and a claim for damages, and that such breach will not run with the land, and that it can- not be assigned by a subsequent conveyance.’ 408. The American rule will operate oppressively in all cases where land has been subsequently conveyed by the grantee either toward the grantor or subsequent purchaser. Rathburn, 6 Barb., 8. C., 226; Hoyt v. Dimon, 5 Day, 479; Dudley v. Cad- well, 19 Com., 226; Sherwood v Barlow, ib., 476; Lawry v. Williams, 13 Missouri, 282; Baxter v. Bradbury, 20 ib., 260; Pike v. Galvin, 29 Me., 185; Farland v. Williams, 7 Greenl., 96; William v, Thurlow, 31 Me., 395; Kimball v. Blaisdell, 5 N. H., 533; Mark v. Willard, 13 N. H., 389; Wade v. Eindsy, 5 Pick., 413; Blanchard v. Brooks, 12 Pick., 47; Gibbs v. Thayer, 6 Cush., 30; Gough v. Bell, 1 Zalerokie, 167; Douglas v. Scott, 5 Ghio, 194; Scott v. Douglass, 7 Ohio, 227; Barlow v. Morris, 15 Ohio, 408; D swell v. Buchanan, 3 Leigh, 376; Masse v. Sebastian 4 Bibb., 436; Logan v. Steel, 4 Monroe, 433; Logan v Moore, 7 Dana, 76; Rigg v. Cook, 4 Gelaim, 348; Robertson v. Gaines, 2 Humph.. 383; Kennedy v. McCar- thy, 4 Porter v. Welsh, 17 Ala., 772; Terret v. Taylor, 9 Cranch, 52; Ma- son v. Manchester, 9 Wheat, 455; Reeder v. Craig, 4 McCord, 411, and Harris, lessee, v. Morris, I McLean, 44. By the common law, if a grant- or who has no interest, or only a defeosible interest in the premises granted, convey the premises with warranty and aftewards obtained an absolute title to the property, such title immediately becomes vested in grantee or his heirs or assigns by estoppel. Coke Little, 565; Jackson v. Wright, 14 Johnson, 193; Gochenour v. Mowry, 33 Ill, 331; Schofield v. Homestead Co , 32 Ia., 317. "Mitchell v, Warren, 5 Conn., 497; 4 Kent, 472; Eewis v. Ridge, Cro Eliz, 863; Com. Dig title, Com. B, 3; Andrew v. Pearce. 4 Bos. & P., 158; Gloster v. Audley, 7 Ray, 14; Hamilton v. Wilson, 4 John, 72; Logan v. Moulder, 1 Pike, 328; Clark y. Swift, 3 Md., 390; Greenley v. Wilcocks, 2 Johns, 1; Kerr v. Shaw, 13 Johns, 236; With v. Mamford, 5 Com., 137; Bing v. Haven, 3 A. R., Mash, 324; Marston v. Hobbs, 2 Mass., 4395 Chapman vy. Holms, 5 Holst, 20; Dale v. Sincly, 8 Kans., 276. It appears to us to be a mistake to say that the seizin cannot pass to the heirs or assigns of the grantee. The covenant is not inserted in the deed merely for the grantee’s benefit, but for the benefit of all others COVENANT OF WARRANTY. 351 And we believe that this doctrine is gradually declining in fa- vor of the English rule,which is that a covenant of seizin runs with the land.’’ The English rule has been established in most of those States where therulesof the common law,which forbid the assignment of a chose in action, have been abolished. This strikes us being the most reasonable and just of the two. The object-of all covenants in deeds of conveyance is to secure the grantee against losses that he may sustain if his title is defect- ive, and he is injured thereby. The transfer’of the land car- ries with it the covenant or the security that the vendor has to indemnify him against all losses occasioned by a breach of, his warranty. This indemnity can be of no further benefit to the subsequent grantor, for he has no longer any interest in maintaing the title. It has passed from him and is vested in his grantee. The grantee must be the first and only sufferer if thé title proves defective, and he should therefore receive the indemnity. It may be that he could recover on the covenant in his deed against his original vendor.. But suppose that, he has taken the benefit of the bankrupt law, and is totally in- solvent. In that case the grantee would be without a remedy and must lose his purchase money, interest, andexpense. But his grantor, who has lost nothing by the breach, could sue for the breach of covenant in his deed, and recover back his pur- chase money with the value of the land at the time of the eviction, while yet retaining the purchase money received from his grantee. But suppose that the subsequent grantee purchased the land without a warranty, and pays full value for it, and is afterwards evicted, he is without a remedy, but who may derive their claim to the land through him. Whoever thus derives his right, and ultimately sustains damage in consequence of the covenantor’s want of title, may sue him for the breach. It is said in one of the oldest and best books of the law that-if a man makes a covenant by deed to ancther, his heirs and to enfeoff him and his heirs of the amount. Matenv. Baker, Admr.,5 Blackf. (Ind.) 232. 1 Kingdom v. Nottle, 1 Maule & Shu., 355; 4 ib, 58; King v Jones, 5 Taunt., 418; 4 Maule v. Schu 188; Wash. on real prop., 649. 852 LAW OF DAMAGES. his grantor, who holds under a warranty, may recover from his grantor his purchase money with interest, when he received no injury, and his grantes, who is the only real party injured, can recover nothing. Such a rule is unjust, and is calculated only for the benefit of those who seek to take the advantage of others.* 409. Covenant for Good Right to Convey. The covenant for good right to convey is very generally said to be synonymous with that we have just been considering. A covenant of this kind is useless when preceded by a covenant that the vendor is seized of an indefeasible estate, of inheritance in fee simple. And in most of the modern conveyances this covenant is omitted? For measure of daniages in case of a breach of this covenant, see covenant of seizin. 410. Covenant Against Incumbrance. Having noticed the damages that the grantee may recover for a breach of cove- nant of seizin and right to convey,. we will now notice the damages that the purchaser may recover for a breach of cove- nant against incumbrance. An incumbrance may be defined to be every right or interest in the land conveyed that will diminish its value. Any weight on the land that lessens its value. 411. Damage where the Incumbrance has not been Removed. This covenant is treated asa covenant of indemnity, and no rule is better settled than that if the incumbrance is still contingent 1 Schofield v. Iowa Homestead Co., 32 Ia., 317; Matin v. Baker, 5 Black (Ind ) 232; 4 Kent’s com., 472. ? Hughes Practice of Sales of Real Property, vol. p. 411; Rawle on Cov- enant of Title, p. 127-128; Field on the law of damages, sec. 460; Pitcher v. Livingstone, + Johns, 1. The covenant of seizin, which relates to the title, is the principle and superior covenant to which the covenant for quiet enjoyment which goes to the possessor is inferior and subordinate. Pitcher v. Livingstone, 4 Johns, 1. COVENANT OF WARRANTY. 853 P : in its character and if nothing has been paid by the pur- chaser’ towards removing or extinguishing it, and if it has inflicted no actual injury upon him in a suit for a breach of this covenant, he can only recover nominal damages. He will not be allowed to recover certain compensation for running the Tisk of an uncertain injury. The reason for this rule is that where the grantee has not paid or removed the incumbrance, nor been evicted from the premises by reason of it, he shall not recover back the purchase money while he still holds possession and may never be evicted or turned out of ‘possession. He must first pay off the incum- ‘brance, so that it cannot afterwards prejudice the grantor be- fore he can recover substantial damages.® ° Prescott v. Truman, 4 Mass. 627; Grant v. Tallman, 20 N. Y. 191; Treft v. Adams, 8 Pick. 547; Harlow v. Thomas, 15 Pickering 66; Stowell v. Bennett, 34 Me. 422; Anderson v. Davidson, 17 N. H. 413; Smith v. Jefts, 44 N. H. 482: Mason v. Cooksy, 51 Ind. 519; Vane v. Lord Barnard Gilbert, Eq. Rep. 7, per Lord Comper; Bean v. Mayor, 5 Maine 94; Ran- dell v. Mallett, 14 Me. 51; Herrick v. Moore, 19 Me. 313; Clark v. Perry, 30 Me. 151; Richardson v. Dow, 5 Vt. 9; Davis v. Lyman, 6 Conn. 255; Wyman v. Ballard, 12 Mass 304; Jenks v. Hopkins, 8 Pick. 348; Leffingwell v. Elliott, ib. 457; Brooks v. Moody, 20 Mass. 474; Cum- mings v. Little, 24 Pick. 269; Pitcher v. Levingston, 4 John 10; Dela- vergen v. Norris, 7 Johns 358, Hall v. Dean, 13 Pick. 100; Stannard v Eldrege, 16 Johns 125; Baldwin v. Munn, 2 Wend. 405; Gilbert v. Minn , 1 Comst. 563; Patterson v. Stewart, 6 Watts & Seg. 528; Foot v- Burnett, 10 Ohio 317; Whistler v. Hicks, 5 Black 100; Smith v. Ackerman, 5 Black 541; Pomeroy v. Burnett, 8 Black 143; Rawleon cov. of titles, 155; Field on the law of dam., sects. 450-451; Arrigoni v. Johnson, 6 Weg. 167. There need not be a dispossessing by process of law to constitute an eviction. 51 Ind. 519. 3 Prescott v. Truman, 4 Mass. 125. An outstanding mortgage constituting a breach of covenant that the land is unencumbered, but until the purchaser has been evicted only nominal damages can be recovered for his breach. Reasoner v. Ed- munson, 5 Ind. 393; Barker v. Hobbs, 6 Ind. 383. Incumbrance on real estate conveyed by deed contains a covenant against incumbrance, and are not presumed to be excluded from the operation of the covenant, because their existence was known to the pur- 354 LAW OF DAMAGES. 412. Damages Where the Incwmbrance has Inflicted an Actual Injury. The general rule of damages in such cases is to make good the actual loss of the purchaser in case of a breach, or to allow the plaintiff such a sum as would place him in the same position as if the covenant had never been broken. In other words, the grantee is to be fully compensated for the loss he has sustained. Therefore, if the plaintiff has extinguished the incumbrance on the land he may recover of the defendant the amount paid by him for such purpose and interest, but in no case can he recover an amount in excess of the purchase money with interest. 4138. We have shown how the rule for the assess- ment of damages in case of a failure of title and eviction varics in different States. In some it is held that the covenantee can recover only his purchase money with in- terest, including necessary expense in upholding his title. In others, that he may recover the value of the estate at the time of eviction. In those States where the former rule has been adopted they hold that the vendee who has paid off an incum- brance may recover whatever he has paid, with legal interest, provided it does not exceed the purchase moncy and interest, and that the ultimate extent of the vendee’s recovery is the _chaser at the time of the execution of the deed. Medler v. Heath, 8 Ind. 171; Snyder v. Lane, 10 Ind. 424. * Foot v. Burnett, 10 Ohio 317; 4 Kent com. 476; Field on the law of danages, sec. 450; Davis v. Lyman, 6 Conn, 255; Wyman v. Brigden, + Mass. 150; Wyman vy. Ballard, 12 Id. 304; Chapel v. Bull, 17 Id. 221; Tufts v. Adams, 8 Pick. 549, Brooks v. Moody, 20 Id. 470: Cummings v. Little, 24 Id. 266; Bochelder v. Sturgis, 3 Cush. 205; Waldo v. Long, 7 Johns 173; Delvergen v. Norris, Id. 358; Hall v. Dean, 18 Id. 105; Stand- ard v. Eldrege, 16 Id. 254; Brown v. Broadhead, 3 Wharton 104; Funk v. Voneda, 11 Surg. & Rawle 112, Cane v. Allen, 2 Dowe 296; Henderson v. Henderson, 13 Missouri 162; 10 Wend. 142; St. Louis v. Bliss, 46 Mo. 157; Farmers’ Bank v. Glenn, 68 N.C. 35; Kent vy. Cantrall, 44 Ind. 452; Rar- den v. Walpole, 38 Ind. 146; Field on the law of damages, sec. 450; Rawle on cov. of title, 158; McGary v. Hasting, 39 Cal. 360. COVENANT OF WARRANTY. 355 purchase money with interest and the necessary expenses for a breach of any or all the covenants in hisdeed. But in those. States where the latter rule prevails, they hold that the vendee who has liquidated and paid off an incumbrance may recover back the money paid with interest and necessary expense in defending his title, provided that amount does not exceed the value of the land at the time of the eviction, and in no case can the recovery exceed that amount.® 414. Where the Incumbrance Cannot be Recovered. It fre- quently happens that the incumbrance cannot be removed as where it consists of a right of way ora lease. The covenant of seizin is not broken, however, by the existence of a public highway, which has been established by the right of eminent domain and is in actual use. The freehold still technically re- mains in the owner of the soil and passes to the purchaser.‘ But where an incumbrance exists that cannot be removed the vendee can recover such damages as he may sustain thereby, whether he knew of the existence of the incumbrance or not." And if he is permanently kept out of the estate by reason of § See on-first rule laid down in this section 4 Kent's com. 474; Field on the law of damages, sec. 446; Porter v. Bradley, 7 R. I. 538; Fawcett v; Wood, 5 Ia. 400. On the second rule see Norton v. Babcock, 2 Met. 510. Barrett v. Porter, 14 Mass. 143 Where land is sold with acovenant against incumbrance and an in- cumbrance exists of a permanent character which impairs th2 value of the premises and cannot be removed as a matter of right by the pur- “chaser, the damages will be measured by the diminished value of the paemises. Mitchell v. Stanley, 44 Conn. 312. When the incumbrance has been removed the plaintiff can recover the amount paid to clear his title. Curther v. Russell, 46 Ia. 269; McClel- land v. Moore, 48 Tex. 355; Taylor v. Barnes, 69 N. Y. 480. 6 Scribner v. Holmes, 16 Ind. 142. 1 Rawle on covenant for title, 115 to 120, 44 Conn. 312; Butlar v Yeil, 27 Vt. 739; Kellogg v. Martin, 50 Mo. 496; Van Wagner v. Van Nortrand. 19 Ia. 422; Barlow v. McKinly, 24 Ia. 69; Beach v. Miller, 51 Ill 206; Hubbard v. Norton, 10 Conn. 422; Rea v. Menkler, 5 Law (N Y.) 196; ady v. Allen, 22 Barb, 388, Church ¢. Higgins, 48 N. J. 532. 356 LAW OF DAMAGES. the incumbrance, he may recover the purchase money with interest.” 415. The student will see at a glance that this covenant is closely related to that of a covenant of quiet enjoyment or a general warranty. Anda cuse frequently occurs where what was at first a breach of a covenant against incumbrance ripens into a breach of the covenant for quiet enjoyment or of general ' warranty, as where the incumbrance is a mortgage or judg- ment lien, which, after foreclosure and sale, may divest the grantee of the title and right of possession, either by voluntary surrender of the premises on execution or on eviction. Where an action is brought for a breach of covenant in a deed the plaintiff must allege and prove the breach, and this rule ap- plies where the-plaintiff is evicted by paramount title as well as in all other cases. The onus in all this class of eases is on the plaintiff! 416. Covenant for Quiet Enjoyment and of Warranty. We have thought proper to consider these covenants together, as substantially the same rules for the assessment of damages are applicable to each. The plaintiff in order to recover for a breach of either of these warranties must show that he has sustained actual damage. It is not sufficient that there is a paramount legal title in another, but he must show a disturb- ance of the possession or an. eviction from the premises by a superior title in order to recover substantial damages. And in wn action for a breach of either of these covenants it is well set- 7 Sedgwick on dam., 178; Willett v. Burgess, 34 Ill. 494; Grant v. Tall- man, 20N. Y. 191; Giles v. Dugre, 1 Duer 331; Potter v. Bradley, 7 k. I. 538; Cady v. Allen, 22 Barb. 388; Funk v. Caswell, 5 Ia. 62; Field on law of dam., sec. 450 ‘Colman v. Ballard, 13 La. 512; Thomas v. Stickel, 13 Ia. 714; Kent’s com. +74; Patterson v. Stewart, 6 W. & S. Pa. 527; Barlow v. McKinly, 24 Iowa 69; Field on the law of damages, sec, 469. : ee COVENANT OF WARRANTY. 357 tled that the rule of damages where there has been an actual loss of the premises is the purchase money with interest. Where the plaintiff has actually purchased the paramount title, it is the sum actually and in good faith paid for the par- amount title and the amount expended in defending his pos- session, provided such damages in no case exceeds the pur- chase money and interest.’ , 417. Exception to the Rule. But the rule allowing the re- covery of purchase money with interest does not apply to executory contracts when the vendor has sold land to which he has not a perfect title and where he undertakes to complete and perfect it. In such cases there is an expressed agreement for indemnity, and the rule of damages as a measure of in- demnity is the value of the land at the time of the eviction or other breach with interest from that time.’ 418. Thus it was held that when the defendant who had exchanged a tract of land in the State of Indiana for a tract in the State of Olio and afterwards agreed to cancel all incum- brance on the Indiana land in six months and failed to do so, and the plaintiff lost his land, that for the breach of such an executory contract the plaintiff could recover such damages as were the necessary, natural and probable result of the breach com- plained of; that such was the general rule, and that it rested upon the principle of obvious justice ; and that the measure of damages was the value of the Indiana land with interest thereon, * 2 McGary v. Hasting, 39 Cal. 360; Green v. Tallman, 20 N. Y. 191; 4 Kent’s com. 468-469; Black’s com. 298; Field on law of dam , sec. 460. ® Taylor v. Barnes, 69 N. Y. 430; Trule v. Granger, 4 Seld. 115; Hop- kins v. Grozback, 6 B. & C. 31; Hill v. Hobart, 16 Maine 164; Brinkerhoff v. Phelps, 24 Barber 100; McDonnell v. Dunlope, Hardin 41; Fletcher v, Button, 6 Barber 646. 4 Manahan v. Smith, 19 Ohio’ st. 384; see also Lloyd v. Quinley, 5 Ohio 358 LAW OF DAMAGES, 419. Costs and Counsel Fees. The authorities are not uni- ‘orm upon the question as to the right of a plairitiff to recover costs and counsel fees incurred in defending his title, but it has recently been held in several of the States that the dam- ages on a breach of warranty ia a deed is the value of the property at the time of the conveyance with interest thereon, and necessary costs a id expenses.’ There is a co..flict among the authorities as to the right of the plaintiff to recover coun- sel fees in this class of cases, but the fact is now being pretty generally recognized ‘by the court that men who have no legal learning are not capable of conducting suits in courts, and, therefore, the employment of an attorney skilled in the prac- tice of his profession becomes an absolut necessity, and the expense paid out for such service are a necessary part of the costs.’ 420. Mitigating Circumstance. The grantor may show in mitigation of damages that subsequent to the breach com- plained of he acquired the outstanding title which enures by estoppel to the plaintiff by virtue of his covenant of warranty, and in this way reduce the plaintiff’s recovery to nominal damages only.2, And if he can show that the vendee’s title has been perfected either by the statute of limitation or otherwise st. 265; Rawle on com. titles, 141-146-153; Wade v. Comstock, 11 Ohio st. 71 81; Winslow v. McCall. 32 Barber 241. 5 Robertson v. Lemon, 2 Bush (Ky.) 301; Dalton v. Baker, 8 Nev. 190; Keeler y. Wood, 30 Vt. 242; Smith v. Sprague, 40 Vt. 43; Rowe v. Heath, 23 Texas 374. * Staats v. Ten Eyke, 3 Cains (N. Y.) 111; Robertson v. Lemon, 2 Bush (Ky.) 801; Dalton v. Baker, 8 Nev. 190; Keeler v. Wood, 30 Vt. 242; Smith v. Sprague, 40 Vt. 43; Rowe v. Heath, 23 Texas 314; Yakano v. Thomas, 15 Ia 67; Jetter v. Glenn. 9 Rich. 314; Demick v. Lockwood, 10 Wend. 142; Cox v. Henry, 32 Pa. st. 18. " Rawle on cov., 105; Baxter v. Bradbury, 20 Me. 260; Reese v. Smith, 12 Missouri 343. COVENANT OF WARRANTY. 359 he can reduce the plaintiff's recovery to nominal damages.’ If the action is brought for a breach occasioned by an in- cumbrance, the defendant may show that the grantee agreed to assume and pay off such incumbrances as a part of the con- sideration for the land, and he may introduce parol evidence to show the agreement between him and the grantee in regard to the matter.* $2 Duer (N. C.) L. 304 Id. 46, general notes. Where land has been conveyed with covenant of warranty and it has passed by a subsequent conveyance through the hands of various covenantees, the last covenantee or assignee in whose possession the land was when the covenant was broken, has a right of action against any or all of the prior warrantors, whether immediate or remote for a breach of the covenant. Prescott v. Hobbs, 30 Me. 345; Mills v. Catlin 22 Vt. 98. Covenants for Jand broken in the covenantee’s lifetime goes to the estat>, but those broken after his death to his heirs. Smith v. Hay, 37 B. Monroe (Ky.) 94, 6 T. B. Monroe 40; Grant v. Hodges, 3 Duer (N. C.) L. 200; Van Rensselear v. Planter, 2 Johns cas 17. In Connecticut, in an action upon a covenant of seizin, the damages is the consideration money with interest. Upona covenant of warrantry, the value of the property at the time of the eviction. Sterling v. Peet, 14 Conn. 246. -On a technical breach of a covenant of seizin and right to convey, the grantee can only recover nominal damages. Overhiser v. McCallister, 10 Ind. 41; Nosler v. Hunt, 18 Ia. 212. + Pitmanran v. Conner, 27 Ind. 337. In an action for a breach of seizin the fact that the grantee has been compelled to pay his own grantee a large sum on his own covenant of warranty will not enlatge his claim for damages. Nichols v. Walters, 8 Mass. 243. Where incumbered is conveyed with covenant of warranty, and free- dom from incumbrance is changed into a title adverse and indefeasible, the measure of damages is the consideration with interest. Jenks v. Hopkins, 8 Pick. 346. ' CHAPTER XXVIII. COVENANTS—REAL ESTATE. Executor CONTRACT FOR THE SALE oF LAND. THE GENERAL RULE OF DAMAGES WHERE THE VENDOR ACTS IN GOOD FAITH. RULE OF DAMAGES WHEN THE VENDOR ACTS IN BAD FAITH. PuMPELLY Vv. PHELPS, SUBSEQUENT CASE. THE RULE OF DAMAGES UNDER CERTAIN DECISIONS. THE ENGLISH AUTHOR- Irigs. Worrau v. Munn. Hapiey v. BAXENDALE. Hop- KINS v..LeE. GooD AND BAD FAITH. ADAMSON V. ROSE. RULE OF DAMAGES IN MAINE. EXCEPTIONS TO THE RULE. DouEerty v. IsLtAND. DAMAGES IN CASE OF BREACH OF VENDEE. DAMAGES WHERE THE DEED Is TENDERED. PRox- IMATE DAMAGES CAN ONLY BE RECOVERED. THE TRUE RULE. RECISION OF THE CONTRACT. LAWS. 421. Executory Contract for the Sale of Land. In this coun- try, where land is constantly chonging hands, controversies: frequently arise on breaches of coatract for the sale and trans- fer of it. It, therefore, becomes a matter of importance to have the rules for the assessment of damages clearly defined. And it is to be regretted that the authorities are not uniform upon the question, and in 'many cases are in direct REAL ESTATE. 361 conflict. In England, and in perhaps, the majority of the States, it is held that the measure of damages in case of a breach by the vendor should be. the same as on a breach of covenant of warranty or title, which is held to be the purchase money with interest.! While in other States it is claimed that the rule for the assessment of damages in case of a breach of contract to deliver goods, where the consideration has been fully paid, which is the highest value of the property up to the time of bringing the suit, should be the amount of the re- covery.” 422. The General Rule Where the Vendor Acts in Good Faith. We think, however, that where the vendor makes his contract of sale in good faith and is for any reason unable to make the conveyance and is guilty of no fraud, thatthe clear weight of authority is that the vendee is limited in his recovery to the consideration money, with interest, with, perhaps, in addition, the costs of investigating the title.’ ’ Hammon y. Hannin, 21 Mich. 374. 2? Hammon y. Hannin, supra. 3 Hammon v. Hannin, 31 Mich. 374; Walker v. Moore, 10 B. Monroe - and C. 416; Sikes v. Wild, 1 B Monroe and S. 587; same cov. 4 id. 421; Baldwin v. Munn, 2 Wend. 399; Peter v. McKeon, 4 Denio 546; Conger v. Weaver, 20 N. Y. 141; Allen v. Anderson, 2 Bibb. 415; Gaff v. Hawks, 5 J.J. Marsh 341; Combs v. Tarlton, adm , 2 Dana 464; Seamore v. Har- land, 3 Dana 410; Hendon v. Venable, 7 Dana 371; Hall v. Delaplaine, 5 Wis. 206; Fold v. McKingan, 4 Iowa 1; Sween v. Steele, 5 Iowa 3852; Blackwell v. Lawrence Co., 3 Black 143; Thompson v. Guthrie, 9 Leigh 101; Loomis v. Waibams, 8 Gray 557; Dunica v. Sharp, 7 Mo. 71; Mc- Clowry v. Crogham, 31 Pa. st. 22; Dunmars v. Miller, 34 id. 150; Adam- son v. Rose, 30 Ind. 380. The rule is well settled that where a vendor enters into a contract to sell and convey real estate under a belief that he has a good title and that the same is free from incumbrance, with covenant of warranty and against such incumbrauce, and he fails to perform for the reason that the title is defective or an incumbrance unknown to him rreviously is dis- covered, which prevents a fullfillment of the contract in an action by the vendeé against him for a breach of the contract, the latter is only liable for nominal damages. Cockcroft v. N. Y. & H. R. R. Co., 69 N.Y. 201; 362 LAW OF DAMAGES. 423. Where the Vendor Acts in Bad Faith. There are also numerous cases which decide that if the vendor acts in bad faith, as if having title he refuses to convey or disables him- self from conveying, the proper measure of damages is the value of the land at the time of the breach, the rule in such case being the same in relation to real as to personal property.’ Pumpelly v. Phelps, 40 N. Y. 562; 24 Barber 100; 43 Barber 469; Conger v. Weaver, 20 N. Y. 144; Legget v. Mutual Life Ins. Co., 53 N. Y. 394. One very strong reason for limiting the recovery to the consideration money and interest in case it is free from bad faith, is that the measure of damages is thus made to conform to the rule where the party assumes to convey land which he does not own. and an action is brought against him on a covenant of title in his deed. This reason is made specially prominent in many of the cases, and it cannot be denied that it is an anomaly if the vendee is restricted to the recovery of on° sum when an effectual deed is given, but allowed to recover a larger compensation in case the vendor, when he discovers the defect in his title. has manliness to inform the vendee of the fact and decline to execute worthless paper. Hammon v. Hannin, 21 Mich. 374. These contracts are merely upon the condition frequently expressed, _ but always implied, that the vendor hasa good title. Ifhe has not, the return of the deposit with interést and costs is all that can be expected. Flurreau v. Thornhill, 2 W. Bl. 1078; Sedgwick’s leading cases on the measure of damages, 3. It seems, therefore, more reasonable to treat the mere contract for the conveyance of land not as based upon an implied warranty that the. vendor has power to convey, but as involving the condition that the vendor has a good title, and that if, on examination of the abstract, this turns out not to be so, the vendee cannot ask to be put in as good con- dition as if the conveyance with usual covenants of warranty had been executed but can only recover the expenses to which he has been put. All that has been hitherto said leads to the conclusion that the case of Flurreau v. Thornhill was rightly decided. Bain \. Fothergill, L. R. 7 Eng. & Ir. App. 158; 43 L. J. N. 8. Exch, 243; 31 L. J N.S. 387. 4 McConnell heirs v. Dunlap, Hardin 41; Gerault v. Anderson, 2 Bibb. 543; Davis v. Lewis, 4 Bibb, 456; Driggs v. Dwight. 17 Wend. 71; Dustin v. Newcomer, 8 Ohio 49; Adams v. McMullen, 7 Porter 72; Trull v. Granger, 8 N.Y. 115; Martin v. Wright, 21 Ga. 504; Cox v. Henry, 32 Pa. st. 18. It is claimed that the damages are excessive; that the most to which Wolcott is entitled under the facts is the money paid and expended by him, with interest. It will be noticed that there had been no improve- ments made on the land by Wolcott, except such as were contemplated REAL ESTATE. 363 424. In the case of Pumpelly v. Phelps, where a trustee _ authorized to convey land only on obtaining a written consent of his cestui que trust, contracted in his own name to sell with- out having obtained such written consent, although he at the time, in good faith, expected to be able to procure it, and af- terwards, on account of the refusal of the cestui que trust to give the written consent, was unable to give a title, it was held by the majority of the Court of Appeals of New York that the purchaser was entitled to recover of the vendor the difference between the contract price of the land and the value at the time of the breach.* F 425. But in a subsequent case, a widow, having only a dower right in a lot of land, the title to which was in her chil- dren, three of whom were infants, contracted to sell the lot to the plaintiff for alittle more than the third of the actual value, of which she was ignorant, while the plaintiff was aware of it. Before the making of the contract the lot had been sold for taxes and a lease of it given pursuant to the sale. These facts the widow was ignorant of, but they were known to the purchaser, who also knew that the widow. could only convey by judicial authority. This, of course, would not be given unless the actual value was concealed from the court. These features were held to distinguish the case from that of Pumpelly v. Phelps, noticed in the preceding section, and it was held that the plaintiff was entitled to recover not the dif- by the contract itself. Case, by his own wrongful act after part per- formance, had put it out of the power of Wolcott to comply with its pro- visions In such case we think that the measure of damages is the dif- ference between the unpaid purchase money and the actual value of the land at the time of the breach. This would place the parties in the con- dition they were in at the time of the breach. Case v. Wolcott, 33 Ind. 5. 5 40 N. Y. 59; Cockcroft v. the N. Y. & H.R. R. Co., 69 N. Y. 201; 24 Barber 100; 43 Barber 469; Conger v Weaver, 20 N. Y. 144; Leggett v. Mutual Life Ins. Co. 53 N. Y. 394; Peter v. McKeon, 4 Den. 546; Bald- win v. Munn, 2 Wend. 399. 364 LAW OF DAMAGES. ference between the contract price and the value of the land, but only so much of the purchase money as had been paid with _ interest.° 426. The Rule Under these Decisions. It may be laid down as a general rule that a party who, under a wrong impression, and without knowledge of the existence of any defect in his title, or of any incumbrance upon his land, and who is inno- cent of any intention to commit fraud, enters into a contract which it subsequently appears he is unable to perform, can only be held liable for nominal damages, besides the amount of the purchase money which has been paid upon the same with interest.’ This rule rests upon a want of knowledge and good faith of the vendor, and so long as these elements appear in the transaction it matters not whether the title is imperfect in itself or is rendered defective by reason of the incumbrance on the land, for where such inctimbrance exists there is a defect of title so that a deed cannot be executed which will eonvey a good title, and the rule applies. 427. The English Authority. The rule laid down by the English courts is in harmony with the one we have been con- sidering, that where the owner of real estate finds unexpectedly difficulties in making out his title, which he cannot overcome, and the opposite party rejects the title and repudiates the contract, it is not unreasonable that he should be entitled to ® Margraf v. Muir, 57 N. Y. 159. " Cockcroft v. N. Y. & H. R. R. Co., 69 N. Y. 201. ' Cockcroft v. N. Y. & H. R. R. Co., 69 N. Y. 201. In case of an agreement to convey land or exchange land, and one of the parties knew at the time that he had no title to the land which he agreed to convey, in an action against him by the other party to recover damages for a failure to convey, the extent of the recovery should be measured by the value of the land to be conveyed to the plaintiff. Plumer v. Higdon, 78 Ill. 222. : REAL ESTATE. 365 no more than the return of the deposit and the expense of in- vestigating the title. 428. Worral.v. Munn. The Court of Appeals in the State of New York in this case, which was a suit brought by a ven- dee against the vendor for refusing to convey according to con- tract a certain tract of land, in commentary on the question of damages said: “The rule declared by this court on the former appeal that the plaintiff was entitled to the interest on the purchase money paid by him as damages for being kept out of possession, was supported by reason and authority. * * * It is supposed, however, by the counsel for the defendant that the additional facts claimed by him to have been shown on the hearing before the referee, viz.: that no profitable use could have been made of the premises for brick making purposes during the retention of the possession by the defendant, and that, in fact, no use was made of them for that purpose by the plaintiff for several years after he obtained possession, and that the premises meanwhile advanced in value, change the legal aspect of the case, and required that the damages for with- holding the possession be limited to the rental value of the land for ordinary use, as the plaintiff lost nothing beyond that of being deprived of possession. I think this view procecds upon a misconception of the privilege upon which the courts ’ of equity adjust the right of the vendor and the vendee, where the vendor retains the possession of the land and refuses to de- liver it according to the contract. If the purchase money has not been paid, the vendee may elect either to pay the interest on the purchase money during the time he has been wrong- fully deprived of the possession and take the rents and profits received, or which might have been received by the vendor * Engle v. Fitch, 3 L. R. 2 B. 314; see Mack v. Patchin, 42 N. Y. 167; Cockcroft v. N. Y. & H. R. R, 69 N. Y. 201; Bain v. Fothergill, 43 L. J. Ez. 243; 10 Barn & Cress 416; Buckly v. Dawson, 4Irish C. L. N. 8. 211.- 366 LAW OF DAMAGES. 4a during the same time, or he may allow the vendee to retain the rents and profits, in which case he will be exempt from the payment of interest. It is not because the rental value of the land is, or is supposed to be, equal to the interest on the purchase money that the right of electionis given. It is often, perhaps, in most cases less, but the enjoyment of the posses- sion of the land, according to the contract, may be more valua- ble to the purchaser, or he may regard it of more value to him, than the amount of rents and profits he might realize from the / use. The possession of the premises by the purchaser is by the contract of sale treated as of equal value to him as the in- terest on the purchase money, and when the vendor wrong- fully refuses to give possession and resists, the performance of the agreement, he ought not to be allowed to reap the benefit of the contract and compel the vendee to pay interest on the purchase money, if it turns out that the interest exceeds the rental value of the land. In thiscase the purchase money was paid some years before the plaintiff was let into possession, but the rule is not changed by that fact. The purchaser is entitled to be allowed interest on the purchase money. The advantage to the vendee from the appreciation in the value of the land was incident to his right as purchaser, and if it had fallen in value the loss must have been borne by him.”* | 429. Hadley +. Baxendale. The rule for the assessment of damages in case of a breach of contract as laid down in this case, is, perhaps, as free from objection as any rule can be laid down in such cases. It is this: ‘ Where two parties have madea con- tract, which one of them has broken, the damage which the other party ought to receive in respect of such breach of con- tract, should be such as may fairly and reascnably be considered either arising naturally, that is according to the usual course 363 .N. Y. 185. REAL ESTATE. 367 of things, from such breach of contract itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the proba- ble result of the breach of it applies.” Thus, when after a part performance by the vendee of a contract for the conveyance of real estate under an agreement that the vendee should pay a certain amount of money per an- num, and on failure was to forfeit the whole land, the vendor, before the vendee had made any defaults in the payment of the stipulated amouut, declared the contract at an end, and pre- vented the vendee from fully complying with the contract. The vendee put such improvements on the land as was con- templated by the contract itself, In an action by him for damages it was held that the measure of damages was the dif- ference between the unpaid purchase money and the actual value of the land at the time of the breach. 430. Hopkins v. Lee. In this case the court said: “The rule is settled in this court that in an action by the vendee for a breach of contract on the part of the vendor for not deliver- ing the article, the measure of damages is the 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 land, as is the case here, have not been improved or built on. In both cases the vendee is entitled to have the thing agreed for at the con- 4 9 Exchequor 341. 5 Case v. Walcott 33 Ind. 5. » ence. 368 LAW OF DAMAGES. tract price and to sell it himself at its increased value. If it be withheld, the owner ought to make good to him the differ- 26 431.' Good and Bad Faith. The distinction made between good and bad faith in the grantor is now almost universally recognized. In the case of Kirkpatrick v. Dunning, the Su- preme Court of the State of Missouri reviewed the authorities bearing upon the question, and held the “general rule to be 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 be- tween the contract and any increased value of the land beyond such price.” They said: “The rule must be reciprocal, that where the property has enhanced in value the purchaser gets the benefit of the enhancement. So, where a depreciation has taken place, he must submit to a corresponding loss. In both cases he obtains the true measure of damages, full compensa- tion for the loss sustained. Where there is no evidence given showing any change in the situation, the consideration paid and interest 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 precisely what they are entitled to, and the basis is predicated on the full and actual loss.” 432. Adamson v. Rose. The Supreme Court of Indiana in °6 Wheat U.S. 109. 758 Mo. 32; see 78 Ill. 222. REAL ESTATE. 369 this case, which was brought by the plaintiff to recover dam- ages on a breach of a title bond to convey a certain tract of land with a steam saw mill situated thereon, the plaintiff averred that the purchase money had long since been paid to the defendant; that at the time he purchased the land he did it with the expressed view of getting the saw mill to be situ- ated upon the land, all of which the defendant well knew; whereas, the saw mill was situated upon land to which the de- fendant had no title. The consideration was paid by the plaintiff in money and the consequence of land and other property to the defendant, which was received by the defen- dant in full satisfaction of the price agreed upon for the land by the parties. The court held that the payment of anything else than money was ‘by a subsequent agreement of the par- ties. The acceptance of the property in accord and satisfaction bound the defendant tu the fulfillment of his contract to the same extent as if payment had been made in money. The measure of damages in such case is the purchase money and interest. 433. Rule in Maine. Ina late case in the State of Maine, which was an action for damages for the breach of an agree- ment to convey land, it was held: 1. That the plaintiff's damages were to be measured by the value of the land at the date of the breach. 2. That the rule was not varied because the defendant, though acting in good faith, was unable to con- vey. 38. That the plaintiff at his election, in case of a total failure to convey, might rescind the contract and recover so much of the consideration as had been paid with interest.’ 434. Exception to the Rule we have been Considering. There is quite a number of decisions that ignore the good or bad faith 130 Ind. 380; see also Blackwell v. Board of Justices, 2 Blackford 1438. ? Doherty v. Doland, 65 Maine, 87. 370 LAW OF DAMAGES. of the vendor, and hold that if he had no title to the land he agreed to convey, and an action is brought against him by the vendee to recover damages for a failure to convey, the extent of the recovery should be measured by the value of the land to be conveyed to the plaintiff. That the covenant requires the conveyance to be made at a future day. If the land rises in value it is the right of the purchaser to receive the conveyance of it in its increased or diminished condition on the day agreed upon in the contract.’ 435. Damages in Case of Failure of the Vendee. The general rule of damages on a failure of the vendee to receive a convey- ance to the property purchased and pay for the same would be full compensation jor all loss sustained by the vendor thereby, which, as « general rule, is the difference between the contract price and the actual value of the land.at the time of the breach, if the property shall have declined in value.’ 436. Damage When a Deed has been Tendered. It may be laid down as a general rule, supported by the weight of authority, that where a grantor has tendered a deed to the grantee, which he has refused, the vendor may recover the price agreed to be paid, with interest. But in order to recover this sum he must keep his tender good. * Plumer v. Regdon, 78 Ill. 222; Hill v. Holbert, 16 Me. 164; Hopkins v. Lee, 6 Wheat 109; Drake v. Baker, 34 N. J. 358; Lawrence v. Chase, 54 Me. 194; Boardman v. Keeler, 21 Vt. 84; Kirkpatrick v. Downing, 58 Mo; 32; Barnham v. Nichols, 3 R. 1. 187; Wellsv. Aberthany, 5 Conn 222. 5 Old Colony Road Co. v. Evans, 6 Gray 25; Laird v. Pim, 7 Mers. & W. 474; Hopkins v. Lee, 1 Curtis U. 8. R. 266;6 Wheat 109; Morgan v. Wood, 33 Ind. 5; Doherty v. Dolan, 65 Maine 87; Pumpelly v. Phelps, 40 N. Y. 759; Paper v. Fravin, 40 Ind. 556. * Field on the law of damages, Sec. 509; Franchot v. Leach, 5 com. 506; Sadon v. Comstock, 21 Wend. 457; Alna v. Plumer, 4 Me. 258; Marshall vy. Harney, 4 Md. 498; 9 Ia. 194; Whiteside v. J ennings, 19 Ala. 784; Goodpasture v. Porter & Courtney, 11 Ia. 161; Goodson v. Nunn, 4 T. R. REAL ESTATE. 371 437. Damages Where the Deed is Tendered Discussed. The rule in case of the sale of personal property is well established that if the purchaser tenders the purchase money and offers to perform the contract under certain circumstances the title to the property will vest in him. The question as to whether the same rule applies in case of the sale of real estate by a ven- dor and a tender of a deed by him to the purchaser is not well set- tled. We are, however, much inclined to the opinion that the rule cannot be made applicable to the sale of real estate, which can only be transferred by deed. The rule is pretty generally settled that in an action against the vendee who contracts for the purchase of real estate at a stipulated price and subsequently refuses to perform his contract, the loss in the bargain consti- tutes the measure of damages, and that is the difference between the price fixed in the contract and the saleable value of the land at the time the contract was to be executed, and it seems to us this should be the rule whether the deed was tendered or not. This is in harmony with the general rule of full compensation for all losses sustained, and leaves the parties in status quo. Thus, the Supreme Court in the State of Massachusetts, after reviewing the authorities, says: “Upon a more full consideration of the question of the measure of damages in an action at law, where the de- fendant has refused to receive the deed tendered him, the court is of opinion that the proper rule of damages in such case is the difterence between the price agreed to be paid for the land and the saleable value of the land at the time the con- tract was broken.’” 438. The Proximate Coneequence of the Breach. It is doubtless 761; Glazebrook v. Woodson, 8 T. R. 366;. Sanburn v.- Chamberlain, 101 Mass. 409. 7 Old Colony R. R. Co. v. Evans, 6 Gray (72 Mass.) 25. 372 LAW OF DAMAGES. true that in all actions for a breach of contract, the loss or in- jury for which damages are sought to be recovered must be a proximate consequence of the breach. A remote or possible loss is not sufficient ground for compensation. There is no measure for those losses which have no direct and necessary connection with the stipulations of the contract or which are dependent upon contingency other than the performance of the contract, and which are, therefore, incapable of being esti- mated. With no certainty can it be said that such losses are attributed to the wrongful act or omission of him who hus vio- lated his engagement. The different rules that we have no- ticed in this chapter have the same object in view, that is to give the injured party all the proximate damages resulting from the breach, and the different methods adopted for the as- sessment of damages are only different means for the accom- plishment of the same object.® 439. The True Rule. After examining the authorities upon the question of the measure of damages in case of a breach of covenant to convey land, we are not fully satisfied with the rule that draws a distinction between good and bad faith. The object of the law is to restore to the injured party what he has lost by the breach of contract by the delinquent party. In such case the damages can be easily estimated by a mathe- matical calculation, and are not left to the discretion of a jury. And in case of a breach the injury to the plaintiff will be just the same whether the defendant acted in good or bad faith in making the contract. The object of the law is to render to each person his just dues, and where one has been damaged by the conduct of another to take from the wrong-doer a sufficient amount of property and give it to the injured party as will place him in as good condition as he was before he received the injury. And this rule should be adhered to whether the * Adams Express Co..v. Egbert, 36 Penn, st. 360. REAL ESTATE. 373 wrong-doer acted in good or bad faith. As we have already said, in discussing the question of exemplary damages, the civil and criminal practice should be kept separate and apart as far as possible. And in the assessment of damages for a breach of civil contract the motives that actuated the delin- quent party in making the breach should not be considered in estimating the damages. It is only where the motives or bad intentions enter intoand form an element in inflicting the inju- ry complained of that they should be considered in estimating the damages. We think, therefore, that the true rule in all such cases is the actual damages sustained, or full compensa- tion for the injury received. This suggestion is, we think, in conflict with the weight of the most recent authorites. 440. A Rescission of the Contract. As we remarked in our comments on a rescission of contract on account of fraud, a party who has been defrauded has one or two remedies. He may tender back the consideration received and rescind the contract or he may retain the consideration and sue for damages. But a purchaser who has given notes for the purchase money and taken possession of the land cannot rescind the agreement and resist the payment of the notes so long as he remains in pos- session, and he must be prompt in making his application for recision after he discovers the fraud, or he will confirm the contract. 441. Lease. The general principle of full compensation for all losses that we have already considered is applicable to a breach of contract of a lease, and we only intend to notice the subject in a brief manner. Thus, in an action to recover damages for a failure on the part of the landlord to comply with the conditions of a lease of a grist mill in failing to keep 1 See chapter on fraud. 874 LAW OF DAMAGES. in repair a mill dam, by reason of which failure the tenant was without the necessary supply of water to do his business, the measure of damages was held to be the difference between the rental value of the mill in the condition that it was in and its value if it had been kept in the condition stipulated by the landlord.? * Wenne v. Kelly, 34 Ia. 339; see post chapter Landlord and Tenant. CHAPTER XXIX. LANDLORD AND TENANT. THe Hiring or Reat Property. Tur LANDLORD NEED NOT RENEW THE LEASE. DAMAGES FOR FAILURE TO MAKE RE- PAIRS. GENERAL RULE IS ACTUAL DAMAGE. HADLEY Vv. BAXENDALE. THE POWER OF THE LANDLORD. AN ACGREE- MENT TO REPAIR. FIxTuREs. THE DAMAGES. WASTE. 442. The Hiring of Real Property. The hiring of real property is usually effected by means of a lease which is a con- tract, whereby the landlord or owner of the land agrees with the tenant that he (the tenant) may occupy his premises for a certain consideration. The agreement is termed a lease. The leasing of land carries with it all proper appurtenances and accompaniments which are needed for the proper use and enjoyment of the premises.* 443, The Liability of the Landlord. “There is an implied. covenant on the part of the landlord to put the tenant into * Morris v. Saunt, 24 Taunt, 31; Rogstray v. Lucas, 5 B. & L. 830; Hard- ing v. Wilson, 3 B. & C. 96. 376 LAW OF DAMAGES. possession, and that he shall quietly enjoy.” ‘Anda covenant for quiet enjoyment is implied in every mutual contract for leasing and demising of land by whatever form of words the agreement is made.® But there is no implied warranty on his part that the premises shall be reasonably fit for habitation, occupation or cultivation.’ He is under no legal obligation to repair unless there is a stipulation in the lease that he shall do so.' 443. The Landlord is Under no Obligations to Renew the Lease. He is not bound to renew without an expressed covenant, and such covenants are not favored if they tend to perpetuity, but where they are definite and reasonable the law will sustain them.’ 444, The Measure of Damages. The lessee in case he has been prevented by a breach from entering the premises under his lease, is entitled to recover from the lessor the value of the lease. If he has entered and been evicted, he may recover the value of the lease for the unexpired term.’ i 51 Parson on contract, 422. § Mack v. Patchin, 42 N. Y. 167; 1 Am. R. 506; Smith, Landlord and Tenant, 206; Taylor, Landlord and Tenant, Sec. 302; Mayor v. Maline, 3 Kernan 160; 11 Page 566; Tone v. Brorce, 8 N. Y. 307: Vernon vy. Smith, 15 N. Y. 328; Groves v. Burdone, 26 N. Y. 498; Sedgwick on measure of damages, 185° "Estep v. Estep, 23 Ind. 114; Hart v. Windsor, 12 Mees. & Wels. 68. " Bedall v, Reed, 33 Ind. 529; Erie Canal v. Brett, 25 Ind. 409; Womack v. McQuay, 28 Ind. 103; Kellenberger v. Forman, 25 Ind. 409; 1 Parson on contract, 428; Arden y. Pullen, 10 M. & W. 321; Hart v. Windsor, 12 Ia. 68; Izon v. Gorton, 5 Bing. N. C. 501; Moffat v. Smith, 4 Comst. 126. * Furmical v. Crum, 3 Ark. 883; Cook v. Booth, Cowp. 819; Williams v. Williams, 16 Vt. 72-84; Sadlie v. Biggs, 27 E. L. & E. 74; 1 Parson on con- tract, p. 422. 1 Mack v. Patchin, 42 N. Y. 167; Lock v. Fiezer, 14 W. R. 403; 15 L. J. N.S. 161; 19C. B. N. 96; 34 L. J J.C. P. N. 201. LANDLORD AND TENANT. 377 445. Damages for Failure to Make Repairs. In case of a breach of a covenant to make repairs, the Court of Appeals of the State of New York in a recent case where the defendant leased the plaintiff a hotel and certain adjoining premises in the city of New York, covenanting to tear down the old build- ing on the adjoining premises and erect in place of it a new one to form a part of the hotel, and also covenanting to put the plaintiff in possession of it by a specified time.” The plaintiff was then occupying the hotel and building on a portion of the adjoining premises under a former lease. He removed his fur- niture and stored it while the new building was in process of construction. In an action brought to recover damages for the defendant’s breach of agreement to complete the new building within the specified time, the court held that the plaintiff could recover the value of the use for hotel purposes of the rooms in the new building during the time he was deprived of the use of them by the defendant’s default, and as to such of them as the plaintiff had furniture for he was entitled to the value of their use as furnished rooms. The court also held that the plaintiff could have made the repairs, in case the de- fendant failed to do so, and charged the expense to the defen- dant. That the plaintiff was entitled to recover for the use of all or any part of the premises made untenable by the defen- dant’s neglect.’ 446. Damages for Failing to Keep a Gatein Repair. In the case of Beach v. Crain, the plaintiff leased of the defendant a certain strip of grotind for a right of way, and agreed to erect a gate at the terminus. The defendant was to keep it in repair. The tenant erected the gate, but the landlord failed to keep it in repair. The tenant brought suit for to recover damages on ” Hexter v. Knox, 63 N. Y. 561; Mack v. Patchin, 42 N. Y. 167; Tuell v. Granger, 4 Seld. 115; Tracy v- A. B. Exchange Co., 3 Seld. 475; Myers v. Burns, 35 N. Y. 272; Myers v. Burns, 33 Barber 401. 378 LAW OF DAMAGES, | the breach. The court held that the covenant was a con- tinuous one, and that the fact that the plaintiff had recovered for a former: breach was no bar to his recover in that case. It also held that the measure of damages was not the costs of making the repairs, but the actual injury that the plaintiff had sustained by the breach of the covenant.’ 447. In Pennsylvania where the defendant let a frame building weatherboarded in front and behind, but the sides were stud partition lathed and plastered. Along side of it was a brick building built entirely on another lot, owned by an- other person, which, while it stood, fully protected the house occupied by the plaintiff. The owner of the brick building removed it, as he had a perfect right to do and the defendant could not have prevented him. The original frame partition of the house occupied by the plaintiff was an insufficient pro- tection from the weather, in consequence of which the plain- tiff’s goods and chattles suffered injury. The court held that there was no breach of the covenant in the lease for quiet en- joyment, and that the plaintiff could not recover.‘ 448, Where a tenant occupies the lower portion ofa house and another tenant the upper portion, and the roof of the house is destroyed by fire and the landlord fails to make the necessary repairs, or to re-roof the house by reason of which the tenants’ property in the lower portion is injured, there being no cov- enant in the lease that the landlord shall repair, the tenant can n@t recover damages.° 32N. Y. 86. * Moore v. Weber, 71 Pa. st. R. 429; 10 Am. Report 708. In an action by the plaintiff to recover damages for overflowing his land, it appeared that the defendant had for many years overflowed the plaintiffs land, paying him therefor. The court held that the relation of landlord and tenant was created, and that there could be no recovery beyond the amount of yearly rent without notice. Morrill v. Mackman 24 Mich. 279. ; 5 Doupe v. Cenin, 45 N. Y. 119. LANDLORD AND TENANT. 3879 449. But in an action by the tenant for damages on ac- count of eviction by a landlord of his tenant from the leased premises before the expiration of the leases, the jury should in assessing damages take into consideration the imprdveme.its the tenant has made upon the premises before expulsion, which render them more productive.’ The plaintiff can re- cover on such cases all damages arising ditectly from the breach, but not remote or special damages, such as expense for moving to a more remote farm.’ But after the consummation of the contract to lease the premises the landlord refuse to let the tenant into possession, and the tenant brings suit to re- cover damages for being kept out of possession, he can recover only sueh a sum as will make him whole, which is generally the value of the premises for the term, with the rent reserved, including such damages as arise naturally and directly out of the breach. He may, however, recover special damages caused by the breach of the contract, as loss of employment and ex- pense incurred in preparation for a removal to the premises.” 450. In California the plaintiff leased of the defendant a water lot in San Francisco. The lease contained the usual clause in regard to time and payment of rent, etc., in the cus- tomary form, except that it contained a special covenant in the following words: ‘“ And the said party of the first part doth hereby covenant and agree to and with the party of the second part that he will well and truly erect or cause to be erected upon said premises within two months from the date of this lease a building according to certain plans and specifications. This day agreed to and signed by the said parties. And the said party of the second part doth hereby covengnt and agree for himself, his executors, administrators and assigns that he - 5 Ricketts v. Lostetter, 19 Ind. 125. 6 Williams v. Obphian, 3 Ind. 271; Adair v. Bagley, 20 Iowa 238. 1 Adair v. Bagley, 20 Iowa 238; Sedgwick on the measure of dam., 227. 380 LAW OF DAMAGES. and they shall well and truly keep the said building so to be erected as aforesaid in good repair during the said term hereby granted.” The defendant erected the building and the plain- tiff took possession and paid the rent to June following. About that time the building was destroyed by fire. The court held in an action by the lessee to recover damages from the lessor for failing to rebuild, that he could not recover; that the lessor was not bound to erect a new building on the premises, and that the fact that the lessor failed to rebuild did not relieve the lessee from his obligation to pay rent.’ In an action brought in one of the counties in the State of Wisconsin by a lessee against a lessor for a breach of a covenant to repair a saw mill, the Supreme Court held that the plaintiff could recover dam- ages for the time that he was unable to use the mill on that account and all necessary expense incurred in hauling his logs, then in his yard, to another mill to be sawed, which might have been sawed by them during the term had the mill been in repair.’ 3 451. Where a landlord leased his mill to a tenant on the condition that the lessee should pay him two-thirds of the gross earnings of the mill and to bear all expenses of running the same, he was ousted by the lessor before the expiration of the term. The lessee brought suit for damages occasioned by the breach. Held, that he could recover one-third of the gross earnings of the mill during the landlord’s occupation of it, minus the expense of running.’ 1 Connell v. Lumby, 39 Cal. 151; 2 Am. R. 480. * Hinkly v. Beckwith, 13 Wis. 31; same, 17 Wis. 413. * Holmes v. Davis, 19 N. Y. 488. The lessor of a hotel covenanted that an adjoining building owned by him should not be used for hotel or similar purposes. In an action for a breach of covenant, the measure of damages is the plaintift’s loss of profits on the customers who left him in consequence of the breach. L. Am. 239; Smith v. Theelen, 17. In an action for a breach of a contract for letting, the measure of dam- LANDLORD AND TENANT. 381 -452. The General Rule. It may be laid down as a general rule, to which there are but few exceptions, that the lessee -in case of eviction should recover the actual damages sustained thereby.’ 453. In the State of Illinois an action was brought by a tenant against his landlord for damages resulting to the former for false and fraudulent representation made by the landlord that he was the owner of certain premises. The tenant relying on such representation leased the same from the defendant and erected a shop and machinery on them. He was evicted under a paramount title and was compelled to remove his building and machinery from the premises. Held, that the plaintiff could recover the necessary expense of removing his shop and machinery to another lot, and the rent of another lot for the term, simularly situated and of equal rental value, of the one from which the plaintiff had been evicted. 454, The law is well settled that where a person under- takes gratuitously to perform work for another that requires the exercise of care and skill, that he will be held responsible in damages for all injuries arising for a failure to exercise or- ages is the difference between the yearly value and the rent received. Dean v. Roseler; 1 Hilt. (N. Y.) 5 Field on damages, 423. In Missouri, where the landlord withheld possession from the tenant, who had been a non-resident of the State, but had removed to that State for the purpose of occupying the premises, it was held that the measure of damages would be the difference in the rent, as provided for in the lease and the rental value of the premises. Hughes v. Hood, 50 Mo. 350 In Pennsylvania the Supreme Court held, in an action for a breach of contract to lease to the plaintiff a dye shop and furnish him with work, he having put in fixtures, that the measure of damages was the value of the bargain. Guased v. Turner, 71 Pa. st. 56. 7 Wilson v. Raybald, 56 Ill. 417. 382 LAW OF DAMAGES. dinary care and skill. Hence, where a landlord undertook to repair an outhouse for his tenant without consideration and performed the work in so negligent and unskillful manner that the plaintiff's wife was injured by the floor giving away, the defendant was held liable in damages.’ 455. The Rule inthe Case of Hadley v. Baxendale Applies. Thé rule in this case that we have so often referred to in this work applies in case of a breach of covenant in a lease, which is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to re- ‘ceive in respect to such breach of the contract should be either such as may fairly and reasonably be considered as aris- ing naturally, that is according to the usual course of things, from such breach o' contract itself or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it.* 456. The Power of the Landlord. At the expiration of the lease the landlord may peaceably enter upon the premises and turn the tenant out, and his intentions in entering the prem- ises will make no difference, for if he enters peaceably with a full determination to evict th» tenant and gains an entrance without the exercise of such acts of violence as will subject him to a criminal prosecution the law will justify his conduct. After he gets possession he can use the same force to expel the tenant that he could to expel one who had entered his dwelling ? Benden v. Manning, 2 N. H. 289; Thorne v. Dias, 4 Johns 84; Else v. Gatward, 5 J. R. 148; Shulls v Blackburn, 1 H. Pl. 158; Bafe v. West, 22 E. & L 506; Gill v. Middleton, 105 Mass 477. ? Gill v. Middleton, 105 Mass. 477. * Johnson v. Arnold, 2 Cush. 46; Denning v Dwight, 17 Wend. 71; Dean v. White, 5 Ia. 266; Adair v. Bagley, 20 Ia. 238; Field on the law of dam., 423. , LANDLORD AND TENANT. 883 house without authority and refuses to retire when requested. He may, therefore, retain the possession of his premises by force, provided no more is employed than becomes :1ecessary to repel the resistance interposed by the tenant.’ 457. The General Liability of the Tenant. The tenant must ‘take possession of the leasehold property at the stipulated time and perform his part of the contract. He must pay his rent at the time agreed upon between him and his landlord, and if there is no time specified when he is to pay his rent it must be paid according to the general custom of the country.‘ And where no place is designated for the payment of rent, the law presumes that it was to be paid on the premises. And if there is a provision in the lease that if the tenant fails to pay rent he shall forfeit the possession of the premises and the landlord may re-enter and oust the tenant, and the place of payment is not designated, the tenant may defeat the land- lord’s right to re-enter by showing a readiness to pay on the premises.° 458. Dawson v. Coffman and others, 28 Ind. 220; McGregor v. Brown, 10 N.Y. 117. * Guinn v. McCatmont, 4 Watts 460; 1 Washburne on Real Property, 109. " Field on damages, 605-606; Ferguson v. Stafford and others, 33 Ind. 162; McCaslin et al. v. the State ex rel., Auditor of State, 44 Ind. 151. LANDLORD AND TENANT. 387 assess nominal damages.’ “In an action in the nature of wastes 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.’” 111 Met. 304; 28 Ind. 220; Field on dam., 606. ? Harder v. Harder, 26 Barber 409. CHAPTER XXX. PROMISSORY NOTES. Promissory Notes AND BiLts or Excuanes. As A GENERAL RULE THE DAMAGE IN SUIT ON NOTE 1S THE CONSIDERATION MONEY AND LEGAL INTEREST. QUESTION AS TO THE PAYMENT OF A NOTE IN DEPRECIATED CURRENCY DISCUSSED. THE ENG- LISH RULE. Tur AMERICAN RULE. THE RATE OF INTEREST FIXED IN THE NOTE WILL BE‘ALLOWED IF NOT FORBIDDEN BY LAW. WHERE THERE IS NO RATE OF INTEREST STIPULATED THE HOLDER MAY RECOVER LEGAL INTEREST AFTER MATURITY. IF NO RATE I8s FIXED BY THE CONTRACT THEN THE HOLDER MAY RECOVER THE RATE FIXED BY THE LAW OF THE PLACE WHERE THE CONTRACT IS PAYABLE. INDORSEMENT IN ONE STATE SENT TO ANOTHER, BY WHAT LAW GOVERNED. NOTE Is NOT EXECUTED UNTIL DELIVERED. PLACE OF PAYMENT WILL TO SOME EXTENT FIX THE DAMAGES. 465. Full Compensation. As we have frequently remarked, the general rule of damages on the breach of a contract, as well as in tort, is full compensation for the loss sustained or wrong done. And in case of a suit on a contract for the non-payment of money, the rule established for the assessment of damages by the civil as well as the common law is recognized. Causa proxima non remota spectature is adhered to more strictly than in a case of tort. The rule laid down in the case of Hadley v. PROMISSORY NOTES. 389 Baxendale, that we have so frequently referred to in this work applies, and the plaintiff in an action for the recovery of money due on contract can only recover such damages as may fairly and reasonably be considered as “either arising natural- ly, that is according to the usual course of things, from such breach of contract itself or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it.” Remote’ or speculative damages cannot be recovered. This rule is adopted for the reason that it would be impossible prac- tically to trace out the remote consequences arising from a failure to pay money at a stipulated time. Experience shows that the most fearful consequences sometimes follow from the failure of an obligor to pay money at the time specified. The payee frequently’ suffers pecuniary embarrassment by loss of valuable and profitable contracts and undertakings, loss of business, reputation, comfort, peace of mind and happiness. “ And, moreover, it may cause suffering, sickness, insanity and destroy the social standing not only of himself but his family.” It would be impossible to investigate such results with any- thing like accuracy and fix a pecuniary value upon them. The law, therefore, has limited the plaintifi’s damages to the prin- cipal, with legal interest, which is looked upon as the proxi- mate consequence of the breach of the contract. Mr. Pothier, in the discussion of this question, says: “As the different damages which may result from a failure to perform this kind of an obligation vary infinitely, and it is difficult to foresee as to excuse them, it has been found necessary to regulate them by a special penalty and_fix them at a precise sum.” 466. The Law Permits the Recovery of Interest. For several generations men have been both in this country and in Eng- ' ’ Pothier on obligations, part 1, ch. 3, 170. 390 LAW OF DAMAGES. land not only permitted to contract: for a certain rate of in- terest and enforce the agreement, but, under certain circum- stances, the law makes the bargain for them, and it may now be considered a well settled rule that where it is certain that money ought to have been paid long since, it will be conclu- sively presumed that the debtor promised to pay legal interest.’ 467. Interest on Promissory Notes. As a general rule the damages that can be recovered in a suit on a promissory note is the principal and interest, provided it does not exceed the rate allowed by the law of the state or nation where payable. And where a note contains no stipulation for the payment of interest, the holder can generally recover the legal rate from the time of the maturity of the note until it is paid.® 468. Legal Tender. Questions of the most complicated. character have frequently arisen in the courts of England and this country in regard to the payment of promissory notes in a depreciated currency, where it happened that the shrinkage in value of the coin or currency occurred after the execution of the note and before its maturity. The law seems to be well settled at this time in England that the holder is bound to re- ceive the money in payment of his note that the government has seen proper to make a legal tender.’ But in this country where the rights of the people are hedged in by constitutional provision and the passages of laws impairing the obligation of contract prohibited, the question becomes more difficult and complicated. But our courts have with an unprecedent energy ? Selleck v. French, 1 Conn. 32; Reed v. Resselaer Glass Factory, 3 Com 393; 5 Ia. 587; Doge v. Perkins, 9 Pick. 368; Kennedy v. Barnell, 7. Rich. 124. ® Field on the law of dam., 193; Edwards on bills and notes, 708 et esq; U.S Bank v. Chapin, 9 Wend. 471; 19 Johns 246; Owsby v. Greenwood, 18 Me. 429. "Sedgwick on measure of dam., 282-284, and notes. PROMISSORY NOTES. 391 examined the question and settled in a definite and satisfactory manner the authority of the general government to coin money to issue bills of credit and make them a legal tender. One of the most important legal questions that perhaps was ever pre- sented for the consideration of a judicial tribunal, involving the payment of money, arose under the act of Congress of Feb- ruary 25, 1862, and other similar acts, making the notes of the government a legal tender for all debts, both public and private, (with a few exceptions). The question arose in the case of Knox vs. Lee, and was discussed with masterly ability and forensic learning by the Supreme Court of the United States. The questions discussed in that case are of such magnitude and importance to the American people, both in a financial sense and in the way of settling the powers of the government under the constitution, that we will give it in full in our notes.! 'The controlling questions in this case are the following: Are the acts of Congress known as the legal tender acts constitutional, when ap- plied to contracts made before their passage, and, second, are they valid as applied to debts contracted since their enactments. The question has been elaborately argued, and they have received from this court that consideration which their great importance demands. It would be dif- ficult to. overestimate the consequences that must follow our decision. They will affect the entire business of the country, and take hold of the possible continued existence of the government. If it be held by this court that Congress has no constitutional power, under any circum- stances or in any emergency, to make treasury notes a legal tender for the payment of all debts (a power confessedly possessed by every inde- pendent sovereignty other than the United States), the government is without those means of self-preservation which, all must admit, may, in certain contingencies, become indispensable, even if they were not when the acts of Congress now called in question were enacted It is also clear that if we hold the acts invalid as applicable to debts incurred, or transactions which have taken place since their enactment, our decision must cause throughout the country great business derangement, wide spread distress, and the rankest injustice. The debts which have been contracted since February, 25, 1862, constitute, doubtless, by far the 392 LAW OF DAMAGES. 469. The Rate Fixed by the Contract Governs as a General Rule. The rate of interest fixed by ‘the note or contract will control if it does not exceed the rate allowed by the law of the place where the contract was made or is payable.’ 1 Lines v. Mack, 19 Ind. 223. greatest portion of the existing indebtedness of the country. They have been contracted in view of the acts of Congress declaring treasury notes a legal tender, and in reliance upon that declaration men have bought and sold, borrowed and lent, and assumed every variety of obligations, contemplating that payment might be made with such notes. Indeed, legal tender treasury notes have become the universal measure of values. If now by our decision it be established that these debts and obligations can be discharged only by gold coin; if, contrary to the expectation of all parties to these contracts, legal tender notes are rendered unavaila- ble, the government has become an instrument of the grossest injustice. All debtors are loaded with an obligation it was never contemplated they should assume; a large percentage is added to every debt, and such must become the demand for gold to satisfy contracts, that ruinous sacri- fices, general distress and bankruptcy may be expected. These conse- quences are too obvious to admit of question. And there is no well— founded distinction to be made between the constitutional validity of an act of Congress declaring treasury notes a legal tender for the payment of debts contracted after. its passage and that of an act making them a legal tender for the discharge of all debts, as well those incurred be- fore, as those made after its enactment. There may bea difference in the effects produced by the acts, and in the hardship. of their operation, but in both cases the fundamental question, that which tests the validity of the legislation, is, can Congress constitutionally give to treasury notes the character and qualities of money? Can such notes he constituted a legitimate circulating medium, having a defined legal value? If they can, then such notes must be available to fulfill all contracts (not ex- pressly excepted) solvable in money, without reference to the time when the contracts were made. Hence, it is not strange that those who hold the legal tender acts unconstitutional when applied to contracts made before February, 1862, find themselves compelled also to hold that the acts are invalid as to debts created after that time, and to hold that both classes of debts alike can be discharged only by gold and silver coin. PROMISSORY NOTES. 393 470. The General Rule. And it may be laid down as a general rule that where the note or contract contains no stipu- lations for the payment of interest, still the holder may recover legal interest from and after the maturity of the note or con- - tract.? 2 Edwards on bills and notes, 708; 19 John 246. The consequences of which we have spoken, serious as they are, must be accepted, if there is a clear incompatibility between the constitution and the legal tender acts. But we are unwilling to precipitate them upon the country unless such an incompatibility plainly appears. A decent respect for a co-ordinate branch of the government demands that the judiciary should presume, until the contrary is clearly shown, that there has been no transgression of power by Congress—all the members of which act under the obligations of an oath of fidelity to the constitu- tion. Such has always been the rule. In Commonwealth vs. Smith, the language of the court was: “It must be remembered that for weighty reasons, it has been assumed as a principle, in construing constitutions, by the Supreme Court of the United States, by this court, and by every other court of reputation in the United States, that an act of the legisla- ture is not to be declared void unless the violation of the constitution is so manifest as to leave no room for reasonable doubt ;” and in Fletcher vs. Peck, Chief Justice Marshall said: ‘“It is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers and its acts to be considered void. The opposi- ‘tion between the constitution and the law should be such that the Judge feels a clear and strong conviction of their incompatibility with each other.” Itis incumbent, therefore, upon those who affirm the unconsti- tutionality of an act of Congress to show clearly that it is in violation of the provisions of the constitution It is not sufficient for them that they succeed in raising a doubt. Nor can it be questioned that, when investi- gating the nature and extent of the powers conferred by the constitution upon Congress, it is indispensible to keep in view the objects for which those powers were granted. This is a universal rule for construction ap- plied alike to statutes, wills, contracts and constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose and so as to subserve it. In no other way can the intent of the framers of the instrument be 394 LAW OF DAMAGES. 471. Rate Fixed by Law will Govern in the Absence of Special Agreement. Where the rate of interest is not specified in the contract, the holder will be allowed the rate fixed by the law where the contract is made payable. And if no place for pay- ment is specified in the contract the presumption will be that it is payable in the State where it was made and interest will be computed at the rate allowed by the law of that State.’ 3 Sweet v Dodge, 48. M. & M. 44; Edwards on bills and notes, 714. discovered. And there are more urgent reasons for looking to the ulti- mate purpose in examining the powers conferred by a constitution, than there are in construing a statute, a will ora contract. We do not expect - to find in a constitution minute details. It is necessarily brief and com- prehensive. It prescribes outlines, leaving the filling up to be deduced from the outlines. In Martin vs. Hunter, it was said: ‘‘The constitu- tion unavoidably deals in general language. It did not suit the purpose of the people in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution.” And with singular clearness was it said by Chief Justice Marshall, in McCulloch v. The State of Maryland: ‘A constitution to contain an acurate detail of all the subdivisions of which its great powers will admit, and of all the means by which it may be carried into execution, would partake of the prolixity of a political code, and would scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients “which compose those objects be deducted from the nature of the objects themselves.” If these are correct principles, if they are proper views of the manner in which the constitution is to be understood, the powers conferred upon Congress must be regarded as related to each other, and all means fora common end. Each is but part of a system, a constituent of one whole. No single power is the ultimate end for which the consti- tution was adopted. It may, in a very proper sense, be treated as a means for the accomplishment of a subordinate object, but that object is itself a means designed for an ulterior purpose Thus the power to levy and collect taxes, to coin money and regulate its value, to raise and sup- port armies, orto provide for and maintain a navy, are instruments of PROMISSORY NOTES. 395 472. Note is Assigned in One State and is Sent to an Agent the Rate of Delivery Governs. Where a note is signed and indorsed in one State and is sent to the agent of the maker to be de- livered to the payee in another, the rate of interest at the place of delivery will be allowed and the contract of indorsement will be governed by the law of the same place. The place of de- livery is considered the place where the note was executed.! * Cook v. Litchfield, 5 Sand. 330; Hyde v. Goodman, 3 Conn. 266. the paramount object, which was to establish a government, sovereign within its sphere, with capability of self preservation, thereby forming a union more perfect than that which existed under the old confederacy. The same may be asserted also of all the non-enumerated powers in- cluded in the authority expressly given, ‘‘to make all laws which shall be necessary and proper for carrying into execution the specified powers. vested in Congress, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof’’ It certainly was intended to confer upon the government the power of self-preservation. Said Chief Justice Marshall, in Cohens vs. the Bank of Virginia: ‘America has chosen to be in many respects and to many purposes a nation, and for all these purposes her government is complete; for all these objects itis supreme. It can then in effecting these objects legitimately, control all individuals or governments within the American territory.” He added in the same case:° ‘A constitution is framed for ages to come, and is designed to approach immortality as near as mortality can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen, indeed, if they have not provided it as far as its nature will permit with the means of self-preservation from the perils it is sure to encounter.” s That would appear, then, to be a most unreasonable con- struction of the constitution which denies to the government created by it the right to employ freely every means not prohibited necessary for its preservation, and for the fulfillment of its acknowledged duties. Such a right, we hold, was given by the last clause of the eighth section of its first article. The means or instrumentalities referred to in that clause, and authorized, are not enumerated ox defined. In the nature of things enumeration and specification were impossible. But they were left to the discretion of Congress, subject only to the restriction that they be 396 LAW OF DAMAGES. 473. Note Payable in One State is Passed into Another. Where a note is made in one State and is passed into another, or when the payor of a note executes it in one State and before it is due or collected, removes and settles in another, and suil is brought in the court of the State in which he resides, the rate of in- terest in the State where the note was made will be allowed in assessing damages, notwithstanding the fact that it may ex- ceed the rate ‘allowed by the law of the State where the suit is brought.® 5 Lines v. Mack, 19 Ind. 223, — not prohibited and be necessary and proper for carrying into execution the enumerated powers given to Congress, and all other powers vested in the government of the United States or in any department or officer thereof. And here it is to be observed it is not indispensible to the existence of any power claimed for the Federal government that it can be found specified in the words of the constitution, or clearly and directly tracea- ble to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any num- ber of them and infer from them all that the power claimed has been conferred. Such a treatment of the constitution is recognized by its own provisions. This is well illustrated in its language respecting the writ of habeas corpus. The power to suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particularized grants of power, yet it is provided that the privileges of the writ shall not be suspended except in certain defined contingencies. This is no express grant of power. It isa restriction. But it shows irresistibly that some- where in the constitution, power to suspend the privileges of the writ was granted either by some one or more of the specifications of power, or by them all combined. And that important powers were understood by the people who adopted the constitution to have been created by it, powers not enumerated and not included incidentally in any one of those enumerated, is shown by the amendments. The first ten of these were suggested in the conventions of the States and proposed at the first session of the first Congress before any complaint was made of a disposi- PROMISSORY NOTES.. 397 474, General Rule. From these authorities it will be per- ceived that the damages that can be recovered in a suit on a promissory note will depend to a very great extent on the place of payment. Chancellor Kent, in commenting on the subject, says: “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 be the case though the loan be secured by mortgage on land in another State, unless there be circumstances to show that the parties had in view the law of the latter place, in respect to interest. When that is the case the rate of interest at the place of payment is to govern.’* 5 2 Kentcom., 460; see Story on conflict of law, sec. 305. tion to assume doubtful powers. The preamble to the resolution sub- mitting them for adoption recited that the “conventions of a number of the States had, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.” This was the origin of the amendments, and they are significant. They tend plainly to show that, in the judgment of those who adopted the constitu- tion, there were powers created by it neither expressly specified nor de- ducible from any one specified power, or auxiliary to it alone, but which grew out of the aggregate powers conferred upon the government, or out of the sovereignty institutzd. Most of these amendments are denials of power which have not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other -powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof or abridging the freedom of speech or of the press. And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given nor auxiliary to any single enumerated powers. Powers thus exercised are what are called by Judge Story, in his Commentaries on the Constitution. result- ing powers, arising from the aggregate powers of the government. He instances the right to sue and make contracts. Many others might be given. The oath required by law from officers of the government is one. 398 LAW OF DAMAGES. 475. The General Principle. The general principle in rela- - tion to contracts made in one place to be executed in another, is well settled. They are to be governed by the law of the place of performance, and if the interest allowed by the place of performance is higher than that permitted at the place of the contract, the parties may stipulate for the higher interest without incurring the penalty of usury.’ 476. Rule Where the Rate Specified in the Note is Forbidden by - Law. But where the rate of interest specified in a note is for- bidden by the laws of both the States where it is made and to be executed, it cannot be recovered.” ® Andrews vy. Pond, 15 Curtis U. S, 42; 13 Peter 65. 7 Andrews v. Pond, supra. So is building a Capitol or a Presidential mansion, and so also is the penal code. This last is worthy of brief notice. Congress is expressly authorized “to provide for the punishment of counterfeiting the securi- - ties and current coin of the United States, and to define and punish pir- acies and felonies committed on the high seas and ‘offenses against the laws of nations.” It is also empowered to declare the punishment of treason, and provision is made for impeachments. This isthe extent of power to punish crime expressly conferred. It might be argued that the expression of these limited powers implies an exclusion of all other sub- jects of criminal legislation. Such is the argument in the present cases. It is said because Congress is authorized to coin money and regulate its value, it cannot declare anything other than gold and silver to be money or make it a legal tender, yet Congress by the act of April 30, 1790, enti- tled, “An act more effectually to provide for the punishment of certain crimes against the United States,” and the supplementary act of March 3, 1825, defined and provided for the punishment of a large class of crimes . other than those mentioned in the constitution, and some of the punish- ments prescribed are manifestly not in aid of any single substantive power. No one doubts that this was rightfully done, and the power thus exercised has been affirmed by this court in United States v. Marigold, 9 Howard 560. This case shows that a power may exist as an aid to the execution of an express power or an aggregate of such powers, though PROMISSORY NOTES. 399 477. Two Kinds of Money. Under the laws of the United States we now have two kinds of money made by the law ex- actly equivalent for the purpose of paying ordinary debts and of about equal value, but this has not been so for any length of time. During the existence of our late war and until the com- mencement of the year 1879, the legal tender notes were depre- ciated in value. And the courts of the different States were frequently perplexed with questions as to the constitutionality of the legal tender acts. It was contended by quite a number there is another express power given relating to the same subject, but less extensive. Another illustration of this may be found in connection with the provisions respecting a census. The constitution orders an enumeration of free persons in the different States every ten years.' The direction extends no further, yet Congress has repeatedly directed an enumeration not only of free persons in the States, but of free persons in the Territories, and not only an enumeration of persons but the collec- tion of statistics respecting age, sex and production. Who questions the power to do this? , Indeed, the whole history of the government and of Congressional leg- islation has exhibited the use of a very wide discretion, even in times of peace and in the absence of any trying emergency, in the selection of the necessary and proper means to carry into effect the great objects for which the government was framed, and this discretion has generally been unquestioned, or, if questioned, sanctioned by this court. This is true not only when an attempt has been made to execute a single power specifically given, but equally true when the means adopted have been appropriate to the execution not of a single authority, but of all the powers created by the constitution. Under the power to establish post- offices and post-roads, Congress has provided for carrying the mails, _ punishing theft of letters and mail robberies, and even for transporting the mails to foreign countries. Under the power to regulate commerce, provision has been made by law for the improvement of harbors, the establishment of observatories, the erection of lighthouses, breakwaters and buoys, the registry, enrollment and construction of ships, and a code has been enacted for the government of seamen. Under the same power and other powers over the revenue and the currency of the country, for the convenience of the treasury and internal commerce, a corporation 400 LAW OF DAMAGES. of persons who were holders of great wealth and had large sums of money at interest, that Congress possessed no power under the constitution to make the promissory notes of the govern- ment a legal tender for any purpose; that the constitution no- where granted such power to Congress in expressed terms, and that it was not properly incidented to any other power that known as the United States Bank was early created. To its capital the government subscribed one-fifth of its stock. But the corporation was a private one, doing business for its own profit. Its incorporation was a constitutional exercise of Congressional power for no other reason than that it was deemed to be a convenient instrument or means of accom- plishing one or more of the ends for which the government was estab- lished, or, in the language of the first article already quoted, ‘‘necessary and proper” for carrying into execution some or all the powers vested in the government. Clearly this necessity. if any existed, was not a direct and obvious one, yet this court in McCulloch vs. Maryland (4 Wheaton 416) unanimously ruled that in authorizing the bank, Congress had not transcended its powers. So debts due to the United States have been declared by acts of Congress entitled to priority of payment over debts due to other creditors, and this court has held such acts warranted by the constitution, (Fisher vs. Bright, 2 Cranch 358 ) This is enough to show how, from the earliest period of our existence as a nation, the powers conferred by the constitution have been construed by Congress and by this court wherever such action by Congress has been called in question. Happily the true meaning of the clause author- izing the enactment of all laws necessary and proper for the carrying into execution the express powers conferred upon Congress and.all other powers vested in the government of the United States, or in any of its departments or officers, has long since been settled In Fisher vs. Bright (2 Cranch 358), this court, speaking by Chief Justice Marshall, said that in construing it it would be incorrect and would produce end- less difficulties if the opinion should be maintained that no law was authorized which was not indispensibly necessary to give effect to a spe- cific power. Where various systems might be adopted for that purpose, it might be said with respect to each that it was not necessary, because the end might be obtained by other means. “Congress,” said this court, “must possess the choice of means, and must be empowered to use any PROMISSORY NOTES.. 401 was directly granted. They contended that the power author- izing Congress to borrow and coin money and to regulate the value thereof, did not carry with it by implication the author- ity to make the notes of the government a legal tender in pay- ment of debts. The almost unanimous opinions of the State courts were that Congress possessed the power under the con- stitution to issue the legal tender notes, commonly called greenbacks, and make them lawful money and a legal tender for all debts. Those contracted before, as well as those con- tracted after the acts authorizing their issue took effect, and that contracts made payable in gold and silver coin could be satisfied by payment of legal tender notes.’ 2'Troutman v. Gouring, 16 Iowa 415. means which are,\in fact, conducive to the exercise of a power granted by the constitution. The government isto pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make re~ mittances by bills or otherwise, and to take those precautions which will render the transaction safe.” It was in this case, as we have already re- marked, that a law giving priority to debts due to the United States was ruled to be constitutional, for the reason that it appeared to Congress to be an eligible means to enable the government to pay the debts of the Union. It was, however, in McCulloch vs. Maryland that the fullest considera- tion was given to this clause of the constitution granting auxiliary powers, and a construction adopted that ‘has ever since been accepted as determining its true meaning. We shall not now go over the grounds there trodden. It is familiar to the legal profession, and, indeed, to the whole country. Suffice to say, in that case it was finally settled that in the gift by the constitution to Congress of authority to enact laws ‘‘neces- sary and proper” for the execution of all the powers created by it, the necessity spoken of is not to be understood as an absolute one. On the contrary, this court then held that the sound construction of the consti- tution must allow to the national legislature that discretion with respect to the means by which the powersit confers are to be carried into execu- tion, which will enable that body to perform the high duties assigned to 402 LAW OF DAMAGES. This doctrine was acquiesced in, notwithstanding the great hardship that it worked on those who had prior to the taking effect of the legal tender acts loaned their gold and sil- ver out at alow rate of interest, with the expressed agreement and understanding that they should have gold in return. This was supposed to be the law until the Supreme Court of the United States decided otherwise. They held in the case of Brown vs. Rhodes that where the contract between the parties stipulated that it should: be paid in gold and silver, that it could only be liquidated in that kind of money, overruling the it in the manner most beneficial to the people. Said Chief Justice Mar- shall, in delivering the opinion of the court: ‘Let the end be legitimate, let it be within the scope of the constitution and all means which are ap- propriate, which are plainly adapted to that end, which are not prohib- ited, but consistent with the letter and spirit of the constitution are con- stitutional.” The case also marks out with admirable precision the province of this court. It declares that ‘when the law (enacted by Con™ gress) is not prohibited and is really calculated to effect any of the ob- jects instrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This court (it was said) disclaims all pretentions to such a power.” Itis hardly neces- sary to say that these principles are received with universal assent. Even in Hepburn vs. Griswold (8 Wallace 603), both the majority and minority of the court concurred in accepting the doctrines of McCulloch vs. Maryland as sound expositidns of the constitution, though disagree- ing in their application. With these rules of constitutional construction before us, settled ata period in the history of the government, hitherto universally accepted, and not even now doubted, we have a safe guide to a right decision of the questions before us. Before we can hold the legal tender acts uncon- stitutional, we must be convinced they were not appropriate means, or means conducive to the execution of any or all of the powers of Congress, or of the government, not appropriate in any degree (for we are not judges of the degree of appropriateness), or we must hold that they were prohibited. This brings us to the inquiry whether they were, when PROMISSORY NOTEN. — 408 decisions of the State courts. The court says, in rendering the decision that this was a promise to pay coin dollars: “The terms of the contract must have been selected to fix definitely the contract between the parties and to guard against any pos- sible claims that payment in ordinary currency ought: to be accepted. The intent of the parties is, therefore, clear. What- ever might be the forms or fluctuations of the note currency, this contract was not to be affected by them. It was to be paid at all events in coined lawful money.” j 7 Bronson v. Rhodes, 7 Wallace 229. enacted, appropriate instrumentalities for carrying into effect or exe” cuting any of the known powers of Congress,.or of any department of the government. Plainly, to this inquiry a consideration of the time when they were enacted, and of the circumstances in which the govern- ment then stood, is important. It is not to be denied that acts may be adapted to the exercise of lawful power, and appropriate to it, in seasons of exigency, which would be inappropriate at other times. We do not propose to. dictate at length upon the circumstances in which the country was placed when Congress attempted to make . treasury notes a legal tender. They are of too recent occurrence to jus- tify enlarged description. Suffice it to say, that a civil war was then raging which seriously threatened the overthrow of the government and the destruction of the constitution itself. It demanded the equipment and support of large armies and navies and the employment of money to an extent beyond the capacity of all ordinary sources of supply. Meanwhile the public treasury was nearly empty, and the credit of the government, if not stretched to its utmost tension, had become nearly ex- hausted. Monied institutions had advanced largely of their means, and more could not be expected of them. They had been compelled to sus- pend specie payments. Taxation was inadequate to pay even the in- terest on the debt already incurred, and it was impossible to await the income of additional taxes. The necessity was immediate and pressing. The army was unpaid, There was then due to the soldiers in the field “nearly a score of millions of dollars. The requisitions from the war and navy departments for supplies exceeded fifty millions and the current expenditure was over one million per day. The entire amount of coin 404 LAW OF DAMAGES. 478. They held in this case also that a contract to pay a certain number of dollars in gold or silver coin is, therefore, in egal import nothing else than an agreement to deliver a cer- tain weight of standard gold or silver to be ascertained by a count of coin, each of which is certified to containing a definite proportion of the weight. It is not distinguished, the court says, in principle from a contract to deliver an equal weight of bullion of equal fineness. The only difference being in the method of ascertaining the amount of the precious metals. In in the country, including that in private hands, as well as that in bank- ing institutions, was insufficient to supply the need of the government for three months, had it all been poured into the treasury. Foreign credit we had none. We say nothing of the overhanging paralysis of trade, and of business generally which threatened loss of confidence in the ability of the government to maintain its continued existence, and therewith the complete destruction of all remaining national credit. It was at such a time and in such circumstances that Congress was called upon to devise means for maintaining the army and navy, for se- curing the large supplies of money needed, and, indeed, for the preserva- tion of the government, created by the constitution. It was at such a time and in such an emergency that the legal tender acts were passed. Now, if it were certain that nothing else would have supplied the abso- lute necessity of the treasury, that nothing else would have enabled the government to maintain its armies and navy, that nothing else would have saved the government and constitution from destruction, while the legal tender act would, could any one behold enough to assert that Con- gress transgressed its powers? Or, if these enactments did work these results, can it be maintained now that they were not for a legitimate end, or “appropriate and adopted to that end,” in the language of Chief Justice Marshall? That they did work such results is not to be doubted. Something revived the drooping faith of the people; something brought immediately to the government’s aid the resources of the nation, and something enabled the successful prosecution of the war and the preser- vation of the national life. What was it if not the legal tender enact- ments? But if it be conceded that some other means might have been chosen PROMISSORY NOTES. 405 | case of bullion, the amount would be ascertained by assay and the scales, but in case of coin the amount is easily ascertained by count, as the government has weighed it and marked it one dollar, which is known to contain so many grains of the pre- cious metals. ’ Bronson v. Rhodes, supra.; Dering v. Leas, 11 Wall (U. 8.) 379; Kel- logg v. Sweeny, 46 N. Y. 291; Crysler v. Renos, 43 N. Y. 209; Phelps v. Speyers, 49 N. Y. 653; Ind. Insurance Co. y. Thomas, 104 Mass. 192; Car- penter v. Atherton, 25 Cal. 564; Lane v. Gulckaut, 28 Cal. 288; Harding v. Couing, 28 Cal. 212; Reeves v. Stearns, 2 Cal. 273; Tarpy v. Shepherd, 30 Cal. 180; Pratt y. Stearns, 31 Cal. 78; Clark v. Nevada L. & M. Co., 6 Nev. 203. for the accomplishment of these legitimate and necessary ends, the con- cession does not weaken the argument. It is urged now, after the lapse of nine years, and when the emergency has passed, that treasury notes without the legal tender clause might have been issued, and that the necessities of the government might thus have been supplied. Hence, it is inferred there was no necessity for giving to the notes issued the capacity of paying private debts. At best this is mere conjecture. But admitting it to be true, what does it prove? Nothing more than that Congress had the choice of means for a legitimate end, each appropriate and adapted to that end, though, perhaps, in different degrees. What then? Can this court say that it ought to have adopted one rather than the other? Is it our province to decide that the means selected were be- yond the constitutional power of Congress, because we may think that other means to the same end would have been more appropriate and equally efficient? That would be to assume legislative power, and to ‘disregard the accepted rules for construing the constitution. The de- gree of the necessity for any Congressional enactment, or the relative degree of its appropriateness, if it have any appropriateness, is for con- sideration in Congress, not here. Said Chief Justice Marshall, in McCul- loch vs. Maryland, as already stated: ‘When the law is not prohibited, and is really calculated to effect any of the objects intrusted to the gov- ernment, to undertake here to inquire into the degree of the necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.” 406 LAW OF DAMAGES. 479. From this decision the rule may be laid down that when it appears to be the clear intent of a contract that pay- ment or satisfaction of it shall be made in gold or silver, dam- ages should be assessed and judgment entered accordingly. The question whether the greenback notes, made a legal ten- der for all debts, public and private, except duties on imports, etc., were a legal tender for debts on contracts made before the legal tender act’ were passed, was for many years unsettled, but after much difficulty and dissension the Supreme Court of the United States, after a very full consideration of all the authorities, held that debts so contracted could be discharged and paid in legal tender notes or greenbacks.’ 480. Indiana Rule. Where the defendant received gold and silver coin as bailee of the plaintiff, and on request failed 2 Dooley v. Smith, 13 Wallace 604; Legal tender cases, 12 Wallace, 457. It is plain to our view, however, that none of those measures which it is now conjectured might have been substituted for the legal tender acts, could have met the exigencies of the case at the time when those acts were passed. We have said that the credit of the government had been tried to its utmost endurance. Every new issue of notes which had nothing more to rest upon than government credit, must have paralyzed it more and more, and rendered it increasingly difficult to keep the army in the field or the navy afloat. It is an historical fact that many persons and institutions refused to receive and pay those notes that had been issued, and even the head of the treasury represented to Congress the necessity of making the new issues legal tenders, or rather declared it impossible to avoid the necessity. The vast body of men in the military service was composed of citizens who had left their farms, their work- shop, and their business, with families and debts to be provided for. The government could not pay them with ordinary treasury notes, nor could they discharge their debts with such a currency. Something more was needed, something that had all the uses of money. And as no one could be compelled to take common treasury notes in payment of debts and as the prospect of ultimate redemption was remote and contingent, PROMISSORY NOTES. 407 and refused to deliver it up, it was held that such a refusal was a gonversion of the money, and that the plaintiff could re- cover its full value.’ 481. The Rules Deducible from all the Decisions. From all the decisions that we have been able to examine, the following rules may be deduced: 1. In an action on a note, the measure of damages is the prin- cipal, with legal interest. 3 ‘The Bank of the State v. Burton, 27 Ind. 426. “Tn an action for conversion or negligent loss of United States coin, it is acontroverted 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 Massa- chusetts differ, the former holding in favor of a judgment for coin itself, and the latter its value computed in treasury notes.” Cushing v. Wells, Fargo & Co., 9 Mass. 550; Kellogg v. Sweeney, 46 N. Y. 291; Field on damages, 205. it is not too much to say that they must have depreciated in the market long before the war closed, as did the currency of the Confederate States. Making the notes legal tenders gave them a new use, and it needs no argument to show that the value of things is in proportion to the uses to which they may be applied. It may be conceded that Congress is not authorized to enact laws in furtherance even ofa legitimate end merely because they are useful, or because they make the government stronger There must be some rela- tion between the means and end, some adaptedness or appropriateness of the laws to carry into execution the powers created by the constitu- tion. But when a statute has proved effective in the execution of pow- ers confessedly existing, it is not too much to say that it must have had some appropriateness to the execution of those powers. The rules of construction heretofore adopted do not demand that the relationship be- tween the means and the end shall be direct and immediate. TIllustra- tions of this may be fourd in several of the cases above cited. The char. 408 LAW OF DAMAGES. = 2. That where there is a promise to pay money in the Uni- ted States and it is not specified in the contract that it is to be paid in gold, silver or legal tender notes, it will be satisfied by a tender of the amount in either. 3. That if gold or silver is applied to the payment of a claim not payable in coin, it will be received at its nominal value, and no per cent. on it can be allowed. 4, That where a contract is made payable in gold or silver coin, it must be paid in specie, and cannot be satisfied or paid in legal tender notes, and judgment should be rendered for the money specified in the contract, with interest. 482, Interest Continued to Run During-the Civil War. In the case of Spence vs. Brown, which was a suit brought upon two promissory notes for the sum of one thousand dollars each, pay- able in the State of New York, the defendant tried to defeat the recovery of the accrued interest, because of the prevalence of a state of war between the citizens of the State of Texas and ter of a bank of the United States, the priority given to debts due the government over private debts, and the exemption of Federal loans from liability to State taxation, are only a few of the many which might be given. The case of Veazie Bank vs. Fenno (8 Wallace 533) presents a suggestive illustration. There a tax of ten per cent. on State Bank notes in circulation was held constitutional, not merely because it was a means of raising revenue, but as an instrument to put out of existence such a circulation in competition of notes issued by the government. There, this court speaking through the Chief Justice, avowed that it is the con- stitutional right of Congress to provide a currency for the whole coun- try; that this might be done by coin or United States notes, or notes of National banks; and that it cannot be questioned that Congress may constitutionally secure the benefit of such a currency to the people by appropriate legislation. It was said there can be no question of the PROMISSORY NOTES. 409 the citizens of the United States, which put it out of the power of the obligor to make payment. The plaintiff filed a demurrer to the answer, which was sustained by the court. It was held that in time of war, in which parties to a contract are in hos- tility to each other, the judicial enforcement of the contract is in abeyance, but that their obligation does not cease, and that with the restoration of peace the remedy revived, and the plaintiff could maintain his action and recover all interest from the maturity of the note until the trial. 483. Wheaton vs. Pike In this case suit was brought on a promissory note made payable at a given time after date, with interest, payable semi-annually. Held, that interest might be computed in making up the judgment on all the in- stallments of interest overdue and remaining unpaid, but that ‘ 1 32 Texas 663; Bigler v. Wall, 3 Am. L. T. R. 157; Ward v. Smith, Wall 447. ; power of the government to emit bills of credit; tomake them receivable in payment of debts to itself; to fit them for use for those who see fit to use them in all the transactions of ‘commerce; to make ‘them a currency uniform in value and description, and conxenient and useful for circula- tion. Here the substantial power to tax was allowed to be employed for improving the currency. It is not easy to see why, if State Bank notes can be taxed out of existence for the purpose of indirectly making Uni- ted States notes more convenient and useful for commercial purposes, the same end may not be secured directly by making'them a legal tender. Concluding then that the provisions which made treasury’ notes a legal tender for the payment of all debts other than those expressly ex- cepted was not an inappropriate means for carrying into execution the legitimate powers of the government, we proceed to inquire whether it was forbidden by the letter or spirit of the constitution. It is not claimed that any express prohibition exists, but it is insisted that the spirit of the constitution was violated by the enactment Here those who assert the unconstitutionality of the acts mainly rest their argu- ment. They claim that the clause which conferred upon Congress 410 LAW OF DAMAGES. no installment of semi-annual interest should be considered as due after the maturity of the note, because after that both the accruing interest and the principal were due, not on any particular day, but every day till they were paid.’ 484. Perry vs. Gleason. In the case of Perry vs. Gleason, the Court of Appeals of the State of New York held where the plaintiff brought an action on a note which was a promise to pay a certain amount of money in salt at fourteen shillings per barrel, that it was an agreement to deliver to the holder a cer- tain quantity of salt at a stipulated price per barrel, and that the plaintiff could only recover the value of the salt on the day specified for the payment.’ 2 Wheaton v. Pike, 9 R. I. 182; Pierce v. Rowe, 1 N. H. 179; Catlin v, Lyman; 16 Vt. 44; Mann v. Cross, 9 Iowa 327; Daig v. Barkly, 3 Lewis 2, 75 Wend. 339. : The Supreme Court of Tennessee held to the same opinion in the case of McDonald v. Hodge, 5 Haywood’s Tenn. R. 85. But differently in the State of Georgia. Simms v. Cox, 4 Georgia 76. power “‘to coin money, regulate the value thereof, and of foreign coin,” contains an implication that nothing but that which is subject of coin- age, nothing but the precious. metals, can ever be declared by law to be money, or to have the use of money. If by this is meant that because certain powers over the currency are expressly given to Congress, all other powers relating to the same subject are impliedly forbidden, we need only remark that such is not the manner in which the constitution has always been construed. On the contrary, it has been ruled that power over a particular subject may be exercised as auxiliary to an ex- press power, though there is another express power relating to the same subject less comprehensive. There an express power to punish a cer- tain class of crimes (the only direct reference to criminal legislation con- tained in the constitution) was not regarded as an objection to deducing authority to punish other crimes from another substantive and defined grant of power. There are other decisions to the same effect. To assert then that the clause enabling Congress to coin money and regulate its PROMISSORY NOTES. 4l1 485, Interest Can be Recovered After the Payment of the Princi- pal. It isnow pretty generally held that where there is no agreement to pay interest, that it can be only recovered as damages for the non-payment of the principal debt when it becomes due. In such case, if the party to whom the money is payable accepts the amount agreed to be paid in full satisfac- tion without requiring the debtor to pay interest from the time the debt became due, he cannot afterward maintain a suit to recover the interest.’ But where there is an expressed promise or agreement to pay interest, as well as principal, of the plaintiffs demand, and the principal has been paid or a new note or bill given for it and interest which was due was not paid, it remains due and an actjon may be maintained for it.® 2 Lake v. Eddy, 15 Wend. 76; Robbins v. Cheek, 32 Ind. 328; White- water C. Co. v. Hawkins, 4 Ind. 474; Watkins v. Morgan, 6 C. & P. 661. * 2 Parsons on notes and bills, 375. value tacitly implies a denial -of all other power over the currency of the nation, is an attempt to introduce a new rule of construction against the solemn decisions of this court. (U.S. v. Marigold, 9 Howard 560.) So far from its containing a lurking prohibition, many have thought it was intended to confer upon Congress that general power over the currency which has always been an acknowledged attribute of sovereignty in every other civilized nation than our own, especially when considered in connection with the other clause which denies to the States the power to coin money, emit bills of credit, or make anything but gold and silver coin a tender in payment of debts. We do not assert this now, but there are some considerations touching these clauses which tend to show that if any implications are to be deduced from them they are of an enlarg- ing rather than a restraining character. The constitution was intended to frame a government as distinguished from a league or compact, a gov- ernment supreme in some particulars over State and people. It was de- signed to provide the same currency having a uniform legal value in all the States. It was for this reason the power to coin money and regulate its value was conferred upon the Federal Government, while the same 412 LAW OF DAMAGES. 486. Conflict of Authorities. We have seen in the discus- sion of this question of interest that the authorities are at variance in reference to the rate of interest that a promissory note raade in one State and payable in another should bear. This being true, we are left to recominend either rule. According to some of these authorities, if a note is made paya- ble at a certain designated place it must in respect to interest conform to the law of the placé of payment without reference to the place where it was signed.* According to others, if a note is made in one State and payable in another, and the interest law in such States are in conflict, the law of either State may be applied; in other words, that such a note may have two different States or places, the laws of which may enter into its construction, and that should be considered by the court in determining its validity.* +2 Kent com., 458-461; Depaw v. Humphries, 10 Martin 1; 2 Parson on contract, 583-585; Andrews v. Pond, 13 Peter 77; DeWolf v. Johnson, 10 Wheat 367; Duscomb v. Barker, 2 Met. 8; Mix v. Insurance Co., 11 Ind. 117; Kilgore v. Dempsy, 25 Ohio st. 413. § Kilgore v. Dempsy, 25 Ohio st. 413; 2 Kent com , 460-461; Depaw v. Humphries, 10 Martin 1; 2 Parson on con., p. 583-585; Andrews v. Pond, 13 Peter 65; Peck v. Mayo, 14 Vt. 33; Chapman v. Robinson, 6 Paige 627; Edwards on bills, 717. A bill drawn in Illinois and delivered to the drawee in New York, is governed by the Jaw of the latter place, but if, in good faith, it is made payable in the former State, any rate of interest not excceding the rate allowed in such may be recovered. Frees v. Brownell, 35 N. Y. 285. power, as well as the power to emit bills of credit, was withdrawn from the States. The States can no longer declare what shall be money, or regulate its value. Whatever power there is over the currency is vested in Congres. If the power to declare what is money is not in Congress, it is annihilated. This may, indeed, have been intended. Some powers that usually belong to sovereignties were extinguished, but their extin- guishment was not left to inference. In most cases, if not all, where it PROMISSORY NOTES. 413 * \ 487. The Rule that Should be Adopted. From the authorities and on principle, we are very much inclined to the opinion that the latter rule, which allows the parties the privilege of either contracting with reference to the rate of interest in the State where the note was signed and executed or the State where it is made payable, as they might in. guod faith agree, should be adhered to and adopted by the courts of the different States.’ * Depaw v. Humphries, 10 Martin 1; Peck v. Mayo, 14 Vt. 33; Chap- man v. Robinson, 6 Paige 627; 2 Kent, 460-461; Edwards on bills, 717; 2 Parson on bills and notes, 336; Andrews v. Pond, 18 Peter 65; Kilgore v.’ Dempsy, 25 Ohio st. 413. In the case of Depaw v. Humphries, supra., the note was given in New Orleans, payable in New York, for a large sum of money bearing interest at 10 per cent., being legal interest in Louisiana; the New York legal in- terest bearing 7 per cent. only. The question was whether the note was usurous and, therefore, void, as it would be if made in New York. The Supreme Court of Louisiana decided that it was not usurous. was intended that governmental powers, commonly acknowledged as such, should cease to exist, both in the States and the Federal Govern- ment, it was expressly denied to both, as well to the United States as to the individual States. And generally when one of such powers was ex- pressly denied to the States only, it was for the purpose of rendering the Federal powers more complete and exclusive. Why, then, it may be asked, if the design was to prohibit to the new government, as well as to the States, that general power over the currency which the States had when the constitution was framed, was such denial not expressly ex- tended to the new government, as it was to the States? In view of this it might be argued with much force that when it is considered in what brief and comprehensive terms the constitution speaks, how sensible its framers must have been that emergencies might arise when the precious metals (then more scarce than now) might prove inadequate to the necessities of the government and the demands of the people, when it is remembered that paper money, almost exclusively in use in the States as the medium of exchange, and when the great evil sought to be reme- died was the want of uniformity in the current value of money, it might 414 LAW OF DAMAGES. 488, Where the defendant, a resident in the State of Iowa, executed his promissory note in that State and date there payable in New York, for a loan of money in Massachu- setts, and payable to one B, who indorsed it to the plaintiff in the State of Iowa, and to secure the note the defendant and his wife executed a deed of trust of real estate situated in Iowa to a trustee residing in that State and the note was delivered by the defendant to the plaintiff indorsed in Massachusetts and the money loaned thereon received | there pursuant to the agree- ment entered into when the loan was negotiated, the court held in an action to foreclose the trust deed that if the plain- tiff and defendant in good faith and without intent to evade the usury laws of Massachusetts contracted for the rate of in- terest allowable in Iowa, which was greater than the legal rate in either Massachusetts or New York, the stipulated interest was reasonable‘and the contract could be enforced.’ 2 Arnold v. Potter, 22 Ia. 195; Butts v. Odds,-11 Ia. 1, be argued, we say, that the gift of power to coin money and regulate the value thereof was understood as conveying general powers over the cur- rency, the power which had belonged to the States, and which they sur- rendered. Such a construction, it might be said, would be in close analogy to the mode of construing other substantive powers granted to Congress. They have never been construed literally, and the govern- ment could not exist if they were. Thus the power to carry on war is conferred by the power to ‘‘declare war.’’ The whole system of the transportation of the mails is built upon the power to establish postoffices and post roads. The power to regulate commerce has also been ex- tended far beyond the letter of the grant Even the advocates of a strict, literal construction of the phrase, “‘to coin money and regulate the value thereof,” while insisting that it defines the material to be coined as metal, are compelled to concede to Congress large discretion in all other particulars. The constitution does not ordain what metals may be coined, or prescribe that the legal value of the metals, when coined, shall correspond at all with their instrinsic value in the market. Nor does it even affirm that Congress may declare anything a legal tender for y PROMISSORY NOTES. 415 489. Coupon Bonds. In the case of Whitaker vs. Hart- ford, Providence and Fishkill Railroad Company, the court held where the suit was brought for the amount of the interest (coupons only, the bonds not being due), that neither by their terms nor custom are payable with interest, but are to be pre- sented for and given upon payment. Until presented the de- fendant could have been in no default for non-payment, but after it (the coupons being due) the refusal to pay was a clear breach of the contract, and interest from time of the demand and refusal is recoverable by way of damages. Railroad bonds, with interest coupons attached, are purchased for investment and income, and where the latter is not paid at the time promised no well considered authority, properly understood, forbids what principle requires, that the damages from the de- lay of payment should be compensated by interest on the amount due, computed from the day of the demand and refusal. 18 R. L 47; Pierce v. Hall, 1 N. H. 179; 2 Hill 408. the payment of debts. Confessedly the power to regulate the value of money coined, and of foreign coins, is not exhausted by the first regula- tion More than once in our history has the regulation been changed without any denial of the power of Congress to change it, and it seems to have been left to Congress to determine alike what metal shall be coined, its purity, and how far its statutory value, as money, shall cor- respond, from time to time, ‘with the market value of the same metal as bullion. How then canthe grant of a power to coin money and regulate its value, made in terms so liberal and unrestrained, coupled also with a denial to the States of all power over the currency, be regarded as an implied prohibition to Congress against declaring treasury notes a legal tender, if such declaration is appropriate and adapted to carrying into execution the admitted powers of the government? We do not, however, rest our assertion of the power of Congress to enact legal tender laws upon the grant. We assert only that the grant can in no just sense be regarded as containing an implied prohibition against their enactment, and ‘that, if it raises any implications, they are of complete power over the currency rather than restraining. 416 LAW OF DAMAGES. 490. Conflict of Authorities. The authorities are very much in conftict upon the question as to whether the payee of a promissory note, which provides for the payment of interest annually or at a specified time, can recover interest on the accumulated interest after it becomes due, or, in other words will the payee be allowed compound interest. In the State of Ohio the plaintiff can recover interest on all such sums after the default and failure to pay.” But in New Jersey and New York, as between parties holding the relation of debtor and. creditor, simple interest will not be compounded or .allowed upon overdue interest.’ 491. Notes Payable in Specific Articles. Where promissory notes are made payable in specific articles and there is a breach of the contract and a failure to pay the same at muturity, the authorities are not uniform and harmonious on what the measure of damages should be in case suit is brought. In New * Cramer v. Lepper et al., 26 Ohio st. 59. * Force v. Elizabeth City, 28 N. J. Eq. 403; Young v. Hill, 67N. Y. 162 We come next to the argument much used, and, indeed, the main re- liance of those who assert the unconstitutionality of the legal tender acts. It is that they are prohibited by the spirit of the constitution because they indirectly impair the obligations of contracts. The argument, of course, relates only to those contracts which were made before Feb- ruary, 1862, when the first act was passed, and it has no bearing upon the question whether the acts are valid when applied to contracts made after their passage. The argument assumes two things, first, that the acts do, in effect, impair the obligations of contracts, and, second, that Congress is prohibited from taking any action which may indirectly have that effect. Neither of these assumptions can be accepted. It is true that under the acts a debtor, who became such before they were passed, may discharge his debts with the notes authorized by them, and the creditor is compellablé to receive such notes in discharge of his claim, But whether the obligation of the contract is thereby weakened can be determined only after considering what was the contract obliga- PROMISSORY NO'TES.. 417 York and several other States they hold that it is a promise to pay the note in the specified article or in money, and where tion. It was nota duty to pay gold or silver, or the kind of money recognized by law at the time when tle contract was made, nor was it a duty to pay money of equal intrinsic value in the market. (We speak now of contracts to pay money generally, not contracts to pay some specifically defined species of money). The expectation of the creditor and the anticipation of the debtor may have been that the contract would be discharged by the payment of coined metals, but neither the expecta- tion of the one party to the contract respecting its fruits, nor the antici- pation of the other constitutes its obligation. There is a well recognized distinction between the expectation of the parties to a contract and the duty imposed by it. Were it not so the expectation of results would be ‘ always equivalent to a binding engagement that they should follow. But the obligation of a contract to pay money is to pay that which the law should recognize as money when the payment is to.be made. If there is anything settled by decision it is this, and we do not understand it to be controverted. No one ever doubted that a debt of one thousand dollars, contracted before 1834, could be paid by one hundred eagles coined after that year, though they contained no more gold than ninety-four eagles such as were coined when the contract was made, and this, not because of the intrinsic value of the coin, but because of its legal value. ‘The eagles coined after 1834 were not money until they were authorized by law, and had they been coined before without a law fixing their legal value, they could no more have paid a debt than uncoined bullion, or cotton, or wheat. Every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power. Nor is this singular. A covenant for quiet enjoyment is not broken, nor is its obli- gation impaired by the government taking the land granted by virtue of its right of eminent domain. The expectation of the covenantee may be disappointed. He may not enjoy all he anticipated, but the grant was made and the covenant undertaken in subordination to the paramount right of the government. We have been asked whether Congress can declare that a contract to deliver a quantity of grain may be satisfied by the tender of a less quantity. Undoubtedly not. But this is a false analogy. There is a wide distinction between the tender of quantities, 418 LAW OF DAMAGES. suit is brought the plaintiff can recover the amount of the note, with legal interest.* ‘Perry v. Gleason, 5 Wend. 393; Chitty on contract, 35; White v. Thompkins, 52 Pa. st. 463; Moore v. Riff, Supreme Court of Penn., not reported; Trobridge v. Holcomb, + 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; Van Hoover v. Lo- gan, 3 Scam., Ill. 389; Smith v. Dunlap, 12 Ill. 184. or of specific articles, and a tender of legal values. Contracts for the de- livery of specific articles belong exclusively to the domain of State legis- lation, while contracts for the payment of money are subject to the authority of Congress, at least so far as relates to the means of payment. They are engagements to pay with lawful money of the United States, and Congress is empowered to regulate that money. It cannot, there fore, be maintained that the legal tender acts impaired the obligation of contracts. Nor can it be truly asserted that Congress may not, by its actions, in- directly impair the obligation of contracts, if by the expression he must render the contracts fruitless, or partially fruitless. Directly it mav, con- fessedly, by passing a bankrupt act, embracing past as well as future transactions. This is obliterating contracts entirely. So it may relieve parties from their apparent obligations indirectly in a multitude of ways, It may declare war, or, even in peace, pass non-intercourse acts, or direct an embargo. All such measures may and must operate seriously upon existing contracts, and may not merely hinder, but relieve the parties to such contracts entirely from performance. It is, then, clear that the powers of Congress may be exerted, though the effect of such exertion inay be in one case to annul, and in other cases to impair the obligation of contracts. And it is no sufficient answer to this to say it is true only when the powers exerted were expressly granted. There is no ground for any such distinction. It has no warrant in the constitution, or in any of the decisions of this court. We are accustomed to speak for mere convenience of the express and implied powers conferred upon Con- gress. But in fact the auxiliary powers, those necessary and appropriate to the execution of other powers singly described, are as expressly given as is the power to declare war, or to establish uniform laws on the sub- ject of bankruptcy. They are not catalogued, no list of them is mades PROMISSORY NOTES. 419 492. But in Indiana, Wisconsin and other States they hold that in a suit on a note made payable in a designated ¢ but they are grouped in the last clause of section eight of the first article, and granted to Congress. And this court has recognized no such dis- tinction as is now attempted. An embargo suspends many contracts and. renders performance of others impossible, yet the power to enforce it has been declared constitutional. (Gibbons v. Ogden, 9 Wheaton 1.) The power to enact a law directing an embargo is one of the auxiliary powers, existing only because appropriate in time of peace to regulate . commerce or appropriate to carry on war. Though not conferred as a substantive power, it has not been thought to be in conflict with the constitution, because it impairs indirectly the obligation of contracts. That discovery calls for a new reading of the.constitution. If, then, the legal tender acts were justly chargeable with impairing contract obliga- tions, they would not for that reason be forbidden, unless a different rule is to be applied to them from that which has hitherto prevailed in the construction of other powers granted by the fundamental law. But as already intimated, the objection misapprehends the nature and ex- tent of the contract obligation spoken of in the constitution. Asina state of civil society, property of a citizen or subject is ownership subject to the lawful demands of the sovereign, so contracts must be understood as made in reference to the possible exercise of the rightful authority of the government, and no obligation of a contract can extend to the defeat of legitimate government authority. Closely allied to the objection we have just been considering is the, argument pressed upon us that the legal tender acts were. prohibited by the spirit of the fifth amendment, which forbids taking private property. for public use without just compensation or due process of law. That provision has always been understood as referring only to a direct ap- propriation and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon or to inhibit laws that indirectly work harm and loss to individuals. A new tariff, an embargo, a draft, or a war may inevitably bring upon in- dividuals great losses; may, indeed, render valuable property almost" valueless. They may destroy the worth of contracts. But whoever sup posed that, because of this, a tariff could not be changed, or a non-inter- course act, or an embargo be enacted, or a war be declared? By the act 420 LAW OF DAMAGES. article, that the measure of damages is ‘the value of the article on the day the note matured.’ 3 Coldren v. Miller, 1 Blackford 296; Parks v. Marshall, 10 Ind. 20; Pierce v. Spade, 13 Ind. 458; Hobert v. Kimberly, 1 Root (Conn.) 491; Day v. Leavenworth, ed. 519; Castice v. Whips, ed. 445; Williams v. Jones, 12 Ind .561; Hudson v. Noble,4 J. J. Marsh. 130; Mason v. Biddle, 6 J.J. M. (Ky.) 30; Hixon v. Hixon..7 Humph. (Tenn.) 33; Kirtland v. Moulton, 41 Ala. 548; Albert v. Citizens’ Bank, 5 La. Am. 720; Farwell v. Kennett, 7 Miss. 595. ty, of June 28, 1834, a new regulation of the weight and value of gold coin was adopted, and about six per cent. was taken from the weight of each dollar. The effect of this was that all creditors were subjected to a cor- responding loss. The debts then due became solvable with six per cent. less gold than was required to pay them before. The result was thus precisely what it is contended the legal tender acts worked. But was it ever imagined that this was taking private property without compensa- tion or without due process of law? Was the idea ever advanced that the new regulation of gold coin was against the spirit of the fifth amend- ment? And has any one in good faith avowed his belief that even alaw debasing the current coin by increasing the alloy would be taking private property? It might be impolitic and unjust, but could its constitutional- ity be doubted? Other statutes have from time to time reduced the quantity of silver in silver coin without any question of their constitu- tionality. It is said, however, now, that the act of 1834 only brought the legal value of gold coin more nearly into. correspondenge with its actual value in the market, or its relative value to silver. But we do not perceive that this varies the case or diminishes its force as an illustra- tion. The creditor who hada thousand dollars due him on the 31st day of July, 1834, (the day before the act took effect) was entitled to a thou- sand dollars of coined gold of the weight and fineness of the then exist- ing coinage. The day after he was entitled only to a sum six per cent. less in weight and in market value, or to a smaller number of silver dol- lars. Yet he would have been a bold man who had asserted that be- cause of this the obligation of the contract was impaired, or that private property was taken without compensation or without due process of law. No such assertion so far as we know was ever made. Admit it was a hardship, but it is not every hardship that is unjust, much less ¢ PROMISSORY NOTES. 421 493. In treating upon the measure of damages for a breach of contract for non-payment of money, we have only re- ferred to a few general rules established by the decision of the courts of the different States. And this is all that we believe that is unconstitutional, and certainly it would be an anomaly for us to hold an act of Congress invalid merely because we might think its pro- visions harsh and unjust. We are not aware of anything else that has been advanced 1n support of the proposition that the legal tender acts were forbidden by either the letter or the spirit of the constitution. If, therefore, they were what we, have endeavored to show, appropriate means for legitimate ends, they were not transgressive of the authority vested in Congness. Here we might stop, but we will notice briefly the argument presented in support of the position that the unit of money value must possess in- trinsic value. The argument is derived from assimilating the constitu- tional provisions respecting a standard of weights and measures to that conferring the power to coin money and regulate its value. It is said there can be no uniform standard of weights without weight, or of measure without length or space, and we are asked how anything can be made a uniform standard of value which ‘has itself no. value? This is a question foreign to the subject before us. The legal tender acts do not attempt to make paper a standard of value. We do not rest their validity upon the assertion that their emission is coinage, or any regula- tion of the value of money; nor do we assert that Congress may make anything which has no value money. What we do assert is, that Con- gress has power to enact that the government’s promise to pay money shall be, for the time being, equivalent in value to the representative of value determined by the coinage acts, or to multiples thereof It is hardly correct to speak of a standard of value. The constitution does not speak of it. It contemplates a standard for that which has gravity or extension; but value is an ideal thing. The coinage acts fix its unit as a dollar; but the gold or silver thing we call a dollar is, in no sense, a standard of a dollar. It is a representative of it. There might never have been a piece of money of the denomination of a dollar. There never was a pound sterling coined until 1815, if we accept a few ‘coins struck in the reign of Henry VIII, almost immediately debased, yet it has been the unit of British currency for many generations. It is, then, 422 LAW OF DAMAGES. the profession ought to expect, asthe rate of interest is regu- lated by the municipal laws of the different States. But for the sake of convenience we will give in our notes the rate of interest established by a part, if not all, of the States: Arkansas: Six per cent. Parties may contract for an amount not ex- ceeding ten. Dig. Ark. st., 1858, p. 622. Alabama: Eight per cent. Contract void as to the interest at a higher rate. Rev. code, 1867, p. 406. a mistake to regard the legal tender acts as either fixing a standard of value or regulating money values, or making that money which has no intrinsic value. But, without extending our remarks further, it will be seen that we hold the acts of Congress constitutional as applied to contracts made either before or after their passage. In so holding, we overrule so much of what was decided in Hepburn vs. Griswold (8 Wallace 603) as ruled the acts unwarranted by the constitution, so far as they apply to con- tracts made before their enactment. That case was decided by a divided court, and by a court having a less number of Judges than the law then in existénce provided this court shall have. These cases have been heard before a full court, and they have received our most careful con- sideration. The questions involved are constitutional questions of the most vital importance to the government, and to the public at large. We have been in the habit of treating cases involving a consideration of ‘constitutional power differently from those which concern merely private rights. We are not accustomed to hear them in the absence of a full court, if it can be avoided. Even in cases involving only private rights, if convinced we had made a mistake, we would hear another argument and correct our error. And it is no unprecedented thing in courts of last resort, both in this country and in England, to overrule decisions previously made. We agree this should not be done inconsiderately, but in a case of such far-reaching consequences as the present, thorough- ly convinced as we are that Congress has not transgressed its powers, we regard it as our duty so to decide and to affirm both these judgments. The other questions raised in the case of Knox ys. Lee were substan-- tially decided in Texas vs. White, (7 Wallace 700). Judgment in each case affirmed. PROMISSORY NOTES. 423 494. In general, the rights of the original parties to a negotiable instrument, such as bills of exchange, bonds and notes are determined by the law of the place where they are made, unless it is stipulated that it shall be paid elsewhere.® And the law of the place, where payment is to be made, will govern the measure of damages, or the amount of the recovery.’ And if suit is brought on a foreign bill of exchange, if the law of the State where it was made is not pleaded and offered in evidence, the court will presume that the common law is in force there, and apply its rules'to the questions arising in the ease.’ But if the bill is drawn in England and payable in the currency of that country, and the plaintiff bring suit on the bill in this country to recover for a breach of the contract, a difficult question at once arises as to the measure of damages. + Dunn v. Clement, 2 Ala. 392; Hollenback v. Wilbard, 3 Il. 465; Col- lins v. Burkam, 10 Mich. 283; Ballard v. Webster, 9 Abb. N. Y. 404. 4 Murry v. Gibson, 2 La. Ann. 311; Roberts v. Williams, 5 La. 370-379. s Murry v. Gibson, 2 La. 311. Arizona: Ten per cent. where no rate is agreed upon. Contract valid for any rate. Compiled law, 1871, p. 538. California: Ten per cent. Parties may contract for any rate, and even for compound. Judgments can only draw seven per cent. under any circumstances. Civil code, Sects. 1917-1918-1919-1920. Connecticut: Seven per cent. On contract for highér rate, principal can only be recovered with seven per cent. Res. of 1875, p. 351. Delaware: Six per cent. Whoever contract for more, forfeits a sum equal to the amount loaned, half to the State and half to the Prosecutor. Res code, 1852, p. 183. District of Columbia: Six per cent. A contract for a greater amount is void and subject the party to a forfeiture of triple the amount otf the money lent or contracted for, one-hali to go to the United States and the other to the person who shall sue. Florida: Six per cent. where there is no agreement for a higher rate. Parties may contract for eight per cent. A contract for higher rate is 424 LAW OF DAMAGES. But it is now pretty generally settled that where payment is to be made in the currency of a foreign country, its amount is to be computed in the currency of the United States by ascer- taining what sum the standard coin of one will produce of equal weight and fineness in the currency of the other. But where a plaintiff comes from another country into the courts of the United States to enforce the payment of money, which, if paid abroad when they were due, would be paid in currency equal to gold when gold is at a premium here, our courts will not add to the nominal amount a sum sufficient to enable him to replace it in gold in the place where it is payable. If the debt was payable in dollars, the plaintiff, like a citizen, could recover the nominal amount of dollars and interest only. If the debt is for so many pounds sterling, the recovery can be had for that sum only, converted into dollars at the rate which the pound sterling bears to the dollar, without any premium or regard to the rate of exchange between the two countries, * owing to the want of a specie currency here. But where a bill is drawn in one State, payable in another, with the current rate of exchange in the State in which it is drawn, the holder may recover the different rate of exchange between the two places.” And it may be remarked generally that the only .° Swanson v. Cook, 45 Barber 574; Rice. v. Ontaco Steamboat Co, 56 Barber 384; Gutacap v. Wamluse, 2 McClain, 581; Bank of Illinojs v. Brady, 3 McClain 268. void. Taking of usury is indictable and punishable by fine and for- feiture of all interest. Thompson Digest, p. 234-235. Georgia: Seven per cent. where there is no agreement to the con- trary. Parties may contract for any rate in writing. Code 1873, p. 362. Illinois: Parties may contract for any rate not exceeding ten per cent. Where no rate is specified six per cent. can be recovered. Res. stat., 1874, p. 614. Indiana: Six per cent. where there is no agreement. Parties may PROMISSORY NOTES. : 425 damages that can be recovered on bills of exchange and promissory notes is the principal, with legal interest, and ex- pense of protest, and in some instances the difference in ex- change, and this rule is strictly adhered to in case of obliga- contract for any sum not exceeding eight per cent. Act of 1879, p. 43. Iowa: Six per cent. in want of an agreement for a different rate. Parties may contract for any rate not exceeding ten per cent. Usury paid may be recovered back. Code 1873, p. 377-378. Kentucky: Six per cent. in absence of expressed agreement. Parties may contract in writing for any rate not exceeding ten per cent. Usury is attended with a forfeiture of all interest. Gen. stat., 1873, p. 562-565. Louisiana: Five per cent. in absence of a contract for a greater rate. Parties may contract for any sum not exceeding eight per cent. Bank rates, six percent Usury forfeits all interest. Civil code, p. 393. Maine: Six per cent. in absence of any agreement. Res. st., 1871, p. 391. / Maryland: Six per cent. Usury forfeits only the excess over legal rate. Code 1865, vol. 1, p. 696. Massachusetts: Six per cent. Parties may contract in writing for any rate. Sup. gen. statute, 1873, p. 539. Michigan: Seven per cent. Parties may contract for any rate not ex- ceeding ten per cent. Contract only void for excess. Compiled law of 1871, p. 540. Montana: ‘Ten per cent. Parties may contract for higher rate. Cod- ified statute, 7 Sess., p. 497-498. Minnesota: Ten per cent. Parties may contract in writing for any rate not exceeding twelve per cent. Stat. at Large, 1873, p. 711. Mississippi: Six per cent. Parties may contract in writing to pay any rate not exceeding ten per cent. Res. code, 1871, Sects. 2279-2282. Missouri: Six percent. Parties may agree upon any other rate not * exceeding ten per cent. Usury works a forfeiture of the interest to the county where thesuit is brought. W., Mo. stat., vol. 1, p. 782-783. New Hampshire: Six per cent. Party, taking more forfeits three times the amount taken. New Jersey: Seven percent. The amount of the principal can only be recovered. Res st., 1874, p. 356. New York: Seven percent. All contracts for more are void. Usury 426 \ LAW OF DAMAGES. tions to pay money.’ It is true, as we have already said, that the non-payment of money when due some times causes the creditor to lose a sum far beyond the legal interest on- the money due. He may, by reason of the failuré of the defendant to pay the money pursuant to the agreement, be put to great works a forfeiture of principal and interest. Statute at Large (Ed- monds), vol. 1, p. 725-726. North Carolina: Six per cent. Eight per cent. may be contracted in writing for theloan of money. No’ higher rate can be recovered. Batts’ Revival, p. 825. Nebraska: Ten percent. Parties may contract for any rate not ex- ceeding twelve per cent. Usury forfeits interest. Gen. stat., p. 446-447, (1873). Ohio: Six per cent. Excess over this paid may be recovered back. Res. st., p: 724-744. Pennsylvania: Six per cent. Usury cannot be recovered. If paid it may be recovered back. Canal and railroad companies may borrow at a higher rate. " See Purd. Digest, p. 803 Rhode Island: Six per cent. when there is no other specified amount. Gen. stat. (1872), p. 270. South Carolina: Seven percent. It is thought a person may contract for a higher rate, but this is doubtful. Res st. (1873), p. 318. Tennessee: Six per cent. Parties may contract for any rate not ex- ceeding ten per cent. Party taking more is liable to a penalty of one hundred dollars. Act 1869-70, chap. 69, sects. 1, 2, 3, 4. Texas: Eight per cent. Parties may agree upon any rate not exceed- ing twelve per cent. Pascol Digest, p. 665-666. Vermont: Six percent. Interest paid in excess of this may be recov- ered back. Usury forfeits excess over legal interest. - Gen. st. 1863, p. 507-579. e Virginia: Six percent. Parties may contract for eight per cent. in usury. Excess of these rateg cannot be recovered. Banks may take in- terest on loans at the rate of two-thirds of one per cent. for thirty days, and this may be recovered in advance. Code (1873), p. 977. Wisconsin: Seven per cent. “Parties may contract for any rate not exceeding ten per cent. Party taking more is liable for three times the PROMISSORY NOTES. 427 expense and involved in serious litigation, and be compelled finally to take the benefit of the bankrupt law. But the law has fixed his damages, and beyond that he cannot go. The reason for the rule is that it is generally supposed that money is worth the legal interest, and no more. And the further fact ‘that it is impossible to know what may result from the non- payment of money, it is beyond the comprehension of man to tell what the creditor will losé or how much he may be harrasred with law suit, but the extent of his recovery is marked out, and beyond that he cannot recover.’ 495. Bills and Notes Transferable. Bills of exchange and promissory notes are generally transferred by indorsement be- fore they are due, but this is not always the case, for in the meager settled districts and territories of the West notes and bills are frequently transferred after muturity. There is a very important difference in the effect of the transfer of a note before maturity and afterwards. The bona fide holder of a note negotiable by the law merchant, indorsed to him_ before maturity, takes it free from all equities existing between his assignor and the maker, save what appear on the face of the note.’ This rule is established for the purpose of facilitating trade and commerce, and rests on the theory that when John Smith gives his promissory note to James Jones, promising to 2 Sedgwick on the measure of damages, 278 to 288; Field on the law of damages, 190 to 230, and authorities cited. 1] Parson on contracts, 254; Brown v. Davis, 3 J. R. 82; Hall v. Wil- son, 16 Barber, 548; Fletcher v. Gushee, 32 Me. 587; Grayson v. Lee, 9 Gill 138; Kohlman v. Ludwick, 5 La. Ann. 33. excess which he recovered back in one year afterwards. Taylor’s stat., ‘Wis , (1871) p. 838. West Virginia: Six per cent. generally. Contracts for more are void. Party taking more forfeits double the amount taken. Code 1860, p. 624-- 625, 428 LAW OF DAMAGES. pay him or order one thousand dollars, that the promise is in the alternative, and the note is a promise to pay Jones or any one else to whom he may direct the payment tobe made. And when Jones indorses the note to Henry Ray he orders Smith to make payment tohim. And when Smith is finally sued by a remote indorser, he will not be permitted to defendon the ground that Jones was indebted to him at the time of the as- signment, or that there was a failure of consideration, because the holder can say you promised to pay me. When the note is transferred by indorsement and delivered to the purchaser, if the assignor has not written, the purchaser may write over the name of the indorser, “Pay the contents of this note to —— or order.” The drawee of a bill of exchange after he has ac- cepted it stands bound to the same as the maker of a promis- sory note is bound. In fact, in law, it is treated as his promis- sory note. When the payee indorses a promissory note or bill of exchange, ‘he enters into a contract with the indorser that if the maker is called upon by the holder and fails on demand to pay according to contract, that hé will pay the same. And if demand is made and notice of non-payment given to the in- dorser, the holder may sue the maker and indorser together or separately at his option. In such suits he can recover the amount of the note or bill, with interest. And where the in- dorser is sued on his endorsement and compelled to pay costs, he cannot recover those costs against the maker, as he should have paid the note without suit. He can only recover as dam- ages the amount of the note with interest and expense of pro- test.?, And this is the rule that governs the measure of dam- ages where an acceptor of a bill with funds in his hands has failed to pay the acceptance. “If suit is brought against the drawer and costs paid by him, the acceptor is not liable there- for.”* “Nor is the indorser of a bill liable to the acceptor for ? Simpson v. Griffin, 9 Johns 131; Steel y. Snyder, 2 McCord 459. “ Barnwell vy. Mitchell, 3 Conn. 101. PROMISSORY NOTES. 429 the costs of suit by the holder against him.”* The accommoda- tion acceptor can, however, recover costs of the drawer, and he may also recover costs against the maker. 496. Statute Law Making Note Negotiable. In quite a num- ber of the States promissory notes not negotiable by the law merchant are made assignable so as to vest the absolute title in the assignee, and he can sue on it in his own name. The assignee, as a rule, takes the note subject to any set-off or other defense that the maker of such note may have against the as- signor. Such assignee having used due diligence in trying to make the money from the maker, may then have hisactionon the indorsement against hisassignor.t And his measure of damages will be the amount paid for the assignment, together with in- terest and costs of the suit against the maker. The amount of the note is prima facie evidence of the price received by the assignor, but he may show in defense that it was less.’ * Bangor Bank v. Hook, 5 Greenleaf (Me.) 174. 5 James v. Brooks, 4 Taunt 464; Hubble v. Brown, 16 Johns 70; Baker v Martin, 3 Barber 634; Field on law of damages, 220. ‘ Due diligence see Adam v. Beard, 1 Black 191; Merriman v. Maple, 2 Blackf. 552; Kelsey v Ross, 6 Black 536; Dorsey v. Hadlock, 7 Black 349; Clark v. Spears, 8 Blackf. 302; Watson v. Robinson, 8 Black 386; Black v. Wilson, 7 Black 552; Harold v. Scott, 2 Ind. 55; Spears v. Clark, 3 Ind. 296; Zenkerd v. Newkirk, 12 Ind. 544; Croft v. Dodd, 15 Ind. 380. 5 Young v. McCrary, 2 Black 243; 1 Black 191; Lee v. Pile, 37 Ind. 107; Harris v. Pierce, 6 Ind. 162; Vase v Hurst, 13 Ind. 551; Roberts v. Mas- ter, 40 Ind. 461. i CHAPTER XXXI. PRINCIPAL AND SURETY. Surety DEFINED. StTatutTeE oF Fraups. THE SuRETY ON BOND. ON EXECUTION OF THE AGREEMENT. DEARDORFF V. ForsMAN. DISCHARGE OF SURETY BY ALTERATION OF INSTRU- MENT. DISCHARGE OF SURETY BY THE CONDUCT OF OTHER PARTIES. RELEASE OF PRINCIPAL WHEN DISCHARGE OF SURE- TY. RELEASE OF MORTGAGE PROPERTY WHEN DISCHARGE OF suRETY. NoricE To sUE. THE DAMAGES. PAYMENT. SuB- ROGATION. 497. Surety Defined. A surety is one who engages to be answerable for the debts, defaults or miscarriages of another, or who undertakes to do some act in the evént of the failure of another to do it... At common law it was not necessary that the contract of surety should be in writing in order to charge him. This being the case, the statute, 29, Charles II., chapter 3, commonly called the statute of frauds, was passed. The fourth section of that statute, so far as is necessary to be noticed in this connection, was as follows, viz.: “No action shall be brought whereby to charge the defendant upon any special é ' Burrell’s law dictionary. PRINCIPAL AND SECURITY. 431 promise to answer for the debts default or miscarriage of an- other person unless the agreement upon which such action may be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged, or by some person thereunto by him lawfully authorized.” This section has been, in substance, re-enacted in every State in the Union. It forbids the bringing of an action on any agreement to an- swer for the debt, default or miscarriage of another, unless that agreement is in writing and signed by the party to be charged or some one by him thereunto lawfully authorized. A con- tract in parol, made since the enactment of this statute, to an- swer for the debt, default or miscarriage of another, is not. ille- gal or void, but no action can be brought upon it. In the ma- jority of cases it is true that this amounts to the Same thing as if the contract had been declared illegal, but in other cases it does not. And it may be laid down as a general rule that where the contract has been executed on both sides, the statute will not in any manner affect the relation of the parties. If the surety pays money upon an unwritten promise, he can re- cover the amount so paid, with legal interest, from the princi- pal.? 498. The Execution -of the Agreement. Before a surety can be held responsible, the instrument or agreement must be exc- cuted. To execute a written agreement is to sign and deliver it? Questions in relation to the execution of written iistru- ments are frequently brought before the courts in cases where the principal has procured the signatures of certain sureties to an agreement under the promise that he would get other sure- ties to sign with them, and then deliver the instrument with- 2» Shaw v. Woodcock, 7 Barn & Crees 73; McCue v. Smith, 9 Minn. 252; Crane v. Gough, 4 Md. 316, Pamle v. Gunn, 4 Bing. N. C. 445; Andrews y. Jones, 10 Ala. 400; Watrouse v. Clark, 7 Conn. 224; Craig v. Vampelt, 3 J.J. Marsh (Ky.) 489. 3 Peppers v. State ex rel, Harvey, 22 Ind. 399. 432 LAW OF DAMAGES. out procuring the additional names. “The law may now be considered pretty well settled that where the securities’ names are procured in this way and there is nothing on the face of the agreement indicating that other co-sureties were expected to sign or become parties to the agreement, and no fact is brought to the knowledge of the obligee before he accepted the instrument calculated to put him on his guard upon that point, and which would naturally have lead a prudent man. interested in the opposite direction to have made inquiry be. fore accepting the instrument or surety, the fault cannot be attributed to the obligee.* This rule rests upon equitable grounds, and is maintained upon the principle that he who, by his acts, enables one to perpetrate a fraud upon another must 4 suffer rather than an innocent man.® 499. Deardorf’ et al. vs. Forsman. This case was an action brought upon a promissory note. The sureties answered, first, that the principal, who was insolvent, applied to them at the date of the note for their signatures with him as his sure- ties to the plaintiff, which they refused to sign; that he fraud- ulently represented to them if they would sign the note he would procure as co-sureties with them eleven other responsi- ble men, who were named, and that he would not deliver the note to the plaintiff until such signatures were procured. The court below sustained a demurrer to the answer and the sure- ties appealed. In the upper court it was contended that the contract was not binding upon the appellants, for the reason that the note was delivered to the principal to hold as an escrow and to be delivered.on the happening of a contingency or the procuring of the additional signatures. The court, in commenting upon the question, said: “There are but two * Peppers v. the State, 22 Ind. 399. ° Deardorff v. Forsman, 24 Ind. 481. PRINCIPAL AND SURETY. 433 parties to, the instrument, andso long as it is held by the princi- pal it cannot be said to be delivered for any purpose, for it re- mains still in the hands of the party who is only to be bound in any manner upon its delivery to the other. And where there. is no delivery of the instrument by one party executing it, it cannot be said to be held as an escrow. Can a delivery then be made to the principal as the agent of his surety for any other purpose than an unconditional delivery to his obligee? The interest of the principal is to get the obligee to accept the instrument at the earliest moment and with the least number of sureties. The law takes notice of the fact that it is not pleasant to solicit one to become security for any amount, and for this reason that it is to the interest of the prin- cipal to avoid this unpleasant task as much as possible. On the other hand, the interest of the surety requires that the in- strument shall not be delivered until his liability has been re- duced. by the execution of the instrument by his co-sureties. ' But it is a well settled rule of law that he who has an interest in the doing of a particular act cannot accept an agency in the same manner for others, where the interest is adverse to his. A person will not be permitted to assume an agency for others when the interest of his principal would be in direct conflict with his personal interest.” Therefore, the principal cannot hold the instrument as an escrow for the: surety. The delivery of the instrument by the sureties after placing their names upon it to the principal authorizes him to deliver it to the obligee, for such is the natural channel through which the paper would pass in reaching the obligee, and a delivery by him will bind the sureties. The ruling below was confirmed.’ * Deardorff and others v. Forsman, 24 Ind. 481; Peppers v. the State, 22 Ind. 399; Foley v. Cogill, 5 Blackford 18; the State v. Chisman, 2 Ind. 126; Wright v. Shelby & Co., 16 B. Mor. 5; 7 Ind. 600; 6 Ind. 183; 8 Ind. 256; Worrall v. Munn, 1 Seld. 229; Ward v. Lewis, 4 Pick. 518; Fairbanks v. Metcalf, 8 Mass. 230; Babcock v. Steadman, 1 Root Conn. R. 87; 3 Barr (Pa.) 808; 2 Jobns R. 248; 34.N. H. 460; 18 Pick. 75 Palmer v Rich 434 LAW OF DAMAGES. 500. But where an instrument is executed by sureties and delivered to one of their number to keep until certain addi- tional co-sureties shall sign it, the instrament until so exe- cuted is held as an escrow. And where the instrument con- tains the names of the parties who are to execute it, or the obligee has notice sufficient to put him on the inquiry in either of these cases, the delivery Will not bind the sureties.” 501. Discharge of Surety by Alteration of the Contract. The question of -the liability of the surety on instruments in writing, where they have been altered or time extended after execution, frequently arises between parties, and upon this point the authorities are not harmonious. But the rule laid down by that able commentary, Judge Story, has been generally adopted in this country. He says: “Nothing can be clearer both on principle and authority than the doctrine that the lia- bility of the surety is not to be extended beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation he is bound, and no further. It is not sufficient that he may maintain no injury by the change in the contract, or that it may even be for his benefit. Hehas aright to stand upon the very terms of his contract, and if he does not assent to any variation that is made 1E. L. & E. 529; Leaf v. Gibbs, C. & P. 466; Andre v. Dixon, 5 L. & Eq. R. 512; Russell v. Longstiffe, 2 Doug 514; Fullerton v. Sturges, 4 Ohio st. R. 529; Parson on bills and notes, 111; Miller v. Parker, et al , ¥ Met. (Ky.) 608; Dixon v. Dixon, 3 Vt. 450; Story Agency, 8. 211; Copeland v. Mercantile Ins. Co.. 6 Pick. 198; the Utica Ins Co. v. Toledo Ins. Co., 17 Barber 132; 10 Vesey 381; 2 Robinson 556; 19 Barber 595; the State of Ind. on of Lahey v. Gaston, 32 Ind. 1; Blackwell v. the State. 26 Ind. 204; Webb v. Baird, 27 Ind. 368; the State ex rel. McCarthy v. Peppers) 31 Ind. 37. * The People v. Boswick, 32 N. Y. 445; the State v. Baldly, 7 Black 355; Peppers v. the State, 22 Ind. 399. > Muller v. Stewart, 9 Wheat (U. 8.) 680; Judah v. Zimmerman, 22 Ind. 388, . PRINCIPAL AND SURETY. | 435 it is fatal,’ and avoids the instrumentastohim. Any material alteration of the instrument by a party in interest, without the consent of the surety, will discharge him from all liability on the instrument.’ 502. Discharge of the Surety by Extension of Time. The exten- sion of time for the payment of money by the payee of a promissory note has been a great source of annoyance to the legal profession for centuries. It was held as early as the reign of Edward IV. that where the creditor without the consent of the surety gave time to the principal debtor by agreement, even without consideration, that it discharged thesurety. And this rule seems to have been well settled in England for centuries.” But in more recent times the doctrines sprang up, as is now established, that to discharge the surety the agreement to give time must be supported by a consideration. And it may now be considereed as settled by the weight of authorities that in order to discharge the surety by extension of time it must ap- pear that there was an agreement to extend the time to a definite period, and that the agreement was based on a valuable consideration. But an agreement to pay the same rate of interest as specified in the instrument, is not a sufficient consideration to support such a contract. But an agreement to pay the same interest as is specified in the instrument-in advance, where no such provi- sion appears on the face of the agreement, is generally held to be sufficient consideration to uphold such an agreement.* The payment of usurious interest in advance constitutes a sufficient 3 Kountz v. Hart, 17 Ind 329; Holland v. Hatch, 11 Ind. 479 2 Spence’s Eq. J. 638. 3-Abel v. Alexander et al., 45 Ind 523; Bowan v. Houk, 1 Black 392; Naylor v. Moody, 3 Black 92; Conan v the State, 5 Black 367. 4 Bagley v. Bazzell, 19 Maine 88; Lime Rock Bank v. Mallett, 34 Me. 547; S.C 42 Me. 349; Andrews v. Mecmett, 58 Maine 539; Hunter y. Pos- tlewaite, 28 Iowa 427; Gahn v. Niuenwise, 11 Wend. 317. 436 LAW OF DAMAGES. consideration to support an agreement to extend the time of payment of the principal.’ An agreement to extend the time of payment to a definite time of any instrument promising to pay money upon a valuable consideration without the consent of the surety, will discharge him from liability.’ But the giving of time without consideration will not discharge the surety, al- though the surety had no notice of such agreement. As a general rule, a surety is liable to the creditor in the same man- ner and to the same extent as the principal debtor, and he may set up in defense any matter which ought in equity to go to his personal exoneration. 508. The Discharge of the Surety by the Conduct of the Other Parties. It may be laid down as a general rule that no act of the other parties to a contract will discharge a surety from his obligation, unless it in some way impairs his power of recourse against the principal either through a bill in equity or pay- ment of the debt and substitution to the rights of creditor. If his recourse against the principal remains the same as it was at the time he executed the instrmuinent, his right to exoner- ation must fail." Theréfore, where a creditor at the time he re- leases a principal reserves his remedies against the surety, such'release amounts toa covenant not to sue only and does not discharge the surety.‘ ® Harbert v. Dumont, 3 Ind. 346; Redman vy. Deputy, 26 Ind 338; Cal- vin v. Wiggom, 27 Ind. 489; Cross v. Wood, 30 Ind. 378, ® Campbell v. Gates, 17 Ind. 126. * Morgan v. Smith, 70 N. Y. 537; Bouetler v. Stubles, 18 Vesey 20-22; Burke’s case cited, ex-party Gifford, 6 Vesey 805-809; Weeb v. Hewett, 3 Kay & J. 338; Kearsly v. Cole, 16 M. & W. 126; Prout v. the Branch Bank,6 Ala 309; 2 Leading cases in equity, part ii, 353-383; 2 Am. ed.; Price v. Barker, 4 Ellis & Blackburn 769; Viele v. Hoag, 24 Vt, 46. * Baleson v. Gosling, Law Rept. 7, Com. Pl. 9; Hall v. Thompson, 9 Up. Can. C. P. R. 287; Wood v. Britt, 9 Grant Ch. R. 142; Bell v. Manning, 11 Grant Ch. R. 452; Greeso v. Wynn, Law Rept. 4 Ch. Appl. 2047. PRINCIPAL AND SURETY. 437 504. Thus where the defendant pleaded that his principal with whom he was jointly bound having been, as he claimed, released by agreement under seal, which obliged the plaintiff not to sue him, and if he did the agreement thus made should be a sufficient release and discharge to all intents and purposes both at law and in equity to and for all the debtor and his assigns, etc., it was held that the surety was not discharged.’ Since the determination of this case, we believe there has not- been a single decision in the courts of England opposite to the principle it affirms.’ And in the courts of the different States of this country we believe the sanie rule is adhered to without exception.’ ¥ 505. When the Security will be Discharged. As a general rule the release of one of several joint debtors, or joint and several * Dean v. Newhall, 8 J. R. 168 6 Farrell v. Forest, 2 Saund. 48, note 1. So strictly are these technicalities adhered to, that no release is allowed. by implication. It must be the immediate legal result of the terms of the instrument which contains the stipulation, hence it is that a cove- nant not to sue or to assert a claim, or in any manner to hold liable one joint debtor, etc., though it operate between the immediate parties, does not extend to others. Baily v. Berry, 8 Am. L. Reg. 270. ? Baily v. Berry, 8 Am. Law Reg. 270McLelland v. Cumberland Bank, 24 Maine 566; McAllister v. Sprague. 34 ib. 296; Walker v. McCullough; 4 Greenl. 421; Tuckerman v. Newhall, 17 Mass. 581; Shaw v. Pratt, 22. Pick. 305; Smith v. Bartholomew, 1 Met. C. 276; Brown v. Marsh, 7 Vt. 327; Durell v. Wendell, 8 N. H. 369; Snow v. Chandler, 10 ib. 92; Crane; adm., v. Alling, 3 Green N. J. 423; Catskill Bank v. Messenger, 9 Con 38; Rawly v. Stoddard, 7 Johnson 207; Couch v. Mills, 21 Wend. 424; Bronson v. Fitzhugh, 1 Hill 185; Frink v. Green, 5 Barber 455; Alesworth vy. Brown, 21 Ind. 270; Hubble v. Carpenter, 5 N. Y. 171; Morgan v. Smith, 70 N. Y. 537. Where a release of one of several obligors showed upon its face and in its connection with the surrounding circumstances that it wasnotithe intention of the parties to release the co-obligors, and the court was con- vinced that the whole scheme of procuring a separate release of one of the obligors was a plan of all for escaping full payment, the instrument was construed as a covenant not to sue and the co-obligor not discharged. . Parmalee v. Turrace, 44 Ill. 405. % 438 LAW OF DAMAGES. debtors, is a release of all, and a full and final satisfaction of © the whole debt.2, And’ a release that does not discharge the whole debt will not exonerate the security. No agreement will ever be construed into a release unless it gives the cov- enanter a right of action which will precisely countervail that to which the party is liable, unless, also, it was the intention that the last instrument should defeat the first. 506. Construction. In constructing an agreement of re- lease the court will be confined to its terms and within the considerations. No technical effect or any effect beyond what was intended by the parties can be inferred or allowed by im-. plication. It has long been the judicial rule for courts to re- strain such release within its terms in accordance with the in- tent of the parties, and to give effect to it only within this scope.* The intention of the parties is alone regarded, and the old legal maxim in construction is applied that where a par- ticular purpose is to be accomplished and language which ex- presses it is clear and certain no general words subsequently used in the same agreement shall extend the meaning of the parties... Thus where a receipt had been given by a creditor to one of his joint debtors, which receipted that the debtor had paid a certain sum in full of his half of the debt due jointly from him ahd another, and which was to be his discharge itt full for the debts and costs, but no discharge of his co-debtor, | American Bank v. Doolittle, 14 Pick. 123; Tuckerman v. Newhall, 17 Mass. 581; Ward v. Johnson, 13 ib. 148; Elliott v. Holbrook, 33 Ala. 659; Vandever v. Clark, 16 Ark. 331; Rawly v. Stoddard, 7 Johns 207. ~ A release of one or two joint and several obligors is a release of both, but a covenant not to sue one of two obligors cannot have the effect of a release of both. Crane v. Alling, 15 N. J. L. (3 Greenl.) 423. 2 Walker v. McCullough. 4 Me. 421. 3 Druell v. Wendell, 8 N. H. 369. “ Burke v. Noble, 48 Penn. st. ee Rapp v. Rapp, 6 Barr 45; Pierce v. Sweet, 9 Carey 151. 5 Baily v. Berry, 8 A. L. Reg. R. 270; Thorp v.Thorp, 1 Lord Raym. 235. PRINCIPAL AND SURETY. 439 it was decided that this could not be pleaded as a release by the other judgment debtor, as it was the intention of the par- ties that his liability should still remain.‘ 507. Discharge of a Co-Surety. It may be laid down as a general rule, upheld by the decided weight of authority, that the obligation of one of two co-sureties is to pay the whole debt. If he does so, he may recover of his co-surety one-half. If he pays less than the whole debt, he can only recover from the co-surety the amount which he has paid in excess of the moiety. Therefore, when a co-surety has by the.conduct of the creditor been released from liability, another co-surety will be held exonerated only as to so much of the original debt as the one so discharged could have been compelled to pay. If, how- ever, in the discharge of the co-surety the contract is materially altered as a rule, the surety will be discharged.’ 508. The Relation of the Parties Remains the Same After Judg- ment. The relation of the parties to a promissory note or an agreement to pay money continues after judgment. And whatever act that will discharge one of the joint makers of a promissory note or other agreement to pay money will dis- charge a party toa judgment rendered on that note or instiu ment. Thus, where the plaintiff who held a judgment against 6 McAllister v. Sprague, 34 Maine 297; see also Durell v. Wendell, 8 N. H. 369. Where the release pleaded as a discharge to all has been given to one only, it must be a technical release expressly stating the cause of action to be discharged, with all conditions or exceptions. Fitch v. Sutton, 5 East 232; Rawly v. Stoddard, 7 Johns 207; Dizing v. Baily, 9 Wend. 336; Shaw v. Pratt, 22 Pickering 305; Mason v. Jewett, adm., 2 Dana 107. ” Morgan v. Smith, 70 N. Y. 537; Brandt on Sureties, Sect. 383; Jamison v. Grovenor, 48 Ala. 390; State v. Matson, adm, 44 Mo. 305; Schock v. Miller, 10 Pa. st. 401; Klingensmith v. Klingensmith, e’xr, 31 Pa. st. 460; see contrary to this Story v. Johnson, 32 Ind. 438; Thompson v. Adams, 1 Freeman Ch. (Miss.) 225; Stockton v. Stockton, 40 Ind. 225. 440 LAW OF DAMAGES. two defendants for a large-sum of money agreed with one of~ them on his payment of the moiety of the whole, that they would henceforth pursue the legal and equitable remedies on said judgment against the other defendant alone and note against the one who had paid the moiety looking to the delin- quent party alone for a full and final payment and satisfaction of the said judgment without, however, intending to prejudice or interfere wilh the rights and liabilities of the said judgment defendants to each other on account of such judgment. The court said: ‘The general proposition is familiar that'the release of one of several joint debtors is a release of all others, and the appellant contends the proposition is applicable in this case. This is not technically a release.” By its terms it is a mere cov- enant not to pursue one of the parties, and it is made clear by the words that it was not intended to release the other. It is only by implication that it would be construed to release the party who has paid a portion of the money. The cases seems to be uniform that such an instrument would not release. the other, “The sole object which courts can have in the con- struction of instruments would be outraged by declaring this to be a release of both debtors. The law should not be subject to such reproach.” | And this rule applies in its broadest sense to the relation of principal and surety. The surety is both in law and in equity entitled to the same rights, and will be discharged by ' Aylesworth v. Brown, 31 Indiana 270; see also Baily v. Berry, 8 Am. L. Reg., p. 270; 1 Parson. * Commercial Bank v. Western Reserve Bank, 11 Ohio 444; Brown v. Ayer, 24 Ga. 288; Commonwealth v. Miller, adm., 8 Seg. & Rawle 452; May v. Pettengill, 3 Minn. 217; Chambers v. Cochran, 18 Ia. 159; Rice v. Morton, 19 Mo 263; Davis v. Mitchell, 1 Freeman’s Ch. (Miss.) 505; Bangs v. Strong, 7 Hill (N. Y.) 250; Curan v. Colbert, 3 Kelly (Ga.) 237; Brown v. Ex’rs of Riggins, ib. 495; Delaplain v. Hitchcock, 4 Ed. Chaney 321; Allison v. Thomas, 29 La, An: 782. PRINCIPAL AND SURETY. 441 the came act of the creditor after as before. the judgment.’ There are a few cases that hold that the character of the surety as such becomes merged in the judgment, and that he thence- forth becomes a principal and is not entitled to the right of surety. But there is but little conflict upon the subject.‘ 509. Property Mortgaged or Pledged by One for the Debts of An- other Stands as Surety. The law is well settled that where one mortgages or pledges his property, either real or personal, to answer for the debts, default or miscarriage of another person, that such property will occupy the position of a surety, and that anything that will exonerate a personal security will ‘discharge the property.. And this rule applies to a married woman who has mortgaged or pledged her real or personal property to secure the debts, etc., of her husband.* 510. Surety Discharge by Releasing Levy on Property. If the creditor recovers a judgment against the principal and surety, or against the principal alone, and causes an execution to be issued thereon and levied upon real or personal property of the 4 McNutt v. Wilcox, 1 Freeman’s Ch. (Miss.) 116; Bay v. Talmadge, 5, Johns’ Ch. 305. § Robinson v. Gee, 1 Vesey, Sr., 251; Royal Canadian Bank v. Payne 19 Grant Ch. R. 180; Christian v. Brown, 16 Iowa 130; Denson v, Gibson, 24 Mich. 178; Joseph v. Heaton. 5 Grant Ch. 636; Ryan v. Shawneetown, 14 Ill. 20: Lord Harberton v. Bennett, Beatty (Ir. Ch.) 386; Rowan v. Sharp’s Rifle Co., 33 Conn. 1; Union Bank v. Governor, 10 Smedes & Mar. (Miss.) 333, Baker v. Ball, 1 Simons(N.S.) 29; White v. Ault, 19 Ga. 551, ® Johns v. Reardon, 24 Mich. 187; Agnew v. Merritt, 10 Minn. 308; Wal- lace v. Hudson, 37 Texas 456; Wolf v. Ranning, 3 Minn. 202; Spear v. Ward, 20 Cal. 659; Newcomb v. Gahn, 3 Paige 614; Staniford Banking Co v. Ball, 4 De Gix Trib. and J. 310; Gahn v. Numenz, 11 Wend. 312; Knight v Whitehead, 26 Miss. 245; Vartie v. Underwood, 18 Barber 561; Smith v. Townsend, 25 N. Y 479; Bank of Albion v. Burns, 46 N. Y. 170; Coats v. McKee, 26 Ind. 223; Wilcox v. Todd, 64 Mo. 388; Burns v. Coats, 7N, C. 575. \ 442 LAW OF DAMAGES. --... principal subject thereto, and afterwards releases it from .the. levy and it is lost as a security, the surety is discharged to the extent of the injury. This rule is based upon the principle. that the surety is entitled to the benefit of all the securities. which the creditor, after the surety becomes bound or at any time, may obtain for the payment of the debt. The creditor is a trustee to retain and safely keep all the securities that comes into his hands for the benefit of all the parties con- cerned.” 511. Release of a Lien on Property will Discharge the Surety. “ A creditor who has the personal contract of his debtor with surety, and has also or afterwards takes property from the prin- cipal as a pledge or security for the debt, is to hold the property - ‘ fairly and impartially for the benefit of the surety, as well as himself, and if he parts with it without the knowledge or against the will of the surety he shall lose his claim against the surety to the amount of the property so surrendered.” 512. Notice to Sue. It is provided by the statutes of most of the States that if the surety notifies the creditor in writing , 7 Dixon v. Ewing, adm., 3 Ohio 280: Houston v. Hurly, 2 Del. Ch. R. 247; Cooper v. Wilcox, 2 Devereaux & Bat..Eq. 90; Marby v. Dixon, 12 Cal. 561; State Bank v. Edwards, 20 Ala. 512: Spence v. Thompson, 6 Irish com. law 537; Winston v. Yeargin, 50 Ala. 340; Comstock v. Creon, 1 Robinson (La.) 528; Alexander v. Bank of Commonwealth, 7 J. J. Marsh (Ky.) 581; Bank v. Fordice, 9 Pa. st 275; May v. Pettengill, 3 Minn. 217; Shannon v. MeMullin, 25 Gratt (Va.) 21 1 Stewart v. Davis, Exe. 18 Ind. 74; alee v. Briggs, 8 Pick. 122; 25 Ind. 374; 29 Ind. 347; 51 Ind 346. And this rule is extended so far as to exonerate the surety from lia- bility where the creditor exchange the mortgage or pledged property for other property of equal or greater value. Savings Bank v. Concord, 15 N. H. 110." And the rule applies in every instance where the creditor suffers the means of payment or satisfaction to pass without applying them to the discharge of the debt and consequent indemnification of the surety. Perrin v. Fire Ins. Co. of Mobile, 22 Ala. 575. PRINCIPAL AND SURETY. 443 to sue the principal, that if he fails to do so within a reasona- ble or specified time, tnat the surety will be thereby dis- charged.’ But it is well settled that notice in such case must, in order to avail the surety, be a positive demand to bring suit, Technical accuracy is not required. It is sufficient that the, notice is positive and can be clearly understood. The notice should be given to the holder and equitable owner of the note on which the strety is liable, although the legal title is in an- other.’ The giving of the written notice provided by the statute may be waived by parol. Thus, where the surety noti- fied the creditor orally to sue the principal and he promised to do so, the court held that this was a waiver of the written no- tice.‘ 513. Surety on Note Given for Particular Purpose. It may now be considered well settled that where a surety signs a negotiable note, with the principal, for a particular purpose, and it is used by the principal for another ‘and different pur- pose, and the party taking it has then knowledge of the fact sufficient to put him on the inquiry, the surety is not bound. But if he has no such notice the surety will be held liable.’ , Towns v. Riddle, 2 Ala. 694; Shehan v. Hampton, 8 Ala. 942; Hem- stead v. Watkins, 6 Ark 317; Dorman v. Biglow,1 Fla. 281; Reid v. Cox, 5 Black (Ind.) 312; Craft v. Dodd, 15 Ind. 380; Clark y. McCleas, 9 Ind. 245; Stevens v. Campbell, 6 Iowa 538; Jenks v. Clark, 7 Ohio 72; Bolton v. Londy, 6 Mo. 46; Payne v. Webster, 19 Ill 103; Strade v. Hington, 9 Post Ala. 334; First, &c., Bank v. Smith, 25 Iowa 210; Nichols v. Me- ‘Dowell, 14 B. Mon. (Ky.) 6; Greenwalt v. Keitler, 3 Pa..st. 264. ? Routon, adm., v. Lacy, 17 Mo. 309; Kaufman v. Wilson, 29 Ind. 504; ’ Rice v. Simpson, 9 Hisk (Tenn.) 809; Baker v. Kellogg, 29 Ohio st. 663. 3 Overturf v. Martin, 2 Ind. 507; Bank v. Munford, 6 Ga. 44; Kelly v. Matthews, 5 Ark. 223; Adams v. Roane, 7 Ark. 360; Cummins v. Garret- son, 15 Ark. 132; Driskell v. Board, Conn. 53,,Ind. 532. * Taylor v. Davis, 38 Miss. 493; Smith v. Clapton, 48 Miss. 66; English v. Brown, 7 Bush (Ky.) 138; Hamlin v. McCallister, 4 Bush. 418; Simp- son v. Blunt 42 Mo 542; Gillion v. Ludington, 6 West Va. 128; Baily v. New, 2 Ga. 214; Davis v. Payne, 45 Iowa 194. ~-5 McWilliams v. Mason, 31 N. Y. 294; Manufacturers’ Bank v. Cole, 39 ¢ 444 LAW OF DAMAGES. 514. The Damage. Where a surety has been compelled to pay the debt of his principal, he may recover it back with legal interest and costs." But he cannot recover extraordinary ex- penses which might have been avoided by payment of the money or for remote or unexpected consequences. They are never considered as coming within the contract. If the surety by reason of having to pay money for his principal becomes embarrassed and finally takes the benefit of the bankrupt law or make an assignment of his property for the benefit of his creditors, it could not be expected that the principal would in- demnify him for the consequent misfortune. It is not the natural or necessary effect of his being a surety, but is occa- sioned by his undertaking to do what he was not in a condi- tion to perform.’ 515. Payment. The surety has no cause of action against his principal until he pays a part or the whole-of the debt. The question as to what shall be considered a payment by the surety is one not free from difficulty. But it is pretty well settled that if the surety takes up the original note given by the principal and himself, and gives his own note negotiable by the law merchant to the creditor, it will be prima facie evi- dence of payment.' And where the surety takes up the orig- Me. 188; Russell v. Ballard, 16 B. Mon. (Ky.) 201; Prescott v. Brinsly, 6 Cush. 233; Conway v. U. 8. Bank, 6 J. J. Marsh (Ky.) 128; Hite v. Camp- bell, 10 B. Mon. (Ky.) 80; Kimble v. Cummins, 3 Met. 327; Macey v. Adams, 14 Mass. 327; Riddle v. Bowman, 27 N. H. 236; Apgar v. Hiller, 24.N. J. L. 812; Powell v. Smith, 8 Johns N. Y. 249; Holmes v. Weed, 19 Barber 128. * White v. Miller, 47 Ind. 385; Burges on Suretyship, 360; Hite v. Campbell, 10 B. Mon. (Ky.) 80; Kimble v. Cummins, 3 Met. 327; Riddle v. Rowman, 27 N. H. 987; Apgar v. Hiller, 24 N. Y. L. 812; Powell v. Smith. 8 Johns N. Y. 249; Holmes v. Weed, 19 Barber 128. ‘ * Haden v. Cabat, 17 Mass. 169; Bishop v. Williams, 2 Fairfield 495. ' Wood v. Waterville, 5 Mass. 294; Marcely, 6 Mass. 143; Johns v. Johns, i Mass. 359; Butts v. Dean, 2 Met. 76; Seber v. Tupp, 15 M. & W. 23; 2 Greenleaf evid., sec. 521; Thompson vy. Perrysville, 5 Barn & Ad. 925; Siieewell v. Day, 45 Ind. 501. PRINBIPAL AND SURETY. 445 inal agreement and gives his own note to the payee, or delivers to him the promissory note of a third person, and it expressly agreed that such note shall be received in full satisfaction of the debt of his principal, this will be such a payment as will authorize an action by the surety against his principal.2 And the surety may pay off the original obligation before it is due and hold it until it becomes due, and then sue the principal on his failure to pay when it falls due.’ 516. Subrogation. On payment of the debt by the surety the law gives him the right to the original evidence of debt held by the creditor, and to any judgment in which .the debt has been merged, as well as to all the collateral securities held by the creditor.* By performing the contract of suretyship the principal obligation is discharged against the creditor and is kept alive between the debtor, creditor and the surety for the purpose of enforcing the rights of the latter. 517. Contribution. Where one of several sureties on the same obligation has paid off the debt, he may, after it becomes due, bring an action against his co-sureties for contribution. Andin such cases he may recover such an amount as will make them equal inloss.* And when any one or more of the sureties 2 De Butts v. Bacon et al., 2 Cush. U. 8S. 391; 6 Cranch 252; Tyner et al. v. Stoop, 11 Ind. 22; Muldoon v. Whitlock, 1 Cowen 290; French v. Price, 24 Pick. 13. 3 Armstrong v. Gilchrist, 2 Johns cases 424; Craig v. Craig, 5 Rawle 91; Jackson v. Adamson, 7 Black (Ind.) 597; 44 Ind. 15; 39 Ind. 16; 33 Ind. 289. 3 Griffin v. Orman, 9 Florida 22; Winder y. Diffenger, 2 Blan. Ch. 166; Richmnnd vy. Houston, 15 Ind. 134; Coe v. N. J. Mid. R. R. Co., 27 N. J. Eq. 110; Hough v. tna Life Ins. Co., 57 Ill. 318. 4 Fielding v. Waterhouse, 8 Johns & Spencer (N. Y.) 424; 46 Mo 557. 3 Odine v. Greenleaf, 3 N. H. 270; Juda v. Mieure, 5 Black 171. * 1 446 LAW OF DAMAGES. are insolyent, the division is made among those that are sol- vent.‘ 518. A Guaranty Defined.’ A guaranty may be defined to be a contract to become responsible for the payment of money or the performance of a duty by another person who is primarily and properly liable to pay or perform it, or in case of a failure on his part that the party guaranteeing will himself pay the debt or answer for the default,’ or an agreement to answer for the payment of money or the performance of some duty in case of the failure of the one to do so who is in the first instance liable for such payment or the performance of such duty.” 518. Surety and Guarantor. There is confusion in the text books and even in the decisions upon the subject of guarantor and suretyship. Some times the two things are confounded and the terms used interchangeably as signifying the same thing. And, in fact, there is quite a similarity in the nature of the agreements. They are both contracts to answer for the ‘debt, default’ or miscarriage of another, but in many respects they are quite dissimilar. A contract of guarantor is his own separate contract. It is in the nature of a warranty by him that the thing guaranteed to be done by the’ principal ‘ Whitehead v. Pitcher, 13 Ind. 141. But where the surety has paid the debt in real or personal property the value of the property will be taken as the amount paid in making the contribution. Jones v. Bradford, 25 Ind. 305. * Burrell’s Law Dictionary. : +3 Kent’s com. 12. If the writer ofa bill of credit state that he will guaranty the payment of the goods to be afterwards sold to another, or that he will see the goods paid for, or that he will be surety for the payment, the promise is only collateral. . The purchaser, under such circumstances, for whose use the goods are furnished, is himself liable in the first instance, and it is only after his default that the surety becomes liable. He would only be lia- ble in suit founded on special contract. Smith v. Bainbridge, 6 Black (Ind.) 12; Chitty on con., 397. PRINCIPAL AND SURETY. 447 shall be done. His contract is independent of the principal. He is not bound like a surety to do what the principal has en- gaged to do, but only to answer for the consequence of the de- fault of the principal. The original contract of the principal is not his contract, and he is not bound to take notice of its non-performance. In order to bind the guarantor he, as a gen- eral rule, must be notified of the default of the principal, and, as a general rule, he cannot be sued with the principal for his © engagement, as has already been said it is strictly an individual contract.’ A surety is bound with his principal as an original promisor. He is a debtor from the beginning, and must see that the debt is paid, and is held ordinarily to know every de- fault of his principal, and cannot escape responsibility for want of notice or from the fact that indulgence ‘has been given the principal. His obligation to pay the debt is equally abgo- lute with that of the principal. And it may be laid down as a general rule that the mere prolongation of the term of pay- ment of the principal debtor or of the time for the performance of his duty will not discharge the surety or guarantor. There must be another contract substituted for the original contract or some alteration in a point so material as in effect to make a new contract without the surety’s consent to produce that re- sult." As a rule, the same acts that will discharge a surety from his obligation will discharge a guarantor. For the dis- cussion of this question see “Principal and Surety.” 519. Damages. The liability of the guarantor will be measured by that of the principal, and will be so construed unless a less or greater liability is expressly assumed by the guarantor. And whateverdamages the plaintiff has suffered by reason of the default of the principal he can recover off of the 3 McMiller v. B. H. B., 32 Ind. 11; Gaff v. Sims, 45 Ind. 262. 6 Gaff v. Sims, 45 Ind. 262 " Benjamin v. Hillard, 23 How. U. 8. 149. 448 LAW OF DAMAGES. guarantor. The plaintiff, as a general rule, is entitled to full compensation for all loss sustained.° 520. Thus, in one case where the principal failed to de- liver a machine that had been contracted: for, but delivered an inferior machine, that the measure of damages was an amount sufficient to cover the deficiency, and that the contract price was not conclusive as to the value of the machine’ _ 521. Remedy of the Guarantor Against His Principal. Where a guarantor has been compelled to pay money for his principal he can recover it back from the principal with legal interest. And in case he has been sued by the guarantee and notified his principal of that fact, and he refused to make a defense, if the guarantor afterwards, in good faith, makes a defense in a suit against his principal he can recover not only the money paid out by him, but all reasonable and necessary expenses in- curred in such defense, including counsel fees.’ 6 Smith v. Rodgers, 14 Ind. 224; Benjamin v. Hilliard, supra.; Mana- han v. Smith, 19 Ohio st. 384. * Benjamin v. Hilliard, 23 How. U. S. 149. One who has guaranteed that the drawee of an order will pay it with- in aspecified time, is not entitled to notice of non-payment, and is hable for interest from the expiration of the specified time. Gammel v. Para- more, 58 Ga. 54; Davis Sewing Machine Co. v. McGinnis, 45 Iowa 538; Pratt v. Procket, 20 Kans. 201. ' Westfield v. Mayo, 122 Mass. 100-109. CHAPTER XXXII. PERSONAL PROPERTY. Warranty DEFINED. QUESTION DiscusseD. CAVEAT EMp- ToR. Goopds SOLD BY SAMPLE. DAMAGES. EXCEPTIONS TO THE GENERAL RULE. BR#ACH OF WARRANTY OF TITLE. DAMAGES IN CASE OF DISEASED ANIMALS. 522. Warranty in Sale of Property. There are two kinds of warranties, expressed and implied. Expressed warranty: In the sale of personal property, no particular form of words is necessary to constitute a warranty, although the word war- ranty is generally used. Any assertion by the seller in respect to the quality of the property, if intended by the seller and understood by the buyer as such, will be taken as a warranty, whether the word warranty is used in making the contract or not.) 1 Jones v. Quick, 28 Ind. 125; House v. Fort, 4 Blackford 293; Sweet v. Colgate, 20 Johns 196; Duffy v. Mason, 8 Cowen 25; Osgood v. Lewis, 2 Harr & Gill 495. : 450 LAW OF DAMAGES. 523. Where the seller is aware that the buyer is purchas- ing property for a certain purpose he warrants it to be fit for that purpose.’ 524. The Question Discussed. The question frequently arises in courts as to what shall be considered a warranty. It is now pretty generally settled by the authorities that a mere silence implies no warranty; neither do remarks which should be con- strued a simple praise or commendation. Thus, wherein the purchase of a horse the plaintiff made inquiries of the defen- dant about his eyes the defendant responded that his eyes were as “good as any horse’s eyes in the world,” the court held there was no warranty.’ If the manufacturer of an article sells it at a fair market price, knowing the purchaser designs to apply it to a particular use or purpose, he impliedly warrants it to be fit for that purpose, and, if owing to some defect in the article not visible to the purchaser, it is unfit for the purpose for which it is sold and bought, the seller is liable on his im- plied warranty. 525. The Diligence the Law Requires the Purchaser to Exercise. The law requires an individual to exercise his common sense ? Mann vy. Everston, 32 Ind. 355; Passinger v. Thornburn, 34 N. Y. 634; Smeed v. Flood, 102 Eng. com. law, 612; Hadly v. Baxendale, 9 Exch. 341; Griffin v. Colver, 16 N. Y. 489; Jones v. Bright, 5 Bing. 533; Brown v. Edgerton, 2 Mann & Gran 279; Randall v Roper, 96 Eng com. law, 82; Field on the law of damages, sec 278, and notes. * House v. Fort, 4 Black (Ind.) 293; Duffy v. Mason, 8 Cowen 25; Mor- rill y. Wallace, 9 N. H 111; 1 Parson on contracts, p. 879. * Brenton v. Davis, 8 Black (Ind.) 317; Jones v. Bright, 5 Bing. 533; Gray v. Cox, 4 B. & C. 108; Lang v. Fisher, 6 Tount 108; Page v. Ford et al., 12 Ind. 46; see on questions of discount in this chapter the following authorities that bear on the subjects; Croke v. Lewis, 3 Sum 1; Bradford v. Bush, 10 Ala. 386; Tishune v. Dever, 36 Ga. 618; McFalon v. Newman, 9 Watts 55; Kenly v. Fitzpatrick, 5 Miss 59; Morrill v. Wallace, 9 N. H. 111; Brown v. Stephens, 4 Ired (N. ©.) L. 411; Foggart v. Blackweller, 4 ib. 238; O’Neal v. Bacon, 1 Oust. 215; Hawkins v. Berry, 10 Ill. 36; Eden v. Scott, 11 Ill. 35; Marsh v. Weber, 13 Minn. 109. PERSONAL PROPERTY. 451 and judgment in making contracts, and if he fails to do so he cannot recover for any loss that he might by the exercise of such powers have prevented. Therefore, if the defendant war- rants a horse to be sound and free from blemishes and it turns out that he had no tail or but one ear, and such defect was plain and obvious to the plaintiff at the time he made the pur- chase, the law will presume that the parties did not under- stand such defect as coming within the warranty. But if the horse had other defects that were not plain and obvious to men not skilled in the disease of such animals, the defendant can- not claim that the defects were too plain and obvious to be covered by the warranty. 526. Implied Warranty. It is a rule of law that is recog- nized in most, if not all, of the States that the seller of per- sonal property, which he has at the time in his possession, warrants by implication that it is his own and that he has a good title to the same, and this warranty arises from the fact that possession in law is considered equivalent to an affirma- tion of title. And this implied warranty not only means that the vendor has a right to sell, but that it is free from incum- brance. The essence of the contract is that the vendor has a perfect title to the property sold, and that the purchaser will acquire by the sale a title free and clear from prior liens and incumbrance, and shall enjoy the possession without disturb- ance by reason of anything that has been done or suffered to be done by the vendor. And this implied warranty or affirm- ation renders the vendor responsible if the title proves defective inany way. And this responsibility the defendant incurs, 818 H. 4;1B. Pl. 4; South v. Howard, 2 Roll 5; Long v. Hicks, 2 Hump. 305; Diller v. Moore, 2 Eng. 166; Bordry v. Foster, 24 Barber 367; Richardson v. Johnson, 1 La. An. 389; Howard v. Foster, 4 Blackford 294; Margerton v. Wright, 8 Bing. 454; 7 Bing. 603; Gatting v. Newell, 9 Ind. 572. 452 LAW OF DAMAGES. although he may have made the trade in good faith.* If after such sale the vendor acquires a good title free from incum- brance, it will inure to the benefit of the vendor. But where . the property sold is not at the time in possession of the vendor there is no affirmation of title, and consequently no warranty, and if it turns out that he had no title at the time of the sale, unless he has defrauded the plaintiff, he will not be responsi- ble for the failure of title. But a warranty of quality and quantity, etc., will not be implied. It must be made in ex- pressed terms, or in such a manner as to be understood between the parties.° 527. Caveat Emptor, The rule is caveat emptor—let the purchaser take care of his own interest. It is always in the power of the vendee to obtain a warranty, and if he makes a purchase without such a warranty the law will raise none in his favor, and if his title fails he is without a remedy.' 528. The Time the Warranty Must be Made. The warranty must be a part of the contract and made at the time the con- tract is made. A warranty made after the delivery of the * Defrees v. Trumper, 1 Johns 274; Hermancé v. Venoy, 6 Johns 5 Hubbard v. Johnson, 19 Johns 77; Sweet v. Colgate, 20 Johns 196; Reid v. Barber, 3 Cowen 272; Coolige v. Bigham, 1 Met. 551; Buckingham v. Goddard, 21 Pickering 70; Hale v. Smith, 6 Greenl. 420; Butler v. Tufts, 13 Met. 302; Thompson v. Dowell, 32 Me. 87; Huntington v. Hall, 36 Me. 501; Robins v. Rice, 20 Mo. 229; Eddie v Crim, 10 Bar. 445. 5 Sherman v. Chaplain Trans. Co., 31 Vt. 162; Wood v. Carvin, 1 How. 66. But where the seller is not in possession of the property at the time of the sale there is no implied warranty of title. 17 Ind. 365. 5 Mixer v. Coburn, 11 Met. 559; Wernor v. Lombard, 18 Pick. 59; Park- enor v. Lee, 2 East 321; Stuart v. Wilkins, Dougl. 20; Johnson v. Coke, 3 Har. & J. 89; Holden v. Daikin, 4 Johns 421; Dean v. Mason, 4 Conn. 428; West v. Cunningham, 9 Port (Ala.) 104; Moses v. Meade, 1 Denio 378; McKinney v. Fort, 10 Tex. 220. 6 Norton et al. v. Hooten et al., 17 Ind. 365. PERSONAL PROPERTY. 453 Acapedys and the passing of title would be without considera- tion and void. If the vendor during the negotiation makes a statement in regard to the quality of the property, or proposes to sell it with warranty and the sale is not consummated at that time, but at another and different time the vendee noti- fies the vendor that he will take the property and the vendor turns the property over to him, the warranty made at the first interview will enter into and form a part of the contract of pur- chase.? But if the vendor on the first interview propose to warrant the property, but on a subsequent day completes the sale and reduces the contract to writing, and the writing con- tains no warranty, the law raises a conclusive presumption that the whole of the agreement was reduced to writing and .will not permit evidence to show the contrary, and the war- ranty will be inoperative.’ 529. Goods Sold by Sample. Where goods are sold by sam- ple there is an implied warranty by the seller that the bulk of the commodity or the goods sold shall be equal in kind and quality to the sample exhibited to the buyer, and if when the goods are received by the buyer they do not correspond with the sample, the purchaser may refuse to receive them, or if he receives them and afterwards on examination he finds that they are not of the quality he purchased, he may ina reasonable time return the goods to the seller and rescind the contract, or he may keep the goods and sue the seller for damages on his implied warranty.° 2 Kandall v. Rhoads, 1 Curt. 90. * McCluer v. Jeffrey, 8 Ind. 79. ® Ransdell v. United States, 2 Ct of Col. 508; Hall v. Plassan, 19 La, Am. 11; Beebe v. Robert, 12 Mass. 413; Boorman v. Jenks, 12 Mass. 566; Rostly v. Thomas, 22 Texas 270; Andrews v. Kneeland, 6 Conn. 354; Oneida Man. Co. v. Lawrence, 4 N. Y. 440; Bradford v. Manly, 13 Mass. 139; Williams v. Conger, 1 Peter C. Ct. 301; Magee v. Lingsly, 3 Ala. 679; Waring v. Mason, 18 Wend. 425; Bower v. Lewis, 19 Barber 574; Whit- 454 LAW OF DAMAGES. 530. Damages in Case of Breach of Warranty. Where there has been a breach of warranty and the plaintiff sues for dam- ages, as a general rule he can recover the differences between the actual value of the property at the date of the purchase and its value at that date, if it had answered the terms of the warramty.” And if the property is put up at a fair market value and sold to the best advantage within a reasonable time after the sale, the price realized will be prima facie evidence of the value of the property at the time of the plaintiffs purchase.’ aker v. - Puedien: 29 Texas 355; Maute v. Gross, 56 Pa. st. 250;, Merrimon v. Chapman, 32 Conn. 146; Dickerson v. Gay, 7 Allen 29; Gallagher v. Waring, 9 Wend. 20; Salisbury v. Stainer, 19 Wend. 159; Muller v. Eno, 3 Duer (N. Y.) 421; Fraley v. Bispham, 10 Pa. st. 320; Moulton v. Parker, 1 Gray 123; Sanders v. Taylor, 5 Johns 395; Hargrave v. Stone, 5 N. Y. 73; Warring v. Mason, 18 Wed., 425. 2Overbag, adm, v. Light, 27 Ind. 27; Durst v. Burton, 47 N. Y. 167; Rawly v. Woodruff, 2 Lans. 419; Wells v. Selwood, 61 Barber (N. Y.) 238; Edwards v. Colson, 5 Lans. 324; Merrimac Man. Co. v. Quintor, 107 Mass. 127; Frink v. Tatman, 36 Ind. 259; Lacy v. Stranghan, 11 Ia. 258; Lukes v. Barr, 8 Ia. 368; Street v Chapman, 29 Ind. 142; Connor v. Dempsy, 49 N. Y. 665; Tuttle v. Brown, 98 Mass. 205; Foster v. Rogers, 27 Ala. 602; Sharon v. Morsher, 17 Barber 518; Carr v. Moore, 41 N. H. 131; Page v. Parker, 40 N. H. 47; Fisk v. Hicks, 31 N. H. 588; Clare v. Maynard, 7 Carr & P. 741; McAlpin v. Lee, 12 Conn. 129; Dengle v. Hare, 7 C B. N.S. 145; Clare v. Maynard, 6 Ad. & El. 519; Burton v. Young, 5 Harr 233; Hook v Stowell, 26 Ga. 704; Crabtree v Kile, 21 Ill. 180; Street v. Chapman, 29 Ill. 142; Molton v. Santon, 39 Me. 287; Grose v Henry, 13 Allen 389; Fates v. McKeon 2 Hilt N. Y. 53; Renand v. Peck, ib. 187; Muller v. Eno, 4 N. Y. 597; McGawe v. Wood, 1 Sneed, 181; Standenmire v. Williamson,29 Ala 558; Ferguson v. Harris,57 Ind. 438. In an action for a breach of warranty in the soundness of a horse, which the plaintiff obtained in exchange for another horse, the measure of damages is the difference between the value of the horse in his un- sound condition and bis value if sound. Wallace v. Wren, 32 Ill. 75. 5 Overbag v. Light, 27 Ind. 27. The rule of damages in an action for breach of warranty is the differ- ence between the actual value of the property at the time of the sale and what its value would have been had it been as warranted to be, but where there is no evidence as to the value of the property as warranted, except what may be inferred from the price stipulated in the sale, that price may be taken as what its value would have been had it been as warranted. Houghton v. Carpenter, 40 Vt. 588, PERSONAL PROPERTY. 455 And the price paid by the plaintiff will also be prima facie evidence of the value of such an article as would have fulfilled the terms of the warranty.‘ 531. The Exceptions to the General Rule. To the general rule we have laid down there are several exceptions in which con- sequented damages are allowed. Thus in the case of Walcott vs. Mount the plaintiff brought suit for damages for a breach of warranty in the purchase of turnip seed. The plaintiff purchased of the defendant what was represented to be “ early strap-leaf red-top turnip seed.” The defendant was a dealer in seeds and the plaintiff was a farmer. The plaintiff went into the defendant’s store and informed him that he wanted to pur- chase a quantity of such seeds in order to raise a crop for the early market. The defendant showed him the seed and told him it was the kind he inquired for and sold it tohim. The inspection and examination of the seed were of no service to the plaintiff. The seed were of an inferior quality. The plaintiff sowed the seed and cultivated the ground and raised an inferior crop of turnips. The court, in commenting upon the question of damages, says: “In the much canvassed case of Hadly vs. Baxendale, 9 Exch. 341, Alderson B. in pronounc- ing the judgment of the court enunciated certain principles on which damages should be awarded for a breach of contract 4 Overbag, adm., v. Light, 27 Ind, 27; Street v. Chapman, 29 Ind. 142. The general rule in an action by the vendee for a breach of warranty is the difference between the price paid and the worth of the article at the time of delivery, with its defects and vice. But if the vendee has sustained other additional injury, which is either the immediate conse- quence of the failure of the vendor to perform his contract or a material incident thereto, he may recover such damages. Witz v. Morrison, 17 Texas 372. 4 On gale of a horse with warranty it was held that the measure of dam- ages in case of breach was the difference between the value of the ani- mal answering the warranted character and its actual value at the sale. Lacy v. Shanghan, 11 Iowa 258. : 456 LAW OF DAMAGES. which assimilated damages in an action of contract to actions in tort. The rule there adopted as resting in the foundation of correct legal principles, was that the damages recoverable for a breach of contract were either such as might be considered as atising naturally 7. e., according to the usual course of things, from the breach of the contract itself or such as might reason- ably be supposed to have been in contemplation of both parties at the time they. made the contract as the probable result of the breach of it, and that when the contract was made under special circumstances, if these circumstances are communi- cated the amount of injury which would ordinarily follow from the breach of the contract under such circumstances may be recovered as damages that would reasonably be expected to re- sult from such breach.” The court held that the sale of seed ‘by a dealer keeping them for sale for gardening purposes to a purchaser engaged in that business would of itself imply knowledge of the use which was intended sufficient to amount to notice, and that the measure of damages was the difference between the market value of the crop raised and the same crop from the seed ordered.® 532. So where the plaintiff purchased of the defendant a quantity of cabbage seed the defendant warranted the same to be Bristol cabbage seed, and that such seed would produce Bristol cabbage. It turned out that it was not such seed. The plaintiff cultivated the seed and raised a crop of cabbage, but not Bristol cabbage. Suit was brought by the plaintiff to recover damage. The court held that the measure of damages would be the value ofa crop of Bristol cabbage, such as the jury should believe would ordinarily have been produced that year, deducting all expenses of raising the crop and also deducting the products or value of the crop actually raised.‘ 56N Y. 262;34N. Y. 634. * Passinger v. Troburn, 34 N. Y. 634; see Griffin v. Colver, 16 N. Y. PERSONAL PROPERTY. 457 538. Randall vs. Roper. In this case the declaration charged that the defendant by warranting thirty quarts of seed barley sold the same to the plaintiff, and averred that the said seed barley was chevalier seed barley; that the s&id plain- tiff having purchased said seed barley for the purpose of resell- ing, did, without having any notice or knowledge of said breach of warranty, and believing said seed barley to be cheva- lier seed barley, when, in fact, it was not chevalier seed barley, and that the buyer had sowed the same without notice of the fact in their respective lands as and for chevalier seed barley, and the same not being chevalier seed barley yielded and pro- duced rauch less and inferior crops and crops of an inferior quality of barley than the same otherwise would have done had the same been chevalier seed barley. It was agreed that the difference in price between chevalier seed barley and the seed barley delivered was £15, and that the loss to the parties who had purchased of the plaintiff by reason of the difference in their crops was in all £261 7s. 6d. These purchasers had made claims upon the plaintiff for compensation, and the plaintiff had agreed to satisfy them. A verdict was taken for £261 7s. 6d., with leave to the defendant to move to reduce it to £15. The rule was refused. Compton, J., said: “Taking the nar- rowest rule as to the probable and necessary consequence.of a breach these damages fall within it, and all the Judges held and agreed that the plaintiffs were entitled to recover the damages sustained by their vendee upon a breach of warranty.”* 262; Jones v. Bright, 5 Bing. 533; Brown v. Edgerton, 2 Mann & Grau 279; Oliver v. Hanly, 5 Neb. 439; Fleck v. Weatherton, 20 Wis. 392; 39 N. Y, 53; 3 N. J. 262; 69 N. Y. 62; Feris v. Comstock, 33 Conn. 513; White v. Miller, 71 N. Y. 118. In aguit on a warranty of onion seed, which proved worthless, it was held that the plaintiff was entitled to recover as damages the amount paid for the seed, the value of his labor in preparing his ground for the seed. after deducting the benefits to the land, and the value of his labor in planting the seed, with interest on the several amounts. 33-Conn. 513. * 96 Eng. com. law, 82. 458 LAW OF DAMAGES. 534. And it is a well settled rule of law in this country that where an article is sold with a warranty and the vendee resells with a like warranty, the sum paid by him in an action by his swbvendee for a breach of that warranty is prima facie evidence of the amount which he will be entitled to recover from his vendor in an,action in his own behalf.’ 535. Breach of Warranty of Title. In an action upon a war- ranty of title to personal property, the measure of damages is the price paid with interest thereon, together with the costs recovered by the true owner against the purchaser in a suit to recover the property or its value, but costs can only be recov- ered when the vendor had due notice of the pendancy of the action.» The authorities are somewhat in conflict as to what expense the vendee may lawfully make in defending his title that he can recover from the vendor. But it may now be con- sidered pretty well settled that he may make any defense in good faith that he may see proper, and if he is defeated in the suit he may recover from the vendor the price of the property, with interest and costs.® 536. Where an action was brought on a guaranty that stock sold should be worth seven hundred dollars within a year from the date of the contract, it was held on breach that the ® Reggio v. Bragiotti, 7 Cush. 166; Armstrong v. Perry, 5 Wend. 535; Blasdale v. Babcock, 1 Johns 518; Muller v. Eno, 4 Kern 597; Foster v. Rogers, 27 Ala. 602; Field on law of dam., sec. 274. § Armstrong v. Perey, 5 Wend. 535; Case v. Hall, 24 Wend. 102; Bent v. Denny, 31 Barber 540; Shattuck v. Green, 104 Mass. 42; Rawland v. Shelton, 25 Ala. 217. In New York the vendee was sued in trover for a horse he had pur- chased with warranty. Judgment against him for the value of the horse. He then sued his vendor for the price of the horse. Held, that he could recover the amount recovered in the trover suit and the costs. Blasdale v. Babcock, 1 Johnson 517; see Cooleridge v, Bingham, 1 Met. 547. PERSONAL PROPERTY. 459 measure of damages was the difference between the highest market value reached by the stock within the specified time and seven hundred dollars.* 537. Diseased Animals. The defendant sold to the plaintiff two oxen. At the time the plaintiff made the purchase he told the defendant that he would not have them if there was the least fear of disease, as he desired to put them with his other stock, whereupon the defendant replied that they were quite sound and free from disease. The plaintiff took them home and placed them with other cattle. The two oxen died of the rinderpest, which they had upon them at the time of the sale. They communicated the disease to other cattle, nine of which died from such disease. Plaintiff brought suit on his warranty. The court held that the plaintiff could recover not only for the two oxen purchased, but for that of the nine other beasts which had caught the disease and died.” 538. In a recent case one who sold a cow toa farmer with- out fraud, warranted her-free from foot and mouth disease. The cow had disease and communicated it to other cows be- ® Woodward v. Powers, 105 Mass. 108. 7 Knowles v. Nunn, 14 L. J. N. S. 592. In an action of fraud in the sale of diseased sheep where there was a warranty of soundness, it was held that the purchaser could either re- scind the contract and on 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 with which, without the fault of the plaintiff, they were mingled. Marsh v. Weber, 16 Minn. 418; Jefferson v. Biglow, 13 Wend. 518. In Texas if the vendee sustains additional injury, which is the imme- diate consequence of the breach of warranty or a material incident there- to, he may recover the damages in addition to the difference in value. Wentz v. Morrison, 17 Texas 372; Randall v. Roper, 1 E. B. & E. 84; 4 Jur. N.S. 547; 35 L. J. C. P. 399; 14 W. R. 898; 14 L. J. N. S. 558; Rose v. Wallace, 11 Ind. 112; Faris v. Lewis, 2 B. Mon. 375. 460 LAW OF DAMAGES. longing to the plaintiff, with which she had, in the ordinary course of his business, been placed, and she and several of them died in consequence. The presiding Judge charged the jury that in estimating the plaintiff's damages they might consider the fact that the plaintiff was a farmer and that the seller knew or must be taken to know that the cow in question would be placed with other cows, and that the consequence which resulted might naturally have been expected. The plaintiff had judgement for the loss of all the cows.’ 539. And it may now be laid down as a general rule that the plaintiff in an action for a breach of warranty can recover such damages as may fairly and reasonably be considered either arising naturally, that is according to the usual course of things, from such breach or such as may reasonably be sup- posed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it. It has, therefore, been frequently held that in a suit for a breach of warranty for the soundness of an animal, that the plaintiff could not only recover damages for the difference be- tween the actual value of the animal at the time of the pur- chase and its value at the same time, if it had answered the terms of the warranty, but also reasonable expense incurred in taking care of and trying to cure the animal, together with the expense of keeping it for such a reasonable length of time as was necessary to effect a sale at the best advantage, including expense of selling.? ‘540. In the case of Page v. Ford, the plaintiff by cross- 1 Smith v. Green, L. R. 1 C. P. D. 92. The same rule applies in case of fraud. Mullett v. Mason, L. R. I. C. 559. * Perry v. Andrews, 41 Vt. 631; Clare v. Maynard, 7 C. & P. 741; Ellis v. Chinnack, 7 C. & P. 169; Chesterman v. Lamb, 4 Nev. & M. 195; Sedg. on dam., 289; Fagin v. Beasly, 23 Go. 17. PERSONAL PROPERTY. 461 bill alleged that he had purchased of the defendant a steam engine and boiler which the defendant had manufactured for him, to be used in a saw-mill of the plaintiff's, of which the defendant had knowledge and made them expressly for that purpose ; that the boiler was worthless in consequence of defect in material and workmanship; that soon after it was set up, owing wholly to such defect, it bursted, and by reagon of it bursting the plaintiff’s mill was injured, etc. The court held that if the engine proved unsound and unfit for the purposes to which it was to be applied, and if in attempting to apply it as proposed the purchaser should, without fault upon his part, in consequence of such unsoundness and unfitness suffer dam- agos by the destruction of that kind of property, which it was reasonable the parties to the contract contemplated would be necessarily placed in close proximity to the machinery, that the plaintiff could recover damage for such destruction.’ 541. It isa settled rule of law that where manufacturers undertake to construct.and set up within a specified time an engine or other machinery of a stipulated quality or power, and he fails to deliver the article within the time specified and of the quality designated, the measure of damages is the difference between the machinery furnished and that called for by the contract, to which may be added the damages result- ing from a failure to deliver within the time.’ Profits that the plaintiff would certainly have realized, but for the defen- dant’s default, can be recovered. Those which are speculative cannot.® . 142 Ind. 46; see also Long v. Langridge, 2M. & W.519; 4 ib. 337; Pal- mer v. Pierce, 2 Sand. (S. C.) 120; White v. Mapily,.8 Pickering, 356; Driggs v. Dwight, 17 Wend. 71-74; Brown v, Edgerton, 2 M. & G, 433; 2 Cush. 46; Lawrence v. Wardwell, 6 Barber 250; McAfee v. Crawford, 13 How. 447. 2 Griffin v. Colver, 16 N Y. 489; Fisk v. Tank, 12 Wis. 276. 8 Griffin vy. Colver, supra; West Gravel Road Co. v. Cox, 39 Ind. 260; 462 LAW OF DAMAGES. 542. The rule in England is clearly laid down in the case of Smeed v. Ford, where the plaintiff purchased from the de- fendant a steam thrashing machine to be delivered in three weeks from the time of the purchase, or from the 24th of July. The plaintiff desired to use the machine to thrash out his wheat in the field and at once send it to market. The defen- dant failed to deliver the machine. The plaintiff’s wheat was greatly damaged by reason of a heavy rain-fall, so that it was almost worthless. Suit was brought for damages. Lord Campbell, in commenting upon the case, said: “The ques- tion is whether under the circumstances surrounding the case the plaintiff can only recover nominal damages or whether he is entitled to substantial damages. The rule is to be taken from Hadly vs. Baxendale, which accords with the code Napo- leon, with Pothier, and with Chancelor Kent, and which de- cides that the plaintiff is entitled to receive as a compensation such damages as are the natural consequence of the breach of the contract, or such as may reasonably be supposed to have been in the contemplation of the parties. I do not say how far this rule applies to the circumstances of that case, but it is an obstructory rule of law which I agree with. Then apply- ing that rule to this case, I say that the plaintiff is entitled to substantial damages, for this is not like the case of a horse in- tended to run a race, which was sent by a railway and was not delivered in time, so that he lost the chance of winning the race, nor like the case of fight which might have won the pize, nor like the other cases put by Lord Ellensborough of a man traveling who was delayed on his journey by the coach breaking down per quoad, and who lost his lieutenantcy. The plaintiff, who was a large farmer, was known by the defandant to be accustomed to thrash out his wheat in the field. He 3 Wheat 546; 5 Wheat 385; Rhoads v. Baird, 16 Ohio st. 573; Davis v. Cin. R. R Co, 1 Denny 23; Cooper v. Young, 22 Ga. 269; Taylor v, Ma- guire, 12 Mo. 313; 13 Mo. 517; Singer v. Farnsworth, 2 Ind. 597. PERSONAL PROPERTY. 463 gave the order for the thrashing machine, which was agreed should be delivered on the 14th of August, at which time the wheat might reasonably be expected to be ripe for thrashing. The defendant knew that it was wanted for that purpose. Then was it not on the contemplation of the parties that if it was not delivered at that time damages by rain might ensue to the plaintiff? The thunder storm occurred and the plaintiff's wheat was damaged. If the engine had been delivered at the time agreed upon the wheat would have been thrashed out and would havé been carried to market in good condition, in- stead of which it was damaged. Is not the injury a natural consequence of the breach of the contract, and may it not rea- sonably be supposed to have been foreseen’ by the parties?” There was no want of diligence on the part of the plaintiff to procure another machine. The court held that the plaintiff was entitled to recover damages for the injury to his wheat caused by the rain. But that he could not recover for the fall in the market price, as that could not have been in contempla- tion by the parties at the time they made the contract.‘ 543. The American Rule. As we have already intimated, the party “injured is entitled to recover all his damages, in- cluding 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 con- templation of the parties when they made the contract, that is they must be such as might naturally be expected to follow its * Smeed v. Ford, 28 L. J. Q. B. N. S. 178; Sedgwick’s leading cases on damage, 275. 3 In an action for a false warranty in the sale of chattels, the measure of damages is the injury sustained by the plaintiff in consequence of the breach. Hogan v. Thornin: ton, 8 Post Ala. 428. The same transaction cannot be characterized as a warranty and a fraud at the same time. A warranty rest on contract. Fraud and fraud- ulent representations have no elements of contract in them. 49 Ind. 77. 464 LAW OF DAMAGES. violation, and they must be certain both in their nature and in respect to the cause from which they proceed.” 544, Goods Bought for a Certain Market. And it may be laid down as a general rule that where goods are bought for a certain market and the seller is apprised of that fact, he war- rants them to be fit for such market; in an action for a breach of the warranty, the plaintiff will be entitled to damages for all losses sustained, including the profits he would have ‘made upon the sale, had the articles been as represented. 544. The Price Paid. There has been and now is some confusion in the books as to the measure of damages in an ac- tion fora breach of warranty of the quality of property pur- chased. It is contended by a few authorities that in no case can the plaintiff recoveran amount in excess of the purchase 5 Griffith v. Colver, 16 N. J. 469; Hamilton v. McPherson, 28 N. Y. 72; Krom v. Long, 48 NY. 679; Crater v. Berger. 33 N. Y 513; Delvin v. Mayor, 683 N. Y 8; Pittsburg Coal Co. v. Foster, 8 Am. Law Regs. 368; Fasseler v. Love, 12 Wright 410-411; Fleming v. Beck, 12 Wright 312-313. Where damages were claimed for a breach of warranty in the sale of machinery by a person not a manufacturer and where no fraud was charged, it was held to be an error to instruct the jury that they might allow as damages the value of the use of the machine for a reasonable time to make the repairs necessary to cause the machinery to comply with the warranty Booker v. Goldsborough. 44 Ind 490. 6 Lewis v. Rountree, 79 N. C., 122. ‘ A similar relaxation of this restrictive rule has been made, at least to a qualified extent in action on contract and loss of profits, resulting nat- urally from the breach of the contract hasbeen allowed to enter into the damages recoverable, where the profits that might have been realized from the performance of the contract are capable of being estimated with a reasonable degree of certainty. In an action on a warranty of goods adapted to the China market, and purchased with a view to that trade, the purchaser was allowed damages with reference to their value in China as representing the benefits he would have received from the contract if the defendant had performed it. Bridge v. Wain, 1 Starke, 504. See Smith v. McGuire, 3 H. & N., 554; Hadley v. Baxendale, 9 Exch., 341. PERSONAL PROPERTY. 465 XN price. And that the true measure of damages is the difference between the purchase price and the actual value of the prop- erty with the defect.’ But this rule has been gradually de- clining until it is now, as has already been said, only recognized by the courts of a few States. The Supreme Court of the State of Iowa in a recent case which was brought by the plain- tiff to recover damages for a breach of warranty in the sale of bonds of the city of Memphis, Tennessee, with semi-annu- al interest coupons attached thereto, the complaint alleged “that the defendant agreed that the principal of the bonds was or should be guaranteed and provided for by the sinking fund set aside for that purpose.” And further “that said in- terest coupons as delivered to the plaintif were not paid at maturity, and that neither the defendant nor the city of Mem- phis aforesaid have provided for the payment of the principal of said bonds, and that neither the defendant nor the city of Memphis have set aside any sinking or any other fund for the payment therefrom of the intercst on said bonds, or were the ultimate payment of the principal of such bonds should be paid.” The court, after holding that the agreement eonstitu- ted a warranty, said: “The plaintiff claims as damages the difference between the market value of the bonds such as were in fact delivered, and the market value of the bonds secured by a special fund for their payment, in accordance with the defend- ant’s warranty. He says the bonds would, in the market, have been worth one hundred cents on the nominal dollar, therefore, if the defendat had kept their agreement good, and the bonds actually delivered are worth only half that sum in the market,. and he asks for judgment for the differenee with interest. - While there has been great fluctuation of judicial opinion on the question of the measure of damages in cases of a breach of warranty in the sale of personal property, Mr. Sedgwick states the result of the cases that “the true measureof damages is the 7 Caswell v. Coare, 1 Tount, 566, Mayne on dam., 88. 466 LAW OF DAMAGES. difference between the value of the thing sold would have had at the time of the sale if it had been sound, or corresponded with the warranty, and its actual value with the defect? * * (citing many authorities given at bottom of this page). Ther® are many other cases holding to the same rule, while some of the early cases hold the measure of damages to be the differ- ence between the price paid, or to be paid, and the real value. The rule as stated by Mr. Sedgwick and contended for by the plaintiff has beens adopted by this court * * ‘(case cited _ below), in which case the defendant. pointed out and pretended to sell the plaintiff one tract of land, and fraudulently con- veyed to him another, and it was held that the measure of damages was the difference between the two pieces of land® 545. As far as we have been able to ascertain the only States in which the old rule, making the measure of damages the difference between the price paid and the value of the property with the defects, are Illinois,’ Connecticut,® and Georgia.’ 546. Damages in Case of a Failure to Deliver Personal Property. The authorities are not uniform in this country upon the sub- ject of the measure of damages in an action on a breach of contract for the delivery of personal property. They all agree, however, that the vendee should have full compensation for Sedgwick on the measure of dam. 324; VanAllen v. Il]. Cent. R. Co., 7 Bows 515; Simpkins v. Low, 49 Barb. 382; Cary v. Guman, 4 Hill 625; Comstock v. Hutchin, 10 Barb. 211; Thornton v. Thompson, 4 Gott 121; Woodward v Hocker, 21 Vt. 580; Staughter v. McRoe, 3 La. Ann 455; Borrikins v. Beauens, 3 Ramh 23; Roberts v. Carter, 28 Barb 462. 2Hahn v. Cummings, 3 Iowa 583. sCallaman v. Brown & Co, 18 Ia. 333. sMorgan v. Ryeson, 20 Ill. 343; Crabtree v. Kile, 21 Il. 180. *McAlpin v. Lee, 12 Conn. 12; Ferris v. Comstock, 33 id 513. iClark v. Neefnill, 46 Georg. 261. \ PERSONAL PROPERTY. 467 actual loss sustained. They only differ in regard to the rule courts and juries should adopt in assessing the plaintiff actual loss, or in awarding him full compensation; but we think that the principle generally recognized by the courts of the differ- ent States for the assessment of damages on a breach of an executor contract to deliver personal property sold in the absence of fraud is as follows:' Where the price has not been paid, the actual loss sustained is the difference’ between the contract price and market value of the property at the time and place the delivery should have beenmade.’ This rule is adopt- ed in almost all commercial transactions, and where the prop- erty has been advanced in value between the time of the sale and delivery. The reason for this rule is that the vendee who has been deprived of the benefit of his bargain if he had received the property could not have realized more from its sale than such property was worth in the market ; or if property of the same kind and quality could have been procured at the same place it was his duty to have at once invested his money in the pur- chase of such property as he had contracted for. Therefore his actual loss would only be the rise in the value of the property between -the time of the sale and the time fixed for the delivery. \ 2 Dana v. Fiedler, 12 N. Y. 220; Field on law of dam. 232; McKnight v. Dunlope, 1 Seld. N.Y 537; Billings v. Vanderbeck, 23 Barb 546; Zen- her v. Dale, 25 Ind. 433; White v. Tompkins, 52 Pa. St 363; 3 Parsons on Contoact 205; Pillpotts v. Evans, 5 M. & W. 475; Rand v. The White Mountain River Company, 40 N. H. 79; Cannon v, Folsom. 2 Ia. 101; Crosley v Walkins, 12 Col. 12 Col. 85; Bartlett v. Blanchard, 18 Gray 429; Barnard v. Conyer. 6 McClane C. ©. 497, 6 Wheat 109-118; 2 Wend. 899-407, 3 Cow. 82; Davis v. Shield, 24 Wis. 322; Arnold v. Suffolk Bank, 27 Barb. 424; Clark v. Penn, 7 Cow 681; Davenport v. Wells, 1 Ia. 598° Canan v. Folsom, 2 Ia. 101; Ronden v. Eaton, 4 Tex. 289; Collen v. Me Fadden, 18 Texas 324; Stewart v. Price, 3 Texas 715. ® 468 LAW OF DAMAGES. His complete indemnity is to receive that sum which, with the price he agreed to pay, would enable ‘him to buy the: article which the vendor had failed to deliver, or an amount that would place the vendee or plaintiff in the same financial condition that "he would have been had the property been delivered pursuant to contract.’ ; 547. When the Price Has Been Paid. In several of th> States a different rule prevails, and in case where the purchase money has been paid in advance, the measure of damages on breach of contract for the delivery of personal property is the highest market value at any time between the breach and the commencement of the suit, and even in some States to the time of the trial, provided the plaintiff acts with promptness in bringing his action.‘ The reason for this rule is this, that the party to whom compensation is due must be fully indem- nified and that the wrong doer must not be permitted to de- rive any benefit or advantage from his wrongful act, and that this indemnity will be arrived at by adding to the value of the property at the date of the breach the damages that the ven- dee has proven to have sustained, every- increase of value that 5 Dana v. Field, 12 N. Y. 40. If the party entitled to the benefit of a contract can protect from loss arising from the breach thereof at a trifling expense, or with reasonable exertion, it is his duty to do it. And he can charge the delinquent party with such kamages only as with reasonable endeavor and expense he could not prevent. Muller v. Marine Church, 7 Greenl. 51. In a suit instituted with reasonable diligence on a breach of contract for the sale and delivery of new corn, which had been paid for in ad- vance, the measure of damages is the highest market price of corn at any time between the contract time of the delivery and the rendition of the verdict. Kent v. Ginter, 21 Ind 1; see Clark v. Penney, 7 Com. N. Y. 681; West v. Wentworth, 3Conn 82, 2 Conn. 488; Davis v. Shields, 24 Wend. 322; Arnold v. Suffolk Bank, 27 Barb. 424; 19 Conn. 212; 4 Texas 289; 13 Texas 212; 2 Iowa 201; 6 Georgia 520; 20 Ala. 694; 1 Nott. & Cord. 334; Shepherd v. Hampton, 3 Wheaton 200. Seedom dam. v. Jenks, 3 Sandford, 8. C. R., 618. PERSONAL PROPERTY. 469 the wrong doer has obtained, or had in his’ power to obtain., And further, that the vendee or purchaser having parted with his money may not be able to go into the market and purchase other goods.6 But this rule has not, as we have already no- ticed, been generally adopted. For the courts of quite a num- ber of the States hold that the true measure of damages, even where the purchase money has been paid in advance, 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 stip- ulated 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 gen- erally and everywhere recognized, 548. McHose v. Fulmick. In this case the Supreme Court of the State of Pennsylvania in commenting upon this ques- tion says: “When a vendor fails to comply with his contract, the general rule for the measure of damages undoubtedly is the difference between the market price of the article at the time of the breach. This is for the evident reason that the vendee 5Seedom v. Jenks, 3 Sanford S. C. R. 613; Sedgwick on dam. (3d ed.) 291; Millison v. Hoch, 17 Ind. 227. ® Kountz v. Kerkpatrick, 72 Pa. St. 22. 6 Fiold on the law of damages, sec. 246. 7™The difference between the contract price and the market value at the time and place of delivery is the measure of damages, whether the article was paid for or not.” Startup v. Corterri, 2 Crankyann M & R’s Exch. Reps. 165; 3 Sanford S. C. 614; 16 Pick 194; 5 Watts & Seg. 106; 11 Serg. & R 452; 2 Kent (2d ed.) 480; Sedgwick on measure of dam- ages 288-290; Lorder v. Allen, 2 Bibb, Ky. 388; Gottering v. Neuell, 12 Ind. 125; Houg v. Meyers, 9 Ind. 391; Beckel vy. Colton, 41 Miss. 368; Haskell v. Hunter, 23 Mich. 305; Northrupt v. Cook, 39 Mo. 208; Ward vy. Burr, 5 Block (Ind) 116; Baldwin v. Nichols, 4 E D S. (N. Y.) 14; Hamilton v. Ganyard, 34 Barb. (N. Y.) 204; Carrie v. White, 37 Home Pract. 330. York v. Verplank, 65 Barb. 316; Copper Co. v. Copper Min- ing Co., 33 Vt. 62. 470 LAW OF DAMAGES. can go into the market and obtain the article contracted for at that price. But when the circumstances of the case are such that the vendee cannot thus supply himself the rule does not apply. * * * Ifan article of the same quality can not be procured in the market its market price cannot be as- certained, and we are without a necessary data for the applica- tion of the general rule. Thisis a contingency which must be considered to have been in the contemplation of the parties, for they must be presumed to know whether such articles are of limited production or not. Insuch a case the true measure of damageg is the actual loss the vendee sustains,’ 549. Damages where Property is sold for a Purpose. Where the defendant sells an article that he knows the plaintiff intends to use to fulfill a sub-contract and the defendant has knowledge of its terms, the plaintiff may recover the difference between thesub-contract price and the principal contract price, and this is upon the ground that the parties have impliedly fixed the measure of damages, or rather, made the contract upon the basis of a fixed rule, by which they may be assessed. But the question is not fully settled by the authorities whether this rule can, under any circumstances be applied when the article purchased has a market value. But applying the rule laid down in the case of Hadley v. Baxendale, that if the special circumstances under which the contract was actually made were communicated to the plaintiff, and thus known to both parties, the damages resulting from the breach of such con- tract, which they would reasonably contemplate would be the amount of injury which would ordinarily follow from the breach of the contract. We are inclined to the opinion that the rule would apply even where the article purchased had a market value.’ ™73 Pa. st., 865. _* Booth v. the Spuyten Dunill Rolling Mill Co., 60 N. Y., 487; 114 C. PERSONAL PROPERTY. 471 550. In the case of Booth v. The Suyten Dunnill Rolling Mill Co., which was a suit for a breach of contract to furnish the plaintiff with four hundred tons of steel-capped rails. The defendant agreed to make and deliver them to the plaintiff during the months of January, February and-March. The de- fendant before making the agreement was informed of the plain. tiff’s contract with the Central Railway Company, and that the caps were necessary to be used in making the rails. Both parties knew the caps could not be procured elsewhere in time to enable the plaintiff to fulfill his agreement to: deliver the caps to the Railway Company. The iron base and steel cap of a rail, when separated, had no market value, nor was there any market value for the complete rail. The defendant failed to deliver the caps as per agreement. The Court held that the plaintiff could recover the amount of profits he would have made in the whole transaction. In other words his damages was the profits he would have made on the sale of the caps to the railroad company.? 551. Again. In the case of Borries v. Hutchinson, which was an action brought for a breach of contract to deliver a quantity of costic soda. The Court held that as the article was not one of constant demand and supply, so that there was no market which could be resorted to for the purpose of ob- taining it; that the rule allowed the assessment of the plain- tiff’s damages at the difference between the value of the goods at the time of the breach of contract, as compared with the contract price, did not apply, and that the basis of the plain- tiff’s damages was not the market price of the. goods at the L. R.. 445; 7L. RB. C. P., 587; 26 L. & Eq., 398; 34 N. Y., 364; 40 N. Y., 422: 9C. L R, 82; 54N. Y., 586; 3 Q. B., 181; 102 E. C. L., 602; L. R. 3 C B., 449; L. R 8C. P.,131; Borries v. Hutchison, 18 C. B.; N S., 445; 8S. C,, 34; L. J. N. S.C. P. 169; 11 Jur. N.S., 267; 13 W. R 384; 11 L. T. N.S., 77. 560 N. Y., 487. 472 LAW OF DAMAGES. time of the breach. And that as the defendant had notice at the time he sold the goods that the plaintiff desired them for the purpose of resale to a sub-vendee,on the same continent, that a differen’ rule for the assessment of damages must be re- sorted to, and that the rule laid down in the case of Hadley y. Baxendale was applicable where it was held that when two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered as arising naturally, that is, according to the usual course of things-from such breach of contract it- self, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as.the probable result of the breacu of it. And that, according to this rule the plaintiff could recover the difference between his purchase price, and the price he had re-sold it for, or, in other words the loss of profits on the re-sale.® 552. And in a recent case where the plaintiff purchased a large amount of shirting, to be manufactured according to samples and informed the defendant before the consumation of the bargain that he was purchasing it for shipment, the de- fendant agreed to furnish the required amount at a’fixed price, and with an agreement to deliver at a designated time. The defendant, before the time fixed for the delivery, notified the ‘ plaintiff that he could not comply with the contract. There were no other goods of the kind in the market, and the plain- tiff, to fulfill his contract with his sub-vendee, had to buy else- where,-at a high price, goods which were better but were in quality and price the nearest obtainable to those contracted for. He was allowed to recover the difference between the price he contracted to pay the defendant and that he was forced to pay elsewhere.® 5 Borries v. Hutchinson, 18 C. B. N. S., 445; 8. C., 34. “Hinde v. Liddle, L. R. 10 Q. B. 265. PERSONAL PROPERTY. 473 553. Dai®ges where the Goods are to be Delivered at Different Times. The courts have had great difficulty in arriving at the measure of damages in cases where defendants have agreed to deliver goods in certain quantities, at stipulated times, and before the time appointed for the delivery of the last quantity refuse to comply with the contract. It is contended by some authors that the plaintiff can, on the refusal of the defendant tocomply, consider the contract at an end and bring suit to recover damages for a breach of the whole contract. But the better rule is that in the absence of evidence on the part of the defendant that the plaintiff could have obtained a new con- tract on such terms as to mitigate his loss, the true measure of damages is the sum of the differences between the contract price and the market price at the several periods for delivery, notwithstanding the fact that the last period ,had not elapsed -when the plaintiff commenced his action.’ 554. The Case of Hadly vs. Baxendale. The rule laid down for the assessment of damages in this famous case about a quarter of a century ago, by the English Exchequer court, has been commented upon by courts and law writers in almost every nation in the civilized world, and is everywhere recog- nized for its sound logic and equitable principles. It seems to have been the first case in which the question of limitation of responsibility for a breach of contract was definitely and satisfactorily settled. The rule there laid down isa simple one; and perhaps is as free from objection as any that could be established. It is based on the idea, or presumption, that par- ties in making a contract take into consideration, the injurious consequences that will naturally follow in the case of the breach of it. Therefore in case of a breach by one of the con- tracting parties the damages that the other can recover are "Roper v. Johnson, L. R. 8 C. P. 167; 42 L. J. R. N.S. C. P. 65. 474 LAW OF DAMAGES. such as may fairly and reasonably be considéfed as arising naturally from the usual course of things, or such as may reasonably be presumed to have been in the contemplation of both parties at the time they made the contract as the proba- ble result of the breach of it.’ 555. This rule has been recognized and approved by the courts of England and this country ever since the decision was rendered. In some cases it has been criticized and questioned, but in no case has it been entirely disregarded and rejected.’ 556. The Court of Appeals of the State of New York in the case of Griffin vs. Colver, in comment on the question of remote and speculative damages said: “The broad, general rule in such cases is, that the party injured is entitled to re- cover 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 it must be such as might naturally be ex- pected to follow its violation and they must be certain both in nature and respect to the course from which they proceed.”® 19 Eng. Exch. 34. 2 9 Exch. 341; Hamilton v. McPherson, 28 N. Y. 72; Woodward v. The G. W. Railroad Co., 2 L. R. 318; Hamilton v. The G. Northern R. Co., 1H. & N. 408; Hale v. London & N. W. R. Co., 4 B. & S 66; Gee v. Lancaster, etc., R. Co., 6 H. & N. 211; Wilson v. L. & Y. R. Co, 9C. B. 632; Collard & 8. E. R. Co.,7 H. & N. 79; Boyd v. Fett, 14 Irish L. 43, Dunlope v. Higgins, 1 H. & L. Con. 381; Smeed v. Foord, 1 El. & El 602; Krom v. Long, 48 N. Y. 689; Shepard v. Milwaukee Gas Light Co , 15 Wis. 318; Hinkly v. Beckwith, 13 Wis. 31; Abbott v. Gatch, 13 Md. 314, Copper v. Copper Min. Co., 33 Vt. 92; Ashe v. DeRosett, 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. Fos- ter, 59 Pa. St. 365; Wolf v. Studeybaker, 65 Pa. St. 459; Phaland v. Ardens, 52 Ill. 486; M. Manufacturing Co. v. Quentain, 107 Mass. 127; Booth v. Spagler Dunghill Mill Co., 60 N. Y. 487. : 316 N. Y. 489; Develin v. Mayor, 63N. Y. 8; Booker v. Goldsborough PERSONAL PROPERTY, 475 557. The General Rules Deduced from all the Authorities. After the examination of the leading authorities in this country and in England, we have for convenience concluded to give all the rules laid down for the assessment of damages in an action for a breach of contract for the sale and delivery of personal property : 1. Where the price has not been paid in advance and the vendor fails to deliver the property that he has sold to the vendee at the time and place fixed by the contract, in an ac- tion on such breach the vendee can recover the difference be- tween the contract price and the market value of the property at the time and place of delivery... The market value in this rule is considered equivalent to the property itself. From this amount of property is deducted the contract price, as payment has not been made; and this reduces the damages to an old, well settled rule, “that the amount which would have been received if the contract had been kept is the true measure of damages if the contract is broken. 2. If suit is instituted without unreasonable delay on the 44 Ind. 490; White v. Miller, 71 N. Y.118; Messmore v. N.Y. Shot & Lead Co, 40 N. Y 422. “Kent v. Genter, 23 Ind. 1; Clark v. Pennig, 7 Cow. 681; Frank v. Satman, 36 Ind. 259; Dana v. Field, 12 N. Y. 220; Field on the law of dam., 232; McKnight v. Dunlope, 1 Seldon (N. Y.) 537; Billings v. Van- derbeck. 23 Barb. 545; Zenker v. Dale, 25 Ind 433; White v. Thompkins, 52 Pa St. 363; 3 Parsons on Contracts, 205; Pillfrath v. Evans, 5 M. & W. 475; Rand v. W. Mount. R.. Co., 40 N. H. 79; Cannon v. Folsom, 2 Ia. 101; Crosley v. Watkins, 12 Cal. 85; Bartlett v. Blanchard, 13 Gray 429; Barnard v. Conger, 6 McClane 497; 6 Wheat. 109-118; 2 Wend. 399- 407; Harper v. Smith, 3 Cow. 82; Davis v.-Shields, 24 Wis 322; Arnold v. Suffolk Bank, 27 Barb. 424; Clark v. Penn, 7 Cow. 681; Davenport v. Wells, 1 Ia. 598; Canon v. Folson, 2 Ia. 101; Randon v. Barton, 4 Tex. 289; Collin v. McFadden, 13 Tex. 324; Stewart v. Price, 3 Tex. 715. 5 Frank v. Tatman, 36 Ind. 259; Kountz v. Killpatrick, 72 Pa. St. 22; Wordon v. Norris, 49 N. H. 376. 476 LAW OF DAMAGES breach of a contract for a failure to deliver personal property that has been sold and paid for in advance, the measure of damages will be the highest market value of such property at any time between the contract time for the delivery, and the time of the trial But if the suit is not brought within a reasonable time, and the property has not been paid for in ad- vance, then the vendee can only recover the highest market value of such property at any time between the breach and the commencement of the action. For the reason for this rule see anti-section 499. 3. Where personal property has been sold and the price paid in advance, and the vendor has failed to deliver it at the time and place agreed upon, in an action by the vendee on such breach he can recover the market value of the property at the time and place it should have been delivered.‘ 4. And where personal property purchased from a vendor and which he has failed to deliver at the time and place agreed upon, has no market value, then the true measure of damages in an action for a breach of the contract is the actual loss the * Kent v, Gentry, 23 Ind. 1; Clark v. Pery, 7 Cow. 681; Frank v. Tat- man, 36 Ind. 259; Clark v. Penny, 7 Cow. 681; West v. Wentworth, 3 Cow. 822; Conn. 488; 4 Texas 289; 2 Iowa 201; 6 Georgia 530; 20 Ala. 694; 1 Nott. & McCord 334; Shephard v. Hampton, 3 Wheat 200; West v. Pritchard, 19 Conn. 211. If a suit is instituted with reasonable diligence the plaintiff, in case the price is paid in advance, can recover the highest market value of the property between when it should have been delivered and the ren- ditition of the judgment. Kuntz v. Killpatrick, supra. 5 See authorities above. ® This rule is recognized and adhered to by the courts of several of the States. Beckel v. Colton, 41 Miss. 368; Haskell v. Hunter, 23 Mich. 305; Northrup v. Cook, 3 Mo, 125; Ward Burr; 5 Blackf. (Ind.) 116; Startup v. Cortarri, 2 Compt. Mus & Roscoe Exch. R’s 165; 3 Sanford 8. C. R. 614; 3 Mass. Rep. 364; 16 Pick. 194; 5 Watts & Serg. Rep. 106; 11 Seg. & R. 452; 2 Kent (6 ed.) 480; Field on the law of dam. sec. 246. PERSONAL PROPERTY. 477 plaintiff has sustained by reason, of the defendant’s default. And this rule applies whether the price is paid in advance or not. And it is generally adopted by the courts of this coun- try and England.’ 5. Where personal property is sold for the purpose og enabling the vendee to fulfill an existing contract for re-sale at an advanced price, which the seller is informed of at the time of the purchase, in an action by the vendee for a failure of the vendor to deliver at the time and place stipulated for in the contract, the measure of damages is the profits the plaintiff would have realized from the re-sale. This rule is based on the idea that the parties, when they mide the con- tract, had in contemplation the consequential result of the breach of it. And the rule is generally adhered to, both in this country and in England.’ 558. Damage for Failure to Deliver Stocks. For many years there was a strong tendency among law writers and courts to make a distinction between stocks and other property. The 7 Kountz v. Kirkpatrick, 72 Pa st. 376; Forsythe v. Palmer, 2 Harrors 97; Montgomery v. Reese, 2 Casey 146; Trout v. Kenedy, 11 Wright 393; Begdenberg v. Welsh, Baldwin Rep. 331; Suydom v. Jenkins, 3 Sandf N. Y. 641; Hinde v. Liddell, L. R. 102 B. 265. 1 Messmorse v. S. & L. Co., 40 N. Y. 462: Borries v. Hutchison, 18 C. B N. 445; Hinde v. Liddell, L. R. 102 B. 265. In this case where the defendant, being informed that certain shirt- ings, to be manufactured according to sample, were’ intended for ship- ment, contracted to supply the plaintiff with them at an agreed price, hy a fixed date, and shortly before the day notified the plaintiff that he could not supply them within the time and there were no other goods of the kind in the market; and the plaintiff. to fiulfill his contract with his sub-vendee, had to buy elsewhere at a higher price, goods which were better, but were in quality and price the nearest obtainable to those contracted for, he was allowed to recover the difference between the price he had contracted to pay the defendant and that he was forced to pay elsewhere. 478 LAW OF DAMAGES. reason that they assigned for the excepticen not being consid- ered valid, the more modern commentaries and decisions have refused to recognize the doctrine and have placed stocks on the same footing of other personal property. Judge Sedgwick, in his excellent work on damages, says: ‘There appears to be no solid reasons for making any differénce between stocks and any other vendable commodity. Where stocks are loaned, or the price of the stock or other article is paid for, the party en- titled to the delivery parts with his delivery on the faith of the contract, and in either case is prevented from using it up to the time of the trial. The question is, whether in either case the law should act on the assumption that the plaintiff would have retained the property 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 conjectured.”? But notwithstanding the conflict and confu- sion among authorities, we think it may now be laid down as a general rule, upheld by the weight of authority, that where stocks have been sold and paid for in advance, and the defend- ant fails to deliver them according to contract time and. place, the plaintiff may recover their highest market value up to the time of the trial. The rule allowing the highest market value of the article up to the time of the trial, rests on too many violent presumptions to be altogether ‘satisfactory. It must be presumed: 1. That the plaintiff has parted with his money for the stock. 2. That he obtained it as a permanent investment. 3. That he would have retained it until the time of the trial. When each of these presumptions is as baseless 2 Sedg. on dam. 273. s Field on the law of damages, 257; Downer v. Black, 1 Stark 318; Har- rison v. Harrison, 1 C. & P. 412; Ocum v. Routh, 140. B (5 J. C. Scott) 537. The courts of several of the States still insist, with a great deal of earnestness, that the old rule should still be adhered to, and the differ- ence kept up. Field on law of damages, 227. ; PERSONAL PROPERTY. 479 as the fabric df a dream, and the rule, instead of being gen- erally fixed and certain, is merely speculative, conjectural and dependent on accidental circumstances.‘ 559. The Market Value. The only object that courts have in considering the matket value of an article in estimating the plaintiff’s damage, is for the purpose of arriving at his actual loss and award him full compensation. The market value is not itself the value of the article, but is only evidence of its value. It stands as a criterion of value because it is a common test of the ability to purchase the thing of others; and to assert that’ ‘the price asked in the market for an article is the true and only test of value, is to abandon the proper object of damages —full compensation for all loss sustained. The rule has been adopted for its convenience, and from the further fact that it generally answers the object of the law, which aims to com- pensate for the injury. But it is manifest that this rule can not, without great hardship, be universally adopted; for there are many articles that have no market value at all. But courts would not from this fact alone be justified in saying that the article is of no value. It is evident that the market value is not an invariable standard; and it sometimes hap- pens, and especially is it true in the sale of stocks, that the market value is unnaturally inflated by unlawful and fraudu- lent practices, so that it cannot be the trué means of ascer- taining what is a just compensation. On the other hand, the 4 Stuart v. Kieth, 57 Ill. 451. We think it may be laid down as a rule that the plaintiff, in an action to recover damages for the uon-delivery of stocks at the time and place designated by the contract, will be entitled to have his loss assessed in the s:me way that they are assessed in other cases of the same chara ‘- ter. and for other property. See authorities above. Arnold v Suffolk Bank, 27 Barb. 424, Barnard.v. Hamilton 2 Rankin cos 624; Shaw v. Holland, 15 H. & W 136 But in Indiana and Pennsylvania the dis- tinction between stocks and other merchandjse is still kept up Mont- , gomery v. Reese, 26 Pa. st. 148; Kent v. Genter, 23 Ind. 1. 480 LAW OF DAMAGES. price of an article is very frequently reduced below its actual value by the same means; so that the rule allowing the plain- tiff the highest market value up to the time of the trial ap- plies only in case of those articles that have a market value, and does not apply to goods that have no such value.’ In determining what is the market value of property at a par- ticular time, the jury are sometimes authorized to take a wide range, for in some cases this value is not always ascertainable by perceived fact, but must rest on opinion, and the law will not allow either party to gain by mere inflated or fancy prices. Therefore, where there is an inflated or accidental value sud- denly put in force-by some speculative movement, and as sud- denly passing away, it cannot be allowed as the true test of the plaintiff’s damage. The law, in regulating the measure of damages, contemplates a range of the entire market and adopts the average price thus found, running through a rea- sonable period of time.® 560. The Damages where the Vendee Fails to Comply. In an action for not accepting goods that have been purchased, the measure of damages is the difference between the contract price and the market value or price on the day when the ven- dee ought to have accepted the goods. This rule is based on the principle that the vendor shall be fully compensated for all loss sustained by the default of the vendee, and is upheld by the weight of authority.’ . Suydam vy. Jenkins, 3 Sandf. N. Y 641; Clark v Penny, 7 Cow. 68; Field on the law of damages Sec. 250. ® Kountz v. Kirkpatrick, 72 Pa st. 376. * Pitt., Cin. & St. L. R. R. Co. v. Heck, 50 Ind. 303; Williams v. Jones. 1 Bush. 621; Haskill v. McHenry, 4 Cal. 411; Allen v. Janis, 20 Conn. 38; Northrup v. Cook. 39 Mo 208; Gatting v. Newell, 12 Ind 118-125; Beard v. Sloan, 38 Ind. 128; Ganson v Moding, 13 Wis 67; Gordon v. Norris; 49 N. H 376; Chittg. on Contract, 11 Am ed. 1331. PERSONAL PROPERTY. 481 561. Damages for Failure to Accept Goods Manufactured for a Certain Purpose. Where goods are manufactured after a partic- ular fashion, or in a particular way, according to order, and the vendee refuses to take them at the stipulated time and place, and the vendor brings an action for damages, he can recover the difference between the contract price and the value of the property when it should have been expected. The reason for the departure from the ‘general rule in this class of articles or goods is that they have no market value or price.* 562. Damages where Article is Manufactured to Order. But where an article has been prepared, such as a statue or a:pic- ture of a particular person, to order, or where a mechanic makes a specific article in his line, to order and after a particu- lar measure, pattern or style, or for a particular use or purpose, where he has fully performed his share of the contract, and tendered or offered to deliver the article thus manufactured according to contract, and the vendee refuses to receive and pay for the same, the plaintiff may recover the full contract price.’ 563. Damages where a Part of the Property Has Been Delivered. The old rules of the common law, as interpreted by the courts of this country a half century ago, were such that if the ven- dor of personal property contracted to deliver an entire lot or quantity of property or goods for a specified price, he could 5 Pitts etc. R. R. Co. v. Heck, 50 Ind. 303; Gordon v. Norris, 49 N. H 376; Old Colony R. R. Co. v. Evans, 6 Gray 25; Griswold v. Sabein, 51 N.H. 167: Bement v. Smith, 15 Wend. 4938 The rule of damages is the same as in breach of contract for the sale of real estate. Pitts. etc. R.R. Co. v. Heck, supra. See Porter v. Travis, 40 Ind 556. 2 Pitts., OC. & St. L. R. BR. Co. v. Heck, 50 Ind. 303; Allen v. Jamis, 20 Conn. 38; Bement v. Smith, 15 Wend. 493; Ballantine v. Robinson, 26 Pa. 177; Gordon v. Norris, 49 N H. 876; McCormick v. The N. Y. & E. R. R. Co, 20 N. Y. 495; Dustan v. McAndrews; 44 N. Y. 72-78. The same rule applies on the delivery of any other class of goods. 482 LAW OF DAMAGES. not recover for any quantity delivered less than the whole? Thus, if one engaged to deliver to another one thousaud head of fatted hogs for ten thousand dollars, and he delivered under the contract nine hundred and ninety-nine of the hogs, and failed to deliver the last one of the thousand, he could recover no part of the purchase money. This old, severe rule, that is so much in conflict with the principles of right and justice, is being modified in such a manner as to give the vendor right of action for what the property delivered is reasonably worth, but the vendee may recover his damages for the breach of con- tract to deliver the whole of ‘the goods.’ This is bringing the rule down to the old familiar maxim that is so universally recognized by the great mass of the peo- ple, “that a man sha’nt have something for nothing” And we think that the time is not afar distance in the future when this maxim will be adhered to everywhere. 566. The Liberal Doctrine Recognized. The doctrine laid down in the preceding section is now fully or partially recog- . nized in Indiana, Michigan, Wisconsin, Illinois, Pennsylvania, Maine, Texas, Tennessee, Missouri, New York and other States.’, 3 Dermont v. Jones, 2 Wall 1. 42 Parsons on Contract 35; Baker v. Hoyt, 18 Peck 555; McKinny v. Springer, 3 Ind. 59; Epperley v. Baily, Ia. supra, 72; McCluer v. Secrist, 5 Ind. 31; Ricks v. Yates, Ia. 115; Wheatly v. Meascol, 5 Ind. 142-261; ‘Britton v. Turner, 6 N. H 495 481; Pexler v. Nichols, 8 Ia. 106; McCoy v. Hedges, 18 Ia. 66; Dawes v. Fish, 1 G. Greene (Ia.) 406; Crooksacks v. Malory, 2 Ia. 257, Eyser v. Weissegeiler, Ia. 463; Mitchell v. Wiscotta Land Co., 3 Ia. 209; ‘Tice & Mc. v. Sherman, 10 Ia 60; Cornur v Wall, 17 Ia 374; McAffee v. Hale, 24 Ia. 355; Field on the law of dam., Sec 332, 333, 334. 5 Wiley v. Hack; 25 Mich. 419; Bishop v. Price, 24 Wis 480; Trolenap v. Barrett. 30 Wis. 661; Jones v. Jones, 2 Swan Tem. 605; Edington v. Pick, 1 Smeed Tenn. 122; Allen v. Kibber, 5 Mich. 444; Davis v. Baring- ton, 10 Fost N H. 517; Sinclair v. Talmage, 35 Bash. N. Y 602; Neb>v. Browhn, 24 Ill. 268; McKing v. Springer, 3 Ind. 59; Dermont v. Jones, 23 How. 220; Western v. Sharp, 14 B. Mon. Ky. 177; Lamb v. Brolaski 88 Mo. 451; Newman v. McGregor, 5th Ohio st. 349. CHAPTER XXXIIL CONTRACTS FOR SERVICES. DAMAGES IN CASE OF BrEAcH OF ContTRACT TO PERFORM SER- Vick. THE DECISION ON THE SUBJECT. DAMAGES IN CASE OF BREACH BY THE EMPLOYER. DAMAGES IN CASE OF BREACH BY THE EMPLOYE. 567. The Division of the Subject. In the discussion of the question of the measure of damages for a breach of con- tract for services, we propose to notice: 1. The damages arising érom a breach of contract by the employer. 2. The measure of damages on account of the breach of the contract by the »mploye. But before we proceed to notice the questions in detail, we desire to say that the law never attempts to make contracts for parties; its only office is to enforce them. It pre- sumes that every individual is sui juris, or capable of man- aging his own affairs. It holds out every reasonable induce- ment to encourage men to engage’ in enterprises that will be remunerative to them and beneficial to the State. In doing 484 ‘ LAW OF DAMAGES. this it never releases an individual from a contract or vbliga- tion entered into by him with a full knowledge of all the facts.’ Therefore where work is done under special contract, fix- ing the price to be paid thereof, as a rule the contract will control the price, and the question whether it is reasonable or unreasonable will not be considered; and in an action on such agreement the plaintiff can recover the amount stipulated to be paid, or the unpaid balance due by the terms of the con- tract... “But if there is no agreement as to price of the service, , then the employe may recover so much as t.1e services are reasonably worth.” ” 568. Where one has entered into a contract to labor for another, and the employer refuses to accept the labor of the employe, and forbids him to perform it, the contract is bro- ken, and the employe has a complete cause of action. He has however, two remedies growing out of the wrongful act.' He may treat the contract of hiring as continuing, though broken by the employer, and may recover damages for the breach. He may rescind the contract, in which case he can sue on the quantum merwit for services actually rendered. These reme- dies are independent of an additional to his right to sue for a ' This rule is subject to a few exceptions. It is based on the supposi- tion that all parties are capable of making contract, while children feme coverts, and insane persons are not. : ‘Clark v. Mayor, N Y. 4 N. Y. 338; Bingham v. Howly, 17 Ul. 38 McClelland v. Snider, 18 Ill. 58. ° Field on the law of dam. sec. 323; Frazer v. Gregg, 20 Ll]. 299; Gra- ham v. Graham, 34 Pa st. 475; Westen v. Sharp, 14 B. Mon 177. In the case of Street v. Swaine the court below instructed the jury “that if there was a finding for the plaintiff the measure of damages would be the price agreed upon, or if there was no price, then the rea- sonable value of the material and work, 21 Ind, 203. ' Howard v. Daly, 61 N. Y., 362. CONTRACT FOR SERVICES. 485 a sum actually earned and due by the terms of the contract. This last amount he recovers because he has completed either in full or'\in a specific part the stipulation betweeu the parties. The first two remedies pointed out are appropriate to a wrongful discharge. Under the first remedy mentioned the plaintiff must hold himself in readiness to perform. If that readiness exists at Uhe time set for the service to commence, and the defendant committed a default, a further tender of per- formance is not necessary in order to recover. For it is a rule that a tender of performance is not necessary where there is a willingnessand ability to perform, and actual performance has been prevented or expressly waived by the party to whom per- formance is due? 569. The Duty of a Dismissed Servant to get other Employment. The law makes it the duty of a dismissed servant to use rea- sonable exertions to get other employment. And on the trial of the cause the court will presume that the employe has dis- charged his duty in this respect. And if suit has been brought after the time of service has expired, the plaintiff will be en- titled to recover the contract price for the full time, unless the defendant can show that he has, or might have by reasonable diligence, procured employment elsewhere, in which case the measure of damages will be the difference, if any, between the contract price and the price he has, or might have, received elsewhere.’ But where suit is brought before the expiration 4 2 Francot v. Leach, 5 Cow , 506; Cost v. Ambergot R. R. Co., 17 A. & E., N. §., 127; Nelson vy, Pleppfton Fire Proof E. Co; 55 .N. Y., 480; Howard v. Daley, 61 N. Y., 363. 32 Greenleaf on evid. s., 261; Cortegon v. Mana H. R. R. ‘Co., 2 Den., 609; Howard v. Daley, 61 N Y., 362; Hunt v. Crane, 33 Miss., 669; Prichard v. Mastin, 27 Miss., 306; Danby v. Williams, 16 Wis., 681; Stunburg v. Gilchrist, 41 Mo., 520; Thompson v. Wood, 1 Hilt., N, Y., 594; Nearn v. Harbert, 25 Mo., 352; Pond v. Wyman, 15 Mo., 175; Has- sel v. Nutt, 14 Tex., 260; Nations v. Cndd, 22 Tex., 550. 486 LAW OF DAMAGES. of the contracted time for the performance of the service, the employe can only recover pro rata to the time suit is brought.‘ 570. The Act of God. All human laws are, or should be, auxiliary to the divine law, or the laws of God. And the courts take judicial notice of the workings of the laws of nature upon all sublunary creatures. Therefore it may be laid down as a general rule that the act of God, which prevents an individual from fulfilling an engagement to perform labor, as death, will excuse him from performing the same at law ; and where one engages to perform labor for another, and after a part performance dies, his representatives may recover from the employer pro rata for the time employed, or the amount of service rendered, according to the price stipulated to be paid; or if no price is stipulated for, then on the quantum mesuit, with a deduction of the damages sustained by the employer in con- sequence of the employe not being able to complete the full term. And it is well settled that neither party to an execu- tory contract shall be injured by either death or sickness, or from natural or unavoidable causes. Actus Dei nemini foeit in- jurt am? *Where an employer, without sufficient cause has dismissed the ser- vant before the end of his term, the servant can only recover the value of his services to the time he was dismissed, and the damages he has suttained by the dismissal- Ricks v. Yates, 5 Ind., 115; Jones v. Van- pattent, 3 Ind., 107; Wright v. Falkner, 37 Ala., 274; William v. Chicago, 60 Ill., 149; Ream v. Watkins, 27 Mo., 516. 5 Coe v. Smith, 4Ind. 79; Tomax v. Baily, 7 Black 599; Milnes v. Van Horn, 8 Black, 198; Fenton v. Clark, 11 Vt. 557. Where A contracted with B to labor for him four months froma given day, at $10 per month, and to receive no pay until he had worked the four months, and was prevented from completing the four month’s labor by reason of sickness, he might recover, upon a quantum meruit, for the service performed. Fenton v. Clark, 11 Vt. 557; Seoner v. Moron, 20 Vt. 620; see Farrow v. Wilson, 4 L R. P. 744; Boast v. Frith, Ia.1; Wolf v. Howe, 20N. Y. 197; Jones v. Judd, 4 N.Y. 412; Doter v. Brown, 25 Ga. 24; Fuller v. Brown, 11 Mich. 440; Hule v. Belden, 27 Vt. 645; Allen v. . McKibbin, 5 Mich. 449; Clark v.. Gilbert, 26 N. Y. 279. CONTRACTS FOR SERVICES, 487 571. Breach of Contract by the Employer. Where an execu- tory contract has been broken by the employer, the employe may maintain a suit for damages arising from such breach, and the measure of his recovery will be all the loss sustained by reason of such breach or default, and this includes gains that he would certainly have made.’ But the rule in refer-., ence to the recovery of profits will be limited to such as would have accrued and grown out of the contract itself, as the direct and immediate fruits of its fulfillment. Such profits are con- sidered a part or a parcel of the contract itself, entering into and constituting a portion of its very elements. Something stipulated for, the right to the emjoyment of which is just as clear and plain as the fulfillment of any other stipulation. The court will presume that they were taken into considera- tion before the contract was made, and formed perhaps the only inducement to the contract.*| Thus in the case of Morri- son v. Lovejoy, which was an action brought by the plaintiff against the defendant for a breach of contract to pay for saw- ing lumber, and for the failure of the defendant to furnish the plaintiff with logs to be sawed into lumber pursuant to a con- tract between them. The court, in rendering its opinion, said: ‘Where one party to an executory contract, like that on which this action is brought, refuses further to comply with it on his part, the other party has an immediate cause of action for said breach, and he may sue on it at any time and recover the damages which he may have sustained by being deprived of the benefit accruing to him under it. If he treats the contract as ended, and sues immediately upon its breach, his damages are to be measured by the value of the contract 5 Fail v. McKee, 36 Ala. 61; Fox v. Hadding, 7 Cushen 516; Cunning- bam v. Dorsey, 6 Cal. 18; May on dam. 16. “ Masterdon y. Mayor of Brooklyn, 27 Hill (N. Y.) 61. Stoy v. N. Y. & Harlan R. R. Co., 6 N. Y. 85; Seaton v. Municipality, 3 Lend Ann, 44; Dunn v. Johnson, 33 Ind. 54. 488 LAW OF DAMAGES. to him at the time it was broken, and this value is estimated by the profits he would have realized during the continuance of the contract had it been faithfully carried out by the par- ties. But in estimating the profits which a party under such a contract would realize, allowance must be made for any item of costs and expense necessarily attending a full compliance on his part. If, therefore, the eontract is for manufacturing a -given article, and mills or machinery are necessarily employed in making it, the reasonable or usual rent or value of the use of such mill or machinery enters into the costs of manufac- turing, and should be taken into consideration in estimating the profits, because the profits are distinctly affected by such expense as by any other.’* 572. Damages where there Has Been a Part Performance. It was thought for years that the common law gave an employe no remedy where he undertook to perform an entire contract for a specified price, and he voluntarily left his employer’s service before the expiration of the period contracted for! But in most of the States this rule, that seems to have been adopted more for the punishment of those who failed to com- plete their term of service than to give to each person their just due, has been set aside. And now a person who has abandoned the service of another before the expiration of the time, may recover upon the common count for work and labor to the extent of the benifit of his services actually rendered was to his employer, over and above the damages his failure to comply with his contract occasioned. 4 Morrison v. Lovejoy, 6 Minn. 319. 1 Ricks v. Yates, 5 Ind. 115; McMillen v. Vanderbig, 12 John. 165; Thorp v. White, 13 John. 326; Jennings v. Camp, 13 John 94; Clark v' Smith, 14 Johns. 326; Keab v. Moore,19 John. 337; Henson v. Hamp- ion, 82 Mo. 408; Pory v. Garth, 7 Mo. 94; Dickson v. Caldwell, 17 Mo. 575; Ellis v. Hamlin, 3 Taunt. 52. * Ricks v. Yates, 5 Ind. 115; Britton v. Turner, 83 Vt. 35; Dyer v CONTRACTS FOR SERVICES. 489 573. But it should be remembered that in order for the employe to recover, the employer must have accepted either di- rectly or indirectly the products of the labor. Thus in the case of Britton v. Turner, the Supreme Court of New Hamp- shire, in commenting on the question, after alluding to cases establishing the doctrine that in building contracts which had not been strictly complied with, the party for whom the work had been done, and who had been benefitted thereby, was liable for a reasonable value of the work, says: ‘Those cases are not to be distinguished in principle from the present, unless it be in the circumstances that where a party has contracted to fur- nish the material and do certain labor, as to build a house in a specified manner, if it is not done according to contract the party for whom it is built may refuse to receive it, and elect to take no benefit from what has been performed, and therefore, if he does receive it, he shall be bound to pay, whereas; in con- tracts for labor merely from day to day the party is continual- ly receiving the benefit of the contract under the expectation that it will be fulfilled, and cannot, upon the breach of it have an election to refuse to receive what has been done, and thus discharge himself from payment. * * * The party who contracts for labor merely for a certain period, does so with t Jones, 8 Vt. 205; Gillman v. Hall, 11 Vt 510; Brackett v- Morris, 23 Vt. 554; Morris v. Cummings, 26 Vt. 645; 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 Cont. 35; Thqmas v. Dike, 11 Vt. 273; Dorcher v. Conti- nental Mills, 50 Md. 217; Jones v. Jones, 2 Swann (Tenn.) 605; Britton v. Turner, 6 N, H. 495-481; Pixly v. Nichols, 8 Ia. 106; McCoy v. Hedges, 18 1a. 66; Davis v Fish, 1 G. Green (Ia.) 406; Crookshanks v. Mallory, 2 Ia. 257; Eyser v. Weissgesler, ib. 463; Mitchell v. Wescott Land Co., 17 Ia. 314; McAffee v. Hale, 24 Ia. 335; Wely v. T. Sch. Dist. No. 1, 25 Mich. 419; Bishap v. Price, 24 Wis. 480; Trobridge. v. Barrett, 30 Wis. 661; Edgerton v. Peckle, 1 Smed. 122; Allen v. McCelelur, 5 Mich 449; Sinclair v. Talmage, 35 Barb. 602; Niles v. Brauhn, 24 IIl. 268; "McKin- ny v. Spring, 3 Ind. 59; Dermont v. Jones, 23 How. 220; Wstern v. Sharp, 14 B. Mon. 177; Lamb v. Broloski, 38 Mo. 51; Newman v. Mc- Gregor, 5 Onio st. 349. 490 LAW OF DAMAGES. a 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 performance, and with a knowledge, also, that the other party may eventually fail of completing the entire term. If, under such circumstances, he actually re- ceives a benefit from the labor performed, over and above the failure to complete, there is much reason why he should pay the reasonable worth for what has been thus done for his benefit, as there is when he enters and occupies the house which has been built for him, but not according tu the stipulations of the contract, and which he, perhaps, enters, not because he is sat- isfied with what has been done, but because circumstances compel him to accept it, such as it is, that he should pay for the value of the house. It is said that in this case, where the plaintiff has been permitted to recover, there was an accept- ance of .what had been done. The answer is that where the contract is to labor from day to day for a certain period, the party for whom the labor is done in truth stipulates to receive it from day to ‘day as it is performed; and, although the other may not eventually do all he has contracted to do, there has been necessarily an acceptance of what has been.done in pur- suance of the contract, and the party must have understood when he made the contract that there was to be such accept- ance. * * * Tf, on failure to perform the whole, the nature of the contract is such that the employer can reject what has been done and refuse to receive any benefit from the part performance, he 1s entitled to do so, and in such case he is not liable to be charged, unless he has before assented to and accepted of what has been done, however much the other party may have done towards the performance. * * * But when the party receives value and takes and uses the ma- terial, or has advantage from the labor, he is liable to pay the reasonpble worth of what he has received. And the ruleis the same whether it was received and accepted by the assent of the party prior to the breach under a contract by which, from its CONTRACTS FOR SERVICES. 491 nature, he was to receive labor from time to time until the completion of the whole coutract, or whether it was received and accepted by assent subsequent’ to the performance,,all of which -was in fact done. If he received it under such -circum- stances as precluded him from rejecting it aftewards, that does not alter the case—it has still been received by his assent.’” 574. What will we Consider an Acceptance. Where the em- ployer during the progress of the work stood by and from time to time objects to the material and the manner in which the work is being performed, but acquiesces in the progress of the work, and finally refuses to: accept it when completed, the court held that if the work was beneficial to the defendant he was liable for the material and labor, not on the contract, but on general counts in the assumpsit.” 575. Charge and Special Work. Employes who contract for the construction of large buildings generally make their contract to build according to certain specifications furnished by theiremployers. And it frequently happens, after the work has progressed for a time, that the employer desires to make some alteration, or a deviation from the original plin, and in- structs the employe accordingly. If there is no agreement as to what shall be the price of the extra work, the jury, in assessing damages for such work, should be governed by the original contract price as far as possible; but if its provisions cannot pe applied, the employe may recover on the quantum TSN. H.; 481. ™ Hayward v. Leonard, 7 Peck, 181 ' Field on Jaw of dam. 305; Brigham v. Hanely, 17 Ill. 38; Meash v. Richards, 29 Mo 99; Mend v, Ithica & Oswego R. Co, 16 Wend. 586; Sedg. on dam 221; McClelland v. Snider, 18 Ill. 58; Weslen v. Shaip, 14 B. Mon. 177; Goodard v. Barnard, 82 Mass. 205; Peters v. Whiting, 23 Barb. 24. ‘ 492 LAW OF DAMAGES. meruit, or what the work was worth. A deviation by agree- ment or consent should be looked upon generally as a new contract, and enforced as such.! - 576. The Liberal Rule. The principle announced in the case of Britton v. Turn-r, that we have already noticed, is gradually growing in favor among the courts of the different States; and we believe that the weight of the most recent authorities not only recognize this rule as applicable to con- tracts to perform manual labor, but to all cases relating to damages in case of contracts to build, where the contractor is to furnish the material and perform certain specified work. Thus in Indiana, where an action was brought upon a special contract, also for work and labor: By the special contract set up the plaintiff agreed to chop, clear off, fence and grub twenty acres of land, described in the contract; the ground was to be enclosed, and divided into two lots by a running fence through the middle, with a good fence ten rails high, provided there was suitable rail'timber on the land tomake the rails; but the plaintiffs were not to go off the land for rail timber. The evi- dence shows that the parties entered into the contract as set forth in the complaint, and that the plaintiff had only par- tially performed his part of the agreement. The court said: “A party cannot recover ona special contract which he has failed to fulfill on his part. * * On the other hand, it is settled that when one to an entire contract has not complied with its terms, but professing to act under it has done for, or delivered to the other party something of value to him, which he has accepted, the party who has been thus benefitted by the labor or property of another, shall be responsible, on an implied promise arising from circumstances, to the extent of the value received by him.”’? . * Walcott v. Yeager, 11 Ind. 84; see also Heaton v. Colgrove 3 Ind‘ 265; Mayor v. McLester, 4 Ind. 591; Tomax v. Baily, 4 Ind 595; Britton Turner, 6 N. H. 481. CONTRACTS FOR SERVICES. 493 577. Also in Iowa, in an action by the plaintiff for work done and performed, the evidence showed that the plaintiff was hired by the defendant to work for him for six months, and left his service after laboring for four months. The court was, on the trial, asked to instruct the jury that if the plain- tiff hired to the defendant for six months, and left his service before the expiration of the term, he had no claim upon the defendant for the service rendered. The instruction was re- fused by the court, and there was a judgment for the plaintiff; appeal to the Supreme Court of that State, where the judg- ment was affirmed. Stockton, in delivering the opinion of the Court, said: “We think the instruction was rightfully re- fused. If the parties had expressly agreed that if the plain- tiff left the service of the defendant before the expiration of the time limited, nothing was to be considered as earned by him, there would be no doubt that the plaintiff cculd not re- cover. But all that is shown is that upon an agreement to labor six months, the plaintiff labored for four months and refused to labor longer, and sues for the value of the labor per- formed. We think he is entitled to recover as upon a quantum meruit and need not, as a condition precedent, first show that he had performed his entire contract or that he had left the ’ service of his employer upon good cause. We are satisfied with the rule established in Britton v. Turner (6 N. H. 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 perform- ance has been received, the employer is entitled, if he so elects, to put the breach of the contract in defense for the purpose of reducing damages or showing nothing is due, and to deduct what it will reasonably cost to secure a reasonable completion of the whole service, as well as damages systained 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 ~ 494 LAW OF DAMAGES. to performance of the whole contract, has not received any beneficial service, the plaintiff is not entitled to recover.” * 578. The same doctrine was adhered to in that State as applicable to building contracts. The plaintiff entered into a contract to build the defendant a barn, shed and:corn crib under a special contract, for one hundred and five dollars, ac- cording to certain stipulations and within a specified time. The plaintiff failed to complete the building within the time agreed upon, and also failed to do the job in a workmanlike manner. It was found that it would cost twenty-seven dollars to make the work comply with the contract, and that the defendant had paid fifty-five dollars to apply on the contract, and that there was due to the plaintiff twenty-three dollars, and judgment rendered accordingly. Judge Dillon delivered the opinion of the court: “This question was settled in this State by the case of Pixley v. Nichols, 8 Ia. 106, which dis- tinctly recognized and expressly followed the case of Britton v. Turner, 6 N. H. 481. That celebrated case has been criti- cised, 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 the profession and judicial favor. It ’s bottomed on justice,and is right upon principle, how- ever it may be upon the technical and more illiberal rules of the common laws as found in the old cases. With the knowl- edge and natural disposition of courts to disfavor the course of him who has broken his co itract, and yet seeks a recovery; and with the limitation stated in Pixley v. Nichols, the ap- plication of this rule will not be found, practically, to work injustice to the employer or-contracting party who is without fault. The rule applies to such cases as the one under consid- eration, i. e., formal acceptance of the work or an acquiesce in § Pixler v. Nichols, 8 Ia. 106. ’ CONTRACTS FOR SERVICES. 495 the breach is not necessarily essential to a recovery.”* This . . ® . . x doctrine is now recognized in a number of other States® 579. Where the Employer Refuses to Accept the Work under the Contract. Cases frequently arise where the employe enters upon the work, pursuant to and in accordance with the contract, and performs a part of the labor and is prevented by the conduct of the employer from completing it. In such cases the party ' performing it can sue either on the contract to recover dam- ages for the breach of it, or on general assumpsit to recover the value of the work he has done. If he adopts the former rem- edy he can recover such a portion of the whole contract price as the work done bears to the whole work, and in addition to this he, as a general rule, will be entitled to ‘the profits. he would certainly have made if allowed to complete unperformed work, and the loss he may have incurred,in employing labor and means to perforin the residue; but if he sues on the quan- tum meruit he may then recover reasonable compensation for the work performed.® * McCoy v. Hedges, 18 Ia 66; see also Davis v. Fish, 1 G. Green Ia. 406; Mitchell v. Wescotta Laud Co., 3 Ia. 209; Tice & McIntosh v Sher- man,10 Ia 60; Cannon vy. Wallace, 17 Ia. 374; McAffee v. Hale, 24 Ia. 355. ’ 5 Wily v. Frac. Sch. Dist No 1, 25 Mich. 419; Bishop v. Price, 24 Wis, 480; Trowbridge v. Barnett, 30 Wis. 661; Jones v. Jones, 2 Swan 605, Edington v. Pickel, 1 Sand 122; Allen v. McKibben, 5 Mich. 449; Davis v. Borrington, 10 Forist N. H. 517; Sinclair v. Talmage. 35 Barb. N. H. 602; Nebe v. Boham, 24 Ill. 268; McKinney v. Springer, 3 Ind. 59; Wal- cott v. Yeager, 11 Ind. 84; Dermont v. Jones, 283 How 220; Westorn v. Sharp, 14 B. Mon. Ky. 177: Lamb v. Brolaski. 38 Mo. 57; Newman v. McGregor, 5 Ohio st. 349; Field on the law of dam. sec. 334. 6 Chamberlain vy. Scott, 33 Vt. 80; Derby v. Johns, 21 Vt. 18; Board- man v. Keeler, 21 Vt 77; Smith’s Leading Cases, vol. 2, p. 38; Coon v. Greeman, 7 Wend 121. — Where suit is brought before the time of service contracted for expires the plaintiff can only recover pro rata to the time suit is brought. Wright v. Falkner, 37 Ala 274; Flora v. Danby, 1 ‘Sprague 212; Hunt v. Collums, id. 215. 496 LAW OF DAMAGES. 580. The General Method for Assessing Damages on Partial Per- formance. The general rule for estimatink damages where the employe has for some reason failed to fully perform his contract is to estimate the actual benefits the employer has received from the employe’s labor; and to ascertain such benefit the jury or court trying the cause should find the amount of money that it will take to complete the work according to the con- tract, add to this all the damages the defendant has sustained, by reason of the breach and failure of the plaintiff to comply, and deduct the amount from the contract price for the whole work, and the remainder will be the damages.’ But in no case can the employe who has voluntarily abandoned, or failed to complete it, recover more than the contract price for the whole work.! 581. Where suit was brought by the plaintiff, who was a retailer of intoxicating liquors, under the laws of the State of Indiana, and being desirous of renewing his license, employed the defendants, who were publishers of a newspaper, to give notice that at the next session of the Board of Commissioners, he would make application for such license. The defendants failed to make publicationin time. The plaintiff failed, there- fore, to procure his license and was compelled to close up his house and suspend business. Suit was brought for damages, i alleging that he had been damaged at the rate of fifteen dollars per day for thirty days. The defendant demurred successfully to the complaint below, and appeal was taken to the Supreme " Kelly v. Bradford, 33 Vt. 35; Lingdale v. Livingston, 10 John (N. Y.) 36; Jewell v. Schappell, + Cow. 564; Mosford v. Ambros, 3 J J. Marsh (Ky.) 600; Newmanv MeGregor, 5 Ohio 351; Rogers v. Beard, 36: Barb. N.Y 31: Wilson v. Graham, 14 Texas 228; Snelling vy. Linch, 5 Allen Mass. 443; Morrison vy Lovejoy, 6 Minn. 319; Woodbury v. Jones, 44 N. H. 206; Masterton v. Mayor. etc., 7 Hill 62; Doolittle v McColough, 12 Ohio st. 360; Trobridge v. Sherman, 10 Ta. (0. ‘Walcott v Yeager, 11 Ind. 84; Western v Sharp, 14 B. Mon. Ky. 177; Coe v. Smith. 4 Ind. 79; Field on the law of damages, Sec. 337. oe CONTRACTS FOR SERVICES. 497 Court, The court, in commenting on the question arising on the demurrer said: “It is contended by the appellees that the complaint at most but shows a case for nominal damages. This court would not reverse a case, perhaps, where nothing more than nominal damages are involved, but where a consid- erable amount of costs, or other legitimate expenses depend upon nominal damages which are wrongfully denied the party, . it might become proper for reversing a judgment. But weare not convinced that each of the paragraphs in this complaint entitle the defendants to only nominal damages. Nominal damages are such as a party is entitled to for a mere nominal breach of his contract, where no actual damages have been suffered—damnum absque injuria—and may be a cent, five cents or a dime, or such insignificant sum in relation to the case as would fall within the maximum de minimus non curatur In this case, however, the appellant alleges that he paid the ap- pellee three dollars and a half for inserting the advertisement, which was never inserted, We think he is entitled by the facts averred to recover this amount at least, We cannot bold that three dollars and a half, in reference to the present case, is no more than nominal damages, especially where a considera- ble amount of costs must depend upon them. And we think if, in consequence of the facts averred, the complainants have and fixtures therein, and place of business became useless to him for a time that it is a fair element for a jury to consider in estimating damages the appellant may have suffered, and per- haps there may be other proper grounds for damages which we do not mention, but we are of the opinion that the mere prob- lematical, uncertain, contingent, vague and speculative profits upon expected sales of liquors by retail, which may or may not be made, do not constitute a true basis on which to assess dam- ages.’ 3 Glass v. Garber, et al, 55 Ind.; 336. 498 LAW OF DAMAGES. 582. Breach of Contract by the Employe. The rule is pretty generally settled that the employer, on a breach by the em- ploye of an excesstory contract to perform labor or do a speci- fied thing, may recover in an action full compensation for all loss sustained, including profits that would have been the direct and immediate result or fruits of the contract. Thus where the defendant agreed to build and deliver to the plain- tiff within a specified time, two hundred or more sewing ma- chines of the model to be furnished him by the plaintiff; breach of the contract and failure to deliver the machines. Action was brought to recover damages for the default. The court held that the measure of damages was the difference between the market value of such machines at the time they were to be delivered and the contract price, and that the fact that the defendant had a patent on the machines made no difference in the rule.* 583. The General Rule. It may be laid down perhaps as a general rule that in cases where a suit is brought by the em- ployer against the employe for a breach of an executory con- tract to perform labor, job work, or to do a specified t.ing, the measure of damages will be the difference between the con- tract price of the work to be done and the usual and ordinary price. 584. Thus when the defendant entered into a contract to saw all the timber on the plaintiff’s land, and failed to fulfill the agreement, the court held, in an action by the employer, + Brigham v. Hanely, 17 Ill. 38; McClelland v. Snider, 18 Tl. 58. > Fink v. Tatman, 36 Ind. 259. ; Dunn v. Johnson, 33 Ind. 54; Masterton v. The Mayor of Brooklyn’ 7 Hill, 125; Storey v. N. Y. & Harlem R. R. Co., 6 N. Y. 85; Seaton v Secon Municipality, 3 La. An. 44. Sedg. on dam. 63. This rule is just, for it fixes such damages on the breach of the contract as the parties are pre- sumed to have had in contemplation at the making of it as the probable CONTRACTS FOR SERVICES. 499 that the measure of damages was the difference between the value of the timber left unsawed and the profits which the plaintiff would have received if the timber so left had have been sawed.® 585. And where the defendant agreed to put into a steam- boat certain machinery, within the time and of the quality stipulated for, the court held that the plaintiff could recover the ordinary hire of such boat for the period the contractor was behind in getting in the machinery, and to which the necessary costs of repair of the defective machinery put in, and the use of the boat during the time occupied in making such repairs, should be added." 586. Where the defendant, in consideration of one hun- dred dollars, agreed to deliver to the plaintiff a patent machine for sewing saddle trees as soon as such machine could be con- veniently manufactured. The defendant failed to comply and _tu furnish the machine according to contract. Suit to recover damages for the breach.. The court held that the proper measure of the plaintift’s recovery was the value of the use of the machine during the time the plaintiff was deprived of the use of it.!. In such cases the law aims to give the party in- jured by a breach of contract, the value of that which the other party stipulated to perform, but that value is to be com- puted according to the ordinary and reasonable price. And when the plaintiff employs the defendant for a stip- ulated sum to support him for his natural life, and the defen- dant fails entirely to comply, the plaintiff may at once result of the breach of it. Dunn v. Johnson, supra. See Morrison v Lovejoy, 6 Minn. 319; Fail v. McKee, 36 Ala. 61. 7 Brown v. Foster, §1 Pa. st. 165; Collins v. Baumgartener, Pa. st. 461 1 Davis v. Doe, 2 Ind. 599. \ 500 LAW OF DAMAGES. commence suit for the breach, and the measure of damages will be the value of the entire contract to the plaintiff at the time of the breach, or a sufficient amount of money to support him during life. And in case of such breach, the plaintiff can recover for the future as well as the past.*” And where there has been a partial performance and a breach and refusal to further comply, the plaintiff may recover whatever the contract is worth to-him; or where there has been a partial failure, the plaintiff may recover an amount equal to what his support has cost him during the time the defendant failed to comply, or what would be sufficient to support him during the time.! * Schell v. Plume, 55 N. Y. 592; Gunther v. Pugsby, 12 Johns 126: Shaffer v. Lee, 8 Barbour 412. 4 Blossom vy. Ball, 32 Ind. 115 CHAPTER XXXIV. ; BAILMENTS. BartMen? Derinep. Dirrerent Drerers oF CARB. Depo- siruM. ManpatumM. CommopatuM. Pienus. THE Dam- AGES. Locario. Division or LocaTio. WAREHOUSEMEN, WHARFINGERS. INN KEEPERS. CoMMON CARRIERS. LIVE Stock. DAMAGES IN GENERAL. ‘ 587. Bailment Defined. Bailment has been defined to be the delivering of a thing in trust for some special object or purpose, and upon a contract, expressed or implied, to conform to the object or purpose of the trust’ “Asa rule the law allows parties to make such contracts and agreements in reference to their own property as they may see proper. And it is only in the absence of such contracts that it fixes the amount of care 1 Story on Bailment, Sec. 2; Dowdson v. Graham, 2 Ohio st. 131; Bo- hannan v. Springfield, 9 Ala. 789; Oakly v. The State, 40 Ala, 372; Fur- ‘low v. Gillan, 19 Texas 250. 502 LAW OF DAMAGES. that the bailee must exercise in keeping the property intrust-: ed to him, and his responsibility for loss or injury while it is so in his possession.” The responsibility of the bailee for loss will be measured partially at least by the amount of benefits that are to result to him from the bailment. For this care that he must exercise will be increased or decreased in proportion to the considera- tion or benefits that he is to receive from the bail.’ A learned commentator has laid down the rule as follows: “Where the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and of course, makes him answerable only for gross neglect. When the bailment is for the sole benefit of the bailee, the law re- quires great diligence on the part of the bailee, and makes him responsible for slight neglect. But when the bailment is re- ciprocally beneficial to both parties, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect.”* , It will be seen from what has already been said that the liability of the bailee will depend upon the degree of care be- stowed, or its correlative, the degree of negligence with which he is chargeable. Law writers have classified the bailee’s du- ties into “ordinary care,” “slight care” and “great care.” And these may be defined as follows: “Ordinary care” or diligence is that degree of diligence and care which men of common prudence exercise in respect Dwdson v. Graham, 2 Ohio st. 131. 3 Dart v. Love, 5 Ind. 181. 4 Dart v. Love, 5 Ind. 131; 4 Story on Bailment, Sec. 23. BAILMENTS. 503 to their own concerns. The want of this would be ordinary negligence.® 3 “Slight care” is that which is usually exercised by persons under circumstances similar to those of particular cases, 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 prudence of the community in which they live, and the want of this would be gross negligence.° 5, “Great care” is such as is exercised under such circum- stances by men of unusual prudence, and the want of this would be slight negligence.® Sir William Jones divides Bailment up into five classes, namely: : 588. 1. Depositum, or maker deposit without reward. In this class of cases the obligation is that he will safely keep the thing deposited with reasonable care, and that he will, upon request, restore it to the depositor or otherwise deliver it ac- cording to the original trust. He can only be held responsible for bad faith or gross neglect if the deposit shouldbe lost or in- jured while in his custody. The law requires the bailee to ex- ercise a higher degree of care in the keeping of certain kinds of property than in others. What would be reasonable care 5 2 Parson on Cont. 88. * Field on the law of damages, sec. 900; Shear & Reed on Neg. 818, 19, 20; Story on Bailment, sec. 16, 17. eS. & R. Neg. sec. 18; Brand v. Troy, etc, R. Co, 8 Barb. 368; Brown v. Lynn, 31 Pa. st. 512; Dreher v. Fitchburg, 22 Wis. 675; Johnson v. Hudson River Co., 20 N. Y. 65; 6 Duer 633; Tracy v. Wood, 3 Mason, 132; Doorman v. Jenks, 2 A. & E. 256; Eldrige v. Adams, 54 Barb. 417; Parker v. Tiffany, 52 Ill. 286; Rose v. Hill, 2 Man Gr. sec. 877. 504 LAW OF DAMAGES. of a bag of wheat might be neglect if the bag contained money. The nature of the property or deposit, its value, and the danger of loss must be taken into consideration by the court or jury in determining the question of gross negligence. And if he delivers the property to one not authorized to re- ceive it he would make himself responsible for its value, with- out regard to the question of care or the degree of negligence he has exercised.” Asa general rule the person with whom the goods or property are deposited has no right to use them un- less they are of such a kind that it is necessary to use in order to take care of them. The bailee has no general or special property in the thing bailed, but only in the right of posses- sion, and if he disposes of the trust property the bailor may re- cover its actual value.’ And when the bailor has made a de- mand on the bailee for the trust property, and he refuses or ne- glects to deliver it up, the bailor may bring an action for con- version and recover damages as in an action in trover.* The law not only requires the bailee to return the deposit, but the increase or profits, such as young animals brought forth during the time of the deposit, and interest on money where the trust was made for that purpose, and for a failure to deliver either on proper demand, give the bailor a cause for action.® 7fenkins v. Bacon, 111 Mass. 373; Hall v. Boston and Worcester R. R. Co., 14 Allen 489; Lichtenhen y. Boston, etc., R. R Co., 11 Cush. 70; Cass v. Boston & Lowell R. R. Co., 14 Allen 448-453; 2 Kent Com. (6th ed.) 568; Hugh v London. etc, R. R. Co. L. R. 5 Ex. 51; Knowing v. Manley, 49 N. Y. 192; Stewart v. Frazier, 5 Ala. 114; Ball v. Ling, 48 N. Y. 6. 5 Eldridge v. Adams, 54 Barb. 417; Parker v. Tiffin, 52 Ill. 286; Field on the law of damages, 311; Chambers v. Shaw, 18 Peck 278. ‘Story on Bailments, Sec. 123; Burns v. Spoor, 22 La. An. 16; Hol- brook v. Wright, 24 Wend. 169; Thorger v. Wright & Hutchins, 13 Vt. 504; Stephenson v. Price, 30 Texas 715; Parker v. Tiffin, 52 Ill. 286. ° Conkendale v. Eaton, 55 Barb. 188; 3 Home Practice; Bornler v. Neye, 10 Cush. 416; Parker v. Tiffiny, 52 Ill. 286; Railway Co. v. Sulli- van, 14 Georgia 283. A mere depositary is not liable until a refusal to deliver upon demand. West v. Murphy, 3 Hill (8. C.) 284; Hill vy. Wig- \ BAILMENTS. 505 589. Mandatum or commission which is gratuitous and by which the mandatary undertakes to do something about the thing bailed. This is where the bailee undertakes to do some act for another in respect to the trust property. If the bailee fails to do the act, the bailor has no right of action . against him, for the contract is without consideration, and void. Although the bailee is not bound to do the act, yet if he proceeds to do it he will be held responsible for any injury arising from gross negligence in its performance. Thus, where the defendant undertook, gratis, to carry several hogsheads of brandy from one cellar and deposit ‘them in another, and he did it so negligently and carelessly that one of the hogsheads was staved and the brandy lost, it was held that the defendant, not having uscd ordinary care, was liable for the loss. The bailee will be held lable for all injuries to the tryst property arising from an omission of that care which a bailee without hire or manditaries of ordinary prudence usually takes of property of the nature of that in question. The test is not whether he has omitted that care which very prudent persons usually take of their own property, for the omission of that would be but slight negligence; nor whether he has omitted the care that prudent persons ordinarily take of their own property, for that would be but ordinary negligence; but whether there be a want of that care which men of common sense, however inattentive, usually take, or ought to be pre- sumed to take of their property, for that is gross negligence. But a bailee is sometimes held responsible for negligence for misfeasance when he would not be for non-feasance.’ And as a rule, where one voluntarily proffers to perform some act for gins, 31 N. H 292; Brown v. Cook, 9 Johnson (N. Y. 361; Phelps v. Boswick, 22 Barb. 314; Duncan v. Moggett, 25 Texas 245; Nelson v. King, Id. 655; Jackman v. Patridge, 21 Vt. 588. 6 Twey v. Wood, 3 Mass. 132; 1 U.S Circuit 1822, 5 McLean 218. 12 Kent Com. 569. 506 LAW OF DAMAGES. another in relation to the thing bailed, in which great care and skill is required of the bailee, than where the request comes from the bailor.’ For measure of damages see depositum. 590. Commodatum or Loan for Use Without Pay, where the thing is to be Returned in species. The borrower of property of any kind is generally bound, not only to use ordinary, but the greatest care to preserve the thing borrowed, and must return it to the bailor in as good condition as it was when he obtained it, sub- ject to the ordinary wear and tear from reasonable use. And he will be held responsible for injury arising from slight neg- ligence on his part, but not for loss by the act of God, by rob- bery, theft or by an irresistable force, or any other cause over which he had no control.’ 591. The Damages. The actual loss is the measure of dam- ages. The bailee is held responsible for all ordinary expenses, 2 Kent Com. 571: ‘And when the profession or situation of the gratu- itous bailee is such as to require skill, he is liable for all damages caused by his neglect to use it.” Wilson v. Brett, 11 Mees & W. 113; Redfield on Bail, Sec. 600. A manditary is answerable for gross negligence only, Kemp v. Falow, 5 Ind. 462; McNabb v. Lockhart, 18 Ga. 495; Connor v. Weston, 8 Ind 315; Jourdon v. Reed, 1 Iowa 135; Storer v. Gowen, 18 Me. 174; Lamply v. Scott, 24 Miss. 528; McClane v Rutherford, 8 Mo. 109; Stand v. Bell, 2 Hawk (N C) 145; Sodowiski v. McFarland, 3 Dana (Ky.) 205; Tracy v. Wood, 3 Mas. 132; Thompkins v. Saltmarsh, 14 Sedg. & R (Pa.) 275; Bland v. Normuck, 2 Murph. (N.C.) 318; Beardslee v. Richardson, 11 Wend. 25; Anderson v. Foresman, Wright (Ohio) 598. 3 Suit for the value of a horse. Answer; That the horse was bor- rowed to goto a certain place and return, and that while the defendant was on the way, and without any fault or negligence on his part he was met by some cavalry soldiers of the United States, who forcibly took said horse from him. Held answer good. Watkins v. Roberts. 28 Ind. 167; see also Coggs v. Bernard, 2 La. Raymond, 909; Jones on Bailment, 68; Edwards on Bailment, 167; Wood v. McClue, 7 Ind. 155; Scranton v. Baxter, 4 Sandf. N. Y. 5; Martin v. Culberson, 64 N. C. 328; Field on dam, 313. ‘ BAILMENTS. 507 but not for extraordinary ones, or such as arise from the inher- ent infirmity of the property, or are required for its preserva- tion without any neglect on the part of the borrower, the lender must bear them. And where the bailee is compelled to pay extraordinary expense, he has a lien on the property for its payment. But in order to escape extraordinary expense, the bailee must not depart from the terms of the bailment ;, for if there is a departure from the terms of the bailment, as where a horse is hired to go to Newport and is taken by the bailee to Jamestown, ten miles in another direction, and the horse dies froin some disease, the bailee, as a general rule, will be liable for the value of the horse.* 592. Pignus, a pawn or pledge, as, where a thing is bailed to a creditor as security for a debt or engagement.' The pawnee is bound only to take ordinary care of the goods, and is only answerable for ordinary neglect; and is only held re- sponsible for an omission of that care that men of common prudeuce take of their own affairs. And he may ordinarily use the property, but if it is of such a nature as to be injured by use, such as clothes, etc., he cannot use them. If the pawn be of such a nature as to be an expense upon the pawnee, he may use the pawn ina reasonable manner. If the property is lost through the want of ordinary care,, the meas- ure of damages would be its value, or in case of conversion, 3 Martin v. Culberson, 64 N. C. 328; Field on dam. 313. 1 Delivery or transfer of custody is absolutely essential to constitute a pawn. First Nat’l Bank v. Nelson, 38 Ga. 391; Nevon v. Rupe, 8 Ia. 207; Foltier v. Schroder, 19 La. Ann 17;' Beeman v. Lawton, 37 Me. 543: Walcott v. Ruth, 22 N. H. 196; Propst v. Roseman, 4 Jones (N. C.) L. 180; Thompson v. Andrews, 8 N. C. 453 The difference between a pledge and a mortgage is that in case of a pledge the title remains in the pledgor, and in case of a mortgage it passes to the mortgagee, sub?ect to be diverted. Sims v. Canfield, 2 Ala. 555; Eastman v. Amy, 23 Me. 248; Ward v. Sumner, 5 Pick. 60; Haver v. Love, 2 N. H. 13. 508 LAW OF DAMAGES. damages for conversion, And when the pawnee sells the property he can retain a sufficient amount of the money to satisfy his claim against the pawnor, and must pay the re- mainder over tohim. In case the property is lost by theft, if it was owing to the negligence of the bailee, he will be responsible therefor; if not, the loss falls on the pawnor.* 593. The Damages. As we have already said, if the prop- erty is lost by the omission of- ordinary care, the measure of damages would be its value. And in case it is injured under like circumstances, the actual loss sustained would be the damages; and in case of a sale to satisfy the debt, if, after the debt is paid there is a remainder, the pledgor may, after de- mand and refusal, recover that amount from the pledgee, less the necessary expense incurred by the pledgee in taking care of the pledged property and in making sale of it. The pledgor is entitled to any increase and income of the pawn, unléss there was a different contract. And in case of conversion the measure of damages is the highest market price of the prop- erty between the time of the conversion and trial.’ 594. The Pledgee’s Right of Action and Damages. The pledgee has only a temporary interest in the property, therefore in an ‘2 Parsons on Contract, 86; Field on law of dam, 314; Petty v. Over- all, 42 Ala. 145; Edwards on Bailment, 223; Story on Bailments, sec. 238. The pledgee may, after the debt becomes due, sell the pledge without resorting to judicial proces, but in such cases, unless there is an ex- pressed waver in the contract between the pledgor and pledgee,the latter must give the former notice. Parker v. Braneker, 22 Pick. 40; Wash v. Pond, 2 Allen 744; Wheeler v Aubold, 5 Duer NX. Y. 325. 2 Parsons on Contracts, 86; et. seq. Petty v Overall, 42 Ala 145; Ed- wards on Bailments, 223; Story on Bailments, sec. 238; Markham v. Joudon, 41 N. Y. 235; Rozt v. McClelland, 48 Ill. 345. Where the pledgor has paid the debt which was secured by the pledge, the pledge must account for all income, profits and advantages derived by him from the bailment. Humaker v. Sturgis, 29 Cal. 142; Brown v. Runnolt, 14 N, H. 693; Elliott v. Armstrong, 2 Black 198. 7 See authorities above. BAILMENTS. 509 action by him against one who has purchased it of the pledgor he can recover only the amount of his claim; but in an action against a third party, who has taken the pledge from him, he may recover its full value. Thus: When an action was brought by a pledgor against a sheriff for a conversion of goods -pledged, the sheriff, who had seized them under a lawful writ in his hands, will be treated as a privy with the owner, the pledgor, provided he has pursued the law in making such. seizure, and will be held liable only for the plaintiff’s special inetest in the goods; but in any other event he will be treated as a stranger, and held for their value.’ And it is now well settled that a pledgor may transfer the pledged property to another, subject to the pledge, and the purchaser will take all the rights and interest in the property that his grantor had, and may, on tendering the amount that is secured by the pledge on demand maintain an action there- for, or for its value, and the measure of damages will be the same as in other conversions.’ s ‘ 595. Locatio, or Hireing for Reward. Chancelor Kent says: “This isa contract by which the use of the thing, or labor, or service about it, on stipulation to be given for a reasonable consideration.”* The contract of hireing being one of mutual benefit, the hirer is bound only for ordinary diligence, and is responsible only for ordinary negligence or the omission of tat degree of care and diligence which the generality of mankind use in keeping their own goods of the same kind* There is ‘ / 1 Bromwell v Hankins, + Barb. 491; Spoor v. Holland, 8 Wend. 445. 2 Treadwell v. Davis, 34 Cal. 601. Franklin v. Neal, 13 M. & W. 481. Whena pledgee has sold the pledge without a right to do so, it will be treated as a conversion. *Cor- titue v. Laesing, 2 Cai (N. Y.) 200; Dykers v. Allen, 7 Hill 497; Wilson v. Little, 2. N. Y. 448; Lewis v. Graham, 4 Abbs. Pr. 106; Hutton v. Ar- nett, 51 Ill. 198; Thayer v. Dante, 104 Mass. 254. Jt 510 LAW OF DAMAGES. on the part of the hirer an implied obligation, not only to use the thing hired with due care and moderation, but also not to apply it to any other use or detain it beyond the time for which it was hired. Bnd if the thing bailed is used in a different manner, or for a different purpose, or for a longer time than was agreed upon by the parties; the hirer is answerable for all damages and even for loss which due care could not have prevented.® The hirer must restore the property in as good condition as when he received it, subject of course to the wear and tear from usage. And in case he fails to do so, and the bailor brings an action for conversion, the measure of damages will be the value of the property, together with the stipulated hire for the time agreed upon and interest on th whole amount.’ 596. The Division of the Class Locatio. The class Locatio, or hireing for reward, is subdivided into: 1. Locatio rei, a hire- 42 Kent Com 585-586. 5 Mayor of Col. v. Howard, 6 Ga. 213. * Lewis v. McAffee, 32 Ga. 465; Wheelock v. Wheelwright, 5 Mass. 104: Homer v. Swing, 3 Pickering 492; Rotch v. Howes, 12 Mass. 136; Sheck v. Strong, 4 N. J. L. 87; McNeills v. Brooks, 1 Yerg. 75; Mayor of Cols. v. Howard, 6 Ga. 213; Bamfield v. Whipple, 10 Allen (Mass.) 27; DeTollemer v. Fuller, 1 Treaden (S. C ) const. 121, Where a bailee for hire returns the hired property in a damaged con- dition, and fails or refuses at the time, or subsequent. to give any account of how the injury occurred, the law will presume negligence on his part and the burden will be upon him to show amount of negligence. Logan v. Matthias, 6 Pa st. 417. 7 Nurgus v. Simpson, 99 Mass. 388; Duncan v. R. R. Co, 2 Rich. 613; Mayor of Col. v. Howa, 6 Ga. 213; Fisher v Kyle, 27 Mich. 454; Field v. Brockett, 56 Me.121; Buford v. Tucker, 44 Ala. 89; Camberlain v. Cobb, 32 Iowa 161. Actual delivery by the bailee on demand of the true ownér, who has the right to immediate possession of the goods bailed, is a sufficient defense of the bailee rgainst the claim of the bailor, an | there is do difference in this regard between common carriers ahd other bailees. The Idaho, 93 U.S. 575. BAILMENTS. 511 ing by which the hirer gains a temporary use,of the thing. 2. Locatio operis fouindi, where something is to be done to the thing delivered; and locatio operis mecium vehendrum, where the thing is merely to be carried or transported from one place to another. The class of cases where the bailee is to bestow care or labor embraces: 1. Where mechanics or manufacturers are employed to manufacture or repair the article. 2. Where peoperty is delivered toa warehouse. 38. Where it is delivered by a guest to an innkeeper. The mechanic to whom material is delivered that work may be performed thereon must use ordinary care and dili- gence to preserve the property intrusted to him and in case he neglect to do so he will be responsible for whatever injury the property may sustain by reason of his want of such care. But he is not liable for mere accidents, although in case of loss he must show that the loss occurred without fault on his part.” 597. Warchousemen and Wharfingers. Warehousemen and wharfingers are not, like common carriers, held responsible for all losses, except such as arise from the act of God or public enemies, but are only responsible for loss happening through a failure to exercise reasonable and ordinary care and diligence. And if the goods delivered to them are injured through the want of this care, they will be held responsible to the bailor for such damages as may be sustained. And where the bailor makes a demand for the goods, and the bailee refuses to give 79 Car. & P. 632; McCain v. Kimbell, 4 McCord (8. C.) 220; Foster v. Taytor, 2 Brem. (8. C. 348; Chambers v. Crawford, Add (Pa.) 151; Cox v. Reynolds, 7 Ind. 257. The some liability attaches to a commission merchant if he has not used proper diligence before a fire to sell the goods. Francis v. Castleman, 4 Bibb. Ky. 282. 512 LAW OF DAMAGES. them up, he may bring an action for conversion and recover the same damages as in an action of trover.* A sale by a warehouseman or wharfinger of property deposited with him for storage, without notice to the owner, is a conversion of the property.’ The bailee holds a lien on the property for storage; and he tay, on reasonable notice sell all, or as much of the property as will satisfy his Hen. The bailee may maintain an action for the recovery of the property, or for any injury thereto, against a third party, and will-be held responsible for its value if he delivers it by mistake to the wrong party.? And in case of the loss of the property the bailor will not necessarily be confined in his-recovery to the cost of the goods, or price for which they were sold, but the market value may be recovered‘ As the bailee is only a trustee holding the goods for the bailor, they are subject to execution, and if they are taken from him by authority of law, it is a good defense in an action by the bailor for their value.’ 598. Inn Keepers. The policy of the law has devolved upon the inn keepers a severe liability, lest they may be tempted by motives of gain to collude with evil disposed per- sons and afford facility in purloining the property of their ‘Story on Bailment, p. $51; Cox v O'Riley, 4 Ind 368; Williard v Bridge, 4 Barb. 361; C.&C. Air L RR Co. +. MeCool, 26 Ind. 140; Ban smer v. 1 W R. R Oo., 25 Ind. 434; Chase et al v. Washburn, 1 Ohio st. 244, Rapp v. Grayson, 2 Black 130; Harper v. Bound, 10 Ind. 32; Pribble v. Kent, 10 Ind. 325. ’ Pribble v. Kent, 10 Ind 325; Stevens v. Law, 2 Hill 132. + Jordan v. Sherman, 28 Ind. 136. ' Pribble v. Kent, 10 Ind. 325; Evans y. Dartington, 5 Black, 321. * Williard v. Bridge, 4 Barb. 361. * Leonard v. Dunton, 51 III. 482. * Burton y. Wilkinson, 18 Vt. 180. BAILMENTS. 513 guests; and they are held, like common carriers, to be the in- surers of the property entrusted to their care by guests, except against loss by the acts of God, public enemies, neglect or fraud of the bailor.’. And where goods are lost or injured, the inn keeper will be responsible for the damage occasioned by his neglect; and the bailor will not be limited in his recovery to the cost of the goods. The question of contributory negli- gence arises in this class of cases (see Negligence). 599. Common Carriers. A common carrier is a person who carries goods of others for hire ; one who undertakes for hire to carry for any who chooses to employ him. They are of two kinds, by land as the owner of stages, stage wagons, railroad cars, teamsters, cartmen, draymen and porters; and by water, as owners of ships, steamboats, barges, ferrymen, lightmen and canal boats. The term common, as applied to carrying, means one who is engaged in the business of hiring to carry for any and all who may choose to employ him.. A common carrier is an insurer against all damages to, or loss of goods entrusted to his care for transportation, except such as may arise by the act of God, enemies of the country, or the acts of the owner himself. But if there is some hidden defect in the property, or in the packing, and damages result from that cause, it will be considered the act of the owner, and the carrier will not be liable therefor... The act of God denotes natural accidents, 72 Parson on Contract, 146; 3 Nunoles v. Howe, 1 E. D.S. N. Y. 54. Inn keepers, as well as common carriers, are regarded as insurers of the goods of their guests while in their keeping, and are bound to make res- titution for any injury or loss not occasioned by the act of God, common enemy, or by neglect or fault of the guests. 2 Dana Abt. 51; 8 Co. R. 32; 5 T. R. 273; 33 D.yer 266; 8B. & C.9; 1 Yeates 34; 21 Wend. 282; 2 Kent Com. 594; Thickstun v. Koward, 8 Black, 535; 49 Ind. 28; Laird v Eichold, 10 Ind. 212; Huntington v. Drake, 24 Ind. 347. 1Klauber v. Am. Exp.,Co., 21 Wis 21; Angles on carriers, sec. 214; Clark v. Rochester Co., 14 N. Y. 570; Bissel v. N. Y. Cent. R. R. Co., 25 N. Y. 442; Smith v. New Haven R. Co., 12 Allen 531; Mich. Cent. R. Co. 514 LAW OF DAMAGES. such as lighting, earthquakes, tempest and all other unavoid- able or inevitable aceidents, or that which operates without the aid or interference of man.’ 600. Exception to the General Rule in Case of Live Stock, A common carrier does not undertake, unless by expressed agree- ment, to become the insurer of live stock entrusted to him for transportation from one place to another; he will not be held liable for such injuries as arise only from their naturé and propensity, and which could not be prevented by foresight, vigilance and care ;* nor will he be held, in the absence of neg- ligence, liable for such injuries as occur in consequence of the vitality of the freight.* 601. When the Common Carrier’s Liability Commences and Ter- minates. The common carrier’s liability as insurer of the goods commences as soon as he receives them for transportation.' But it is sometimes quite difficult to fix the exact time when his obligation as such insurer ceases. But it may be laid down v. McDough, 24 Mich. 165; Boyce v. Anderson, 2 Peters 150; Walpole v. Bridges, 5 Black 222; Cincinnati & Louisville Mail Line Co. v. Boal etal, 15 Ind. 345; United States Exp. Co. v. Rush, 24 Ind. 403; St. Louis & Sousheast. R. R. Co. v. Smock, 49 Ind. 302; 49 Ind. 596; Am. Exp. Co. v. Smith, 33 Ohio st. 511. » Walpole v. Bridges, 5 Black 222; Jones on Bailments, 106; Story on Bailments, 318-319; 2 Kent’s Com. 609; 10 Johns Rep. 1; Leighs N. P. 508-509; Roll Ab. P., 4 Co. let. 89; Strohan v. Detroit, 23 Wis. 126; Field on dam. sec. 369. * Evans v. Fitchburg R. Co., 111 Mass. 142; Louisville, Cincinnati & Lex. R. R. Co. v. Hedges, 9 Bush 645; Mich. South. & N. E. Ind. R. R. Co. v. McDonough, 21 Mich. 165; McManus v. Yorkshire, etc., Co., 4H. & N. 327; Car v. Lancashire, etc., Co:, 7 Exch. 707; McManus v. Lan- cashire, etc., 2 H. & N. 6938; Johnson v. Midland Co. 4 Exch. 367; 2 Red-" field on Railways, 116, 117, 118; Clark v. Rochester R.R Co.,14N Y. 570; Bissel v. N. Y. Cent. R. R. Co., 25 N. Y. 442; Smith v. New Haven R. Co., 25 N, Y. 442; Boyce v. Anderson, 2 Peters (U. 8S.) 150; Hall v. Denfro, 3 Met. 51. Myers v. Limche, 31 Ind. 208, BAILMENTS. 515 as a general rule that the carrier upon the arrival of the gaods at their place of destination, must prepare them in a fit con- dition and place for delivery, and give the consignee notice that they have arrived and are ready for delivery, and he will be held responsible for the safety’ of the goods until a reasona- ble time has elapsed for the consignee to examine and remove them; and the carrier is liable as such in the mean time, while the goods are waiting for delivery.’ 602. Thus it was held that the liability of a common car- rier is usually regulated by contract, but in the absence of ex- pressed agreement, the usage and custom will have much'to do with settling such question.’ A party who contracts with a common carrier for the transportation of his goods is presumed to k.ow and be familiar with the carrier’s means and methods of transportation and to contract with him with an understanding 2 Adams Exp. Co. v. Daniel, 31 Ind. 20; Marshall v. Am. Exp. Co., 7 Wis. 1; Both v. Buffalo, etc. R R. Co., 34 N. Y. 548; Richards v. God- ‘dard, 23 Howe U.S. 28; Young v. Smith, 3 Dana 91; Russell Manf. Co, v. N. H. St. Bt Co., 50 N. Y. 125; Boarne v. Gatlif, 11 Cl. & F. 49; Allen Burt, 20 Wend. 206; Fenner v. Buff. & St. Line R. R. Co., 44 N. Y.510; © Parket v. Mel. & St. R. R., 32 N. H. 692; Moses v. Boston & Maine R. R. Co., 32 N. H. 539-540; Morris & Essex R. R. Co. v. Ayers, 5 Duct 394; Blumenthal v. Branard, 38 Vt. 413; Jeffersonville R. R. Co. v. Cleveland, 2 Bush 473-475; Dean v. Vaccaro & Co., 2 Head 490-492; The Petona, 2 Curtis C. C. 21; Ala. & Tenn. R. k. Co. v. Kidd. 35 Ala. 218; Barcla v. Clyde, 2°E. D. Smith 97; Gaines v. The Union Trans. and Ins. Co., 28 Ohio st. 418; Graves v. H. N. Y. Steamb. Co, 38 Com. 143; Redmond v. The Lon., N. Y. & Phil Steamb. Co., 46 N. Y. 578; Mobile & G. R. Co. v. Prewitt, 46 Ala. 63; Shenk v. Phil. Steamb. Co., 60 Pa. st. 109; Red- mond v. Livepool & Co.. 42 Pa. st. 109; McMaster v. Penn. R. R. Co., 60 Pa. st. 397. The authorities are much in conflict on this point. There are many authorities that hold that the carrier’s responsibility ceases as soon as the goods are removed from the vessel or cars to the wharf or platform, or into a freight house. Norway Pl. Mill Co. v. Boston Manf. Co., 1 Gray 263; Lemon v. Western R. R. Co. 16 Grag. 132; Rice v. Bos- ton & Worcester R. R. Co.,98 Mass. 212; Shepherd v. Easter R. R., 3 Ex. 189 2 The Pitts. & St. L. R. R. Co. v. Nash et al, 43 Ind. 423; Redfield on ‘Railways, sec. 2, p. 41; 43 Ind. 123. 4 516 LAW OF DAMAGES. that his goods are to be conveyed to their place of destination by the ordinary means used by the carrier for that purpose. If, therefore, goods are delivered by a consignor to the agent of a railway company, the presumption will be that they are to be carried by the cars on the track of the company. Asa gen- eral rule common carriers by wagons are required to deliver the goods to the consignee at his house or place of business, and their liability as common carriers continues until such delivery is made, put the rule is not applicable to common car- riers by vessels on the seas, lakes, or navigable rivers, nor to common carriers by railroads. Vessels are necessarily confined to the water, and discharge their cargoes on the wharves at public landings, and in such cases, general custom, arising from necessity and the conveniences of commerce, sanctions such discharge at the proper place of delivery. And if the consignee is not present to receive the goods, thé carrier may discharge himself from further liability by notifying the con- signee of their arrival and allowing reasonable time for him fo prepare to take them away, or if the consignee cannot be found, by having them stored in a proper warehouse for him. Carson a railroad are necessarily confined to the-track of the road and unless the consignee should have a warehouse immediately by the track, an actual delivery cannot be made without change in the means of transit. From the very na- ture of the mode of carriage, the convenience of the company, if not an absolute necessity, demands that the depots or ware- houses should be erected at places where goods are received and discharged, in which they may be safely stored, and there should also be agents at such places for the transaction of nec- essary business. These warehouses constitute the proper place of delivery. The consignee must be presumed to know that the goods are there discharged; and that it is his duty to re- ceive them at that place. When the goods have reached their destination the transit is at an end, and when they are dis- charged from the cars, and in the absence of the consignee or BAILMENTS. ° 517 his agent to receive them, are safely stored in a warehouse, the liability of the company is then terminated without notice to the consignee of their arrival.” Whenever the goods intrust- ed to a common carrier by water or railare properly stored in a safe warehouse, the transit is at an end, and their liability as common carriers ceases, and they assume the responsibility of warehouse keepers.’ 603. But this rule only applies in the shipment of mer- chandise, and is never applied on the shipment of heavy arti- cles, such as lumber, coal, timber, etc. A delivery of such commodities is considered complete when the cars arrive at their destination and on the track at the place where such freight is generally unloaded.6 But when carriers by water, or a railroad company, has made a special contract to deliver freight beyond its lines, or in a different manner, its contract will be binding, and it will be held responsible for damages for failure to comply with such agreement.’ It may be considered as a settled rule that where a common carrier, by steamboat or other vessels, in the due and common course of his business delivers the goods entrusted to his caré, into the hands of the wharfinger, at their place of destination, the transit is at an end and his responsibility as a carrier terminates, unless he “has expressly contracted to do something more.’ 604. The Right of the Carrier to Limit His Inability. There has been much controversy recently among members of the 5 Bansemer et al v. The Toledo & Wabash R’y Co., 25 Ind. 434, The Norway Pl. Co. v. Bost. & Maine R. R. Co., 1 Gray 263; Hyde v. T. & M, N. Co., 5 T. R. 397; Thomas v. Bost. & Prov. R. R. Co., 10 Metcalf 472; Denny v. N.Y. Cent. R’y Co., 13 Gray 48I; Richards v. Mich. South. R R. Co., 20 Ill. 404. 2 ® The Pittsburg, Cincinnati & St. Louis R’y Oo. v. Nash et al, 43 Ind. ; 423; Redfield on Rail. sec. 2, p. 61. 7™ Mon. Oil Co. v. Cander & R. R. Co., 32 Barb. N. Y. 72. 7 Farmers’, etc., Bank v. Chapland T. Co., 23 Vt. 186. Be ; LAW OF DAMAGES. legal profession in regard to the right of common carriers to” limit their common law liabilities by special contract. But it may be considered as settled’that they have the power to limit such liability by special contract for all damages except those which arise from their own negligence.’ But it is sometimes quite difficult to tell whether there has been a special contract between the parties or not. If the consignor, when he deliv- ers the goods to the carrier takes a receipt for the goods, and that receipt contains provisions limiting the common law liability of the carrier, and the consignor accepts the. receipt with a full knowledge of its terms, and intending to assent to the restrictions contained in it, it becomes his contract as fully as if he had signed it. But the simple delivery of the receipt to the consignor is not conclusive upon him. Whether he had a knowledge at the time of the terms of the receipt, and assented to its restrictions, is for the jury trying the case to determine from the.evidence.’ 605. Damages where Common Carriers Refuse to Carry Goods. Where a person or corporation has assumed the charter of a common carrier, either by expressly offering his services to all 4 Merch. Dis. Trans. Co. v. Bolles, 80 Ill. 478; Wiggins v. Boston R. R, Co., 120, Mass. 201. 5Rice v. Kans Pac. R’y, 63 Mo. 314; Gaines v. Un. Trans. etc. Co., 28 Ohio st. 418. * Field v. Chicago, etc. R. R. Co., 71 Tll. 458, 42 Ill. 89; 54 Ill. 89; 60 Ill. 421; Schiff v. New York, etc.,52 Howe (N. Y.) Pr. 91; Gaines v. Un. Trans etc, Co., 28 Ohio 418. But where goods are taken under a verbal contract for their transporta- tion, such agreement is not altered by a bill of lading, partly written and partly printed, delivered to the shipper after he had parted with the con- trol of his gouds, notwithstanding such bill of lading, by its terms, limited the liability-of the carrier and expressed on its face that by accepting the receipt would be to agree to its terms. The mere receipt of the bill after the verbal agreement had been acted upon will not exclue the con- signor from showing what the agreement was under which the goods were shipped. Schiff v. N. Y. etc. R. R. Co., 52 Howe N, Y. Pr. 91. BAILMENTS. 519 who will hire him, or by so conducting his business as to lead the public to believe that he is acting in that capacity, the law, in the absence of an express agreement, will fix his responsibilities. But in order to impress upon him the liabil- ity of a common carrier, his conduct or proposition must amount to a public offer to carry for all who tender him such goods as he is accustomed to carry. When this is the case, then those who tender him the goods to carry accept his offer and he becomes bound to carry them ; and if he refuses to do so, having convenience and being tendered satisfaction for the carriage, he is liable to an action if he refuses to-accept the goods and to transmit them to the place proposed.* And in an action for damages for such refusal, the measure of the plain- tiff’s recovery will be the difference in the value of the article where it is tendered for transportation and its value at its pro- posed destination, less the freight for carriage.’ But to this general rule there is an exception.. The law, for wise reasons, ‘imposes upon a party subject to injury from a breach of con- tract the active duty of making a reasonable exertion to render the injury as light as possible, and if he, through negligence or wilfullness, allows his damages to be unnecessarily enhanced, the increased loss falls upon him. Therefore if the plaintiff, after the carrier had refused to receive and transport his goods could, without delay, have procured other transportation by a reasonable exertion, the damages would only be the difference between the regular price and that paid for the transportation.® 606. The General Rule of Damages. The measure of dam- age in case of a loss of all, or any part of the goods, by a com- mon carrier, which he undertook to deliver, is the value of the goods at the time and place where they should have been de- 4 Jackson v. Rodger, 2 Shaw 327; Rily v. Howe, 6 Bing. 217; 1 La. 646; 2 Kent 598; Varble v. Bigley, 9 Cent. La. Jour. p 153. ° Ogden y. Marshall, 8 N. Y. 340; Bracket v. McNair, 4 Johns 170. 520 LAW OF DAMAGES. livered, with interest, less the proper charges for transporta- tion.’ In this class of cases,as in all others, the law aims to compensate the plaintiff for actual loss arising from the natural and proximate consequence of the defendant’s act, and excludes speculative profits and remote and indirect losses.’ But where goods have been delivered to the plaintiff in a damaged condition, and he sues for the injury, he can recover the dimunition in the price of the goods where they were at the time of the injury.* And where a common carrier, with- out a legal excuse, refuses to carry goods for the plaintiff, the measure of damages is the difference between the value of the goods at the point of destination when they should have ar- rived there, and the place of detention, including necessary expense for such detention, deducting reasonable charges for transportation.’ In case of a delay in the transportation of merchandise beyond the time of the agreement, or where there is no specified time for their delivery beyond a reasonable time, the damages will be the difference in the value of the property at the time when, and place where, it should have been deliv- ered, and its value when it was delivered; and from this amount freight should be deducted if it has not been paid. ? Mich. South. & Nor. Ind. R. R. Co. v. Caster, 13 Ind. 164; Sturgess v. Bissel, 46 N. Y. 462; Sherman v. Wells, 28 Barb 403; Spring v. Haskill, 4 Allen 112; McGregor v. Killgore, 6 Ohio 358; Tourent v. Vaughn, 30 Vt. 90; Taylor v. Collier, 26 Ga 122; Dawes v. N. Y. Cent. R. Co., 1 Hill 543; Perkins v Portl. R. R. Co., 47 Me. 573; Rugles v. Howers,1 Cal. 108-203; Watkins v. Loughton, 8 Johns 213; Edmonson v. Baxter, 4 Hayne N. C. 114. ? Meding v. N. Y° etc. R. R. Co., 36 Barb. 534; Rice v. Ontario Steam- boat Co., 56 Barber 384; Cooper v. Young, 22 Ga 269. * Rodgers et alv West et al, 9 Ind. 400; Pendal v. Rench, 4 McClane 325; Young v. Poe U.S, 1 Cal. 388; 47 N. Y. 29; 14 Mich. 489; 13 How. U.S. 307; 20 Wis. 594; 46 Miss, 459; Sedg. on Meas. Dam. 423, 5 Galena R. R. Co. v. Roe, 18 Ill. 488; 8. P. O’Connor v. Garber, 10 Watts 418; Mich. Railroad Co. v. Carter, 13 Ind. 164. 4 Sisson v. Cleav, etc. Railroad Co., 14 Mich. 489; Peet v. Chicago &N. BAILMENTS. 521 607. But under certain circumstances the common car- rier will be subject to larger damages. Thus where he receives an article of merchandise and is notified that it is sent for a particular purpose, and he fails to deliver the same according to the agreement, or, if there is no stipulation, within a reason- able time and the plaintiff is injured, and if the damages are such that he might have reasonably conemplated at the time of receiving the property would have occurred from the delay he will be responsible for the loss.* \ In the case of Hadley v. Baxendale, the plaintiff, who was the owner of a flour mill, sent a broken iron shaft to an office of the defendants, who were common carriers, to be conveyed by them to Greenwich to a party who had a contract with the plaintiff to make hima new shaft. But before they could make the new shaft it was necessary that the broken shaft should be forwarded to Greenwich so that the new shaft might be made to fill the exact place of the old one. The defendants were to deliver the shaft at Greenwich the second day after its receipt by them, but failed to deliver according to contract. The defendants, at the time they received the shaft for trans- portation, were notified that the plaintiff’s mill was stopped, and that the shaft must bedelivered immediately at Greenwich. Suit fordamages for the loss of profits by reason of the mill standing idle. The Court, in commenting on the question of damages, said: “Now, we think the proper rule in such cases W. Railroad Co., 20 Wis. 594; Weston v. Grand T. R. Co., 54 Me. 376; Kent v. Hudson R. Railroad Co., 22 Barb. 278; Boggs v. N. Y. C. Railroad Co., 28 Barb. 515; Rowe v steamer City of Dublin, 1 Ben. 46; Smith v. Griffith, 3 Hill 333; Wilson v. Lancashire etc. R. Co., 30 L. J. C.P. (N. S.) 232; Inglethem v. North. R. Co., 7 Gray 86; Cutting v. G. R. Railroad Co., 13 Allen 381; Scott v. Boston & N. W. Steamship Co., 106 Mass, 468. * King v. Woodbridge, 84 Vt., 565; Deming v. Grand Trunk R. Co , 48 N, H., 455; Whalon v. Aldrich, 8 Mich., 346; Cooper v. Young, 22 Ga., 269; 4 Field on law of dam., 323-4. 522 LAW OF DAMAGES. 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 the contract -should be such as may fairly and reasonably be considered either as arising naturally in accordance with the usual course of things from such breach of contract itself, or such as may be reasonably supposed to have been in contemplation by both parties at the time they made the contract as the probable re- sult of the breach of it. Now, if the special circumstances un- der which the contract was actually made were communicated by the plaintiff tothe defendant, and thus known to both par- ties, the damages resulting from the breach of such contract which they would reasonably contemplate would be the amountof injury which would ordinarily follow from the breach of contract under these special circumstances so known and communicated. But on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally and in a great multitude of cases not affected by any special circumstances from such breach of contract.’® After further comments the Court held that the plaintiff could not recover the loss of supposed profits. 608. Where the Company Undertakes to Transfer beyond its Line. In the case of the Adams Express Co. v. Egbert, which was an action brought by the plaintiff, Egbert, to recover damages from the Express Company to deliver a box containing plans and specificatlons for an almshouse at New Orleans to a com- mittee at that city which had offered a premium of five hun- dred dollars for the best plan for said house. The Express Company failed to deliver it until after the appointed day for . 5 9 Cxch., 341; Sedgwick leading cases on measure of damages, 126; Lee v, Lancaster & Yorkshire R. R. Co., H. & N., 211. BAILMENTS. 523 receiving them and until after the premium had been awarded. The Court, in the examination of the case, suid: “It is doubt- less true that in all actions for a breach of contract, the loss or injury for which damages are sought to be recovered must be the proximate consequence of the breach. A remote or possi- sible loss is not sufficient ground for compensation. There is no measure. for those losses which have no direct and necessa- ry connection with the stipulations of the contract, or which are dependent upon contingencies other than the performance of the contract, and which are therefore incapable of being es- timated. With no certainty can it be said that such losses are attributable to the wrongful act or omission of him who- has violated his engagement. But on the other hand the loss of profits or advantages which must have resulted from the fulfillment of the contract may be compensated in damages when they are the direct and im- mediate fruit of the contract, and must have been stipulated for and have been in the contemplation of the parties when it was made. Applying this rule to the present case,why was not the loss of the opportu- nity to compete for the premium an immediate consequ nce of the breach of the contract? Why was not the loss -in contem- plation of the parties? The company undertook to transport the box to the committee appdinted to award premiums. -The purpose of the contract was to secure the ‘plaintiff in the priv- ilege of competition. Certainly he must have had that in contemplation, and if the Company was informed of the ob- ject of the transmission, the loss of the privilege was in the view of both parties at the time they entered into the contract. But whether known or not by the company the loss was the immediate result of their negligent breach.” The Court held, finally, that the plaintiff could only recover nominal damages, as there was no proof that he had lost anything by not being able to compete for the pre:nium.’ 736 Pa. st., 360; opposite 15 Jur., 448, 524 LAW OF DAMAGES. 609. Responsibility of Each Line. Where goods are shipped under a contract with a common carrier to be carried over sev- eral independent and connecting lines to their destination at an agreed through rate, each carrier to receive and carry to the end of his route and then forward by the next connecting line and they are lost at the terminus of the route ofan intermedi- ate carrier, while in his possession, and before delivery to the next carrier, the intermediate carrier will be responsible for the damages. And ifacarrier of freight expressly contracts , to deliver goods at a destination beyond the terminus of his own road, he will be responsible for all damages occurring to .the goods while in the possession of the other company.° 610. His Lien for Freight. A common carrier hasa lien on _ the goods transported by him for the freight due on the whole route, and he may retain the goods till the freight is paid, but the payment of the freight and the delivery of the goods are concomitant or concurrent acts, and if the consignee is ready and willing to pay the freight due on having the goods deliv- ered to him, and the carrier refused to deliver them unless he pays more than is due, the consignee may recover his goods in an action against the carrier, or sue him for conversion, with- out making a formal tender of the freight due or bringing the money into court. 611. His Defense. The law is well settled that a carrier will be excused from delivering goods when they are, without any fault or connivance on his part, seized by virtue of a legal ® Erie R. Co. v. Lockwood, 26 Ohio st., 358; Newell v. Smith, 49 Ver- mont, 255. The carrier is bound at his peril to deliver the goods to the right per- son, and if he makes a mistake and delivers the goods to the wrong per- son he will be held to the owner for their value. Daws., 82. ®* Long v. Mobile & R. R. Co., 51 Ala., 512. BAILMENTS. 525 process and taken out of his possession. Assoon as the sheriff, or other officer of the law, seizes the goods by virtue of a writ, they are then in the possession of the law, and the presump- tion is that the officer, in levying on them, has done a lawful act, and the right of the officer to hold the goods involves a question which can only be determined by a tribunal having jurisdiction of the subject matter. The carrier is not bound to stop and settle the title by litigation, but in order to excul- pate himself from all liability, he must give immediate notice to the owner of the goods of their seizure, aid unless he does this he will be held responsible to the owner for all dam- ages, or the value of the goods.' If the carrier neglects to use the utmost human care and foresight to protect the goods in case he is attacked bya public enemy, or is in the midst of a great storm that threatens to de- prive him of the goods or to destroy them entirely, he will be held responsible for the loss. If divers causes concur in the loss, the act of God or public enemies being one, but not the proximate cause, it does not discharge the carrier.’ 612. Mitigating eT Where the common car- rier has become responsible for any injury to goods entrusted to his care he cannot plead in bar of the action that the con- signee received the goods in their damaged condition, but he may show that fact in mitigation of the damage; and the measure of damages will be the value of the goods at the time 'The Ohio & Mississippi Railroad Co. v. Yoke, et al., 51 Ind.. 181; Redfield on Railways. vol. 2, p. 158; Bliven v. Hudson River R. R., 35 Barb., 191; Van Winkle v. U. S. Mail Steamer Co., 37 Barb , 122; Burton v. Wilkinson, 18 Vt, 181; sects. 453, 290, and 350 of Drake on Attach; see also Stiles v. Davis, 1 Blackf., 101. 2 Graham v. Davis, 4 Ohio st., 362; Gordon v. Buchanan, 5 Yerg (Tenn.) 71. 526 LAW OF DAMAGES. and place of their destination, less their value in their dam- aged condition? 613. What the Carrier is Bound to Take Notice of. The com- mon carrier is bound to take notice of the nature, character and value of the goods and packages delivered to him, and to keep them in the way that is the best calculated to preserve them uninjured.” And in an action against him for injury or loss of the goods or packages, he will not be permitted to say that the consignor failed to inform him of the weight, quality, quantity, character or value of the goods or packages entrusted to him. 614. Responsibility of Common Carriers of Passengers. The conimon carrier of passengers is only responsible for those in- juries arising from his negligence, and he is not the insurer of the lives of his passengers. He enters into a contract with his passengers that he will, as far as human care and foresight can go, provide for their safe conveyance. He is, therefore, not responsible for accidental injuries, and in case he fails to com- ply with his contract, he will be held responsible in damages. And the injured party may recover all loss or injury which is the proximate result of the breach. But not for remote or possible losses, or such as depend upon contingencies other than the performance of the contract, and cannot be estimated. Thus, in a case against a carrier of passengers to recover dam- ages for extraordinary detention of the passenger on the route’ and illness thereby occasioned, the court held that plaintifi 1 Bourman vy. Teall, 23 Wend. 306. * Merch. Dep. T. Co. v. Ballis, 80 Ill. 473; Wiggins v. Boston Railroad Co., 120 Mass. 201. ° Rice v. K. P. Railroad Co., 63 Mo. 314; .Gaing v. Un. Trans. Co., 28 Ohio st. 418. * Adams Exp. Co. v. Egbert, 36 Pa. st. 360. BAILMENTS. 527 could recover for his lost time occasioned by his detention, his expenses while so detained, the time he lost by reason of his sickness after his return home, and his loss of health.® 615. Baggage—Responsibility for Loss. The law is pretty well settled that a common carrier of passengers will be held as the insurer of such baggage entrusted to his care as is usually carried by passengers of like station and pursuing a like journey; but will not be held responsible for such unusual articles as the exceptionable fancy habit or idiosyncracy of some particular individual may prompt him to carry.’ He ‘may limit his liability as a carrier of baggage by expressed contract." 3 Williams v. Vanderbilt, 28 N. Y. 217; see case of Hobbs and wife v. L. & S. W. R’y Co. L. R. 10 L B. 111; Sedg. Leading Cases on Dam. 155. ®N. Y. C. Railroad’ Co. v. Fraloff, Cent Law Jour. vol. 9, p. 4382; 2 Parson on Cont. 199; Mecrom v. Gt. West. Railroad Co., L. R. 6 Q. B. 121. Whatever a passenger takes with him for his personal use or con- venience, according to the habit or wants of the particular class to which he belongs, either with reference to immediate necessity or the ultimate purpose of the journey, must be considered as luggage. Morow v. Gt. West. Railroad Co., supra. Soa passenger on a railway by third class parliamentary train, carry merchandise packed up with his personal baggage, the railway company is not responsible for the value of the merchandise if the baggage be lost. 9 Eng. L. & E. 477; Doyle v. Kliser 6 Ind. 242; T W. W. Railroad Co. v. Hammond. 33 Ind 397. The carrier’s liability extends only to such reasonable articles of bag- gage, as it is called in Europe, as may be necessary for the traveler’s convenience, no matter what, or how valuable, other articles may be which are introduced into the conveyance under the guise of baggage. The articles of property treated as bagga:e according to the decisions of different courts may be clothing, traveling expense money, a few books for the amusement of reading, a watch, a lady’s jewelry for display, etc. Doyle v. Kiser, 6 Ind. 242; Hawkins v. Hoffman, 6 Hill (N. Y.) 586; Jor- dan v. Fall River & L. E. Rail. Co.. 20 Ohio 318; The Great North. Rail Co. v. Shepherd, 9 L. and E. Q. R. 477. 7 Supreme Court U. S. 1879; N. Y. C. Rail. Co. v. Fraloff, 9 Cent. Law Journal, p. 482. 528 LAW OF DAMAGES. 616. Full Defense. In an action against a common carrier for the loss of freight and baggage, or for injury to property entrusted to him, he may defeat the action by showing that the loss or injury was occasioned by the act of God, or public enemies, or from the fraud or wilfull misrepresentations of the consignor or the passenger, and especially when by reason thereof less care is bestowed upon the property lost or injured than would otherwise have been. Thus, where a passenger got aboard a canal boat, deposited his carpet bag with the bag- gage of other passengers; it contained some clothes, pictures, etc., and about four thousand dollars in gold coin. It was stolen from the carrier, suit was brought to recover the value of the gold, and the court held that the carrier was not respon- sible’ And he may also defeat the plaintiff’s recovery by showing that the goods were thrown overboard to save life or other property, or that the goods perished or were injured from an inherent defect or cause.’ 617. Breach of Contract to Furnish Freight. In an action brought for a breach of contract to furnish freight, the plain- tiff’s measure of damages is full compensation for all loss sus- tained. And in the absence of proof he may recover the contract price, if the suit is brought after the time the freight, according to the contract, was to be delivered at its place of destination. When one party toan executory contract refuses further to comply with it on his part, the other party has an immediate cause of action for said breach, and he may sue on it at any time and recover the damages which he may have sustained by being deprived of the benefit accruing to him under it. And if he treats the contract at an end and sues at ® Doyle v. Kiser, 6 Ind. 242 ‘2 Parson on Contract, 673; Rute v. Mich. Cent. Rail. Co., 1 Biss. 35; Stoneman vy. Erie Rail. Co , 52 N. Y. 429: Reed v. Phil. ete. Rail. Co., 3 Haust (Del.) 176. See authorities above. BAILMENTS. 529 once upon its breach, his damages are to be measured by the value of the contract to him at the time it was broken, and this value is estimated by the profits he would have realized during the continuance of the contract had it been faithfully carried out. The jury or court in estimating the plaintiff ’s profits should first take the contract price and ascertain the exact amount that would be due the plaintiff on the comple- tion or fulfillment of the contract; and then deduct from this amount every item of costs and expense necessarily attending a full compliance on his part.’ 618. But where suit is brought, as we have already said, after the expiration of the time the service was to have been performed, then the plaintiff will be, prima facia, entitled to recover the contract price. But the defendant may show, in mitigation of damages, that the plaintiff could, by the use of reasonable meuns or diligence, have procured other work, and that he failed to do so, or that he did procure other work at a fair price; and where this is done the plaintiff can only re- cover the difference between the contract price and the price he did, or might have received.’ 1 Morrison v. Lovejoy, 6 Minn. 319; Fox v. Harding, 7 Cush. 516; Cun- ningham y. Dorsey, 6 Cal. 19; Hecksher v. McCroy, 24 Wend. 309; Shannon vy. Comstock, 21 Wend. 457; Masterton v. Mayor of Brooklyn, 7 Hill 61; Sedgwick on dam. 364; Dunn v. Johnson, 33 Ind 54, ? Morrison v. Lovejoy, supra; Cortegan v. The M. & H. Rail. Co., % ‘ Denio 609; Hamilton v. McPherson, 28 N. Y. 72; Hecksher v. McCroy, supra; Shannon v. Comstock, 21 Wend. 457. CHAPTER XXXV._. TELEGRAPH COMPANIES. “4 TELEGRAPH CoMPANIES. THEIR RigHtT To Contract. THE RULE OF RESPONSIBILITY. GENERAL POWER TO CONTRACT. PowER TO LIMIT LIABILITY. RESTRICTION OF LIABILITY. THEY CANNOT BY CONTRACT BE MADE RESPONSIBLE FOR NEG- : LIGENCE, &c. STATUTES AND COMMON LAW. DaMaGEs. GEN- ERAL IN ASSESSING FOR MISCONDUCT. 619. Telegraphing. Not quite a half century ago, by the great skill, genius and untiring energy of Professor Morse, the means of communicating thought by t.e electro-magnetic tel- egraph was first discovered, and the lightning harnessed for the use of man. It has since that time become a very efficient agent in the transaction of business and in carrying on trade and commerce between different sections of the country; and its wires cover, like spider webs, the whole land, span the two continents and “closely unite us with the old world.” The interests of society demand that a business of such magnitude and importance should be regulated by well defined rules of law to compel prompt action, guided by care and prudence so TELEGRAPHING. 531 that the public, who may have occasion to use this means of transmitting messages, have a reasonable protection against neglect, or fraud, or want of due care on the part of the com- pany. And the courts have, as far as possible, applied the rules of law governing common carriers to the business of tel- egraphing." 620. The Power of a Telegraph Company to Contract. The authorities are uniform in holding that a telegraph company has a right to make reasonable rules and regulations for the. proper conducting of its ordinary telegraphing business, and this right is now recognized by many of the States by statu- tory enactments, and in others by the decision of the Supreme Courts. But they cannot by contract exempt themselves from all responsibility for want of fidelity and care in the exercise of the employment by which they undertake to prosecute. There are duties that they owe the public, arising out of the nature of their employment which would be impolitic and inexpe- dient to suffer them to diminish or evade. Among these duties may be mentioned the obligation of employing compe- tent and skilled operators, and other agents and servants, in all respects competent to discharge their duty. ' MacAndrews v. Electric Tel. Co, 17 C B. 3; Parks v. Ata. Cal. Tel. Co, 13 Cal. 422; Rittenhouse v. The Ind. Tel. Line. 1 Daly (N. Y. Com. Pleas) 475: West. Un. Tel. Co. v. Graham, 1 Colorado 203; 8. C. 9 Am. R. 186; Baldwin v. U.S. Tel. Co., 1 Lam. (N. Y.) 125: 8. C. 45 N.Y. 744; McAndrews v. The Elec. Tel. Co., 33 Eng. Law & Eq. 180; Bowen v. Lake Erie Tel. Co., 1 Am. Law Reg. 685; Parks v. At. Tel. Co., 13 Col. 422; Bryant v. The Am. Tel Co., 1 Daly 575; Washington & N. O. Tel. Co. v. Hobson, 15 Gratt (Va.) 122; Tyler v. U.S. Tel. Co., 60 Ill. 421; W. U. Tel. Co. v. Crew, 15 Mich. 525; Leonard v.N Y. etc. Tel. Co., 41 N Y 544; Prins. Tel. Co. v. Durburgh, 35 Penn. 298; DeRuth v. N. Y. Al. & Ruff. Tel. Co., 1 Daly 547; S. C. 30 Howe Pr. 403; Smithson v. U.S. Tel. Co., 29 Md 162; Ellis v. Am. Tel. Co., 13 Allen 226; Allen Tel. cases, 663; Breen & M. V.v U.S Tel. Co., 45 Barb. 272; 8. C. 48 N. Y. 132. : 2 Western Union Tel. Co. v. Graham, 1 Colorado 230; 9 Am. R. 136. 532 LAW OF DAMAGES. 621. The General Rule of Limitation. The rule is universal that men who engage in a certain occupation, employment or business, are bound to the use of due and reasonable care and are liable for the consequences of carelessness or negligence in the conduct of their business to those sustaining loss or dam- ages thereby. “And this rule is applicable to the business of transmitting messages by telegraph. But the rule does not operate so as to prevent parties from prescribing reasonable rules and regulations for the management of their business, or establishing special stipulations for the performance of ser- vices which, if made known to those with whom they deal, and directly, or by implication assented to by them, will oper- ate to abridge their general liability at common law, and to protect them from being held responsible for unusual or pe- culiar hazards which are incidental to particular kinds of business. But a party in this way cannot protect himself against the consequences of his own fraud or gross negligence, or the fraud or gross negligence of his servant or agent ; nor can he escape all liability or responsibility in the performance of the service or duty that he undertakes. Nor can there-be any difficulty or danger in the application of this principle, so long as it be kept within the proper limits. That limit is found by requiring in all cases that the conditions and regu- lations. by which a party seeks to limit his liability in the conducting of his business shall be reasonable. And the law will only permit him to prescribe such, and to none other can those who deal with them be held to yield their assent.” * 4 Elis v. Am. Tel. Co., 13 Allen 234. The courts and legislatures have been liberal in allowing companies to provide against such risks as arise out of atmospheric influences and kindred causes. But to permit them to contract against their own neg- ligence would be to arm them with a most dangerous power; one indeed that would leave the public almost remediless. It must be borne in mind that the public have but little choice in the selection of the com- pany which is to perform the desired service. They do not select the TELEGRAPHING. 5383 622. From what we have said we think the following rules may be laid down: 1. Such company may adopt and enforce such rules and regulations for the convenient, prompt and satisfactory performance of the act or duty undertaken. 2. This right in the company is absolute and unlimited, but such rules are subject to tests of reasonableness, in view of the rightful claims of public policy and private rights, and the enforcement of the obligation of good faith and honest effort to perform. 3. The test must be applied by the court when- ever the question arises on the validity of such regulations, according to the rules above stated.” A rule that releases the company from all liability for all possible delinquencies, mis- takes, delay or neglect in transmitting or delivering a mes- sage, from whatever cause, would be against public policy, and void. The law has placed a bound to the power of the com- pany to limit its legal liabilities. It does not rest with such companies to fix the conditions of their contracts absolute, by which they may avoid duties and responsibilities by their mere will, or by their view of self interest or desire to shield the company or its officers from liability or the direct conse- quences of their neglect or carelessness. “The public and those who employ» their agencies to perform important ser- vices, have rights which cannot be ignored or avoided by stipulation made by interested parties. When a company assumes the position of offering its services generally to all who may apply, under its character of a public corporation, it does not stand exactly in the same position as a private indi- agent or employer, nor can they remove them. They are bound to take the company as they find it, and to commit to its agent their messages, however valuable they may be. Such being the case, public policy as well as commercial necessity, requires that companies engaged in tele- graphy should be held to a high degree of responsibility. Bering v. N. Y. & W. Tel. Co., 18 Md. 341. 260 Me. 9. 534 LAW OF DAMAGES. vidual contracting in a single matter, on terms and conditions mutually agreed upon for thot particular case.” * 623. The Power of Telegraph Companies to Limit their Liabilities. We have seen that the validity of a telegraph company for mistakes, &c., is to be tested by reason. If the rule is unrea- sonable, then it will be disregarded by the courts. And we think that among the rules which should be considered un- reasonable is the one that exempts the company from all liabil- ity for its own negligence and mistakes. Aside from the ob- jection resting on the ground of public policy, and which for- bids the company from stipulating for immunity from the consequences of its own wrongfulact it is very clear that such a contract should be held void for want of consideration. The company enters into a contract'with the sender of the dispatch, and takes upon itself the burden of some sort of legal obligation to send the message, or it does not. It would be manifestly against reason and what all must assume to be the intention of the parties to say that no contract whatever is made between them, and nobody, not even the representatives of the company assert such a doctrine, and it is entirely absurd to assert it. For the company holds itself out as ready and qwilling and able to perform service for whomsoever comes and pays the considera- tion itself has fixed and declares to be sufficient to remunerate it for the service. A legal obligation at once arises and a duty devolvesupon the company to transmit the message with rea- sonable care and diligence, according to the request of the sender. This being true, the question at once arises whether it can at the same time, andas a par’ of the very act creating the obli- gation, exact and receive from the other party a release from it. It would completely nullify the contract by absolving the * True v. International, etc., 60 Me. 9; Leonard v. N. Y. etc. Co., 41 N. Y. 544; Tel. Co. v. Dryburgh, 35 Pa. 298; Derute v. N. Y. Al. & Buff. Tel. Co., 1 Daly (N. Y.) 547; Ellis v. Am. Tel. Co., 13 All. 226. TELEGRAPHING. 535 company from all obligation to perform it, and the party deliv- ering the message, gets nothing in return for the price of trans- mission paid by him. It is not possible for a party entering in- to a contract upon a valuable consideration, to promise and not to promise, or to create and not to create an obligation of duty at one and the same moment, and by one and the same act.® 624. The General Rule in Regard to the Limitation of Responsi- bility. We think it may be laid down as a general rule, gath- ered from all the authorities, that telegraph companies may, within certain limits, establish rules and regulations governing the manner of sending messages, repeat messages, and the price to be paid for messages, repeat messages and insured messages, but they cannot make such rules and regulations as will pro- tect them from the consequences of their own fraud or gross neglect, or from the fraud or gross neglect of their servants or agent.' ‘ 625. Contract in Restriction of Liability. The Court of Ap- peals of the State of New York in commenting ‘on the ques- ® Candee v. Western Tel. Co., 8 Alb. Law Journal, 2938. 1 The Supreme Court of Iowa has held that while a regulation as to re- peating messages is reasonable it will only absolve the company from liability for mistakes caused by uncontrollable sources, such as atmos- phere or électricity, and that, notwithstanding such regulation; the com- pany was bound to employ skillful operators, use’ proper instruments, and to exercise reasonable and ordinary care in the transmission and de- livery of messages. Manuelv. Western Union Telegraph Co., 7 Western Jurist, 611. 1True v. the International Telegraph Co., 60 Me., 9; same, 11 Am. R., 156; Ellis v. The Am. Tel. Co., 13 Allen, 234; Berny v. N. Y. & Wash. Tel Co., 18 Md., 341; Western Union Tel. Co.,v. Buchanan, 35 Ind., 429; McAndrew y. The Elect. Tel. Co., 17 C. B. 3; Camp v. Western Union Tel. Co, 1 Met. (Ky.), 164; Warm v. W. U. Tel. Co., 37 Mo., 472; W. U. Tel. Co. v. Casen, 15 Mich., 525; W. U. Tel. Co. v. Graeam, 1 Colorado, 230; same, 9 Am. R., 186; Bryant v. Am. Tel. Co.,1 Daly, 575; U.S. Tel. Co. vy. Gildersleeve, 29 Md., 232; Smeatherd v. Ill. Tel. Co, 27 la, 285; Beese v. U.S. Tel. Co., 48 N. Y., 182; 8 Am. R., 526; W. U. Tel. Co, v. Fenton, 52 Ind., 1; W. U. Tel. Co. v. Meek, 49 Ind., 53. 536 LAW OF DAMAGES. tion of the power of a telegraph company to restrict its liabil- ity by contract, said: “Telegraph companies may, in one sense be called common carriers, as they are engaged in public em- ployment, and are bound to transmit for all persons messages delivered to them for that purpose. But if we call them com- mon 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 messages, but they 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 liability for mis- takes not occasioned by gross negligense and willful miscon- duct, and this they can do by notice brought home to the send- er of the message, or by special contract.’ 626. And it may be laid down as a general rule that tel- egraph companies have no power to restrict their duties or li- abilities by a mere notice, unless that notice is brought to the knowledge of the party who employs them to send dispatches. There must be an expressed or implied contract between the company and the sender of the messages to the effect that the company is exempt from certain liabilities, which it would otherwise be responsible for. 627. Statute and Common Law. The statutes of several of 4 Breeze v. U.S. Tel. Co., 48N. Y., 132. 5 Birny v. N.Y. & W. Tel Co., 18 Md., 341; U. S. Tel. Co. v. Gil- dersleeve, 29 Md., 232; Breeze v. United States Telegraph Co., 48 N. Y., 182; Cole v. Goodwin, 19 Wend., 259; Western Transpt. Co. v. Hall, 24 Ill., 466; Falvey v. Northwest Transp. Co., 15 Wis., 129; State v. Sausser, 37 Ala., 247; Camp v. West Union Tel. Co.,1 Met. (Ky ), 164; Warm v. the Western Union Tel., 37 Mo., 429; Ellis v. The Am. Tel. Co., 13 Allen 226; W. U. Tel. Co. v. Crum, 15 Mich., 525; Parks v. The Atlantic & California Tel. Co, 13 Cal., 422; The N. Y. & Wash. Tel. Co. v. Day- bury, 35 Pa. st., 298; Western Union Tel. Co. v. Buchanan, 35 Ind., 429. 4 TELEGRAPHING. 537 the States contain provisions that telegraph companies shall use the most approved instruments in use; and where this is not required by the municipal law of the State, the common law rule supplies the deficiency, and requires that the best instruments known to the business shall be used by the com- pany. They must treat all alike. Where the press of busi- ness makes it impossible to send all the dispatches that may be presented, they will be excused from receiving’ the same. They must send the dispatches in the order they are received, They must be reasonably prompt in dispatching messages, But the most important obligation is to send them accurately that is, as they are written. They cannot be changed by the company in any respect or particular. If the agent cannot read it he should reject it at once; but if he receives it he must read it as well as he can, and send it as he reads it. He must not alter it to the extent of abridged words, or to im- prove the grammar or the spelling, or amend it in any way; for it may be that he cannot comprehend or understand it, and yet the party receiving it may comprehend it at a glance. The company is under obligations to keep secret all dispatches intended to be transmitted toa third person; but these are not privileged communications. They must be prompt in deliy- ering messages received by them, to the right person. If they receive a message directed to a person beyond their own line, they must send it to the place of destination, even if they have to employ other companies for the purpose. And the question as to the responsibility of a different line, to the sender, for a failure to transmit the dispatch to the designated person, will depend very much upon the circumstances. If the other lines are not associated with their’s in such a man- ner as to forma partnership, they will be responsible. In employing companies of this kind to transmit dispatches, the question at once arises as to the nature and character of the N 538 LAW OF DAMAGES. contract. If there is no expressed agreement the law fixes the liability of the parties.‘ 628. Damages. The question of the measure of damages in this class of cases is one not free from difficulty. The card- inal rule undoubtedly is that the injured party shall recover all the damages which have been occasioned by the failure of the other party to comply with the terms of the contract; but this rule is modified in its application by two others: 1. The damages that can be recovered must flow directly and natur- ally from the breach of the contract. 2. They must be certain both in their nature and the course from which they proceed. And the law may now be considered settled that the plaintiff cannot recover speculative, contingent and remote damages or probable gains, or contingent profits. He can only recover such damages as may fairly be supposed to have entered into the contemplation of the parties when they made the contract as might naturally be expected to follow its violation, suppos- ing they had given the matter their careful attention and considering all the circumstances surrounding them. Thus, where a company failed to send.a dispatch from Chicago to Oswego, N. Y., and by reason of such failure the plaintiff was prevented from purchasing a large quantity of salt, the court held that the measure of damages was the difference in the price of salt in Chicago and Oswego on the day of ship- ment, together with the increased charge for transport- ation, deducting costs of transportation when the salt should have been shipped But where a person has been disappointed in receiving goods, or in making a purchase, the law requires him to use due diligence in order to protect himself from loss; and if an article of the same kind can be readily procured in the immediate neigh- borhood at the same price, he must make the purchase, and if *Deruth v. Albany Tel. Co., 1 Daby, 547; Leonard v. Y. Albany &c. Tel. Co., 41 N. Y., 544; Baldwin v. U. S. Tel. Co., 1 Loring, 125. TELEGRAPHING. 539 he fails to do so, his damages will be reduced. He cannot at once abandon all attempts to procure the article and rest upon a claim for indefinite or posible profits which he may make in the rise in the price. The law requires him to use reasonable diligence after the notice of the failure to procure the same article, and if it is to be transported, the same or lower rates of freight. The sum that a plaintiff can recover is the direct loss or injury by reason of the negligence of the defendant, is the difference between the price of the artiele and the price the plaintiff would be compelled to pay after due and reasona- ble diligence to purchase the same article at the same place» and the price he was to pay for the article, and the increase of freights. The company must in all cases make good the direct . loss.” And this rule applies to parties who have been disap- pointed in sending dispatches for goods, or in making con- tracts.1. Thus, it was held when the defendant failed to deliver a message ordering a certain quantity of goods, which resulted in a loss to the plaintiff by reason of a sudden rise in the market, that the measure of damages was the difference be- tween the value of the goods at the price named and the sum which the plaintiff, in the exercsie of reasonable diligence after notice of the default of the telegraph company would have been compell-d to expend in purchasing the same quan- tity and quality of goods.’ 629. The General Rule of Damages. We think it may be 7 True v. International &c., 60 Me., 9; same, 11 Am. Rep, 156; Squire v. West. Un. Tel. Co., 98 Mass , 322; Parks v. Atlantic Co., 13 Col., 422; Bryant v. Am. Tel. Co., 1 Doly, 575; Bowen v. Lake Erie Co., 1 Am. Law Reg 685; Ritieabanm v. Ina Line of Tel , 1 Daly, 474, W. & N. 0. Tel. Co. v. Hobson, 15 Grat, 122; Griffin v. Colver, 16 N. Y. 490; Leon- ard v. N. Y. Tel Co., 41 N. Y., 544; 1 Am. Rep., 446- Freeman v. Clute, 3 Barb., 426; Blanchard v. Eli, 21 Wend , 342; Hadley v Baxendale, 26 E L. & E., 398. 1 Miller v. The Maumcheck, 7 Greenl., 51. 2 Squires v. Western Union Tel. Co., 98 Miss., 232; True v. Interna- jional Tel. Co., 60 Me., 9. 540 LAW OF DAMAGES. laid down as a general rule that telegraph companies will be held liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach if, at the time they entered into it they had bestowed proper attention upon the subject, and had been fully informed of all the facts. And that they are not liable for remote or specula- tive damages, although susceptible of proof and deducable from their neglect or refusal to carry out their contract.’ 630. The Washington & New Orleans Telegraph Company v. Hobson. This was an action against the “telegraph company for damages sustained by the plaintiff in consequence of a mistake in the transmission of a message on their line where- by an order to the plaintiff’s factors in Mobile to buy five hundred bales of cotton was altered to twenty-five hundred. The factors bought two thousand and seventy-eight bales of cotton before the mistake in the message was ascertained. It was held that if the company was liable to the plaintiffs for the damages arising from the alteration of the message, the commissions of the factors upon the purchase of the cotton were a part of the damages for which the company is liable, and that the plaintiffs were not bound to accept any offer of the company to pay the damages, which excluded these com- missions. The court said the measure of damages is what is lost on the sale of the excess of the cotton at Mobile, or if not sold there, what would have been the loss on the sale of the "True v. The Int. Tel. Co., 6 Maine 9; same 11 Am. Reg. 150; West. Un. Tel. Co. v. Graham, 1 Colorado 230; Bery v. Dunill, 44 Me. 255; Per- kins v. P.S. & P.R., 47 Me 592; Riply v. Mossly, 57 Me. 76; Squire v. W. U. Tel., 98 Mass. 232; Griffin v. Colver, 16 N. Y. 490; Leonard v. N. Y. Tel. Co., 41 N. Y. 544; same, 1 Am. Rep. 446; Freeman v. Clute, 3 Barb. 426; Blanchard v. Ely, 21 Wend. 342; Miller v. The Mar. Church, 7 Greenl. 51; Leonard v. N. Y. ete., 41 N. Y.544; 1 Am. Rep 446; Lane v. The Montreal Tel. Co., 7 Upper Can. Com. Pleas Rep. 23; Wash. etc Tel. Co. v. Hobson, 15 Gat. 122; Shields v. Wash. Tel. Co., 9 West. Law TELEGRAPHING. 541 cotton at Mobile in the condition and under circumstances which it was when the mistake was ascertained, including in such loss all the proper costs and charges thereon. When the mistake was ascertained a part of the cotton was on board a ship to be sent to Liverpool, a part was under contract of affreightment to the same place, but not on board. The whole should have been sold as it was at Mobile; and the plaintiffs having sent it to Liverpool and sold it there, the loss.of the company is not to be increased by this act of the plaintiffs, but must be based on an estimate of what it would have sold for a part on shipboard and a part under contract of affreightment. If the plaintiff sent the cotton to Liverpool for the purpose of speculation, with the intention of taking to themselves the profits, if any, and in the event of a loss visiting the loss on the company, they are not entitled to recover any loss sus- tained upon it. But the plaintiffs sent the cotton to Liver- pool, not with the purpose of taking profits, if any, but only to indemnify themselves out of the proceeds to the extent of the costs and obligation incurred by them, they do not thereby lose their right to recover from the company the damages which they would have sustained if the cotton had been sold at Mobile. The plaintiffs, if they intended to hold the com- pany responsible for the excess of the cotton purchased should: as soon as they were apprised of the purchase, have notified the company of such intention; should have made a tender of such excess to the counpany on the condition of its paying the price and all the charges incident to the purchase, and also that, in case of its refusal to accept said tender and comply with its conditions, they would proceed to sell such excess at Mobile, and after crediting said company with the next pro- Journ. 283; Lardsberger v. Magnet Tel. Co , 32 Barb. 530; Geldersleeve, 29 Md. 232; Rittenhouse v. The Ind. Line of Tel., 44 N. Y. 263; 4 Am. Rep 673; Tyler v. W. U. Tel. Co.. 60 Ill. 421; Hubbard v. W. U. Tel. Co., 33 Wis. 558; W. U. Tel. Co. v. Fenton, 52 Ind. 1. 1 542 LAW OF DAMAGES. fits, would look to it for the difference between the amount of such proceeds ‘and the costs of the excess, including all proper charges; and upon a failure of the company, after notice to accede to their offer, they should have proceeded accordingly.” 631. Hadley v. Baxendale The rule laid down for the as- sessment of damages in the case of a breach of contract in this famous case, that we have referred to so frequently in this work, applies in the case of a breach of a contract to send tele- graph dispatches. It isa practical rule founded on a wise pol- icy and at the same time consistent with good sense and sound equity; it is that the defendant can be held liable for a breach of contract only, for such damages as are the natural or necessary result of the breach, such as may fairly be. supposed to have been in the contemplation of the parties when they made the contract, as the probable result of a failure to com- ply with its stipulations. By this rule, all remote speculation and uncertain result, as well as possible profits and advan- tages, and other like consequences which might have arisen from a fulfillment of the contract is excluded, as forming no just or legitimate basis on which to determine the extent of the injury actually caused by the breach.’ 634. Mistake in Sending Dispatch to Ship Owner. In the case of Lane v. the Montreal Telegraph Company. The plaintiff, a ship owner, having been induced, by error of the defendant in the transmission of a message, to suppose he could obtain a cargo of eight thousand instead of three thousand bushels of wheat from Chatham to Oswego, abandoned a contract for a "The Wash and N. O. Tel. Co. v. Hobson, 15 Grat. 122, 19 Ex. 341. * Squire et al v. West. Un. Tel. Co., 98 Mass. 232; Field on law of dam. Sec. 414. TELEGRAPHING. 543 cargo from Detroit, and sent his vessel to Chatham, whence it sailed with a cargo of three thousand bushels only. Held, that the damages which naturally result from the defendant’s breach of duty were the expense of sending the vessel to Chat- ham and back, and that the plaintiff was not entitled to claim the profits he might have made from carrying the eight thou- ‘ sand bushels? 633. Mistake in Sending Dispatch for a Shawl. In Bowen v. The Lake Erie Telegraph Company, a telegram was sent to the plaintiffs, who were merchants, and when delivered, was as follows: “send one handsome cight dollar blue-orange.” By mistake of the company in the transmission, the telegram, as delivered to the plaintiff, was as follows:. “send one hundred eight-dollar blue and orange.” The plaintiff accordingly sent one hundred shawls of that description to the signer of the mes- sage, who returned them to the plaintiff, and the shawl season having closed they were depreciated in value. Held, that the plaintiff might recover the loss.* 634. Miitake in Sending Dispatch for Money. In the case of of Lowery v. the Western Union Telegraph Company, “One Brown sent a dispatch by the defendant’s line to the plaintiff, asking for five hundred dollars. By the negligence of the de- fendant’s employes the sum named was changed to five thou- sand dollars, which the plaintiff sent to Brown, who absconded with it. In an action for damages, the referee allowed the amount of the loss. This was held to be wrong, as Brown’s em- bezzlement did not naturally result from the defendant’s neglect.’ 3 7 Upper Canada Com. Pleas Rep. 23; see Wash. etc. Tel. Co. v. Hob- son, 15 Grat 122. *1Am. Law Register, 685; TheN. Y. & Wash. Bostgn Tel. Co., 35 Pa. st. 298. . 260 N. Y. 198. } t / 544 LAW OF DAMAGES. 635. Mistake in Sale of Stock. In the case of Rittenhouse v. The Independent Line of Telegraph, the plaintiff delivered at the defendant’s office, to be transmitted to a broker in New York, the following telegram ; * “Tf we have any old Southern on hand, sell the same before’ Board. Buy five Hudson at Board.” In transmission Hudson was changed to hundred and ~ the broker thereupon bought five hundred shares of old-South- ern (Michigan Southern Railroad). Plaintiff hearing of this directed the sale of the Southern, and the purchase of five hundred shares of Hudson River, according to the intent of the original messege, and which, it appeared, would have been understood by the broker if correctly transmitted. In the méan time Southern fell and Hudson rose, entailing a loss of, on the saleof the former of four hundred and seventy dollars, and on purchase of the latter of thirteen hundred and seventy- five dollars, The court below held the measure of damages to be the loss on the purchase of the Hudson, but declined to al- low the loss on the sale of the Southern, on the ground that the stock was in legal effect on the defendant’s account and could not be sold without some notice to them. The court of appeals affirmed the judgment, and expressly stated that the $1,375, the loss in purchasing the Hudson, was the measure of damage.* 636. Delay in Delivering, and Neglect in Sending a Dispatch. In the case of Bryant v. American Telegraph Company, the plaintiff sent a message to the defendant’s office in New York, addressed to an attorney in Providence, Rhode Island, direct- 444 N, Y. 263; Shields v. Washington Tel. Co., West. Law Journal 283. When it appeared that a dispatch was delivered by the plaintiff to be transmitted by the defendant, directing the purchase of wheat at a limit of ‘ 22,” it was changed to “ 25,” in consequence of which the wheat was purchased at a price that proved a loss of more than $2,000. The court held that the loss could be recovered. Rittenhouse v. The Ind- Line, 1 Daly 474. TELEGRAPHING. 545 ing him to attach a house and lot in that city of one B, who was then temporarily absent from Rhode Island, for a debt of $12,000 due by B’s firm to the plaintiff. The message was brought to the defendant’s office at half past eight p. m., which was then closed for the ordinary transaction of business. Their agent was told that the message was important, and that unless it was sent and delivered at once it would be of no use; that the object of the message was to get an attachment upon property in Providence; that unless it was made before the Stonington train reached the Rhode Island State line it would do no good; that he would consequently see the impor- tance of the matter, and why the plaintiffs were so urgent. The defendant’s clerk answered the plaintiff’s messenger that the message would be sent and delivered as he wished, and that he would not take the money if he thought there was any doubt. The message was sent ten minutes paet nine, with directions from the operator to send it in haste, and was re- ceived by the operator in Providence at half past nine p. m., who was then engaged in receiving report for the press, which by the statute had precedence over all other matter. The Providence operator answered that it could not be sent that night, as the delivery boy had gone home ; to which the other answered that it must be, and the former replied by a sign expressing his concurrence. The Providence operator was en- gaged without cessation in receiving newspaper reports until half past eleven o’clock p.m., when he had the message copied and sent to the attorney. When the attorney received it it was too late to have an attachment inade before the arrival of B, who returned to Rhode Island on the Stonington train that morning, and the plaintiff lost the advintage of securing the debt by an attachment on B’s house and lot, which was worth $12,000. B’s firm afterwards went into bankruptcy, and all the plaintiff recovered upon the debt from the bankrupt es- tate was $500. Held, that the plaintiffs were not bound to 546 LAW OF DAMAGES. exhaust their legal remedy against their debtors by the recov- ery of a judgment ‘and issuing an execution before bringing an action against the telegraph company for the recovery of dam- ages; ulso that the measure of damages was the amount of the debt and interest from the date of the delivery of the mes- sage, less the $500 which the plaintiffs had received from the bankrupt estate of B’s firm.’ 637. Damages Limited—Interest. In one case a message was: sent requesting a party to get $10,000 of Mail Company. “The $10,000 was in the hands of the Mail Company, and intended by the party sending the dispatch for a certain use.” But the message, which was addressed “ Landsburger,”’ was received and directed “Lanmeyer,” and by reason thereof some delay occurred, and the chance to use the money to profit, as intend- ed, was lost. The telegraph company had no notice whatever of the special purpose for which the money was to be used. The court said: “The defendant was not informed of any special use intended to be made of the sum of money, and what damage they would naturally expect to follow from the receipt of it. Clearly, the loss of the use of that sum during the time that its receipt was delayed, and the damage for the loss of such use, are by the laws of New York determined by the interest on the money. This being true, the court held that it could not be assumed that, the parties, when they made the contract, contemplated the pecuniary loss as the natural or probable result of the breach of it; or a fail- ure to send the message, and in case the company would only be liable for nominal damages, or to refund the price paid to send the dispatch. So that the rule laid down in the case of Hadley v. Baxendale did not apply.® 5 Bryant v. American Tel. Co., 1 Daly 575. ®16N, Y. 424; Landensberg v. The Mag. Tel. Co., 32 Barb 530; Shield v. Wash. Tel. Co., 9 West. L J 283; U.S. Tel. Co. v. Gildersleeve, 29 Mad. 233; Candee v. U.S. Tel. Co., 34 Wis. 471. TELEGRAPHING, 547 638. Omission or Refusal to Send a Message. It is now gen- erally conceded by courts and law writers that it is competent for telegraph companies to provide by rules and regulations against unforseen disarrangements of electric apparatus and the imperfection necessary incidented to the transmission of signs and words by electricity. But these forces or accidents do not affect the ability of the company to deliver the message to the party addressed after it has been taken off the wires and reduced to writing.’ 639. The Liability of Different Companies who Transmit the Same Message. As we have already intimated there seems to be quite adiversity of opinitn among courts and law writers in refer- ence to the liability of telegraph companies receiving messages to transmit over its own and other wires, where injury results from the negligence of the latter. It is settled in England that the first receiver is only responsible to the consignor.' But in this country the rule is distinctly opposite.’ < West. Un. Tel. Co. v. Graham, 1 Colorado 230; N. Y. & Wash. Tel. Co. v. Dyburgh, 35 Pa. st. 298. Murschampt v. Lancaster, etc. Railroad Co, 8 M. & W. 421; Scott- horn v. South. 8S. Railroad Co., 8 Exch. 341; 8 Eng. L. E. R. 287; Bristol Railroad Co. v. Cullins, 7 H. L. Cos. 194; Hulston v. Norman, 969; 11 Exch. 690; Caxon v. Gr. West. Railroad Co.,5 H & N. 214; Mytton v. Mid. Railroad Co., 4 H. & N. 615. 1 Nutting v. Conn. Riv. Railroad Co., 1 Gray 502; Hood v. N. Y. &N. H. Railroad Co., 22 Conn. 1; id. 509; Farm. and Merch. Bank v. Cham- plain Trans. Co., 23 Vt. 186; Dennetter v. Allegheny etc. Tel. Co., 1 Daly 547. CHAPTER XXXIX. LIQUIDATE DAMAGES. Liqguipare Damaces Derrinep. RuLes oF CoNnstRUcrion. THE AGREEMENT OF THE PARTIES TO CONTRACT WHEN IT CAN BE CLEARLY ASCERTAINED RuULE IN ENGLAND. RULE IN THE UNITED STATES. 640. Liquidated Damages. The parties to a contract havea right to fix the amount of damages in advance of the breach of it, in any sum, however disproportioned to the real damages, they may see fit and proper. And the sum thus fixed is called liquidated damages. And where the parties have, by agreement, fixed the amount of damages that shall be recov- ered from the party in default, the courts are bound to enforce the contract, and the plaintiff’s recovery will be limited to the stipulated amount, whether it be more or less than the real damages. 641. Construction. Owing to the fact that men of means are apt to take advantage of those who are laboring under LIQUIDATE DAMAGES. 549 financial embarrassment, and fix the amount of damages ata, sum greatly in excess of the real damages, courts have adopted the most rigid rule for the construction of contracts of this character. But when the intention of the parties can be clear- ly ascertained, the law makes it the duty of the courts to en. force the contract according to that intention. The rule adopted, and which are generally recognized by the courts for the construction of contracts of this character are as follows: 1. The language of the agreement is not conclusive, and the effort of the court is to learn the intention of the parties. The term liquidated damages in a contract is not conclusive evidence that the parties intended to fix the amount of dam- ages at a specific sum, if the court can discover in other parts of the instrument reasons to even doubt the intention of the parties. ‘2. Where the word penalty is used it is generally conclu- sive evidence against the stipulated amount to be held as liq- uidated damages, however strong the language of the instru- ment favors such construction. 3. If the sum stipulated is to be paid on the non-pay- ment of a less sum which is certain in amount, (or can be easily ascertained) and made payable by the same instrument, then it will be treated as a penalty. 4, If the sum be evidently fixed to evade the usury or any other statutory law, or to cloak oppression, the court will relieve the defendant by treating it as a penalty. 5. Where the contract contains stipulations or covenants for the performance of several things of various degrees of im- portance, and asum is specified in general terms to be paid on the breach of the contract, and even though it be designated as liquidate damages it will be treated as a penalty. 6. When the agreement is in the alternative to do an act or pay a given sum of money, the court will hold the party c 550 LAW OF DAMAGES. failing to have elected, and will compel him to pay the amount of money specified. 7. If independent of the stipulated damages, the amount of the recovery would be wholly uncertain and incapable of being clearly ascertained, except by mere conjecture. The court will consider the damages as liquidate if they are so de- nominated in the contract. 8. If the language of the parties evinces a clear and un- doubted intention to fix the sum mentioned as liquidate dam- ages in case of default of performance of some act agreed to be done, then the court will treat the sum specified as liquidate damages and enforce the contract if it be legal in other re- spects.* 642. The law relating to liquidate damages has been for years in a State of great confusion and uncertainty, for the reason that frauds have been so frequently committed in such contracts that the courts have endeavored, as far as possible, to suppress the vice and protect the innocent. But where the parties toa contract, knowing exactly their intent and object, should be left free to make such contracts as they may see proper and have them enforced in court. “The business t ' Bagby v, Peddice, 16 N. Y. 469; Hamilton v. Overton, 6 Black (Ind.) 206; Smith v. Dickens, 3 B. & P. 630; Asth v. Weldon, 2 B. & P. 346; Field on law of dam., Sec. 146; 7 Sup. Ct. U.S. 13; Foly v. McKegan, 41a. 1; Sedgwick on law of dam. 150; Robinson v. Keny, 2 Kansas 184; Grover v. Carter, 3 Ia. 244; Mason v. Calandar, 2 Minn. 350; Daniels v. Ward, 4 Ia. 184; Clark v. Kay, 26 Ga. 3; Wyman v. Cochran, 35 Il. 152; Ricketts v Trustee, 29 Conn. 268; Emmon v. Von 12 Barb 366; Carpen- ter v. Lockhart, 1 Ind. 434; 2 Ross & Peel, 346; Stuart v. White, 31 Ind. 211; Cathedral v. Salmage, 5 Feld. 551; Granalle v. Lowden, 11 Ohio st. 349; Duff v. Shocky, 11 Ind. 70; Spicer v. Hooper, 5 Ind. 365; Sainter v. Ferguson, 7 C. & B. 716. The aim of the court should be to find out the intention of the parties by considering the whole instrument. And if that can be ascertained, enforce it accordingly. Tea v. Whittaker, L. R. 8 C. P. 70; Magee v. Lovell, L. R. 9 C. & P. 107. LIQUIDATE DAMAGES. 551 of the court is to inquire after the meaning and intent of the parties and when that is clearly ascertained from the terms and language used, it should be carried into effect. A court of law is possessed of no dispensing power; it cannot inquire whether the parties have acted wisely or rashly in respect to the stipulations they may have thought proper to introduce into the agreement. If they are competent to contract within the prudential rules fixed as to parties, and there has been no fraud, circumvention or illegality in the case, the court should enforce the contract ” 30 L. T. N.S. P. 169; Huff v. Lawler, 45 Ind. 80; Noyes v. Phillips, 60 N. Y. 408; Legget v. Mut. Life Ins Co. of N. Y.,53 N. Y. 394; Dakins v. Williams, 19 Wend. 447; Leay v. Lafflin, 101 Mass. 344; Hazlewuck v. Tappen, 15 Johns 200; Mead v. Wheeler, 13 N. H. 351; Law R. 8 Ch. App. 1022. An intention to make asum determined on as liquidate damages payable on the breach of a minor and unimportant part of the agreement will not be imputed in the absence of language determining such agreement with precision. Hogland v. Sequr, 38 N. J. 230; Old- ham v. Kerchner, 79 N. C. 106; Pearson v. Williams. 26 Wend. 630; Powell v. Brenoun, 54 Pa. st, 329; Brown v. Maulsby, 17 Ind. 10; Chase v. Allen, 13 Gray 42; Dunlap v. Gregor, 10 N. Y. 241; Kemble v. Farren, 6 Bing. 141; 3 M. & P. 425; Willson v. Greer, 14 Ala. 315; Young v. White, 5 Watts (Pa.) 460. An action was brought upon an agreement made between the plaintiff and defendant, whereby the defendant agreed to act as principal come- dian at the Theater Royal, Convent Garden, during the four then next seasons, commencing October, 1828; and also to conform in all things to the usual regulation of said Theater Royal, Convent Garden; and the plaintiff agreed to pay the defendant £3 6s. 8d. every night on which the theater should be opened for theatrical performances during the next four seasons, and that the defendant should be allowed one benefit night during each season, on certain terms therein specified. An agreement containing a clause that if either of the parties should neglect or refuse to fill said agreement, or any part thereof, or any stipulation therein contained, such party should pay the other the sum of £1000, to which sum it was thereby agreed that the damages sustained by any such omis- sion, neglect or refusal should amount, and which sum was thereby de- _ clared by the said parties to be liquidate and ascertained damages. The court held that it was only a penalty. Kemble v. Farren, 6 Bing. 141. 2 Dakin v. Williams, 17 Wend. 447; Astly v. Weldon, 2 Bos & Peel. 846; Barton v. Glover. 552 LAW OF DAMAGES. 643. Ambiguity of Contracts. The questions in regard to this subject generally grow.out of the ambiguity of the article of agreement, or the contract between the parties. And as courts do not look with much favor on forfeitures and penal- 3 Suit on a written agreement by which the defendant agreed that he would, in twenty days, procure and deliver to the plaintiff a certificate of Charles L. Trobridge and De Garma Jones, officers of the Bank of Michigan, bearing their official signatures to the effect that there had been shown to them (Trobridge and Jones) three notes, signed by Ham- jlton and indorsed by John H. Hunter and R. S. Merril, for fifteen hun- dred and eighty.seven dollars and thirty-four cents, each dated J uly I; 1840; which notes they (Trobridge and Jones) considered good, and such as they would discount at any time when they were discounting notes; and Hamilton stipulated that if he failed in the above undertak ing, he would pay Overton and others five hundred dollars liquidated damages. An assignment of a failure to procure the certificate within the specified time and the refusal to pay the five hundred dollars. The court rendered judgment for five hundred dollars; appeal to the Su- preme Court. That court says: The question raised by the record is whether the sum of $500 stipulated in the covenant to be paid for the preach of it is in the nature of a penalty, or of damages settled and liqui- dated by the parties. Courts have not unfrequently found difficulty in drawing the line distinctly between penalties and liquidated damages. The intention of the parties must govern the construction of the con- tract in this particular as well as in all other respects, and it may be laid down as a general rule (admitting, however, of some exception) that when the covenant or agreement itself denominates a specific sum as a penalty, it will be so viewed by those whose duty it is to interpret the contract. Smith v. Dickenson, 3 B. & P 630; Astly v. Weldon, 2 B. & P. 346; Taylor v. Sandford, 7 Wheat 13. But several cases have occurred in which, though the parties themseives having designated the sum to be paid on a breach of covenant as liquidated damages, it has been con- sidered by the court as a penalty, or on the ground that from a view of the whole contract such must have been the real meaning of the con- tract. This is the doctrine where a specified pecuniary sum is secured by a large sum. Astly v. Weldon, supra per Chambers; Fletcher v. Dychi, 2 T. R. 32. The same principle is applicable to a covenant con- taining various stipulations of different degrees of importance—some the payment of specific sums and others sounding in uncertain dama- ges, with general provision that a large sum shall be paid for the viola- tion of any of the stipulations. Astly v Weldon, supra; Kemble v. Farren, 6 Bing. 141; Davis v. Benton, B. & C. 216, Charrington v. Laing, 6 Bing. 242 But where similar provision has reference only to uncer- LIQUIDATE DAMAGES. 553 'ties for breaches of contract, they are much inclined to apply the rules of construction with great liberality toward the payor in order to prevent parties from taking undue advantage of others.’ 644. The question whether a sum of money mentioned in an agreement shall be considered as a penalty, or as dam- ages liquidated by the parties, is always a question of con- struction, and although the words are to be taken as proved by the writing exclusively, yet there may be an inquiry into the matter of the contract, the situation of the parties, the usage to which they may be understood to refer, in order to ascertain their intention.’ 645. Importance of the Question of Construction. The ques- tion whether the sum mentioned in the contract to secure its fulfillment is a penalty or liquidated damages, is very fre- tain damages and has been understandingly made, without fraud, it is a matter of contract with which courts have no right to interfere, and furnishes the only measure of damages. Lorne v. Press, 4 Burr 2225; Kemble v. Farren, supra; Dakin v. Williams, 17 Wend. 447. In the case before us there is but one covenant, and from its nature the dam- ages for a violation of it are entirely uncertain; nor does it appear by the record how they could be well ascertained by evidence. The con- sideration which induced the undertaking isnot shown. We know only what the covenant was, that it was broken, and that the parties to it have themselves agreed upon the amount of damages to be paid for its breach. Held, liquidate damages. Hamilton v. Overton and others, 6 Black 206. ” Foly v. McKeegan, 4 Ia. 1; Gomer v. Saltmarsh, 11 Mo. 271; Bruster v. Egly, 13 N. H 275; Lindsey v. Anesly, 6 Ind. N. C. L. 186; Maurice v. Body, 15 Abb. N. J. Pr. 113; Hosmer v. True, 19 Barber N. Y. 106; Stereether v. Williams, 48 Pa. st. 450; Durst v. Swift, 11 Tex. 273. Mr. Chief Justice Nelson, in delivering the opinion of the Supreme Court of New York, after reviewing the authorities, says: “From the critical examination of all the 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 meaning and interest of the parties, and when that is clearly ascer- tained from the terms and language, it must be carried into effect.” 554 LAW OF DAMAGES. quently one of great importance to the parties. If it is regarded as a penalty, the party injured by the breach can only recover his actual damages, with some few exceptions. If as liquidated damages the right to recover in all cases is limited to the amount mentioned in the agreement and is conclusive upon both parties.° i 3 In the cases of Taylor v. Sandford, argued in the Supreme Court of the United States: The parties entered into a contract for the plaintiff to build the defendant three houses ata stipulated price. The agree- ment contained the following clause: ‘The said houses to be com- pletely finished on or before the 24th day of December next, under a penalty of one thousand dollars in case of failure.” The three houses were not completed by the day, and the plaintiff in error claimed the sum of one thoosand dollars as stipulated damages, and retained it out of the money due the defendant in error. This suit was thereupon brought, and on the trial of the cause the defendant, in the Circuit Court claimed, to set off in this action, one thousand dollars as in the nature of stipulated damages; but the court overruled this claim, and decided that the said sum of one thousand dollars had been reserved in this nature, and could not be set off in this action. * * * In general a sum of money in gross to be paid for the nonperformance of an agree- ment is considered as a penalty, the legal operation of which is to cover the damages which the party in whose favor the stipulation is made may have sustained by the breach of the contract by the opposite party. It will not of course be considered as liquidated damages, and it will be incumbent on the party who claims them as such, to show that they were so considered by the contracting parties. Much strong is the in- ference in favor of its being a penalty when it is expressly reserved as one. The parties themselves denominate it asa penalty, and it would require very strong evidence to authorize the court to say that their own words do not express their own intentions. * * The counsel for the plaintiff in error supposes that the contract furnishes a clear evidence that the parties intend this sum as liquidated damages The circum- stances that are annexed to the single covenant stipulating the time when the work shall be completed, is considered as showing that it was intended to fix the damages for the breach of that covenant. The en- gagement that said houses shall be completely finished on or before the 24th day of December next, is as much an engagement for the manner as for the time of finishing the work, and covers, we think, all the errors made by the defendant in error in that agreement. The case therefore presents the single question whether an agreement to perform certain work by a certain time, under a certain penalty, is to be construed as liquidating the damages which the party is to pay for the breach of his ‘ LIQUIDATE DAMAGES. 555 646. Exception to the Rule. The general rule is that a promise'to pay a sum of money does not fall within the class of cases to which the doctrine of liquidated damages applies, the rate of interest allowed by law being the measure of dam- ages for delay in the payment of money.’ 647. The authorities are uniform in holding that where a large sum is stipulated to be paid on the non-payment of a less sum, which is certain in amount (or can be easily ascer- tained) and made payable by the same instrument, shall be treated as a penalty ; or where the contract contains stipula- tions or covenants for the performance of several things of various degrees of importance, and a sum is specified in gen- eral terms to be paid on the breach of the contract, and even though it be designated as liquidate damages, it will be treated as a penalty and not as such damages.’ contract. This question seems to have been decided in the case of Smith v. Dickinson, 3 Bass. & P. 630 The court held that the stipulation was in the nature of a penalty, could not be allowed asaset off. Taylor v. Sandford, 7 Wheat U. 8. 1866; Studebaker v. White, 31 Ind. 211. ® Brown v. Maulsby, 17 Ind. 10; Mead v. ‘Wheeler, 13 N. H. 351; Orr v. Churchill, 1 H. Blackstone, 227; Sedgwick on dam., 400; Billingsly v. Dean, 11 Ind. 331; Taylor v Sandford, 7 Wheat 13. But the authorities are very much in conflict upon this point. The Supreme Court of the State of New York, in the case of Dakin v. Wil- liams held, where a note was payable on a specific day, for a certain sum, but by its terms may be discharged by the payment of a less sum at an early day held, that on failure to pay on the day mentioned, the plaintiff could recover the larger sum as debt actually due. 19 Wend. 447; see Field on law of dam , Sec. 147. 7 Daily v Litchfield, 10 Mich. 29; Bagly v. Beddie, 5 Sandford (N. Y.) 192; Bary v. Ambrose, 28 Mo. 39; Hannaman v. Breedenbock, 31 Mo, 49; Watts v. Sheppard, 2 Ala. 429; Taylor v. Sandford, 7 Wheat 13; Van Buren v. Digges, 11 How. (U. 8.) 461; Burrage v. Crump, 3 Jones (N. C.) L. 330; Abrams v. Kounts, 4 Ohio 214; Brown v. Maulsby, 17 Ia. 10; see authorities cited under Section 640 of this chapter. 556 LAW OF DAMAGES. 648, The authorities in England recognize this rule. In the case of Kemble v. Farren, which was an action on an agreement between the plaintiff and defendant to recover liquidate damages. By the agreement, the defendant had engaged himself to act as the principal comedian at Convent Garden Theater for four seasons, commencing with October, 1828, and was in all things to conform to the regulations of tie theater. The plaintiff agreed to pay the defendant £3, 6s. 8d. every night on which the theater should be open for the theatrical performance during the ensuing four seasons, and that the defendant should be allowed one benefit night during each season, on certain terms which were specified; and the agreement contained a clause that if either of the parties should neglect or refuse to fulfill the said agreement, or any part thereof, or any stipulation therein contained, that sueh party should pay to the other the sum of £1,000, to which sum it was thereby agreed that the damages sustained by any such omission, neglect or refusal should amount, and which sum was thereby declared by the said parties to be liquidate and ascertained damages, and not a penalty or penal sum, or in the nature thereof. The breach alleged was that the defendant refused to act during the second season. At the trial the jury gave the plaintiff a verdict for £750. The court of Common Pleas in commenting on the question, said: “It is undoubtedly difficult to suppose any words more precise or explicit than those used in the agreement, the same declar- ing, not only affirmatively that the sum of £1,000 should be taken as liquidated damages, but negatively, also, that it should not be considered as a penalty, or in the nature thereof. And if the clause had have betn limited to breaches which were of an uncertain nature and amount, we should have thought it would have had the effect of ascertaining the dam- ages on any such breach at £1,000. For we see nothing ille- gal or unreasonable in the parties, by their mutual agreement, LIQUIDATE DAMAGES. 557 settling the amount of damages uncertain in their nature at any sum upon which they may agree. In many cases such an agreemen' fixes that which is almost impossible to be ac- curately ascertained, and in all cases it saves the expense of bringing witnesses to that point. But in the present case the clause is not so confined. It extends to the breach of any stipulation by either party. If, therefore, on the one hand, the plaintiff had neglected to make a single payment of the £3 6s. 8d. per day; or, on the other hand, the defendant had refused to conform to any usual regulation of the theater, how- ever minute or unimportant, it must have been contended that the clause in question in either case would have given the stipulated damages of £1,000. But that a very large sum should become immediately payable in consequence of the non-payment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction of the terms, the case being precisely that in which courts of equity have always released, and against which the courts of law have in modern times endeavored to relieve by directing juries to assess the real damages sustained by the breach of the agreement.” + 649. The Same Rule is Recognized in this Country. In the case of Carpenter v. Lockhart, the parties entered into an 16 Bingh., 141, 70. Here there was a distinct agreement that the sum stipulated should be liquidated and ascertained damages. There were clauses in the agree- ment, some sounding in uncertain damages, others relating to certain pecuniary payments. An action was brought for a breach of a clause of an uncertain nature, and yet, for this very reason it would be absurd to construe the sum counted in the agreement as liquidate damages. Astly v. Weldon, 2 Bos. & Pull, 346; see also Davis v. Penton, 6 Barn. & Cres., 216; Horner v. Flintoff,9 M. & W., 679; Edwards v. Williams, 5 Taunt, 247; Ross v. Ancell, 7 Scott, 364; 5 ‘Bing, 390; 2 Arn, 9; 3 Jur., 316; Belts v. Burch, 3H. & N., 506; 28 Exch., 267; 1 F. & F., 485; Mayne on dam., 66; Sedwick’s leading cases on measure of damages, 432-441; Dock Com. ex parte, Husly k 8 ch., App. 1022. 558 LAW OF DAMAGES. - agreement to amicably settle a matter of difference between them growing out of a partnership. The agreement contained . the following stipulations: 1. The chancery suit in which the above named injunction was granted shall be dismissed by Lockhart. 2. The lands and effects of the firm, and also the lands owned by Lockhart, and by the Carpenters severally, in Union Township, Vanderburgh County, Indiana, and a tract of land purchased of C. D. Bourne, shall be taken into settle- ment, and shall be divided into three parts, as follows: 1. The dry goods, etc. 2. The residue of the effects of the firm and the aforesaid’ lands in Union Township. 8. The Bourne tract, of which parcel the Carpenters shall take the first at, etc., and they shall say in writing what the other two are sev- erally worth. 38. It shall be at the option of Lockhart which of the two said parcels, so to be valued by the Carpenters, he will take at the valuation, but shall take one of them and they the other. 4. The first parcel (taken by Carpenters’) shall be applied towards the payment of a debt due them from the firm, and the balance due them, with other debts of the firm, to be paid by the party taking the second parcel. 6. The party found in debt at the close of the settlem-nt shall give notes to acceptance to A. Warner for the payment of such indebtedness in six, twelve and eighteen months. 12. The number of acres of Union Township land to be brought into the settlement shall not exceed the number of acres owned by Lockhart in said township. 13. Each of the parties to these presents shall convey to the other by good and sufficient deed or deeds, etc., all such real estate as such party or parties shall, by virtue of this agreement, be entitled to have so conveyed, so soon as the purchase money thereof shall be fully paid. The party taking the property in the second division shall give bond, etc., for the application of the property for the pay- ment of the debts of the firm of said Lockhart & Co., and that the said debt shall bé paid without unnecessary delay. 15: LIQUIDATE DAMAGES. 59 The parties mutually covenant with each other that if either shall 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 and abided by and performed, the party so fail- ing, etc., shall pay the other party the sum of ten thousand dollars (and no greater or smaller sum), as and for damages occasioned by such failure, etc. Suit by the plaintiff against defendant for several alleged breaches of the contract, for liqui- date damages. The court, in commenting on the question of damages, said: “On this point we have no difficulty. The instruction was wrong. Some of the rules for determining whether a sum shall be considered a penalty or liquidate dam- ages are well settled. * * One of those rules we understand to be that, when an agreement contains various stipulations of different degrees of importance, the damage for the breach of some of which would be certain, and of ‘others uncertain, and a large sum is expressed in the agreement as payable on the breach of any of the stipulations, such sum is always to be regarded as a penalty and not liquidate damages. This case falls clearly within this rule.” Held, that the amount agreed upon as damages could not be considered as liquidate damages, but a penalty.’ 31 Ind., 434; see also Studebaker v. White, 31 Ind., 211; Duffy v. Shockey, 11 Ind., 70; Hamilton v. Overton, et al.,6 Black., 206. The same principle is applicable to covenants containing various stipulations of different degrees of importance, some for the payment of a specific sum, and other sounding in uncertain damages with a general provision that a large sum shall be paid for a violation of any of its stipulations, it is always held as a penalty. Hamilton v. Overton, et al., supra; Foley v. McKeegan. 4 Ia, 1; Jam- ison v. Grey, 29, Ia., 587; Hise v. Foster, 17 Ja., 23; Baird v. Tolliver, 6 Humph. 186; Lord v. Gaddis, 9 Iowa, 265; Hoagland y. Senger, 3 N. J., 230; Taylor v. Sanford, 7 Wheat, (U.8.), 13; Bagley v. Peddie, 16 New York, 469. 560 LAW OF DAMAGES. 650. Cases in which the Stipulated Amount Hax Been Allowed asa Penalty in England. In England the decisions are harmo-~ nious in holding that where the amount of recovery is wholly incapable of being estimated, except by mere conjecture, the court will consider the stipulated amou it to be paid on the breach of the whole, or any of the provisions of the contract, as liquidate damages (and especially where it is clearly ex- pressed to be such) and not as a penalty.’ ‘ 651. In the case of Galesuett v. Strutt, which was a suit on an indenture for a dissolution of a co-partnership between the plaintiff and defendant as attorneys and solicitors, Strutt promised and agreed that he would not, at any time or times thereafter, within the next seven years, directly or indi- rectly either by himself or in co-partnership with anoth- er, or others, carry on the said practice, profession or busi- ness of an attorney or solicitor within the distance of fifty miles from —————, nor interfere with, solicit or in- fluense the clients of the late co-partnership. The sim of £1,000 was fixed as liquidate damages. Action commenced —breach assigned: practicing attorney within fifty miles. Parker B.,in delivering the opinion of the court, said: ‘| take it to be clear that upon the true construction of this covenant, the defendant would not be bound to pay more than , ™ Mayne on Dam.. 67; Alkyns v. Kenner, + Exch., 776; Green v. Price, 13 Mees & Price, Wells 695; 14 L. J. Exch., 225; Price v. Green, 16 M. & W., 346; 16 L. J. Dxch. 108-9; Sainter +. Ferguson, 62 Eng. Com., 716; Ranulaon v. Clark, 14 Mccs ¥ Wells, 716; Crisdee vy. Bolton, 3 Car & P. 240, Atkins v. Krimer, 4 Ixch., 776; Lowe v. Peers, + Burr, 2225; Fletch er v. Dyche, 2 T. R.. 32; Ruby v. Jones, 1 Bing, 302; 8 Moore, 244. But where the rule in the construction of these contracts is that if the agreement consists of one or more stipulation the breach of which cannot be measured, then the contract must be taken to have meant that thesum agreed upon was to be liquidated damages and nota penalty. Mayne on Dam., 67; Atkins v. Kinner, supra. LIQUIDATE DAMAGES. 561 £1,000, that is in case he should have violated either of those two or three matters mentioned in the covenant. These mat- ters,are each of them incapable of exact estimation. It can not be said what damages a person must sustain by another setting up in business within a limited period of time, or dis- tance, nor how much he may be injured by the loss of one of his clients. The loss may be either great or small, and there- fore, in order to avoid all dispute the parties are content to fix a certain sum, namely, the sum they have mentioned in ex- pressed terms in their agreement. Now it is perfectly com- petent for parties to make a stipulation to pay a fixed sum for a breach of a covenant, the damages arising from which it is extremely difficult to ascertain, and I think it is not an unrea- sonable stipulation which the defendant has made, that he should pay £1,000 upon the event of either matters mentioned in this agreement. 652. This doctrine is generally approved in this country. In the case of Studybaker et al. v. White, which was an action brought for damages for the breach of the conditions of a bond. The defendant agreed with the plaintiff to sell no more spirit- uous or malt liquors, or wine, within the county of Wells, State of Indiana, after the 4th day of March, 1859, nor cause the same to be sold within the said county, either directly or indirectly, after the said time specified. And he further bound himself to neither manufacture or obtain any spirituous or malt liquors, or wine, or cause to be sold in said county aforesaid, by himself or any other person, either directly or indirectly, after the 4th day of March aforesaid.. And he fur- ther bound himself to settle certain obligations calling for liquor, payable to Joseph Richy, of the sum of $177.57; but in no case was liquor to be brought to the town of Bluffton, 21 Exch., 658; see Atkins v. Kinner, 4 Exch., 766. 562 * LAW OF DAMAGES. county of Wells. And he agreed further to use his influence to prevent any person or persons from bringing any of the aforesaid liquors to the aforesaid town with the intentign of selling within the town aforesaid. The sum named in the bond was one thousand dollars. After commenting on the question of damages and reviewing the authorities at some length, the court said: “The sum named in this case is to be regarded as liquidate damages, and any violation within the plain intent and purpose of the contract, authorizes such recovery.” * 653. Bagley v. Peddie et al. In this case one of the defend- ants, Charles B. Peddie, agreed with the plaintiff, who was the manufacturer of gold pens, to serve him for four years; and that he would not disclose any of the secrets of the business, or any improvements or discoveries or process employed against fraud, etc. Thomas B. Peddie joined with the employe in executing a bond to the plaintiff in the sum of $3,000 as liquidated damages, and not by way of penalty or otherwise. And it was further stipulated that if the employe should fail to serve the employer as per agreement, or violate any of the covenants in said agreement, then the above bound obligors. were to pay to the plaintiff the above sum of $3,000 as liquid- ated damages. Action was brought for a breach. The court, in commenting on the question of damages, said: “The prin- cipal question to be settled in this case is whether the parties have so contracted as to have fixed the amount of damages to *31 Ind. 211; Duffy v. Shocky, 11 Ind. 472; Catheal v. Talmage, 5 Seld. 551; Granelli v. Lowden, 11 Ohio st. 349; Sedgwick on dam. (4th ed.) 472; Hamellor v. Overton, 6 Black 206; Lang v. Werk, 2 Ohio st. 520; Pierce v. Fuller, 8 Mass 222; Dakin v. Williams, 17 Wend. 447; Jemi- son v. Gray, 29 Ia. 537; Hise v. Foster, 17 Ta. 23; Harbrouck v. Tappen, 15 John 200; Mead v. Wheeler, 13 N. H. 351; Hardee v. Howard, 33 Ga. 533; Sutton v. Howard, Ia. 5386. N LIQUIDATE DAMAGES. 563 be recovered of the defendant in case of the non-performance of Charles B. Peddie. Although the courts have uniformly conceded to parties the right to fix the amount of damages in advance of the breach of the contract, and at any sum, how- ever disproportioned to the real damages they shall see fit, arid have likewise conceded that in question of intention to be de- rived from the scope and the tenor of the agreement. Yet when the judicial mind has acted upon this class of cases, it isevident how repugnant it has been to enforce them accord- ing to the plain, expressed language of the contracting parties. Hence have sprung up a series of artificial rules for construc- tion peculiar to contracts of this character.” After comment- ing at great length on the rules of construction, the court held that ‘The damages to result from a breach of any of the stip- ulations of the agreement being uncertain and conjectural, it was held that the sum of $3,000 could be recovered as liquidate damages.® 6 16N. Y. 469; see Sainler v. Ferguson, 7 C. & B. 716. CHAPTER XXXVI OFFICIAL BONDS. StTaTuUTORY AND Common Law Bonnps. OFFiIcrIAL Bonps. GEN- ERAL RULE OF DAMAGES. GENERAL LIMITED BY THE PENAL- ty. ATTACHMENT BONDS. ARBITRATION BONDS, NE EXAT BONDS. INJUNCTION BONDS. DELIVERY BONDS. APPEAL BONDS. INDEMNIFYING BONDS. REPLEVIN BONDS. RECEIPT BoNDs. SEcurtry. MInisteRIAL Orrices. Remote Dam AGES. LIQuoR BONDS. 654. Official Bonds. In most, if not all the States, it is provided by statutes for the election of a number of State, county and township officers, and fixing their liabilities and duties. And it is generally provided that such officers shall qualify and give bond in a specified amount for the faithful discharge of their official duties. These bonds are given for the protection of the public and private individuals who tran- sact business with them from loss. And it is now pretty well settled that they are the insurers of all money that may come into their hands or is entrusted to their care2 And when one is sued on his official bond for a failure to account for money BONDS. 565 entrusted to his official care, he cannot exonerate himself from liability by showing that the money was stolen from him with- out negligence or fault on his part.' 655. The Damages. As a general rule, in penal bonds, the recovery will be limited to the actual injury or loss sustained by the plaintiff, and in some cases interest;* And that the penalty named in the bond will be considered as security and not as liquidate damages.° 656. The Extent of the Plaintiff’s Recovery. As a general rule, adopted in all the States, the damages cannot exceed the penalty of the bond. The contract fixes that amount as the ultimate responsibility of the obligators, and no greater amount than that can be recovered in any event on official bonds." But st seems that where the loss sustained by the plaintiff is equal or greater than the penalty, and the obligors fail to pay ‘ 3 Halbert, ex rel., v. the Board of Commissioners of Martin County, 22 Ind., 125. ~ 4 Halbert v. the State, ex rel., Board of Coms. of Martin Co., 22 Ind., 125; Muzzy v. Shattuch, 1 Denio, 233; Inhab. of Hancock v. Hazzard, 12 Cush., 512; U.S. v. Pres., 3 Howe, 578; Commenwealth v. Conely, 3 Pa. st. Rep., 372; State of Ohio v. Harper, 6 Ohio, 607; Warren v. Steele, 10 Ala., 374; Freeman y. The People of Illinois, 54 Illinois, 153; State of Missouri v. Sandusky, 46 Mo., 317. 6 Davis v. Gillett, 52 N. H., 126. 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 be- comes, in law, 4 debt due, and the obligors can discharge themselves from liability on the bond when the liability equals or exceeds the penal- ty. Ifthe payment of the penalty alone, and if it be not paid at the time of the breach, then it should bear interest until paid. Hughes v. Wickliff, 11 B. Mon., 202; Carter v. Thorn, 18 B. Mon. Roe, 618; Brain- ard v. Jones, 13 N. J., 35; Carter v. Carter, 4 Day 30. ’ Davis v. Gillett, 52 N. H., 126; Walker v. Foard, 5 Black, 392; White y. Sealy, Dougl., 49; Brangrive v. Perrot, 2 W. B., 1190; Welde v. Clark- son, 6 T. R., 303; Mockworth v. Thomas, 5 U. S., 329; Clark v. Seton, 6 566 LAW OF DAMAGES. his claim when the breach occurs, the penalty in law begomes a debt due, and the obligors can discharge themselves by pay- ment of the penalty alone, and if it be not paid at the time of the breach, it should bear interest until paid.’ 657. But there are authorities which hold that the plain- tiff in an action on covenants or stipulations of a bond for the sale and conveyance of real estate may recover damages in excess of the penalty. They measure the damages by the good or bad faith of the parties. If the vendor entered into the contract in good faith, and is prevented from making the conveyance by an unforeseen cause, over which he had no con- trol, the vendee can recover the money which he has paid with interest and nominal damages; but if the vendor is in the fault and did know, or should have known, that he had no title and would be unable to make the conveyance according to contract, or if, having title he refuses to convey the plain- tiff may recover substantial damages, such as, the increased value of the land between the making of the bond and the breach of it.? Ves., 411; Hellen v. Ardly, 3 Car. & Payne, 12; Hughes v. Wyne, 1 Mylne & Keene, 20. There are some cases that hold that the principal can be held on the bond for any amount over the penalty, but that the security cannot. 1 If the damages exceed the penalty, the common law rule governs, and the penalty is the debt, That is all that the obligor in any event has bound himself, and all of course that can be recovered, except the costs of the suit. State ex. rel. Walker v. Ford, 5 Black 392; Hughes v. Wickliff, 11 B. Mon. 202; Carter v. Thorn, 18 B. Mon. 613; Branard v. Jones, 18 N. Y. 35; Carter v. Carter, 4 Day 30; State of Missouri v. San- dusky, 46 Mo. 377; McCoy v. Elder, 2 Black 183; Davis et al v. State ex rel. Board of Commis. of Barth. Co., 44 Ind. 138. ? Foly v. McCeegan, 4 Ia. 1; Swan v. Steel, 5 Ia. 352; Harrison v. Wright, 13 East. 843; Swan v. Steel, 10 Ia. 374; Martin v. Taylor, 1 Wash. Cc. 0.1. 2 \ BONDS. 567 658. Damages under Statute on Suit or Attachment Bond. In most of the States they have statutory provisions governing the suing out of writs of attachment; and in most, if not all, the plaintiff is required to give bond, with a penalty and surety for the faithful prosecution of his proceeding in at- tachment, and to pay all damages and costs that the defendant may sustain if such preceeding shall prove wrongful and op- pressive. Action on an attachment bond will not bar the defendant of his right of action for malicious prosecution, but he will be confined in his action on this bond to such injuries as he may sustain by reason of such a’tachment proceeding. It has been frequently held by the court of last resort of this country that the giving of the bond in the attachment pro- ceedings does not effect the defendant’s remedy at common law for malicious prosecution.’ 659. The Damages. The plaintiff’s measure of damages will be, in an action on attachment bonds, the actual loss that he has sustained. “On general principles it must be the natural proximate legal result or consequence of the wrongful act. Remote or speculative damages, such for instance as re- sult from injury to credit, business character or feelings can not be recovered. Actual damages may be properly compre- hended under two heads: 1. Expense and losses by the plain- tiff in making his defense to the attachment. proceedings. 2. Loss occasioned by his being deprived of the use of his prop- erty during the pendency of the attachment, or by the illegal sale of it, or by injury thereto or loss or destruction thereof. For losses and trouble of this description, the plaintiff should be liberally remunerated.” Under the first head the plaintiff will be allowed all expense incurred in procuring evidence and 1 Sanders v. Hughes, 2 Beauch. 495; Donnell v. Jones, 13 Ala 490; Smith y. Story, 4 Humphreys 169. 568 LAW OF DAMAGES. obtaining his testimony on the trial, and all costs of suit in all the courts to which it may be taken, and fees paid attor- neys for services in the attachment suit, but not in the suit for damages.’ The rule of damages under the-second head is variously laid down. “In New York it has been held that the plaintiff may recover such damages as a jury may think he has sus- tained by the wrongful seizure and detention of the property.” Tf it was taken out of his possession he may recover its value; if siezed and left in his possession, to such damages as may be awarded for the unlawful intermeddling with his property.” But the same court afterwards held that no more than nominal damages can be recovered where in the attachment the defend- ant is not dispossessed.* If the plaintiff in the attachment proceedings fails to sustain his proceedings in attachment, although he succeeds in his action, he is liable on his bond. If he fails in his action and the attachment, he is liable in damages on his bond, or in other words, if the proceedings in attachment are wrongful and oppressive, that gives the attach- 2 Wilson et al v. Root et al, 43 Ind. 489; Sedgwick on the measure of damages, 543; Drake on attach., sec. 175; Manes v. Price, 2 Black 457; Hosham v. Hosham, 8 Black 258; Campbell vy. Chamberlin, 10 Ia. 337; Hayden v. Sample, 10 Mu. 215; Seay v. Greenwood, 21 Ala. 491. Duneg v- Humphries, 24 Wend. 31. : ® Grate v. Gillespie, 24 Wend. 386; Raner v. Webster, 3 Ia. 502; Plumb v. Woodmansee, 34 Ia. 116; Bennet v. Brown, 31 Barber 158; 20 N. Y. 99; Silsby v. Lucas, 5 Ill. 479; Collins v. Sinclair, 51 Barb. 328; Myers v. Farrall, 47 Miss. 281; Field on dam. p. 440, Sec. 550. It has been held in Iowa that the plaintiff in a suit on an attachment bond may recover exemplary damages, if he can show that the defendant sued out the attachment maliciously. Field on law of damages, p 438, Sec. 559, BONDS. 569 ment defendant a good cause of action, whether the plaintiff in the attachment has a good cause of action against the attachment defendant or not.’ But injuries to credit, character or business are too remote, and cannot be recovered. Generally, the plaintiff may re- cover his expenses and loss in making his defense to the attach- ment proceedings, the loss arising from being deprived of possession and use of his property during the attachment proceedings, or by illegal sale of it, or by injury therto, or loss or destruction thereof. Also such damages as he may sustain in the destruction of business, where it is the natural result of the trespass.° 3 Harper et al v. Keys, 43 Ind. 220. Where the attachment was wrongfully sued out and there was not probable cause for believing the grounds upon which the game was issued upon were true, the plaintiff, in an action on the bond, may re- cover reasonable attorney fees, and the destruction of business by the taking of goods may be a proper element of damages when the destruc- tion or loss is the natural result of the trespass. And where the plain- tiff was prevented, by reason of his property being attached, from performing a contract previously made, and material prepared to be used for that purpose, is depreciated in value, this is a proper ele— ment of damages. Carpenter v. Stevenson, 6 Bush. 259; Field on dam- ages, 441.@ 4 State Bank v. Morrison, 13 Ia. 136; Stadler Bros. & Co. v. Parmalee & Watts, 10 Ia. 26; Ripley v. Mosby, 57 Md. 76. In Illinois it has been held that an injury to credit and business are proper elements of dam- ages. 656 Ill. 674; McCullough v. Watson, 11 Ala. 492; Keery v. J ones, 7 Ala 622; Seay v. Greenwood, 21 Ala. 493; Spring v. McGee, Id. 417. In Iowa it has been held that the plaintiff in an action on the attach- ment bond where the suing out has been wrongful and oppressive, may recover expense in defending the attachment suit, loss sustained by be- ing deprived of the property attached, for injury occasioned by its de- preciation in value, or entire loss. And that where the suing of the attachment was wilfully wrong, exemplary damages might be allowed, Campbell v. Chamberlin, 10 Ia. 337. 6 Carpenter v. Stevenson, 6 Bush. (Ky.) 259. The damages recoverable 570 LAW OF DAMAGES. 660. Mitigating Circumstances. The defendant may show in mitigation that he was non-suited in the original attachment suit, and that the property he had at that time attached he has since re-attached in a subsequent action by him, which had been prosecuted to judgment under which the property was sold.’ But where the original taking is absolute trespass, however, without color of legal right, it is thought that such facts would not be admissible in mitigation of damages in suits on the attachment bond.’ 661. Arbitration. The common law looks with great favor upon the efforts of men to settle their differences in a peacea- ble, friendly way. They make such settlement themselves, or they may do it through the intervention of others, and then it is called an arbitration. The common law holds these set- tlements as binding on the parties, unless fraud or mistake can be shown; and it is a matter of no consequence whether the settlement is made between the parties themselves or by friends mutually chosen by them, the effect will be precisely the same, for a rule of law is that what a man does by another he does by himself.’ The persons chosen by them will be con- sidered their agents, called in law arbitrators. Having chosen their arbitrators and clothed them with plenary power, and authorized them to settle the matter of difference between them, the acts of these agents will bind their principals accord- ing to the well recognized rules of the law of principal and agent. The learned Blackstone, many years ago, in speaking in regard to arbitrators said, ‘“‘ Experience having shown the on an attachment bond should be the deprivation of the use of property. They should be reasonable, certain and the natural and proximate con- sequence of the breach. Sedgwick on measure of dam., 489. 7 Early v. Spooner, 3 Denio 246. 1 Sedgwick on measure of dam., 490 notes; Field on law of dam. 441-2, ? McDonald’s Treatise, 303; 2 Tedds 877; 3 D. & R. 184. BONDS. 571 great use of these peaceable and domestic tribunals, especially in settling matters of account and other mercantile transac- tions which are difficult and almost impossible to adjust on a trial at law. The courts of justice are strongly inclincd to favor such mode of making peace between persons who disa- gree as to their mutual dealings.”? And the same remarks apply equally as forcibly to matters of torts unconnected with the contract. This method of settling differences and difficul- ties commends itself to every lover of law and order. And it is a matter to be much regretted that this method of adjusting difficulties among neighbors is not more frequently resorted to than it is. The parties may by verbal agreement submit their disputed points to the arbitrators, or they may reduce it to writing.‘ / 662. Bonds Given. It is not unfrequent for the parties to a common law arbitration to enter into a mutual bond to abide by the arbitration, and to pay all costs that may be awarded against them. And in many of the States they have a muni- cipal law which provides for what is generally termed a statu- tory arbitration. In this class of arbitrations the parties are generally required to enter into.bond to abide by and pay the award of the arbitrators. In case of a failure to pay and breach of the bond, suit is brought on either a common law or statu- tory arbitration bond; the measure of damages will be the amount of the award with legal interest from the time of its rendition.® 663. Ne Exat. On complaint filed in a court of chancery, showing that the defendant is indebted to the plaintiff in a ” 3 Blackstone 17. 3 Shayer v. Bash et al, 57 Ind. 394. * Miller v. Goodwin, 29 Ind. 46. Attorneys’ fees cannot be recovered in suit on bond, Miller y. Hays, 26 Ind. 380. 572 LAW OF DAMAGES. specified sum, and that the defendant designed going soon to parts without the State to the damage of the plaintiff, the court will order a writ reciting the facts to be issued to the sheriff, or other officer, commanding him to arrest the defend- ant and cause him to give bail in a sum sufficient to cover the plaintiff’s claim; and if he fail or refuse to procure such bail, then to commit him to prison. This writ is now used in most of the States to secure bail or security on notes not yet due, or where a party is about to leave the State without making provision for the payment of the same.’ But where the surety is given, the amount of the bond is generally fixed sufficient to cover the debt, and where this is the case the measure of damages on breach of the bond is the amount of the bond. But if the amount of the bond is greater than the debt, the measure of damages will be the indebtedness.' 664. Injunction Bond. In most, if not all of the States, the granting of restraining orders and injunctions is regulated by municipal lawor statute. It is generally provided by these statutes that the party praying for the injunction shall enter into bond, with security that he will pay the opposite party or the defendant all damages and costs which may accrue by reason of the injunction. Asa general rule the plaintiff, in case of a suit on the bond, may recover his ordinary and actual damages resulting from the injunction, and reasonable attor- ney’s fees, paid or incurred, in procuring a dissolution of the injunction.’ 12 Kent’s Com. 32; 1 Clark 551; Beams ne exat 13; Harris v. Hardy, 393. : * Field on damages, 442; Andrews v. Glenville Woolen Co.,50 N. Y. 282; Corcoran v. Judson, 24 N. Y. 106; Winship v. Clendenning, 24 Ind. 439; Brehens v. McKenzie, 23 Ia. 333, Edwards v. Bodine, 11 Paige 224; Coots v. Coots, 1 Duer 664; Aldrich v. Reynolds, 1 Barb. Ch. 613; Thaire BONDS. 573 665. The right to recover attorney’s fees where the prayer ‘for an injunction is only auxiliary to another suit, is limited to the defense in procuring the dissolution of the injunction, and cannot be recovered for service in the entire action* An _action will not lie on an injunction bond until the dissolution of the restraining order.’ Where the plaintiff had the right to possession of some real property under a coptract of pur- chase, was enjoined at the suit of the defendant from en- tering upon the land in a suit on the bond for the breach, the court held that the plaintiff might recover for any injury to the possession, or to the land, caused by the injunction.® Where the plaintiff is enjoined from issuing an execution and is prevented from collectiing his judgment in case of a dis- solution of the injunction, the usual rule is to allow as damages the amount due thereon including interest and costs’ The plaintiff can only recover such damages as are the direct, na- t v. Quan Wan, 3 Cal. 216; Prader v. Grimes, 28 Cal. 511; Garrett v. Lo- gan, 19 Ala. 344; Derry Bank v. Heath, 45 N. H. 524; Ryan v. Anderson, 25 Ill. 872; Collins v. Sinclair, 51 Ill. 328; McCrea v. Brown, 12 La, An. 181; Brown v. Jones, 5 Nev. 374; Mesner v. Bullard, 43 Ill. 474; Fox Vv. Mountjoy, 6 Muf. (Va ) 36. * Langworthy v. McKelney, 25 Ia. 470. 5 Thompson v. McNair, 64 N. C. 448: Leavitt v. Dobsey, 9 Abb. P. (N. S.) 373; Sturgis v. Knapp, 33 Vt. 486; Comdore y. Martin, 17 Mo 41; High on inj. 557. 8. Winship v. Cledenning, 24 Ind. 439. In an action on a bond where the plaintiff had been wrongfully restrained in the spring of the year from taking possession of a farm, and was prevented by reason thereof from cultivating a crop, the court held that he was entitled to recover for the whole loss sustained by being kept out of possession, including the subsequent crop. Edwards v. Edwards, 31 Ill. 474 7 Southlan v. Crawford, 2 J. J. Mar. 370; Washington v. Parkes, 6 Ligh. 581; Gist v. McGuire, 4 Har. & J. 9; Wallis v. Dilley, 7,Md. 237, * 574 LAW OF DAMAGES. \ tural and proximate consequence and result of the injunction, and remote and speculative damages are never allowed.’ 666. Consequential Damages. It may be laid down as a gen- eral rule in the absence of statutes limiting the liabilities, and where there is no malice shown, that the plaintiff is entitled to recover full compensation for all loss sustained. The court or jury in estimating his losses should take into consideration loss or depreciation in the value of the goods restrained from sale; damages by delay in collection of money, counsel fees, expense incurred in injunction suit, rent of farm, the loss of crop, destruction of timber, coal, etc. In general, every injury resulting directly from the injunction, should be considered in assessing the plaintiff’s damages.” 667. Delivery Bond. In many of the States it is provided by law that where a sheriff or constable levies an execution upon personal property the judgment defendant may have a return of the property, provided he will enter into a bond, with security, to be approved by the officer, to the effect that he will safely keep the property and deliver it to the officer at the time and place named in the bond, to be sold according to law, ’ Brown v. Jones, 5 Nev. 374; Collins v. Sinclair, 51 Ill. 328; Stewart v. State, 20 Md. 97; Morgan v. Negley, 53 Pa. st. 158; Burgen v. Share 14 B. Mon. 497; Kennedy v. Hammond, 16 Mo. 341. * Brown v. Tyler, 34 Tex. 168; Wintzly v. Robinson, 23 La. An. 451; Moulton y. Richardson, 49 N H 75; Allen v. Brown, 5 Lansing (N. Y.) 511; Trustees Tamaroa v. Southern Ill. ete. reviews, 54 Ill. 334; Pierce v: Atly, 4 W. Va. 22; Collins v. Sinclair, 51 Ill. 328; Silsbe v. Lucas, 53 Ill. 453; Hamilton v. Steel, 32 Md. 348. Where a mortgagor obtained an injunction to prevent the mortgagee from selling a tract of land on foreclosure, in a suit on the bond, the court held that the plaintiff could recover damages caused by the de- fendant cutting timber on the land during the time the injunction was in force, if the security had been thereby impaired. 1 Barb. ch. 613. . BONDS. 575 or that the sheriff shall receive its appraised value, or in case the property has not been appraised, then ifs real value. Ona breach and failure to deliver or pay the value of the property, the measure of damages is the amount of damages sustained, not exceeding the penalty... Where the value of the property levied on exceeds the amount of the judgment and costs, or the amount of the execution in the hands of the officer, the measure of damages should be the amount of the execution at the time of the commencement of the suit on the bond, or the amount of the judgment, with legal interests and costs." 668. Appeal Bond. In all of the States appeals are au- thorized from the inferior to the superior courts. And as a general rule the appellant, in order to get his cause into the higher court and have a stay of further proceedings below, is required to give bond, with security, that he will prosecute his appeal without delay, and pay the judgment that may be rendered in the court above. The law generally makes it the duty of the Judge or some officer of the court to fix the pen- alty and approve the bonds. But as the bond is for the sole benefit of the appellee, and the law requiring the Judge or some officer of the court to approve the bond, makes him an arbiter to'decide between the contending parties where they might not be able to agree as to what would be a good bond. But this does not deprive the litigant parties of the right to mutually agree upon the sufficiency of the bond.’ 669. Conditions of the Bond. There are two stipulations in almost every appeal bond: 1. To prosecute with effect and 1 Field on the law of damages, 445-6; McCoy v. Elder, 2 Black (Ind.) 188; Mitchell v. Cenbro, 3 Black 259. No more can be recovered in suit on bond with a penalty than the penalty. 5 Black 392; Paine 662; 2 McLane 581; 4 Day (Conn.) 30. 2 Jones v. Doneberger, 23 Ind. 74; Ham v. Greves, 41 Ind. 531. 576 LAW OF DAMAGES. without delay. 2. That the appellant will pay the judgment and costs that may be rendered against him in the appellate court. By the failure to perform either stipulation the condi- tion is broken and the bond forfeited? The measure of dam- ages in case of a breach will be the amount of actual loss sustained, not exceeding the penalty.’ But if, after an appeal has been taken and bond filed, the appellant dismisses his appeal, though the dismissal of the appeal has the effect to affirm the judgment below, yet it does not make it a part of the judgmeut of the appellate court. Unless the plaintiff can show in such cases that he has been damaged by the delay of the defendant in the prosecution of his appeal, he can only recover the judgment for costs in the appellative court.° 670. Indemnifying Bonds Defined. An indemnifying bond is a bond given by one person for the purpose of securing an- other against loss or injury, or to save him harmless from cer- tain contemplative acts. These bonds are frequently taken by sheriffs and constables when they are requested by interested parties to bring an execution upon property, the title of which is in dispute. If the bond is one of indemnity merely, the obligee can not maintain an action thereon until he has sus- tained absolute damage.’ But if it be a guaranty, he can maintain an action where the thing guaranteed against is done, whether he has suffered actual damage or not. ? Reeves v. Andrews, 7 Ind. 208. * Field on the law of damages, 445-6; Railesbeck v. Greve, 57 Ind. 72. 5 Railesbeck v. Greves, 57 Ind. 72. To prosecute a suit with effect means that it shall be prosecuted successfully to final judgment. 5 Black 533; Watson v. Husson, 1 Duer 242; Abb. Pl. (N. Y.) 219; Kutz enger v. Reynolds, 11 Ind. 545. Failure to prosecute the appeal on account of appellant’s death, is a breach of the bond. 8 Black 404. * Redfield v. Height, 27 Conn. 31; Ham v. Hill, 29 Mo. 275; Sedgwick BONDS. 577 671. The Measure of Damages. ‘The measure of damages where the instrument deviates in the least from a simple con- tract to indemnify against damages, “even where the indemn- ity is the sole object of the contract, and when in consequence of the primary liability of the other person actual loss may be sustained, the decisions of our courts, although by no means uniform, have gradually inclined towards fixing the rule of damages at actual compensation, and’it may now be considered as a general rule both in this country and in England.’ 672. The Supreme Court of New Hampshire in the case of Holt v. Holcombe, held, in a case where a sheriff had ap- pointed a deputy and taken a bond indemnifying himself from all loss, damages and costs on account of the acts and neglects of the deputy, that in case of a breach the sheriff could recov- er as damages in addition to the sum paid by him or his sureties on his official bond, and interest thereon, and all other reasonable expenses incurred by him in and about the defense of the suit in which the full judgments were rendered, includ- ing counsel fees and a reasonable compensation for his personal service; and in the suit on the bond the same expenses and compensation for services beyond the taxable costs, but not the cost or expense incurred in 4 suit upon his official bond brought to enforce payment of such judgment.’ 673. So in New York, in an action by the sheriff against the sureties of his deputy, to recover damages for the neglect _of the deputy to levy an execution in consequence of which q on meas. of dam., 368; Haydon v. Cabot, 17 Mass. 169; 2 Kem. 296; Powell v. Smith, 8 Johns 249; Weller v. Farner, 15 Minn. 461. 2 Gilbert v. Wiman, 1 Comst. 550; Deval v. McIntosh, 23 Ind. 529; Wilson v. Stilwell, 9 Ohio st. 467; Loosemore v. Radford, 9 Meeson & Wilsby 657; Weddle v. Stone, 12 Ind. 625. 3 32 N. H. 185; 3 Westesvelt v. Smith, 2 Duer 449. 578 LAW OF DAMAGES. the execution creditor had recovered a judgment against the sheriff; the court held that the sheriff could recover the amount of the judgment and the reasonable expense in de- fending the suit against himself. The Supreme Court of the United States held, in the case of Wicker v. Happock, where the defendant agreed that if the plaintiff would prosecute a claim against a third party, and obtain a judgment and levy on property, he, the obligee, would bid it off for whatever the judgment and costs might be. This he did not do and the property was knocked down to the plaintiff for a nominal sum. Suit was brought for a breach of the agreement; that the defendant was liable for the full amount of the judgment, with interest and costs.* 674. Replevin Bonds. As has already been said, in most of the States the old action of replevin as it existed at com- mon law has been abolished, and in lieu of it there has been substituted what has generally been called an action to recover personal property. Under these statutory provisions the plain- tiff must, when the property is returned to him, enter into bond to indemnify the defendant against all losses if he fails to prosecute his action without delay, and to return the prop- erty, if return be demanded, to the defendant. In case the plaintiff fails to return the property, if a return be awarded in the replevin suit, there is at once a breach of the condition of the bond and the obligee may forthwith bring suit on the bond. The judgment establishes te liability of the obligor.' 46 Wall 94; see 9 Ohio st. 467; 12 Ind. 625; 23 Ind. 529. In an action ‘on an indemnity bond. if the plaintiff states no special damages in his complaint, he is confined in his recovery to such only as arise from the breach, and then such only as are proximate and the fair, legal and natural result of the act complained of. Hallock v. Belcher, 42 Barb. 199. 1 Levering v. Lomme, 22 Wall 208. BONDS. 579 ‘ 675. The Measure of Damages. The measure of damages in cases of this character will depend toa very great extent on the circumstances surrounding each case, the value of the property and the interest of the party. If there as been a final trial and the rights of the defendant to the possession and right of property settled and fixed in the replevin suit, then ina suit on the bond he may recover the value of the property at the trial.?- But suppose the property has risen in value, from a natural cause, since the commencement of the suit or action, shall the plaintiff have judgment for the in- crease? Reason, as well as the law would say that he should.’ But where the enhanced value has been brought about by the labor and expense of the obligor on the bond, while the prop- erty was in his possession, the plaintiff can only recover the value of the ‘property at the time of the service of the writ and the taking of the property by the officer." The determina- tion of the replevin may or may not be conclusive of the right of property according to the circumstances of the case. But where the right of property is put in issue and decided on, it is then res adjudicata, and cannot on general principles be in- quired into in a suit between the same parties. If, however, the right has not been tried, it remains an open question for the determination of the court in a suit on the bond for dam- ages.° And in an action by the obligee against the obligor on the bond, if it appears that the title of the property has not been determined in the replevin suit, and that the title of the property and right of possession is in a person other than the obligee, he can only recover nominal damages. And this rule 2 Schrader v. Wolfland, 21 Ind. 238; Walls v. Johnson, 16 Ind. 374; 30 Wis. 570; 24 Wis. 299. * Frazer v. Fredrick, 4 Zab. (NV. J.) 162. 4 Single v. Schrader, 30 Wis. 570; Hugerford vy. Redford, 29 Wis. 345; Hedrick v. Young, 54 Pa 176. 580 LAW OF DAMAGES. holds good even if the court orders a return of the property to the plaintiff’ There has been some controversy over the question of the responsibility of the obligor who has given bond for the deliv- ery of live animals, and fails to do so on account of the death of the property while it was in his hands. But it is an old, well settled principle of the common law that if a bond or obligation, possible of performance at the time of execution, becomes impossible by the act of God, or of law, or of the obligee himself, the obligor will be saved. If then, during the possession, and before trial, by the act of God or without fault of the plaintiff, the property is lost or destroyed, the obligor is not to be held responsible for the value of its peEiices up to the time of its death or destruction, or during its detention, or to the time it ceased to be serviceable.’ The plaintiff in such a case would, if no eyidence wus given as to the value of the services, recov- er nominal damages. Where there has been a long delay in bringing the suit on the bond, or after suit brought it has been continued for a number of years, the jury is sometimes author- ized to allow interest on the value from the time of the breach.’ 676. General Rule of Damages. We think it may be laid down as a general rule in an action on a replevin bond, that the obligee may recover the value of the property at the time 5 Wallace v. Clark, 7 Black 298. ® Stockwell v Byrne, 22 Ind. 6. ® Com. Dig. Condition D. 1 Co Title; Moore v. Crochet, 10 Hum. (Tenn.) 365; Mosely v. Baker, 2 Sneed 367; Green v. Smith, 4 Col. 440; Boles v. Patton, 6 Heirk 172. 7 See authorities above; Story v. O’Deal, 23 Ind. 326. 1 Story v. O’Deal, 23 Ind. 326. ? Allen v. Fox, 51 N. Y. 562; Brewster \. Selliman, 38 N. Y. 429 Bomby v. Gibbs, 14 J. R. 385; Young v. Willet, 8 Bosm, 486; Suydam v. Jenks, 3 Sand. S. C. 614, 620, 621; Adams vy. Adams, 15 Pick. 178; Fitch BONDS, 581 of the service of the writ and the taking of the property by the officer, or the value of the property at the time of the trial and if the property has a usable value it should be allowed in addition to the value of the property. And as the statutes of most of the States require the jury to assess the value of the property and the damages for its detention. It would seem that the value of the property at the time of the trial is in- tended. This being true, we think that the measure of dam- ages might, in case where the right of possession and the right of property are both found by the jury to be in the obligee, be easily ascertained by taking the amount of the value as assessed by the jury, including damages and costs, and com- pute the interest from the rendition of the judgment up to the time of the trial. And in those States where the law re- quires that the judgment shall be rendered in the alternative, this method is perhaps the only one that should be adopted.’ 677. Receiver Defined, and Responsibility and Measure of Dam- ages on His Bond. A receiver may be defined to be an indiffer- ent person appointed by the court to receive and preserve the property or fund in litigation pendentelite, where the court v. Dakin, 20 Wend. 172; Dorsey v. Gasaway, 2 H. & J. 413; Chapp v. Walters, 2 Texas 130; Butler v. Mechring, 15 Ill. 488; Banks v. Hallon, 1N. & McC. 221; Ferhenck v. Sewall, 4 H. & J. 398; 2 Dixon 130; Mc- Ganock v. Chamberlain, 20 Ill. 219; Griffin v. Culver, 16 N. Y. 489; Blanchard v. Eling, 21 Wend. 342. 3 See authorities above. Upon the condition in a replevin bond to return the property replevined if return thereof shall be awarded in the absence of evidence showing the value of such property, and the value of its use since judgment was given in the replevin suit, only nominal damages can be allowed. Where the bond recites the gross value of the property replevined, such recital may be evidence of the value of the articles mentioned collectively. But if a portion of the property has been returned to the sheriff according to the condition of the bond, such recital affords no evidence of the value of the remainder which has not been returned. Sapris v. Little, 2 Col. T. 496. 582 LAW OF DAMAGES. has good reason to believe that the interest of the parties liti- gant will be better protected and preserved in the hands of the stranger. He is generally regarded as an officer of the court, exercising the functions of his office independent of the interests of either the plaintiff or defendant, but for the com- mon good of all parties in interest. His possession is the possession of the court; he is sometimes called the hand of the court. Property in his hands is in the custody and under the control of the court, and any interference with the property in the hands of the receiver, by any one, will be punished as a contempt of the court. The court appointing a receiver generally requires him to enter into bond, with surety, to faithfully discharge his duty as such receiver, and account to the court for all property that may come into his hands as such receiver. If he fails to discharge his duty according to the orders of the court, and parties interested in the property are damaged thereby, they may bring suit on his bond and recover the actual loss sustained. But it should be remem- bered that he is not responsible on his bond until he has failed to obey some order of the court touching the effects placed in his hands. And if the party who has been damaged by the misconduct of the receiver wishes to sue him on his bond, if the receiver has not already violated the order of the court in reference to the property in his hands, he should make appli- cation to the court for a rule upon the receiver to render his account. After the settlement with the court is made, and the receiver is ordered to deliver the property to the persons entitled thereto, or surrender them to the court, and refuses to do so, renders himself and his sureties responsible on his bond for damages. And in case of the death of a receiver there is a balance due from him to the estate, the amount of which is r ? Booth v. Clark, 17 How. 322; Waters v. Carol, 9 Yerg. 102; Baker v. Adm’r of Bocus, 32 Ill. 79; Devendorf v. Dickenson, 21 Home Pr. 475. : BONDS. 583 not definitely ascertained, the court on the petition of the par- _ ties interest will grant leave to bring suit on the bond. 678. Damages that may be Recovered Against the Surety. Asa general rule the sureties of a receiver will be held responsible, not only for all sums of principal for which the receiver is in default, but also for interest due thereon and for which the receiver is responsible. But the liability for interest is thought to rest inthe discretionary power of the court. A surety on .the bond of a receiver is considered in a certain sense as an officer of the court, and where he has been compelled to pay out money for the receiver, the court will reimburse him out of any balance remaining in the receiver’s hands.’ 679. Ministerial Officers Suits are frequently brought on the bonds of constables, sheriffs, marshals and other minis- =terial officers, for neglect to perform their duties in the service and execution of legal process. The most frequent suits of this character are those brought by judgment creditors against such officers for a failure to levy executions and writs of attach- ment on property and to sell the same according to law, or a failure to make returns as the law requires. In an action for * a breach of official duties, the plaintiff may recover on the bond full compensation for all loss sustained. For the measure of damagessee Sections ——, —-,—, ——, under Chapter XIX, entitled “Public Officers.” The rule is that whatever damages can be recovered off of the officer for a failure to discharge his duty, can be recovered in an action on his bond, against him and his sureties. 2 High on Receivers, pp. 84-87; Griffith v. Griffith, 2 Vt. 400; Hamilton v. Brewster, 2 Md. 407; Callaghan v. Callaghan, 8 In. eq. 572; O’Keeffe y. Armstrong, Ir. Ch. N 8.115; Anon, 2 Ir. eq. 416; Averall v. Wade, Flan. & BR. 341; Maxrell v. Egan, 3 Jr. & Lot. 251; State v. Gibson, 21 Ark. 140; Ledgoter v. Charmel, 3 Mal. & G. 175. 584 LAW OF DAMAGES. 680. General Damages. As a general rule the damages that may be recovered in an action on the bonds of exec- , utors, administrators, guardians and all other officers appointed by the courts, is regulated by statute, but in the absence of any statutory provision bearing on the subject, the plaintiff can recover full compensation for all loss sustained, provided that it does not exceed the penalty. 681. Consequential and Remote Damages. The rule in an ac- tion on an official or common law bond is, that the party suffering from the breach can recover for all the proximate consequences arising from such breach, but remote or specula- tive damages cannot be recovered? 682. Bonds on Sale of Liquor. The act. of the Legislature of the State of Indiana, approved February 27, 1873, required an applicant who had procured a permit from the Board of Commissioners of the county where he intended to ‘sell, to enter into bond, with approved security, for a stipulated amount. The bond provided that the holder of the license should pay any and all fines, penalties and forfeitures incurred by reason of the violations of any of the provisions of the temperance act, entitled, “An act to regulate the sale of intox- icating liquors; to provide against the evil resulting from any sale thereof; to furnish remedies for damages suffered by any person in consequence of such sale; prescribing penalties; to repeal all laws contrary to the provisions of this act, and de- 1 Foly v. McKeegan, 4 Ia. 1; Swan v. Steele, 5 Ia. 352; Harrison v. Wright, 13 East 343; Swan v. Steele, 20 Ia. 374. In an action on an in- demnifying bond, in which one party obligated himself to save another harmless from a suit brought for the infringement of a patent, the court held that the plaintiff was entitled to counsel fees, expense incurred by himself in making defense for depreciation of his stock, ete. Ripley v. Moseby, 57 Me. 76; see Carpenter v. Stevenson, 6 Burt Ky. 259; see also Anti, Chap, XIX, entitled Public Officers. BONDS. 585 claring an emergency ;” approved February 27, 1873, and con- ditioned further that “the principal and sureties herein named shall be jointly and severally liable, and shall pay to the per- son or persons any and all damages which‘shall in any manner be suffered by or upon any such person or property, or means of support, by reasons of any sale or sales of intoxicating liquors to any person, by the licensee.” The party suing on these bonds must establish the facts of the injury, and that, it was the natural and proximate consequence of the act of sell- ing, or bartering, or giving away intoxicating liquor, to the one effect by its use. The plaintiffcan recover damages to the full extent of the injury.‘ . + Fountain v. Draper, 49 Ind. 441; Shaffer et al v. The State ex rel Cox. 49 Ind. 460; English v. Beard, 51 Ind. 489. The saloon keeper can only be held for the natural damages caused by his act. Colly v. Early, 54 Ind. 559; Kelly v. The State, 53 Ind. 311; Kroch v. Heilman, 53 Ind. 417, Fairbanks v. Kerr; 70 Pa st. 80. Where the damages resulting arise from incapacity for business, and loss of estate caused by such habitual intoxication ; he who contributes to cause the condition, and it becomes impossible to separate the damages caused by others from those caused by the defendant, he is liable for all the damages, if the natural and probable consequence of his illegal act. Boyd v Watt, 27 Ohio st. 259;, Ruggles v Tilly, 26 Ohio st. 48. CHAPTER XXXVIIL. INSURANCE. Marine InsurANCE DEFINED. SEVERAL RULES oF Con- STRUCTION. DaMaGEs. GENERAL AVERAGE. ABANDONED VESSEL. PROPERTY INSURED IN A FOREIGN COUNTRY. F irre INSURANCE. MortTGaGEr’s RIGHT. NEGLIGENCE IN THE ASSURED. Damaces. Lire Insurance. Damacess. AccrI- DENTS. 683. Marine Insurance. Marine insurance has been defined to be “A contract whereby one party, fora stipulated premium, undertakes to indemnify the other against certain perils of the sea.”? In order for the reader to get a clear comprehension of the subject, we will lay down in as brief and concise manner as possible, a few well established rules : 1. The commencement and termination of the risk will depend upon the contract between the parties. If it is stipu- lated in the policy that the risk is at and from, it includes all 13 Kent’s Com., 251. 1 Field on law of dam., 448, INSURANCE. 587 the time the ship is in port after the policy is subscribed and delivered. It may be for the whole voyage, or a part, or for a specified time. If the insurance is from a designated place, the risk does not commence until the vessel breaks ground.’ 2. 17 L. T. (N. 8.) 289; Terre Haute Co. v. Vanatta, 21 Ill. 188; C. & H. R- Co. v. Pondrom, 51 Ill. 333; Treaner v- Donhue. 9 Cush. 228; Marshall v. Gunter, 6 Rich. 6; (S.C.) L. 419; Schul v. Pac. Ins. Co., 14 Fla. 73. 21 Sherman & Wat. New Trials, 409. NEW TRIALS. 609 new trial in cases of manifested abuse of authority. The law allows juries great latitude in assessing damages in cases of torts, and courts seldom disturb their verdicts in such cases for any reason. And the court should only exercise the power vested in him by law to grant a new trial in cases where it is apparent from the amount of ‘the verdict or otherwise that the’ " jury were influenced by passion, prejudice, corruption or evi- dent mistake of law or facts or that there was a palpable error in computation. But where the verdict of the jury is clearly agd unmistakaply excessive, so that it can be readily perceived that it is wrong and unjust, it should be set aside and a new trial granted.‘ 713. Instances where New Trial was Refused. Welford v. Berkly. In this case which was an action for criminal conversation and seduction of the plaintiff’s wife, the jury gave £500 damages. The defendant moved for a new trial on account that the dam- ages were excessive. The court was unanimous in the opin- ion that a new trial should not be granted for that reason. They held that there was no doubt of the power of the courts to exercise a proper discretion in setting aside verdicts for ex- cessive damages, but that such power should only be exercised where it was apparent that the jury was greatly outrageous in giving such damages as greatly exceeded the injury’ 714 Clouser v. Clapper. In this case, which was an action _ brought by the plaintiff against the defendant for criminal conversation and seduction of his wife, the evidence showed that the defendant was guilty, and that he had been the plain- + Walker v. Erie R. R. Co., 63 Barb. 260; Clerk v. Udall, 2 Salk 649; Macon v. Winn, 26 Ga. 250; Russ v. steamboat War Eagle, 14 Ia 365; Pleasant-v. Heard, 15 Ark. 403; Green v. Southern Exp. Co., 41 Ga. 515- 5 1 Burr 609; see also Dubby v. Gunning, 4 Term 651; Chambers v. Caulfield, 6 East 244. 610 LAW OF DAMAGES. tiff’s family physician. The jury found for the plaintiff, and assessed his damages at twenty-five hundred dollars. The de- fendant moved for a new trial on account of excessive dam- ages. ‘The motion was overruled, and judgment rendered on the verdict. Appeal to the Supreme Court, where, on hearing, the judgment of the court below was affirmed.® 715. The Dainages in Cases of Criminal Conversation is seldom Disturbed. Courts are very reluctant to set aside verdicts and grant a new trial in cases of criminal conversation. And, up toa very recent period, it is said that the power of the court has never been exercised to set aside a verdict in such cases.’ The reason for this reluctance is owing perhaps to the fact that the injury done the plaintiff in such cases is many times be- yond an accurate comprehension. But there seems to be no good reason for the establishing of this exception to the gen- eral rule. The courts are not authorized to presume that it would be impossible to assess the plaintiff’s damages too high. In a recent case in New York, a verdict was obtained against the defendant for enticing away the plaintiff’s wife. The Court refused to set asidethe verdict of ten thousand dollars as excessive, and held that the verdict in such cases should not be set aside without some other facts than the amount of dam- ages to show that the jury were actuated by improper mo- tives.” 659 Ind. 548. In a suit for seduction verdicts are seldom disturbed on account of excessive damages. Harris v. Rupel, 14 Ind. 209. ‘Smith v. Masten, 15 Wend. 270. In such cases the courts do not in- terfere without proof of the most flagrant abuse. Grat. & Won. N. Y- 412; Traives v. Bayer, 24 Barb. 614; Tore v. Summers, 2 Nott & McCord 267. ' Scherpf v. Szadeczky, 1 Abb. N. Y. Pr. R., 366. And in another case the court refused to set aside a verdict of $3,000, although there was some proof of negligence on the part of the husband. Smith v. Mas- ten, 15 Wend. 270; see Tullidge v. Walle, 3 Webs. 18; Bennett v. Acock? NEW TRIALS. 611 716. Personal Injury. Shaw vs. Boston, etc., R. R. Co. In this case, which was an action brought by the plaintiff against the defendant for an injury received from a locomotive through the carelessness and negligence of the defendant’s agent. There were three different trials, and the plaintiff re- covered in the first, fifteen thousand dollars, in the second eigteen thousand dollars, and in the third twenty-two thousand two hundred and fifty dollars. The defendant had applied for and obtained two new trials on account of erroneous instruc- tion. An application to set aside the last verdict on account of excessive damages was over-ruled, and the finding of the jury affirmed. , 717. Walker vs. Erie R. R. Co. This was an action brought by the plaintiff to recover damages for an injury sustained by him caused by the defendant, a carrier of passengers. The wound was one of a very painful character, and of a perma- nent nature. It appeared in evidence that the plaintiff, when he received the injury was engaged in an extensive and lucra- tive business as a lawyer, which business was impaired by his incapacity to give it the requisite attention. The jury found for the plaintiff and assessed his damages at twenty thousand dollars. A motion was made for a new trial on account of ex- cessive damages. The motion was denied and judgment on the finding. The court said that under the circumstances it had no data from which it could say that the verdict of twenty thousand dollars was excessive.’ 2 Term Rep. 166; Sargent v. Dunston, 5 Cowen 106; Clouse v. Clapper, 59 Ind. 548; Tullidge v. Wade, 3 Wilson 18; Brown v. Tanner, 1 Car & P, 651; Billingsby v. Grover, 5 Ind. 553. ? 8 Gray (Mass.) 288. The Supreme court of Wisconsin refused to set a verdict of $5,500 for personal injury aside and “grant a new trial, for the reason that the damages were excessive. Karasich v. Hasbrook, 28 Wis. 569. : 5 6 Barb. 260; see also Clerk v. Udall, 2 Salk. 649; Macon v. Winn, 26 Ga. 250; Russ v. steamb. War Eagle, 14 Ia. 365. 612 LAW OF DAMAGES. 718. So where in an action against a railway company to recover damages for an injury caused by the defendant’s negli- gence, it was established on the trial that the plaintiff had been confined to his bed for a month or six weeks by reason of the injury received, and further that it had so impaired his eye sight that in the opinion of physicians who had examined him he would never recover. After hearing the evidence the jury gave a verdict for three thousand dollars. On motion for a new trial for the reason that the damages were excessive, the court held they were not excessive.* 719. And in an action against a railroad company for in- jury resulting from its negligence, by which the plaintiff was . confined to his bed for six weeks, suffered intense pain, and was unable to attend to business for several months, paid twelve hundred dollars’ doctor’s bill, and other injuries, and was left permanently lame, the jury assessed his damages at’ twelve thousand dollars. Motion was made for a new trial on account of excessive damages. Motion overruled. Appeal to the Supreme Court. Held that damages were not excessive.° 720. Ryckman vs. Parkins. In this case the plaintiff sued the defendant for slander and obtained a judgment for seven thousand dollars. The defendant moved fora new trial on ac- count of excessiveness of the damages. The court said in the discussion of the case: “The slander in this case was ofa wan- * New Jersey R. R. Co. v. West, 32 N. J. L. 91. The Supreme Court will not interfere with a verdict on the ground of excessive damages un- less the damages are outragous at first blush. Yates v. Muller, 23 Ind. 562 5 Rockwell v. Third Avenue R. Co., 64 Barb. 438. I wish to know in a case where a man disregards every principle which actuates a gentle- man, what is to restrain him but large damages? Merest v. Harny, 5 Taunt. 442; Tullidge v. Wade, 3 Wilson 18; Caldwell v. New Steam- boat Co., 47 N. Y. 282; Chi. & Alton R. R. Co. v. Wilson, 63 TI. 167. Chicago R. R. Co. v. Garra. ‘ NEW’ TRIALS. 613 . ton and wicked character, imputing to the plaintiff a crime of the most atrocious nature, and when the great wealth of the defendant is taken into consideration there is nothing in the case to induce suspicion of prejudice, partiality or corruption in finding a verdict against the defendant to the amount of seven thousand dollars. A new trial was denied.® 721. In an action for slander the court will not disturb the verdict of the jury unless it appears that they, in.estima- ting the damages, were actuated by prejudice, passion, partial- ity or corruption and for that reason laid the damages in ex- cess of the real injury or loss sustained.’ 722. Exception to the General Rule in Cases of Tort. But it may be laid down as general rule that in all actions of tort where the jury finds outrageous damages clearly evincing par- tiality, prejudice and passion, the court will interpose for the relief of the defendant andorder a new trial.’ 69 Wend. 470; see Clark v. Binny, 2 Pick. 113; Rundle v. Butler, 10 Wend. 119; Bodwell v. Osgood, 3 Pick. 379; 7 Pick. 82; Shute v. Barrett, 7 Pick. 82; Coffin v. Coffin, 4 Mass. Rep. 1; Davis v. Davis, 2 Nott & Me- Cord 81; Neal v. Lewis, 2 Bag. 204; Redshaw v. Brooks, 2 Wils. 405. 8 Guard v. Risk, 11 Ind. 156; Clark v. McCarty, 5 Black 574; Hogland v. Moore, 2 Blackford 167, 465. New trial should not be granted in an action in tort on the ground-that the damages are excessive. unless they appear at first blush to be outragous.and excessive. Picquet v. McKay, 2 Black 465, 1 Chambers v. Clanfield, 6 East 244; Goldsmith v. Lord Sefton, 3 Anst. 808; Jones v. Sparrow, 5 Term Rep. 257; Chambers v. Robinson, 1-Str. 691; Harry vy. Watson, 4 Term Rep. 659; McConnal v. Humpton, 12 Johns’ Rep. 234; see Graham & Waterman on New Trials, Vol. 1, pp, 442 to 447; Collins y. Albany & Sch. R. Co., 12 Barb. 492; Ill. Cent. R. Co. v. Welch, 52 Ill. 188; Moor v. Martin, 1 B. Mon. 97; Carning v. Del- amy, 38 N. Y. 178; Belnapp v R. R. Co., 49 N. H. 374; Doyle v. Dixon, 97 Mass. 208; Mortimer v. Thomas, 25 La. Ann. 165; Peoria Bridge Ass v. Looms, 20 Ill. 2835; Goodno v. Oshkosh, 38 Wis. 300; Union R. R. Co v. Hand, 7 Kans. 380; Ill. Cent. R. R. Co. v. Weldon, 52 Ill. 290; Franz v. Hilderbrand, 45 Mo. 121. 614 LAW OF DAMAGES. 723. Instances where New Trials have been Granted in Cases of Torts. In one case where the plaintiff brought an action to re- cover damages for an injury received by the negligence of the defendant’s servants, though without gross fault. The injury was on the head, but the most serious injury was on the foot, so that it became necessary to remove the outside of it, and one toe. The jury found a verdict for the plaintiff, and as- sessed his damages at eleven thousand dollars. The court or- dered a new trial unless the plaintiff would consent to have the verdict reduced to five thousand dollars.’ 724. Inan action brought against a railroad company for personal injuries, the chief of which was deformity and loss of power of the right hand, the Supreme Court of the State of Kansas held that a verdict of five thousand dollars was excess- ive damages, and reversed the judgment and ordered a new trial.’ . 725. McConnell v. Hampton. In this case, which was an action for false imprisonment, the defendant was commander of the United States army at Burlington, when the plaintiff, a private citizen was arrested and tried by a court martial. The plaintiff came to the defendant to make some communi- cation relative to the enemy, and the defendant said the com- munication was false, and ordered the plaintiff to be taken to the guard house. The plaintiff was confined from Tuesday 1 Collins v. Albany & Sch. R. Co.. 12 Barb. 492; Murry v. Hudson R. R. Co., 47 Barb. 196. In case where a brakeman was employed at $40 per month, and lost an arm through the negligence of the railroad com- pany, and recovered against it $10,000, the Supreme Court of Illinois held that the damages were excessive, and granted a new trial. III. Cent. R. R. Co. v. Welch, 52 Ill. 183; Moore v. Masten, 1 B. Mon. 97. ’ Union Cent. R. Co. v. Hand, 7 Kans. 380. It is the province of the court to see that justice is done, and when the assessment is manifestly unjust, whether too small or excessive, a new trial should be granted. Mobile & Mont. R. Co. v. Ascheraft, 48 Ala. 15. NEW TRIALS. 615 until Sunday, and lay on the floor of the guard house without any bed, but was allowed to procure his own provisions and ratioris of a soldier, and was permitted to speak to others in the presence of the officer. The jury found a verdict for nine thousand dollars damages. A motion was made to set aside the verdict, and for a new trial. The court held that the dam- ages were such as to strike every one at first blush that the verdict was unreasonable and indeed outrageous, and awarded \ a new trial.* 726. Reduction of the Verdict. It is a common practice among courts when they consider the damages excessive to order a new trial, provided the plaintiff does not re- duce the judgment to what the court considers a reason- able sum under all circumstances. If the reduction is made the motion will be over-ruled; or if the reduction is not made, then the verdict will be set aside and a new trial granted. Thus in Ohio, where a judgment on a bill was entered for too large a sum of damages on error, the plaintiff was allowcd to remit the excess, and keep his judgment, on payment of costs.* 727. The General Rule. It may be laid down as u general rule that the plaintiff may, by permission of the court, when ® 3 Monroe 145; 2 Southard 847; Chicago & C. R. Co. v. Fellmore, 57 Ill. 265; Chicago & N. W. R. Co. v. Jackson, 55 Ill. 492. This was an action brought by a brakeman for an injury sustained by him by reason of negligence of the railroad company, and it appeared that the plaintiff in attempting to descend a ladder while the train was in motion, in obedience to a signal from an engineer, lost his hold by reason of a de- fect in the ladder, and fell to the ground and the wheels of the cars passed over his legs, injuring them so that amputation became neces- sary, and he recovered judgment for $18,000. The Supreme court of Illinois set the verdict aside for the reason that the damages were ex- cessive. 55 Ill. 492; see Murry v. Hud. R. R. Co,, 47 Barb. 196. * Doty v. Rigour, 9 Ohio st, 519. 616 LAW OF DAMAGES. the damages assessed are excessive, remit the excess of the amount claimed, and take judgment for the balance, and in this way defeat the defendant’s motion for a new trial? 728. Where a jury by mistake, or otherwise, finds more than the plaintiff claims, that is no reason for setting aside a verdict and granting a new trial if the plaintiff will remit the excess and let judgment be rendered for the sum to which he is entitled. It is sometimes quite difficult to tell exactly what amount ought to be remitted in order to reduce the dam- ages to the actual loss sustained. But thisis necessarily left to a great extent to the judgment of the court.® 729. Wherethe Motion is based on Inadequacy of Damages. Be- fore a court-will set aside a verdict and grant a new trial, it must appear clear that the jury have abused their power. Thus when the plaintiff brought an action to recover damages for injuries suffered when traveling on the defendent’s ruail- way, through the neglect of their servants. A verdict having passed for the plaintiff with £700 damages, an application was made to this court for a new trial, on behalf of the. plaintiff, on the ground of the insufficiency of the damages, as well as of misdirection, as having led to an insufficient assessment of ° Pierce v. Payne, 14 Cal. 419; Teagarden v. Hatfield, 11 Ind. 522; Blunt v. Little, 3 Mason 102; Armitage v. Haly, 4 Q. B. 917; 12 L. J. Q. B. 323; Deblin v. Murphy, 3 Sandf. (N. Y.) 19; Anderson v. Tarpley, 14 Miss. 507; Connelly v. McNeil, 2 Jones (N. C.) L. 51; Doby v. Re- gour, 9 Ohio st. 519; Fostrr v. Van Norman, 1 Tex. 636. When the ver- dict is a greater sum than all claims made, and in all cases where the judgment is in excess of the amount claimed, a new trial should be granted, unless there is a remittance. Griffin v. Weatherspoon, 8 Ga. 591; Steadman v. Simmons, 39 Ga. 591; Atwood yr. Gilapsie, 4 Mo. 423; Cross v. Wilkins, 43 N. H. 332; Pinckny v. Pulrife, 9 IN. 79; 11 Ind. 31; Rowan v. People, 18 Ill. 159. * Steadman v. Simmons, 3 Ga. 591. But crediting the judgment with the excess will not have the same effect as a remittur. Graham & Wat- eman on New Trials, 1162. NEW TRIALS. 617 damages, and we are of the opinion that the rule for a new tri- al must be made absolute—not, indeed, on the ground of mis- direction, for we are unable to find any misdirection, the learned judge having, in effect, left the question of damages to the jury with a due caution as to limited compensation, though we think it might have been more explicit as to the elements .of damages. "No doubt as to the general rule as to where an injury is caused to one person by the wrongful or negligent acts of another, the compensation should be commensurated to the injury sustained. But there are personal injuries for which no pecuniary damages would afford adequate compensa- tion, while on the other hand, an attempt to award ull com- pensation in damages, might be attended with ruinous conse- quences to the defendants, who cannot always, by the utmost care, protect themselves against the carelessness of persons in theiremploy. Asa general thing we agree with the rule laid down by Mr. Justice Brett, in Rowley v. London, X8:* * * That a jury in these cases must not attempt to give damages to the full amount of perfect compensation for the pecuniary injury, but must take a reasonable view of the case, and give what they consider under all the circumstances a fair compen- sation. And this is, in effect, what was said by Mr. Justice Field to the jury in the present case. But we think that a jury cannot be said to take a reasonable view of the case un- less they consider and take into account all the heads of dam- ‘ages in respect to which the plaintiff, complaining of a personal injury, is entitled to compensation. There are bodily injuries sustained, the pain undergone, the effect on the health of the sufferer, according to its degree and its probable duration as likely to be tempororary or permanent, the expense inci- dental to effect a cure or to lessen the amount of injury, the loss sustained through inability to attend to business or pro- fession, which, again may be of a temporary character or may 421 W.R 869; L. R. 8 Ex. 231. 618 LAW OF DAMAGES. be such as to incapacitate the party for the remainder of his life. If a jury have taken all these elements of damages into consideration, and have awarded what they deemed to be a fair and reasonable compensation under all these circumstances of the case, a court ought not, unless under very exceptional cir- cumstances, disturb their verdict. But look to the figures in the present case, it seems to us that the jury must have. omitted to take into account some of the heads of damages which are properly included in the plaintiff’s claim. The plaintiff was a man of middleage, and of robust health. His health had been irreparably injured to sucha degree as to render life a burden, and a source of the utmost misery. He had un- dergone a great deal of pain and suffering, and the probability isthat he never willrecover. His condition is at once helpless and hopeless. The expenses incurred by reason of the accident have already amounted to £1,000. Medical attendance still is and is likely to be fora long time necessary. He was making an income of £5,000 a year, the amount of which had been positively lost for sixteen months, i. e., between the accident and the trial, through his total incapacity to attend to his pro- fessional business. The positive pecuniary loss thus sustained all but swallows up the great portion of the damages awarded by the jury. It leaves little or nothing for health permanent- ly destroyed, and income permanently lost. We are therefore led to the conclusion not only that the damages are inadequate but that the jury must have omitted to take into considera- tion some of the elements of damages which ought to have been taken into account. The court granted a new trial. 730. In New York, where the jury gave the plaintiff $10 damages in an action for injury sustained by the negligence of ° Phillips v. London & Southwestern R. Co., in Queen’s Bench, 9 Am, Cent, Law Jour., p. 125. NEW TRIALS. 619 the defendant, whereby the plaintiff was severely bruised upon his face, and one of his teeth knocked out, the court held that the amount was grossly inadequate, and that the plaintiff was entitled to a new trial on the payment of costs, unless the de- fendant should consent to a material increase of the amount of damages found by the jury.® 731. The General Rule. Where it appears that the ver- dict is less than the amount due; or in an action to recover the value of personal property wrongfully taken or unlawfully detained, the verdict is less than the value of the property taken or retained; or for a personal injury, the verdict is less than the actual expense paid for the attendance of a surgeon or physician; or when the verdict is clearly inadequate and not commensurated by the injury sustained, the court should grant a new trial." 782. Asa general rule courts will refuse to-set aside ver- dicts for inadequacy of damages, whére there is no evidence that the jury were actuated by bad motive; or where another’ trial would result in so small a change as to be of no benefit to the applicant; or where substantial justice has been done.® ‘6 Richards v. Sanford, 2 E. D. 8. 349; Brown v. Seymour, 1 Wils. 5; Aurlen v. Hilliers, Hord. 208; Robinson v. Hudson Riv. Co., 7 Bosm. (N. Y.) 1; Caste v. Nichols, 42 Mo. 169; Hall v. Bark Onily Banning, 38 Cal. 522; McDonald v. Waters, 40 N. Y. 551. Mariana v. Dougherty, 46 Cal. 26. ‘ 7 Collins v. The Albany & Sch. R. Co., 12 Barb 492; Protens v. Hazel, 1 Harper 312. The defendant may be agreeing that the damages may be increased to an amount that is just and reasonable, defeat the plaintiff’s motion for anew trial. Robinson v. Hudson R. R. Co.,7 Bosm. (N Y.) 1. But where the jury fails to assess the amount due, the court cannot ascertain the amount and render judgment thereon. Coats v. Nickells, 42 Mo. 169. ’ 6 Howard v. Barnard, 11 C. B. 653; Gibbs v. Tunnell, 1 C. B. 649; Phil- lips v. Phillips, 3 N. J. L. 208. An omission to assess nominal damages when there is a mere technical right to recover, is no ground for a new trial. Hudspeth v. Allen, 26 Ind. 165; Frank v. Kessler, 30 Ind. 8. 620 LAW OF DAMAGES. 733. In writing this chapter it has not been our inten- tion to discuss at any great leugth the law relating to new trials, but only to notice it so far as it involves the question of damages. But from what we have said, the student will readily see that it is with great reluctance that courts inter- fere with the verdicts of juries in cases of personal torts. And the reason for this is that there is no scale by which the dam- ages in such cases can be graduated, other than the intelli-’ gence of the jury, governed by a sense of justice and natural right. The law clothes the jury with authority to hear the evidence, and to award the injured party such damages as will equal the injury sustained, and the court must presume that they have performed their duty until it clearly appears other- wise. And it is only when the result appears in a form calcu- lated to shock the understanding, and shows no dubious con- nection of their prejudices and passions, that the courts have found themselves compelled to grant new trials. But in all actions where the damages are liquidated, or are shown by the argument of the parties or from any other cause, a reasonable certain measure of damages is awarded, the jury is allowed no latitude, “and the court will look to the circumstances, and grant or refuse a new trial, or correct the verdict, according to the justice of the case.’”” '1 Graham & Waterman on New Trials, pp. 452, 453. INDEX. THE NUMERALS REFER TO SECTIONS. A. ASSAULT AND BATTERY, DEFINED, 63. the defenses that may, be set up in an action for injury by assault and battery are numerous, 64. the elements of damages, 65, the rules of the assessment of damages, 66, aggravate circumstances may be shown, 67. exemplary damages some times allowed, 67, 31. mitigating circumstances may be shown, 68, , before provocation can be shown in mitigation of damages it must ap- pear that they were so recent as to influence the defendant’s con- duct, etc., 69-73. the plaintiff’s character is not in issue, 70. good name of defendant cannot be shown in mitigation, 71. the res gesta may be shown, 72-75, the passions of the mind recognized, 76. the degree of force that one may use to defend himself, 76. a person may act on appearances, 77. in self-defense unnecessary force should not be used, 78. when a blow will be justified, 79. exemplary damages’ right to recover questioned, but allowed in certain ’ / cases, 81, 82. the assailed party need not flee, 83. damages that plaintiff may recover under the general allegation of his complaint, 84. a full detense, 83. injury done in self-defense unintentional injury. done in the prosecution of a lawful act, 85. in chastising a seaman, 87. school teacher in punishing his pupil, 88. a parent in correcting his child, 89. corporation liable for assault and battery, 9I. ATTORNEYS, when responsible in damages, 333. the measure of damages in case of suit against, 334. ATTACHMENT bonds, (see official bonds), 655, 656, 658, 659. ARBITRATION bonds. see sections 661, 662, (See official bonds). APPORTION damages, 7. 622 LAW OF DAMAGES, 5B: BREACH OF PROMISE TO MARRY, pleading generous time when should be stated, 380. the complaint should show that the defendant had neglected or refused to marry the plaintiff, 380. what the plaintiff must prove,in order to make out her case, 381 the elements of damage, 382. the damage, 382. exemplary damages sometimes allowed, 333. when exemplary damages are allowed, 384, 385. full defense, 386, plaintiff's misconduct when.a defense, 386. infancy when a good defense. marriage prohibited by laws of the State, 386. bad health of the defendant when a defense, 386. the damage at the discretion of a jury, 387. seduction, when allowed to be shown to enhance the damages, 388. in the States having laws allow a female to bring an action for her own seduction, when seduction may be shown to enhance the damages, 388. mitigating circumstance, 389. matters that cannot be considered as a defense, 390. BAILMENT defined, section 587. the division of the subject, 587. deposition, 588. mandatum, 589. commodatum, 590. pignus, 592. damages, 592, 593. division of the class of locatis, 596. warehouse and whartages, 597. innkeeper, 598. common Carriers, 599. care required and responsibility fixed, 599. exception to the general rule as to live stock, 600. responsibility of carriers; how far regulated by contract, 602-604 commencement and termination ot the common carrier’s liability, 601, 602, 603. damages when common carriers refused to carry goods, 605. general rules of damages, 606, when enhanced damages, mav be recovered, 607. carrier responsible for the necessary consequence of his own act, 607. responsibility of the carrier who attempts to carry goods beyond his line, 608. responsibility of each line, 6o9. the carrier has his line for freight, 610. full defense, 611. INDEX. 623 BAILMENT— Continued. when he will be excused from damages in case of loss, 611. mitigating circumstances, 612. what the carrier is bound to take notice of, 613. carrier of passengers, 614. his responsibility, etc., 614. baggage carrier responsible for, 615. full defense, 616, breach of contract to furnish freight, 617. damages, 617. duty of the plaiutiff to prevent loss, 617, 618. C.. CRIMINAL CONVERSATION, at common law an action lies in favor of a husband for criminal conversation and seduction ot his wife, 92. in an action for damages plaintiff must prove actual marriage, 93, 94. how the adulterous intercourse may be proved, 95. time and place need not be proved with great particularity, 96. anterior act of adultery may be shown when, 97. state of domestic happiness between plaintiff and his wife may be shown, 98, 99, Too. the wife’s character presumed to be good, 102, wife’s character in issue, I1os-104. after particular instance of misconduct on part of the wife have been shown, the plaintiff cannot rebut by good reputation, 103. the opinion of a witness as to the affection existing between plaintiff and his wife not admissible, 105. mitigating circumstances, 106, the defendant may show in mitigation of damages that the plaintiff after he knew his wife had been guilty of adultery with the defendant that he continued to live with her, 106. that the plaintiff and wife lived unhappily together and that the plain- tiff abused her, 107. COLLISION, damages for misconduct of defendant, 199. damages where both parties are at fault, 200. the moiety rule when applied, 2or. damages in case of injury not resulting in total loss, 203. damages by the negligence of two vessels and who are responsible, 203. the different cause of the collision, 204. elements of damages, 205 plaintiff who has been injured by acollision may sue atcommon law, 206, contributory negligence will not defeat plaintifi’s claim under certain circumstances, 207. cargo, when may recover for loss of, 209, the act of God a good defense, 210, COPY RIGHT, action may be maintained for infringement of the right, 317. the measure of damages, 318, 319. [See Patent Law.] 624 LAW OF DAMAGES. COVENANT OF WARRANTY, the American common law relating to real property had its origin in the feudal system, 361. the rights of the vassal, 392. the fudal grant was hereditary, 392. the law of real property much confused in this country, 393. the overthrow of the feudal system, 394. the covenants in a deed, 394. the common law of the United States, 395. the grantor cannot recover substantial damages until he has sustained an injury, 396. the covenint is not considered broken until there is a hostile claim of title, 396. the duty of the grantor to wait until some one asserts a hostile claim before he brings his action, 397. general question considered, 398. damage, purchase money, legal interest and expense, 398. objection ‘to the rule of damages, 398. objection noticed and discussed, 399. states in which this general rule has been Bae 400, the objections discussed, 400. reason for both rules, 4o1. the new rule, 401. damages where a part of a tract is taken, 402. the right of the plaintiff to recover interest, 403. interest only to be allowed from the time of the loss of the mesne profits, 403. full compensation for all loss the rule of damages, 404. damages where the covenant of seizin is broken and the grantee evicted purchase money with interest, 404. after acquired title inures to the purchaser, 406. does the covenant of seizin run with the land, 407. American and English rules, 408, covenant for a good right to convey, 409. covenants against incumbrance, 4q1o. damuges for breach of covenant against incumbrance where the grantee has not been evicted or injured or paid off incumbrance a nominal sum, 411. notice of the different rules, 413. damages where the incumbrance cannot be removed, 414. covenants sometimes change, 415. covenants for quiet enjoyment and warranty, 416. damages in case of breach of such covenants, 416. exception to the rule, 417, 418. costs and counsel fees sometimes allowed, 419. mitigating circumstances, 420. COVENANT REAL, executory contract for the sale of land, 421. INDEX. 625 COVENANT REAL—Continued. damages in case of breach, 421. general rule for damages where the vendor acts‘in good faith, 422. general rule where the vendor acts in bad faith, 423. rule in New York, 414, 425. when defendant acts in good faith. purchase money with interest, 426, 428. Engitish rule, 427. rule in case of Hadly v. Baxendale applies, ,429. damages where the defendant acts in bad faith, 430. good and bad faith. Indiana rule purchase money with interest, 432. in Maine the value of the land at the time of the breach the measure of damages, 433. decisions that ignore good or bad faith, 434. damages in case of failure of the vendee, 435. damages where deed is tendered to the vendee, 437. the proximate consequence can only be considered, 438. price agreed to be paid with interest considered the measure of dam- ages, 4345 435- the difference between the price fixed. in the contract and the saleahie value of the land the measure of damages, 437. should the malice be considered, 439. rescission of contract, 440. damages in case of a breach of contract to lease land, 441. CONSEQUENTIAL DAMAGES, 4, 6. See Warranty, Fraud and. Negligence. iD. DUTY OF THE INJURED PARTY- TO PREVENT LOSS, the plaintiff must be active to prevent loss, 372, 373. rule illustrated, 374. if the injured party fails to use reasonable means to prevent loss he can only recover such damages as he could not have prevented, 375. the rule applied in case of contract to perform work, 376, 377. the general rule imposed by law, 378. damages where the injury is enhanced by the negligence of the plain- tiff, 379. DIRECT damages, 4. damages defined, 1. recompense or satisfaction for some injury sustained, 1 “Bi. EMINENT DOMAIN. any sovereign may take private property for public use, 34. the reason for exercising the right of eminent domain, 304. how property may be taken by the State, 305. 626 LAW OF DAMAGES. EMINENT DOMAIN-—-Continued. this right should be exercised with great care, 305. the title that the State may acquire by eminent domain, 306. the damages that the owner of the land may recover, 307. benefits that the owner of the land shares in common with others, should not be considered, 307. the damages, how ascertained, 307. the measure of damages is compensation for every injury sustained, 308, . EXEMPLARY DAMAGES, the right to recover, a source of contro- versy, 33. it never was a rule of the common law, 34. this is evident the meaning of the word damages, 36. the law aims to restore loss, 37. the jury not authorized to assess, 38. the argument in favor of the rule, 39. the issue at common law forbids the recovery of exemplary-dam., 40. controversy between Greenleaf and Sedgwick, 41. effort to reconcile their difierences, 42. Supreme Court of Iowa 43. damages for mental suffering, hard to estimate, 44. the rule for the assessment of exemplary damages adopted in this country, 45. decision of the Supreme Court of the United States, favoring such damages, 46. the dispute on the question of assessing such damages where the in- jury was caused by an act that is punishable as a crime, 47, 48. principal liable in exemplary damages for acts of his agent, 49. so the master for his servant, 50. principal not liable for malicious trespass of his agent, sl, common carriers liable for exemplary damages, 53. corporation liable in exemplary damages, 54. opinion of the Court of Appeals af New York, 54. the peculiar condition of the defendant not to be considered in aseess- ing exemplary damages, 55 when and for what injuries exemplary damages allowed, 56. allow in cases based on fraud, malice, gross negligence or oppression. principal defined, 57. gross negligence defined, 58. allowed in breach of contract to marry, 59. not allowed in case of an injury by a domestic animal, unless the ow- ner knew the animal to be vicious and disposed to injure mankind, 60, infants, non compos mentis, not liable for, 61. the nature of the offense should be considered, 62, allow in case of assault and battery, 67, 81. 82. INDEX. 627 ENTICING AWAY A SERVANT, where one entices away a servant of another, damages may be re- covered, 354. but only the proximate consequences can be recovered, 354. remote damages caunot be allowed, 354. damages foi enticing away a servant who is employed by the job, 355. the employer must use reasonable means to supply his place, 355. the relations of the parties to be investigated, etc., 52. B. FALSE IMPRISONMENT, DerFinep, 113. the right of private citizens and peace officers to make arrests, 114, 116. after they make an arrest must take the prisoners foetal es before an officer and prefer charges, 117. arrest under a warrant, 118. arrest under a void warrant, II. officer liable for arrest under a writ where the court had no jurisdic- tion; 120. ministerial where he pleads justification, must auetail it by his proof, 121. elements of damages, 122. matters that may be shown in aggravation, 123. mitigating circumstances that may be shown, 124. full defense 125, 126. FRAUD AND DECEPTION, fraud defined, 127. bad intention, when considered, 128. fraud can only be committed in the misrepresentation of a material fact, 129. misrepresentation as to what the law is never considered fraud, 130. vague commendation not fraud, 131. the representation must be such as the party had a right to rely upon, 132. the law never relieves the negligent, 133. representation as to price paid as to the value or what he has been of- fered for it are not fraud, 134. the law raises no presumption of fraud without proof, 135. the party who has been defrauded has one or two remedies, he may rescind or sue for damages, 137, 140. the plaintiff must be active in enforcing his remedy, 138. if he rescinds, he must do so in toto, 139. the damages, 141. the rules for the assessmént of damages where there are numerous representations, 141. | representation of soundness.of property in case of exchange, 143. the general rule of damages, 143, 144. damages in case of fraud in the sale of real estate, 146. rule of damages where there are false representation as to the quan- tity of land, 146, 147. 628 LAW OF DAMAGES. Ge GUARANTY De Finep, 518. ‘ confusion of surety and guarantor, 518. distinction between surety and guarantor. 518, 520, damages in case of breach, 521. tet. HIGH WAYS, the rights of a traveler when they are obstructed, 29. i INSURANCE, MarINE, 683. . commencement and termination of the risk depends on contract, 683. rules established for constructing contracts of insurance, 683. how to estimate the damages, 685. the measure of damages, 686. the value ot the ship at the commencement of the risk, allow reason- able amount for wear and tear in estimating damages, 686, the reason for the rule, 687. damage in case of total loss of cargo, 688. general average, when allowed, 686, the insurer allowed to repair in reasonable time, 6go. abandoned vessel, 690. how to assess the damages on goods ina foreign county, 691. Fire INSURANCE, defined, 694. the measure of damages in case of loss, 693, mortgagee entitled to damages, 694. negligence on the part of the insured, when it will prevent a recov- ery, 695. damages when there is more than one insurance on same property, 695. defense that may be set up to the recovery on policy, 607, 608. right of the insurer to rebuild under the contract, 699. damages where the party commences to rebuild and fails, 699. LiFe INSURANCE, contract of, 700, measure of damages, in case of death, 7or. creditor has an insurable interest in his debtor, 702, the damages that may be recovered, 703. INTRODUCTION, the discussion of the question of damages, 1, the law upholds man in his natural rights, 2. the common law, its expression. the assessment of damages uniform, etc., 3. direct and remcte consequences, 4. law looks to rules, 5. the proximate cause, 6. the wrong-doer will not be permitted to apportion his damages, 7. the law requires a man to be active to prevent loss, 8. INDEX. 629 INTRODUCTION— Continued. exemplary damages, 9. liquidated damages, ro. contributory negligence, Ir. the complaint. the damages that necessarily arise can be shown under the general de- nial, 14. province of the jury at common law, I5. damages for the proximate consequence for breach of contract can be allowed, 16. Hadly v. Baxendale, 17. recovery measured by the interest of the party plaintiff, 18. discussion of the question of exemplary damages, 18, 19, 20. LL, LUNATICS are responsible for their torts, 30. LIBEL AND SLANDER, libel defined and slander defined, 268. malice essential in an apna of slander, 269. elements of damages. ‘mental suffering, circumstances of indignity, public disgrace, etc., should be considered, 271. special damages. when allowed, 272. what may be considered as such, 272. -what constitutes a full defense, 275. words spoken in the discharge of official duty, etc., not actionable, 275. mitigating circumstances, when they may be shown, etc., 276, LIGHT, the common law of England in reference to light not the common law of this country, 351. the common law of America, 352. some of the States hold that an easement may be acquired over the land of an individual for the use of light, 353. LANDLORD AND TENANT, hiring of real property, 442. liability of the landlord, 443. implied covenant on the part of the landlord, 443. landlord need not renew, 443. damages by breach of contract by landlord, 444. lessee’s measure of damages where he has been prevented from taking possession, 444. damages 1n case of failure to make repairs, 445. damages for failing to keep gate in repair, 445. damages for failure to repair a house, 446. who to repair, 448. : damages where the tenant is evicted by the landlord before his lease expires, 449, 450. consequential damages, 451. * 630 LAW OF DAMAGES. LANDLORD AND TENANT— Continued. ° actual loss sustained, 452, 453. gratuitous labor by the landlord on the leasehold premises, how to be performed, 504. the rule in case of Hadly v. Baxendale applies, 455. the right of the landlord to enterupon the premises after the expira- tion of the defendant’s lease, 456. general liability of the tenant, 457. must take possession of the leasehold estate at the time specified and perform his other obligations, 457. the tenant’s obligation to repair, 459. what tenant cannot show in defense, 460. the improvements the tenant may remove, 461. when he must remove them, 461. waste, when tenant responsible for. 462. damages, actual loss sustained, 463. P waste defined. LIQUIDATED DAMAGES, the right of the parties to fix the amount of damages for a breach by contract, 640. I the intention of the parties always carried out when it can be ascer- tained, 640. the law ot liquidated damages in confusion, 642. the difficulty arising in the way of having a definite rule is the ambig- uity of the contracts, 643, 644. construction of the contract, 041, 642, 643; 644. 645. exception to the general rule for construction, 646. where a large sum is made payable, on failure to pay, a small one, how considered, 647, 648, 649. stipulated amount allowed as a penalty, 650, 651, 652, 653. law looks te particular rules, etc. It never encourages. 5. litigation, 21. IM. MALICIOUS PROSECUTION, DEFINED, 170. probable cause, 171. what the plaintiff must prove, 175. malice, how proved.176. what evidence required to prove, a want of probable cause and malice, 177, 178. the plaintiff must show in order to make out his case: 1, that the pros- ecution is atan end; 2, that the prosecution was instituted malic- iously ; 3, the want of probable cause; 4, that he has been dam- aged, 180, full defense, 181. elements of damages, 182. the damages, 182, 3} INDEX. 6381 MALICIOUS PROSECU1T'ION—Continued, mitigating circumstances, 184. jury, ther power, 185. corporation liable for malicious prosecution, 186° MARRIAGE CONTRACT, (See Breach of Promise.) MITIGATING CIRCUMSTANCES, the aim of the law to measure the damage by the injury, 356. in case injury to goods by co:nmon carrier, he may show in mitigation that the plaintiff received goods in damaged condition, 357. the malicious intention should be considered, 358, 359. mitigating circumstances in libel and slander, 360, 361. mitigating circumstances may be shown in case of malicious prosecu- tion, 362. mitigating circumstances in case of false imprisonment, 363. mitigating circumstances in case of an action against an agent, 364, mitigating circumstances in trover, 365, mitigating circumstances may be shown in suit on contract, 366, case of malice, 367. , mitigating circumstances in case of criminal conversation, 368. mitigating circumstances in seduction, 369. mitigating circumstances in case of a breach of promise to marry, 370. good faith, 371. \ N. NOMINAL DAMAGES, in case of action for labor, 340. nominal damages in case of breach of contract, 341. nominal damages may be recovered for failure to pay check, 342. in case of breach of covenant, 343. objections to the rule, 344. NUISANCE, DEFINED, 187. the different kinds of nuisance, 188, plaintiff’s remedies, 189. i right to abate a nuisance. 190, Igt. who responsible for nuisance, 192. damages in case of nuisance, 193. opinion of Supreme Court of Pennsylvania on the question of dam- ages, 194. Supreme Court of Indiana, 194. dangerous animals running at large a nuisance, 195. dog running at large a nuisance, 196. the right of adjoining land owners, 198. NEGLIGENCE, Derinep, 211. in order for plaintiff to recover, it must be a case of unmixed negli- gence, 212. when negligence of defendant is so gross as to imply a disregard of consequences, or a willingness to inflict the injury, the plaintiff may recover, 213. 632 LAW OF DAMAGES. NEGLIGENCE— Continued. Illinois rule, 214. the right to use property does not authorize one to do wrong, 216. instances of gross negligence, 218, 219, 220, 221, 222, negligence in injuring a child, 223. negligence of parents, etc., attributed to the child, 223. the authorities are in conflict as to whether the negligence of the pa- rent, etc., should be attrributed to the child, 224. a child is only required to exercise such care as one of his age, 225-6, when the action is brought by the parent for the injury to the child, his negligence is attributed to the child, 227. greater care required of the defendant when children are exposed to danger, 228.° * drunkenness, what care required in case of, 229. blind, insane, and foolish, the care required, 230. negligence, a question of law and fact, 231. when negligence will be imputed to one in the act of saving life, 233. what the defendant will be held responsible for, 234, 235. the rule to ascertain defendant’s liability, 236. . ‘the’ first efficient and adequate cause as well as any intermediate cause, etc., considered the proxim ite cause, 236. the measure of damages, 238, 239, 240. damages case of personal injury, 241, 242. elements of damages, 251. in assessing damages all the facts should he considered, 243. rule for the assessment of damages in case of injury to real and per- sonal property, 244, 247, 246. malpractice,’ 247. damages in case of malpractice, 247. INJURY BY NEGLIGENCE, Resur-TING IN DEATH. At common law, no activi could be maintatned for an injury resulting in death, 250. Lord Campbell’s act, 251. the act of the State of New York, 252. the act of the majority of the States like the N. Y. act, 253. the damages that the plaintiff may recover compensation, 255. the plaintiff cannot recover for mental suffering of the deceased, or for the mortification of his relatives, 255. the pecuniary damages may be recovereil, 255. the damages must be of a pecuniary character, 256. the expectation to be considered, 258. limitation of damages, 260, damages how enhanced. 261. damages that a child may recover for the loss of its parent, 262. how the damages should be estimated, 263. elements of damages, 263. the damages that parents may recover for the death of their child, 264. INDEX. . 633 NEGLIGENC E— Continued. in some States the statutes authorize parents to bring the action in their own name, but the ule for the assessment of damages is the same, 265, . contributory negligence, when it will defeat a recovery, 267, where there is a breach of an agreement or evasion oi a right estab- lished, the law infers some damages, and if the party shows no loss nominal damages may be allowed, 336, 339. in purchase of real estate. in an action for breach of an agreement to convey land where no money has been paid and the vendor has acted in good faith, nominal damages may be recovered, 338. in all cases where the evidence shows an injury and no proof is shown of amount of damages, nominal damages may be recovered, 339. NEW TRIALS, when a new trial will be granted for excessive damages. new trials are never granted unless the damages are so excessive as to warrant the belief that jury must have been improperly influ- enced, 711. the reason for the rule, 712. instances where new trials have beeu refused for such reason, 713-721. exception to the general rule, 722. instances where new trials have been granted, 723-725. new ‘trial in some cases refused when there is a reduction in the ver- dict. 728,729. = new trial on account of inadequacy of damages, 729. instances where new trials have beeu granted on account of inade- quacy of damages, 730. , when it appears that the verdict is less than the amount due, new trial is gnerally granted, 731, 732. the intention of the author, 733. OFFICERS, courts and their object, 322. no judicial officer can be held responsible for his deeision, 322. judicial officer, when responsible for his acts, 328. court having no jurisdiction of the subject matter, liable for his . acts, 324, measure of damages is full compensation, 328. prisoner, negligent escape, the measure of damages that can be recov ered against an officer, 329. law presimes an officer has done his duty, 330. exemplary damages are sometimes allowed, 331. mitigating circumstances, 332. attorneys, when responsible for damages, 333. damages for being kept out of office, 335. os 634 ° LAW OF DAMAGES. OFFICIAL BONDS, damages, as a general rule the damayes will be limited to the actaal loss sustained, 655. the extent of the plaintiff’s recovery, 656. exception to the rule, 656, 657. attachment, bond suit on, 658. damages on bond, 659. rule for damages in New York, 659. arbitration bonds, 661, 662, injunction bond, damages on, 664, 665. consequential damages, when allowed, 666. delivery bond, damages on, 567. appeal bond, 668, condition of the bond, 669. damages, 669. indemnifying bonds, 670. damages, in case of a suit, 671. : Supreme Court of New Hampshire on question of damages, 672. replevin bond, 674. damages, measure of, 675. general rule of damages in case of replevin, 776. when the verdict of the court will settle the question of damages, 675. P. PARTIES, : plaintiff must in order to maintain his action have an interest in sub- ject matter, 22. parties at common law, 23, 27. action at common law for torts must be brought in the name of the party affected, 24. the common law rule abolished, 23. when the plaintiff may recover, 25. the law does not notice trifles, 25. individuals only responsible for voluntary acts, 25. right of adjoining land owners, 25. «municipal corporation not liable for failure to pertorm legislative and govermental acts, 26. the rights of the owner of the surface of land, 28. defendants, 30. infant, when he cannot be sued, 30. joint torts, who held liable for. 31. joint defendants, 31. PARENT AND CHILD, parent may give his child moderate correction, Sy. PATENT LAWS, the Government frequently grants patents, 310. letters patent, 310, INDEX. 685 PATENT LAWS—Continued. damages in case of an infringement of the patent, how ascertained, 311, 313. general rule for the assessment of damages, 312. profits generally taken as the basis of estimating damages, 314. in case of an infringement in the making only nominal damages can be recovered, 315. . equity rule for the assessment of damages, 316. copyright, action lies for an infringement upon, 316. the measure of damages, 318, dramatic composition, etc., 319. damages for the infringement of the right, 319. trade marks, individuals protected in the use of, 320, damages for using the same without the consent of the owner, 320. the rule for the assessment of damages is the profits that defendant has realized. 320. PROMISSORY NOTES, promissory notes and bills of exchange. full compensatian for all loss sustained the rule of damages in case of breach, 465. remote damages not allowed, 465. principal and interest the true measure of damages, 466, 467. legal tender question, payment of note in depreciated currency, 468. rate of interest fixed by the contract fixes the measure of recovery, 470, rate of interest fixed by law governs in the absence of special agree- ment, 471. damage on note originated in one State and payable in another, 472. suit On a note in one State made in another, rate of interest when made governs, 473. as a rule the law of the place where the contract is made will govern the rate of interest, 474. \ place of performance considered, governs the rate of interest, 474. interest forbidden by Jaw must be recovered, 476. two kinds of money in the United States, 477. power of Congress to make the promissory notes of the Government a legal tender, decision, 477. contract to pay gold and silver means to deliver so many groceries, 478. general rule as to payment, 476. rule in Indiana, 480. general rules deducible for all the decisions, 481. interest did not abate during the civil war, 482. compound interest, when allowed, 483, 499. note payable in salt, 484. interest can be recovered after payment of principal, 485. conflict of authorities, rule recommended, etc., 486, 487. rule in Iowa, 488. 636 LAW OF DAMAGES. PROMISSORY, NOTES—Continued. coupon bonds du not draw interest, 489. notes made payable in specific articles, 484, 490, 491. Indiana and Wisconsin rule, 492, interest, rate of in the different States, 493. rights of parties to bill and notes to be determined by law of the place where made, 494 exception where note or bill is drawn in one State and made payable in another, the law of place of payment governs, 494. bill and notes transferable, 495, 496. PRINCIPAL AND SURETY, surety defined, 497. the execution of an agreement, 497. lease of Deardorff v. Forsman consided, 499. discharge of surety by conduct of the other parties, 506. release, when will obviate as a discharge, 503, 504, 505. construction of a contract of reléase, 506, where the payee when he releases one may resue his right against the other, it will be considered an agreement not to sue, 503, 504, 505, 506. discharge of co-surety only discharges half the debt, 507. relation of the parties after’ judgment remains the same, 508. mortgage property stands as other property, 509. surety discharged by releasing levy on property, 510. release of lien on property discharges surety, 511. surety when discharged by notice to sue, 511. note signed for particular purpose and used for another, as a rule void, 513. the surety may recover by way of damages all money expended for the principal, with lega: interest and costs, 514. surety has no cause of action until he makes payment of the principal debt 515, 516, 517. guaranty defined, 518. damages that he may recover, 521. PERSONAL PROPERTY, damage in case of « tailure to deliver personal property, 546. full compensation for all loss the rule, 546. when the price has not been paid the measure of damages is the differ- ence between the contract price and the value of the property at the time of delivery, 546, 548. the reason for this rule, 546. the States in which the highest market value of the property is consid- ered as damages for failure to deliver personal property, 547. Pennsylvania rule, 548. where personal property is sold to supply a person for a sale contract, the measure of damages, 549-552. damages when goods are to be delivered at different times, 553- INDEX. 637 PERSONAL PROPERT Y— Continued. the rule in the case of Hadly v. Baxendale applie , 554, 555. remote and speculative damages never allowed, 556. the general rules deducted trom all the authorities, 557. damages for failure to deliver stock thought by some to be different from a failure to deliver other property, 558. but the rule is the same in both cases, 558. market value, the reason for its adoption as a standard, 559. damage when the vendee fails to comply, difference between contract price and market price, 560. damage when there is a failure to take goods manufactured to order, 561, 562. damages in case of a partial delivery, 563. reduction of the rule to common sense, 566, PRINCIPAL AND AGENT, the right of a person to appoint an agent, 704. who can appoint an agent, 704, minors, married women, etc., cannot appoint an agent, 704. who may act as agent, 705. the law of principal and agent definitely settled, 906: good faith required of the agent, 707. the principal can recover all damages sustained by the misconduct of his agent, 708. remote and consequential damages not allowed, 709. the principal remedies, 710. PROXIMATE CONSEQUENCES, 6. ER. RECEIVER, DEFINED. generally required to give bond, 677. damages for breach of duty, 678. ministerial officers bonds. ie damages that may be recovered, 680. * remote and speculative damages cannot be recovered, 681. bonds on sale of liquor, 682. measure of damages, 682. REMOTE DAMAGES. 4, 6. : the wrong-doer is responsible, not only for the first result, but for every succeeding result, 6, see Negligence. difference between direct and remote cause, 44. REPLEVIN, at common law abolished in most of ‘the states, 280. personal property can only be recovered in an action of replevin, 290. land, and, ordinarilp, whatever is attached to it. cannot be recovered, 290. what will be considered as personal property, 291. fixtures, how determined, 292. 638 LAW OF DAMAGES. REPLEVIN, Continued. growing crops, when considered a fixture, 263. ’ damages, measure of differs in the different States, 294. where property cannot be returned, its value the true measure of dam- ages, 295. where property returned is reduced in value, the measure of dam- ages, 295. Kansas rule, 295. Nominal damages, when allowed, 297. Exemplary damagss, when allowed, &c., 298. the plaintiff’s damages will be estimated according to his interest, 299. elements of damages, 300. damages where property 1s not returned, 301. damages where articles are of a peculiar value, 302. damages for defendant where the court orders a return of the proper- ty, 303. \ Ss. SCHOOL TEACHER, when and how he may correct his pupils, 88. SEAMAN, when he may be chastised, 87. SEDUCTION, action for seduction at common law may be maintained by parent, guardian, or other person, standing in loco parentis for the seduction of a female, 110. the damages, what they will embrace, 111. SALES, (see Personal Property, sections 546 to 566.) SERVICE AND LABOR, division of the subject, 567. case of breach of contract, the employe has two remedies, 568, when he may sue on quantum meruit, 568. readiness to perform, 568. duty of the dismissed servant to hunt work. 569. . the act of God, when an excuse for the non-performance of labor, 570. when the employer has broken the contract, the employe in case of suit may recover for all loss sustained, 570. profits should be considered in assessing damages, 571, the employe may recover in case of part perforniance to the amount of the benefit the employer has received, 572. but in order to recover, the work must have been accepted, 575. what will be considered an acceptance, 574. extra work, 575. employer may recover what such work is worth, 575. the rule allowing a recovery for the benefit the employer. may receive from the labor discussed, 576. it is called the liberal rule, 576, 577, 578. INDEX. 639 damages where the employe is prevented by the act of the employer from performing the labor,3579, 580. damages where the employe fails to complete his job. damages, general rule, 583, 585 586. nts TRESPASS, DEFINED, 148. “ to real and personai property, defined, 149. the general owner of property presumed to have possession, 150 151. an officer who abuses his authority liable as a trespasser, 152. the intention makes the wrong, 153, case where persons are injured and have no remedy, 154. damages, general rule, 155. —~ damages, for injury to animals, 156 158. damages in case of injury to water privileges and water right, 159-162, damages to land, 163-165.-— consequential damages, 166. division of damages, 167. tenants’ damages, 168. damages in case of injury to mines, 169, TROVER, DEFINED, the measure of damages the value of the property with interest. 278, the true rule for the assessment of damages is the value of the property at the time of: conversion, 278. exception to the general rule for the assessment of damages at the value of the property at the time of conversion, 278. consequential damages. when allowed, 278. conflict among authorities as to the true measure of damages, 280. how the conflicting rules might be reconciled, 280. the different rules owing perhaps to the different forms of action, 281. compensation for the loss is the true rule, 282. value of the property with interest is the measure of damages that should be adopted, 283. damages in case of gifts and articles of virtu, 284, 285. the market value of the property not always considered the measure of damages, 286. damages for conversion of Pretium affectionis, 286. good and bad faith, when considered, 289. exemplary damages may under certain circumstances be recovered, 288. thé general rules for the assessment of damages and exceptions consid- ered, 288 TRADE MARKS, persons protected in the use of, 320. act of Congress, (unconstitutional), 320. the measure of damages is the profit that the defendant has made, 320, damages where the profits cannot be ascertained, 321. See Patent Laws. 640 LAW OF DAMAGES. TELEGRAPHING, its origin, 619. 3 its right to limit its responsibility by contract, 620. its general powers to limit responsibilities, 621. ‘the gereral rule for limiting responsibility. 622, 626. damages, full compensation for all loss, 618. general rule of damages, 629. consequential damages, wh n responsible for, 630. responsible tor al] the consequences of negligence, 631. damages for sending dispatches to ship owners, 624. instances where consequential damages have been allowed, 524, 533, ; ; 534 535» 536. when damages will be limited to interest, 637. damages where company refuses to send messages, 638. liability of different companies who transmit the same message, 639. WATERCOURSES, the right of a land owner to use the water on his premises, 343. the owner of land on a stream of waterhas a right to use all the water in the stream to the exclusion of those below him, 344. the law sometimes makes a distinction between natural and artificial wants. 345. how and when water mav be used, 346. title to subterranean streams, 347. the owner of the surface ‘may destroy a subterranean stream, 347. surface watercourse may be changed, 348. the damages, 348. profits that might have been realized from the use of water allowed in some cases, 349 WARRANTY IN SALE OF PERSONAL PROPERTY, DEFINED, 522. what is considered a wairanty, 524. the purchaser must exercise common sense, 525. implied warranty, 526. rule of caveat emptor, 527. warranty must be made betore the property is delivered, 528. warranty in case of goods sold by sample, 529. damages in case of breach of warranty, 530. the difference between the value of the property andits value as war- ranted, 530. market value considered, 530. exception to the general rule, 531. consequential damages allowed, 531, 532, 533, 539) 540, 541, 542, 543. damages in case of a breach of warranty of title, 535. in sale of stocks warranted of certain value at a fixed time, 536. damages where there is a breach of warranty in the sale of, diseased animals, 537. 538. general rule of damages in sale of animals diseased, 589. articles manufactured for certain purpose warranted fit for such pur- pose, 541, 542 : damages, rule in England, 542. rule in America, 543. gains and losses to be considered, 543. goods bought for a certain market, warranted fit for the same, 544. price paid when considered, 514. wrong-doer will not be permitted to apportion his damages, 7. eis ie f eee Ge ispesreare uy ‘s Ey Penen nent na ca or Rott en, Meee te ti ie ees rajeentiat st Mia i ee iy sage rie i enor ora a i ee i Ot Pe) ahreie oh Peay. 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