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A  treatise  on  the  measure  of  «'f,'"29f  *[,°''' 


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A   TREATISE 


MEASURE   OF  DAMAGES; 


AN  INQUIRY  INTO  THE  PRINCIPLES  WHICH  GOVERN 

THE   AMOUNT    OF   PECUNIARY  COMPENSATION 

AWARDED    BY   COURTS    OF   JUSTICE. 


BY 

THEODORE    SEDGWICK, 

AUTHOR    OF    "A    TREATISE  ON    STATUTORY   AND   CONSTITUTIONAL   LAW." 


Cum  pro  eo  guod  interest  dubitationes  antiquse  in  infinitum  productae  sint,  melius  nobis  visum 
est,  hujusmodi  prolixitatem,  prout  possibile  est,  in  angustum  coargtare. 

Codt  De  sent.  qutE  pro  eo  quod  int.  prof,  lib,  vii,  tit.  xlvii. 


EIGHTH  EDITION. 

REVISED,    REARRANGED,    AND     ENLARGED 
BY 

ARTHUR  G.   SEDGWICK 

AND 

JOSEPH  H.  BEALE,  Jr. 

VOL.   1 

New  York: 
BAKER,  VOORHIS  &  CO.,  LAW  PUBLISHERS, 

66  Nassau  Street. 
1891. 


Entered,  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  ninety-one,  by 

ARTHUR  G.  SEDGWICK, 

in  the  Office  of  the  Librarian  of  Congress  at  Washington. 


PRESS    OF 

EDWARD    O.    JENKINS*     SON, 

20    NORTH    WILLIAM    STREET,     NEW    VORKr 


DANIEL  LORD,  ESQ. 

Dear  Sir  : 

If  you  find  no  fault,  I  am  very  sure  that  I  shall  not  be  else- 
where censured  for  placing  your  name  (although  without  any 
previous  permission)  upon  the  dedication  page  of  this  work. 

Your  opinion  of  the  importance  of  the  subject,  is  one  of  the 
circumstances  that  have  most  strongly  urged  me  to  proceed  with 
it.  But  I  have  other  reasons  for  requesting  you  to  accept  this 
volume. 

You  show  us  all,  by  a  teaching  far  better  than  barren  precept, 
how  much  true  dignity  and  usefulness,  as  well,  if  we  may  be 
allowed  to  judge,  as  real  happiness,  attend  a  life  assiduously, 
intelligently,  and  above  all,  honorably  devoted  to  that  profession 
of  which  we  are  the  votaries. 
I  am,  dear  Sir, 

With  sincere  regard  and  respect, 
Your  obedient  servant, 

THEODORE  SEDGWICK 
New  York,  January,  1847. 


(iii; 


PREFACE  TO  EIGHTH  EDITION. 


The  first  edition  of  this  treatise  appeared  in  1847,  in  a  single 
volume  of  six  hundred  pages,  in  which  some  fifteen  hundred 
cases  were  cited.  Failing  health  prevented  the  author  from 
continuing  the  work  of  revision  begun  in  the  second  edition, 
and  his  death  in  1859  made  it  necessary  that  it  should  be 
taken  up  by  other  hands.  Several  annotated  editions  were 
brought  out;  in  these  the  text  was  retained  intact,  and  the  ad- 
ditions were  in  the  form  of  new  notes,  which  gradually  in- 
creased in  number  and  length  until  they  equalled,  if  they  did 
not  exceed,  in  volume  the  original  work.  The  annotations 
sometimes  consisted  merely  in  the  citations  of  recent  cases,  ap- 
pended to  a  list  of  cases  already  cited,  to  sustain  some  propo- 
sition of  law,  sometimes  of  page  after  page  of  criticism  upon  re- 
cent decisions.  They  were  inserted,  as  such  notes  must  be, 
where  they  could  be  most  conveniently  introduced  ;  and,  as 
often  happens,  the  result  in  the  course  of  time  was  that  notes  on 
matters  closely  connected,  or  even  on  the  same  subject,  were  scat- 
tered through  the  book  under  widely  separated  heads.  The 
result  of  this  was,  that  while  the  seventh  edition  contained 
additions  of  very  great  value — in  great  measure  the  work  of 
Messrs.  G.  Willett  Van  Nest  and  William  Parkin,  of  the  New 
York  bar — it  was  often  impossible  to  trace  the  decisions  under  a 
particular  head  without  considerable  uncertainty  as  to  whether 
the  search  had  or  had  not  been  exhausted. 

Since  the  author's  death  there  had  been  no  attempt  to 
make  the  arrangement  of  the  book  more  systematic,  In  the 
preface  to  the  second  edition  the  author  said  :  "  For  the  time 
being,  however,  in  regard  to  the  order  and  arrangement  of 
this  work,  I  have  felt  the  full  inconvenience  resulting  from  th* 

(V) 


VI  PREFACE    TO    EIGHTH    EDITION. 

present  chaotic  state  of  our  procedure.  I  have  endeavored  to 
avoid  it  as  far  as  possible  by  keeping  steadily  in  view  what  is 
manifestly  the  inevitable  result  of  the  experiments  now  going 
on,  viz.,  the  final  and  total  abrogation  of  the  forms  of  common- 
law  pleading  both  in  England  and  America.  When  that  end  is 
at  length  attained,  and  when  the  application  for  redress  shall  be 
made  to  depend  solely  on  the  right,  then,  and  not  till  then,  it 
will  be  easy  to  classify  and  arrange  the  rules  governing  the 
measure  of  relief  in  a  manner  that  shall  be  at  once  legal  and 
logical ;  that  shall  satisfy  the  technical  demands  of  the  prac- 
titioner, and  at  the  same  time  gratify  that  love  of  reason  and 
justice  which  animates  the  mind  of  him  who  desires  to  find 
something  in  the  law  besides  a  mere  collection  of  abstract  and 
arbitrary  rules." 

The  work  done  in  the  preparation  of  the  seventh  edition  made 
it  very  clear  that  the  time  was  rapidly  coming  when  some  such 
revision  and  rearrangement  as  the  author  had  in  mind  when  he 
used  this  language  must  of  necessity  be  undertaken.  The  whole 
system  of  common-law  pleading,  and  the  great  body  of  common- 
law  forms  of  action  have  disappeared  both  in  England  and 
America,  while  in  New  York,  and  the  States  which  have  adopt- 
ed its  system  of  procedure,  even  more  sweeping  changes  have 
been  introduced. 

The  effect  of  these  alterations  upon  the  law  of  damages  has  been 
to  make  it  less  difficult  than  it  was  originally  to  treat  the  whole 
subject  in  a  systematic  way.  It  no  longer  makes  the  difference 
that  it  once  did  whether  the  suit  is  brought  in  trover  or  in  tres- 
pass, in  assumpsit  or  in  debt.  In  the  language  of  the  author, 
redress  is  now  made  as  far  as  possible  to  "  depend  solely  on  the 
right,"  and  not  upon  the  form  in  which  it  is  applied  for.  It  is 
consequently  more  easy  now  to  state  those  general  principles 
which  underlie  the  whole  law  of  damages,  irrespective  of  the 
method  of  procedure,  than  it  was  in  the  lifetime  of  the  author, 
and  in  the  present  edition  the  editors  have  attempted  to  do 
this. 

At  the  same  time,  it  would  be  a  great  mistake  to  suppose,  as 
critics  of  the  old  system  often  do,  that  any  system  of  procedure 
has  swept  away  all  the  distinctions  of  the  common  law.  The 
Code  of  New  York,  for  instance,  endeavors  to  treat  as  non-exist- 
ent the  difference  between  tort  and  contract ;  but  no  legislature 
has  succeeded  in  making  the  same  rules  of  redress  govern  the  two 


PREFACE   TO   EIGHTH    EDITION.  VU 

classes  of  cases.  Motive  is  still  a  matter  of  prime  importance  in 
tort,  and  an  inquiry  into  it  is  still  rigidly  excluded  in  contract.  A 
breach  of  contract  is  still  a  violation  of  a  promise  to  do  something, 
or  to  refrain  from  doing  something.  A  tort  is  still  a  breach  of  a 
general  duty  imposed  by  the  law.  The  law  of  redress  in  cases 
growing  out  of  the  breach  of  covenants  in  deeds  is  something 
very  different  from  the  law  governing  covenants  affecting  personal 
property.  The  damages  for  failure  to  make  a  good  title  are  still 
in  most  jurisdictions  governed  by  peculiar  rules.  An  action  on 
a  penal  bond  is  not  governed  by  the  same  rules  as  an  ordinary 
action  of  contract.  Efforts  at  a  purely  logical  arrangement  of 
this,  as  of  any  other  branch  of  the  law,  are  hampered  by  limita- 
tions handed  down  to  us  by  preceding  generations,  which  im- 
pose a  certain  order  often  different  from  that  suggested  by  a 
systematic  view  of  the  subject. 

Another  difficulty  with  which  the  present  editors  have  had 
to  contend  was  this  :  Any  rearrangement  of  the  subject  in- 
volved a  rearrangement  of  the  text.  The  text  was  left  (as  appears 
from  what  has  already  been  said)  by  the  author  in  a  condition 
which  he  foresaw  would  require  rearrangement,  and,  moreover, 
some  parts  of  it  had  become  obsolete.  Points  which,  in  his  life- 
time, we:;e  still  unsettled,  had  been  decided  ;  positions  taken  by 
him  had  been  so  thoroughly  sustained  by  the  courts  as  to  make 
their  statement  at  length  unnecessary.  In  one  or  two  cases  the 
point  under  discussion  had  been  settled  adversely  to  the  author's 
view.  On  the  other  hand,  the  book  had  become  a  work  of 
authority,  its  language  had  been  followed  by  the  courts,  and 
it  was  felt  to  be  improper  to  change  or  attempt  to  improve 
upon  it. 

In  this  embarrassment,  the  course  adopted  was  one  which,  it 
is  hoped,  will  commend  itself  to  the  profession.  The  subject 
was  rearranged  in  a  way  which  seemed  most  in  harmony  with 
the  views  of  the  author — the  general  principles  running  through 
the  whole  subject,  illustrations  of  which  are  to  be  met  with  in 
every  class  of  cases,  being  put  first,  these  being  followed  by  the 
rules  in  that  great  division  of  the  subject  which  seemed  most  sim- 
ple— torts.  Contracts  are  next  discussed,  as  involving  more  com- 
plex considerations,  and  these  are  followed  by  real  property,  as 
requiring  for  its  complete  comprehension  a  full  understanding  of 
all  the  rest  ;  while  statutory  damages,  pleading,  practice,  evi- 
dence, special  damages,  and  the  relations  of  court  and  jury,  were. 


Till  PREFACE   TO   EIGHTH    EDITION. 

as  before,  reserved  for  final  chapters.  This  rearrangement  made 
it  impossible  to  preserve  the  original  paging  of  the  book,  and  con- 
sequently wherever  the  text  was  retained  it  was  placed  between 
asterisks,  so  that  the  r~eader  might  see  at  a  glance  what  is  the 
author's  and  what  is  not.  In  case  of  doubt,  as  where  a  passage 
from  the  book  had  been  modified  substantially,  the  present 
editors  have,  by  omitting  asterisks,  assumed  the  responsibility 
for  the  change.  In  the  course  of  this  work,  it  was  found  that  a 
considerable  portion  of  the  book  consisted  of  statements  of 
cases,  often  leading  to  no  definite  conclusion,  because  the  state  of 
the  decisions  did  not  admit  of  any.  In  such  cases  asterisks  have 
not  always  been  thought  to  be  necessary.  But  the  reader  may 
feel  sure  that  whenever  he  finds  a  passage  in  asterisks  it  is  the 
work  of  the  author ;  if  it  is  not  in  asterisks,  it  is  either  the 
work  of  the  present  editors,  or  of  some  of  their  predecessors,  or 
of  both  combined,  or  else  is  the  mere  statement  of  a  case. 

In  order  to  prepare  for  the  revision,  it  was  necessary  to  ex- 
amine all  the  cases  in  the  seventh  edition,  in  order  to  see  how 
far  they  supported  the  propositions  which  they  were  cited  to 
sustain.  It  was  found  that  in  many  instances  cases  had  been 
erroneously  cited  in  support  of  a  wrong  passage  in  the  text  ;  in 
others,  they  did  not  touch  upon  the  measure  of  damages  at  all. 
This  work  of  pointing  out  the  errors  of  citation  was  done 
in  great  measure  by  Mr.  Eliot  Norton,  of  the  New  York  bar, 
a  grandson  of  the  author.  By  this  means  a  great  many  cases 
were  found  to  be  out  of  place,  and  it  was  ascertained  that  a  great 
many  others  must  be  omitted  altogether. 

The  accumulation  of  cases  for  the  new  edition  proved  to  be 
very  great,  and  in  1889  Mr.  W.  H.  Wigmore,  of  the  Boston  bar, 
who  had  begun  the  work  of  rearrangement,  was  compelled  to 
abandon  it.  His  suggestions,  however,  have  proved  of  value  to 
the  present  editors.  The  amount  of  labor  which  the  preparation 
of  this  edition  has  involved  can  with  difficulty  be  estimated. 
When  we  say  that  what  we  had  originally  hoped  to  put  into 
two  volumes  has  expanded  into  three,  and  that  each  editor  has 
spent  moie  than  an  entire  year  in  the  work  of  collecting  cases 
or  in  writing,  and  that  in  addition  to  this  it  has  required  five 
months  to  see  the  book  through  the  press,  and  that  the  book 
is  one-ha'J  as  large  again  as  in  the  last  edition,  containing  forty- 
four  chapters  instead  of  twenty-six,  while  the  cases  cited  have 
increased,  allowing  for  the  large  number  omitted,  in  perhaps 


PREFACE   TO    EIGHTH    EDITION.  ix 

greater  proportion,  it  will  be  seen  that  no  pains  have  been 
spared  to  make  this  edition  a  thorough  revision. 

In  writing  the  new  text,  in  which  are  incorporated  most  of 
the  notes  of  the  last  edition,  it  was  found  that  the  growth  of  the 
law  in  different  fields  was  very  unequal,  and,  of  course,  most  at- 
tention has  been  given  to  those  in  which  there  has  been  the- 
greatest  accumulation  of  new  cases.  In  real  property,  for  in- 
stance, the  somewhat  rigid  rules  of  compensation  have  not  under- 
gone much  modification,  and  in  the  common  kinds  of  actions  of 
tort  there  is  no  great  growth.  On  the  other  hand,  if  we  examine 
the  subject  of  contracts  we  shall  find  a  continual  change  and  de- 
velopment. Since  the  last  edition,  the  courts  have  adopted  a 
tolerably  uniform  view  of  the  rules  in  Hadley  v.  Baxendale, 
while  they  have  greatly  developed  the  law  relating  to  contracts 
for  the  carriage  of  passengers  and  to  telegraphs.  The  doctrine 
of  avoidable  consequences,  originally  of  such  slight  importance 
as  to  need  little  more  than  a  bare  mention,  has  been  so  expanded 
and  applied  in  so  many  different  classes  of  cases  as  to  require 
very  full  treatment.  Among  the  general  chapters,  the  question 
of  the  limits  of  compensation,  which  lies  at  the  root  of  the  whole 
subject,  is  almost  entirely  new.  This  embraces  matters  hereto- 
fore scattered  through  the  book  under  different  heads,  and  it  is 
hoped  is  one  of  the  chapters  which  will  prove  the  value  of  the 
system  of  arrangement  adopted  in  the  present  edition.  In  the 
same  way,  so  far  as  possible,  everything  relating  to  interest  and 
to  exemplary  damages  has  been  put  together.  The  subject  of 
certainty  is  one  of  great  importance,  the  courts  having  devoted 
much  time  of  recent  years  to  examining  and  defining  the  differ- 
ence between  the  measure  of  damages  and  the  methods,  nature, 
and  limitations  of  proof  of  damage.  The  chapter  on  this  sub- 
ject also  may  be  said  to  be  almost  wholly  new.  Again,  in  the 
third  volume,  the  subject  of  statutory  damages  has  been  ex- 
panded from  one  chapter  into  seven.  In  the  chapters  dealing 
with  statutes  of  eminent  domain,  the  attempt  has  been  made  to 
explain  the  general  principles  of  decision,  and  for  this  purpose 
many  extracts  have  been  made  from  the  decisions,  where  clear- 
ness seemed  to  require  it. 

The  courts  of  this  country  for  a  long  time  decided  all  ques- 
tions relating  to  the  appropriation  of  private  property  for  public 
use,  under  the  influence  of  the  rule  that  where  the  owner  was 
not  absolutely  divested  of  his  title,  however  much  he  might  be 


X  PREFACE   TO    EIGHTH    EDITION. 

damaged,  he  was  without  redress.  The  author  directed  atten- 
tion to  the  superior  protection  to  private  rights  afforded  by  the 
English  statutes.  Since  his  death  his  remarks  have  been  justi- 
fied by  the  adoption  in  the  courts,  in  certain  cases,  of  more 
liberal  rules,  and  by  the  introduction  in  many  States  of  new 
constitutional  provisions.  The  effect  of  this  has  been  to  make 
the  American  approach  more  nearly  to  the  English  view,  and 
to  make  the  English  cases  important  as  authorities  in  many 
States.  A  separate  chapter  has  accordingly  been  devoted  to 
them,  which  it  is  hoped  may  prove  of  value. 

The  general  plan  of  the  work,  as  it  at  present  stands,  is  as 
follows  :  In  the  first  volume  are  given  the  general  principles 
which  govern  the  rules  of  compensation  in  all  cases.  The  sec- 
ond volume  embraces  all  the  particular  classes  of  personal 
actions  and  actions  relating  to  personal  property,  whether  sound- 
ing in  contract  or  tort.  The  third  treats  of  real  property,  re- 
coupment, statutory  damages,  pleading,  practice,  evidence,  spe- 
cial damages,  and  the  relations  of  court  and  jury.  The  author's 
notes,  so  far  as  possible,  have  been  retained. 

It  should  be  said,  in  conclusion,  that  the  edition  is  the  result 
of  the  joint  labors  of  both  editors.  The  book  has  been  gone 
over  by  them,  line  by  line  and  case  by  case,  and  the  conclusions 
reached  and  criticisms  made  have  been  the  result  of  a  careful 
comparison  of  views.  They  have  felt  throughout  that  their 
attempt,  in  the  light  of  the  great  success  attained  by  the  author, 
was  a  somewhat  hazardous  experiment ;  but  they  have  at  least 
done  their  utmost  to  preserve  the  integrity  of  his  work  while  re- 
vising it,  as  nearly  as  may  be,  as  they  believe  he  would  have 
done  had  he  survived  to  carry  out  his  plan.  They  have  tried 
also  as  far  as  possible  to  follow  in  the  footsteps  of  the  courts  as 
well  as  the  author,  and  state  the  result  of  the  cases,  rather  than 
to  anticipate  the  course  of  decision.  They  have  also  endeavored 
to  make  the  collection  of  cases  very  full.  They  have  not  at- 
tempted to  cite  every  case  that  has  been  decided  on  the  subject 
of  damages  ;  to  have  done  so  would  have  overloaded  the  book 
with  a  mass  of  unimportant  decisions  which  are  mere  repeti- 
tions of  one  another. 

A.  G.  Sedgwick. 
Joseph  H.  Beale,  Jr. 
New  York,  May  i,  i8gi. 


PREFACE  TO  FIRST  EDITION. 


The  subject  of  damages,  in  other  words,  the  pecuniary  com- 
pensation awarded  by  the  tribunals  of  justice,  in  the  widest 
acceptation  of  the  term,  embraces  the  whole  field  of  redress  by 
legal  means  ;  and  in  this  sense  includes  the  entire  philosophy  of 
the  Law,  at  least  so  far  as  it  is  distinguished  from  Equity.  In 
taking  this  view  of  the  matter,  we  should  be  led  to  consider 
questions  which  lie  at  the  very  basis  of  our  system  of  jurispru- 
dence— to  what  extent  compensation  ought  on  principle  to  be 
carried — whether  full  and  complete  remuneration  should  be  pro- 
vided for  every  case  of  civil  injury ;  or  whether,  as  now,  the 
reparation  should  be  confined  within  much  narrower  limits. 
Again,  for  what  particular  wrongs  reparation  should  be  pro- 
vided ;  should  the  crime  of  seduction  be  punished  by  a  civil 
action  on  a  fiction  of  service  ?  Should  the  injured  husband  have 
compensation  in  an  action  for  criminal  conversation  ?  In  what 
cases  should  redress  be  furnished  for  slanderous  or  libellous 
publications  ?  Ought  the  malicious  refusal  to  fulfil  contracts 
for  the  mere  payment  of  money  be  more  severely  punished  than 
honest  incapacity  ? 

These  and  similar  inquiries  would,  as  I  say,  embrace  the 
whole  philosophy  of  legal  relief.  But  I  have  by  no  means  in 
this  volume  intended  to  occupy  ground  so  extensive  ;  my  aim 
has  been  much  humbler  ;  and  if  not  more  useful,  at  least  more 
practical. 

My  purpose  has  been  to  examine  those  cases  only,  where,  a 
wrong  having  been  done,  or,  in  more  technical  language,  a  right 
of  action  existing,  the  question  remains.  What  is  the  amount  of 
compensation  to  be  awarded  ?  In  other  words,  what  is  the  rule 
or  measure  of  damages  in  courts  of  law  ? 

In  doing  this,  my  principal  purpose  has  been  to  present  the 

(xi) 


XU  PREFACE    TO    FIRST    EDITION. 

law  as  it  is  ;  while,  at  the  same  time,  I  have  thought  it  my  duty 
to  exhibit  the  contradictions  and  discrepancies  which  exist  in 
this,  as  indeed  in  almost  every  part  of  our  jurisprudence ;  and 
which  must  exist  so  long  as  those  changes  take  place  in  the  ad- 
ministration of  justice,  which  sometimes  furnish  a  theme  for 
well-grounded  censure,  but  more  frequently  exhibit  its  capacity 
of  self-adaptation  to  the  perpetual  fluctuations  of  our  social  and 
commercial  conditions. 

In  the  execution  of  the  work,  I  may  be  thought  to  have  given 
the  decisions  of  the  courts  too  much  at  large.  It  is  not  unad- 
visedly that  I  have  adopted  the  course  pursued  in  this  volume. 
Our  law  is  so  truly  to  be  found  in  our  reports,. that  it  seems  to 
me  always  better  to  give  the  very  words  of  judicial  opinions 
than  to  attempt  to  put  them  in  different  language.  In  regard  to 
the  subject  of  damages,  too,  this  course  has  seemed  to  me  par- 
ticularly expedient.  It  is  in  the  course  of  a  trial  that  questions 
of  this  class  generally  present  themselves,  and  my  object  has 
been  to  make  a  work  which  should  be  practically  useful  at  nisi 
prius  ;  while,  at  the  same  time,  I  have  endeavored  to  clear  the 
v/ay  to  a  correct  appreciation  of  the  whole  subject. 

I  have  found  another  reason  for  this  course  in  the  unsettled 
state  of  this  branch  of  the  law.  The  contradictions  are  so 
numerous,  the  discrepancies  so  great,  and  the  subject  in  a  con- 
nected shape  so  new,  that  I  have  hesitated  to  affirm  any  position 
without  citing  my  authority  at  large.  And  in  collating  the  de- 
cisions, I  have  found  so  much  variance  of  opinion  in  the  numer- 
ous tribunals  which  follow  the  course  of  the  common  law  that  it 
is  with  great  difficulty  in  many  cases  that  I  have  been  able  to  do 
more  than  state  the  doubts  as  they  exist. 

I  do  not  by  any  means  flatter  myself  with  the  hope  of  com- 
plete success.  But  if  this  volume  tend  in  any  degree  to  reduce 
to  greater  certainty  this  department  of  our  jurisprudence — to 
stimulate  the  inquiries,  or  to  abridge  the  toil  of  those  who  pain- 
fully devote  themselves  to  the  great  science  of  justice — my  labor 
will  be  abundantly  repaid. 


CONTENTS   OF  VOL.   I. 


Prefaces, 
Table  of  Cases, 


Page  V 
Page  xxiii 


CHAPTER   I. 


GrENEEAL  ViEW  OP    THE  SUBJECT, 


Page  1 


I. — General  Intbodttction. 


§    1.  The  subject  a  branch  of  the  law 
of  redress. 
3.  Legal  relief  consists  of  damages. 
3.  Equitable  relief. 


4.  Difference  between  them. 

5.  Damages  a  species  of  property. 

6.  General  arrangement  of  the  sub- 

ject. 


II. — HisTOBY  OB'  Damages  in  cue  Law. 


§    7.  Our  law  of  damages  originated 
with  the  Anglo-Saxons. 

8.  Damages     under    Anglo-Saxon 

jurisprudence. 

9.  Damages   in    Anglo-Saxon   law 

compensatory. 

10.  Anglo- Saxon   compensation    pe- 

cuniary. 

11.  Amount  of  compensation  care- 

fully defined. 


§  13.  Anglo-Saxon  judiciary. 

13.  Later  modes  of  trial. 

14.  By  ordeal. 

15.  By  battle. 

16.  By  wager  of  law. 

17.  By  jury. 

18.  Modern  tribunals. 

19.  Quantum  of  damages  a  question 

for  the  jury. 


III. — Damages  imDBK  other  Systems  oi"  Law. 


j  20.  Jewish  law. 
31.  Hindoo  law. 
33.  Roman  law. 

33.  How  awarded  under  Roman  law. 

34.  Arbitrary    rules    of    reparation 

under  Roman  law. 


§  35.  Civil  law. 
26.  Dommage-intergts  indefinite. 
37.  Limited    only  by  discretion    of 
judge. 

28.  Methods  of  avoiding  injustice  in 
these  systems. 

(xiii) 


XIV 


CONTENTS   OF   VOL.  I. 


IV. — Genekal  Principles  adopted  m  the  Common-Law  System. 


§  29.  Damages  consist  in    compensa- 
tion for  loss  sustained. 

30.  Both  in  contract  and  in  tort. 

31.  Amount  determined  by  rules  of 

law. 
33.  Damnum   absque    injuria    and 
injuria  sine  damno. 


§  33.  Fletcher  v.  Rylands. 

34.  Ko    compensation   for    loss  by 

nuisance  common  to  all. 

35.  Unless    particular    damage    re- 

sults. 

36.  Nor  by  way  of  settlement  for 

crime. 


CHAPTER   II. 


Compensation, 


Page  46 


I. — Kinds  op  Injctrt  Compensated. 


§37 


The  elements  of  injury. 
Perfect  compensation  impossible. 

39.  The  injuries  for  which  compen- 

sation is  given. 

40.  Compensation    for    injuries   to 

property. 

41.  For  physical  injuries. 

42.  For  inconvenience. 

43.  For  mental  injuries  ;  early  mis- 

conception of  rule. 

44.  In  actions  of  tort. 

45.  In  actions  of  contract. 


§  46.  Difficulty  of  estimating  in  money 
no  objection. 

47.  Kinds  of  mental  injury  compen- 

sated. 

48.  Compensation     for    injuries   to 

family  relations. 

49.  To  personal  liberty. 

50.  To  reputation  and  standing  in 

society. 

51.  Aggravation  and  mitigation. 

52.  Matter  of  evidence,  not  of  law. 


II. — Rbditction  op  the  Original  Loss. 


I  53.  Offer  of  specific  reparation. 

54.  Bringing  converted  property  in- 

to court. 

55.  Reparation  accepted. 

56.  Reparation     preventing     actual 

loss. 

57.  Reparation  by  a  third  party. 

58.  Recovery  of  property  by  the  in- 

jured party. 

59.  Application  of  property  to  the 

benefit  of  the  injured  party. 

60.  Application  authorized  by  law  ; 

seizure  on  execution. 


§  61.  Informal  sale  after  legal  seizure. 

62.  Reparation  which  would  prevent 
further  loss. 

68.  Benefit  conferred  on  the  injured 
party  by  the  wrongful  act. 

64.  In  an  action  for  flooding  land. 

65.  On  the  injured  party  in  common 

with  othere. 

66.  Not    caused     directly    by    the 

wrongful  act  itself. 

67.  Benefit  received  from  third  par- 

ties on  account  of  the  injury. 


III. —Compensation  por  Injury  to  a  Limited  Interest  in  Property. 


i  68.  Damages  as  affected  by  limited 
ownership. 

69.  Damages  recoverable  by  owner 
of  limited  interest  in  land. 


§  70.  By  an  occupant  of  land. 

71.  By  a  lessee  of  land. 

72.  By  a  life-tenant  of  land. 

73.  By  a  mortgagee  of  land. 


CONTENTS   OF    VOL.  I. 


XV 


;  74.  By  a  revewioner. 

75.  By  a  tenant  in  common  of  land. 

76.  By  a  possessor  of  chattels  against 

a  trespasser. 

77.  In  replevin,  by  one  who  counts 

on  possession  merely. 

78.  By  the  possessor  of  chattels  in  an 

action  against  the  owner. 


i  79.  By   the    possessor    of   chattels 
where  the  owner  cannot  re- 
cover full  value. 
80.  By  an  owner  of  chattels  out  of 


81.  By  the  mortgagor  or  mortgagee 
of  chattels. 

83.  Between  the  parties  to  a  mort- 
gage of  chattels. 

83.  By  the  part  owner  of  chattels. 


IV. — Time  to  which  Compeis'sation  mat  be  Recovebed. 


J  84.  Damages  must  be  recovered  in 
a  single  action. 

85.  The  early  rule    different ;    loss 

after  action  brought. 

86.  Damages  for  prospective  loss. 

87.  Continuing  agreements. 

88.  Renewed    injury    requires   new 

action. 

89.  Continuing  breach  of  contract. 

90.  Damages  recoverable  for  act  de- 

stroying a  contract. 


§  91.  Continuing  tort. 

92.  By  trespass  on  plaintiff's  land. 

93.  By  unauthorized  private  struc- 

ture or  use  of  land. 

94.  For  a   tort  causing  permanent 

injury. 

95.  For    injury    caused  by   lawful 

permanent  structure  or  use  of 
land. 


CHAPTER    III. 
Nominal  Damages, 


Page  134 


§    96.  The  common  law  relieves  only 
actual  injury. 

97.  Damage  inferred  from  the  fact 

of  wrong  done. 

98.  Nominal  damages  for  the  in- 

fringement of  a  right. 

99.  Nominal  damages  establish  ti- 

tle. 

100.  Application  of  the  rule  in  torts : 

English  cases. 

101.  Application  of  the  rule  in  torts  : 

American  cases. 
103.  In  actions  upon  patents. 


§  103.  In  actions  against  public  offi- 
cers. 

104.  General  principle  in  actions  of 

tort. 

105.  Actions    of   contract :   English 

cases. 

106.  Actions  of  contract :  American 

cases. 

107.  Where  no  loss  is  inflicted,  dam- 

ages must  be  nominal. 

108.  Nominal  damages  as  affecting 

costs. 

109.  Error   in  the  disallowance    of 

nominal  damages. 


CHAPTER  IV. 

Consequential  Damages, 


Page  156 


§  110.  Not  all  results  of  a  wrongful  act 
are  compensated. 
111.  Direct  and  indirect  results  of  a 
wrong. 


§113.  Direct     consequences    always 
compensated. 


XVI 


CONTENTS    OF   VOL.  I. 


I.— Pkoximatb  aud  Kbmote  Loss. 


§  113.  Remote  consequences  not  com- 


114.  Right     of     action— Proximate 

cause. 

115.  Scott  «.  Shepherd. 

116.  Question  of  remoteness  a  ques- 

tion of  fact. 

117.  Remote    consequences    in    the 

civil  law. 

118.  French  law. 

119.  Difference    between   civil    and 

common  liiw. 

120.  Scotch  law. 

121.  Louisiana  law. 

123.  General  principles  in  the  com- 

mon law. 
133.  Consequences  of  an  act  complex 
in  nature. 

124.  Avoidable  consequences. 

135.  Instances    of     remote     conse- 

quences. 

136.  Intervention  of  a  living  agency 

— Independent  will. 

127.  Loss  of  credit  or  custom. 

138.  Loss   caused   by  a  crowd  at- 
tracted. 


i  129.  Intervening    agencies— General 
rule. 

130.  Loss  through  a  forced  sale  of 

property. 

131.  Injury    to    animals — Infectious 

disease. 
133.  Straying     animals— Non-repair 
of  fences  or  gates. 

133.  Loss    through    deprivation    of 

machinery    or    of    business 
premises. 

134.  Of  means  of  protection  to  per- 

son or  property. 

135.  Through    detention    of    prop- 

erty. 

136.  Personal   injury- False  impris- 

onment. 

137.  Loss  of  service. 

138.  Loss  of  a  dependent  contract. 

139.  Expense  of  preparation  for  per- 

formance. 

140.  Expense  incurred  on  faith  of 

the  defendant's  contract. 

141.  Stock    purchased    on   faith  of 

lease  or  conveyance. 


II. — Natural  Consequences. 


§  143.  Unnatural  or  unexpected  con- 
sequences not  compensated. 

143.  Natural    consequences    in    ac- 

tions of  tort. 

144.  The  rule  in  Hadley  v.  Baxen- 

dale. 

145.  GrifQn  v.  Colver. 

146.  Meaning  of  the  rule  in  Hadley 

V.  Baxendale. 

147.  Hadley  ».  Baxendale  as  inter- 

preted in  England. 

148.  Hadley  v.  Baxendale  as  inter- 

preted in  New  York. 


§  149.  General    results  of   Hadley  v. 
Baxendale. 

150.  Hobbs'  Case. 

151.  Cory  v.  Thames  I.  "W.  &  S.  B. 

Co. 
153.  Loss  caused  by  imexpected  nat- 
ural causes  supervening  on 
the  defendant's  act. 

153.  Through  deprivation  of  mate- 

rial for  manufacture  or  trade. 

154.  Telegraph  companies. 

155.  Agreement  to  repair. 

156.  Loss  of  a  sub-contract. 


III. — Notice. 


§  157.  Notice— General  rule. 

158.  Notice  of   consequences   of   a 

breach  of  contract. 

159.  Notice  must  form  the  basis  of 

a  contract. 


§  160.  But  need  not  be  part  of  the 
contract. 

161.  Notice  of  a  sub-contract. 

163.  Notice  of  a  contemplated  re- 
sale. 


CONTENTS   OF   VOL.  I. 


XVU 


§  163.  Notice  of  a  sub-contract,  but 
not  of  the  price. 

164.  Notice  of  special  use  for  goods. 

165.  Notice  of  use  of  machinery. 

166.  Notice  of  special  use  for  mate- 

rial. 


§  167.  Notice  of  special  use  for  prem- 
ises, 

168.  Notice  of  special  use  for  funds. 

169.  Notice  of  special  use  for  infor- 

mation. 


CHAPTER  V. 


Ceetain  and  Uncertain  Damages, 


Page  245 


§170. 

Amount  of  loss  must  be  shown 

§185. 

Failure  to  give  possession  of  real 

with  reasonable  certainty. 

estate. 

171. 

Best   proof   possible   must   be 

186. 

Failure  to  put  a  structure  on 

given. 

land. 

172. 

Prospective   loss— Personal  in- 

187. 

Loss    of    use    of    a    road    or 

Ji-"7- 

bridge. 

173. 

Gain  prevented — Profits. 

188. 

Damages  for  wrongful  eviction. 

174. 

Allowance  of  profits,  how  regu- 

189. 

Loss   of   the   use   of  business 

lated. 

premises. 

175. 

Early  cases. 

190. 

Injury  to  machinery. 

176. 

Profits  recoverable  if  proximate, 

191. 

Injury  to  crop. 

natural,  and  certain. 

192. 

Profits  of  a  contract. 

177. 

General  rule. 

198. 

Contracts   for   a   share  in  the 

178. 

Cases  of  entire  loss  do  not  fall 

profits  of  a  business. 

within  the  rule. 

194. 

Collateral  profits. 

179. 

Gain  expected  from  the  use  of 

195. 

Loss  of  use  of  personal  prop- 

money. 

erty. 

180. 

Loss  through  injury  to  capacity 

196. 

Loss  of  use  of  a  vessel. 

to  labor. 

197. 

Profits  expected  from  the  sale 

181. 

Personal  injury  resultiug  in  loss 

of  goods. 

of  business. 

198. 

Profits  included  in  the  market 

182. 

Profits  of  an  established  busi- 

price. 

ness. 

199. 

Profits     expected     from     the 
manufacture    of     raw    ma- 

183. 

Of  a  new  business. 

terial. 

184. 

Damages  for  obstructing  the  use 

200. 

From  competition  or  specula- 

of land. 

tion. 

CHAPTER  VI. 


Avoidable  Consequences, 

j  201.  Plaintiff    cannot    recover    for 

avoidable  consequences. 
302.  Reason  of  the  rule. 

203.  Rule  sometimes  results  in  en- 

hancing damages. 

204.  Different  from  the  rule  of  con- 

tributory negligence. 
Vol.  I.— b 


Page  295 

j  205.  The  rule  of  general  application. 

206.  Contracts  for  personal  services. 

207.  Employment  of  different  kind 

or  grade. 

208.  Duty  to  seek  employment  does 

not  arise  in  all  contracts. 

209.  Landlord's  agreement  to  repair. 


xvm 


CONTENTS   OF   VOL.  I. 


J  310.  Tenant's  agreement  to  make  re- 
pairs. 
311.  Agreement  to  make   improve- 
ments. 

318.  Failure  to  furnish  freight. 

313.  Reparation  offered  by  defend- 

ant. 

314.  Actions  of  tort. 

315.  Expenses    of    avoiding    conse- 

quences recoverable. 

316.  Of  following  property. 

317.  Of  repairing  or  reducing  injury. 
818.  But  only  reasonable  expenses. 

319.  Rule  does  not  require  impossi- 

bilities. 


§  380.  Statutory     damages— Eminent 

domain. 
831.  Rule    requires    only   ordinary 

care. 
338.  Other  limits  of  the  rule. 
383.  Plaintiff's  knowledge— Notice. 
834.  Plaintifif   need    not    anticipate 

wrong. 

335.  Plaintiff    cannot  be  called  on 

to  commit  wrong. 

336.  Defendant     prevents     plaintiff 

from  avoiding  consequences. 

337.  Burden  of  proof. 
388.  Court  and  jury. 


CHAPTER  VII. 


Expenses  of  Litigation, 

§  339.  Expense  of  carrying  on  a  suit 
not  compensated. 

330.  Reason  of  the  rule. 

831.  Civil  and  old  common  law. 

333.  Rule  in  actions  of  contract. 

333.  General  rule  in  actions  of  tort. 

334.  In  cases  of  aggravation  —  Ex- 

emplary damages. 

335.  Patent  and  admiralty  cases. 
386.  Expenses  of  a  prior  litigation. 


Page  338 


i  337.  Expense  of  dissolving  injunc- 
tion   or   discharging  attach- 
ment. 
838.  Covenants  and  contracts  of  war- 
ranty or  indemnity. 

339.  Expenses  must  be  reasonable. 

340.  Plaintiff     subjected     to     suit 

through  defendant's    breach 
of  contract. 
841.  Plaintiff     subjected     to     suit 
through  defendant's  tort. 


CHAPTER  VIII. 

The  Meastjee  and  Elements  of  Value,  .  Page  364 


§  848.  Value  in  general. 

343.  Fundamental  rule  of  value. 

344.  Market  value. 

845.  Market  value,  how  determined. 
346.  Value  in  the  nearest  market. 
847.  Cost  of  transportation — Allow- 
ance of  profit. 

348.  Property  in  process  of  manufac- 

ture. 

349.  Market    value    artificially    en- 

hanced. 

350.  No  market  value. 

351.  Peculiar  value — Pretium  affec- 

iionis. 

553.  Value  for  a  particular  use. 


§  353.  Possible  future  use. 

354.  Value  of  good-will. 

355.  Time  and  services. 

356.  Choses    in   action  —  Bills   and 

notes. 

357.  Bonds  and  shares  of  stock. 

358.  Other    securities    for   the  pay- 

ment of  money. 
859.  Policies  of  insurance. 
360.  Other  sealed  instruments. 
861.  Documents. 
863.  Title  deeds. 
863.  Life. 

364.  Money. 

365.  Illegal  and  noxious  property. 


CONTENTS   or   VOL.  I. 


XIX 


CHAPTER  IX. 


Medium  of  Payment, 

§  266.  Primitive  substitutes  for  money. 

367.  Medium  in  which  a  payment 

may  be  made. 

368.  Adoption  of  a  new  standard  of 

value. 

369.  Adoption  of  a  new  legal  tender 

— Bouble  standard. 

370.  Contract  payable  in  gold. 

371.  Form  of  judgment  on  a  con- 

tract payable  in  gold. 

273.  Actions  of  tort  for  the  loss  of 
gold. 

373.  Contract  payable  in  foreign  cur- 
rency. 


Page  393 

j  374.  Contract  payable  in  a  foreign 
country  in  currency  of  that 
countiy. 

275.  Exchange. 

276.  Contract  payable  in  mercantile 

securities. 

377.  Alternative  medium. 

378.  Confederate  money  —  Time  of 

estimating  value. 

279.  Agreements  to  pay  in  a  medium 

other  than  money. 

280.  Cases  allowing  recovery  of  the 

stipulated  amount  in  money. 

281.  Cases  allowing  recovery  of  the 

value  of  the  commodity. 


CHAPTER  X. 


Interest, 

§  283.  What  interest  is. 

383.  Origin  of  the  allowance  of  in- 

terest. 

384.  English  law — Rule   laid  down 

by  Lord  Mansfield. 

385.  Time  of  payment  indefinite. 

386.  Fraud. 

387.  Mercantile  securities. 

388.  Contract  express  or  implied. 

289.  Interest  by  statute — Discretion- 

ary power  of  jury. 

290.  By  way  of  damages  for  deten- 

tion of  money. 
391.  Result  of  English  cases. 
393.  Difference  between  English  and 
American  law. 

293.  Interest  as  damages — Frequent- 

ly regulated  by  statute. 

294.  Money  vexatiously  withheld — 

Statutory  rule. 

295.  Allowance  and  amount  of  in- 

terest formerly  matter  for  the 
jury. 

396.  Now  usually  a  question  of  law. 

397.  Gradual  extension  of  principles 

allowing  interest  as  matter  of 
law. 


.      Page  417 

I  298.  Interest  by  custom. 
299.  Liquidated    and    unliquidated 

demands. 
800.  Unsatisfactory  character  of  the 

test. 

301.  Liquidated  demands  —  General 

rule. 

302.  Time  for  which  interest  runs. 

303.  Money    illegally    acquired    or 

used. 

304.  Money  paid  out  for  the  defend- 

ant. 

305.  Money  had  and  received  by  the 

defendant. 

306.  Money  received  or  retained  by 

mutual  mistake. 

307.  Rent— Distraint. 

308.  Price  of  property  or  work  fixed 

— Sales — Action  for  price. 

309.  Demand  prevented  by  defend- 

ant's act. 

310.  Simple  running  account. 

311.  Balance  of  a  mutual  account. 
313.  Unliquidated  demands. 

313.  New  York  rule. 

314.  Abatement  of  claim — Recoup- 

ment. 


XX 


CONTENTS   OF   VOL.  I. 


§  315.  General  conclusion. 

316.  Value  of  property  destroyed  or 

converted. 

317.  Property   destroyed   by   negli- 

gence. 

318.  Property  taken,  by  eminent  do- 

main. 

319.  Failure  to  deliver  goods. 

320.  Interest  in  actions  of  tort. 

321.  Discretion  of  jury  still  exists  in 

some  cases. 
822.  The  rule  in  Pennsylvania. 

323.  In  Massachusetts. 

324.  In  the  Supreme  Court  of  the 

United  States. 

325.  Interest  on  overdue  paper — Con- 

tract and  statute  rate. 

326.  Conflict  of  authority. 

827.  General  conclusions. 

828.  Expressed  intention  always  gov- 

erns. 
329.  Rules  in  the  Supreme  Court  of 

the  United  States. 
3b0.  Conflict  of  decision  in  Indiana. 


3  331.  Stipulation    for   a   higher  rate 
after  maturity. 

382.  Interest  on  taxes. 

883.  On  fines  and  penalties. 

384.  On  judgments. 

335.  Between  verdict  and  judgment. 

336.  In  error. 

337.  Municipal    corporations  —  The 

State. 

388.  Interest  after  payment  of  the 

principal. 

389.  Rate  of  interest. 

340.  What  will  relieve  a  defendant 

from  interest. 

341.  Interest  not  affected  by  intent. 
343.  Conflict  of  laws. 

343.  Compound  interest  not  original- 

ly allowed. 

344.  Except  by  mercantile  custom, 

or  for  fraud. 

345.  Interest  on  arrears  of  stipulated 

interest. 

846.  Interest  in  admiralty. 


CHAPTEE  XI. 


ExEMPLAET  Damages, 

§  347.  Meaning  of  the  term. 

348.  Origin  of  the  doctrine  of  ex- 

emplary damages. 

349.  Original  position  of  the  jury  in 

the  assessment. 

350.  Evolution  of  the  doctrine. 

351.  History  of  the  doctrine  in  Amer- 

ica. 

352.  American  cases. 

353.  Objections  to  the  doctrine. 

354.  The  rule  established  by  aiithori- 

ty  and  convenience. 

355.  Exemplary   damages   in    other 

systems  of  law. 

356.  Exemplary  damages  and  dam- 

ages for  mental  suffering. 

357.  Exemplary  damages  in  addition 

to  compensation. 

358.  In  some  jurisdictions,  exemplary 

damages  not  awarded. 

359.  In  some  jurisdictions,  exemplary 

damages,  so  called,  are  com- 
pensatory. 


Page  501 


j  360.  In  most  jurisdictions  exemplary 
damages  are  given  for  punish- 
ment. 

361.  Exemplary  damages  not  allowed 

without  actual  loss. 

362.  Do  not  survive. 

363.  Are  allowed  only  for  wilful  in- 

jury. 

364.  Exemplary  damages  for  malice. 

365.  For  oppression,  brutality,  or  in- 

sult. 

366.  For  wantonness  of  injury. 

367.  For  fraud. 

868.  For  gross  negligence. 

869.  Circumstances   preventing    the 

allowance  of  exemplary  dam- 
ages. 

370.  In  what  actions  exemplary  dam- 
ages may  be  recovered. 

871.  Not  recoverable  in  equity. 

372.  In  actions  for  personal  injury. 

373.  For  injury  to  property. 


CONTENTS    OF   VOL.   I. 


XXI 


j  374.  In  actions  of  trover. 

375.  Of  replevin. 

376.  For  loss  of  service. 

377.  For  defamation. 

378.  Liability  of  a  principal  to  ex- 

emplary damages  for  acts  of 
his  agents  or  servants. 

379.  Of  a  corporation   for   acts  of 

agents. 

380.  For  acts  of  servants. 

381.  Of  an  officer. 

383.  Of  one  of  two  joint  defendants. 


§  383.  Mitigation    or    aggravation  — 
Want  of  malice. 

384.  Provocation. 

385.  Pecuniary  condition  of  defend- 

ant. 

386.  Exemplary  damages  for  injuries 

which  are  crimes. 

387.  Relations  of  court  and  jury  in 

awarding  exemplary  damages. 

388.  Power  of  jury  over  amount  of 

exemplary  damages. 


CHAPTER  Xn. 


Liquidated  Damages, 


Page  549 


§  389.  Amount  of  damages  stipulated 
by  the  parties. 

390.  Debt  on  bond. 

391.  Damages,  within  the  penalty. 

392.  Assignment  of  breaches. 

393.  Only  the  plaintiff's  actual  loss 

recoverable  under  the   pen- 
alty. 

394.  Liquidated  damages  and   pen- 

alty. 

395.  Classification  of  the  subject. 

396.  General  observations. 

397.  Early  English  cases. 

398.  Leading  cases — Astley  v.  Wel- 

don. 

399.  Kemble  ».  Farren. 

400.  Early  New  York  cases. 

401.  Dakin  ®.  Williams. 
403.  Tayloe  v.  Sandiford. 

403.  Streeper  «.  Williams. 

404.  Bagley  v.  Peddie. 

405.  General  rule. 

406.  Intent  of  the  parties. 

407.  The  liquidation  must  be  reason- 

able. 

408.  Language  not  conclusive — Rule 

in  case  of  doubt. 

409.  Rules  of  interpretation. 

410.  Penal  sum  collateral  to  object  of 

contract. 


3  411.  Stipulated  sum  for  non-payment 
of  smaller  sum. 
413.  Stipulated  sum  not  proportioned 
to  injury. 

413.  One  sum  stipulated  for  breach 

of  contract  securing  several 
things. 

414.  Deposit  to  be  forfeited  on  de- 

fault. 

415.  Contracts  performed  in  part. 

416.  Stipulated  sum  in  liquidation  of 

uncertain  damage. 

417.  Breach  of  contract  of  sale. 

418.  Of  agreement  not  to  carry  on 

business. 

419.  For  delay  in    completing  per- 

formance. 

430.  Stipulations  to  evade  the  usury 

laws. 

431.  Alternative  contracts — Rule  of 

beneficial  alternative. 

423.  Deverell  v.  Burnell. 

433.  Ordinary  rule. 

434.  General    conclusions  as   to   al- 

ternative contracts. 

435.  Stipulation  of  damages  strictly 

construed. 

436.  Consequences     of     liquidating 

damages. 

437.  Civil  law. 


TABLE  OF  CASES  IN  VOL.  I 

[Rrferencea  a/re  to  pages. 1 


A, 

Abbott  V.  Gatch,  270. 
Aber  v.  Bratton,  268,  289. 
Academy  of  Music  «.  Hackett,  270. 
Ackerman  v.  Emott,  497. 
Ackerson  «.  Erie  Ry.  Co.,  539. 
Acton  V.  Peirce,  553. 
Adam  «.  Gomila,  350,  351. 
Adams  v.  Adams,  498. 

®.  Cordis,  339,  408. 
v.  Fort  Plain  Bank,  458. 
V.  Hastings  &  D.  R.R.  Co.,  132. 
V.  O'Connor,  101. 
J).  Palmer,  436. 
V.  Smith,  68. 
V.  Way,  475. 
Adams  Express  Co.  v.  Egbert,  293. 

«.  Milton,  459. 
Adamson  «.  Petersen,  110. 
Addams  ®.  Heflernan,  498. 
Aiken  v.  Leathers,  351. 
Aikin  v.  Peay,  445. 
Alabama  v.  Lott,  440. 
Alabama  G.  S.  R.R.  Co. «.  McAlpine, 
463. 
t,  Yarbrough, 
260. 
Alabama  I.  "W.  v.  Hurley,  390. 
Albert  «.  Lindau,  103,  112. 
Albright «.  Pickle,  448. 
Aldrich  r>.  Dunham,  431 . 
Aldridge  v.  McClelland,  443. 
Alexander  v.  Blodgett,  55. 
v.  Helber,  79. 
V.  Huraber,  66,  131. 
«.  Jacoby,  183,  364,  351. 
AUaback  v.  Utt,  533. 
Allaire  «.  Whitney,  144. 
Allegheny  v.  Campbell,  463. 
Allen  ».  Baker,  59. 
/».  Blunt,  348. 
V.  Brazier,  603.  608. 
®.  Brown,  352. 
«.  Butman,  110. 


Allender  «.  Chicago,  R.  I.  &  P.  R.R. 

Co.,  315,  338. 
Allis  n.  McLean,  370,  376. 

®.  Nininger,  353. 
Allison  B.  Chandler,  346,  264,  365,  373, 
542. 
V.  Chicago  &  N.  W.  Ry.  Co., 

160. 
v.  Juniata  County,  487. 
v.  McCune,  38. 
AUoway  ».  Nashville,  464. 
Alsager  v.  Close,  381. 
Alt  V.  Weidenberg,  101. 
Althorf  «.  Wolfe,  91. 
Amee  v.  Wilson,  453. 
Amer  v.  Longstreth,  543,  546. 
American  Bible  Society  ®.  Wells,  488. 
American  Ex.  Co.  «.  Parsons,  380. 
Ames  V.  Hilton,  527,  532. 
Amiable  Nancy,  The,  358,  511,  536. 
Amory  v.  McGregor,  433. 
Amos  V.  Oakley,  136. 
Amoskeag  Mfg.  Co.  ®.  Goodale,  139, 

143. 
Amy  v.  iDubuque,  499. 
Ancrum  v.  Slone,  469. 
Anders  v.  Ellis,  136. 
Anderson,  Succession  of,  488. 
Anderson  ®.  Northeastern  Ry.  Co.,  318. 
Anderson,  L.  &  S.  L.  R.R.  Co.  «.  Ker- 

nodle,  132. 
Anderton  i).  Arrowsmith,  490. 
Andrews  v.  Clark,  443. 

V.  Durant,  434,  461. 
V.  Glenville  Woolen  Co.,  351. 
V.  Keeler,  476. 
Angier  «.  Taunton  Paper  Mfg.  Co.,  110. 
Anketel  v.  Converse,  498. 
Anna  Maria,  The,  352. 
Anonymous,  19  H.  6,  135. 
Hard.,  419. 
Minor,  71. 
6  Mod.,  553, 
Ansley  «.  Peters,  459. 
Apollon,  The,  347. 

(xxiii) 


XXIV 


TABLE    OF    CASES. 


Beferences 
anio  pages. 


Applegate  «.  Jacoby,  599. 
Arcambel  «.  Wiseman,  347,  348. 
Arents  «.  Commonwealth,  499. 
Armfield  u.  Marsh,  300. 
Armory  «.  Delamirie,  101. 
Armstrong  ®.  Percy,  175. 

«.  Pierson,  341. 
Amd  «.  Amling,  101. 
Arnott  ®.  Redfern,  420,  433,  434. 
Arthur  ».  Chicago,  R.  I.  &  P.  Ry.  Co., 
463. 
».  Wheeler  &  W.  M.  Co.,  468. 
Ashburner  «.  Balchen,  313. 
Ashby  «.  White,  38,  33,  135. 
Ashe  «.  De  Rossett,  316. 

®.  Harris  County,  487. 
Ashford  t.  Thornton,  16. 
Ashhurst «.  Field,  447. 
Ashley  «.  Warner,  131. 
Ashuelot  R.R.  Co.  ».  Elliott,  444,  475. 
Astley  V.  Weldon,  564,  566,  567,  568, 

573,  574,  575. 
Atchison,  T.  &  8.  F.  E.R.  Co.  v.  Gab- 

bert,  431. 
Atkins  «.  Gladwish,  341. 

®.  Moore,  100,  103. 
Atkinson  ®.  Atlantic  &  P.  R.R.  Co., 
431. 
®.  Beard,  94,  97. 
B.  He-wett,  95. 
Atkyns  e.  Kinnier,  600. 
Atlanta  &  W.  P.  Ry.  Co.  v.  Johnson, 

51,  131. 
Atlanta  C.  S.  O.  Mills  v.  CofEey,  331. 
Atlantic  &G.  W.  Ry.  Co.  «.  Dunn,  534, 
538. 
n.  Koblentz, 
464. 
Atlantic  N.  Bank  v.  Harris,  443. 
Atlantic  P.  Co.  v.  Grafflin,  449. 
Atlas,  The,  30. 
Attersoll  «.  Stevens,  93,  94. 
Auchmuty  «.  Ham,  513. 
Auger  ».  Cook,  293. 
Aurentz  v.  Porter,  398. 
Aurora  «.  West,  499. 
Austin  «.  Wilson,  544. 
Avan  «.  Prey,  369. 
Avenell  «.  Croker,  141. 
Averill  C.  &  O.  Co.  ».  Verner,  496. 
Ayer  v.  Bartlett,  111. 
V.  Tilden,  477. 
Ayers  t.  Metcalf,  435. 
Aylet «.  Dodd,  561. 
Ayres  «.  Pease,  573. 

B. 

Badgett  v.  Broughton,  469 
Bagby  v.  Harris,  136 


Baggett  «.  Beard,  351. 
Bagley  v.  Cleveland  R.  M.  Co.,  331. 
«.  Peddic,  578. 
v.  Smith.  281,  383. 
Bailey  v.  Damon,  313. 

».  Godfrey,  113,  113. 
BaUlie  v.  Bryson,  518. 
Bainbridge  v.  Wilcocks,  454,  493. 
Baird  ».  Hall,  411. 

«.  ToUiver,  587,  611. 
Baker's  Appeal,  403. 
Baker  «.  Drake,  30,  316. 
V.  Hart,  101,  103. 
®.  Manhattan  Ry.  Co.,  360. 
».  Wheeler,  461. 
Baldwin  ».  Bradley,  106. 
».  Cole,  77. 
■B.  Porter,  79. 

t>.  U.  S.  Tel.   Co.,  310,  334, 
343,  303. 
Ball  «.  Britton,  383. 
«.  Liney,  83. 
B.  Nye,  38. 
Ballard  v.  Shutt,  449. 
Ballou  u.  Farnum,  63,  66. 
Baltimore,  The,  30,  348. 
Baltimore  &  L.  T.  Co.  ®.  Cassell,  160. 
Baltimore  &,  O.  R.R.  Co. «.  Blocher,588. 
«.  Carr,  53. 
«.  Pumphrey, 

318. 
B.Thompson, 
189. 
Baltimore  &  P.  Ry.  Co.  ■».  Fifth  Bap- 
tist Church,  54. 
Baltimore  &  Y.  Turnpike  ».  Boone, 

534,  538,  533,  538. 
Baltimore  C.  P.  Ry.  Co.  ■».  Kemp,  160. 
®.  Sewell,  485. 
Baltimore  Mar.  Ins.  Co.  «.  Dalrymple, 

106,  109. 
Bangor  &  P.  R.R.  Co.  ■».  McComb, 

464. 
Bangs  ».  Bailey,  441. 

v.  Mcintosh,  441. 
Bank  of  Upper  Canada  ».  Widmer, 

388. 
Banks  ».  McClellan,  498. 
Bann  ».  Dalzell,  423. 
Bannon  v.  Baltimore  &  O.  R.R.  Co., 

530. 
Barbee  ».  Reese,  160. 
Barbour  v.  Stephenson,  69. 
Barbour  County  «.  Horn,  131. 
Barclay  ®.  Kennedy,  497. 

®.  Russ,  4i3. 
Bardwell  v.  Jamaica,  315,  837. 
Bare  v.  Hoffman,  139,  470. 
Barker  ».  Green,  136. 
Barlow  v.  Lowder,  136. 


Beferencea 
are  to  pages. 


TABLE    OF    CASES. 


XXV 


Barnard  v.  Bartholomew,  450,  453. 

«.  Poor,  384,  341,  520. 
Barnes  v.  Campbell,  68. 

v.  Martin,  71. 
Barnett  «.  Luther,  153. 
Barney  v.  Dewey,  32. 
Barnum  ii.  Vandusen,  189. 
Barr  v.  Haseldon,444. 
«.  Moore,  535,  545. 
®.  Stevens,  43. 
Barrelett  ®.  Bellgard,  76. 
Barrlck  v.  Schiilerdecker,  130. 
Barringer  v.  King,  493. 
Barron  v.  Momson,  483. 

V.  MuUin,  386. 
Barry  v.  Bennett,  110. 

V.  Harris,  599. 
Bartells  v.  Redtield,  490. 
Bartholomew  v.  Bentley,  82. 
Bartlett  «.  Kidder,  104,  114. 
Barton  ®.  Glover,  601. 
Bartsh  v.  Atwater,  395. 
Bass  ®.   Chicago  &  N.  W.  Ry.   Co., 

530,  587,  539. 
Bassett  ®.  Kinney,  444. 

V.  Salisbury  Mfg.  Co.,  37,  138. 
Basye  v.  Ambrose,  592. 
Bates  «.  Callender,  524,  533. 
«.  Clark,  76. 
■».  Courtwright,  82. 
Batterson  ».  Chicago  &  G.  T.  Ry.  Co., 

68. 
Battey  v.  Holbrook,  556. 
Battishill  «.  Reed,  99. 
Battley  ®.  Faulkner,  117. 
Bauer  v.  Gottmanhauser,  540. 
Baxendale*.  London,  C.  &D.  Ry.  Co., 

349,  359,  361. 
Baxter  «.  Taylor,  98. 

V.  Winooski  Turnpike  Co.,  43. 
Baylis  v.  Fisher,  76. 
Beach  v.  Grain,  125. 

V.  Hancock,  55. 
Beale  ®.  Hayes,  592. 
Beall  «.  Silver,  483. 
Beals  V.  Guernsey,  432. 
Bean  «.  Chapman,  491. 
Beard  v.  Delaney,  586. 
Bearden  «.  Smith,  587. 
Beardmore  v.  Carrington,  505. 
Boardslee  v.  Horton,  446. 
Beardsley  v.  Swann,  51,  331. 
Bearss  v.  Preston,  113. 
Beasley  ®.  "Western  U.  Tel.  Co.,  60. 
Beatty  ®.  Oille,  155. 
Beaumont ».  Greathead,  147. 
Beaver  County  v.  Armstrong,  499. 
Beck  «.  Thompson,  521. 
Becker  «.  Dunham,  112. 

«.  Dupree,  526,  536. 


Beckett  «.  Grand  T.  Ry.  Co.,  91. 

Beckham  v.  Drake,  569,  591. 

Beckman  v.  Skaggs,  345. 

Beebe  «.  Newark,  465 

Beecher  «.  Derby  Bridge  Co. ,  344,  523. 

Beers  v.  Board  of  Health,  333. 

®.  Reynolds,  450. 
Belden  v.  Perkins,  106. 
Belknap  v.  B.  &.  M.  R.R.  Co.,  538, 

544. 
Bell  «.  Logan,  433. 

B.  Midland  Ry.  Co.,  533. 
«.  Truit,  611. 
Belloc  v.  Davis,  398. 
Belt  V.  Worthington,  104. 
Bender  v.  Fromberger,  49. 
Benjamin  «.  Stremple,  108. 
Benners  v.  Clemens,  405,  406. 
Bennett  v.  Beam,  75. 
».  Buchan,  31. 
V.  Gibbons,  343,  533. 
«.  Lockwood,  331. 
V.  Smith,  541. 
Benson  v.  Atwood,  335. 

D.  Chicago  &  A.  R.R.  Co.,  137. 
«.  Gibson,  501. 

V.  Maiden  &  M.  G.  L.  Co.,  819. 
«.  Waukesha,  155. 
Benion  v.  Fay,  275,  287.  308. 
Bergheim  v.  Blaenavon  Iron  &  Steel 

Co.,  604, 
Bergmann  v.  Jones,  534,  585. 
Bergundthal  v.  Bailey,  453. 
Berrlnkott «.  Traphagen,  598. 
Berry  v.  Dwinel,  368. 
V.  Kelly,  115. 
®.  Van  tries,  534. 
V.  Wisdom,  592. 
Betts  «.  Burch,  591. 
Beveridge  v.  Park  Commissioners,  465. 
Bevier  ®.  Delaware  &  H.  C.  Co.,  315, 

337. 
Beyersdorf  v.  Sump,  83. 
Beymer  v.  McBride,  305,  306. 
Bickell  V.  Colton,  466. 
Bickford  v.  Rich,  493. 
Bicknall «.  Waterman,  466. 
Bierbach  v.  Goodyear  R.  Co.,  263. 
Biering  «.  First  Nat.  Bank,  528. 
Bieme  v.  Brown,  413. 
Bigaouette  v.  Paulet,  70. 
Bigelow  v.  Am.  F.  P.  Mfg.  Co  ,  313. 
V.  Doolittle,  463. 
v.  Hartford  Bridge  Co.,  43. 
Biggins  V.  Goode,  83. 
Bigler  ».  Waller,  491. 
Bignall  v.  Gould,  586,  589. 
Bigony  v.  Tyson,  586. 
Binford  ».  Young,  534,  535. 
Bingham  v.  Richardson,  595. 


XXVI 


TABLE    OF   CASES. 


are  to  pages. 


Bingham  ».  "Walla  Walla,  268. 
Birchard  v.  Booth,  121,  644. 
Bird  «.  W.  &  M.  R.R.  Co.,  531. 
Birdsall  v.  Twenty-third  St.  By.  Co., 

597. 
Bishop  41.  Church,  552. 
Bispham  ».  Pollock,  436. 
Bissell  ®.  Hopkins,  432,  487. 
Bixby  V.  Dunlap,  521,  534. 
Black  V.  Camden  &  A.  R.R.  &  Tr.  Co., 
468. 

■e.  C.  R.R.  Co.,  535. 

11.  Goodman,  446. 

v.  Reybold,  450. 
Blackie  «.  Cooney,  463. 
Blackwood  «.  Leman,  449. 
Blair  «.  Reading,  351. 
Blake  «.  Lord,  159. 

11.  Midland  Ry.  Co.,  91. 
Blakeley  v.  Jacobson,  449,  452. 
Blanchard  v.  Baker,  139. 

».  Ely,  200,  205,  374,  275. 
Blanchard's  G.  T.  F.  v.  Warner,  348. 
Blaney  «.  Hendricks,  422,  454. 
Bledsoe  v.  Nixon.  498,  500. 
Blodgett  «.  Brattieboro,  526. 
Blofeld  V.  Payne,  141. 
Bloomington  v.  Chamberlain,  261. 
Blum  V.  Merchant,  290. 
Blumhardt  v.  Rohr,  68. 
Blunt  V.  McCormlck,  139. 
Blydenburg  v.  Welsh,  367. 
Blytbe  v.  Tompkins,  363. 
Board  of  Justices  ».  Fennimore,  446. 
Boardman  «.  Goldsmith,  546. 
Boddam  v.  Riley,  420. 
Boetcher  «.  Staples,  545. 
Bohm  V.  Dunphy,  524. 
Bohn  ».  Cleaver,  288. 
Bolivar  Mfg.  Co.   v.   Neponset   Mfg. 

Co.,  139. 
Boiling  V.  Lersner,  371,  448. 

V.  Tate,  315.  ' 
Bonaf  ous  v.  Rybot,  553. 
Bond  «.  Greenwald,  402. 

».  Hilton,  136. 
Bonesteel  v.  Bonesteel,  350,  363,  541. 
Booth  D.  Ableman,  483. 

v.  Powers,  383. 

v.  Spuyten  Duyvil  R.  M.   Co., 
220,  233,  234. 
Borchardt  «.  Wausau  Boom  Co.,  201. 
Borden  Mining  Co.  v.  Barry,  325. 
Borders  v.  Barber,  476. 
Bordley  v.  Eden,  491. 
Borland  v.  Barrett,  524,  538,  532,  547. 
Borradaile  «.  Brunton,  193. 
Borries  v.  Hutchinson,   225,   228,   229, 

316. 
Boston  Mfg.  Co.  v.  Fiske,  348,  510. 


Bostwlck  «.  Losey,  273. 
Boucher  v.  Shewan,  890; 
Boulard  v.  Calhoun^  536. 
Boutell  ®.  Wame,  108. 
Bouton  v.  Reed,  377. 
Bovee  v.  Danville,  57,  66,  180. 
Bowas  11.  Pioneer  Tow  Line,  159. 
Bowden  «.  Bailes,  524,  527,  535. 
Bowen  b.  Clark,  398. 
V.  Darby,  402. 
Bower  «.  Hill,  142. 
Bowers  ».  Thomas,  411. 
Bowler  v.  Lane,  530,  538. 
Bowman  «.  Teall,  76. 

■B.  Wilson,  492. 
Boyce  v.  Bayliffe,  320. 
«.  Grundy,  486. 
Boyd  «.  Brown,  253. 
V.  Fitt,  184. 
V.  Gilchrist,  430. 
Boyden  v.  Moore,  109,  112. 
Boydston  v.  Morris,  106,  112. 
Boyle  «.  Case,  51,  66,  67. 
Boys  V.  Ancell,  569,  591. 
Bradburn  t>.  Great  Western  Ky.  Co., 

91. 
Bradlaugh  v.  Edwards,  363. 
Bradley  ».  Burkett,  104. 

V.  Cramer,  250. 

V.  Denton,  339. 

V.  Gammelle,  389. 

».  Geiselman,  462. 

».  Morris,  533. 
Bradley  c.  Rea,  189. 
Bradshaw  v.  Buchanan,  546. 
».  Craycraft,  599. 
Brady  v.  Wilcoxsen,  433,  460. 
Brainerd  v.  ChamplainTransp.Co.,  448. 
Brannou  v.  Hursell,  476,  477. 
Brantigham  v.  Fay,  155. 
Brayton®.  Chase,  398. 
Breckinridge  v.  Taylor,  445. 
Bredow  ■».  Mutual  S.  I.,  380. 
Brennan  v.  Clark,  603. 
Brent  i>.  Parker,  197. 
Brentner  ».  Chicago,  M.  &.  S.  P.  Ry. 

Co.,  431. 
Breon  e.  Henkle,  69,  71. 
Brewer  v.  Dew,  532. 

•».  Hastie,  491. 
Brewster  v.  Edgerly,  593. 

v.  Wakefield,  478. 
Bridgere.  Asheville  &  S.  R.R.  Co.,  260. 
Bridgers  v.  Dill,  179. 
Bridges  V.  Hyatt,  603. 

•0.  Lanham,  277. 

V.  Reynolds,  402. 

V.  Stickney,  221. 
Brierly  «.  Kendall,  112. 
Biiggs  V.  B.  &  L.  R.R.  Co.,  106,  109. 


Beferences 
are  to  pages. 


TABLE   OF   CASES. 


xxvu 


Briggs  V.  Brushaber,  469. 

®.  Milburn,  80,  533. 

B.  New  York  C.  &  H.  R.R.  Co., 
90. 

V.  Winsmith,  476. 
Brigham  v.  Carlisle,  256. 

®.  Vanbuskirk,  483. 
Bright  V.  Rowland,  592. 
Brightwell  V.  Hoover,  412. 
Brignoli  V.  Chicago  &  G.  E.  Ry.  Co., 

52,  66,  259,  321. 
Bringard  v.  Stellwagen,  74,  81. 
Brinker  v.  Leinkaun,  351. 
Brinkerhoff  v.  Olp,  595. 
Briscoe  V.  McElween,  533. 
British  Columbia  8.  M.  Co.  «.  Nettle- 
ship,  222,  237. 
Brizsee  «.  Maybee,  463,  612,  534. 
Broadway  Sav.  Bank  «.  Forbes,  476, 

480. 
Broadwell  v.  Paradice,  102. 
Brock  V.  Gale,  217. 
Brockway  v.  Clark,  590. 
Bronson  v.  Rodes,  399. 
Brooks  ®.  Hubbard,  415. 

V.  Moody,  133. 

«.  Wilcox,  448. 
Broquet  v.  Tripp,  189. 
Brosaoit  «.  Turcotte,  522. 
Broughton  d.  McGrew,  73. 

V.  Mitchell,  484,  489,  498. 
Brewer  e.  Merrill,  86. 
Brown  «.  Allen,  220,  526,  543. 

V.  Beatty,  289. 

V.  Bellows,  589. 

V.  Bowen,  93. 

«.  Calumet  R.  Ry.  Co.,  366. 

V.  Carroll,  110. 

«.  Chicago,  M.  &  S.  P.  Ry.  Co., 
55,  160. 

».  Collins,  36. 

V.  Cummings,  196. 

V.  Emerson,  155. 

®.  Evans,  523,  544,  545. 

V.  Foster,  288. 

D.  Hadley,  287. 

«.  Hardcastle,  475. 

V.  Haynes,  110. 

V.  Hiatts,  491. 

V.  Jones,  351. 

V.  McRae,  96. 

v.  Maulsby,  604. 

®.  Montgomery,  383. 

V.  Perkins,  136. 

V.  Richmond,  146. 

v.  St.  Paul,  M.  &  M.  Ry.  Co., 
374. 

V.  Smith,  289. 

V.  Southwestern  R.R.  Co.,  462. 

V.  Swineford,  516,  519,  544,  545. 


Brown  v.  Taggart,  693. 
V.  Watson,  143. 
V.  Welch,  399. 
Browne  v.  Price,  151. 
V.  Steck,  481. 
Browner  i).  Davis,  136. 
Bruce  v.  Pettengill,  160. 
Bryan  ®.  Acee,  547. 
Buck  V.  Fisher,  448. 
V.  Leach,  380. 
V.  Remsen,  101,  102,  103. 
Buckingham  v.  Orr,  481. 
Buckley  r.  Knapp,  524,  525,  535,  544. 
Bucklin  v.  Beals,  76. 
Buckmaster  v.  Grundy,  445. 
Budd  V.  Multnomah  S.  Ry.  Co.,  107. 
Buffalo  &  H.  T.  Co.  v.  Buffalo,  462. 
Buffalo  B.  W.  Co.  «.  Phillips,  218. 
Buffalo  B.  S.  C.  Co.  •».  Milby,  819. 
Buford  V.  Gould,  469. 
Bull  V.  Griswold,  538. 
Bullard  ®.  Stone,  868. 
Bullock  V.  Ferguson,  493. 
Bundy  ».  Maginess,  524,  532,  545. 
Burcky  v.  Lake,  87. 
Burgess,  in  re,  421. 
Burgess  v.  Alliance  Ins.  Co.,  405. 
Burk  V.  Webb,  101,  106. 
Burkett  «.  Lanata,  548. 
Bum  4).  Morris,  79. 
Bumap  V.  Wight,  186,  188,  322. 
Burnham  v.  Best,  448. 

«.  Jenness,  533. 
Bumhisel  v.  Firman,  478. 
Burns  v.  Anderson,  478. 

V.  Campbell,  536. 
Burr  V.  Burr,  512. 
®.  Todd,  589. 
Burrage  v.  Crump,  585,  588,  610. 
Burridge  v.  Fortescue,  558. 
Burroughs  i).  Richmond  County,  499 
Burrows  v.  Stryker,  485,  498. 

».  Wright,  186. 
Burt  V.  Burt,  102. 
Burton  v.  Hushes,  101. 

«.  Pinkerton,  54,  181. 
Bush  V.  Baldrey,  405. 
Bussy  V.  Donaldson,  28. 
Bustamente  1).  Stewart,  155,  851,  353. 
Butler  V.  Butler,  445. 

«.  Horwitz,  400. 

1).  Kirby,  439. 

«.  Mehrling,  534. 

V.  Mercer,  544. 

1).  Moore,  278. 

V.  Rolfe,  553. 
Butts  «.  Edwards,  141. 
Buzzell ».  Snell,  489. 
Byram  v.  McGuire,  580. 
Byron  v.  Chapin,  95. 


XXVlll 


TABLE   OF   CASES. 


Refertnces 
are  to  pages. 


Cable  ».  Dakin,  534. 

Cadle  ».  Muscatine  W.  E.R.  Co.,  131, 

Cain  D.  Chicago,  R.  I.  &  P.  Ry.  Co., 

132. 
Cairnes«.  Knight,  598. 
Caldwell  ».  Dunklin,  439. 
v.  Murphy,  131. 
«.  New  Jersey  S.  B.  Co.,  580. 
Caledonian  Ry.  Co.  «.  Colt,  230. 
Calhoun  ».  Marshall,  498. 
California  Steam  Nav.  Co.  v.  Wright, 

595   599 
Call  «.  Hagar,  198,  358. 
Callanan  ».  Brown,  384. 

«.  Port  Huron  &  N.  W.  By. 
Co.,  133. 
Callaway  M.  &  M.  Co.  •».  Clark,  289. 
Calton  «.  Bragg,  430,  423. 
Cameron  v.  Cameron,  48. 

V.  Smith,  430,  429. 
v.  Vandegriif,  51. 
V.  Wynch,  111. 
Camp  «.  Bates,  496. 

V.  Camp,  524,  538. 
Campbell  v.  Brown,  271. 

V.  Miltenberger,  804. 

».  Pullman  P.  C.  Co.,  51,  69, 

160. 
«.  Shields,  590. 
«.  Wilson,  405. 
Canda  v.  Wick,  88. 
Candee  «.  Webster,  492. 

41.  Western  U.  T.  Co.,  319. 
Oannel  ».  Buckle,  552. 
Canning  ».  Williamstown,  58. 
Cannon  «.  The  Potomac,  90. 

V.  Western  U.  T.  Co.,  219. 
Canter  v.  American  &  O.  I.  Co.,  347. 
Canton  v.  Smith,  467. 
Capenj).  Crowell,  481. 
Capper,  ex  parte,  591. 
Carl  «.  Granger  Coal  Co.,  150,  155. 

■0.  Sheboygan  &  F.  R.R.  Co.,  133. 
Garland  v.  Cunningham,  187. 
Carlisle  «.  Callahan,  191. 
Carpenter  «.  Barber,  541. 

®.  Cummings,  112. 

«.  Dresser,  74. 

V.  Eastern  Transp.  Co.,  90. 

«.  Easton  &   A.   R.R.   Co., 

465. 
«.  Going,  84. 
V.  Lockhart,  593. 
».  Manhattan  Life  Ins.  Co., 

74. 
«.  Mexican  N.  R.R.  Co.,  51, 
66,  359. 
Carpentier  «.  Atherton,  401. 


Carsten  v.  Northern  P.  Ry.  Co.,  68, 195. 
Carter  ®.  Corley,  590. 
v.  Strom,  593. 
■B.  Towne,  186. 
v.  Wallace,  148. 
Cary  ».  Courtenay,  405,  408. 
Casea.  Hart,  104. 

v.  Hotchkiss,  454. 
V.  Osbom,  450. 
V.  Stevens,  202. 
Cash  ®.  Kennion,  408. 
Cassaday  v.  Trustees  of  Schools,  442. 
Cassidy  v.  Lefevre,  275. 
Casteel  ii.  Walker,  480. 
Caswell  v.  Howard,  101. 
Catherwood  v.  Caslon,  118. 
Catlin  V.  Lyman,  498. 
Cattle  «.  Stockton  Water  Works,  41. 
Caulkins  ».  Gas  Light  Co.,  114. 
Cay^nder  «.  Guild,  494. 
Cease  ».  Cockle,  444,  467. 
Cecil  V.  Hicks,  476,  479. 
Centrals.  U.  P.  R.R.  Co.  v.  Andrews, 

182. 
V.  Nichols, 
877. 
Central  R.R.  Co.  ■».  Sears,  470. 
Central  R.R.  &  B.  Co.  v.  Atlantic  & 

G.  W.  R.R.  Co.,  483. 
Chadwick  v.  Lamb,  106. 
Chaffee  v.  Sherman,  110,  112. 
Chalk  V.  Charlotte,  C.  &  A.  R.R.  Co., 

201. 
Chamberlain  ».  Bagley,  598. 
V.  Brady,  201. 
V.  Parker,  150,  812. 
V.  Porter,  123. 
®.  Shaw,  106,  109. 
«.  Smith,  444. 
Chambers  v.  Frazier,  155. 

«.  Goldwin,  495. 
Champion  «.  Vincent,  143,  533. 
Chandler  ®.  Allison,  264. 
V.  Doulton,  141. 
«.  Jamaica  P.  A.  Co.,  464. 
Chapin  «.  Murphy,  475. 
Chapman  «.  Burt,  446,  447. 

v.  Chicago  &  N.  W.  Ry.  Co., 

463. 
«.  Copeland,  143. 
«.  Kirby,  264,  879. 
V.  Thames  Mfg.  Co.,  138. 
V.  Western  U.  T.  Co.,  60. 
Charles  ®.  Altin,  119. 
Charman,.  ex  pa/rte,  422. 
Charrington  v.  Laing,  594. 
Chase  v.  Allen,  596. 
V.  Bennett,  362. 
V.  New  York  C.  R.R.  Co.,  838. 
V.  Snow,  79,  320. 


Beferences 
are  to  pages. 


TABLE   OF   CASES. 


XXIX 


Chase  v.  Union  Stone  Co.,  450,  452. 
Chatterton  v.  Crotliers,  586,  603. 
Chaude  «.  Shepard,  594. 
Ghauncey  v.  Yeaton,  461. 
Cheddick  v.  Marsh,  565,  573,  599. 
Cheek  ».  Waldrum,  439. 
Cheeshorough  v.  Hunter,  444. 
Chemical  Nat.  Bank  v.  Bailey,  451. 
Cherry  ®.  McCall.  544. 
Chesapeake  &  O.  0.  Co.  «.  Allegany 

County,  863. 
Chesapeake  Bank  «.  Swain,  402. 
Cheshire  Turnpike  Co.  v.  Stevens,  180. 
Chesley  v.  St.  Clair,  101,  106. 

V.  Tompson,  68. 
Chew  v.  Bank  of  Baltirnore,  442. 
Chicago  V.  AUcock,  430. 
».  Barbian,  465. 
«.  Elzeman,  51,  66,  121,  259. 
V.  Huenerbein,  368. 
V.  Jones,  51,  66,  121,  359,  321, 

537 
V.  Kelly,  587. 
V.  Langlass,  51,  66,  359,  321, 

537. 
v.  McDonough,  99. 
«.  McLean,  57. 
V.  People,  487. 
«.  Tebbetts,  431. 
Chicago  &  A.  R.R.  Co.  v.  Flagg,  53, 

67,  68. 
Chicago  &  A.  R.R.  Co.  v.  Springfield 

&  N.  W.  R.R.  Co.,  328. 
Chicago*  A.  RR.  Co.  v.  Wilson,  259, 

321 
Chicago  &  E.  R.R.  Co.  v.  Holland,  51. 
Chicago  &  E.  I.  R.R.  Co.  ■».  Loeb,  181. 
Chicago  &  I.  R.R.  Co.  ».  Baker,  583. 
Chicago  &  N.  W.  Ry.  Co.  v.  Chisholm, 

68. 
«.  Shultz, 

464. 
v.  Williams, 
67. 
Chicago  &  R.  I.  R.R.  Co.  «.  Ward, 

819 
Chicago  C.  Ry.  Co.  v.  Henry,  348. 
Chicago,  R.  I.  &  P.  R.R.  Co.  v.  Carey, 

334. 
Chicago,  St.  L.  &  N.  O.  R.R.  Co.  «. 

Scurr,  530,  546,  547. 
Chicago  W.  D.  Ry.  Co.  ».  Lambert, 

361. 
Chiles  ».  Drake,  502,  545. 
Chilliner  v.  Chilliner,  552. 
Chinery  v.  Viall,  109. 
Ohinnock  d.  Marchioness  of  Ely,  4. 
Chisholm  ®.  Arrington,  403. 
Christ  Church  Hospital  «.  Fuechsel, 
404. 


Christian  v.  Lord  Kennedy,  518. 
Chrj^sler  v.  Renois,  402. 
Cincinnati  v.  Evans,  373. 
Cincinnati  &  C.   A.   L.   R.R.   Co.  v. 

Rodgers,  306.     ' 
Cincinnati,  H.  &  I.  R.R.  Co.  v.  Eaton, 

55 
Citizens'  St.  Ry.  Co.  «.  Steen,  524,  530, 

538. 
City  &  S.  Ry.  Co.  i>.  Findley,  66. 
City  Nat.  Bank  «.  Jeffries,  539,  541. 
Clarence,  The,  289. 
Clark  «.  Bales,  534,  533. 

V.  Barlow,  448. 

D.  Bell,  104. 

1).  Child,  494. 

».  Clark,  453. 

V.  Dales,  467. 

V.  Dearborn,  106. 

«.  Dutton,  439. 

V.  Huber,  100. 

«.  Iowa  City,  499. 

D.  Kay,  604. 

V.  Lamoreux,  106,  112. 

«.  Manchester,  66. 

V.  Marsiglia,  307. 

«.  Miller,  330,  469. 

«.  Moody,  446. 

«.  Moore,  221,  338. 

V.  Mumford,  353. 

V.  Nevada  L.  &  M.  Co.,  401. 

V.  Newsam,  539. 

D.  Pinney,  415. 

V.  Russell,  318. 

V.  Warden,  445. 

V.  Whitaker,  461. 
Clarke  v.  Day,  493. 
•».  Scott,  149. 
Clay  County  «.    Chickasaw   County, 

487. 
Clegg  V.  Dearden,  129. 
Cleghorn  v.-  New  York  C.   &  H.  R. 

R.R.  Co.,  536,  537. 
Clement  ».  Cash,  593. 
V.  Spear,  470. 
Clements  d.  Schuylkill  R.  E.  S.  R.R. 

Co.,  604. 
Clevenger  v.  Dunaway,  583 
Clifford  V.  Dam,  359. 

V.  Richardson,  333. 
Clissold  V.  Machell,  534,  533,  539. 
Close  V.  Fields,  433.  446,  447. 
Cloud  V.  Smith,  453. 
Clough  V.  Unity,  465. 
Clowes  ».  Hawley,  887. 
Clyde,  The,  30. 
Cobb  V.  111.  C.  R.R.  Co.,  333. 
D.  People,  531. 

V.  Smith,  137. 
Cochran  v.  Miller,  530. 


XXX 


TABLE    OF   CASES. 


References 
are  to  pages. 


Cochrane  ».  Quackenbush,  188. 

®.  Tuttle,  541. 
Cockbum  V.  Ashland  Lumber  Co.,  369. 
V.  MuskokaM.  &L.Co.,  293. 
Cockerell  v.  Barber,  395. 
Coe  «.  Peacock,  136. 
Coffin  V.  The  Osceola,  88. 
Cogwell  V.  Lyons,  483. 
Cohen  v.  Eureka  &  P.  R.R.  Co.,    53, 
259  321 
V.  St.  Louis,  P.  S.  &  W.  R.R. 
Co.,  464. 
Colby  v.  Wiscasset,  249. 
Colchester,  Mayor  of,  v.  Brooke,  44. 
Colcord  V.  McDonald,  110. 
Cole  «.  Ross,  416. 

V.  Tucker,  538,  545. 
Coleman  v.  Allen,  534,  532. 

V.  New  York  &  N.  H.  R.R. 
Co.,  160. 
Coles  V.  Kelsey,  483. 
Collard  v.  Southeastern  Ry.  Co.,  194, 

209  377 
Collen  i.  Wright,  355. 
Collins  v.  Blantern,  44. 
V.  Collins,  552. 
V.  Council  Bluffs,  337,  547. 
«.  Dodge,  261. 
«.  Mack,  59. 
Colrick  V.  Swinburne,  273. 
Colt  V.  Owens,  136. 
Colton  «.  Dunham,  404. 

V.  Onderdonk,  39. 
Columbus  &  W.  Ry.  Co.  v.  Plournoy, 

194. 
Colwell  V.  Foulks,  584,  589,  603. 

V.  Lawrence,  594. 
Commercial  Bank  «.  Jones,  461. 
Comminge  v.  Stevenson,  128. 
Commonwealth  v.  Boston  &  M.  R.R. 
Co.,  485. 
V.  Crevor,  443. 
v.  Porter,  20. 
Compton  r>.  Martin,  102,  103. 
Comstock  V.  Hier,  383. 

v.  New  York  C.   &  H.  R. 

R.R.  Co.,  317,  319. 
«.  Smith,  405. 
Confederate  Note  Case,  411,  412. 
Conlon  V.  McGraw,  127. 
Conn  V.  Pennsylvania,  491. 
Connah  «.  Hale,  77. 
Connecticut «.  Howarth,  497. 
».  Jackson,  495. 
Connecticut  Mut.  L.  Ins.  Co.  «.  C.  C. 

&  C.  R.R.  Co.,  499. 
Connor  v.  Hillier,  384. 
Conroy  v.  Flint,  76,  137. 
Conyers  v.  Magrath,  453. 
Cook  V.  Ellis,  513,  533,  545. 


Cook  t.  Pinch,  594. 

V.  Fowler,  427,  475. 

v.  Garza,  533. 

«.  Hartle,  77. 

«.  Loomis,  76. 

v.  Sanders,  84. 

®.  Soule,  311. 

«.  South  Park  Commrs.,  486. 
Cooke  v.  Davis,  400. 

V.  England,  126. 
V.  Farinholt,  448. 
V.  Wise,  448. 
Coolidge  V.  Neat,  59. 
Coombe  ».  Sansom,  889. 
Cooper  v.  Mullins,  51,  66. 
V.  Randall,  97,  98. 
«.  Young,  217. 
Coopers  v.  Wolf,  136. 
Copelandv.  Cimningham,  851. 
Coppin  V.  Braithwaite,  59,  67. 
Corcoran  v.  Doll,  484,  485. 
V.  Harran,  545. 
V.  Judson,  851. 
Corgan  v.  Frew,  484. 
Corrigan  «.  Trenton  D.  F.  Co.,  498. 
Corwin  v.  Walton,  545. 
Cory  V.  Silcox,  95,  143. 

s.  Thames  I.  W.  &  S.   B.   Co., 
207,  214,  224,  267,  375. 
Coryell  v.  Colbaugh,  508. 
Costigan  ».  Mohawk  &  H.  R.R.  Co., 

307,  308,  336. 
Cotheal  v.  Talmage,  592. 
Cothran  b.  Hanover  Nat.  Bank,  380. 
Cotterill  v.  Hobby,  142. 
Cotton  Press  Co.  ■».  Bradley,  530. 
Courtois  ®.  Carpentier,  494. 
Courtoy  v.  Dozier,  56. 
Covert's.  Gray,  128. 
Cowden  v.  Lockridge,  343,  345. 
Cowdrey  v.  Carpenter,  597. 
Coweta  F.  M.  Co.  v.  Rogers,  267. 
Cowley  «.  Davidson,  136,  463. 
Cox  B.  Crumley,  534,  533. 

V.  McLaughlin,  459. 

V.  Marlatt,  489. 

«.  Sprigg,  148. 

V.  Vanderkleed,  67. 
Crabbs  v.  Koontz,  367. 
Crabtree  v.  Clapham,  115. 
V.  Randall,  443. 
Crafts  V.  Wilkinson,  483. 
Craig  V.  Cook,  533. 

«.  Dillon,  595. 

V.  McHenry,  107. 
Grain  «.  Petrie,  176. 
Craker  v.  Chicago  &  N.  W.  Ry.  Co., 

69, 520,  537,  539. 
Cram  «.  Bailey,  110. 
Cramer  «.  Lepper,  498. 


are  to  pages. 


TABLE   OF   CASES. 


XXXI 


Crane  v.  Dygert,  443. 
V.  Peer,  612. 
V.  Thayer,  443. 
Crank «.  Forty-second  St.  M.  &  8.  N. 

A.  Ry.  Co.,  131. 
Crater  v.  Binnineer,  179. 
Craven  v.  Tickell,  444. 
Crawford  v.  Beard,  406. 
V.  Parsons,  273. 
V.  Simon  ton,  483. 
Cressey  v.  Parks,  83. 
Crete  ®.  Childs,  315. 
Cretin  «.  Levy,  351. 
Criner  v.  Pikes,  105. 
Crisdee  v.  Bolton,  587,  599. 
Crittenden  v.  Posey,  469. 
Crockford  v.  Winter,  421. 
Cromwell  ®.  County  of  Sac,  478. 
Crone  v.  Dawson,  493. 
Crooker  v.  Bragg,  189. 
Cropper  v.  Nelson,  408. 
Crosby  v.  Mason,  451. 

V.  Otis,  454. 
Crouch  V.  London  &  N.  "W.  By.  Co., 

101. 
Crounse  ».  Syracuse,  C.  &  N.  Y.  R.R. 

Co.,  351,  353. 
Crow  ».  State,  433. 
Cruts  v.  Wray,  104. 
Crux  V.  Aldred,  603. 
Cuddy  1).  Major,  217. 
Culver  1!.  Hill,  311. 
Cumberland  &  O.  C.  Co.  v.  Hitchings, 

129. 
Cumberland  C.  &  I.  Co.  v.  Tilghman, 

103. 
Cuming  v.  B.  C.  R.R.  Co.,  121. 
Cummings  «.  Burleson,  350,  352. 
V.  Dudley,  415. 
®.  Howard,  475. 
Cunningham  «.  E.  &  T.  H.  R.R.  Co., 

90. 
Curd  V.  Letcher,  492. 
Currie  ®.  White,  467. 
Currier  v.  Davis,  403. 
v..  Swan,  543. 
Curry  v.  Larer,  590. 
Curtis  «.  Brewer,  603. 

v.  Innerarity,  439. 
V.  Rochester  &  S.  R.R.  Co.,  131. 
V.  Smith,  198. 
«.  Ward,  82. 
Curtiss  V.  Hoyt,  532. 
Gushing  v.  Drew,  599. 

«.  Seymour,  264,  287. 
«.  Wells,  403. 
Custis  V.  Ad  kins,  440. 
Cutler  V.  Smith,  527,  532,  547. 
Cutter  V.  Waddingham,  100. 
Cutting  V.  Grand  T.  Ry.  Co.,  194. 


D. 

Dahill  V.  Booker.  112. 
Dailey  v.  Crowley,  76,  78. 

V.  Dismal   Swamp  Canal    Co., 
127. 

V.  Grimes,  114. 
Daily  «.  Litchfield,  592. 
Dakin  v.  Williams.  573,  576,  599. 
Dallam  «.  Fitler,  80. 
Dalton  v.  Beers,  844,  523,  524,  533,  540. 

V.  Bowker,  353. 
Daly  V.  Maitland,  585,  597. 

V.  Van  Benthuysen,  534,  535. 
Dana  v.  Fiedler,  434,  467. 
Danforth  «.  Williams,  481. 
Daniel  v.  Gibson,  485. 

V.  Western  U.  T.  Co.,  319. 
Daniell  v.  Sinclair,  495. 
Daniels  v.  Ballantme,  201,  216. 
V.  Brown,  100. 
V.  Ward,  475,  481. 
Darling  v.  Tegler,  103. 
Dart «.  Laimber,  383. 
Davenport  v.  Wells,  416, 
David  V.  Bradley,  104. 
Davidson  v.  Gunsolly,  101,  103. 
Davies  v.  Jenkins,  33,  50. 

V.  Penton,  587,  591. 
Davis  V.  Cincinnati,  H.  &  D.  R.R.  Co., 
376. 

V.  Cushing,  343. 

«.  Fish,  396. 

v.  Freeman,  604. 

V.  Gardiner,  71. 

D.  Greeley,  418,  489. 

«.  Hendrie,  481. 

«.  Kendall,  144. 

v.  Nest,  390. 

®.  Rider,  481. 

V.  Rosedale  S.  Ry.  Co.,  353. 

V.  Smith,  436,  452,  497. 

•B.  Smyth,  425. 

V.  Talcott,  376. 

V.  Walker,  453. 
Dawes  «.  Winship,  469. 
Day  V.  Holland,  525,  532. 
V.  Lockwood,  451. 
■B.  New  York  C.  R.R.  Co.,  459. 
V.  Woodworth,  346.  514,  533. 
Deal  V.  Osborne,  112,  113; 
Dean  v.  Blackwell,  533. 

V.  Chicaso  &  N.  W.  Ry.  Co.,  463. 

«.  RitlerT  318. 

«.  White,  199. 

«.  Williams,  496,  497. 
De  Bernales  v.  Fuller,  421,  423. 
Deck  V.  Feld,  384. 
Decker  v.  Matthews,  380. 
Decorah  Woolen  Mill  Co.  ■».  Greer,  315. 


XXXll 


TABLE    OF   CASES. 


are  to  pages. 


De  Costa  v.  Mass.  F.  W.  &  M.  Co.,  248. 

De  Goudouin  «.  Lewis,  391. 

De  Groff  v.   American  Linen  Thread 
*         Co    595 

De  Havhland  ».  Bowerbank,  421,  422. 

Delano  v.  Curtis,  76. 

Delanj  v.  Hill,  384. 

De  Lavallette  v.  Wendt,  484,  448. 

Delaware  &  H.  C.  Co.  «.  Torrey,  139. 

Delaware,  L.  &  W.  R.R.  Co.  v.  Burson, 
465. 

Delegal  v.  Naylor,  381,  408. 

Delves  i>.  Wyer,  503. 

De  May  v.  Roberts,  69. 

Deming  v.  Grand  T.  R.R.  Co.,  237. 

Denison  ».  Ford,  272. 

Dennery  v.  Bisa,  264. 

Dennis  v.  Barber,  534. 

11.  Cummins,  569,  585,  599. 
V.  Maxfield,  282. 
«.  Stoughton,  184. 

Dennison  v.  Lee,  448. 

Denniston  ii.  Imbrie,  491,  497. 

Denny  v.  New  York  C.  R.R.  Co.,  216. 

Densmore  v.  Mathews,  110. 

Dent  v.  Davison,  136. 
».  Dunn,  431. 

Denver  &  R.  G.  Ry.  Co.  v.  Harris,  523. 

Denver  B.  &  M.  Co.  «.  McAllister,  498. 

Denver  C.  I.  &  W.  Co.  v.  Middaugh, 
127. 

Denver,  S.  P.  &  P.  R.R.  Co.  •».  Con- 
way, 430. 

Denver,  S.  P.  &  P.  R.R.  Co.  ■».  Frame, 
375. 

Derry«.  Derry,  152. 
«.  Plitner,  192. 

De  S.  «.  de  S.,  55. 

Deslottes  ®.  Baltimore  &  O.  T.  Co.,  219. 

De  Steiger  ®.  Hannibal  &  S.  J.  R.R. 
Co.,  431,  462. 

Devaughn  ».  Heath,  532,  547. 

Devendorf  ®.  Wert,  138. 

Devereaux  «.  Burgwin,  482. 

Deverill  v.  Bumell,  607. 

Devine  ®.  Edwards,  431,  447. 

Devlin's  Estate,  440. 

Devlin  «.  Mayor,  211,  220. 

Dewing  v.  Sears,  401. 

Dewitt «.  Morris,  76. 

Dexter  ».  Arnold,  453. 
V.  Spear,  28. 

Deyo  V.  Van  Valkenburgh,  143. 
V.  Waggoner,  187. 

Dibble  v.  Morris,  344,  533,  524,  527,  528, 
583. 

Dickenson  v.  Gould,  453. 

Dickey  ».  Weston,  130. 

Dickinson  v.  Talmage,  325. 

Dickson  v.  Surginer,  436. 


Dilworth  u.  McKelvy,  103. 
Disbrow  v.  Garcia,  351,  352. 
Dixon  V.  Baker,  98. 
v.  Clow,  143. 
V.  Deveridge,  147. 
Doan  V.  Warren,  137,  145. 
Dobbins  v.  Duquid,  264,  314. 

u.  Higgins,  439. 
Dobenspeck  v.  Armel,  466. 
Dobson  «.  Blackmore,  99. 
Dodd  V.  Jones,  336. 
Dodds  V.  Hakes,  373. 
Dodge  V.  Perkins,  446,  447. 
Dodson  V.  Cooper,  80,  468. 
Doe  V.  Ausman,  137. 

V.  Filliter,  508. 

».  Rowlands,  312. 

V.  Vallejo,  498. 

V.  Warren,.  496,  498. 
Doherty  v.  Munson,  153. 
Doig  «.  Barkley,  498. 
Donnell  v.  Jones,  176,  188,  513,  533. 
Donohue  «.  Henry,  150. 
Donovan  v.  New  Orleans,  33. 
Dooley  v.  Smith,  396. 
Doolittle  «.  McCuUough,  81. 
Doremus,  in  re,  489. 
Dority  v.  Dunning,  137. 
Dorman  v.  Ames,  139. 
Dorrah  ».  I.  C.  R.R.  Co.,  532. 
Dorsey  v.  Moore,  97. 
Dorwin  v.  Potter,  298. 
Doss  V.  Missouri  K.  &  T.  R.R.  Co., 

537 
Dothard  v.  Sheid,  353. 
Dotterer  v.  Bennett,  433. 
Dougherty  v.  Miller,  483. 
Dow  V.  Humbert,  77,  153. 

B.  Jullen,  526. 
Dowell ».  Griswold,  485. 
Downer  v.  Whittier,  476. 
Downey  ®.  Beach,  4S1. 
Dows  V.  Greene,  104. 
Dox  ®.  Dey,  432. 
Doyle  V.  Eccles,  388. 

V.  St.  James  Church,  453. 
Drake  v.  Auerbach,  388. 

V.  Kiely,  180. 
Drew  ».  Baby,  94,  97. 
Driess  v.  Frederich,  160. 
Driggers  v.  Bell,  467. 
Driggs  «.  Dwight,  199. 
Drinkwater  v.  Dinsmore,  90. 
Driver  v.  Western  Union  R.R.   Co., 

332. 
Drohn  v.  Brewer,  527,  582. 
Drum  V.  Harrison,  136. 
Du  Belloix  v.  Lord  Waterpark,   431, 

433. 
Duberley  «.  Gunning,  519. 


Jieferences 
are  lo  pages. 


TABLE    OF    CASES. 


XXXlll 


Dubois  ».  Glaub,  194. 

«.  Hermance,  349,  357. 
Du  Bost  V.  Beresford,  390. 
Dubuque  W.  &  C.  A.  v.  Dubuque, 

180. 
Dudley  i\  Reynolds,  480. 
Duffy  ®.  Duncan,  443. 

V.  Shockey,  586,  599. 
Dufort  v.  Abadie,  68. 
Duke  1).  Missouri  P.  Ry.  Co.,  247. 
DuUaghan  v.  Fitch,  591. 
Dullea  t.  Taylor,  386. 
Duncan  v.  Markley,  118, 127. 
Dunlap  «.  Watson,  443. 

t.  Wiseman,  499. 
Dunlop  11.  Gregory,  599. 
Dunn  V.  Barnes,  403. 

V.  Daly,  318. 

V.  Johnson,  336. 
Dunsworth  e.  Wood  M.  Co.,  410. 
Duran  v.  Ayer,  475. 
Durell  B.  Pritchard,  4. 
Durst  V.  Swift,  580,  598. 
Duryea  ».  Mayor,  133,  463,  470. 
Dush  «.  Pitzhugh,  544. 
Dutro  V.  Wilson,  97. 
Duvall  V.  Price,  553. 
Dwinel  ».  Brown,  595. 
Dyar  v.  Slingerland,  498. 
Dye  D.  Denham,  546. 
Dyer  ».  Dorsey,  589. 


Eakin  v.  Scott,  580,  586,  593. 

Eames  ».  Brattleboro,  122,  350. 

Earl  V.  Tupper,  346. 

Earle  ®.  Holdemess,  76. 

Early  ».  Friend,  445,  448. 

East  &  W.  I.  D.  &  B.  J.  Ry.  Co.  ■». 

Gattke,  3. 
i;ast  Tennessee,  V.  &  G.  R.R.  Co.  v. 

Lockhart,  160. 
East  Tennessee,  V.  &  G.  R.R.   Co.  «t 

Staub,  247. 
Eastman  v.  Sanborn,  299,  337. 
Easton  v.  P.  &  O.  Canal  Co.,  591. 
Eatman  ».  New  Orleans  P.  Ry.  Co., 

345,  523. 
Eaton  V.  Bell,  497. 

D.  Boissonnault,  474. 
V.  Lyman,  137. 
Echols  11.  Louisville  &  N.  R.R.  Co., 

370. 
Edmondson  ».  Hyde,  403. 

V.  Nuttall,  82,  109. 
Edwards  «.  Beebe,  258. 

®.  Dickinson,  389. 
•0.  Leavitt,  545. 
Vol.  I.— c 


Edwards  c.  Ricks,  526. 

«.  Williams,  569,  591,  613. 

Efflnger  v.  Kenney,  413. 

Ehrgott  V.  New  York,  180. 

Eisendrath  v.  Knauer,  106. 

Eisenlohr  v.  Swain,  368. 

Ekins  V.  East  India  Co.,  408,  461,  495. 

Elbin  V.  Wilson,  527. 

Elbinger  Actien-Gesellschaft  v.  Arm- 
strong, 226,  328,  229. 

Elizabethtown  &  P.  R.R.  Co.  «.  Geo- 
ghegan,  591. 

Elkin  "0.  Moore,  448. 

Ellery  e.  Cunningham,  446. 

Ellington  v.  Bennett,  377. 

Elliott  V.  Beeson,  498. 
v.  Herz,  536. 
V.  Van  Buren,  160,  533,  545. 

Ellis  V.  Cleveland,  182. 

Ellsworth  «!.  Potter,  533. 

Elwell  V.  Skiddy,  69. 

Ely  v.  Parsons,  155. 

Emblen  i\  Myers,  528,  580. 

Embrey  v.  Owen,  142. 

Emerson  v.  Schoonmaker,  468,  472. 

Emery  v.  Lowell,  53,  317. 

Emily  Bonder,  The,  402. 

Emmett  v.  Brophy,  484. 

Emmons  v.  Westfleld  Bank,  371. 

Empire  Mill  Co.  v  Lovell,  83. 

Enders  v.  Board  of  Public  Works,  466. 

Erie  &  P.  R.R.  Co.  «.  Douthet,  374. 

Erie  C.  I.  W.  v.  Barber,  179,  257,  258. 

Erie  Ry.  Co.  v.  Lockwood,  462,  529. 

Esmond  «.  Van  Benschoten,  595. 

Estabrook  v.  Smith,  90. 

Esterly  v.  Cole,  453. 

Esty  V.  Baker,  137. 

Eten  V.  Luyster,  159. 

Etnyre  v.  McDaniel,  476. 

Eufaula  v.  Simmons,  138. 

Eureka  Marble  Co.  «.   Windsor  Mfg. 
Co.,  335. 

Evans  v.  Cincinnati  S.  &  M.  Ry.  Co., 
385. 
t\  Kymer,  880. 

Eviston  V.  Cramer,  536,  589. 

Ewing  V.  Blount,  7,9. 

F. 

Fabbri  v.  Kalbfleisch,  404. 
Fail  V.  Presley,  463. 
Fairbanks  ®.  Kerr,  185. 

■V.  Witter,  846. 
Fairchild  «.  Cal.  Stage  Co.,  81,  66. 
Fairfax  v.  New  York  C.  &H.  R.  R.R. 

Co.,  375. 
Fake  v.  Eddy,  488. 


XXXIV 


TABLE    OF    CASES. 


References 
are  to  pages. 


Palardeau  ».  Couture,  523. 
Falk  «.  Waterman,  346. 
Fallon  V.  Manning,  103. 
Fanning  v.  Consequa,  494. 
Faris  v.  Lewis,  189. 
Farman  v.  Lauman,  544. 
Farnham  v.  Ross,  603. 
Farrand  v.  Boucliell,  453. 
Farrant  v.  Olmins,  561. 
Fai-rel  v.  Colwell,  376. 
Farwell  v.  Warren,  536,  543,  547. 
Fasholt  1).  Reed,  449. 
Fasler  v.  Beard,  598. 
Faulkner  i).  Olosfcer,  155. 
Fauntleroy  v.  Hannibal,  494,  499. 
Faw  1).  Marsteller,  395. 
Fay  11.  Bradley,  497. 
•c.  Guynon,  125. 
V.  Haven,  148. 
11.  Parker,  515,  519,  531,  544. 
11.  Swan,  69. 
Feeney  «.  Long  Island  R.E.  Co.,  348, 

349. 
Feeter  u.  Heath,  450. 
Feize  n.  Thompson,  186. 
Fell  v.  McHenry,  108. 
Felton  V.  Fuller,  80. 
Ferguson  v.  Davis  County,  66. 

11.  Wilson,  5. 
Ferrer  v.  Beale,  38. 
Ferris  v.  Comstock,  378. 
Ferry  ii.  Ferry,  496. 
.Fetter  v.  Beale,  116. 
Fewings,  ex  parte,  480.  484. 
Field  v.  Insurance  Co.  of  JST.  A.,  440. 
Fifth  Nat.   Bank   v.    Providence  W. 

Co.,  105. 
Finley  v.  Hershey,  139. 
Finns.  W.  R.R.  Co.,  101. 
Finney  «.  Smith,  341,  344,  523. 
First  Baptist  Church  v.  Schenec.  &  T. 

R.R.  Co.,  33,  48. 
First  Ecclesiastical  Society  v.  Loomis, 

474,  475. 
First  Nat.  Bank  v.  Boyce,  106. 
v.  Strang,  884. 
First  Orthodox  Cong.  Church  v.  Wal- 

rath,  593. 
Fishell  V.  Winans,  467. 
Fisher  v.  Bidwell,  440. 

v.  Brown,  106,  887. 

v.  Dudding,  482. 

«.  Go9bel,  81  Oi 

«.  Grace,  94. 

■B.  Jansen,  363,  880. 

v.    Metropolitan  El.   Ry.  Co., 
530. 

V.  Otis,  481. 

v.  Prince,  75. 

V.  Sargent,  436. 


Fisher  ®.  Val  de  Travers  Asphalte  Co., 

360.  361. 
Fisk  V.  Brunette,  444. 
V.  Fowler,  595. 
V.  Gray,  589. 
Fiske  11.  Chesterfield,  465. 
Fitzgerald  ii.  Boulat,  548. 
V.  Caldwell,  493. 
n.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  68,  541. 
Pitzgibbons  ®.  Freisem,  89. 
Fitzhugh  V.  McPherson,  498. 

V.  Wiman.  103. 
Fitzjohn  v.  Mackinder,  188. 
Pitzpatrick  «.  Cottingham,  594. 
Flanagans.  Womack,  545. 
Flanders  ».  Tweed,  341. 
Flannery  n.  Anderson,  431,  451. 

».  Baltimore  &  O.  R.R.  Co., 
538,  547. 
Fleet  11.  Hollenkemp,  580. 
Fleming  ii.  Beck,  162. 

n.  Robertson,  413. 
V.  Shenandoah,  53. 
Fletcher  v.  Dyche,  565,  577,  586,  603. 
V.  Rylands,  34,  36,  37,  38,  39, 

40,  41. 
v.  Tayleur,  235. 
Flick  v.  Wetherbee,  378. 
Flinn  v.  Barber,  439. 
Flint  V.  Clark.  152. 
Flori  ®.  St.  Louis,  201. 
Flournoy  «.  Lyon,  352. 
Floyd  «.  Hamilton,  531,  538. 
Flynn  ii.  Trask,  306. 
Foley  V.  McKeegan,  592. 
Folsom®.  McDonough,  603. 
Fondavila  t.  Jourgenson,  269. 
Foote  11.  Blanchard,  440,  449. 

11.  Sprague,  606. 
Forbes  ii.  Loftin,  321. 
«,  Parker,  111. 
Force  v.  Elizabeth,  499 
Pord«.  Chicago  &  N.  W.  R.R.  Co., 
133. 
v.  Jones,  69. 
v.  Loomis,  353. 
■V.  Williams,  79. 
Forgie  ®.  Henderson,  48. 
Forney  e.  Geldmacher,  301. 
Forstall  ii.  Louisiana  Planters'  Assoc, 

499. 
Forster  v.  Forster,  476. 
Forsyth  v.  Palmer,  79. 
Fort  ».  Orndoff,  299,  310. 
Fort  Worth  &  N.  O.  Ry.  Co.  «.  Wal- 
lace, 123. 
Foster  e.  Weaver,  115. 
Fotheringham  r.  Adams  Ex.  Co.,  56, 71. 
Fowle  D.  New  Haven  &  N.  Co.,  131. 


are  to  pages. 


TABLE    OF    CASES. 


XXXV 


Fowler  v.  Davenport,  463. 

«.  Gilman,  106. 
Fox  V.  Boston  &  M.  E.R  Co.,  336. 
V.  Harding,  197,  384. 
V.  St.  John,  131. 
«.  Stevens,  534. 
V.  Wunderllch,  546. 
Foxall «.  Barnett,  363. 
Foxcroft  V.  Nagle,  491. 
Fralofl  V.  New  York  C.  &  H.  R.  B.R. 

Co.,  366,463. 
France  ii.  Gaudet,  163,  333,  390. 
Francis  v.  Schoellkopf,  87. 
Frank  ».  Colhoun,  403. 
Franklin  i\  Smith,  300. 
Fray  «.  Voules,  145. 
Frazer  i>.  Bigelow  Carpet  Co.,  464,  473. 
Freeman  D.  Clute,  276. 

V.  Freeman,  453. 
V.  Underwood,  101,  103. 
Freese  v.  Crary,  150. 

V.  Tripp,  503,  536;  545. 
Frei  v.  Vogel,  103. 
Freidenheit  v.  Edmundson,  503,  535. 
French  i>.  Bent,  136. 

V.  Connecticut  R.  L.  Co.,  364, 

■     366. 
V.  French,  444,  494. 
V.  Fuller,  97. 
«.  Ramge,  155,  393. 
«.  Vining,  315. 
Frey  ®.  Drahos,  103. 
Friend  &  T.  L.  Co.  v.  Miller,  331. 
Fries  «.  Watson,  484. 
Frink  ».  Coe,  530. 

Frith  V.  Chicago  D.  &M.  Ry.  Co.,  133. 
Fritz  ».  Hohson,  128. 
Frost  n.  Jordan,  351. 
«.  Knight,  306. 
V.  Willard,  103. 
Fry  ®.  Bennett,  545. 

V.  Dubuque  &  S.  Ry.  Co.,  348. 
Frye  v.  Maine  C.  R.R.  Co.,  196,  386. 
Fuchs  V.  Koerner,  307. 
Fullam  V.  Stearns,  34,  146. 
Fuller  V.  Curtis,  398. 
Fulsome  «.  Concord,  53,  131. 
Fultz  V.  Davis,  413. 

».  Wycoff,  287. 
Funk  «:  Buck,  481. 
Furlong  v.  Polleys,  368. 


O. 

Gage »;.  Parmelee,  453. 
Galbraith  v.  Walker,  484. 
Gale  V.  Leckie,  383. 
Galliano  «.  Pierre,  399. 
Gallup  V.  Perue,  459. 


Galsworthy  v.  Strutt,  600,  605. 

Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Dona- 
hoe,  539. 

Galveston,  H.  &  S.  A.  Ry.  Co.  ■e.Ware, 
353. 

Gamble  v.  MuUin,  201. 

Gammage  v.  Alexander,  449. 

Gammell  v.  Skinner,  443,  450. 

Gammon  ii.  Abrams,  458. 

1).  Howe,  585,  598. 

Ganiard  d.  R.  C.  &  B.  R.R.  Co.,  121. 

Ganong  v.  Green,  113. 

Ganson  d.  Tifft,  391. 

Ganssly  v.  Perkins,  535. 

Gardner  v.  Barnett,  475. 
V.  Heartt,  33,  95. 

Garland  ».  Wholeham,  545. 

Garrard  v.  Dawson,  463. 

Garretson  «.  Brown,  101. 

Garrett  v.  Logan,  350. 

Gaskin  v.  Wales,  603. 

Gasway  v.  A.  &  W.  P.  R.R.  Co.,  538. 

Gates  V.  Northern  P.  R.R.  Co.,  194. 

Gay  V.  Gardiner,  465. 

Gay's  gold,  403. 

Gazelle,  The,  30. 

Gear  v.  0.  C.  &  D.  Ry.  Co.,  328. 

Gee  i>.  Lancashire  &  Y.  Ry.  Co.,  206, 
309,  317,  321.  333,  339. 

Geiger  v.  W.  M.  R.R.  Co.,  591. 

Gelpke  v.  Dubuque,  499. 

Gelston  v.  Hoyt,  487. 

Genet  v.  Kissam,  476. 

Genin  «.  Ingersoll,  496,  498. 

Gennings  v.  Norton,  133. 

Genoa  v.  Woodruff,  499. 

George  &  Richard,  The,  193. 

Georgia  R.R.  Co.  v.  Olds,  533,  538. 

German  v.  German,  440. 

Gerrish  v.  New  Market  Mfg.  Co.,  85, 
88,  143. 

Gest  v.  Cincinnati,  483. 

Gibbs  V.  Bryant,  444. 
V.  Chase,  76,  77. 
«;  Chisolm,  498. 
V.  Fremont,  440,  494. 

Gibert  v.  Washington,  C.  V.,  M.  &  G. 
S.  R.R.  Co.,  499. 

Giblin  v.  Mclntyre,  53,  321. 

Gibson  v.  Cincinnati  Enquirer,  485. 
«.  Fischer,  373. 
V.  Humphrey,  76. 

Giese  v.  Schultz,  69. 

Gilbert  v.  Berkinshaw,  503. 
V.  Campbell,  184. 
®.  Kennedy,  391. 
V.  S.  G.  &  N.  A.  Ry.  Co.,  87. 

Gilbertson  v.  Richardson,  159. 

Gile  1).  Stevens,  86,  88. 

Giles  V.  O'Toole,  199,  369. 


XXXVl 


TABLE    OF    CASES. 


Bfferencee 
are  to  pages. 


Qillet  V.  Van  Eensselaer,  444. 
Gillett  ».  Western  R.R.  Co.,  468. 
Gillies  V.  "WoSord,  461. 
Gillon  «.  Boddington,  123. 
Gilman  v.  Vauglian,  453. 
Gilmour  v.  Hall,  603. 
Gilpins  1).  Consequa,  433,  470. 
Gllreath  v.  Allen,  516. 
Gingras  ii.  Desilets,  524,  533. 
Gist  v.  Alexander,  399. 
Glascock  11.  Hays,  114. 
Glaspy  V.  Cabot,  371. 
Gleason  v.  Briggs,  453. 

«.  Pinney,  415. 
Glezen  v.  Eood,  152. 
Glover  «.  London  &  S.  W.  Ry.  Co., 

195 
Gobble  "ii.  Linder,  598. 
Godard  «.  Fredericton  Boom  Co.,  274. 
Goddard  v.  Bulow,  452. 

«.  Poster,  458,  495. 
D.  Grand  T.  Ry.  Co.,  55,  588. 
Godeau  v.  Blood,  67. 
Godwin  ».  Francis,  355. 

».  McGehee,  492. 
Goebel  v.  Hough,  364. 
Goetz  V.  Ambs,  528,  547. 
Goff  V.  Rehoboth,  443,  451,  458. 
Gold  V.  Bissell,  56. 
Gold  Hunter,  The,  462. 
Golden  v.  Knapp,  136. 
Goldsborough  «.  Baker,  595. 
Goodbar  ii.  Lindsley,  340. 
Goodchap  v,  Roberts,  475. 
Gooding  v.  Shea,  95,  97. 
Googins  13.  Gilmore,  111. 
Goodloe  11.  Rogers,  174.  298. 
Goodno  n.  Oshkosh,  52,  66,  259,  821. 
Goodnow?).  Litchfield,  444. 
V.  Plumbe,  444. 
«.  Willard,  145. 
Goodrich  v.  Dorset  Marble  Co.,  123. 
Gordon  v.  Brewster,  126,  307. 

n.  Butts,  297. 
Goslin  v.  Corry,  119. 
Gould  V.  Bishop  Hill  Colony,  481,  605. 
Goulding  v.  Hewitt,  148. 
Goulet  V.  Asseler,  111. 
Gourdier  ».  Cormack,  92. 
Gove».  Watson,  76. 
Governor,  opinion  of  court  in  response 

to,  400. 
Gowen  v.  Gerrish,  590. 
Gower  v.  Carter,  481. 

v.  Saltmarsh,  585,  694. 
Grable  v.  Margrave,  513,  534,  544. 
Graham  ii.  Chicago,  M.  &  S.  P.  Ry. 
Co.,  442. 
v.  Chrystal,  451. 
«.  Maitland,  866. 


Graham  v.  Pacific  R.R.  Co.,  546. 

V.  Williams,  452. 
Grainger  ».  Hill,  56. 
Grand  Rapids  Booming  Co.  ■».  Jarvis, 

94. 
Grand  Tower  Co.  v.  Phillips,  368,  611. 
Grand  Trunk  Ry.  Co.  v.  Beckett,  91. 

V.  Jennings,  91. 
Grant  v.  Healey,  408. 

«.  King,  462. 
Grasselli  r.  Lowden,  599,  602. 
Grau  1).  McVicker,  804. 
Graver  ii.  ShoU,  139. 
Graves  «.  Dash,  33. 

11.  Moore,  350,  355. 
Gray  v.  Briscoe,  480. 

v.  Crosby,  570,  605. 

V.  Harris,  39. 

■».  Van  Amringe,  457. 
Greasley  v.  Codling,  43. 

®.  Higglnbottom,  186. 
Great  W.  Ry.  Co.  ■».  Miller,  539. 
Grebert-Borgnls  ®.  Nugent,  237. 
Greeley,  St.  L.  &  P.  Ry.  Co.  v.  Yeager, 

358. 
Green «.  Boston  &  L.  R.R.  Co.,  374. 

V.  Clarke,  106. 

».  Craig,  503,  528,  532. 

V.  Davies,  147. 

v.  Edick,  114. 

v.  Garcia,  462. 

«.  Mann,  376,  326,  328. 

v.  Price,  601. 

11.  Sizer,  411. 

v.  Sperry,  74. 

«.  Williams,  367. 
Greene  v.  Goddard,  259. 

v.  Waggoner,  337. 
Greenfield  Bank  v.  Leavitt,  77. 

V.  Simons,  469. 
Greenish  ii.  Standard  Sugar  Refinery, 

493. 
Greenly  v.  Hopkins,  443. 
Greenville  &  C.  R.R.  Co.  ■».  Partlow, 

532. 
Greenup  v.  Stoker,  137. 
Greer  v.  New  York,  95,  463. 

V.  Tweed,  584,  603. 
Gregg's  Case,  553. 
Gregg  V.  Mayor,  337. 
Gregory  ®.  Chambers,  363. 
Gresham  v.  Taylor,  277. 
Grey«.  Grant,  506. 
Griffin  v.  Brown,  363. 

11.  Colver.  29,  204,  210,  355,  275. 
Griffith  V.  Burden,  384. 
Griggs  11.  Griggs,  443. 
Grill  V.  General  L  S.  C.  Co.,  529. 
Grimes  v.  Hagood,  444. 
Grindle  v.  Eastern  Ex.  Co.,  241,  806. 


lieferences 
are  to  pages. 


TABLE   OF   CASES. 


XXXVU 


Griswold  ».  New  York  C.   &  H.  R. 

R.R.  Co.,  249. 
Gronan  ■».  Kukkuck,  66. 
Groover  v.  "Warfleld,  101. 
Grosvenor  v.  Ellis,  470. 
Grand  v.  Van  Vleck,  536. 
Guengerech  «.  Smith,  544,  545. 
Guernsey*.  Shellman,  345. 
Guest  t.  Macpherson,  523,  535,  545. 
Guild  v.  Guild,  339. 
Guildford  v.  Anglo-French  S.S.  Co., 

531. 
Guille  V.  Swan,  185. 
Guiteman  v.  Davis,  408. 
Gulf,  C.  &  S.  F.  By.  Co.  v.  Campbell, 

388. 
V.  Levy,  60. 
V.  McManne- 
witz,331. 
Gunn  V.  Burghart,  366. 
Gunter  v.  Astor,  264,  266. 
Guthrie  v.  WicklifEs,  483. 
Gutta  Percha  &  R.  M.  Co.  ■B.JBenedict, 

489. 
Guy  V.  Franklin,  6. 
Gwin  ».  Breedlove,  396. 
Gwinn  v.  Whitaker,  483. 


II. 

Hackett  ».  B.,  C.  &  M.  R.R.  Co.,  76. 

«.  Smelsey,  502. 
Hadley  v.   Baxendale,  194,   203,   205, 
206,   207,  208,  209,  211,  214,  217, 
220,   222,  223,  229,  231,  234,  335, 
238,   246. 
Hadsell  ®.  Hancock,  355. 
Hasan  v.  Providence  &  W.  R.R.  Co., 
524,  589. 
V.  Riley,  123,  357. 
Hager  v.  Blake,  480,  496. 
Hagood  V.  Aikin,  483,  485. 
Hahn  ■».  Concordia  Society,  613. 

«.  Horstman,  270,  584,  589,  592, 
603. 
Haight  V.  McVeagb,  454. 
Haines  v.  Schultz,  515,  520,  524,  536. 
Hair  «.  Barnes,  267. 
Ealdeman  «.  Jennings,  589. 
Hale  V.  Thomas,  552. 
Hales  V.  London  &  N.  W.  Ry.  Co., 

218,  320. 
Hall  V.  Crowley,  603. 

«.  Farmers'  &  C.  S.  Bank,  442. 
V.  Hall,  483. 
V.  Huckins,  439. 
v.  Jordan,  486. 
V  Ross,  153. 
Hallett  ®.  Novion,  433. 


Halliday  v.  Holgate,  106,  387. 
Hallock  «.  Slater,  593. 
Hallum  V.  Dickinson,  385. 
Halsey  ®.  L.  V.  R.R.  Co.,  99. 
Halstead  «.  Nelson,  350,  346. 
Hamaker  «.  Schroers,  585,  594. 
Hambleton  «.  Veere,  128. 
Hamer  v.  Hathaway,  434,  461. 

«.  Kirkwood,  430. 
Hamilton  ».  Ganyard,  467. 
«.  Lau,  106,  113. 
i>.  Legrange,  492. 
«.  McPherson,  305,  336. 
■».  Moore,  611. 
V.  Overton,  595. 
■B.  Smith,  70,  71. 
«.  Third  Ave.  R.R.  Co.,  530, 

541. 
V.  Van  Rensselaer,  475. 
V.  -Western  N.  C.  R.R.  Co.. 
237. 
Hamlin  «.  Great  Northern  Ry.   Co., 

53,  54,  65,  213,  323. 
Hammer  v.  Breidenbach,  593. 
».  Schoenfelder,  237. 
Hammerslough  v.  Kansas  City  B.  L.  & 

S.  Assoc,  353. 
Hammond  v.  Bussey,   208,   230,   221, 
230,  354. 
•0.  SchifE,  90. 
Hampton  v.  Jones,  182. 
Hanauer  v.  WoodrufE,  411. 
Hancock  v.  Franklin  Ins.  Co.,  397. 

v.  Hubbell,  136,  155. 
Hand  v.  Armstrong,  476. 

v.  Church,  458. 
Handley  v.  Chambers,  433. 
Handy  v.  Johnson,  55. 
Hanmer  «.  Wilsey,  76. 
Hannibal  &  S.  J.  R.R.  Co.  v.  Martin, 

66. 
Hanson  v.  E.  &  N.  A.  R.R.  Co.,  538. 

■».  Fowle,  51,  66,  321. 
Hardee  v.  Howard,  585. 
Harding  ».  Carter,  386. 
«.  Cowing,  401. 
V.  Larkin,  353. 
V.  Townshend,  90,  91. 
Hardy  v.  Bern,  554. 

v.  Martin,  564. 
Hare  «.  Marsh,  544. 
Harger  v.  McMains,  534. 
Hargrave  v.  Creighton,  408. 
Hargreaves  v.  Kimberly,  130. 
Barker  v.  Dement,  101. 
Harman  v.  Cundiff,  534,  535,  544. 

«.  Goodrich,  104. 
Harmon  v.  L.  N.  O.  &  T.  R.R.  Co., 

132. 
Harmony  v.  Bingham,  604. 


XXXVIU 


TABLE    OF    CASES. 


are  to  pages. 


Harper  ».  Ely,  439,  499. 

V.  Miller,  233. 
Harrington  «.  Glenn,  483. 
Harris  «.  Eldred,  79. 
V.  Kerr,  155. 
V.  Miller,  595. 
V.  Panama  B.R.  Co.,  369. 
Harrison  ».  Berkley,  203. 
13.  Brega,  89. 
V.  Conlan,  443: 
V.  Ely,  520,  534,  533. 
v.  Handley,  451. 
Harrow  School  e.  Alderton,  140. 
Hart  11.  Charlotte,  C.  &  A.  R.R.    Co., 

538. 
Hartford  &  Salisbury  Ore  Co.  v.  Miller, 

78. 
Hartland  v.  General  Exchange  Bank, 

308. 
Hartshorn  v.  Burlington,  C.  R.  &  N. 

R.R.  Co.,  464. 
Hasbrouck  «.  Tappen,  569,  599. 

V.  Winkler,  115. 
Haskell  v.  Bartlett,  464. 
Hastie  v.  De  Peyster,  445. 
Hastings  ».  Stetson,  68. 

V.  Westchester  F.  I.  Co.,  443. 
V.  Wiswall,  496,  498. 
Haswell  ®.  Farmers'  &  M.  Bank,  446. 
Hatch  «.  Fuller,  69,  121. 
Hatfield  v.  C.  R.R.  Co.,  54. 
Hatheway  v.  F.  R.  Nat.  Bank,  109. 
Hathorne  v.  Stinson,  138. 
Hauxhurst  ®.  Hovey,  439,  446. 
Haven  v.  Beidler  Mfg.  Co.,  155. 
«.  Foster,  447. 
V.  Wakefield,  341. 
Havemeyer  v.  Cunningham,  314. 

«.  Havemeyer,  394. 
Haverstick  v.  Erie  Gas  Co.,  338. 
Hawes  v.  Knowles,  52,  520. 

n.  Woolcock,  404. 
Hawk  11.  Ridgway,  56,  546. 
Hawkins  ».  Sciet,  503. 
Hawley  v.  Warner,  104. 
Hawn  V.  Banghart,  71. 
Hay  v.  Cohoes  Co.,  39. 
Haycraft  v.  Creasy,  143. 
Hayden  v.  Anderson,  108. 
v.  Bartlett,  461. 
v.  Florence  S.  M.  Co.,  373. 
Hayes  v.  Chicago,  M.  &  S.  P.  Ry.  Co., 
464. 
V.  Mass.  L.  I.  Co.,  384,  389. 
Hayner  v.  Cowden,  534,  540,  544. 
Hays  V.  Creary,  68. 

V.  H.  G.  N.  R.R.  Co.,  539. 
V.  Riddle,  101, 104. 
Haywavd  n.  Cain,  90. 
Hazard  v.  Israel,  509,  537. 


Hazzard  n.  Duke,  431. 
Head  11.  Georgia  P.  Ry.  Co.,  63,  67. 
Heard  ii.  Bowers,  593. 
11.  Holman,  289. 
Heartt  v.  Riiodes,  497. 
Heatwole  v.  Gorrell,  593,  594. 
Heavilon  v.  Kramer,  306. 
Heckscher  v.  McCrea,  313. 
Heddles  v.  Chicago  &  N.  W.  Ry.  Co., 

69. 
Heermance  v.  James,  70. 
Hefley  «.  Baker,  535,  533. 
Heidenheimer  ».  Ellis,  433. 
Heilbroner  u.  Hancock,  314. 
Henderson  v.  Cansler,  589. 
V.  Laurens,  498. 
».  New  York  C.  R.R.  Co., 

132 
V.  Nichols,  586,  587. 
■».  Sevey,  359. 
v.  Squire,  358. 
Henderson  C.  M.Co. «.  Lowell  Machine 

Shops,  449. 
Hendrickson  v.  Anderson,  307. 

n.  Kingsbury,  545. 
Hendrie  v.  Neelon,  369. 
Heneky  v.  Smith,  535. 
Henning  v.  Van  Tyne,  485. 

V.  W.  U.  T.  Co.,  537. 
Hennion  v.  Jacobus,  440. 
Henry  n.  Davis,  338,  589. 
V.  Plagg,  498. 
V.  Risk,  453. 
11.  Thompson,  481. 
Hepburn  ®.  Griswold,  397,  398. 

V.  Sewell,  461. 
Herbert  e.  Easton,  412. 

n.  S.  &  Y.  Ry.  Co.,  481. 
Herefordshire  Banking  Co.,  in  re,  441. 
Hersey  v.  Walsh,  380. 
Hershey  «.  Hershey,  498. 
Hess'  Estate,  443. 

Hewitt  V.  John  Week  Lumber  Co.,  461. 
Hexter  v.  Knox,  240,  369,  311,  337. 
Heydon  &  Smith's  Case,  100. 
Hey  wood  v.  Hey  wood,  4l6.       , 
Hibbard  v.  Stewart,  76. 

V.  Western  U.  T.  Co.,  155. 
Hickey  v.  Baird,  1 55. 
Hickok  v.  Buck,  103. 
Hicks  11.  Foster,  341,  347. 

V.  N.  A.  &  H.  R.R.  Co.,  91. 
Higgins  V.  L.  N.  O.  &  T.  R.R. Co.,  524, 
532 
v.  Sargent,  432,  433,  424. 
».  Whitney,  82. 
Higginson  v.  Weld,  585,  592. 
Highley  v.  First  Nat.  Bank,  483. 
Hill  V.  Forkner,  155. 
«.  Hunt,  443. 


are  to  pages. 


TABLE    OF    CASES. 


XXXIX 


Hill  11.  Lawo,  101. 

V.  N.  O.  O.  &  G.  W.  R.K.  Co.,  539. 
«.  South  BtafEordshire    Ry.    Co., 

435. 
».  Winsor,  160. 
Hillliouse  V.  Mix,  114. 
Himely  v.  Rose,  486. 
Himmelman  v.  Oliver,  464. 
Hinkleys.  Beckwith,  370,  276,  326,  337, 

470. 
Hinde  i>.  Liddell,  227,  808,  325. 
Hinman  i>.  Judson,  112. 
Hinton  v.  Sparkes,  593. 
Hitt  V.  Alleu,  430. 
Hixon  ».  Hixon,  410. 
Hixt's  Case,  20,  559. 
Hoadley  v.  Northern  Transp.  Co.,  201. 

«.  Watson,  346,  528. 
Hoag  «.  M'Ginnis,  576. 
Hoagland  ®.  Segur,  599. 
Hoare  v.  Allen,  491. 
Hobbs  ».  Davis,  298. 

V.  London  &  S.  W.  Ry.  Co.,  30, 
54,  65,  207,  211,  214. 
Hobson  «.  Trevor,  552. 
Hochster  v.  De  la  Tour,  304. 
Hodgdon  v.  Hodgdon,  483,  484. 
Hodges  V.  Hodges,  444. 

«.  King,  608. 

■0.  Parker,  445. 
Hodgkins  v.  Price,  448. 
Hodsall  V.  Stallebras,  121. 
Hoey  ».  Felton,  195,  393. 
Hoffman  «.  Union  Ferry  Co.,  317. 
Hoge  V.  Norton,  391. 
Hogg  V.  Pinckney,  136. 

V.  Zanesville  C.  &  M.  Co.,  433. 
Hogle  V.  New  York  C.  &  H.  R.  R.R. 

Co.,  315. 
Holbrook  ».  Tobey,  599. 
Holden  v.  Lake  Co.,  364. 

v.  Peace,  445. 

V.  Trust  Co.,  478. 
Holdfast  V.  Shepard,  100. 
Holland  v.  Worley,  377. 
HoUingsworth  v.  Detroit,  499. 
Holmes  v.  Barclay,  495. 

8.  Davis,  94. 

V.  Halde,  261. 

V.  Holmes,  595. 

V.  Rankin,  457. 

«.  Weaver,  350. 

«.  Wilson,  127. 
Holt  V.  Van  Eps,  534. 
Holyoke  v.  Grand  Trunk  Ry.  Co.,  66. 
Home  Ins.  Co.  ■».  Baltimore  Warehouse 
Co.,  105. 
V.  Pennsylvania     R.R. 
Co.,  464. 
Honore  v.  Murray,  448. 


Hooker  v.  Leslie,  406. 

D.  Newton,  387. 
Hooten  v.  Barnard,  189. 
Hope  V.  Alley,  137. 

Hopkins  «.  Atlantic  &  S.  L.  R.R.  Co., 
122,  530. 
V.  Crittenden,  476. 
V.  Sanford,  336. 
V.  Bhepard,  493. 
Hoppe  V.  Chicago,  M.  &  S.  P.  Ry.  Co., 

123,  250. 
Hopple  B.  Higbee,  83. 
Home  V.  Midland  Ry.  Co.,  330,  234, 

232 
Horner  v.  Flintoff,  565,  569,  591. 

V.  Wood,  220. 
Horton  v.  Cooley.  376. 
D.  Tobin,  603. 
Hotchkiss  V.  Jones,  534. 

V.  Whitten,  152. 
Hough  V.  Bowe,  79,  320. 
Houghkirk  v.  Delaware  &  H.  C.  Co., 

132,  350. 
Houghton  ».  Hagar,  452. 
House  V.  McKenney,  442. 

V.  Tennessee  P.  College,  498. 
Houser  v.  Pearce,  298. 
Houston  ®.  Crutcher,  453. 
«.  Jamison,  498. 
Houston  &  T.  0.  Ry.  Co.  v.  Boehm,  53, 

66,  259. 
Houston  &  T.  C.  Ry.  Co.  ■».  Burke, 

374. 
Houston  &  T.  C.  Ry.  Co.  v.  Hill,  385. 
Houston  &  T.  C.  Ry.  Co.  v.  Jackson, 

468. 
Houston  &  T.  C.  Ry.  Co.  ».  Muldrow, 

464. 
Hovey  v.  Grant,  374. 

V.  Rubber  T.  P.  Co.,  352. 
Howard  v.  Behn,  444. 
v.  Cooper,  82. 
V.  Daly,  307,  337. 
V.  Farley,  498. 
1).  Hopkyns,  612. 
«.  Manderfield,  83. 
Howard  Oil  Co.  v.  Davis,  263. 
Howcott  V.  Collins,  433,  448. 
Howe  V.  Bartlett,  113. 

».  Ray,  86. 
Howell  «.  Goodrich,  116. 
V.  Scoggins,  343. 
■V.  Young,  123. 
Howes  ».  Axtell,  580. 
Howland  «.  "Vincent,  33. 
Howser  v.  Melcher,  373. 
Hoyt  V.  Wildfire,  307. 
Hubbard  v.  Callahan,  474. 

V.  Charleslown  B.  R.R.  Co., 
443,  445. 


xl 


TABLE    OF    CASES. 


Hefirences 
are  to  pages. 


Hubbell  V.  Meigs,  385. 

Huber  i).  Teuber,  544. 

Hubert «.  Groves,  43. 

Huckle  V.  Money,  502,  505,  537,  583. 

Hudson  1).  Tenney,  443. 

Huey  V.  Macon  County,  499. 

Huf  talin  v.  Misner,  544. 

Hughes  «.  Anderson,  533. 

V.  Graeme,  349,  355. 
V.  Heiser,  43. 
V.  McDonough,  301. 
Hummel  v.  Brown,  418. 
Humphrey  v.  Clement,  399. 
Humphreys  «,  Morton,  499. 
Humphries  v.  Johnson,  544. 
Hunt  V.  Crane,  337. 

V.  D'Oi-val,  53,  150. 

V.  Hoboken  L.  I.  Co.,  367. 

V.  Jucks,  433. 

V.  Nevers,  443,  451. 

V.  Oregon  P.  Ry.  Co.,  371. 

V.  Tibbets,  135. 
Hunter  v.  Farren,  269. 
V.  Wood,  443. 
Huntington  v.  Breen,  53. 

«.  Ogdensburg   &    L.    C. 
R.R.  Co.,  307. 
Huntley  «.  Bacon,  344,  511,  538. 
Huntress  v.  Burbank,  493. 
Hurlburt  «.  Green,  79. 
Hurley  ».  Buchi,  278. 
Hurst  «.  Coley,  104. 

tj.  Hurst,  565,  595. 
Huse  &  Loomis  Ice  Co.  ®.  Heinze,  384. 
Hussey  «.  Parlow,  408. 
Hutchinson  v.  Sohimmelfeder,  136. 
Hyatt  V.  Adams,  535. 

«.  Wait,  441. 
Hyde  «.  Stone,  433,  461. 
Hydraulic  Co.  v.  Chatfield,  476,  485. 
Hydraulic  Eng.  Co.  «.  McHaffle,  334, 

238. 
Hynes  «.  Patterson,  363. 
Hyslop  ».  Staig,  518. 
Hythe  (Corporation  of)  «.  East,  4. 


Her  V.  Baker,  876. 

Illinois  C.  R.R.  Co.  v.  Coff,  388,  336. 
V.  Hammer,     587, 
538. 
Illinois  &  8.  L.  R.R.  &  C.  Co.  ■».  Cobb, 

97,  98. 
Ilsley  V.  Jewett,  444. 
Imboden  v.  Etowah  &  B.  B.  Co.,  86. 
Independent  Ins.  Co.  v.  Thomas,  402. 
Indiana  Car  Co.  v.  Parker,  131. 
Indianapolis  v.  Gaston,  53,  66,  359,  361, 

331. 


Indianapolis  &  S.  L.  R.R.C*.  v.  Stables, 

51,  66. 
Indianapolis,  B.  &  W.  Ry.  Co.  v.  Bir- 

ney,  306,  316,  334. 
Indianapolis,   B.    &  W.    Ry.    Co.    v. 

Eberle,  131. 
Indianapolis,  B.  &  "W.  Ry.  Co.  «.  Mc- 
Laughlin, 97. 
Indianola  ».  G.  W.  T.  &  P.  Ry.  Co., 

595 
Ingalls  k  Bills,  300. 
V.  Lord,  381. 
IngersoU  v.  Campbell,  446. 

v.  Van  Bokkelin,  104. 
Ingram  «.  Lawson,  364. 
Inman  v.  Ball,  537. 
International    &  G.   N.   R.R.   Co.   ■v. 

Garcia,  539. 
International  &  G.  N.    R.R.   Co.    v. 

Nicholson,  375. 
International    &    G.   N.   R.R.   Co.   i). 

Telephone  and  Telegraph  Co.,  533. 
Ireland's  Case,  553. 
Irvin  V.  Hazelton,  485. 
Isaac  Newton,  The,  460. 
Isenhart  p.  Brown,  498. 
Ives  r.  Carter,  344,  533. 
,^     r.  Humphreys,  58. 
Ivinson  v.  Althrop,  595. 


Jacks  V.  Turner,  488. 
Jackson  v.  Baker,  593. 

V.  Cleveland,  591. 

V.  Hall,  398. 

V.  Lloyd,  493. 

V.  N.  C.  &  S.  L.  Ry.  Co.,  301. 

V.  Pesked,  99. 

V.  Schmidt,  526. 

«.  Turrell,  96,  96. 

«.  Wood,  448. 
Jacobs  V.  Adams,  447. 

®.  L.  &  N.  R.R.  Co.,  530,  538, 
644. 
Jacobson  v.  Poindexter,  338. 
Jacobus  V.  Monongahela  Nat.   Bank, 

351. 
Jacques®.  Bridgeport  H.  R.R.  Co.,  261. 
James  v.  Hodsden,  318. 
Jaqua  v.  Headington,  585,  596. 
Jaquith  v.  Hudson,  586,  599. 
Jarvis  v.  Rogers,  103. 
Jasper  v.  Pumell,  640. 
Jebsen  v.  E.  &  W.  Ind.  Dock  Co.,  88. 
Jefcoat  V.  Knotts,  91,  533. 
Jefferson  r.  Adams,  545. 
Jefferson  City  Savings  Assoc,  v.  Morri- 
son, 443. 


References 
are  lo  gages. 


TABLE   OF   CASES. 


Xll 


Jefferson  Obunty  v.  Lewis,  475. 
Jefferson  County  Sav.  Bank  v.  Eborn, 

524,  533. 
Jeffersonville  ».  Patterson,  499. 
Jefferson ville  R.R.  Co.  «.  Rogers,  582, 

Jeflersonville,  M.   &   I.    R.R.   Co.   v. 

Esterle,  85,  87,  131. 
Jeffreys.  Biglow,  189,  302. 
Jelison  v.  Lee,  408. 

Jellett  ».  St.  P.,  M.  &  M.  Ry.  Co.,  78. 
Jemison  ».  Gov.  of  Alabama,  31. 
Jemmison  «.  Gray,  591. 
Jenkins  v.  Armour,  451. 
Jennings  v.  Johnson,  108. 
V.  Loring,  155. 
V.  Maddox,  537,  533. 
Jenulson  v.  Hapgood,  497. 
Jerome  ®.  Smith,  546. 
Jersey  City_  v.  O'Callaghan,  489. 
Jesser  ».  Gifford,  97. 
Jessoy  V.  Horn,  446. 
Jeter  ».  Glenn,  353. 
Jewell «.  Grand  T.  Ry.  Co.,  160. 
Jewett ».  Whitney,  143. 
Joch  V.  Dankwardt,  56. 
Jockers^.  Borgman,  536. 
Johannesson  ».  Borschenius,  79. 
Johnson  «.  Allen,  869,  524,  535,  544. 
V.  Arnold,  198. 
V.  Atlantic  &  S.  L.  R.R.  Co., 

485. 
v.  Baltimore  &  P.  R.R.  Co., 

51. 
V.  Camp,  533,  540. 
«.  Chicago  &  N.  W.  Ry.  Co., 

122,  250,  463. 
«.  Courts,  298. 
n.  Gwinn,  599. 
V.  Holyoke,  287. 
v.  Jenkins,  531. 
®.  Mathews,  217. 
V.  Meeker,  313. 
V.  Smith,  544,  545,  546. 
V.  Stallcup,  402. 
«.  Stear,  107. 
V.  Sumner,  462. 
V.  Von  Kettler,  543. 
V,  Weedman,  853. 
®.  Wells,  56. 
Johnston  v.  Crawford,  545. 
«.  Disbrow,  535. 
Joice  v.  Branson,  524,  535,  527. 
Joliet  V.  Conway,  359. 
Jolly  V.  Single,  191. 
Jones  V.  Boyce,  800. 
v.  Call,  367. 
V.  Chamberlain,  409. 
V.  The  Cortes.  66. 
».  Festiniog  Ry.  Co.,  41. 


Jones  V.  George,  377. 

V.  Green,  586. 

V.  Hannovan,  143. 

V.  Hicks,  104. 

11.  Horn,  113. 

t>.  Jones,  445. 

V.  Lewis,  850. 

V.  Lowell,  114. 

«.  Mallory,  446. 

V.  Manufacturers'     Nat.    Bank, 
493. 

».  Matthews,  535. 

V.  Nathrop,  S'lO. 

«.  National  Printing  Co.,  340. 

«.  Queen,  585,  603. 

V.  Rahilly,  534. 

V.  Turpin,  524,  547. 

».  Van  Patten,  31. 
Jordan  «.  Lewis,  590. 

■e.  Middlesex  R.R.  Co.,  259. 
Joy  V.  Bitzer,  189.  , 

Judd  V.  Dike,  439. 
Judson  «.  Griffin,  406. 
Juillard  «.  Greenmau,  897. 
Jutte  v.  Hughes,  319,  317. 


K. 

Kalckhoff«.  Zoehrlaut,  381. 

Kaley  v.  Shed,  76,  81.  ^ 

Kane  «.  Smith,  453. 

Kankakee  &  S.  R.R.  Co.  v.  Horan,  334. 

Kansas  City  H.  Co.  v.  Sauer,  355. 

Kansas  P.  Ry.  Co.  v.  Little,  530. 

V.  Mihlman,       129, 

133,  315,  316. 
®.  Pointer,   52,   66, 
259,  321. 
Kauffman  «.  Babcock,  266. 
Keeble  v.  Keeble,  594,  595. 
Keeler  v.  Wood,  358. 
Keenan  v.  Cavanaugh,  190. 
Keene  v.  Keene,  438,  475. 

V.  Lizardi,  586. 
Keenholts  ®.  Becker,  124. 
Kehrig  D.  Peters,  536. 
Keil  V.  Chartiers  V.  C.  Co.,  539. 
Keir  v.  Leeman,  45. 
Keirnan  «.  Heaton,  532. 
Keith  V.  Haggart,  112. 
Kellogg  B.  Curtis,  589. 
■B.  Hickok,  492. 
«.  Lavender,  476. 
V.  Malin,  87. 
®.  Sweeney,  403,  403. ' 
Kelly  ».  Jones,  152. 

V.  McKibben,  321. 
«.  Partington,  176. 
V.  Renfro,  71,  75. 


xlii 


TABLE    OF   CASES. 


References 
are  to  pages. 


Kelly  ».  Rogers,  341,  346. 

®.  Sherlock,  137. 
Kelsey  i).  Murphy,  485. 

V.  Remer,  817. 
Kemble  v.  Farren,  565,  567,  575,  583, 

591,  600,  601. 
Kemmerer  v.  Edelman,  139. 
Kemp  V.  Knickerbocker  Ice  Co.,  609. 
Kendall  v.  Albia,  66,  67,  331. 

®.  Stone,  513. 
Kendrick  v.  McCrary,  70. 
Kennedy  «.  Barnwell,  450. 

«.  North  Missouri  R.R.  Co., 

503. 
«.  Strong,  483. 
«.  Whitwell,  461. 
Kenney  v.  Hannibal  &  S.  J.  R.R.  Co., 

430. 
Kennison  v.  Taylor,  353. 
Kenny  ®.  Collier,  186,  267. 
Kent  D.  Brown,  481. 

V.  Kent,  441. 
Kentucky  C.  R.R.  Co.  v.  Ackley,  53, 

gg  259  331 
Kentucky  C.  R.R.  Co.  ®.  Dills,  530. 
Kenyon  «.  Cameron,  534. 
Keppel  ij.  Petersburg  R.R.  Co.,  411. 
Kerr  ».  Haverstick,  476,  479. 
Keyes  d.  M.  &  S.  L.  Ry.  Co.,  57. 

v.  Western  Vt.  Slate  Co.,  810, 
385 
Kidder  ®.  Oxford,  464. 
Kiff  V.  Toumans,  543. 
Kilbourn  v.  Thompson,  537,  538,  530. 
Killian  ®.  Eigenmann,  431. 
Kimball ».  Holmes,  58. 

•  V.  Marshall,  113. 
Kimel  v.  Kimel,  136, 139. 
Kimes  «.  St.  Louis,  I.  M.  &  S.  Ry.  Co., 

431. 
Kimmell  «.  Bums,  476,  479. 
King  «.  Bangs,  96,  111. 
V.  Phillips,  488. 
V.  Root,  512,  535. 
«.  Steiren,  307,  337. 
Kingman  n.  Holmes,  535. 
Kingsbury  t>.  Westfall,  90. 
Kirkman  ».  Vanlier,  443,  493. 
Kirtland  «.  Molton,  413. 
Kitchen  v.  Branch  Bank  at  Mobile,  440. 
Klewin  v.  Bauman,  535. 
Klock  ».  Robinson,  483,  487. 
Klopfer  V.  Bromme,  545. 
Knapp  «.  Barnard,  195. 

B.  Great  W.  Ry.  Co.,  131. 
V.  Maltby,  573,  599. 
V.  Roche,  79. 

v.  U.  S.  &  C.  Ex.  Co.,  383. 
Knettle  ®.  Grouse,  498. 
Knickerbocker  Ins.  Co.  v.  Gould,  439. 


Knight  v.  Egerton,  83. 

V.  Ma,nt7.,  445. 

■V.  Mitchell,  453. 
Knowles  «.  N.  8.  R.R.  Co.,  524,  538, 
582. 
V.  Nunns,  189. 
Knowlton  «.  Mackay,  599. 
Knox  71.  Jones,  436. 

V.  Lee,  396. 
Koenigs  ».  Jung,  533. 
Koestenbader  «.  Peirce,  87. 
Kohler  v.  Smith,  475. 
Kohne  «.  Ins.  Co.  of  N.  Amer. ,  386. 
Kolb  V.  Bankhead,  530. 

V.  O'Brien,  530. 
Koons  4).  Miller,  436. 
Kornegay  «.  White,  469. 
Koshkonong  ii.  Burton,  499. 
Kountz  ».  Brown,  530,  538. 

®.  Kirkpatrick,  373. 
Krapp  «.  Aderholt,  441. 
Krom  e.  Levy,  276. 
Krueger  ®.  Le  Blanc,  299. 
Krug  V.  Ward,  363. 
Kuhn  ■».  Myers,  589. 
Kurtz  V.  Frank,  75. 

V.  Sponable,  604. 
Kyle  s.  Barnett,  443. 


La  Amistad  de  Rues,  853. 

Lacour  v.  New  York,  364. 

Ladd  V.  Arkell,  406,  408. 

Laflin  v.  Willard,  145. 

Lahr  ».  Met.  El.  R.R.  Co.,  133. 

Laidley  «.  Merrifield,  484. 

Lake  Erie  &  W.  Ry.  Co.  b.  Fix,  68. 

Lake  Shore  &  M.  S.  Rv.  Co.  v.  Frantz, 

52,  359,  331. 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  Rosen- 

zweig,  534,  538,  539. 
Lamb  v.  Stone,  38,  33. 
V.  Walker,  137. 
Lambert  v.  Haskell,  364. 
Lamoreux  v.  Rolfe,  126. 
Lampman  ■».  Cochran,  593,  594. 
Lanahan  v.  Ward,  480,  498. 
Lancashire  &  Y.  Ry.  Co.  v.  Gidlow, 

364. 
Landa  v.  Obert,  341,  345. 
Lane  ».  Hitchcock,  95. 
Lane  County  v.  Oregon,  401. 
Langdon  v.  Castleto'n,  452,  497. 
Lange  v.  Wagner,  192. 

V.  Werk,  595,  699. 
Langford  v.  Owsley,  127.  129. 
Langston  ®.  South  Car.  R.R.  Co.,  476, 

499. 


References 
are  to  pages. 


TABLE    OF   CASES. 


xliii 


Lansing  ».  Rattoone,  448. 
V.  Smith,  43. 
V.  Wiswall,  43. 
Lanusse  v.  Barker,  190.  408. 
Lapleine  d.  R.R.  &  S  Co.,  160. 
Larios  «.  Bonany  j  Gurety,  184,  188. 
Larmon  v.  District,  51,  60,  259,  331. 
Larrabee  v.  Lumbert,  127. 
Larson  «.  Grand  Forks,  537. 
Lash  «.  Lambert,  491. 
Latham  v.  Brown,  380. 

«.  Darling,  480. 
Latimer  v.  Hotter,  108. 
Ijaltin  V.  Davis,  4t)6. 
Laura  Jane  v.  Hagen,  490. 
Laurea  v.  Bernauer,  599. 
Lavery  v.  Crooke,  534,  544. 
Law  V.  House,  588. 
Lawrence  v.  Cowles,  481,  605. 

V.  Hagerman,  264,  363,  533. 
«.  Housatonic  R.R.   Co.,  51, 

66. 
V.  Jenkins,  190. 
V.  Kemp,  136. 
V.  Rice,  145. 
V.  Wardwell,  199. 
Lawrence  R.R.  Co.  v.  Cobb,  470. 
Lawrence    R.R.     Co.    v.     Malioning 

County,  328. 
Lawson  v.  Chicago,  S.  P.  M.  &  0.  Ry. 
Co.,  122,  250. 
V.  Price,  264,  300,  315. 
Lawton  v.  Fitchburg  R.R.  Co.,  319. 
Lazarus  v.  Ely,  82. 
Lea  ».  Whitaker,  593. 
Leach  v.  Smith,  411. 
Leary  v.  Laflin,  595. 
Leatherberry  v.  Odell,  317. 
Leathers  v.  Sweeney,  88. 
Le  Blanche  v.  London  &  N.  W.  Ry. 

Co.,  322. 
Le  Branthwait  v.  Halsey,  492. 
Ledbetter  v.  Morris,  136. 
Lee  V.  Lashbrooke,  445. 
n.  Overstreet,  583. 
V.  Riley,  190. 
V.  Wilcocks,  408. 
Leeds  v.  Metropolitan  G.  L.  Co.,  247. 
Leffingwell  v.  ElUott,  123,  348,  353,  357. 
Lefurgy  «.  McGregor,  603. 
Legal  Tender  Cases,  398. 
Legare  v.  Frazer,  355. 
Legge  V.  Harlock,  603. 
Leggett  V.  Baker,  82. 
Legrange  v.  Hamilton,  492. 
Leighton  v.  Wales,  599. 
Lentz  V.  Choteau,  279. 
Leonard  v.  New  York,  A.  &  B.  E.  M. 
Tel.Co.,338,334,336,337. 
V.  Villars,  498. 


Lethbridge  v.  Mytton,  120. 
Letcher  ii.  Woodson,  433. 
Levan  v.  Wilten,  105. 
Levitzky  v.  Canning,  353,  354. 
Levy  V.  Loeb,  107.  " 
Lewers  v,  Shaftesbury,  5. 
Lewis  V.  Bradford,  442. 
V.  Paschal,  492. 
*.  Peachy,  128. 
V.  Peake,  354. 
«.  Rountree,  435. 
v.  Small,  498. 
Leyde  v.  Martin,  452. 
Lienkauf  ».  Morris,  530,  536. 
Lienow  ».  Ritchie,  97. 
Lightner®.  Menzel,  598. 
Lilliei).  Dunbar,  110. 

».  Lillie,  351. 
Lincoln  «.  Claflin,  473. 

V.  Saratoga  &  8.  R.R.  Co.,  181, 
248,  249,  343. 
Linder  v.  Lake,  149. 
Lindley«.  Richmond  &  D.   R.R.  Co., 

194,  330. 
Lindsay  v.  Anesley,  589. 
Linn  s.  Minor,  401. 

Linsley  v.  Bushnell,  343,  511,  524,  530. 
Linville  v.  Black,  106. 
Little  41.  Banks,  440. 

V.  Boston  &  M.  R.R.  Co.,  161, 

209. 
V.  McGuire,  315,  337. 
Littlejohn  b.  Wilcox,  350. 
Lively,  The,  252. 
LivermorcB.  Northrup,  74. 

«.  Rand,  449. 
Livingston  c.  Burroughs,  541. 
1).  Exum,  351. 
V.  Miller,  466. 
Llewellyn  v.  Rutherford,  264,  272,  379. 
Lloyd  v.  Goodwin,  114. 

T.  Lloyd,  317. 
Lodge  V.  Spooner,  408. 
Loeser  «.  Humphrey,  337. 
Logan  «.  Hannibal  &  S.  J.  R.R.  Co., 

541. 
Logansport  v.  Justice,  261. 
Logansport,  C.  &  S.  Ry.  Co.  «.  Wray, 

Loker  v.  Damon,  296,  311,  331. 
Lombard  v.  Batchelder,  539. 
London  Bank  v.  White,  443. 
Long  V.  Clapp,  189. 

v.  Lambkin,  76. 

«.  Towl,  593. 
Longworth  v.  Mitchell,  398. 
Loomis  D.  Stave,  106. 
Loosemore  v.  Radford,  389. 
Lord  V.  Carbon  Iron  Mfg.  Co.,  139. 

v.  Gaddis,  593. 


xliv 


TABLE   OF   CASES. 


Beferenxxs 
are  to  pages. 


Lord  ».  New  York,  485. 
Losee  «.  Buchanan,  35,  38,  39. 
Louder  «.  Hinson,  537,  533. 
Loudon  ».  Taxing  District,  418. 
Louisville  &  N.  R.R.  Co.  ».  Ballard, 

534,  537,  538,  538. 
Louisville  &  N.  R.R.  Co.   ■».  Brooks, 

546. 
Louisville  &  K.  R.R.  Co.  t.  Garrett, 

538. 
Louisville  &  N.  R.R.  Co.  «.  Whitman, 

67. 
Louisville  &  P.   R.R.   Co.  v.  Smith, 

503. 
Louisville,   N.   &  G.   S.   R.R.  Co.  v. 

Fleming,  334. 
Louisville,   JST.   &  G.   S.   R.R.  Co.   v. 

Guinan,  534. 
Louisville,  N.  A.  &  C.  Ry.  Co.  ».  Fal- 

vey,  161,  338. 
Louisville,  N.  A.  &  C.  Ry.Co.  b.  Jones, 

160. 
Louisville,  N.  A.  &  C.  Ry.  Co. «.  Moore, 

330. 
Louisville,  N.  A.  &  C.  Ry.   Co.    «. 

Shanks,  530. 
Louisville,  N.  A.  &  C.  Ry.   Co.    t. 

Sumner,  830. 
Lowe  ®.  Peers,  560,  564. 
®.  Waller,  419. 
«.  Wing,  113. 
Lowell  D.  Parker,  105. 

v.    Boston    &    L.    R.R.    Co., 
363. 
Lowenstein  v.  Monroe,  183,  351. 
Lowndes  «.  Collins,  433. 
Lucas  «.  Trumbull,  76. 

«.  Wattles,  464. 
Luce  ®.  Hoisington,  387,  398. 
Luck  «.  Ripon,  360,  361. 
Ludden  ».  Buffalo  B.  Co.,  106. 
Ludwick  11.  Huntzinger,  476. 
Lund  «.  New  Bedford,  139, 143. 
Lunsford  v.  Dietrich,  57,  68. 
Lunt  e.  Phllbrick,  69. 

V.  Wrenu,  349,  354. 
Luse  «.  Jones,  53,  364,  315. 
Luther  v.  Winnisimmet  Co.,  86. 
Lyle  i).  Barker,  101,  104. 
Lyles  v.  Lyles,  416. 
Lyman  «.  Babcock,  593. 
Lyme  Regis  «.  Henley,  43. 
Lynch  v.  De  'Viar,  443. 

V.  Knight,  56,  58. 
Lynde  v.  Thompson,  599. 
Lyon  V.  Hersey,  351. 
Lyons  v.  Chamberlin,  443. 
®.  Erie  Ry.  Co.,  337. 
v.  Merrick,  190. 
Lytton  ».  Baird,  350,  363. 


m. 

McAfee  «.  CrofEord,  180. 
McAllister®.  Clement,  155. 
McAlpia  B.  Woodruff,  354. 
McAneany  «.  Jewett,  148. 
McAulay  v.  Allen,  112. 
McBride  ®.  McLaughlin,  544. 
McCabe  v.  Morehead,  534. 
McCalla  v.  Clark,  108. 
McCardle  «.  McGlnley,  363. 
McCarthy  v.  De  Armit,  533,  539. 

«.  Niskern,  534,  544. 

«.  St.  Paul,  337. 
McCarty  ».  Quimby,  463. 
McCausland  «.  Bell,  486. 
McClendon  v.  Wells,  531. 
McClure  s.  Hill,  112. 
McCollum  V.  Seward,  450,  461. 
McComb  ®.  Reed,  401. 
McConnel  ».  Kibbe,  136. 
McCormick  v.  P.  C.  R.R.  Co.,  76,  463. 

v.  Vanatta,  298. 
McCoy  «.  P.  W.  &  B.  R  R.  Co.,  539. 
McCuaigB.  Quaker  City  Ins.  Co.,  366. 
McDaniel  ».  Crabtree,  277,  355. 

«.  Parks,  307. 
McDonald  ».  Everitt,  380. 

■0.  Hodge,  416. 

«.  James,  353. 

«.  North,  79,  461. 

V.  Norton,  534. 

«.  Scaife,  875,  463. 

r.  Unaka  T.  Co.,  369. 
Mace  ».  Ramsey,  385. 
McElroy  ».  Goble,  143 
McFadden  «.  Crawford,  450. 

«.  Hopkins,  112. 

®.  Whitney,  76. 
McGoon  V.  Shirk,  400. 
McGowen  e.  Young,  114. 
McGuire  «.  Grant,  137. 
McHose  V.  Fulmer.  319.  231,  334,  301. 
Mcllvaine  «.  Wilkins,  433,  449. 
Mclnhill ».  Odell,  398. 
Mclnnis  v.  Lyman,  78. 
Mclnroy  ».  Dyer,  79,  80,  468. 
Mclntire  «.  Cagley,  597. 
V.  Sholty,  527. 
Mackintosh  d.  Great  W.  Ry.  Co.,  436. 
Mcintosh  ».  Lee,  155. 
Mclntyre  «.  Giblin,  66. 
McKay  ».  Lane,  469. 
Mackay  «.  Western  TJ.  T.  Co.,  319. 
McKenney  «.  Haines,  466. 
McKeon  ».  Citizens'  R.R.  Co.,  502,  535, 
538. 
«.  See,  39. 
McKim  «.  Bartlett,  136,  148. 
«.  Blake,  485. 


art  to  pages. 


TABLE    OF    CASES. 


xlv 


McKinley  «.  Chicago  &  K.  W.  Ry.  Co., 

53,  66,  259,  321. 
McKinnon  w.  McEwan,  276. 
McKnight  «.  Dunlop,  457,  459. 

V.  Ratclifl,  257. 
McLane  v.  Abrams,  475. 

B.  Elmer,  6. 
McLaughlin  «.  Bangor,  287. 

V.  Corry,  52,  66,  121. 
McLean  v.  Tinsley,  592. 
McLendon  v.  Anson  County,  499. 
McLeod  11.  Boulton,  137, 145. 

».  Sandell,  152. 
McLimans  v.  Lancaster,  485. 
McMahon  v.  Field,  312,  214. 

V.  New  York    &    E.   R.R. 
Co.,  455,  456,  457,  459, 
470. 
«.  Northern  C.  Ry.  Co.,  52, 
66,  321. 
McMaster  ®.  State,  459,  460. 
McMichael  v.  Mason,  80. 
McMillan  ».  Union  P.  B.  "W.,  52,  66. 
McNamara  v.  Clintonville,  160,  261. 

«.  King,  513,  532. 
McNeill  V.  Reid,  282. 
Macomber  ®.  Dunham,  475. 
Macon  Co.  v.  Rodgers,  476. 
McPhee  «.  Wilson,  603. 
McPheeters  v.  Hannibal  &  8.  J.  R.R. 

Co.,  529.    . 
McPherson  v.  Ryan,  534,  531. 
McPheters  v.  Moose  R.  L.  D.  Co.,  194. 
McRae  «.  Brown,  350. 
V.  Clark,  293. 
V.  Malloy,  443. 
MacVeagh  v.  Bailey,  183,  195. 
McWilliams  v.  Bragg,  524. 
V.  Hoban,  532. 
Madison  County  v.  TuUis,  186. 
Madison  Nat.  Bank  «.  Parmer,  110. 
Magee  v.  Holland,  534,  584. 

«.  Lavell,  591. 
Magmer  v.  Renk,  363. 
Magner  «.  Knowles,  443. 
Magrane  ■».  Archbold,  613. 
Mahan  v.  Brown,  83. 
Maher  v.  Winona  &  S.  P.  R.R.  Co., 

155. 
Mahoney  v.  Belford,  68. 
Mahurin  v.  Bickford,  483. 
Mailler  «.  Express  Prop.  Line,  289, 323, 

334. 
Main  v.  King,  598. 

Mairs  v.  Manhattan  R.  E.  Assoc,  462. 
Malecek  «.  Tower  G.  &  L.  Ry.  Co.,  537. 
Malone  ii.  Hawley,  66,  131. 
Maltman  T:  Williamson,  449. 
Mandia  v.  McMahon,  197. 
Maner  v.  Wilson,  476. 


Mangum  v.  Ball,  411. 
Manhattan  S.  W.  v.  Koehler,  298. 
Manicet'.  Brady,  580. 
Mann,  Succession  of,  488. 
Mann  «.  Cross,  498. 

V.  Taylor,  230,  483. 
Manning  v.  Manning,  443. 

T.  Monaghan,  111. 
Mannville  Co.  ».  Worcester,  78. 
Mansfield  r.  New  York  C.  &.  H.  R. 

R.R.  Co.,  456. 
Manufacturers'  Nat.   Bank  ».   Perry, 

443. 
Marburg  v.  Marburg,  405,  406. 
March  b.  Allabough,  592. 
Marcy  i>.  Pries,  86,  87. 
Margaret,  The,  v.  The  Connestoga,  347. 
Marietta  Iron  Works  «.  Lottimer,  476. 
Marine  Bank  v.  Fulton  Bank,  398. 
Marks  ».  Long  Island  R.R.  Co.,  263. 
Marlow  «.  Lajeunesse,  289. 
Marqueze  «.  Sontheimer,  183,  264. 
Marr  v.  Prather,  409. 

V.  Western  U.  T.  Co.,  815. 
Marrin  ».  Graver,  273. 
Marsh  v.  Billings,  144. 

V.  Fraser,  452,  459. 
V.  McPherson,  77. 
Marshal]  v.  Betner,  345,  533. 
i>.  Dudley,  433. 
V.  Marshall,  413. 
V.  Schricker,  431. 
V.  Welwood,  36. 
«.  Wood,  469. 
Martin  ».  Franklin,  408. 
«.  Hill,  337. 
V.  Riddle,  583. 
«.  State,  452,  459. 
Martinsville  v.  Shirley,  87. 
Marys's  Case,  140. 
Marzetti  v.  Williams,  136,  147. 
Mason  v.  Callander,  481,  496,  498. 
V.  Ellsworth,  52. 
«.  Hawes,  844,  523. 
Massachusetts  Hospital  v.  Prov.  L.  Ins. 

Co.,  406. 
Masters  u.  Warren,  51,  66. 
Masterton  v.  Mayor  of  Brooklyn,  279. 

».  Mt.  Vernon,  261,  363. 
Mather  s.  Amer.  Ex.  Co.,  161,  218. 
V.  Butler  County,  305. 
».  Kinike,  404. 
Mathew  v.  Sherwell,  382. 
Mathews  v.  Sharp,  593. 
Mathieu  v.  La.Samme,  523. 
Matteson  v.  New  York  C.  R.R.  Co.,  66. 
Mattingly  ».  Boyd,  493. 
Maury  ».  Coyle,  461. 
Maxwell  v.  Allen,  585,  599. 
V.  Kennedy,  535. 


xlvi 


TABLE   OF   CASES. 


Heferevces 
are  to  pages. 


Mayer  v.  Duke,  83,  546. 

«.  Reed,  491. 
Mayflower,  The,  389. 
Maynard  ».  Maynard,  315. 
Mayo  «.  Springfield,  85. 
Maysville  v.  Stanton,  133. 
Mead  v.  Wheeler,  440,  598. 

«.  Young,  56. 
Meaders  v.  Gray,  476. 
Meagher  ».  Driscoll,  58. 
Hears  \\  Cornwall,  105. 
Meason's  Estate,  484. 
Mechanics'  &  Tr.  Bank  «.  Farmers'  & 

M.  Bank,  101. 
Meech  ».  Smith,  435. 
Meibus  b.  Dodge,  530,  544. 
Meidel  -o.  Anthis,  503,  535,  545. 
Melcher  ®.  Scruggs,  69. 
Mellor  «.  Spateman,  136. 
Memphis  &  C.  K.R.  Co.  «.  Reeves.  316. 
Memphis  &  C.  R.R.   Co.  ■».  Whitfield, 

53,  66,  259,  321,  530. 
Memphis  &  L.  R.R.  Co.  «.  Walker, 

410. 
Mendelsohn  e   Anaheim  Lighter  Co., 

536,  539. 
Menkens  v.  Menkens,  380. 
Mercer  v.  Beale,  483. 
®.  Irving,  593. 
«.  Jones,  381. 
V.  Vose,  458,  461. 
Merest  v.  Harvey,  507. 
Merrifield  d.  Longmire,  497. 
Merrill  v.  How,  79,  320. 
®.  Merrill,  588. 
«.  Western  U.  T.  Co.,  150. 
Merrills  «.  Tariff  Mfg.  Co.,  511. 
Merritt «.  Nevin,  356. 
Merryman  i>.  Crlddle,  466. 
Meserve  «.  Ammidou,  416. 
Messmore  ®.  N.  Y.  Shot  &  Lead  Co., 

229 
Metcalf'i).  Baker,  261,  831. 
Metier  v.  Easton  &  A.  R.R.  Co.,  465. 
Metroplitan  E.  Ry.  Co.  ».  Kneeland, 

380. 
Meyer  v.  Bohlfing,  544. 
Mickle  V.  Miles,  88. 
Mickles  v.  Hart,  145. 
MiddlekaufC  «.  Smith,  376,  310,  837. 
Middleton  ».  Jerdee,  155. 
Mihills  M.  Co.  ■».  Day,  220. 
Milbank  b.  Dennistoun,  469. 
Milburn  t.  Belloni,  291. 
Mildmay  «.  Methuen,  426. 
Miles  B.  Bacon,  445. 
D.  Edwards,  351. 
V.  Walther,  102. 
Millard  v.  Brown,  540. 
Miller  t.  Bank  of  Orleans,  490. 


Miller  «.  Barber,  385. 

4).  Burroughs,  476. 
«.  Edwards,  480. 
».  Garling,  320. 
t.  Garrett,  350. 
v.  Hall,  480. 
«.  Kempner,  481. 
«.  Kirby,  526. 

V.  Mariners'  Church,  396,  311. 
4).  Roy,  68. 
Millikiu  «.  Sloat,  401. 
Mills  v.  Hall,  43. 

«.  Jefferson,  499. 
Milne  v.  Rempublicam,  444. 
Milton  ®.  Blackshear,  449. 
Milwaukee  &  M.  R.R.  Co.  v.  Finney, 

537,  539. 
Milwaukee  &  8.  P.  Ry.  Co.  v.  Arms, 

39,  523,  539,  580. 
Minard  «.  Beans,  418. 
Minor  v.  The  Picayune  No.  3,  254. 
Mississippi  &  R.R.  Boom  Co.  c.  Patter- 
son, 378. 
Mississippi  &  R.R.  Boom  Co.  «.  Prince, 

194,  293. 
Missouri,   K.   &  T.   Ry.   Co.  v.  Fort 

Scott,  286. 
Missouri,  K.  &  T.  Ry.  Co.  «.  Weaver, 

53,  66,  359,  831. 
Missouri  P.  Ry.  Co.  «.  Humes,  533. 
Mitchell  v.  Barry.  139,  143. 
«.  Clarke,  182. 
«.  Cornell,  285. 
«.  Darley  Main  C.  Co.,  127. 
«.  Hawley,  353. 
Mix  V.  Miller,  450. 
Mixed  Moneys,  Case  of,  395. 
Mizner  «.  Frazier,  393. 
M.  J.  Sanford,  The,  389. 
Mobile  &M.  R.R.  Co.  r.  Ashcraft,  530. 

V.  Jurey,  473. 
Mobley  v.  Davega,  480. 
Monnett  v.  Sturges,  476. 
Monroe  i>.  Lattin,  287. 
Monroe  County  «.  Clarke,  448. 
Montana  Ry.  Co.  t.  Warren,  377. 
Montgomery  ».  Tutt,  498. 

».  Wilson,  82. 
Monticello,  The,  v.  Mollison,  90. 
Moody  ».  Drown,  388. 

».  McDonald,  530. 
«.  Whitney,  461. 
Moon  ®.  Raphael,"74. 
Moore  «.  Adam,  195. 

®.  Anderson,  581,  587. 

v.  Colt,  602. 

v.  Crose,  526,  527. 

«.  Davis,  191. 

V.  Fleming,  409. 

V.  Gooch,  411. 


E&feveni:6s 
are  to  pages. 


TABLE   OF  CASES. 


xlvii 


Moore  v.  Hall,  377. 

V.  Hamsberger,  413. 
D.  Hylton,  590. 
V.  Love,  138. 
V.  Minerva,  360. 
V.  Patton,  450,  453,  459. 
«.  Platte  County,  593. 
V.  Schultz,  264. 
«.  Winter,  133. 
Moreland  ».  Lawrence,  475. 
Morey  «.  Metropolitan  G-.  L.  Co.,  367. 
Morford  i'.  Ambrose,  433. 
Morgan  v.  Curley,  68. 
».  Kidder,  74. 
Morris  v.  Allen,  445. 

11.  McCoy,  587,  593. 
11.  Price,  350. 
V.  Shew,  533. 
Morrison  v.  Crawford,  83. 

i>.  Darling,  180,  358. 
V.  Davis,  316. 
«.  FlorioS.S.  Co.,  89. 
Morrow  v.  Rainey,  398. 

«.  "Waterous,  137. 
Mors-le-Blanch  v.  Wilson,  360. 
Morse  v.  Auburn  &  S.  R.R.  Co.,  53. 

«.  Ratbburn,  589. 
Mortin  ».  Shoppee,  55. 
Moseley  ®.  Anderson,  375. 
Mosely  «.  Sanders,  345. 
Mosseller  v.  Deaver,  533. 
Mote  «.  Chicago  &  N.  W.  R.R.  Co., 

463. 
Mott  V.  Mott,  599. 
Moulton  i>.  Chapin,  149. 
Mounson  v.  Redshaw,  438. 
Mountford  ».  Gibson,  84. 
Mowry  i].  Bishop,  496,  498. 

V.  Wood,  389. 
Moyer  «.  Gordon,  57,  58,  68,  71. 
Mueller  v.  Kleine,  585,  603. 
Muldowney  ®.  111.  C.  Ry.  Co.,  53,  66, 

321 
MuUett'«.  Mason,  189. 
Mullin  V.  Spangenberg,  544. 
Mundy  v.  Culver,  595. 
Munroe  s.  Gates,  139. 
Munson  ®.  Munson,  74. 
Munteri).  Bande,  539. 
v.  Rogers,  399. 
Murdock  v.  B.  &  A.  R.R.  Co.,  55,  313. 
Murphy  v.  Central  Park,  N.  &  E.  R. 
R.R.  Co.,  537,  539. 
«.  Pond  du  Lac,  85,  143. 
V.  Hobbs,  76,  531,  544. 
«.  Larson,  541. 
Murray  v.  Burling,  77. 
B.  Gale,  399. 
■».  Jennings,  31. 
V.  Stanton,  373. 


Murray  v.  Ware,  469. 
Murrell  v.  Whiting,  313,  336. 
Muse  V.  Swayne,  5t)9. 
Myer  v.  Hart,  584,  597. 
Myers  v.  Burns,  319,  311,  335. 

1).  Malcolm,  43. 

■0.  Walker,  446. 
Mygatt  V.  Wilcox,  458. 

IV. 

Nagle  V.  MuUison,  533,  546. 
Naglee  v.  Ingersoll,  448. 
Narragansett,  The,  339. 
Nash  t.  Hermosilla,  573. 

V.  Sharpe,  360. 
Nashville  «.  Comar,  137. 

V.  First  Nat,  Bank,  499. 
Nashville  &  C.  R.R.  Co.  v.  Starnes, 

537,  588. 
National  Copper  Co.  «.  Minn.  Mining 

Co.,  139. 
National  Bxch.  Bank  v.  Hartford  P.  & 

F.  R.R.  Co.,  499. 
National  Lancers  v.  Lovering,  449. 
National  Prov.  Bank  of  Eng.  «.  Mar- 
shall, 599,  613. 
Neal  «.  Freeman,  443,  446. 

V.  Keel,  446. 
Negus  V.  Simpson,  461. 
Nelson  i).  Felder,  483,  493. 
Nessle  v.  Reese,  613. 
Newark  Coal  Co.  v.  Upson,  368. 
Newark  S.  I.  v.  Panhorst,  363. 
Newberry  ».  Bennett,  335. 
Newcomb  v.  Wallace,  153. 
Newel  v.  Keith,  459. 
Newell  V.  Griswold,  453. 
V.  Houlton,  481. 
«.  Smith,  463,  468. 
«.  Whitcher,  533. 
Newhall  i>.  Ireson,  139. 
New  Haven  &  N.  Co.  v.  Hayden,  357. 
New  Haven  S.  B.  Co.  v.  Mayor,  191, 
333. 
v.  Vanderbilt, 
389. 
New  Jersey  Ex.  Co.  «.  Nichols,  360. 
Newman  ®.  KefEer,  448. 

».  St,  L.  &  I.  M.  R.R.  Co., 

533. 
®.  Stein,  68,  534. 
V.  Wolfson,  595,  599. 
New  National  Turnpike  Co,  «.Dulaney, 

353. 
New  Orleans  D.  Co.  «.  De  Lizardi,  461. 
New  Orleans,  J.  &  G.  N.  R.R.  Co.  v. 

Allbrittou,  345,  533, 
New  Orleans,  J.  &  G.  N.  R.R.  Co.  ®. 
Echols,  304. 


xlviii 


TABLE    OF   CASES. 


References 
are  to  pages. 


New  Orleans,  J.  &  G.  N.  R.R.  Co.  ». 

Hurst,  548. 
New  Orleans,  J.  &  G.  N.  R.R.  Co.  v. 

Moore,  366. 
New  Orleans,   M.   &  T.  R.R.   Co.  v. 

Southern  &  A.  T.  Co.,  155. 
New  Orleans,  S.  L.  &  0.  R.R.  Co.  v. 

Burke,  546. 
Newson  v.  Douglass,  439. 
Newton  v.  Keunerly,  475. 

D.  Russell,  353. 
New  World,  The,  v.  King,  539. 
New  York,  Mayor  of,  «.  Furze,  43. 
New  York  &  C.  M.  S.  •».  Fraser,  191. 
New  York  Dry  Dock  Co.  ».  Mcintosh, 

147. 
New  York  8.  M.  M.  P.  Co.  «.  Reming- 
ton, 306. 
New  York,  W.  S.  &  B.  Ry.  Co.,  in  re, 

338. 
Nichols  V.  Marsland,  40. 
Nickerson  ».  Soesman,  405. 
Nightingale  v.  Scannell,  537,  539. 
Niles  ®.  Commissioners,  496,  498. 
Niver  v.  Rossman,  593. 
Noble  V.  Arnold,  350,  351,  353. 

V.  Bpperly,  103. 
Nobles  «.  Bates,  571,  586,  599. 
Noonan  «.  Ilsley,  416. 
Nordhans  v.  Peterson,  526. 
Norman  v.  Rogers,  74. 
Norris'  Appeal,  443. 
Norris  «.  Hall,  492. 

«.  Philadelphia,  485. 
Norristown  v.  Moyer,  90. 
Northam  »  Hurley,  142. 
Northampton  Nat.  Bank  «.  Wylie,  351. 
Northern  Transp.  Co.  v.  Sellick,  463. 
North  H.  C.  R.R.  Co.  v.  Booraem,  464. 
North  P.  Ry.  Co.  v.  Adams,  499. 
North  R.  M.  Co.  ■».  Christ  Church,  440. 
Northrop  e.  Graves,  447. 
Northrup  a.  McGill,  80. 
North  Vernon  «.  Voegler,  133. 
Nossaman  «.  Rickert,  66,  544. 
Nosotti «.  Page,  136. 
Nova  Scotia  T.  Co.  v.  American  T.  Co., 

404. 
Noyes  v.  Phillips,  559,  599. 

«.  "Ward,  844. 
Nurse  v.  Barns,  300. 


O. 


Oakes  v.  Richardson,  433. 
Obermyer  t).  Nichols,  438,  448. 
O'Brien  ».  McCann,  79. 

v.  Norwich  &  W.  R.R.  Co.,  43. 

®.  Young,  489. 


O'Donnell  v.  Rosenberg,  603. 

O'Donoghue  v.  Corby,  380. 

Oelrichs  «.  Spain,  338,  343,  346,  348, 
351. 

Offutt  V.  Edwards,  340. 

O'Hanlan  «.  Great  W.  Ry.  Co.,  368. 

Ohio  &  M.  Ry!  Co.  v.  Dickerson,  53, 
90. 
V.  Dunbar,  319. 
%.  Hecht,  160, 

Old  Colony  R.R.  Co.  ®.  Miller,  464. 

Olds  ■».  Carey,  352. 

Oliphint  V.  Mansfield,  351. 

Oliver  b.  La  Valle,  160. 

V.  Northern  P.  T.  Co.,  52,  259, 
331. 

Olmstead  v.  Brush,  148. 
v.  Burke,  269. 

Omaha  &  R.  V.  R.R.  Co.  ■».  Standen, 
133 

O'Neall  V.  Bookman,  498. 

Opinion  of  Court  in  response  to  Gov- 
ernor, 400. 

Oriental  Banks.  Tremont  Ins.  Co.,  493. 

Ormsby  v.  Vermont  C.  M.  Co.,  384. 

Orr  v.  Churchill,  570,  604. 
V.  New  York,  431,  463. 

Osborn  «.  U.  S.  Bank,  493. 

Osborne  «.  Ehrhard,  363. 
V.  Poket,  398. 

Osbourne  v.  Hosier,  440. 

Ossulston  «.  Yarmouth,  495. 

Otis  V.  Jones,  83. 

Ottenot  V.  New  York,  L.  &  W.  Ry. 
Co.,  133. 

Ottumwa  V.  Parks,  358,  363. 

Oursler  v.  Baltimore  &  O.  R.R.  Co., 
540. 

Outhouse  ».  Outhouse,  381. 

Overton  v.  Bolton,  476,  477. 

Oviatt  v.  Pond,  462. 

Owen  ».  O'Reilly,  147. 

Owens  V.  Hodges,  594. 


Pacific  E.  Co.  ■».  Darnell,  217. 
Pacific  Ins.  Co.  ®.  Conard,  339,  342. 
Packard  «.  Slack,  189. 
Paddock  r.  Atchison,  T.  &  S.  F.  R.R. 

Co.,  51. 
Page  V.  Bucksport,  337. 

v.  Ford,  179. 

®.  Newman,  433,  433. 

B.  Pavey,  278. 
Paige  V.  Willet,  443. 
Paine  ■».  Caswell,  474,  480. 

®.  Chicago,  R.  I    &  P.  Ry.  Co., 
68. 


an  to  pages. 


TABLE   OF    CASES. 


xlix 


Paine  «.  Partrich,  43. 
Palmer  ».  Crosby,  131. 

V.  Murray,  463,  486. 

».  Stockwell,  460. 
Pana  «.  Bowler,  494,  499. 
Parfitt «.  Chambre,  686. 
Parham  ».  McMurray,  80. 
Parish  11.  Wheeler,  112,  113. 
Park  ®.  Wiley,  439. 
Parker  v.  Bond,  351. 

V.  Connor,  83. 

t>.  Davis,  396. 

v.  Grlswold,  139. 

v.  Hutchinson,  433. 

«.  Meadows,  310,  338,  837. 

v.  Mise,  533. 

V.  Parker,  450. 

«.  Russell,  126. 

V.  Shackelford,  583,  538. 

V.  Thompson,  493. 
Parkhurst «.  Masteller,  57,  68,  520,  524, 

582. 
Parks  ®.  Boston,  464. 
«.  Marshall,  409. 
».  Morris  A.  &  T.  Co.,  291. 
■B.  O'Connor,  220. 
«.  Wilson,  552. 
Parmalee  v.  Wilks,  216,  820. 
Parr  ®.  Greenbush,  585,  595. 
Parrott  v.  Housatonic  E.R.  Co.,  462. 

®.  Knickerbocker  Ice  Co.,  463. 
Parry  v.  Frame,  387. 
Parshall  <o.  M.  &  S.  L.  Ry.  Co.,  260. 
Parsons  «.  Harper,  868. 

i>.  Sutton,  217,  801,  314. 
Pasley  v.  Freeman,  83,  143. 
Pastorius  V.  Fisher,  138,  511. 
Passinger  i\  Thorburn,  278. 
Patent  Brick  Co.  «.  Moore,  608. 
Patrick  v.  Greenaway,  138. 
Patterson  «.  Great  W.  Ry.  Co.,  183. 
Patton  V.  Garrett,  345,  351,  352,  528. 
Paul  V.  New  York,  487,  488. 
«.  Slason,  34,  145,  154. 
PauUing  «.  Creagh,  496. 
Pauska  v.  Daus,  493,  494. 
Payne  v.  Haine,  313. 

V.  Railroad  &  S.8.  Co.,  277. 
Pearce  ®.  Hennessy,  476. 
Pearson  v.  Carr,  137. 

®.  Williams,  609. 
Pease  v.  Smith,  461. 
Peck  V.  Inlow,  118,  534. 
V.  Small,  533,  544. 
Peckham  Iron  Co.  v.  Harper,  344,  533. 
Peek  v.  Derry,  385. 
Pegram  v.  Stortz.  521,  523. 
Peine  v.  Weber,  589. 
Peirce  ».  Rowe,  497,  498. 
Peldn  V.  Reynolds,  487. 
Vol.  I.— d 


Peltz  v.  Eichele,  81,  265. 
Pendergast  v.  M'Caslin,  133. 
Penland  v.  Leatherwood,  106. 
Penley  «.  Watts,  310. 
Pennell  «.  Woodburn,  354. 
Pennsylvania  &  O.  C.  Co.  «.  Graham, 

52,  66,  259,  321. 
Pennsylvania  R.R.  Co.  ii.  Allen,  53. 
D.  Connell,  68. 
®.  Dale,  261,264. 
V.  Marion,  90. 
1).  Reichert,  608. 
Pennypacker  v.  Jones,  276,  585. 
People  «.  Albany,  216. 

t>.  Canal  Comm'rs,  465. 

«.  Central  P.    R.R.    Co.,    584, 

587,  592. 
V.  Gasherie,  448. 
«.  Love,  595. 

V.  Musical  M.  P.  Union,  180. 
®.  New  York,  439,  488. 
V.  Supervisors,  458,  459. 
Peoria  M.  &  F.  Ins.  Co.  v.  Lewis,  439. 
Perham  v.  Coney,  76. 
Perkins  «.  Pourniquet,  483. 
v.  Freeman,  82. 
v.  Hollister,  448. 
4).  Lyman,  599. 
®.  Missouri,  K.  &  T.  E.R.  Co., 

538. 
«.  Towle,  532. 
Perrigo  G.  M.  &  T.  Co.  ii.  Grimes,  112. 
Perrott  v.  Shearer,  90. 
Perry  ®.  Smith,  415. 

-c.  Taylor,  418,  476,  489. 
«.  Washburn,  481. 
Perry  County  v.  S.  M.  &  M.  R.R.  Co., 

481. 
Perzell  v.  Shook,  584,  593. 
Peters  v.  Stanway,  56. 

■B.  Whitney,  298. 
Peterson  ■».  Gresham,  584. 
Petrew.  Duncombe,  445. 
Pettee  ».  Tennessee  M.  Co.,  276. 
Pettigrew  v.  Summers,  475. 
Pettit  ®.  Mercer,  264. 
Phelan  v.  Andrews,  317,  823. 
Phelps  «.  Lewiston,  499. 

V.  New  Haven  &  N.  Co.,  126. 
Philadelphia  Traction  Co.  v.  Orbann, 

524,  527,  528,  538,  539,  546. 
Philadelphia  W.  &  B.  E.R.  Co.  v.  Hoe- 

.    flich,  541. 
Philadelphia  W.  &  B.  E.B.  Co.  v.  Lar- 

kin,  524,  528,  533,  538. 
Philadelphia  W.    &  B.    E.E.    Co.   v. 

Quigley,  535. 
Philbrook  ji.  Burgess,  556. 
Philips  ».  Williams,  470. 
Phillips  V.  Dugan,  403. 


TABLE    OF    CASES. 


are  to  pages. 


Phillips  v.  Kelly,  545. 

V.  Lawrence,  510. 
«.  London  &  S.  W.  Ey.  Co. 
(4  Q.  B.  D.),  51,  66,  359, 
321 
V.  London  &  S.  W.  Ry.  Co. 

(5  0.  P.  Div.),  361. 
«.  Speyers,  403. 
Phillips  &  C.  C.  Co.  V.  Seymour,  371. 
Phllpot  V.  Taylor,  354. 
Phinney  v.  Baldwin,  476. 
Phyfe  V.  Manhattan  By.  Co.,  201. 
Pickens  ®.  McCoy,  476. 
Pickering  v.  De  Rochemont,  448. 
Pickett  V.  Crook,  530,  546. 
Pierce  ».  Charter  Oak  L.  Ins.  Co.,  450. 
V.  Dart,  43. 

D.  Fuller,  586,  599,  601. 
i>.  Getchell,  539,  541. 
V.  Hosmer,  136. 
v.  Jung,  595. 

«.  Millay,  51,  66,  359,  331. 
».  Spader,  409. 
».  Woodward,  118. 
Pierre  ii.  St.  Paul  &  N.  P.  Ry.  Co.,  116. 
Pierson  v.  Eagle  Screw  Co.,  348. 
Piester  v.  Piester,  480. 
Pike  ».  Dilling,  524,  533. 
Pilfold's  Case,  7,  118. 
Pilkington  J).  Commissioners  for  Claims 

on  France,  395. 
Pinckney  v.  Singleton,  484. 
Pindall  v.  Bank  of  Marietta,  498. 
Pindar  v.  "Wadsworth,  140. 
Pitsinowsky  ii.  Beardsley,  469. 
Pittsburgh  v.  Scott,  43. 
Pittsburgh,  C.  &  St.  L.  Ry.   Co.   v. 

Hixon,  330. 
Pittsburgh,  C.  &  St.  L.   Ry.   Co.  ». 

Lyon,  537,  530. 
Pittsburgh,  C.  &  St.  L.   Ry.   Co.  v. 

Sponier,  57,  121. 
Pittsburgh  Coal  Co.  v.  Foster,  276. 
Pittsburgh,   F.  W.  &  C.  Ry.  Co.  v. 

Swinney,  463. 
Pittsburgh  S.  Ry.  Co.   o.  Taylor,  468, 

546. 
Pixley  v.  Clark,  38. 
Planters'  Bank  v.  Union  Bank,  413. 
Plate  11.  New  York  C.  R.R.  Co.,  131. 
Piatt  V.  Brown,  341,  344,  533. 
Platter  ii.  Seymour,  155. 
Plumb  V.  McQannon,  139. 
Plumleigh  v.  Dawson,  139. 
Plummer  ii.  Harbut,  391,  539,  541. 

».  Penobscot  L.  Assoc,  194, 
333. 
Plymouth  t.  Graver,  468,  473. 
Poett  V.  Stearns,  401. 
Poindexter  «.  King,  400. 


Point  St.  I.  W.  V.  Turner,  354. 
Polk  «.  Fancher,  524,  533. 
Pollard,  ex  parte,  594. 
Pollard  V.  Porter,  151. 
Pollitl  f.  Long,  273. 
Pollock  11.  Colglazure,  404. 
«.  Ehle,  449. 
«.  Gannt,  183,  536. 
Polly  V.  McCall,  137. 
Pomeroy  ».  Smith,  101,  103. 
Pond  s.  Han-is,  198,  357. 
«.  Merrifield,  153. 
v.  Met.  El.  Ry.  Co.,  132. 
Ponsonby  v.  Adams,  562. 
PontifexB.  Bignold,  142. 
Poole  V.  Symonds,  101. 

V.  Whitcomb,  154. 
Pope  V.  Barret.  430,  446. 
Poposkey  v.  Munkwitz,  269,  829. 
Porter  v.  Grimsley,  446. 

v.  Hannibal  &  S.  J.  R.R.  Co., 

57,  66. 
V.  Munger,  449,  494. 
®.  Patterson,  454. 
9.  Seller,  533. 
Portis  9.  Merrill,  481. 
Portman  «.  Mlddleton,  318,  359. 
Potomac,  The,  389. 
Potter  «.  McPherson,  591. 
«.  Mellen,  136. 
v.  Merchants'  Bank,  380. 
Pow  ».  Davis,  356. 
Powe  v.  Powe,  411. 
Powell  V.  Burroughs,  580,  595. 

e.  Salisbury,  190. 
Powers  V.  Council  Blufls,  188. 

V.  Ware,  118. 
Prader«.  Grimm,  350. 
Pratt  V.  Paine,  199. 

V.  Pond,  539,  546. 
Prentice  «.  Elliot,  445. 
Preston  ».  Walker,  498. 
Price  V.  Great  W.  Ry.  Co.,  437. 
V.  Green,  601. 
V.  Justrobe,  416. 
V.  Reeves,  401. 
Pridgen  «.  Andrews,  476. 
Priests.  Nichols,  315. 
Priestley  v.  Northern  I.  &  C.  R.R.  Co., 

376. 
Prime  V.  Eastwood,  68. 
Pritchett  V.  Boevey,  350,  363. 
Probate  Court  ®.  Bates,  79. 

B.  Slason,  148. 
Proprietors  of    Locks   and  Canals  ®. 

Lowell  H.  R.R.  Co.,  358. 
Prosser  v.  Jones,  298. 
Proudlove  ®.  Tremlow,  88. 
Prouty  II.  Lake  S.   &  M.  S.  Ry.  Co., 
489. 


References 
are  to  pages. 


TABLE   OF   CASES. 


Pruitt  V.  Cox,  88. 
Pruyn  t>.  Milwaukee,  476. 
Pugsley  ®.  King,  129. 
Pujol  V.  McKlnlay,  466. 
Pullman  P.  C.  Co.  «.  Barker,  160. 
Purdy  v.  Philips,  441. 
Pursell  V.  Pry,  459. 
Putney  ».  Lapham,  100. 


Queen  v.  Pall,  155. 

«.  Hubert,  133. 
Quigley  «.   Central  P.  R.R.   Co.,  67, 

533. 
Quin  v.  Moore,  136,  153. 
Quincy  Canal  «.  Newcomb,  43. 
Quinn  «.  Lloyd,  403. 

V.  S.  0.  Ry.  Co.,  524,  538. 

V.  Van  Pelt,  31. 


R. 

Railroad  Co.  v.  Ackley,  53,  66.  359,331. 
V.  Adams,  499. 
V.  AUbritton,  845,  523. 
11.  Allen,  53. 
V.  Andrews,  133. 
V.  Arms,  29,  533,  539,  530. 
V.  Ashcraf't,  530. 
V.  Baker,  532. 
v.  Ballard,  524,  537,  538, 

538. 
v.  Bank  of   Middlebury, 

76. 
».  Beckett,  91. 
V.  Beebe,  116. 
e.  Biggs,  101. 
«.  Birney,  316,  334. 
v.  Blocber,  588. 
V.  Boehm,  53,  66,  359. 
«.  Booraem,  464. 
®.  Braham,  377. 
V.  Brooks,  546. 
«.  Brown,  464. 
«.  Buck,  160. 
«.  Burke,  374. 
®.  Burke,  546. 
V.  Burson,  465. 
v.  Callahan,  410, 467,  591, 

603. 
V.  Campbell,  388. 
®.  Carey,  334. 
V.  Carr,  58. 
«.  Chisholm,  68. 
v.  Cobb,  333,  336. 
V.  Cobb,  97,  98. 
«.  Cobb,  470. 


Railroad  Co.  ■».  Colt,  330. 

e.  Connell,  68. 

V.  Conway,  430. 

V.  Cox,  371. 

®.  Curry,  66. 

11.  Dale,  261,  364. 

«!.  DickersoQ,  53,  90. 

v.  Dills,  530. 

n.  Donahoe,  539. 

v.  Douthet,  374. 

v.  Dunbar,  319. 

«.  Dunden,  123,  349. 

v.  Dunn,  534,  538. 

v.  Eaton,  55. 

v.  Eberle,  131. 

n.  Echols,  304. 

n.  Elliott,  444,  475. 

11.  Esterle,  85,  87,  131. 

V.  Falvey,  161,  338. 

V.  Pechheimer,  133. 

«.  Findley,  66. 

®.  Finney,  537,  539. 

11.  First  Baptist   Church, 

54. 
v.  Fix,  68. 
«.  Flagg,  53,  67,  68. 
•».  Fleming,  324. 
v.  Plournoy,  194. 
V.  Foley,  486. 
v.  Fort  Scott,  286. 
V.  Frame,  375. 
v.  Frantz,  52,  259,  831. 
v.  Gabbert,  431. 
v.  Garcia,  539. 
«.  Garrett,  538. 
«.  Gattke,  3. 
v.  Gentry,  410. 
v.  Geoghegan,  591. 
V.  Guinan,  524. 
V.  Hammer,  537,  538. 
v.  Harris,  533. 
®.  Hause,  533. 
V.  Hecht,  160. 
v.  Henry,  248. 
«.  Hill,  285. 
v.  Hixon,  330. 
•».  Hoeflich,  541. 
V.  Holland,  51. 
«.  Horan,  334. 
n.  Humes,  533. 
v.  Hunt,  196. 
e.  Hurst,  548. 
v.  Jackson,  468. 
V.  Jennings,  91. 
v.  Johnson,  51. 
®.  Johnson,  586. 
v.  .Johnston,  464. 
«.  Jones,  160. 
».  Jurey,  473. 
e.  Kemp,  160. 


lii 


TABLE    OF    CASES. 


References 
are  to  pages 


Railroad  Co.  «.  Kendrick,  546. 
■».  King,  418. 
«.  Kneeland,  380. 
V.  Koblentz,  464. 
V.  Lambert,  261. 
V.  Larkin,  524,  528,  532, 

538. 
«.  Levy,  60,  90. 
V.  Lewark,  287. 
4).  Little,  530. 
v.  Lockhart,  160. 
V.  Lookwood,  463,  529. 
i>.  Loeb,  131. 
«.  Lurton,  317. 
V.  Lyon,  527,  530. 
®.  McAlpine,  463. 
V.  McCauley,  464. 
«.  McComb,  464. 
r>.  McLaughlin,  97. 
V.  McLendon,  51,  66,  321, 

537. 
«.  McMannewitz,  381. 
«.  Mahoning  County,  338. 
v.  Marion,  90. 
V.  Martin,  66. 
v.  Mihlman,  129, 133, 315, 

316. 
V.  Miller,  464. 
■».  Miller,  539. 
V.  Moore,  330. 
V.  Moore,  366. 
1].  Moravia,  476,  488. 
®.  Morris,  87. 
».  Muldrow,  464. 
V.  Nichols,  377. 
V.  Nicholson,  375. 
«.  Nonnent,  66. 
e.  Olds,  533,  538. 
V.  Partlow,  532. 
V.  Patton,  530,  538. 
V.  Philadelphia,  448. 
®.  Pointer,  66,  259,  331. 
V.  Pritchard,  191,  330. 
V.  Pumphrey,  218. 
«.  Quigley,  535. 
«.  Rector,  538,  546. 
V.  Reeves,  316. 
B.  Reichert,  608. 
V.  Rice,  53,  68. 
■B.  Ritz,  317. 
v.  Roberts,  526. 
«.  Rodgers,  306. 
■B.  Rogers,  532,  538. 
v.  Rosenzweig,  534,  538, 

539. 
V.  Scanlan,  524. 
«.  Scurr,  530,  546,  547. 
«.  Sears,  470. 
®.  Sewell,  485. 
D.  Shanks,  530. 


Railroad  Co.  v.  Shultz,  464. 

v.  Sloan,  370. 

V.  Smith,  503. 

v.  Southern  &  A.  T.  Co., 
155. 

V.  Sponier,  57,  131. 

V.  Springfield  &  N.  "W. 
R.R.  Co.,  338. 

v.  Stables,  51,  66, 

«.  Standen,  133. 

V.  Starnes,  537,  538. 

V.  Staub,  347. 

«.  Steen,  534,  530,  538. 

V.  Sumner,  330. 

®.  Swinney,  463. 

e.  Tankersley,  463. 

«.  Taylor,  468,  546. 

«.  Telephone  &  Tel.  Co., 
533. 

V.  Thompson,  189. 

V.  Walker,  410. 

■B.  Wallace,  123. 

«.  Ward,  319. 

V.  Ware,  353. 

«.  Warren,  377. 

V.  Weaver,   52,    66,    359, 
331 

®.  Whitfield,  53,  66,  359, 
321,  530. 

«.  Whitman,  67. 

B.  Williams,  67. 

«.  Wilson,  259,  331. 

v.  Wood,  370. 

«.  Wray,  318. 

«.  Yarbrough,  260. 

«.  Yeager,  521. 

®.  Young,  277. 

«.  Young,  468. 
Rahm  «.  Deig,  320. 
Ralston  «.  The  State  Rights,  527. 
Ramsey  «.  Hurley,  380. 
Randall  «.  Carpenter,  351,  353. 
«.  Greenhood,  431. 
B.  Raper,  278. 
Randell  v.  Trimen,  355. 
Rapelie  v.  Emory,  443. 
Ratteree  «.  Chapman,  468. 
Raupman  ?>.  Evansville,  350. 
Rawson  v.  Grow,  443. 
Ray  ®.  Light,  380. 
Raybourn  v.  Ramsdell,  312. 
Rayburn  v.  Day,  436. 
Raymond  d.  Green,  351. 

V.  Isham,  449,  453. 
Raynor  «.  Nims,  537,  540. 
Rea  «.  Harrington,  534,  535,  544. 
Reab  v.  M'Allister,  435. 
Read  «.  Spaulding,  216. 
Rebecca  Clyde,  The,  486. 
Red  V.  Augusta,  867. 


are  to  pages. 


TABLE   OF    CASES. 


liii 


Keddin  v.  Gates,  52,  545. 
Redding  ®.  Godwin,  385. 
Reddington  v.  Gilman,  497. 
Redfield  «.  Redfield,  524,  528. 

V.  Ystalyfera  Iron  Co.,  490. 
Redington  v.  Nunan,  321. 
Redon  v.  Caffln,  199,  272. 
Redwood  ».  M.  R.R.  Co.,  524. 
Reece  v.  Knott,  483. 
Reed  v.  Bias,  391. 

V.  Hanover  B.  R.R.  Co.,  464. 
V.  Ohio  &  M.  Ry.  Co.,  377. 
•B.  Price,  93. 
V.  Reed  497. 
Reader  ®.  Purdy,  526,  527,  532. 
Reese  «.  Rutherford,  489. 
V.  Stearns,  401. 
n.  Western  U.  T.  Co.,  60,  62. 
Reeves  v.  Stipp,  481,  591. 
Reggio  «.  Braggiotti,  348,  353, 357,  361. 
Reilly  v.  Jones,  589,  593. 
Reindel  «.  Schell,  586. 
Reiter  ®.  Morton,  282. 
Remelee  v.  Hall,  126. 
Rend  v.  Boord,  450,  452. 
Renfro  v.  Hughes,  76. 
Renihan  v.  Wright,  63. 
Renkert  v.  Elliott,  531. 
Rensselaer  Glass  Factory  v.  Reid,  419, 

434. 
Reynolds  v.  Bridge,  595,  599. 

V.  Chandler  R.  Co.,  333. 
®.  Mardis,  445. 
«.  Shuler,  77. 
Rhemke  «.  Clinton,  434,  462. 
Rhoads  v.  Woods,  103. 
Rhodes  v.  Baird,  272. 
Rice  V.  Boston  P.  &  S.  A.  Soc,  440. 
».  Des  Moines,  337. 
V.  Manley,  368. 
1).  Ontario  Steamboat  Co.,  405. 
®.  Whitmore,  278. 
Rich  ».  Seneca  Palls,  499. 
Richards  t.  Citizens'  N.  Gas  Co.,  471. 
«.  Edick,  588,  599. 
V.  McPherson,  478. 
Richardson  v.  Chynoweth,  237. 
®.  Dunn,  856. 
V.  Futrell,  413. 
e.  Northrup,  277. 
V.  Woehler,  585. 
Richmond  «.  Bronson,  370,  433. 

«.  Schikler,  531. 
Richmond  &  D.  R.R.  Co.  v.  Korment, 

66. 
Ricketts  «.  Chesapeake  &  O.  Ry.  Co., 

539. 
Riddle  v.  McGinnis,  69. 
Ridenbour  i\  Kansas  C.   C.  Ry.  Co., 
53,  66. 


Riewe  «.  McCormick,  521. 
Riley  «.  West  V.  C.  &  P.  Ry.  Co.,  66. 
Rilling  V.  Thompson,  475. 
Ripka  ».  Sargeant,  98,  138. 
Rippey  v.  Miller,  526. 
Risley  v.  Andrew  County,  488. 
Rotabins  «.  Carll,  450. 
V.  Cheek,  488. 
v.  Laswell,  442. 
®.  Lincoln  County,  488. 
V.  Packard,  380,  381. 
Roberts  ».  Berdell,  384. 
t.  Cole,  377. 
V.  Mason,  345,  523,  545. 
V.  Wilcoxsen,  449. 
Robertson  v.  Gentry,  155. 
v.  Lemon,  358. 
Robeson  ®.  Whitesides,  589. 
Robinson  v.  Barrows,  461. 

V.  Bland,  5,  119,  419. 

».  Burton,  524,  534. 

X.  Cathcart,  588. 

V.  Corn  Exchange  Ins.  Co., 

434. 
V.  Ensign,  101. 
V.  Goings,  535,  53'j. 
®.  Hall,  404. 
V.  Harman,  29. 
V,  International   L.   I.   Soc, 

411. 
«.  Kinney,  475. 
V.  Merchants'  D.  T.  Co.,  462. 
V.  Stewart,  459. 
Robrecht  v.  Marling,  200,  269. 
Rockland  Water  Co.  v.  Tillson,  124, 

127. 
Rockwood  «j.  Allen,  28. 
Rodes  V.  Bronson,  399. 
Rodgers  «.  Bass,  411. 

V.  Ferguson,  537. 
Rogers  v.  Beard,  288. 
V.  Bemus,  377. 
«.  Bums,  484. 
V.  Crombie,  388. 
V.  Henry,  546. 
«.  Lee  County,  485. 
«.  Sample,  591. 
V.  Spence,  508. 
V.  West,  483. 
Roles  V.  Rosewell,  554. 
Rolfe  V.  Peterson,  563. 
Rolin  «.  Steward,  147. 
Rolph  V.  Crouch,  358. 
Rome  R.R.  Co.  i\  Sloan,  370. 
Ronneberg  v.  Falkland  Ins.  Co.,  363. 
Root  ».  Lowndes,  124. 

v.  Sturdivant,  520,  524,  532. 
Booth  V.  Wilson,  101. 
Roper  ®.  Johnson,  121,  336 
Rose  «.  Belyea,  841. 


liv 


TABLE    OF    CASES. 


References 
are  to  pagee. 


Rose  ».  Bozeman,  416. 

®.  Bridgeport,  496,  498,  499. 
®.  Lewis,  383. 
B.  Miles,  43. 
V.  Post,  351. 
«.  Story,  546. 
«.  Wynn,  269. 
Rosenbaum  ».  McThomas,  136. 
Rosenberg  «.  Weelies,  481. 
Rosenfleld  «.  Express  Co.,  78. 
Rosenzweig  ».  Frazer,  106. 
Ross  «.  Leggett,  53,  53,  68,  534. 

».  Philbrick,  84. 
Rosser  ®.  Bunn,  533. 
Roth  ».  Eppy,  502. 
Routh  «.  Caron,  189. 
Rowland  ».  Shelton,  469. 
Rowley  ®.  Gibbs,  433. 
Roy  n.  Duke  of  Beaufort,  560. 
Ruckman  v.  Bergholz,  450. 

ID.  Pitcher,  446. 
Rudder  ».  Price,  5,  550. 
Runlett «.  Bell,  136. 
Rushton  ®.  Rowe,  492. 
Russ  t>.  The  War  Eagle,  131. 
Russel  ».  Palmer,  503. 
Russell ».  Brown,  137. 

«.  Butterfield,  113. 
®.  Chambers,  69,  70,  88. 
D.  Kearney,  114. 
«.  Walker,  355. 
«.  W.  U.  T.  Co.,  58,  60. 
Rust  ®.  Victoria  Graving  Dock  Co.,  131. 
Rutherford  v.  Shreveport  &  H.  R.R. 
Co.,  53,  259. 
®.   Stovel,  589,  593. 
Ruthven  W.  Co.  ®.  Great  W.  Ry.  Co., 

191,  317. 
Rutland's  Case,  77. 
Rutland  &  "W.   R.R.  Co.  v.  Bank  of 

Middlebury,  76. 
Ryan  v.  Martin,  595. 
Ryder  v.  Hathaway,  154. 
Ryerson  s.  Chapman,  350,  353. 

S. 

8aam  ».  Saam,  84. 

Sadler  e.  Bean,  386. 

St.   Helen's  Smelting  Co.   v.  Tipping 

146. 
Sainter  ».  Ferguson.  581,  586,  599. 
St.  John  ®.  New  York,  264. 

V.  O'Connel,  109,  380. 
St.   Johnsbury  &  L.   C.  R.R.  Co.  v. 

Hunt,  196. 
St.  .Louis  &  S.  F.  Ry.  Co.  v.  Ritz,  317. 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Biggs, 

101. 


St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Morris, 

87. 
St.  Louis,  J.  &  C.  R.R.  Co.  ».  Lurtoa, 

317. 
St.  Ores  ».  McGlashen,  516,  534. 
St.  Peter's  Church  e.  Beach,  344,  533, 

540. 
Salado  College  ».  Davis,  341. 
Salina  ®.  Trosper,  50. 
Salisbury  ».  Western  N.  C.  R.R.  Co., 

93. 
Salters  ».  Ralph,  589. 
Sammis  s.  Clark,  430. 
Sampson  ».  Henry,  520. 

B.  Warner,  439. 
San  Antonio  «.  Lane,  499. 
Sanders  ».  Anderson,  5. 

V.  Lake  Shore  &  M.   8.  Ry. 

Co.,  489. 
».  Scott,  443. 
V.  Stuart,  319,  341. 
xi.  Vance,  461. 
Sanderson  «.  Pa.  Coal  Co.,  137. 
Sanford  v.  Willets,  350. 
Santa  Maria,  The,  486. 
Sapp  ®.  N.  C.  Ry.  Co.,  527,  538. 
Satchwell  v.  Williams,  196.  246,  375. 
Saunders  «.  Clark,  369. 
Savannah  ».  Waldner,  345. 
Savannah  &  C.  R.R.  Co.  «.   Callahan, 

410,  467,  591,  603. 
Savannah,  F.  &  W.  Ry.  Co.  t.  Pritch- 

ard,  191,  330. 
Sawyer  v.  Saner,  536. 
Saxton  ».  Bacon,  191. 
Sayre  v.  Austin,  440,  483. 
Schalk  ».  Kingsley,  95. 
Schell  «.  Stetson,  494. 
SchieflEelin  r.  Stewart,  497. 
Schile  «).  Brokhahus,  273. 
Schindel  e.  Schindel,  533. 
Schippel ».  Norton,  525. 
Schlemmer  t>.  North,  94. 
Schley  n.  Lyon,  100,  103. 
Schmidt  v.  Mitchell,  183,  303. 
Schnable  «.  Koehler,  97. 
Schofield  e.  Ferrers,  534. 
School  District  «.  Dreutzer,  443. 
Schrader  v.  Lillis,  595,  596. 
Schrimpf  ».  Tenn.  Mfg.  Co.,  585. 
Schroeder  n.  De  Graff,  85. 
Schulze  ».  Great  Eastern  Ry.  Co.,  335. 
Schutt  B.  Baker,  378. 
Schwabacker  t\  Riddle,  115. 
Schwerin  v.  McKie,  462 
Scofield  v.  Day,  408. 

«.  Tompkins,  585,  586. 
Scotland,  The,  473. 
Scott  0.  Bay,  179. 
®.  Bevan,  408. 


References 
are  to  pages. 


TABLE   OF   CASES. 


Iv 


Scott  V.  Boston  &  N.  O.  S.S.  Co.,  194, 
303. 

®.  Bryson,  536. 

V.  Dent,  603. 

■».  Guernsey,  445. 

V.  Kenton,  189. 

V.  Montgomery.  53,  53,  66,  359, 
331. 

«.  Shepherd,  164. 
Scripps  ».  Eeilly,  68. 
Scroggs  «.  Cunningham,  453. 
Scrugham  v.  Carter,  104. 
Seaman  v.  Luce,  103. 
Searight  v.  Calbraith,  367. 
Searle  v.  Adams,  475. 
Sears  v.  Lyons,  508. 
Seat  t\  Moreland,  136,  155. 
Second  and  Third  St.  Pas.9.  Ry.  Co.  v. 

Philadelphia,  448. 
Second  St.,  Harrisburg,  465. 
Seeley  v.  Alden,  91. 
Segelke  v.  Pinan,  155. 
Seger  «.  Barkhamsted,  66. 
Seidensparger  v.  Spear,  138. 
Selden  ».  Cashman,  264,  546. 

e.  Preston,  491. 
Sellar  v.  Clelland,  368. 
Sellars  v.  Kinder,  88. 
Selleck  v.  French,  451. 
Sewall's  F.  B.  Co.  ■».  Fisk,  271. 
Seyfert  v.  Bean,  272. 
Seymour  v.  Continental  Ins.  Co.,  474. 
Shadwell  ii.  Hutchinson,  97. 
Shafer  v.  Wilson,  264. 
Shaffer  v.  Lee,  126. 
Shannon  v.  Burr,  136,  143. 

V.  Comstock,  307,  313. 
Sharpe  v.  Lee,  480. 
Shattuck  ®.  Adams,  136,  137. 
Shaw  V.  Brown,  537. 

V.  Cummiskey,  316. 

V.  Etheridge,  127. 

«.  Ferguson,  106. 

i>.  Hoffman,  272,  386. 

V.  Macon,  359. 

«.  Picton,  438. 

V.  Rigby,  476,  479. 
Shay  v.  Thompson,  533,  543. 
Shearon  v.  Henderson,  413. 
Sheehan  ■».  Dalrymple,  404. 

®.  Edgar,  131,  359,  331. 
Sheffield  v.  Page,  308. 
Sheik  «.  Hobson,  536. 
Shelbyville  L.  B.  R.R.  Co.  n.  Lewark, 

387. 
Shelden  v.  Southern  Ex.  Co.,  105. 
Sheldon  v.  Van  Slyke,  94. 
Shelton  v.  Gill,  604. 
Shenango  &  A.  R.R.  Co.  v.  Braham, 
377. 


Shepard  v.  Chicago,  R.  I.  &  P.   Ry 
Co.,  57,  68. 
V.  Milwaukee  Gas  Light  Co., 
264. 
Shepherd  v.  McQuilkin,  463. 
Sheridan  ».  Hibbard,  51,  66,  359,  321. 
Sherlock  v.  Ailing,  91 . 
Sherman  v.  Dutch,  527,  538,  533. 

V.  Fall  River  Iron  Works  Co., 

114,  316,  333. 
«.  Fmch,  113. 

®.  Milwaukee,    L.   S.  &  W. 
R.R.  Co.,  133. 
Sherrod  «.  Langdon,  189. 
Sherry  ».  Schuyler,  83. 
Sherwood  v.  Chicago  &  W.  M.  Ry. 

Co.,  69. 
Shields  v.  Henry,  449. 
Shiell  e.  M'Nitt,  575. 
Shipley  «.  Fifty  Associates,  37, 
Shipman  «.  Bailey,  476. 
t>.  Miller,  443. 
»,  State,  458,  458. 
ShoUenberger  d.  Brinton,  399. 
Shook  V.  Peters,  545. 
Shores  ®.  Brooks,  533,  541. 
Short  «.  Abemathy,  413,  415. 

v.  Skipwith,  49. 
Shreve  ■».  Brereton,  .592. 
Shotwell  ®.  Wendover,  76. 
Shute  ».  Taylor,  594. 
Sibley  ».  Hoar,  303. 

«.  Pine  County,  447. 
Silver  v.  Dominion  Tel.  Co.,  534,  535. 

V.  Kent,  533,  534. 
Silver  V.  M.  Co.  «.  Baltimore  G.  &  S. 

M.  &  S.  Co.,  443. 
Simmons  ».  Brown,  364,  373. 
Simons  ®.  Busby,  69. 

«.  Walter,  447. 
Simpkins  v.  Low,  384. 
Simpson  b.  Feltz,  443. 

V.  Keokuk,  338,  334. 
®.  London  &  N.  W.  Ry.  Co., 
337,  364. 
Sims  ®.  Goudelock,  445. 
Singer  Mfg.  Co.  v.  Holdfodt,  538. 
Single  ».  Schneider,  534. 
Singleton  v.  Kennedy,  528. 

V.  Lewis,  498. 
Sinker  v.  Kidder,  273. 
Sioux  C.  R.R.  Co.  ».  Brown,  464. 
Sipperly  ».  Stewart,  456. 
Sitton  V.  McDonald,  191. 
Skinner  ®.  London    Mar.    Ass.    Corp., 
150. 
V.  Tinker,  383. 
Slater  v.  Sherman,  533,  545. 
Sledge  V.  Reid,  277,  298. 
Sleeman  v.  Waterous,  584,  594. 


Ivi 


TABLE    OF   CASES. 


are  to  pages. 


Slingerland  v.  Swart,  443. 
Sloan  V.  Edwards,  159,  544. 
Sloman  -o.  Walter,  563. 
Slosson  «.  Beadle,  599,  608. 
Small  1'.  Doutliltt,  480. 
Smalleyi).  Smalley,  533. 
Smeed  ».  Foord,  332,  336,  324. 
Smlih  11.  Bagwell,  524,  533,  545. 

«.  Baker,  315. 

V.  Chicago,  C.  &  D.  R.R.  Co., 
339,  337. 

V.  Condry,  254. 

«.  Dickenson,  577. 

■B.  Eubanks,  264. 

«.  Flanders,  320,  284,  493. 

v.  Fletcher,  39. 

«.  Fox,  123. 

«.  Frost,  332. 

V.  German  Bank,  493. 

».  Goodman,  534. 

V.  Grant,  58,  158. 

®.  Green,  189. 

«.  Griffith,  373. 

V.  Holcomb,  66,  520,  523. 

v.  Jefts,  148. 

V.  Johnson,  445. 

V.  McGuire,  313. 

®.  McKinney,  400. 

v.  Morgan,  483. 

V.  O'Donnell,  188. 

«.  Overby,  66. 

■e.  Peat,  313. 

«.  Phillips,  112. 

».  Pike,  486. 

V.  Pittsburgh,  F.  W.  &  C.  Ry. 
Co.,  68. 

«.  ShaJler,  449. 

V.  Shaw,  408. 

V.  Sherwood,  39. 

n.  Sprague,  353. 

®.  Smith,  573,  599. 

V.  Thackerah,  146. 

B.  Thompson,  546. 

V.  Velie,  456. 

®.  "Wainwright,  587,  589,  599. 

V.  "Weed  S.  M.  Co.,  199. 

V.  Whitaker,  481. 

V.  Whiting,  136. 

«.  Wunderlich,  364,  537. 
Smithwick  v.  Ward,  545. 
Smyrna,  L.  &  P.  S.  B.  Co.  «.  Whill- 

den,  289. 
Snarr  v.  Granite  C.  &  S.  Co.,  127. 
SneU  V.  Cottingham,  233,  271. 
Snively  v.  Fahnestock,  633. 
Snodgrass  ».  Reynolds,  369 
Snow  V.  Carpenter,  546. 

4).  Nowlin,  469. 
Sohier  -o.  Williams,  449. 
Soleu  V.  Virginia  &  T.  R.R.  Co.,  483. 


SoUee  «.  Mengy,  444. 

Solomon  s.  Chesley,  352. 

Sonneborn  v.  Stewart,  264. 

Sopris  V.  Lilley,  103. 

So  Relle  i).  Western  U.  T.  Co.,  60. 

Sorgenfrei  ».  Schroeder,  66. 

Soule  ».  White,  101. 

South  &  N.  A.  R.R.  Co.  v.  McLendon, 

51,  66,  259,  321,  537. 
South  &  N.  A.  R.R.  Co.  v.  Wood,  370. 
South   Park    Commissioners  v.   Dun- 
levy,  465. 
Southard  ».  Rexf  ord,  59. 
Southern  C.  R.R.  Co.  «.  Moravia,  476, 

488. 
Southern  Ex.  Co.  v.  Brown,  537. 
Southern  R.R.  Co.  ®.  Kendrick,  546. 
Southern  K.  Ry.  Co.  v.  Rice,  53,  68. 
Sowers  ®.  Sowers,  537,  535,  545. 
Spaiford  v.  Goodell,  153. 
Sparks  v.  Bassett,  309. 

v.  Garrigues,  498. 
Sparrow  v.  Paris,  600. 
Spaulding  v.  Lord,  480. 
Spear  «.  Hiles,  534,  532,  544. 
«.  Hubbard,  520. 
V.  Smith,  572,  589. 
Spencer  v.  Halstead,  306. 
«.  Maxfield,  476. 
V.  Pierce,  439. 
V.  Prindle,  401. 
•B.  Tilden,  571. 
Spicer  v.  Hoop,  599. 
Spilman  v.  Roanoke  Nav.  Co.,  129. 
Spoor  V.  Holland,  104. 
Sprague  «.  Brown,  79. 

«.  McKinzie,  79,  330. 
Spring  V.  Olney,  350. 
Squire  v.  Hollenbeck,  105. 

®.  Western  U.  T.  Co.,  163. 
Staal  11.  Grand  St.  &  N.  R.R.  Co.,  348, 

249. 
Stacy  D.  Graham,  446. 

V.  Portland  Pub.  Co.,  525. 
Stadler  ».  Grieben,  127. 
Stafford  «.  Oskaloosa,  52,  66,  259. 
Staneley's  Case,  503. 
Stanley  v.  Montgomery,  595. 
Stanwood  v.  Flagg,  398. 
Stapenhorst ».  American  M.  Co.,  184. 
Staples  ®.  Parker,  585,  592. 
Starbird  ».  Barrows,  162. 
Stark  V.  Coffin,  398,  403. 
®.  Olney,  470,  489. 
V.  Price,  433  466. 
Startup  «.  Cortazzi,  324. 
State  11.  Bishop,  148. 
«.  Case,  145. 
u.  Davis,  150. 
«.  Dodd,  592. 


Seferences 
are  to  pages. 


TABLE   OF   CASES. 


Ivii 


State  «.  Multnomah  County,  488. 
V.  Powell,  315. 
«.  Reinhardt,  149. 
«.  Steen,  483. 
V.  Taylor,  604. 
«.  Van  Winkle,  482. 
V.  "Ward,  183. 
«.  Weston,  95. 
Stearns  v.  Barrett,  585,  589. 
V.  McGinty,  189. 
V.  Marsh,  107. 
Stein  V.  Burden,  138. 
Steiner  ®.  Moran,  52. 
Stephens  v.  Hannibal  &  S.  J.  R.R.  Co., 
53,  359,  831. 
V.  Howe,  403. 
V.  Koonce,  463. 
Stephenson  v.  Thayer,  381. 
Sterling  Oil  Co.  v.  House,  199. 
Sterrett  v.  Kaster,  102. 
Stem  V.  People,  439,  442. 
Stetson  «.  Faxon,  43. 
Steuart ».  Maryland,  33. 
Stevens  v.  Barringer,  493. 
«.  Gwathmey,  492. 
».  Low,  76,  461. 
Stevenson  v.  Belknap,  584. 

®.  Morris,  344,  523. 
Stewart  v.  Bedell,  600. 

V.  Lanier  H.  Co.,  364. 
V.  Maddox,  544. 
V.  Martin,  83. 

«.  Philadelphia  County,  465. 
V.  Ripon,  66,  160. 
».  Ruraball,  553. 
V.  Salamon,  413. 
V.  Schell,  443,  490. 
V.  Schneider,  87. 
Stickney  v.  Allen,  74,  83. 
Still  V.  Hall,  460. 
Stillwell «.  Temple,  593. 
Stilson  v.  Gibhs,  531,  534. 
Stimpson  ».  Greene,  458. 

«.  Railroads,  839,  348,;518. 
Stimson  «.  Farnham,  145. 
Stockton  ».  Frey,  66. 

®.  Guthrie.  448. 
Stodghill  «.  Chicago,  B.&  Q.  R.R.  Co., 

131. 
Stokely  v.  Thompson,  498. 
Stokes  v.  City  Offices  Co.,  5. 
StoUenwerck  «.  Thacher,  77,  108. 
Stone  V.  Bennett,  488. 
V.  Codman,  183. 
Stoneseif er  v.  Sheble,  503. 
Stoudenmeier  ».  Williamson,  469. 
Stoughton  V.  Lynch,  497. 
Stover  V.  Bluehill,  337. 
Stowe  V.  Buttrick,  880. 
Stowell  1).  Lincoln,  139. 


Strauss  v.  Meertief ,  308. 

Straw  v.  Jenks,  113. 

Strawn  «.  Cogswell,  275,  317. 

Streeper  «.  Williams,  577,  598. 

Street  v.  Rigby,  567. 

Streeter  v.  Rush,  599. 

Stringer  v.  Coombs,  403,  406. 

Strohm  V.  New  York,  L.  E.  &  W.  R.R. 

Co.,  249. 
Strong  V.  Strong,  114. 
Stuart «.  Binsse,  439. 
V.  Trotter,  153. 
V.  Western  U.  T.  Co.,  60. 
Studabaker  v.  White,  595. 
Sturges  V.  Green,  449. 
Sturgis  V.  Frost,  264,  822,  863. 
Stutz  «.  Chicago  &  N.  W.  Ry.  Co.,  67, 

68. 
Sullivan  «.   Oregon  Ry.  &  Nav.  Co., 

535,  587,  539. 
Sullivan  County  ».  Arnett,  331. 
Sumner  v.  Beebe,  440,  498. 
Sutherland  v.  Wyer,  136,  307. 
Sutro  Tunnel  Co.  ».  Segregated  B.  M. 

Co.,  494. 
Sutton  v.  Howard,  585,  590. 
Swails  V.  Cissna,  485. 
Swamscot  M.  Co.  ».  Partridge,  440. 
Swan  V.  Timmons,  350. 
Swanson  d.  Cooke,  405. 
Sweeney  «.  Lorame,  114. 
V.  Neely,  445. 
V.  Pt.  Burwell  H.  Co.,  319. 
Sweet  V.  Cutts,  87. 
Swett  «.  Hooper,  440. 
Swift  V.  Dickerman,  68. 

®.  Eastern  W.  Co.,  318. 
■v.  Plessner,  351. 
V.  Powell,  593. 
Swire  v.  Leach,  101. 


T. 

Taber  ii.  Hutson,  66,  544. 
Talbot  V.  Com.  N.  Bank,  446. 

V.  Whipple,  86,  88. 
Talcott  V.  Marston,  475,  481 
Taliaferro  ®.  Minor,  395. 
Talladega  Ins.  Co.  «.  Peacock,  439. 
Talliaferro  «.  King,  498. 
Tallman  v.  Truesdale,  597 
Tamvaco  «.  Simpson,  79. 
Tappenden  v.  Randall,  430. 
Tardeveau  v.  Smith,  604. 
Tarleton  v.  McGawley,  184. 
Tarpley  v.  Wilson,  443. 
Tarpy  v.  Shepherd,  401. 
Tatum  4).  Mohr,  469. 
Taul «.  Everet,  590. 


Iviii 


TABLE    OF    CASES. 


Eeferences 
are  to  pages. 


Tayloe  v.  Sandiford,  565,  576,  581,  603. 
Taylor  v.  Grand  T.  Ry.  Co.,  530. 
«.  Henniker,  141. 
V.  Knox,  442,  444. 
V.  Maguire,  256. 
V.  Minor,  493. 
■».  Morgan,  533,  544. 
V.  Morton,  343,  345. 
V.  Read,  136,  297. 
».  Wing,  480,  484. 
Taylor  Mfg.  Co.  «.  Hatcher  Mfg.  Co., 

199. 
Teagarden  v.  Hetfield,  201. 
Teal  c.  Auty,  147. 
TefEt  V.  Wilcox,  53,  66,  259,  331 
Templeman  v.  Fauntleroy,  492. 
Tenant  ».  Goldwln,  35,  36. 
Ten  Eyck  v.  Houghtallng,  448. 
Tenth  JSTat.  Bank  ®.  New  York,  488. 
Terre  Haute  v.  Hudnut,  364. 
Terre  Haute  &  I.  R.R.  Co.  v.  Buck, 

160. 
Terry  v.  Jewett,  91. 

0.  New  York,  93,  315. 
Texas  &  P.  Ry.  Co.  v.  Curry,  66. 
V.  Levi,  90. 
V.  Tankersley,462. 
Texas  &  S.  L.  R.R.  Co.  «.  Young,  277. 
Texas  T.  Ry.  Co.  v.  Johnson,  536. 
Texas  W.  Ry.  Co.  «.  Gentry,  410. 
Thame  v.  Boast,  137. 
Thatcher  v.  Massey,  476. 
Thayer  v.  Brooks,  129. 
B.  Manley,  383. 
Thill  V.  Pohlman,  534,  546. 
Thol  V.  Henderson,  320. 
Tholen  «.  Duffy,  585,  597. 
Thomas  ».  Steinheimer,  461. 
0.  Weed,  432. 
».  Wells,  467. 
Thomas  B.  &  W.  M.  Co.  v.  Wabash, 

S.  L.  &  P.  Ry.  Co.,  217,  358. 
Thompson  ».  Bohannon,  413. 

».  Boston  &  M.  R.R.  Co., 

490. 
V.  Ellsworth,  196. 
®.  Hoskins,  114. 
ti.  Hudson,  590. 
■B.  Matthews,  453. 
®.  New  Orleans,  J.  &  G.  N. 

R  R.  Co.,  137. 
v.  Pickel,  476. 
V.  Powning,  345. 
«.  Riggs,  395,  398. 
V.  Shattuck,  297,  38 
V.  Stevens,  445. 
v.  Stewart,  447. 
•B.  Sweet,  443. 
Thorington  v.  Smith,  411,  413. 
Thorn  V.  Knapp,  531 


Thome  v.  McVeagh,  320. 
Thorntons  «.  Fitzhugh,  489. 
Thoroughgood  v.  Walker,  589,  592. 
Thorp  ».  Bradley,  150,  155. 
Thrall  v.  Lathrop,  462. 
Thurston  «.  Haskell,  352. 
Thwing  ■a.  Great  Western  Ins.  Co.,  442. 
Tice  v.  Munn,  160. 
Tiernan«.  Granger,  441. 
V.  Hinman,  589. 
Tiflt  V.  Culver,  512. 
Tillman  «.  Morton,  498. 
Tillotson  ■e.  Cheetham,  509. 
V.  Smith,  85,  143. 
Tingley  v.  Cutler,  695. 
Tinsman  v.  B.  D.  R.R.  Co.,  99. 
Titus  V.  Corkins,  345,  533,  532. 
Tobin  v.  Shaw,  59. 
Todd  ».  Botchford,  483 

m   Jackson   91 
Toledo,'  P.  &  w'.  Ry.  Co.  v.  Johnston, 

464. 
Toledo,  W.  &  W.  R.R.  Co.  «.  Roberts, 

536. 
Tomlinson  v.  Wilmington  &  S.  C.  R.K. 

Co.,  541. 
Toms  D.  Wilson,  113. 
Tootle  V.  Clifton,  137. 
Torp  V.  Gulseth,  113. 
Torry  v.  Black,  80,  81. 
Toulmin  v.  Sager,  413. 
Townsend  v.  Hughes,  503,  606. 

V.  Nickerson    Wharf    Co., 

340,  269. 
V.  Paola,  131. 
Towle  V.  Lovet,  889. 
Tracy  v.  Swartwout,  541. 

®.  Talmage,  392. 
Trafford  v.  Hubbard,  264. 
Trapnall  ».  McAfee,  350. 
Travers  ®.  Kansas  P.  Ry.  Co.,  537, 538. 
Travis  b.  Duffau,  188. 
Treadwell  v.  Davis,  100,  101. 
Treat  «.  Gilmore,  112. 
Trebilcock  ».  Wilson,  400. 
Trecartin  ».  The  Rochambeau,  399. 
Trelawney  v.  Thomas,  420,  445. 
Trent  and  Humber  Co.,  in  re,  288. 
Trentman  «.  Wiley,  353. 
Trigg  V.  Northcut,  120. 
Triggs  ij.  St.  Louis,  K.   C.  &  N.  Ry. 

Co.,  55. 
Tripp  V.  Grouner,  526,  527. 
Trotter  v.  Grant,  452. 
Trout  V.  Kennedy,  373. 
Troutman  ».  Gowing,  399. 
Trowbridge  v.  Holcomb,  415. 
Trower  v.  Elder,  592. 
Troy  B.  Cheshire  R.R.  Co.,  131. 
®.  Clarke,  5. 


'References 
are  to  pages. 


TABLE    OF   CASES. 


lix 


Truckee  Lodge  «.  Wood,  189. 

True  V.  International  T.  Co.,  343,  303. 

Tucker  v.  Grover,  458,  461. 

®.  Ives,  453. 

«.  Newman,  98. 

v.  Wright,  76. 
Tufts  V.  Adams,  148. 
Tuller  ®.  Carter,  461. 
TuUidge  v.  Wade,  506. 
Tully  e.  Fitchburg  R.R.  Co.,  150. 
Turner  -c.  Beall,  413. 

V.  Dawson,  436. 

c.  Hardcastle,  110. 

v.  Lamb,  312. 

».  N.  B.  &  M.  R.R.  Co.,  589. 
Turnpike  Co.  v.  Fry,  110,  114. 
Turpin  v.  Sledd,  400. 
Tuthill  ®.  Scott,  139. 
Tuttle  8.  Farmington,  337. 
Tyler  «.  Pomeroy,  66,  183. 

®.  SafEord,  350. 
Tyson  d.  Ewing,  536,  534. 


IT. 

Ulbricht  v.   Eufaula  Water  Co.,  139, 

143. 
Uline  41.  New  York  C.  &  H.  R.  R.R. 

Co.,  132. 
UUman  b.  Barnard,  101. 
Underbill  v.  Gaff,  444,  454. 
Union  Institution  «.  Boston,  476. 
Union  L.  &  E.  Co.  ■».  ErieRy.  Co.,  580. 
Union  Pacific  Ry.  Co.  ■».  Dunden,  132, 

249. 
Union  Pacific  Ry.  Co.  «.  Hause,  523. 
Union  Trust  Co.'  ®.  Cuppy,  139. 
United  States  ».  Behan,  197. 

V.  Curtis,  446. 

■».  Denvir,  446. 

».  Smith,  30,  306. 

V.  Taylor,  523,  537,  530, 
532. 
United  States  Bank  e.  Chapin,  475. 
United  States  Ex.  Co.  v.  Meints,  101. 
Upton  ®.  Vail,  32. 
Usher  b.  Hiatt,  398. 
Utter  B.  Chapman,  313. 


V. 

Van  Arsdale  v.  Joiner,  108. 
Van  Benschooten  v.  Lawson,  496. 
Van  Beuren  v.  Van  Gaasbeck,  453. 
Van  Buren  v.  Digges,  589. 

V.  Fishkill &  M.  W.  W.  Co., 
94. 
Vance  «.  Evans,  445. 


Vandegrift  v.  Abbott,  311. 
Vanderpool  ®.  Richardson,  59. 
Vandevoort  «.  Gould,  448. 
Van  Hoozier  e.  Hannibal  &  S.  J.  R.R. 

Co.,  139. 
Van  Husen  «.  Kanouse,  498. 
Van  Ness  v.  Fisher,  285. 
Van  Orsdol  ®.  B.  C.  R.  &  N.  Ry.  Co., 

131.  ^ 

Van  Pelt  e.  McGraw,  95. 
Van  Rensselaer  «.  Jewett,  455,  456, 466. 
».  Jones,  448,  466. 
».  Plainer,  466. 
Van  Schaick  ».  Sigel,  331. 
Van  Winkle  «.  Wilkins,  191. 
Van  Wyck  ».  Allen,  378. 
Varco  u.  Chicago,  M.  &  S.  P.  Ry.  Co., 

463. 
Vaughani).  Howe,  450. 
®.  Kennan,  500. 
«.  Tafl!  Vale  Ry.  Co.,  41. 
Vedder  ».  Hildreth,  192. 

V.  Van  Buren,  79.  , 

Veiths  V.  Hagge,  435. 
Velte  V.  United  States,  464. 
Vermont  S.  B.  C.  ®.  Ladd,  440. 
Verrill  ».  Minot,  53. 
Vicars  ».  Wilcocks,  175. 
Vickery  ».  McCormick,  240. 
Vicksburg  &  J.  R.R.  Co.  o.  Patton, 

530,  538. 
Vicksburg  &  M.  R.R.  Co.  «.  Scanlon, 

534. 
Vinal  «.  Core,  66,  68. 
Virginia  t).  Chesapeake  &  O.  C.  Co., 

499. 
Voltz  V.  Blackmar,  514. 
Von  Fragstein  «.  Windier,  530. 
Von  Hemert  ».  Porter,  496,  497. 
Von  Storch  ».  Winslow,  534. 
Verse  j>.  Phillips,  340,  351. 
Vosburg  «.  Welch,  76. 


W. 

Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Rec- 
tor, 538,  546. 

Wade  ».  Leroy,  51,  66,  259,  321. 
».  P-att,  476. 
®.  Thayer,  536. 

Wadsworth  ».  Western  U.  T.  Co.,  60, 
61,  62,  63. 

Waggoner  ®.  Cox,  590,  598. 

Wagner  v.  Corkhill,  270. 

Wakefield  «.  Stedman,  580. 

Wakeman  v.  Wheeler  &  W.  Mfg.  Co., 
284. 

Walden  e.  Sherburne,  454. 

Waldron  v.  Berry,  149. 


Ix 


TABLE    OF    CASES. 


Be/erences 
are  to  pages. 


Walker  v.  Constable,  430,  433. 
V.  Bngler,  604. 
V.  Erie  Ry.  Co.,  260. 
V.  Fuller,  526,  527. 
«.  Hadduck,  448. 
«.  Moore,  201,  220. 
«.  Smith,  31. 
V.  Swayzee,  310. 
Wall  V.  Cameron,  66. 

V.  City  of  London  R,  P.  Co.,  30. 
Wallace  v.  Ah  Sam,  320. 

V.  Western  N.   C.  R.R.  Co., 

53.  66,  359,  821. 
V.  York,  851,  853. 
Waller  v.  Long,  591. 

D.  Waller,  536. 
Wallis  V.  Dilley,  493. 
v.  Smith,  593. 
Walnut  V.  Wade,  499. 
Walrath  ».  Redfield,  468. 
Walsh  «.  Adams,  115. 

1).  Chicago,  M.  &  S.  P.  Ry.  Co., 
53,  65. 
Walter  v.  Post,  94,  364. 
Walters  v.  McGirt,  444. 
Walworth  v.  Pool,  307. 
Wanamaker  v.  Bowes,  526. 
Wanata,  The,  500. 
Ward  D.  Benson,  83. 

«.  Blackwood,  51,  67,  534,  542. 
».  Haws,  350. 
V.  Henry,  113,  113. 
V.  New  York  C.  R.R.  Co.,  310. 
1).  Smith,  369,  491. 
Warder  v.  Arell,  895. 
Wardrobe  v.  Cal.  Stage  Co.,  536. 
Ware  ®.  Simmons,  483. 

«.  Welch,  360. 
Waring  v.  Henry,  449. 
Warner  v.  Bacon,  135,  336. 
V.  Juif,  476. 
V.  Matthews,  104. 
V.  Vallily,  113. 
Warren  «.  Cole,  338. 

V.  Deslippes,  139. 
V.  Franklin  Ins.  Co.,  403. 
V.  Kelley,  110. 
V.  Stoddart,  306. 
Warren  County  v.  Klein,  430,  487. 
Warwick  v.  Hutchinson,  301. 
Washington  Ice  Co.  v.  Webster,  316. 
Waterer  v.  Freeman,  135. 
Waters  ».  Brown,  315. 

V.  Dumas,  524,  582. 
«.  Towers,  191,  317. 
Watkins  «.  Morgan,  436. 
Watkinson  v.  Laughton,  433. 
Watkyns».  Watkyns,  553. 
Watsons.  AmbergateN.  &B. Ry.  Co. 
393. 


Watson  V.  Cowdrey,  388. 
V.  Fuller,  483. 
V.  Hamilton,  155. 
Watt  V.  Hoch,  406. 
Watterson  «.  Alleghany  V.  R.R-  Co., 

386. 
Watts  D.  Camors,  592. 
11.  Garcia,  498. 

V.  Phoenix  Mut.  L.  Ins.  Co.,  136. 
V.  Sheppard,  594. 
V.  Watts,  481. 
Wayman  v.  Cochrane,  484. 
Weavers.  Darby,  104. 
Webb  V.  Oilman,  534,  537,  528,  583. 
V.  Gross,  136,  148. 
V.  Portland  Mfg.  Co.,  38. 
Weber  v.  M.  &  E.  R.R.  Co.,  90. 
Weeks  v.  Hasty,  444. 
V.  Little,  603. 
V.  Prescott,  183. 
Wegner  v.  Second  W.  S.  Bank,  386, 

488. 
Wehle  V.  Butler,  82,  289,  434,  461. 
V.  Haviland,  389. 
V.  Spelman,  83. 
Weir  V.  Allegheny  County,  431,  463. 
Weiting  v.  ifillston,  181. 
Welch  V.  Durand,  341,  844,  533. 
■e.  McDonald,  603. 
«.  Northeastern  R.R.   Co.,  341, 

346. 
D.  Whittemore,  111. 
Weld  V.  Reilly,  74. 
Weller  «.  Baker,  189. 
Wells  V.  Padgett,  59. 

V.  Watlmg.  140. 
Welsh  V.  First  Div.  of  S.  P.  &  P.  R.R. 

Co.,  499. 
Wemple  ».  Stewart,  368. 
Wernwag  v.  Mothershead,  481. 
West  V.  Forrest,  66. 
V.  Tel.  Co.,  60. 
West  Chicago  A.  Works  v.  Sheer,  448. 
West  Republic  M.  Co.  v.  Jones,  450. 
West  W.  Ry.  Co.  «.  Foley,  486. 
Westcott  V.  Middleton,  53. 
Westerman  «.  Means,  580. 
Western  &  A.  Ry.  Co.  v.  McCauley,464. 

V.  Young,  468. 
Western  G.  R.  Co.  v.  Cox,  271. 
Western  TJ.  Tel.  Co.  o.  Cooper,  57,  60, 
67,  180. 
■c.  Crall,  293. 
0.  Eyser,  530,588. 
■I).  Graham,  243. 
V.  Hall,  393. 
v.  Way,  303. 
Westfleld  ».  Mayo,  360. 

V.  Westfield,  480. 
Weston  i\  Brown,  453. 


are  to  pages. 


TABLE   OF    CASES. 


1X1 


Weston  e.  Gravlin,  94,  533. 
Wetmore  «.  Pattison,  220. 
Wharton  i).  Cunningham,  412. 
Wheatland  v.  Taylor,  594. 
Wheatley  v.  Thorn,  545. 
Wheaton  v.  Pike,  498,  500. 
Wheeler  «.  Haskins,  446. 

V.  Newberry  County,  487. 
«.  Pereles,  107,  387. 
V.  Randall,  189. 
Wheeler  &  W.  Mfg.  Co.  v.  Boyce,  524, 

538. 
Wheelock  ».  Wheelwright,  77. 
Whipple  V.  Cumberland  Mfg.  Co.,  138, 

341. 
Whitaker  v.  Harrold,  20. 

«.  Hartford,  P.   &  F.  B.R. 
Co.,  499. 
White  1).  Arleth,  589. 
■0.  Baker,  406. 
®.  Dingley,  586. 
«.  Ditson,  443. 
V.  Givens,  350. 
11.  Griffin,  136;  143. 
V.  litis,  481. 
«.  Lyons,  443,  489. 
V.  Miller,  278,  459,  470. 
V.  Moseley,  264,  273. 
®.  Smith,  443. 
«.  Webb,  100,  110. 
Whitehall  ».  Squire,  84. 
Whitehall  T.  Co.  v.  New  Jersey  S.  B. 

Co.,  468. 
Whitehead  v.  Ducker,  149. 
Whitehead  &  A.  M.  Co.  ■».  Ryder,  323. 
Whiteley  ®.  China,  189. 
Whitfield  v.  Levy,  592. 
V.  Riddle,  412. 
V.  Westbrook,  544. 
«.  Whitfield,  534. 
Whitley  «.  Moseley,  412. 
Whitmarsh  v.  Littlefield,  313. 
Whitney  «.  Allaire,  144. 

V.  Chicago  &  N.  W.  Ry.  Co., 

462. 
V.  Clarendon,  121. 
v.  Hitchcock,  535. 
i>.  Peddicord,  443. 
i>.  Slayton,  123. 
11.  State,  487. 
V.  Thacher,  403. 
Whitson  V.  Gray,  287. 
Whittemore  v.  Cutter,  144,  348. 
Whitten  v.  Fuller,  75. 
Whittier  v.  Collins,  80. 
Whitworth  v.  Hart,  439. 
Wibaux  V.  Grinnell  L.  S.  Co.,  594. 
Wichita  &  W.  R.R.  Co.  ii.  Beebe,  116. 
Wichita  &  W.  R.R.  Co.  ■».  Fechheim- 
er,  132. 


Wiggin  1).  Coffin,  510. 
Wilbeam  i>.  Ashton,  561. 
Wilbur  V.  Johnson,  59. 
Wilcox  «.  Campbell,  334,  337. 
V.  Howland,  496. 
V.  Plummer,  120.  145. 
Wilcus  «.  Kling,  603. 
Wildey  v.  Thornton,  613. 
Wiley  ».  West  Jersey  R.R.  Co.,  201. 
Wilkes  V.  Hungerford  M.  Co.,  43. 
Wilkinson  ».  Drew,  530. 
•D.  Searcy,  543. 
«.  Terry,  141. 
Wilier  B.  Oregon  Ry.  &  Nav.  Co.,  264, 

266. 
Williams'  Case,  43. 
Williams  d.  Barton,  174. 
«,  Burrell,  453. 
».  Camden  &  R.  Water  Co., 

129. 
V.  Chicago  Coal  Co.,  307. 
V.  Craig,  4.52. 
V.  Currie,  508. 
■B.  Dakin,  595. 
«.  Dobson,  113. 
V.  Green,  595. 
V.  .tones,  409. 
».  Pomeroy  Coal  Co.,  129. 
V.  Reynolds,  321. 
V.  Sherman,  420. 
V.  Sims,  409. 
1).  Storrs,  446. 

V.  Vance,  580,  585,  589,  595. 
».  Vanderbilt,  214. 
■V.  Williams,  137. 
Williamson  v.  Barrett,  289,  333. 
V.  Broughton,  483. 
Willingham  i\  Hooven,  200,  276. 
Willings  11.  Consequa,  433,  493. 
Willis  V.  Branch,  266. 
».  McNatt,  461. 
V  McNeill,  547. 
Willoughby  ».  Backhouse,  76. 
Wills  «.  Allison,  402. 
a.  Brown,  450. 
».  Wells,  387. 
Wilmans  v.  Bank  of  Illinois,  440. 
Wilmington  &  W.  R.R.  Co.  ■».  King, 

413. 
Wilson  V.  Barnes,  148. 

■0.  Bowen,  531,  524. 

V.  Brett,  528. 

«.  Cobb,  489. 

V.  Dean,  591. 

«.  General  I.  S.  C.  Co.,  191. 

V.  George,  416. 

V.  Lancashire  &  T.   Ry.  Co., 

162,  195,  309. 
V.  McEvoy,  850. 
V.  Marsh,  484. 


Ixii 


TABLE    OF    CASES. 


ai'e  to  pages. 


Wilson  ».  Martin,  306. 

V.  Middieton,  545. 

«.  New  Bedford,  37,  38. 

V.  Newport  Dock  Co.,  198,  206, 
209,  300. 

v.  Nightingale,  83. 

V.  Root,  352. 

«.  Vaughan,  525,  527. 

V.  "Waddell,  40. 

«.  Wheeling,  537. 

V.  Whitaker,  31. 
Wiltbuiger  v.  Randolph,  449,  452. 
Wimberg  ».  Schwegeman,  136. 
Winburne  ».  Bryan,  80. 
WiQch  v.  Mutual  B.  I.  Co.,  440. 
Winchester  «.  Craig,  461. 

®.  Stevens'  Point,  129. 
Windham  v.  Rhame,  532. 
Winkler  v.  Roeder,  341. 
Winn  J).  Peckham,  532,  544. 
Winne  v.  Kelley,  273. 
Winona  s.  Minnesota  Ry.  C.  Co.,  499. 
WinslowB.  Lane,  284. 

«.  Stokes.  117. 
Winstead  v.  Hulme,  341,  345,  523. 
Winter  v.  Peterson,  532. 
Winterbottom  ii.  Wright,  33,  147. 
Wintermute  v.  Cooke,  384. 
Winthrop  v.  Carleton,  444. 
Wiutz  V.  Morrison,  189. 
Wiswall  V.  M'Gown,  4. 
Witherow  v.  Briggs,  481. 
Wittich  V.  O'Neal,  350. 
Woert  ®.  Jenkins,  509,  533. 
Wofford  V.  Wyly,  498. 
Wolcott  V.  Mount,  246,  278. 
Wolf  V.  D.  M.  &  F.  D.  Ry.  Co.,  595. 
«.  St.  Louis  Ind.  Water  Co.,  334. 
V.  Studebaker,  309. 
V.  Trinkle,  69,  71. 
Wolf    Creek    Diamond    Coal   Co.    ■». 

Schultz,  595. 
Wolfe  41.  Sharp,  449. 
WoUE ».  Cohen,  545. 
Wood  11.  Hickock,  453. 
V.  Lane,  56. 
«.  Robins,  430,  442. 
®.  Smith,  436,  453. 
Woodbury  v.  Jones,  198. 
Woodhull «.  Wagner,  408 
Woodin  v.  Wentworth,  273 
Woodruff  i>.  Webb,  475 
Woods  V.  McCall,  74. 

v.  Varnum,  150,  155. 
Woodward  v.  Illinois  C.  R.R.  Co.,  433. 

«.  Woodward,  489. 
Wooster  «.  Kisch,  596. 


Work  V.  Glaskins,  492. 

Workman  v.  Great  N.  Ry.  Co.,  87. 

Worrall ».  Munn,  448. 

Worrell  v.  McClinaghan,  603. 

Worth  V.  Edmonds,  3l7. 

Worthy  «.  .Tones,  410. 

Wright  11.  Bank  of  the  Metropolis,  316. 

V.  Compton,  66. 

V.  Donnell,  526. 

v.  Jacobs,  399. 

v.  Keith,  317. 

11.  Mulvaney,  266,  287. 

11.  Spencer,  84. 

11.  Wright,  136. 
Wyandotte  &  K.  C.  G.  Co.  v.  Schliefer, 

449. 
Wyllie  V.  Wilkes,  553. 
Wyman  v.  Leavitt,  58. 
Wynne  «.  Parsons,  344,  523. 


Tale  v.  Saunders,  76. 
Yates  11.  Joyce,  28,  95. 

«.  New  York  C.  &  H.  R.  R.R. 

Co.,  541. 
J).  Whyte,  90. 
Yellow  Pine  L.  Co.  v.  Carroll,  440. 
Yellowly  «.  Pitt  County,  487,  488.; 
Yelton  11.  Slinkard,  463. 
Yenner  v.  Hammond,  586,  598. 
Yerian  n.  Linkletter,  530. 
Yetter  v.  Hudson,  590. 
Yokum  «.  Thomas,  354. 
Yorton  «.  Milwaukee,  L.  S.  &  W.  Ry. 

Co.,  334. 
Young  V.  Courtney,  338. 

ji.  Cureton,  289. 

v.  Dickey,  450,  452. 

B.  Fluke,  481. 

n.  Godbe,  454. 

V.  Hill,  497,  498. 

V.  Mertens,  533 

«.  Spencer,  98,  140 

«.  Thompson,  480. 

11.  Western  U.  T.  Co.,  60. 

V.  White,  604. 

Z. 

Zabriskie  v.  Smith,  114. 
Zeigler  v.  Wells,  380 
Ziebarth  v.  Nye,  129. 
Ziegler  v.  Powell,  363,  544. 
Zimmerman  v.  Shreeve,  99. 
Zink  V.  Langton,  485. 


A   TREATISE 


MEASURE   OF   DAMAGES. 


4 


CHAPTER   I. 

GENERAL   VIEW    OF   THE    SUBJECT. 


5    I.  The  subject  a  branch  of  the  law 
of  redress. 

2.  Legal  relief  consists  of  damages. 

3.  Equitable  relief. 


I. — General  Introduction. 

4.  Difference  between  them. 


5.  Damages  a  species  of  property. 

6.  General    arrangement    of    the 

subject. 


IL — History  of  Damages  in  our  Law. 

§  1 2.  Anglo-Saxon  judiciary. 
13.  Later  modes  of  trial. 


§    7.  Our  law  of  damages  originated 
with  the  Anglo-Saxons. 

8.  Damages    under    Anglo-Saxon 

jurisprudence. 

9.  Damages   in  Anglo-Saxon  law 

compensatory. 

10.  Anglo-Saxon  compensation  pe- 

cuniary. 

11.  Amount  of  compensation  care- 

fully defined. 


14.  By  ordeal. 

1 5.  By  battle. 

16.  By  wager  of  law. 

17.  By  jury. 

18.  Modern  tribunals. 

19.  Quantum  of  damages  a  questioa 

for  the  jury. 


IIL- 

§  20.  Jewish  law. 

21.  Hindoo  law. 

22.  Roman  law. 

23.  How  awarded  under  Roman  law. 

24.  Arbitrary    rules    of   reparation 

under  Roman  law. 


Damages  under  other  Systems  of  Law. 
§  25.  Civil  law. 

26.  Dommage-int6rets  indefinite. 

27.  Limited    only   by  discretion  of 
judge. 

28.  Methods  of  avoiding  injustice  in 
these  systems. 


IV. — General   Principles  adopted  in  the  Common-Law  System. 

§  33.  Fletcher  v.  Rylands. 


§  29.  Damages  consist  in  compensa- 
tion for  loss  sustained. 

30.  Both  in  contract  and  in  tort. 

31.  Amount  determined  by  rules  of 

law. 

32.  Damnum    absque   injuria  and 

injuria  sine  damno. 


34.  No   compensation   for   loss   by 

nuisance  common  to  all. 

35.  Unless   particular  damage    re- 

sults. 

36.  Nor  by  way  of  settlement  for 

crime. 


General    Introduction. 

§  I.  The  subject  a  branch  of  the  law  of  redress. — *  The 
subjects  of  legal  investigation,  when  practically  consid- 


2  GENERAL  VIEW   OF   THE    SUBJECT.  §  I. 

ered,  generally  resolve  themselves  into  three  great  heads 
of  inquiry :  the  right  of  the  parties  or  the  cause  of  ac- 
tion, the  forms  of  proceeding,  and  the  mode  of  relief. 
It  is  of  the  last  only  of  these  three  divisions  that  these 
pages  are  intended  to  treat ;  nor  are  they  intended  to 
discuss  the  whole  topic  of  redress ;  on  the  contrary, 
they  will  be  confined  to  a  single  head  of  this  extensive 
branch. 

The  student  of  English  jurisprudence  can  never  mas- 
ter the  subject  of  which  we  are  about  to  write,  nor,  in- 
deed, scarcely  any  other  of  our  complicated  science,  un- 
til he  has  completely  familiarized  himself  with  the  funda- 
mental division  and  distinction  between  Law  and  Equity. 
There  is,  indeed,  nothing  more  curious  in  legal  science, 
hardly  anything  more  interesting  in  the  history  of  the 
human  mind,  than  to  trace  the  processes  by  which  the 
twofold  fabric  of  English  jurisprudence  gradually  arose. 
How  the  Common  Law,  springing  from  the  ancient 
usages  of  the  Teutonic  stock,  at  once  identified  itself 
with  the  interests  of  the  great  feudal  proprietors  of  the  soil, 
and  fashioned  their  real  law  ;  and  at  the  same  time  called 
to  its  aid  the  Trial  by  Jury,  and  thus  endeared  itself  to 
the  popular  heart ;  while,  on  the  other  hand,  the  Civil 
Law,  under  the  name  of  Equity,  emerging  from  the 
great  wreck  of  the  Roman  Empire,  claimed  for  itself  a 
jurisdiction  which  the  cumbrous  and  artificial  processes 
of  its  rival  could  not  embrace,  and  by  the  mere  force  of 
its  logical  order,  scientific  analysis,  and  simple  reason, 
has  succeeded  in  obtaining  a  hold  on  the  legal  organ- 
ization and  science  of  the  world,  which  bids  fair,  under 
one  name  or  another,  to  end  in  an  almost  complete  re- 
establishment  of  its  ancient  supremacy.  But  these  are 
considerations  of  too  general  a  nature  to  be  here  pursued 
further.     Contenting  ourselves  with  a  cordial  invitation 


§§  2,  3-       LEGAL   RELIEF   CONSISTS   OF   DAMAGES.  3 

to  the  student  not  to  neglect  these  old  mazes  of  our  legal 
history,  we  confine  our  observations  to  matters  of  more 
immediate  practical  interest. 

§  2.  Legal  relief  consists  of  damages. — The  relief  af- 
forded by  a  tribunal  may  be  either  preventive  or  reme- 
dial. If  remedial,  it  may  again  be  either  specific,  or  it 
may  consist  in  the  mere  award  of  pecuniary  remunera- 
tion. The  common  law,  as  it  exists  in  England,  and  as 
it  was  introduced  into  the  United  States,  is  generally 
remedial  in  character,  and  its  remedies  are  of  a  pecuniary 
description.  It  has  few  preventive  powers  ;  it  can  rarely 
compel  the  performance  of  contracts  specifically  ;  its  re- 
lief, for  the  most  part,  consists  in  the  award  of  pecuniary 
damages.  Whether  it  punishes  wrongs,  or  remunerates 
for  breach  of  contract,  in  either  case  its  judgment  sim- 
ply makes  compensation,  by  awarding  a  certain  amount  of 
money  by  way  of  damages  to  the  sufferer.'  The  rules 
which  in  this  matter  govern  its  action,  i.  e.,  the  amount 
of  compensation  awarded  by  common-law  tribunals,  or 
in  other  words  the  Measure  of  Damages,  will  be  the 
subject  of  this  treatise. 

A  mere  enumeration  of  the  forms  of  action  and  pro- 
ceedings at  common  law,  when  we  consider  them  in  con- 
tradistinction to  equitable  relief,  is  sufficient  to  show  that 
the  powers  of  the  former  tribunals  are  almost  solely  re- 
medial, and  confined,  with  few  exceptions,  to  the  inflic- 
tion of  pecuniary  damages. 

§  3.  Equitable  relief. — Equity  operates  by  injunction  ; 
it  restrains  the  aggressor  from  the  contemplated  violation 

'  And  all  the  questions  growing  out  age   alleged  to   have   been    sustained 

of  these  subjects  are   investigated  in  are  tried  and  decided  in  one  proceed- 

one  and  the  same  proceeding.     "  It  is  ing  and  upon  one  trial."      East  and 

incident    to    every  common-law  com-  West  India  D.   &   B.   J.    Ry.  Co.  v. 

plaint  of  injury  and  damage,  that  the  Gattke,  3  McN.  &  G.  155,  170 ;  15  Jur. 

existence  of  the   injury  and  right  to  261. 
compensation  and  the  amount  of  dam- 


4  GENERAL  VIEW   OF   THE   SUBJECT.  §  3. 

of  right ;  it  gives  specific  relief  by  decreeing  tiie  very 
thing  to  be  done  which  was  agreed  to  be  done ;  it  com- 
pels the  unwilling  party  to  give  testimony ;  it  executes 
trusts,  expounds  testaments,  and  adapts,  its  plastic  hand 
with  ease  to  the  varied  wants  and  complaints  of  man  in 
a  state  of  society.  But,  as  a  general  rule,  it  refrains 
from  awarding  pecuniary  reparation  for  damage  sus- 
tained.' ** 

Modern  legislation  in  England  (")  provides  that  in 
all  cases  in  which  the  Court  of  Chancery  has  jurisdiction 
to  entertain  an  application  for  an  injunction  against  a 
breach  of  any  contract,  covenant,  or  agreement,  or  against 
the  commission  or  continuance  of  any  wrongful  act,  or 
for  the  specific  performance  of  any  contract,  covenant, 
or  agreement,  it  shall  be  lawful  for  the  same  court,  if  it 
think  fit,  to  award  damages  to  the  party  injured,  either 
in  addition  to  or  substitution  for  such  injunction  or  spe- 
cific performance,  and  that  such  damages  may  be  assessed 
by  a  jury,  or  before  the  court  itself,  as  it  shall  think 
fit.  (")  But  under  this  act,  it  was  held  by  Wood,  V.  C, 
that  the  court  will  not  award  damages  in  addition  to  a 
decree  for  specific  performance  where  it  does  not  appear 
that  the  plaintiff  has  sustained  any  special  injury.  (°) 
Nor,  after  making  a  decree  for  specific  performance,  can 
it  add  an  order  assessing  damages  for  the  breach  of  the 
covenant.  (**)  Nor  can  it  award  the  damages  unless  there 
is    an    agreement    capable    of    being    specifically   per- 

'  It  is  true  that  a  court  of  equity  will  has  obtained  jurisdiction  of  the  cause 

sometimes  give  damages  in  lieu  of  the  on  other  grounds.   Wiswallz/.  M'Gown, 

specific  performance  of  a  contract,  but  2  Barb.  270. 
that  is  only,  as  a  general  rule,  where  it 


(»)  21  and  22  Vict.,  c.  27  (Sir  Hugh  Cairns'  Act). 
0)  See  Durell  v.  Pritchard,  L.  R.  i  Ch.  244. 
(=)  Chinnock  v.  Marchioness  of  Ely,  2  H.  &  M.  220. 
('')  Corporation  of  Hythe  v.  East,  L.  R.  i  Eq.  620. 


§  4-  DIFFERENCE    BETWEEN    THEM.  5 

formed.  (^)  In  cases  where,  under  this  statute,  the  court, 
instead  of  granting  an  injunction  against  interference 
with  the  complainant's  right,  may  give  compensation,  the 
compensation  is  given  once  for  all ;  it  cannot  be  given, 
as  in  an  action  at  law,  Mies  quoties.  Q')  It  is  questionable 
whether,  even  under  the  new  codes  of  practice  in  the 
American  States,  comprehensive  as  they  are,  such  a  juris- 
diction could  be  exercised  as  that  conferred  by  this  Eng- 
lish legislation.  (°) 

§  4.  Difference  between  them. — *With  the  common  law 
the  case  is  very  different.  The  end  at  which  it  arrives 
is,  in  almost  all  instances,  one  and  the  same ;  in  the  ac- 
tions founded  upon  contract,  account,  assumpsit,  cove- 
nant, debt,  the  only  object  of  the  plaintiff  is  to  obtain, 
and  the  only  power  of  the  court  is  to  make,  a  judgment 
awarding  a  certain  amount  of  money,  by  way  of  redress 
for  the  breach  of  the  agreement.  In  the  case  of  an  ac- 
tion brought  for  the  breach  of  a  contract  for  the  pay- 
ment of  money  only,  a  suit  for  damages  does,  indeed,  as 
Lord  Mansfield  has  observed,'  from  the  nature  of  the 
case,  become   a  suit  for  specific  performance,  i^')     But 

'  Robinson  v.  Bland,  2  Burr.  1077,  ment  of  a  sum  of  money,  it  is  a  techni- 

1086.     "  Where  fljjMOT/jjV  proceeds  on  cal  fiction  to  call  the    sum  recovered 

a  demand  of  money,  it  is  in  truth  and  damages ;  it  is  the  specific  debt,    and 

substance,  and  so  taken  to  be  in  some  of  the  jury  give    the  specific   thing  de- 

the  cases,  a  more  special  action  of  debt :  manded."      Lord    Loughborough,    in 

for  where  the  demand  is  for  the  pay-  Rudder  v.  Price,  i  H.  Bl.  547,  554. 


(")  Lewers  v.  Earl  of  Shaftesbury,  L.  R.  2  Eq.  270 ;  Ferguson  v.  Wilson,  L. 
R.  2  Ch.  ^^. 

C)  Stokes  V.  The  City  Offices  Co..  13  L.  T.  R.  81. 

(")  See  Troy  v.  Clarke,  30  Cal.  419.  Where  courts  of  equity  exercise 
jurisdiction  to  assess  damages,  as  in  the  case  of  a  wrongful  taking  and  de- 
tention of  property,  they  will  give  neither  vindictive  nor  speculative  damages, 
but  compensation  only.     Sanders  v.  Anderson,  10  Rich.  Eq.  232. 

(■")  Yet,  even  in  this  case,  the  true  theory  of  the  recovery  on  a  money  de- 
mand is  "not  that  the  party  recovers  the  particular  note  or  chose  in  action, 
as  is  commonly  imagined,  but  that  he  recovers  damages  for  the  non-perform- 


6  GENERAL   VIEW    OF    THE    SUBJECT.  §  5. 

this  is  almost  the  only  instance  where  a  suit  at  law 
compels  the  very  thing  to  be  done  which  the  defend- 
ant agreed  to  do.  In  the  actions  of  tort,  case  and  tres- 
pass, trover,  replevin  and  detinue,  the  rule  is  the  same, 
with  the  exception  that  in  the  two  latter  the  law  makes 
a  feeble  and  partial  attempt  to  enforce  the  return  of  the 
specific  chattels,  for  the  taking  or  detention  of  which  the 
suit  is  brought. 

To  this  general  rule,  however,  there  are  some  further 
exceptions,  which  must  be  borne  in  mind.  In  the 
action  of  ejectment,  and  in  the  proceedings  to  recover 
dower,  as  well  as  in  cases  of  nuisance  by  abating  the 
grievance  complained  of,  the  common  law  gives  a  spe- 
cific remedy.  By  the  proceedings  of  quo  warranto,  man- 
damus, and  prohibition,  and  the  ancient  and  now  obso- 
lete writ  of  estrepement,  and  the  great  writ  of  habeas 
corpus  also,  these  tribunals  exercise  powers  very  analo- 
gous to  those  of  a  court  of  equity.  But  of  these,  so  far 
as  they  belong  to  our  subject,  more  particularly  here- 
after. 

§  5.  Damages  a  species  of  property. — Blackstone,  in  his 
Commentaries,  ranks  damages  among  that  "  species  of 
property  that  is  acquired  and  lost  by  suit  and  judgment 
at  law."  "The  primary  right  to  a  satisfaction  for  inju- 
ries is  given  by  the  law  of  nature,  and  the  suit  is  only  the 
means  of  ascertaining  and  recovering  that  satisfaction." 


ance  of  the  contract.''  Guy  v.  Franklin,  5  Cal.  416.  If  any  other  provision 
is  contained  in  the  contract,  there  is  no  specific  performance,  in  a  court  having 
only  common  law  powers,  as  to  that.  For  instance,  where  in  a  suit  on  a  note 
promising  to  pay  $300,  "without  the  benefit  of  the  stay  of  execution,"  judg- 
ment was  rendered  that  the  plaintiff  recover,  etc.,  and  that  the  defendant 
have  no  stay  of  execution.  It  was  held,  on  appeal,  that  the  court  could  not 
enforce  the  specific  performance  of  the  agreement,  but  could  only  award 
damages  for  the  breach  of  it,  and  that  the  part  of  the  judgment  prohibiting 
stay  of  execution  must  therefore  be  reversed.     McLane  v.  Elmer,  4  Ind.  239. 


§  6.  GENERAL   ARRANGEMENT   OF   THE   SUBJECT.  7 

"  The  injured  party  has  unquestionably  a  vague  and  in- 
determinate right  to  some  damages  or  other,  the  instant 
he  receives  the  injury  ;  and  the  verdict  of  the  jurors,  and 
the  judgment  of  the  court  thereupon,  do  not,  in  this  case, 
so  properly  vest  a  new  title  in  him,  as  fix  and  ascertain 
the  old  one.  They  do  not  give,  but  define  the  right." ' 
In  Robert  Pilfold's  case,  it  is  said,'  "  It  is  to  be  known 
that  this  word  Damna  is  taken  in  the  law  in  two  several 
significations,  the  one  properly  and  generally,  the  other 
relative  dxvdi  stride.  Damna /r^*  injuria  illata,  md  ex- 
penses litis " — in  other  words,  damages  and  costs — 
"  for  damnum,  in  its  proper  and  general  signification, 
dicitur  a  demendo,  cum  deminutione  res  deter ior  fit T '  It 
is  of  the  Damna  pro  injuria  illata,  or  of  damages  as  now 
known  by  that  phrase  in  opposition  to  costs,  that  we  are 
here  speaking,  and  the  rules  which  govern  this  species  of 
property  form  the  subject  of  these  volumes,  under  the 
name  of  the  Measure  of  Damages.**  j 

§  6.  General  arrangement  of  the  subject. — The  subject 
will  be  arranged  in  the  following  general  order  of  topics  : 

1.  The  origin  of  damages  under  the  English  system, 
and  the  tribunals  by  which  they  are  now  imposed. 

2.  The  general  principles  by  which  they  are  regulated. 

3.  The  measure  of  damages  in  particular  cases. 

4.  Set-off,  recoupment,  and  mitigation  of  damages. 

5.  The  rule  of  damages  under  special  statutes. 

6.  Pleading,  practice,  and  evidence,  as  applicable  to 
the  subject. 

'  Book  ii.,  ch.  29,  p.  438.  sopnus,  somnus.     Nee  absurde  deducas  a 

''  10  Rep.  115.  GrtEco  Sa/ivo,  quod  est  ^id^a,  aut  ex  C,rijita, 

«  The  origin  of  the  word  Damnum  is  damia,  damnum;  ut  regia,  regnum. — De 

thus  given  by  Grotius  :  Damnum  forte  Jure  Bell,  et  Pac.  lib.  ii.  cap.  17.     The 

a  demendo  dictum.     Ita    Varro,   Libra  Digest  says,  Damnum  et  damnatio  ab 

V:  Damnum  u,  demptione,  cum  minus  ademtione  et  quasi  deminutione  patrimo- 

re  factum  quam  quanti  constat.     Alii  nii  dicta  sunt. — De  Damno  Infecto,  1. 

magis  probant  derivare  a  Graco  Savavri,  xxxix,  tit.  2,  §  3. 
utsitdapnum,  deinde  damnum;  ut  virvoc. 


8  GENERAL   VIEW   OF   THE    SUBJECT.  §§  7,  8. 

7.  The  control  exercised  by  the  court  over  the  jury  in 
regard  to  damages. 

History  of  Damages  in  our  Law. 

§  7.  Our  law  of  damages  originated  with  the  Anglo- 
Saxons.— *In  investigating  the  origin  of  our  present 
system  of  pecuniary  compensation,  it  is  not  difficult  to 
trace  it  back  to  those  Anglo-Saxons,  whose  marked  and 
peculiar  character  has  so  deeply  impressed  itself  on  every 
quarter  of  the  globe.  Under  the  civil  law,  we  shall  see 
hereafter  that  the  rights  and  remedies  of  the  subjects  of 
the  imperial  government  of  Rome  were  carefully  pro- 
tected in  regard  to  the  matters  of  which  we  now  speak. 
But  when  that  beautiful  and  elaborate  structure  shared 
the  fate  of  its  creators,  the  rules  of  right  sank  with  it ; 
and  the  law  but  slowly  emerged  from  the  wreck  and 
chaos  of  empire.  For  nearly  ten  centuries  the  intel- 
lectual progress  of  Europe  was  arrested,  or  retarded  ;  and 
during  that  period  the  earlier  processes  of  civilization  had 
necessarily  to  be  worked  out  anew. 

§  8.  Damages  under  Anglo-Saxon  jurisprudence. — Eng- 
lish jurisprudence  finds  its  earliest  monument  in  the  sixth 
century,  in  the  laws  of  Ethelbert,  king  of  Kent ;  and 
this  code,  known  as  Leges  yEthelbirhti,  illustrates  our 
present  subject  too  curiously  to  be  unnoticed  here.  In 
this  code  we  find  the  attention  of  the  lawgiver  confined 
almost  exclusively  to  wrongs,  or,  as  we  should  now  say, 
to  actions  of  tort ;  and  the  were,  weregildum,  or  weregild, 
— literally  a  man's  money,  or  the  price  of  a  man — is  the 
earliest  award  of  damages  to  be  found  in  our  jurispru- 
dence. The  antiquity  of  compositions  for  murder  is 
illustrated  by  Homer  (Iliad  '2.,  498,)  where,  in  the  de- 
scription of   the  shield  of  Achilles,  two  disputants  are 


§  9-     DAMAGES   IN   ANGLO-SAXON   LAW    COMPENSATORY.      9 

represented  wrangling  before  the  judge  for  the  weregild 
or  price  of  blood,    si'veKa  noiviji  dvdpb?  anocpdinivov.^ 

"The  passion  of  revenge,"  says  Mr.  Hallam,  "always 
among  the  most  ungovernable  in  human  nature,  acts  with 
such  violence  upon  barbarians  that  it  is  utterly  beyond 
the  control  of  their  imperfect  arrangements  of  polity.! 
It  seems  to  them  no  part  of  the  social  compact,  to  sacri- 
fice the  privileges  which  nature  has  placed  in  the  arm  of 
valor.  Gradually,  however,  these  fiercer  feelings  are 
blunted,  and  another  passion,  hardly  less  powerful  than 
resentment,  is  brought  to  play  in  a  contrary  direction. 
The  earlier  object  of  jurisprudence  is  to  establish  a  fixed 
atonement  for  injuries,  as  much  for  the  preservation  of 
tranquillity  as  the  prevention  of  crime.  Such  were  the 
weregilds  of  the  barbaric  codes.'" 

§  9.  Damages  in  Anglo-Saxon  law  compensatory. — 
"Damages,"  says  Sir  Francis  Palgrave,  "recovered  in  a 
civil  action  for  an  assault,  or  any  personal  injury  not 
being  a  felonious  act,  correspond  to  the  Anglo-Saxon 
were.  When  Alfred  enacts  that  the  seduction  of  the 
wife  of  a  Tvvelf  hsendman,  or  an  Eorl,  is  to  be  compen- 
sated by  payment  of  one  hundred  and  twenty  shillings  ; 
of  the  wife  of  a  Six  haendman,  by  payment  of  an 
hundred  shillings ;  and  of  the  wife  of  a  Ceorl,  by  pay- 
ment of  forty  shillings,  he  does  nothing  more  whatever 
than  fix  and  declare  the  amount  of  the  verdict,  instead 
of  leaving  the  assessment  of  damages,  as  we  do,  to  the 
direction  of  the  judge  and  the  discretion  of  the  jury."' 

'  Hallam's  Middle  Ages,   vol.   i,   p.  somme  4  I'abri  de  la  vengeance  de 

154,  chap,  ii,  part  ii.  l'offens6  ;  elle  impose  4  I'offens^  I'obli- 

2  Hallam,  ut  supra.     "La  Composi-  gation  de  renonjer  k  I'emploi  de  la 

tion," says Guizot,  "est  le  premier  pas  force." — Hist,    de    la    Civilization    en 

de  la  legislation  criminelle,  hers  du  rfe-  prance,  torn,  i,  p.  275  and  276  (Deux- 

gime  de  la  vengeance  personnelle.  .  .  .  ifeme  ed.). 

La  composition  est  une  tentative  pour  =  Palgrave's  Rise  and  Progress  of  the 

substituer  un  rfegime  16gal  i.  la  gfuerre  ;  English    Commonwealth,    vol.   i,   pp. 

c'est  la  facultfe  donnfee  I.  I'offenseur,  de  205  and  32. 
se   mettre,    en    payant    une    certaine 


lO  GENERAL   VIEW   OF   THE   SUBJECT.  §  9. 

The  were  is  not  to  be  confounded  with  the  wite,  the 
one  answering  to  our  civil  damages  for  personal  tres- 
passes,' the  other  to  our  criminal  mulct  or  fine.  It  is  to 
both  the  were  and  the  wite  that  Tacitus  refers  when, 
speaking  of  the  Germans,  he  says,  "  Sed  et  levioribus 
delictis  pro  modo,  poena ;  equorum  pecorumque  numero 
convicti  mulctantur,  pars  mulctce  regi  vel  civitati,  pars  ipsi 
qui  vindicatur,  vel propinquis  ejus,  exsolviiur."  ^ 

It  is  a  curious  fact  that  the  laws  of  remote  and  bar- 
barous periods  show  the  most  minute  care  in  fixing  the 
amount  of  compensation  to  be  recovered  by  way  of  dam- 
ages. We  have  the  laws  of  twelve  Anglo-Saxon  mon- 
archs,  from  the  middle  of  the  sixth  century  to  the  Nor- 
man Conquest.  Of  these,  the  earliest,  as  has  been  said, 
are  those  of  Ethelbert,  in  the  latter  part  of  the  sixth  cen- 
tury ;  and  his  application  of  the  were,  or  in  other  words, 
his  rule  of  damages,  is  singularly  minute. 

"  If  the  hair  be  plucked,  or  pulled,  let  fifty  sceattas'  be 
paid  in  compensation.  If  the  scalp  be  cut  to  the  bone 
[of  the  skull]  so  that  the  latter  appear,  let  compensation 
be  made  by  payment  of  three  shillings. 

'  "The  wite  was  a  penalty  paid  to  weregild  annexed  to  his  rank  in  the 

the   crown  by  a  murderer.    The  were  community."     "  Previously  to  paying 

was  the  fine  a  murderer  had  to  pay  to  the  weregild,  the  king's  mund,  a.  fine  to 

the  family  or  relatives  of  the  deceased  ;  the  king  for  the  breach  of  his  protec- 

and  the  wite  was  the  fine  paid  to  the  tion,  was  to  be  levied  ;  after  which, 

magistrate  who  presided  over  the  dis-  within  twenty-one  days,  the  healsfang 

trict  where  the  murder  was  perpetrated,  (apprehensio    colli,     coUistrigium),    a 

Thus  the  wite  was  the  satisfaction  to  mulct  in  commutation  of  the  pillory, 

be  rendered  to  the  community  for  the  or  some  similar  punishment,  was  to 

public  wrong  which  had  been  commit-  be  discharged,   and  after  that,  within 

ted,  as  the  were  was  to  the  family  for  twenty-one  days,   the   manbot,   or  in- 

their     private     injury."  —  Bosworth's  demnity  to  the  lord  of  the  siain,  for 

Anglo-Saxon  Dictionary  in  voc.   Were  the  loss  of  his  man.     In  addition  to  all 

and  Wite.  these,  there  was  still  the  fyht  wite,  due 

Dr.  Lappenberg,  in  his    History  of  to  the  crown  for  the   breach  of  the 

England  under  the  Anglo-Saxon  Kings  peace,  which,  as  well  as  the  manbote 

(see  B.  Thorpe's  translation,  London,  could  never  be  remitted." 

1845,  vol.  i,  p.  336,  Particular  and  Penal  '  De  Moribus  Germanise,  c.  12.     Pal- 

Laws),    mentions  several    other  fines  grave,  vol.  i,  p.  gg. 

imposed,  besides  the  were  and  the  wite,  '  A  silver  coin,  weight  ig  gr.     Vide 

in  cases  of  homicide.     He  says,  "  The  Hawkins'  English  Silver  Coins,  p.  18. 
relations  of  the  slain  received  the  whole 


§  lO.  ANGLO-SAXON    COMPENSATION    PECUNIARY.  II 

"  If  an  ear  be  cut  off,  let  compensation  be  made  by 
payment  of  twelve  shillings. 

"  If  a  piece  of  the  ear  be  cut  off,  let  compensation  be 
made  by  payment  of  six  shillings. 

"  Whoever  fractures  the  chin  bone,  let  him  forfeit 
twenty  shillings  for  the  offence. 

"  For  each  of  the  front  teeth,  six  shillings. 

"  For  the  tooth  that  stands  by  the  front  teeth  (on 
either  side),  four  shillings. 

"  For  every  [finger]  nail,  one  shilling. 

"  If  the  great  toe  be  cut  off,  let  a  fine  of  ten  shillings 
be  incurred. 

"  If  the  great  toe  nail  be  cut  off,  let  thirty  sceattas 
be  paid  for  compensation.  For  every  other  toe  nail,  ten 
sceattas." ' 

§  10.  Anglo-Saxon  compensation  pecuniary. — It  will  be 
noticed  that  the  were,  or  damages,  in  the  laws  of  Ethel- 
bert,  is  assessed  in  money.  But,  says  Sir  Francis  Pal- 
grave,  "  until  a  metallic  currency  was  introduced,  the 
legal  fines  and  penalties  were  paid  in  kind ;  in  the  laws 
of  Hoel  Dda  all  such  fines  are  reckoned  in  cattle,  and 
the  same  mode  of  computation  prevails  in  the  Brehon 
laws  of  Ireland,  and  the  'Assythments  for  Slauchter'  of 
the  Scots.  An  intermediate  stage  is  denoted  by  the 
laws  of  the  Continental  Saxons.  Their  weres  are  fixed 
in  solidi,  or  shillings.  But  the  solidus  was  an  imaginary 
denomination  ;  and  instead  of  counting  down  the  coin, 

'  The  above  extract  is  taken  from  be  written  without  giving  them  a  care- 
Sir   Francis    Palgrave,    vol.   ii,    page  ful  examination. 

cvii.     The  last  Latin  translation  of  the  Besides    the    folio    edition    of    the 

Anglo-Saxon  laws  was  by  Wilkins,  in  Anglo-Saxon  laws,   published  by  the 

1721.  The  Record  Commission,  among  Record  Commission,  there  is  an  edi- 

its  most  valuable  and  important  labors  tion  in  two  volumes,   8vo;  the  trans- 

in  the  field  of  early  English  jurispru-  lation  of  the  passage  above  is  substan- 

dence,  have  published,  under  the  direc-  tially  the  same  as  that  of   Palgrave, 

tion  of  Mr.  Thorpe,  the  first  English  with  the  exception  that,  in  the  former, 

translation  of  these  curious  codes.  The  "Bote"    is    used    for    its    equivalent 

history  of  no  part  of  the  law  should  "compensation." 


12 


GENERAL   VIEW   OF   THE    SUBJECT. 


§    lO. 


the  offending  party  might  drive  his  legal  tender  into  the 
farm  of  the  plaintiff.  An  ox  passing  sixteen  months 
old,  represented  the  greater  solidus ;  the  lesser  solidus 
was  a  yearling  ox,  or  a  ewe  and  her  lamb.  Amongst 
some  Saxon  tribes,  the  solidus  was  reckoned  in  corn ; 
thirty  bushels  of  oats,  forty  of  rye,  and  sixty  of  wheat, 
being  each  its  equivalent ;  and  it  is  most  probable  that 
the  necessity  of  adjusting  the  ancient  fines  to  the  stand- 
ard of  Roman  Britain,  was  the  cause  which  produced 
the  enactment  of  the  Kentish  laws."'  "The  coined 
money  in  England,"  says  Mr.  Sergeant  Heywood,  speak- 
ing of  the  Saxon  period,  "  was  so  trifling  in  quantity, 
that  most  of  the  transactions  of  commerce,  and  all  buy- 
ing and  selling,  were  carried  on  by  barter,  and  cattle 
obtained  the  name  of  Viva  pecunia,  from  being  received 
as  money  upon  most  occasions,  at  certain  regulated 
prices."' 


'  Palgrave's  History,  vol.  i,  p.  44. 

''■  The  Ranks  of  the  People  under  the 
Anglo-Saxon  Government,  by  Samuel 
Heywood,  Sergeant,  Introd.,  p.  lii.  In 
Wera  reddere  poterit  quis,  says  the  law 
of  the  Conqueror,  §  10,  equum  non  cas- 
tratum  pro  XX  solidis,  et  taurum  pro  X 
solidiSj  et  jumentum  pro  V  solidis.  And 
see  Lex  Saxonum,  tit.  xviii.,  De  Soli- 
dis. As  to  the  value  of  the  Solidus, 
Gibbon  says,  "Till  the  twelfth  century 
we  may  support  the.  clear  account  of 
twelve  denarii,  or  pence,  to  the  solidus, 
or  shilling,  and  twenty  solidi  to  the 
pound  weight  of  silver,  about  the 
pound  sterling.  Our  money  is  dimin- 
ished to  a  third,  and  the  French  to  a 
fifteenth  of  this  primitive  standard." — 
Hist.  Ch.  58,  note. 

The  use  of  cattle  as  a  measure  of 
value  is  of  very  great  antiquity, — thus 
Homer; — 

The  third  b'  Id  game  Achilles  next  demands, 
And  calls  the  wrestlers  to  the  level  sands  ; 
A  massy  tripod  for  the  victor  lies, 
Of  twice  six  oxen,  its  reputed  price  ; 
And  next,  the  loser's  spirits  to  restore, 
A  female  captive,  valued  but  at  four, 

Iliad,  book  23,  1815. 

It  seems  probable  that  money  be- 


came the  general  measure  of  value  in 
England  not  long  after  the  Norman 
Conquest. 

The  old  feudal  services  were  all  orig- 
inally rendered  in  kind;  the  reliefs  in 
horses  and  arms — military  service  in 
person.  But  in  the  reign  of  Henry  II, 
"the  humor  of  the  times  being,"  says 
Mr.  Sullivan,  "that  everything  should 
be  paid  in  money"  (Lectures  on  the 
Laws  of  England,  Lect.  31,  p.  290), 
the  reliefs  were  commuted  for  a  specific 
sum,  and  personal  service  was  ex- 
changed by  the  same  king  for  escuage 
and  scufage,"and  the  same  thing  took 
place  in  regard  to  rents  (pp.  288  and 
289).     See  also  Heywood  on  Ranks. 

The  civilized  Romans  recognized  a 
metallic  currency  as  the  measure  of 
value:  qui  non  facit  quod  promisit,  in 
pecuniam  numeratum  condemnatur,  si- 
cut  evenit  in  omnibus  faciendi  obliga- 
tionibus. — L.  13  in  f.  fl.:  de  re:  judic: 
and- says  Domat,  vol.  I,  p.  271;  Des 
Interits;  L'argent  tient  lieu  de  toutes  les 
choses  qu'on  peut  estimer. — Liv.  iii,  tit. 
v,  sect,  ii,  §  16. 

The  laws  of  the  Saxons,  and  those 
of  Hoel  Dda,  both  noticed  in  the  above 
extract  from  Sir  Francis  Palgrave,  may 


§11.     AMOUNT  OF  COMPENSATION  CAREFULLY  DEFINED.     1 3 


§  II.  Amount  of  compensation  carefully  defined. — The 

laws  of  the  Anglo-Saxon  monarchs,  which  we  have  from 
it 


not  be  without  sufficient  interest  in 
connection  with  our  present  subject  to 
permit  a  brief  note.  The  date  of  the 
Leges  Saxonum  tt  Frisionum  has  been 
the  subject  of  great  controversy  among 
the  antiquarians  (see  a  Historical 
Treatise  on  Trial  by  Jury,  Wager  of 
Law,  etc.,  by  Thorl  Gudm.  Repp, 
Edinburgh,  1832,  p.  23I;  some  ascrib- 
ing them  to  Charlemagne,  and  others 
to  Harold  Blue  Tooth  of  Denmark, 
whose  reign  closed  a.d.  984.  The  lat- 
ter opinion  would  seem  the  better;  in 
either  case,  these  laws  are  of  interest 
to  the  scholar  of  English  jurisprudence, 
as  they  at  all  events  belong  to  the 
same  race  from  which  our  ancestors 
sprang,  although  after  they  had  left 
the  parent  land.  Nothing  can  exceed 
the  simplicity  and  brevity  of  these 
codes: — 

In  Christi  nomine  incipit  Legis  Sax- 
onum, Liber  de  Vulneribus. 

1.  De  ictu  nobilis,  solid.  XXX,  vel 
si  negat,  tertia  manu  juret. 

2.  Livor  et  Tumor,  LX,  solid,  vel 
sexta  manu  juret. 

3.  Si  sanguinat,  cum  CXX,  solid,  vel 
cum  undecim  juret. 

4.  Si  OS  paruerit,  CLXXX,  solid,  vel 
cum  undecim  juret.' 

7.  Si  per  capillos  alium  comprehend- 
erit  CXX,  solid,  componat  vel  XII  a 
manu  juret. 

The  two  bodies  of  law,  the  Lex  Sax- 
onum and  the  Lex  Frisionum  may  be 
found  at  length  in  the  Codex  Legum 
Antiquarum  of  Lindenbrog,  a  curious 
collection  of  the  legislation  of  the 
Middle  Ages. 

Hoel,  or  Howell  Dda,  Howell  the 
Good,  was  a  King  of  South  Wales  in 
the  loth  century;  the  date  of  his  com- 
pilation, which  consists  of  three  codes, 
the  Venedotian,  Dimetian,  and  Gwen- 
tian,  is  between  914  and  942,  and  it 
appears  that  laws  of  a  similar  character 
are  traceable  as  far  back  as  the  6th 
century.  The  republication  of  these 
statutes  forms  one  of  the  great  labors 
of  the  Record  Commission.  These 
laws  exhibit  the  most  minute  particu- 
larity in  the  estimation  of  damages. 
They  speak  of  various  sorts  of  com- 
pensation for, — 

I.  Saraad,  or  disgrace. 


II.   Galanas,  or  murder. 

And  these  terms,  saraad  and  galanas, 
are  also  used  for  the  mulct  imposed 
for  the  offense  or  crime.  There  were 
also  two  other  fines:  the  Dirwy  (from 
Dir,  force),  a  fine  of  twelve  kine,  or 
three  pounds ;  and  Camlwrw,  a  fine  of 
three  Icine,  or  nine  score  pence. 

The  following  extracts  illustrate  this 
legislation.     Venedotian  Code,  p.  115. 

§  27.  In  three  ways  Sarajd  occurs  to 
every  person  in  the  world ;  by  striking, 
assaulting,  and  taking  by  violence  from 
him;  and  if  it  be  a  man,  if  his  wife  be 
violated,  it  is  saraad  to  him ;  if  it  be  a 
woman,  if  she  find  another  woman 
with  her  husband,  it  is  saraad  to  her; 
and  so  nobody  escapes  without  being 
subject  to  saraad. — 

§  27.  The  Galanas  of  a  steward,  a 
chief  of  a  kindred,  a  canghellor,  and  a 
chief  huntsman,  is  nine  score  and  nine 
kine,  once  augmented;  and  their  sa- 
raad is  nine  kine  and  nine  score  of 
silver,  once  augmented. — 

P.  108,  §  12.  A  dirwy  is  due  for 
fighting;  fighting  is  assault  and  bat- 
tery, and  blood  and  wounds,  the  three 
things  that  constitute  fighting;  and 
therefore  it  is  right  to  pay  dirwy  for 
them.  The  amount  of  the  dirwy  is 
twelve  kine,  or  three  pounds;  the 
amount  of  a  camlwrw  is  three  kine,  or 
nine  score  pence. — 

P-  125,  §  58.  For  a  dog  or  for  a  bird, 
or  for  anything  of  that  kind,  there  is 
neither  dirwy  tiox  forfeiture  of  life;  but 
camlwrw  to  the  loi:d,  and  amends  to 
the  owner  of  the  property. — 

p.  137.   Of  the  worth  of  fowls. 

1.  A  hen  is  one  penny  in  value. 

2.  A  cock  is  two  hens  in  value. — 
P.  140.  Of  skins  this  treats. 

1 .  The  skin  of  an  ox  is  eight  pence 
in  value. 

2.  The  skin  of  a  hart,  eight  pence. 
P.  141.  Of  the  worth  of  trees  this 

treats. 

I.  The  worth  of  an  oak,  six  score 

pence. 
5.  The  worth  of  a  knurled  oak,  on 
which  there    is    no    fruit,   four 
legal  pence. 
P.  142.  Here   lorwerth,  the   son  of 
Madog,  son  of  Raawd,  saw  it  to  be  ex- 
pedient to  write  the  worth  of  the  build- 


14  GENERAL    VIEW    OF   THE    SUBJECT.  §    II. 

the  period  of  Ethelbert  of  Kent  to  the  Norman  Con- 
quest, contain  all,  more  or  less,  the  application  of  the 
were;  but  in  none,  with  the  exception  of  those  of 
Alfred,  between  a.d.  871  and  901,  do  we  find  the  same 
minute  classification  of  wrongs  and  remedies  which  we 
have  just  had  occasion  to  notice. 

In  the  laws  of  Alfred,  the  rates  are  higher,  whether 
owing  to  a  better  appreciation  of  personal  rights,  or  to 
the  increase  and  consequent  depreciation  of  the  currency. 
In  the  laws  of  the  Conqueror,  the  weres  become  very 
few.  Perhaps  this  is  evidence  of  a  civilization  gradually 
increasing,  and  a  jurisprudence  slowly  improving;  for 
feeble  certainly,  and  unreliable,  must  be  the  tribunal 
charged  with  the  task  of  imposing  damages  in  civil 
suits,  if  the  legislator  considers  it  unsafe  to  be  trusted 
with  the  assessment  of  the  amount.  This  elaborate  ard 
minute  specification,  therefore,  though  on  its  face  it  ap- 
pears to  indicate  the  care  and  watchfulness  of  the  law- 
giver, on  a  closer  examination  furnishes  stronger  proof 
of  his  distrust  of  the  judiciary.  Arbitrary  rules,  which 
do  not  bend  to  the  justice  of  the  particular  matter,  espe- 
cially when  used  to  fix  values,  are  always  a  misfortune 
and  a  defect  in  jurisprudence :  they  should  never  be  tol- 

ings,  and  the  furniture,  co-tillage,  and  tain  compensation  for  damage,  unless 

corn  damage,  together  with  the  proof  he  be  exculpated. 

book.  Anomalous  Welsh  Laws. 

P.  145.  An  iron  pan  one  legal  penny.  p   y^g^  §  5    j^ree  punishments  for 

A  fiail,  a  farthmg.  ferocious  acts;  the  payment  of  galanas 

P.  149.    Wadded  boots,   four  legal  for  the  slain;  death  to  him  who  does 

pence. —  the  deed;  and  harrying  spoliation  of 

P.  151.  Every  other  thing  whatso-  the  property  of  the  murderer, 

ever,  on  which  there  is  no  legal  worth,  As  has  been  said,  these  extracts  are 

is  to  be  appraised. —  taken     from     the    Ancient    Laws    of 

§  XXIII.  Now  of  the  members  of  Wales,  published  in  one  of  the  folios 

the  human  body. —  of  ^^  Record  Commission;  the  valu- 

T>  ,,_    c\( ^™  ^o™o„a»i,i=*™.,to  ^We  labors  of  that  Commission,  and 

F.  157.  Of  corn  damage  this  treats. —  ^,    .  .^       ^  .■.       ,.      .    ^i.     t.. 

^  .     ,        .  ..  their  munificent  Uberalitv  to  the  hter- 

§  16.  If  a  horse  be  found  stretching  ^ry  institutions  of  this  country,  cannot 

his  neck  oyer  a  hedge,  eating  the  corn,  be  too  frequently  nor  honorably  no- 

it  is  not  right  to  take  him,  but  to  ob-  ticej. 


§§  12-14.  TRIAL    BY    ORDEAL, 


15 


crated,  unless  on  account  of  some  peculiar  and  extraor- 
dinary difficulty  in  arriving  at  thie  truth  of  the  individual 
case. 

§  12.  Anglo-Saxon  judiciary. — What  the  judiciary  was 
under  the  Anglo-Saxon  government,  it  is  now  apparently 
impossible  to  learn.  Palgrave  says/  "Some  kind  of  ad- 
judication probably  took  place  amongst  the  Anglo-Saxons 
before  the  were  could  be  required."  But  any  inquiry 
into  this  matter,  even  if  practicable,  would  lead  us  far 
beyond  our  proper  limits.  It  may  not,  however,  be  for- 
eign to  our  subject  to  notice  that  if  the  were  or  the  wite 
could  not  be  paid,  slavery  (it  seems)  was  the  consequence. 
"  The  criminal  whose  own  means  were  insufficient, 
and  whose  relatives  or  lord  would  not  assist  him  to  make 
up  the  legal  fine  he  had  incurred,  was  either  compelled 
to  surrender  himself  to  the  plaintiff  or  to  some  third 
party,  who  paid  the  sum  for  him  by  agreement  with  the 
injured  party.  Such  a  serf  was  called  criminal  slave. 
These  are  the  servi  redemptione  of  Henry  the  First."' 

§  13.  Later  modes  of  trial. — We  now  come  to  the  ex- 
amination of  the  tribunals  which,  under  our  present  sys- 
tem, are  charged  with  the  duty  of  assessing  the  amount 
of  damages.  Various  modes  of  trial  have  obtained  at 
different  periods  of  English  jurisprudence ;  trials  by 
ordeal,  by  battle,  by  wager  of  law,  and  by  jury. 

§  14.  Trial  by  ordeal. — The  trial  by  ordeal,  finally  pro- 
hibited in  the  early  part  of  the  thirteenth  century,'  was 
the  creature  of  a  superstitious  age.  It  was  the  offspring 
of  the  clergy,  and  perhaps  one  among  their  many  efforts 
to  counteract  the  violence  of  the  military  portion  of  the 

'  Vol.  i,  p.  205.  '  Ordeals  were  prohibited  by  the  iSth 

*  The  Saxons  in  England,  by  J.  M.     Canon  of  the  Fourth  Lateran  Council, 
Kemble,  1849,  vol.  i,  p.  197.  a.d.  1215.     Palgrave,  vol.  i,  p.  66. 


1 6  GENERAL   VIEW    OF   THE   SUBJECT.  §   1 5. 

community.     In  this  aspect,  it  may  not  have  been  with- 
out its  uses. 

§  15.  By  battle. — The  trial  by  battle  was  the  natural 
growth  of  the  period  at  which  we  find  it  existing. 
"  Man,"  says  the  learned  and  sagacious  writer  whom  we 
have  already  several  times  quoted,  "  never  begins  by  in- 
troducing any  law  which  is  entirely  unreasonable  ;  but  he 
very  frequently  allows  a  law  to  degenerate  into  folly,  by 
obstinately  retaining  it  after  it  has  outlived  its  use  and 
application."'  We  should  naturally  expect,  in  a  bar- 
barous and  disturbed  state  of  society,  where  every  man's 
house  was  a  castle,  and  the  whole  structure  of  society 
upon  a  martial  basis,  that  questions  of  right  would  orig- 
inally be  decided  by  an  appeal  to  force,  and  that  the  first 
efforts  of  the  legislator  and  the  jurist  would  only  be  to 
systematize  and  solemnize  this  mode  of  determining  a 
controversy  by  subjecting  it  to  fixed  rules,  and  decreeing 
the  result  to  determine  the  right  forever.'  This  mode  of 
trial  naturally  gave  way'  before  the  advancing  spirit  of 

'  Palgrave's  Rise  and  Progress,  vol.  "  What  my  tongue  speaks,  my  right  drawn 
i    p   2  20  ■  sword  "i^y  prove." 

''  Ainsi,  says  M.  Guizot,  s'est  intro-  I"  France,  trials  by  battle,  le  gage  de 

duit  dans  la  legislation  le  combat  judi-  iataille,  were  abolished  as  far  as  regard- 

ciare,   comme  une    regularization  du  ^^  'h^  Royal  Domains,  by  St.  Louis 

droit    du   guerre,   une    arfene    limitfee  (Louis  IX.),  by  his  ordinance  of  the 

ouverte  a.  la  vengeance. — Q-aaoX,  Hist,  year  1260.     He  prohibited /«  inte/fa 

de  la  Civilization  en  France,  torn,  i,  p.  *«  justice  meitant  en  leur  place  preuves 

294  (deuxifeme  ed.).  Z'^''  temoins,  sans  $ter  les  autres  bonnes 

3  Although  singular  as  it  appears,  the  '.'  ^"^J"  P'"'"'""  tis^s  en  cour  laique 
appeal  of  death  was  not  abolished  in  J"'^"  ^  "  *'"lf'.-  ^°  ^^  '°  appeals  or 
England  till  1819.  See  Ashford  v.  f''«"f'"'»^f  dejugements,  as  they  were 
Thornton,  i  B.  &  Aid.  405,  which  re-  "rfr  ^\^''^-  I'"^  effected  by  a 
suited  in  an  act  of  Parliament.(")  The  challenge  to  the  judge  to  mortal  corn- 
reign  of  Richard  II.,  1398,  saw  one  °f '  =  '?7  7^r^  <i°"e  away  by  the 
famous  trial  by  battle  (being  an  appeal  **'°  Article  of  the  same  ordmance  :  i=t 
of  treason)  between  two  great  lords,  "f""^"  }""*  fausser  jugement,  en  pays 
Hereford  and  Norfolk;  and  Shakes-  '^,''"  /'^"^^^."'^fd'  J^gement  affiert,  il 
peare's  genius  has  fixed  it  in  our  litera-  "•''  ""I"  pt^"' de  iataille  ;  mats  les  clam- 
lure  •  """'   '"  repons,  et  autres  erremens  du 


(•)  Act  59  Geo.  III.  ch.  46. 


§§  i6,  17. 


BY   JURY. 


17 


order,  and  little  trace  of  it  appears  after  the  fourteenth 
century.' 

§  16.  By  wager  of  law. — The  wager  of  law,  or  trial  by 
compurgators,  of  which  we  see  constant  traces  in  the 
Anglo-Saxon  laws,  and  which  existed  till  a  very  recent 
period,'  may  claim  a  more  reasonable  origin.  A  party 
accused  of  an  offence  exonerated  himself  from  the  charge 
by  the  oaths  of  a  certain  number  of  witnesses ;  and  as 
Palgrave  well  observes :  "In  criminal  cases  the  whole 
theory  of  this  trial  resolves  itself  into  the  ordinary  prac- 
tice of  our  modern  courts  of  justice.  Evidence  has  been 
given  by  which  a  presumption  is  raised  against  the  ac- 
cused ;  but  not  being  conclusive,  it  is  rebutted  by  the 
proofs  of  geneiral  good  character." "  I 

§  17.  By  jury. — Of  the  four  modes  of  trial  of  which 


plaid  seront  rapportis  en  notre  cour. 
These  provisions  were  intended  to  ap- 
ply only  to  the  Royal  Domains,  but  the 
influence  of  the  lawyers  (les  Legistes) 
gradually  established  the  prohibition 
throughout  the  kingdom.  See  Sismon- 
di's'  Hist,  des  Francs,  torn,  viii,  ch.  xi ; 
Guizot's  Hist,  de  la  Civiliz.  en  France, 
vol.  iv,  p.  .162  (deuxifeme  ed.) ;  Ste- 
phens' Lectures  on  the  Hist,  of  France, 
lecture  viii,  for  an  interesting  and  pic- 
turesque description  of  the  manner  in 
-which  the  lawyers  ousted  the  barons 
out  of  their  own  courts. 

'  See  Sismondi's  Precis  de  I'Histoire 
de  France,  vol.  i,  p.  366,  and  Guizot's 
Hist,  de  la  Civilization,  vol.  iv,  p.  162. 
M.  Guizot  calls  private  wars  and  judi- 
cial duels  (p.  159);  "les  deux  bases 
essentiels  de  la  f6odalit6." 

"^  3  Black.  Com.  ch.  22,  p.  345.  In 
New  York,  by  2  Revised  Statutes,  p. 
410,  part  iii,  ch.  vii,  tit.  iv,  art.  i, 
§4,  "Trials  by  battle,  and  by  the 
grand  assize,  and  all  otiier  modes  of 
trial  except  by  a  jury  or  by  referees, 
are  forever  abolished."  Wager  of  law 
existed  in  England  till  recent  times. 
It  was  abolished  in  all  cases  by  3  and  4 

Vol.  I. -2 


W.  4,  ch.  42,  sec.  13  ;  Chitty  on  Plead- 
ings, vol.  i,  *  128. 

'  Vol.  i,  p.  233.  This  analogy  ap- 
plies, however,  only  to  those  cases 
where  the  evidence  is  presumptive, 
and  not  positive  ;  as  in  the  latter  class 
testimony  to  character  is  admitted  only 
in  mitigation  of  the  sentence.  La  veri- 
table origine  des  Conjuratores,  says 
Guizot,  c'est  que  tout  autre  moyen  de 
constaler  les  faits  6tait  4  peu  pr6s  im- 
practicable. Pensez  i  ce  qu'exige  une 
telle  recherche,  ^  ce  qu'il  faut  de  dfevel- 
loppement  intellectuel  et  de  puissance 
publique  pour  la  rapprochement  et  la 
confrontation  des  divers  genres  de 
preuves,  pour  recueillir  et  d^battre  des 
t6raoignages,  pour  amener  seulements 
les  tfemoins  devant  les  juges,  et  en  ob- 
tenir  la  verity  en  presence  des  accusa- 
teurs  et  des  accuses.  Rien  de  tout 
cela  n'fetait  possible  dans  la  society  que 
r6gissait  la  ioi  salique  ;  et  ce  n'est  point 
par  choix  ni  par  aucune  combinaison 
morale,  c'est  parcequ'on  ne  savait  et  ne 
pouvait  mieux  faire,  qu'on  avait  re- 
cours  alors  au  jugement  de  Dieu  et 
au  serment  des  parens." — Guizot,  His- 
toire  de  la  Civilization  en  France,  vol.  i, 
pp.  284,  285. 


1 8  GENERAL   VIEW    OF   THE   SUBJECT.  §   I/. 

we  have  spoken,  then,  the  one  that  has  survived  them 
all,  after  undergoing,  however,  very  material  modifica- 
tions in  its  construction,  is  the  trial  by  jury.  But  it  is 
not  within  the  scope  of  our  present  subject  to  trace  the 
gradual  formation  of  this  institution.  Suffice  it  to  say, 
that  trial  by  jury,  originally  a  trial  by  witnesses,  the  jury 
being  themselves  the  witnesses,'  gradually  supplanted  the' 
various  modes  of  trial  by  battle,  ordeal,  and  wager  of  law, 
and  from  the  time  of  the  reign  of  Henry  II.,  seems  to 
have  begun  to  acquire  stability,  if  not  its  present  form." 
At  all  events,  at  the  period  of  the  earliest  systematic  rec- 
ords of  judicial  proceedings  in  England,  the  jury  had  be- 
come the  tribunal  which  disposed  of  the  question  of  fact, 
and  the  amount  of  damages  became  a  principal  part  of 
their  jurisdiction.  All  hope  of  discovering  the  precise 
date  is  now,  perhaps,  lost,  as  is  the  case  in  regard  to  the 
epoch  of  still  greater  interest,  that  of  the  origin  of  par- 
liamentary representation.'  It  is  certain  that  damages, 
by  their  present  name,  were  known  at  a  very  early  period 
of  the  English  law.  The  statute  of  Gloucester,  passed  6 
Edward  I.,  a.d.  1278/  after  giving  damages  in  certain 
real  actions  in  which  they  were  not  previously  recover- 
able, goes  on  to  give  costs  in  the  same  cases,  and  closes 

'  "  The  ancient  jurymen  were  not  im-  tion  of  the  jury  from  the  wager  of  law 

panelled  to  examine  into  the  credibility  and  the  trial  by  battle.     To  Sir  Francis 

of  the  evidence  ;  the  question  was  not  Palgrave's  work  great  obligations  must 

discussed   and  argued     before    them  ;  be  acknowledged.     Indeed,  to  the  legal 

they,  the  jurymen,  were  the  Avitnesses  student  who   desires   an   acquaintance 

themselves,  and  the  verdict  was  sub-  with  the  origin  of  our  jurisprudence,  it 

stantially  the  examination  of  these  wit-  is  indispensable.     Those,  also,  who  de- 

nesses,  who  of  their  own  knowledge,  sire  a  philosophical  view  of  the  barbaric 

and  without  the  aid  of  other  testimony,  codes,  cannot  be  better  referred  than  to 

afforded  their  evidence  respecting  the  M.  Guizot's  Histoire  de  la  Civilization 

facts  in  question  to  the  best  of  their  be-  en  France,  the  gth  and  loth  lessons  of 

lief.     In  its  primitive  form,  a  trial  by  the  first  volume,  and  Mr.  Hallam's  His- 

jury  was  therefore  only  a  trial  by  wit-  tory  of  Europe  during  the  Middle  Ages, 

nesses."— Palgrave,  vol.  i,  p.  244.  vol.  i,  chap,  ii,  on  the  Feudal  System. 

'  Palgrave,  vol.  i,  p.  66  and  p.  243.  See  ^  Turner's  Anglo-Saxons,  book  viii. 

Repp  on  Ancient  Trial  by  Jury,  already  chap,   iv,    vol.   iii,    p.  i8s,   and    Ap- 

cited  (§    10,   in  notes),    an   ingenious  pendix  III,  ch.  ix,  vol.  ii,  p.  236. 

treatise  to  illustrate  the  gradual  forma-  *  6  Edw.  i,  c.  i. 


§  1 8.  MODERN    TRIBUNALS.  1 9 

by  enacting  that  the  act  shall  apply  to  all  cases  where  the 
party  is  to  recover  damages.  "  Et  tout  ceo  soit  tenu  en 
tout  cas  ou  homme  recover  damages." ' 

§  i8.  Modern  tribunals. — The  jury  in  its  present  form 
dates,  as  has  been  already  said,  from  about  the  period  of 
the  reign  of  Henry  II.  (1150).'  Previous  to  that  time, 
the  great  mass  of  business  was  transacted  in  the  county 
courts,  where  the  freeholders  were  judges  of  both  law 
and  fact.  The  Aula  or  Curia  Regis,  of  which  the 
King's  Bench  is  a  remnant,'  disposed  of  the  causes  of 
the  great  Lords  only.  The  exchequer  already  existed, 
but  was  a  part  of  the  Aula  Regis.*  It  would  seem  that 
this  freeholders'  court  became  very  obnoxious,  as  igno- 
rant of  law,  rendering  it  multiform,  unequal,  and  unjust ; 
and  these  abuses  were  remedied  by  the  appointment  of 
justices  in  eyre,  who  settled  the  questions  of  law,  leaving 
to  the  jury  the  questions  of  fact."  The  precise  origin  of 
this  curious  division  of  power,  it  is,  as  has  been  said,  now 
impossible  to  trace  with  accuracy.  A  similar  or  analogous 
distinction  existed  in  the  republican  age  of  the  Roman 
Law  under  the  procedure  by  formula;  but  that  feature 
of  their  jurisprudence  disappeared  when  the  formula, 
together  with  the  office  of  the  Judex,  or  Referee,  was 
abolished,  and  the  magistrates,  under  the  despotic  inno- 
vations of  the  Empire,  disposed  of  the  entire  litigation 
extra  ordinem.  To  this  we  shall  have  occasion  hereafter 
to  advert ;  suffice  it  for  the  present  to  say  that  since  the 
period  to  which  we  have  referred,  the  maxim  has  gener- 

'  See  Harrington's  Observations  on  origin,    to   his   jurisprudence."  —  Pal- 

the  Statutes,   p.  log.      "  After  verdict  grave,  ch.  viii,  vol.  i,  p.  243. 

given  of  the  principal  cause,  the  jury  ^BI.  Com.  bic.  3,  ch.  iv,  §  6,  p.  41. 

are  asked  touching  costs  and  damages.  *  Hale's   History  C.   Law,   ch.   vii ; 

—l^coh's  Law  Diet.  ''Damage."  Sullivan's  Lect.  32,  p.  300;  Bl.  Com. 

""Although  Henry  IL  was  not  in  bit.  3,  ch.  iv,  §6. 

strictness    the  inventor  of  that  legal  '  Sullivan's    Lectures,    Lect.    32,   p. 

constitution   which  succeeded    to    the  296 ;  Hale's  Hist,  of  Com.   Law,   ch. 

Anglo-Saxon  policy,  yet  '  Trial  by  the  vii,  vol.  i,  p.  246. 
Country'  owes  its  stability,  if  not  its 


20  GENERAL   VIEW   OF   THE    SUBJECT.  §  19- 

ally  held  good  in  the  English  law,  ad  questiones  legis 
respondent  judices  ;  ad  questiones  facti  juratores. 

§  19.  Quantum  of  damages  a  question  for  the  jury. — 
The  quantum  of  damages  being  in  most  cases  intimately 
blended  with  the  questions  of  fact,  must  have  been  from 
the  outset  generally  left  with  the  jury.  It  is  very  certain 
that  the  limits  of  their  power  over  the  amount  of  re- 
muneration were  not  at  first  as  clearly  defined  as  they 
have  since  become.  In  one  case,  as  late  as. the  reign  of 
James  I.,^  it  is  said  that  "the  jury  are  chancellors,"  and 
that  they  can  give  such  damages  as  "  the  case  requires  in 
equity,"  as  if  they  had  the  absolute  control  of  the  subject. 
So  an  early  text-writer  puts  the  case  of  sheep  passing  the 
Severn,  and,  one  of  them  being  forced  into  the  water,  all 
the  rest  follow  and  are  injured,  and  asks  whether  he  shall 
have  damages  for  all  or  for  one ;  but  the  only  solution 
he  can  find  for  the  difficulty  is,  that  the  "  jury  must  well 
consider  of  it." '  Yet,  on  the  other  hand,  the  old  books 
are  full  of  cases,  where,  on  judgment  by  default  and  even 
on  demurrer,  the  courts  themselves  fix  the  amount  of 
damages ;'  and  the  remains  of  this  we  see  in  the  power 
still  exercised  by  the  English  courts  in  cases  of  may- 
hem. Indeed,  for  a  long  time  after  the  distinction 
between  law  and  fact  was  clearly  established,  and  the 
separate  province  of  judge  and  jury  defined  with  consid- 
erable accuracy,  there  appears  to  have  been  an  almost 
total  want  of  any  clear  and  definite  understanding  of 
those  rules  of  damages  which  we  are  about  to  consider.' 

Before  commencing  the  more  practical    part  of  this 

'  Sir  Baptist  Hixt's  case,  2  Rol.  Abr.  intervention   of  a  jury.     Whitaker  v. 

703,  pi.  15.  Harrold,  12  Jur.  395. 

«  Shepherd's  Epitome,  p.  70.  ■•  For  a  very  full  and  able  description 

'  Rolles'  Abr.  tit.     Damages.     The  of  the  powers  and  duties  of  court  and 

court  has  still  power  to  assess  damages  jury  under  our  system,  see  Common- 

on  demurrer,  or  default,  without  the  wealth  u.    Porter,    10   Met.  263,   and 

many  cases  there  cited. 


§§  20,   2  1.  HINDOO    LAW.  21 

treatise,  however,  it  will  be  well  to  bear  distinctly  in 
mind  the  general  principle  which  the  E^nglish  law  has  in 
view  in  this  matter,  and  how  in  this  respect  it  differs 
from  other  systems  of  jurisprudence.  ** 

Damages  under  other  Systems  of  Law. 

§  20.  Jewish  law. — *  We  have  seen  in  the  early  laws 
of  the  Anglo-Saxons,  that  with  the  most  minute  care, 
specific  damages  were  arbitrarily  assessed  in  each  class  of 
cases,  without  reference  to  the  actual  injury  sustained  in 
the  particular  case.  We  find  in  codes  yet  more  ancient, 
rules  equally  arbitrary  in  this  respect.  In  the  Jewish  law 
(Exodus,  ch.  xxi,  ver.  32)  various  provisions  of  a  similar 
nature  are  incorporated ;  thus,  "  If  a  man's  ox  push 
(gore)  a  man  servant  or  maid  servant,  he  shall  give  unto 
their  master  thirty  shekels  of  silver,  and  the  ox  shall  be 
stoned."  So,  again,  ch.  xxii,  ver.  9  :  "  For  all  manner 
of  trespass,  whether  it  be  for  ox,  or  ass,  for  sheep,  for 
raiment,  or  for  any  manner  of  lost  thing  which  another 
challengeth  to  be  his,  the  cause  of  both  parties  shall 
come  before  the  judges,  and  whom  the  judges  shall  con- 
demn, he  shall /^jK  double  unto  his  neighbor."  So,  again, 
by  a  rough  equity,  ch.  xxi,  ver.  35  :  "  If  one  man's  ox 
hurt  another's  that  he  die,  then  they  shall  sell  the  live 
ox,  and  divide  the  money  of  it,  and  the  dead  ox  also 
shall  they  divide." 

§  21.  Hindoo  law. — The  same  principle  is  to  be  found 
in  the  laws  of  the  Hindoos:  "  Where  a  claim  is  proved, 
the  person  who  gains  the  suit  is  put  in  possession,  and 
the  judge  exacts  a  fine  of  equal  value  from  the  defend- 
ant. And  if  the  plaintiff  loses  his  cause,  he  in  the  like 
manner  pays  double  the  sum  sued  for."  And  in  regard 
to  torts  the  same  principle  was  applied.' 

'  Ayeen  Akberry,  by  Gladwin,  vol.  ii,  pp.  498,  504. 


22  GENERAL   VIEW    OF    THE    SUBJECT.  §  22. 

§  22.  Roman  law. — When  we  come  to  the  Roman 
law,  we  find  the  subject  elaborately,  but  not  very  clearly 
nor  very  harmoniously  treated.  To  understand  its  pro- 
visions, it  is  necessary  to  bear  in  mind  the  fact  to  which 
we  have  already  adverted,  that  until  the  despotic  central- 
ization of  the  Empire  had  completely  subverted  the  early 
institutions  of  the  Republic,  the  same  line  was  drawn  in 
their  administration  of  justice,  as  with  us,  between  ques- 
tions of  law  and  questions  of  fact.  The  magistrate  who 
heard  the  statements  of  the  parties  did  not  decide  the  cause. 
He  turned  the  litigants  over  to  a  judex,  or  single  juror, 
or  referee,  as  he  may  be  regarded,  giving  him  at  the  same 
time  z.  formula  or  charge  by  which  his  decision  was  to 
be  controlled.  This  control  was,  however,  not  an  abso- 
lute one,  and  in  some  aspects  of  the  cause,  and  particu- 
larly as  to  the  extent  of  the  defendant's  liability,  and  the 
litis  cestimatio,  or  measure  of  damages,  the  judex  seems 
to  have  been  clothed  with  a  large  discretion.  This  dis- 
cretion was,  however,  restrained  and  limited  to  a  certain 
extent  by  several  special  statutes.' 

The  general  definition  of  damages,  id  quod  interest  or 
utilitas  of  the  civil  law,  in  the  Code  of  Justinian,  is  the 
actual  loss  sustained  and  the  profit  which  might  have 
been  made — in  quantum  mea  interfuit,  id  est  quantum 
Tnihi  abest,  quantumque  lucrari potui.''  A  more  distinct 
subdivision  of  the  subject  is  into  damnum,  emergens  or 
loss  arising,  and  lucrum  cessans,  or  profit  prevented.' 
But  how  far  in  each  case  the  party  is  liable,  when  for 
damnum  emergens  only,  when  for  lucrum  cessans,  and'to 
what  extent,  the  texts  of  the  Roman  law  leave  us  greatly 
in  doubt.     They  inquire  in  each  case  whether  the  party 

'  See  as  to  the  three  stages  of   the     Das  RSmische  Privat  Recht  von  Wil- 
Roman  procedure,— the  Legis  actiones;    helm  Reim,  book  5. 
the    Formula    introduced    about     650        ^  Rat.   Rem.  Hab.   Dig.  46,  tit.  viii, 
A.u.c;  and  the  forms  of  the  Empire, —    §  13. 

^  Dig.  de  Damno  Inf.  lib.  26  (39,  2). 


§§  23,  24.      ARBITRARY  RULES  UNDER  ROMAN  LAW.  23 

is  to  be  considered  guilty  of  dolus,  fraud  or  evil  design, 
or  of  culpa  only  ;  if  of  culpa,  whether  culpa  lata,  or  cul- 
pa levis  merely  ;  and  the  nice  shades  of  distinction  which 
they  attempt  to  define,  have  at  once  excited  and  baffled 
the  ingenuity  of  modern  commentators.  In  all  these 
questions  \}i\&  judex  appears  to  have  exercised  a  very  con- 
siderable discretion.^ 

§  23.  How  awarded  under  Roman  law. — In  the  award 
of  compensation,  or  damages,  as  we  term  it,  the 
litis  csstimatio,  the  judex  seems  also  to  have  been 
little  bound  by  any  settled  rules.  In  cases  of  fraud 
or  gross  negligence,  which  is  as  near  as  we  can  render 
dolus  and  culpa  lata,  the  plaintiff  or  actor  was  permitted 
himself  to  swear  to  the  amount  of  injury  sustained  ;  and 
there  seems  originally  to  have  been  no  check  on  this  pre- 
rogative, in  infinitum  jurari potuit ;  but  this  license  was 
restrained  by  positive  provisions,  which  gave  the  power 
of  assessment  to  \\\&  judex.''  To  check  still  more  effect- 
ually the  abuses  which  would  necessarily  flow  from  such  a 
state  of  things,  various  statutory  provisions  were  intro- 
duced, and  an  effort  was  made  to  obviate  the  difficulty  by 
fixed  valuations  not  to  be  departed  from.' 

§  24.  Arbitrary  rules  of  reparation  under  Roman  law. — 
An    arbitrary   rule    of    a   very   singular   character  was 

'  Ueber  die  Frage  wie  weit  in  einem  Holweg,  Bonn:  1838.     But  the  writers 

jeden    Falle    das     Interesse    praestirt  of  this  class,  though  profound  scholars 

werde,  ist  in  dem  Romischen  Rechte  and    acute    reasoners,   appear  to  lose 

wenig    vorhanden,    woraus   sich    bes-  themselves    in   a   maze    of  contradic- 

timmte    Grundsatze    ableiten    liessen.  tory  and   obscure  citations  from    the 

Doch  geht  die  gewohnliche  Meinung  vast  storehouse  of  the  Pandects,  and  in 

daljin,  dass  in  Fallen,  wo  Dolus  oder  a  perhaps   still  more  hopeless   meta- 

Culpa  lata  oder  Contumacia  insignis  die  physical   labyrinth  of  abstract  discus- 

Ursache    des   Schadens   sei,   so    wohl  sions  on  the  different  shades  of  fraud 

damnum  als  lucrum,  hingegen  wo  nur  and  fault.     Nothing  do  they  less  re- 

eine  gewShnliche   culpa  zum   Grunde  semble   than    the  clear  and    practical 

liege,  bloss  das  damnum  emergens  ver-  manner  of  our  writers 

giitet  werde. — Haenel,  vom  Schdndenet-  ^D.  de  in  Lit.  Jur.  1,  4,  §  2  (12,  3)  ; 

satze,  Leipzig,  1823,  §  8r.     The  books  1,  5,  §  i  cod.     Haenel,  §  95,  p.  no. 

of  the  German  scholars  are  numerous;  ^  Rat.  Rem.   Hab.  Dig.  lib.  46,  tit. 

see  "Die  Culpades  RSmischen  Rechts,"  viii,  §  13. 
von  J.  C.  Basse,  edited  by  Bethmann 


24  GENERAL   VIEW    OF   THE    SUBJECT.  §  24. 

established  by  the  Lex  Aquilia^  which  provided  by  its 
first  chapter,  that  in  case  of  the  killing  of  any  slave  or 
cattle,  unless  by  mere  chance,  the  trespasser  should  pay 
the  master  as  much  as  the  property  had  been  worth  at 
any  time  within  the  year.  Damni  injurice  actio  consti- 
tuitur  per  legem  Aquiliam  ;  cujus  prima  capite  cautum. 
est,  ut  si  quis  alienum,  hominem,  alienamve  quadrupedem, 
qucs  pecudum  numero  sit,  injurid  occiderit,  quanti  ea  res 
in  eo  anno  plurimi  fuerit,  tantum  domino  dare  damne- 
tur.'  So  that  if  a  slave  was  killed  who  at  the  time  of 
his  death  was  a  cripple,  but  within  the  year  had  been 
sound  and  valuable,  his  full  value  as  sound  was  to  be 
paid.  By  the  third  chapter  of  this  law,  other  kinds  of 
intentional  or  negligent  injury  to  property  were  pun- 
ished ;  but  in  these  cases  the  estimate  of  damages  was 
limited  to  the  highest  value  of  the  thing  injured  within 
thirty  days  previous.  Non  quanti  in  eo  anno,  sed  quanti 
in  diebus  triginta  proximis  res  fuerit,  obligatur  is,  qui 
damnum  dederit.'  The  remedy  given  by  the  Lex  Aquilia 
may  be  considered  as  very  analogous  to  our  actions  of 
trespass  and  case  ;'  but  it  was  limited  to  wrongs  actively 
perpetrated,  and  mere  acts  of  nonfeasance  did  not  come 
within  its  scope."  In  consequence,  other  enactments 
were  made,  and  the  same  principle  of  arbitrary  and  fixed 
valuation  was  applied  to  matters  of  contract  for  sums 
certain,'  in  which  cases  it  was  provided  that  damages 

'  Inst.  lib.  iv,  tit.  iii,  De  Lege  Aquilil,  Civil  and  Admiralty  Law,  bk.  iii,  ch.  i, 

Dig.  lib.  ix,  tit.  ii,  Ad  Legem  Aquiliam.  vol.  ii,  p.  401  ;  Cooper's  Justinian,  in 

This  law  is  said  to  have  been  passed  as  notes  ;   Hugo,  §  238.     The  provisions 

early  as  467  A.u.c.  of  the  law  are  very  curious,  and  worthy 

^  See,  on  this  subject,  in  ■  the  works  of  a  more  careful  examination  than  the 

of  Molinaeus  (Dumoulin,  ed.  1861,  vol.  scope  of  this  work  permits, 

iii,  p.  422),  his  "  Tractatus  de  eo  quod  '  ZuvSderst  waren  alle  Beschadigun- 

interest."     It  is  frequently  referred  to  gen  ausgeschlossen  die  in  einem  blossen 

by  Pothier  as  one  of  the  most  valuable  Nichtthun  bestehen. — Hasse,  Culpa  des 

expositions  of    the  civil    law  on  the  Romischen  Rechts,  §  6,  p.  21. 

measure  of  damages.  *  Code,  lib.  vii,  tit.  46.    De  sent,  quae 

'  Inst.  lib.  iv,  tit.  iii,  §  14.  pro  eo  quod  int.  prof. 

*  Inst.  lib.  iv,  tit.  iii,  §  9 ;  Brown's 


§§  25,  26.      dommages-inter£ts  indefinite.  25 

should  not  be  given  beyond  the  double  of  the  amount  in 
question  :  hoc  quod  interest  dupli  quantitatem  minime 
excedere.^ 

§  25.  Civil  law. — The  civil  law,  as  introduced  into 
modern  Europe,  seems  to  have  retained  the  early  features 
of  its  original,  in  the  respect  of  which  we  are  now  speak- 
ing, and,  instead  of  laying  down  any  fixed  or  arbitrary 
rule,  to  have  left  the  matter  very  much  to  the  discretion- 
ary consideration  of  the  tribunal  which  has  cognizance  of 
the  cause.  So,  under  this  system  as  established  in  France, 
and  previous  to  the  adoption  of  the  Code  Napoleon, 
damages  were  divided  into  interest  and  damages  {intdrits 
and  dommages-intdrits).  Intir6t  answers  precisely  to 
our  interest,  and  is  the  measure  of  damages  inflicted  for 
the  breach  of  a  mere  pecuniary  obligation,  as  in  the 
common  cases  of  bills  and  notes.  Dommages-intdrits 
correspond  with  our  term  damages  in  its  application  to 
all  other  forms  of  action  ;  and  in  this  respect  it  is  that 
the  system  appears  loose  and  uncertain.' 

§26.  Dommages-interets  indefinite. — After  laying  down 
the  rule  in  regard  to  interest,  which,  as  with  us,  is  lim- 
ited to  a  fixed  rate,  Domat  says,'  "  The  other  kinds  of 
damages  are  undefined,  and  are  increased  or  diminished, 
at  the  discretion  of  the  judge,  according  to  the  facts  and 

'  The  original  of  this  rule  is  probably  vol.  i,  p.  259.  Les  autres  sortes  de  dom- 

to  be  found  in  the  Twelve  Tables.     Si  mages  sont  indefinis,  et  ils  s'fetendent 

quid  endo  deposUo  dolo  malo  factum  escit,  ou  se  bornent  diffSremment  par  la  pru- 

duplione  luito.      Si  depositarius  in   re  dence  du  juge,  k  plus  ou  k  moins  selon 

deposita  dolo  quid  fecerit  in  duplum  con-  la  quality  du  fait  et  des  circonstances. 

demnetur.     See  Pothier's  Pandects,  by  Ainsi,   un   locataire  qui    manque  aux 

Br6ard   Neuville,  vol.  i,  pp.  332,  364,  reparations  qu'il  doit  par  son  bail,  un 

366.  entrepreneur  qui  manque  de  fair  I'ou- 

^  In  addition  to  the  two  heads  of  In-  vrage  qu'il  a  entrepris,  ou  qui  le  fait  mal, 

terest  and   Damage,  Domat  makes  a  doivent  indefiniment  les  dommages  et 

third,    of    "Restitution    des    Fruits,"  les  intferSts  qui  peuvent  suivre  du  d^faut 

whicli  we    shall    consider    under   the  d'avoir  execute  leur  engagement ;  et  on 

head  of  Mesne  Profits,  it  being  fairly  les  rfegle  di£f6remment,  selon  la  diver- 

a  branch  of  the  great  subject  of  Dam-  sit6  des  pertes  qui  arrivent,  la  quality 

ages.  des  faits  qui  les  causent,  et  leS  autres 

^  Loix  Civiles,  part  i,  liv.  3,   tit.  v,  circonstances. 


26  GENERAL   VIEW    OF   THE   SUBJECT.  §  2/. 

circumstances  of  the  particular  case  ;  thus,  in  the  case  of 
a  tenant  who  omits  to  make  the  repairs  to  which  he  is 
bound  by  his  lease,  or  of  a  contractor  who  does  not  per- 
form his  contract,  or  performs  it  ill, — in  either  case  they 
owe  an  indefinite  amount  of  damages  resulting  from  the 
default,  and  these  damages  are  differently  regulated  ac- 
cording to  the  diversity  of  the  losses  which  happen,  the 
nature  of  the  facts,  and  the  attendant  circumstances." 
And  he  illustrates  these  rules  by  one  or  two  cases  as  to 
profits  claimed  as  loss,  where  he  says,  "  It  must  be  left 
to  the  discretion  of  the  judge  to  arrive  at  some  measure 
of  compensation  according  to  the  circumstances  and  the 
particular  usages,  if  there  are  any."'  And  again,' "  It 
results  from  all  the  preceding  rules,  that  as  questions  of 
damages  depend  on  the  attendant  facts  and  circum- 
stances, they  must  be  decided  by  a  sound  discretion,  ex- 
ercised as  well  with  regard  to  the  circumstances  of  the 
case  as  to  general  principles." 

§  27.  Limited  only  by  the  discretion  of  the  judge. — And 
so  says  Pothier  :'  "It  is  necessary  to  exercise  a  certaip 

'  p.  262  :  II  doit  d6pendre  de  la  pru-  suivre  ni  la  haute  ni  la  moindre  estima- 

dence  du  juge  d'arbitrer  et  de  modferer  tion."     So,  again,  in  the  Journal  des 

quelque  dfedommagement,  selon  les  cir-  Audiences,  t.  6,  p.  252,  on  the  question 

Constances  et  les  usages  particuliers,  s'il  whether  a  promise  given  by  a  female  to 

y  en  avoit.  marry  under  a  didit,  or  forfeit  of  a  fixed 

''  Book  iii,  tit.  v,  sec.  2,  §  13,  vol.  i,  sum,  was  to  be  regarded  as  liquidated 
p.  270.  II  rfesulte  de  toutes  les  regies  damages:  "La  proposition  stipulatio 
prfecfedentes,  que  comme  les  questions  pesnae  in  contractu  sponsalium  apposita 
des  dommages  et  int^rSts  naissent  tou-  improbatur,  est  fecrite  dans  tous  nos 
jours  des  faits  que  les  circonstances  di-  livres  qui  onttraitfedelamatifere — Dans 
versifient,  c'est  par  la  prudence  du  juge  la  jurisprudence  on  ne  s'arrete  point  S. 
qu'elles  se  dfecident,  en  joignant  aux  ces  stipulations  de  peine — Les  Domr 
lumiferes  que  les  principes  doivent  don-  mages-int^rgts  ne  sontad  jugez  que  ad 
ner,  le  discernement  des  circonstances  arbitrium  boni  viri — suivant  que  le  meri- 
et  des  6gards  qu'on  doit  y  avoir.  In  an  tent  les  cas  de  mauvaise  foi,  de  la  con- 
old  French  work,  1637,  "  Recueil  des  dition  des  personnes,  de  la  dfepense, 
Arrests  Notables,"  is  found  a  curious  perte,  ou  deshonneur. 
illustration  of  the  looseness  of  the  old  'Traite  des  Obi.  part  i,  ch.  ii,  art.  3, 
French  law  in  this  respect.  It  says,  En  §  160.  11  faut  meme,  selon  les  differens 
estimation  des  dommages  et  intfergts  cas,  apporter  une  certaine  moderation 
quand  les  experts  sont  discordans,  le  k  la  taxation  et  estimation  des  dom- 
juge  d'office  doit  prendre  un  tiers,  et  mages  dont  le  d^biteur  est  tenu. 
s'ils  ne  s'accordent,  le  "juge  ne  doit 


§  28.  METHODS    OF   AVOIDING    INJUSTICE.  27 

degree  of  moderation  in  estimating  the  amount  of  dam- 
ages, according  to  the  particular  case."  And  again,' 
"  Damages  are  to  be  moderated  where  they  would  other- 
wise be  excessive,  by  leaving  the  computation  to  the 
arbitrament  of  the  judge."  So,  again,'  "  Where  the 
damages  are  considerable  in  amount,  they  should  not  be 
rigorously  assessed,  but  with  a  certain  degree  of  modera- 
tion." And  again,  even  in  cases  of  fraud : "  "It  must  be 
left  to  the  discretion  of  the  judge,  even  in  cases  of  fraud, 
to  exercise  a  certain  degree  of  indulgence  in  fixing  the 
amount  of  damages."  Merlin  uses  substantially  the  same 
language  ;  he  says,'  "  It  is  to  be  observed  that  the  law  of 
Justinian,  so  far  as  it  limits  exorbitant  or  excessive  dam- 
ages to  precisely  double  the  value  of  the  thing  in  contro- 
versy, has  not  the  force  of  law  with  us  [and  the  Code  has 
not  incorporated  it  among  its  provisions];  but  the  prin- 
ciple on  which  it  is  founded,  being  one  of  natural  equity, 
should  be  adhered  to,  by  moderating  the  damages  wher- 
ever they  are  too  great,  by  leaving  them  to  the  arbitra- 
ment of  the  judge," 

§  28.  Methods  of  avoiding  injustice  in  the  systems  con- 
sidered.— In  the  various  systems  of  jurisprudence  which 
we  have  thus  cursorily  examined,  we  see  that  the  diffi- 
culty inherent  in  the  subject  is  sought  to  be  avoided, 
either  by  fixing  on  an  arbitrary  valuation  of  the  loss  sus- 
tained applicable  to  all  cases,  or  by  leaving  the  whole 

'  §  164,  Nous  devons  mod^rer  les  vol.  viii.  II  faut  observer  que  la  loi  de 
dommages  et  int6rgts,  lorsqu'ils  se  trou-  Justinien,  en  ce  qu'elle  r^duit  precise- 
vent  excessifs,  en  laissant  cette  mod-  ment  au  double  de  la  valeur  de  la  chose 
Oration  k  I'arbitrage  du  juge.  les  dommages  et  intferSts   exorbitans, 

*  Quand  les  dommages  et  int^rets  n'a  pas  force  de  loi  parmi  nous  [et  le 
sont  considerables,  ils  ne  doivent  pas  Code  Civil  ne  I'a  pas  remise  en  vig- 
etre  tax6s  et  liquid^s  en  rigueur,  mais  ueur];  mais  le  principe  sur  lequel  elle 
avec  une  certaine  moderation.  est  fondfee,  6tant  un  principe  qui  6mane 

'  §  168.     II  doit  Stre  laiss6  k  la  pru-  de  r6quit6  naturelle,  on  doit  s'y  con- 

dence  du  juge,  mSme  en  cas  de  dol,  former,  et  en  consequence,  modferer  les 

d'user  de  quelque  indulgence   sur  la  dommages  et  intfergts  lorsqu'ils  se  trou- 

taxation  des  dommages  et  intferets.  vent  excessifs,  en  laissant  cette  mod- 

*  Repertoire  ;  Dommages  et  Intfergts,  Oration  k  I'arbitrage  du  juge. 


28  GENERAL   VIEW    OF   THE   SUBJECT.  §  29. 

matter  largely  to  the  discretion  of  the  tribunal  which  has 
cognizance  of  the  subject.  ** 

General  Principles  adopted  in  the  Common-Law 

System. 

§  29.  Damages  consist  in  compensation  for  loss  sus- 
tained.—* Our  law  differs  very  materially  from  all  these 
systems.  By  the  general  system  of  our  law,  for  every 
invasion  of  right  there  is  a  remedy,  and  that  remedy  is 
compensation.  This  compensation  is  furnished  in  the 
damages  which  are  awarded. 

"  Wherever,"  says  Blackstone,  "  the  common  law  gives 
a  right  or  prohibits  an  injury,  it  also  gives  a  remedy  by 
action."'  "If  a  statute  gives  a  right,"  said  Lord  Holt, 
"  the  common  law  will  give  a  remedy  to  maintain  that 
right;  a  fortiori,  where  the  common  law  gives  aright, 
it  gives  a  remedy  to  assert  it.  This  is  an  injury,  and 
every  injury  imports  a  damage.""  "It  is  the  pride  of 
the  common  law,"  says  the  Supreme  Court  of  New 
York,  "  that  wherever  it  recognizes  or  creates  a  private 
right,  it  also  gives  a  remedy  for  the  wilful  violation  of  it." ' 
"  Another  species  of  property,"  says  Blackstone,^  "  ac- 
quired and  lost  by  suit  and  judgment  at  law,  is  that  of 
damages,  given  to  a  man  by  a  jury  as  a  compensation 
and  satisfaction  for  some  injury  sustained."  "  Every 
one,"  said  Lord  Holt,'  "  shall  recover  damages  in  propor- 
tion to  the  prejudice  which  he  hath  sustained."  "  Dam- 
ages— damna  in  the  common  law,"  says  Lord  Coke," 
"  hath  a  special  signification  for  the  recompense  that  is 
given  by  the  jury  to  the  plaintiff,  for  the  wrong  the  de- 
fendant hath  done  unto  him."     "  It  is  a  general  and  very 

'  3  BI.  Com.,  ch.  viii,  p.  123.  lison  v.  McCune,  15  Ohio  726 ;  Webb 

'^  Ashby  V.  White,  i  Salk.  ig.  v.  Portland  Manuf.  Co.,  3  Sum.  189. 

^  Yates  V.  Joyce,  11  Johns.  136.    See        *  2  BI.  Com.,  ch.  xxix,  p.  438. 
also  Lamb  v.  Stone,  n  Pick.  527  ;  Al-        '  Ferrer  v.  Beale,  i  Lord  Raym.  692. 

*  Co.  Litt.  257a. 


§  30-       BOTH  IN  CONTRACT  AND  IN  TORT.         29 

sound  rule  of  law,"  said  Sedgwick,  J.,  delivering  the 
opinion  of  the  Supreme  Cpurt  of  Massachusetts,'  "that 
where  an  injury  has  been  sustained,  for  which  the  law 
gives  a  remedy,  that  remedy  shall  be  commensurate  to 
the  injury  sustained."  "  It  is  a  rational  and  a  legal  princi- 
ple," said  Shippen,  Chief-Justice  of  the  Supreme  Court 
of  Pennyslvania,'  "that  the  compensation  should  be 
equivalent  to  the  injury."  "The  general  rule  of  law," 
said  Story,  J.,  to  the  jury  on  the  Rhode  Island  circuit,' 
"is,  that  whoever  does  an  injury  to  another  is  liable  in 
damages  to  the  extent  of  that  injury.  It  matters  not 
whether  the  injury  is  to  the  property  or  the  person,  or 
the  rights  or  the  reputation  of  another."  ** 

§  30.  Both  in  contract  and  in  tort. — In  all  cases,  then, 
of  civil  injury  and  of  breach  of  contract  (')  the  declared 
object  of  awarding  damages  is  to  give  compensation  for 
pecuniary  loss ;  that  is,  to  put  the  plaintiff  in  the  same 
position,  so  far  as  money  can  do  it,  as  he  would  have 
been  if  the  contract  had  been  performed  or  the  tort  not 
committed.  Q")  Thus,  in  the  case  of  a  breach  of  con- 
tract, the  plaintiff  should  recover  "  what  the  pecuniary 
amount  is  of  the  difference  between  the  present  state  of 
things  and  what  it  would  have  been  if  the  contract  had 

'  Rockwood  V.  Allen,  7  Mass.  254.'         '  Dexter  v.  Spear,  4  Mason,  115. 
'  Bussy  V.  Donaldson,  4  Dallas,  206. 

(»)  With  the  exception  of  breach  of  promise  of  marriage,  where  the  amount 
to  be  recovered  is  left  largely  to  the  discretion  of  the  jury  and  of  those  cases 
of  torts  in  which  the  jury  are  permitted  to  inflict  exemplary  or  vindictive 
damages.  In  Milwaukee  &  St.  Paul  Ry.  Co.  v.  Arms,  91  U.  S.  489, 
Davis,  J.,  treating  of  exemplary  damages,  said :  "  It  is  undoubtedly  true 
that  the  allowance  of  anything  more  than  an  adequate  pecuniary  indemnity 
for  a  wrong  suffered  is  a  great  departure  from  the  principle  on  which  dam- 
ages in  civil  suits  are  awarded." 

(*■)  Smith  V.  Sherwood,  2  Tex.  460 ;  Griffin  v.  Colver,  16  N.  Y.  489  ;  Parke, 
B.,  in  Robinson  v.  Harman,  I  Ex.  850. 


30  GENERAL   VIEW    OF   THE    SUBJECT,  §  3O. 

been  performed."  (")  For  example,  where  the  United 
States  Government  suspended  work  on  a  contract  which 
the  plaintiff  had  with  it  to  supply  materials  and  labor,  it 
was  held  that  the  proper  method  was  to  estimate  what 
sum  would  place  the  claimant  in  the  same  condition  that 
he  would  have  been  in  if  he  had  been  allowed  to  proceed 
without  interference. (*•)  So,  in  actions  of  tort,  the  dam- 
ages awarded  should  be  an  amount  sufficient  to  indem- 
nify the  plaintiff  for  the  loss  which  he  has  suffered  at  the 
hands  of  the  defendant.  (")  In  short,  the  purpose  of 
awarding  damages  is  the  same  whatever  the  form  of  ac- 
tion. "  In  civil  actions  the  law  awards  to  the  party 
injured  a  just  indemnity  for  the  wrong  which  has  been 
done  him,  and  no  more,  whether  the  action  be  in  con- 
tract or  tort ;  except  in  those  special  cases  where  pu- 
nitory damages  are  allowed,  the  inquiry  must  always  be, 
what  is  an  adequate  indemnity  to  the  party  injured,  and 
the  answer  to  that  inquiry  cannot  be  affected  by  the  form 
of  the  action  in  which  he  seeks  his  remedy."  (^)  Hence 
it  follows  that  the  consideration  for  the  contract  does  not 
furnish  the  measure  of  damages.  Accordingly,  in  an  ac- 
tion against  an  attorney  for  failure  to  perform  certain 
services  at  an  agreed  price,  it  was  held  error  to  charge 
that  the  plaintiff  could  recover  the  sum  paid  less  the 
value  of  services  actually  rendered,  and  Rapallo,  J.,  said 


(»)  Blackburn,  J.,  in  Wall  v.  City  of  London  R.  P.  Co.,  L.  R.  9  Q.  B.  249. 
Again,  in  Hobbs  v.  London  &  S.  W.  Ry.  Co.,  L.  R.  10  Q.  B.  iii,  he  ex- 
presses the  same  idea,  saying,  "What  the  passenger  is  entitled  to  recover  is 
the  difference  between  what  he  ought  to  have  had  and  what  he  did  have." 

0")  U.  S.  V.  Smith,  94  U.  S.  214.  This  rule,  however,  is  not  always  applied 
to  a  breach  of  contract  concerning  real  property. 

(■=)  Baker  v.  Drake,  53  N.  Y.  211. 

(^)  Rapallo,  J.,  in  Baker  v.  Drake,  53  N.  Y.  211,  220.  In  admiralty,  also, 
the  rule  is  restitutio  in  integrum.  The  Clyde,  Swabey,  23,  24 ;  The 
Gazelle,  2  W.  Rob.  279;  The  Baltimore,  8  Wall.  377,  385;  Clifford,  J., 
in  The  Atlas,  93  U.  S.  302,  308. 


§3I-       THE  AMOUNT  DETERMINED  BY  RULES  OF  LAW.        3 1 

that  the  damages  should  be  measured  by  the  injury  done 
and  not  by  the  fee  paid.  (*)  On  the  same  principle,  in 
an  action  for  covenant  not  to  manufacture,  it  was  held 
that  the  measure  of  damages  was  what  the  plaintiff  had 
lost,  and  that  though  what  the  defendant  had  gained 
might  be  evidence  of  what  the  plaintiff  had  lost,  it  would 
be  evidence  only.  C")  In  an  action  on  a  penal  bond 
given  to  the  State  by  the  defendant  in  consideration  for 
a  loan,  one  of  the  conditions  of  the  bond  being  that  the 
debtor  should  make  annual  reports  to  the  governor,  it 
was  held  that  the  measure  of  damages  was  the  loss  act- 
ually sustained,  and  not  the  amount  of  the  loan.  (") 

§  31.  The  amount  determined  by  rules  of  law. — *The 
amount  of  the  compensation  is  not  governed  by  any 
arbitrary  method  of  assessment,  nor,  on  the  other  hand, 
left  to  fluctuating  discretion  of  either  judge  or  jury.  It 
is  awarded  (except  in  those  cases  to  which  we  have 
referred)  according  to  certain  rules  of  law  which  the 
jury  are  not  at  liberty  to  disregard,  and  which  equally 
control  the  conduct  of  the  court.  "  In  cases,"  said 
Washington,  J.,  on  the  Pennsylvania  circuit,'  "where  a 
rule  can  be  discovered,  the  jury  are  bound  to  adopt  it. 
That  rule  is,  that  the  plaintiff  should  recover  so  much  as 
will  repair  the  injury  sustained  by  the  misconduct  of  the 

1  Walker  v.  Smith,  i  Wash.  C.  C.  152. 


(»)  Quinn  v.  Van  Pelt,  56  N.  Y.  417  ;  ace,  Bennett  v.  Buchan,  61  N.  Y. 
222. 

(*)  Peltz  V.  Eichele,  62  Mo.  171. 

(«)  Jemison  v.  Gov.  of  Alabama,  47  Ala.  390 ;  ace,  Murray  v.  Jennings, 
42  Conn.  9.  In  Indiana,  it  has  been  said  that  the  measure  ol  damages 
for  the  violation  of  a  simple  contract,  where  vindictive  damages  are  not 
authorized,  is  the  amount  ntcessary  to  put  the  party  injured  in  as  good  a 
condition  as  if  he  had  not  made  the  contract.  Jones  v.  Van  Patten,  3  Ind. 
107.  This,  however,  is  clearly  wrong.  Wilson  v.  Whitaker,  49  Pa.  114, 
is  also  inconsistent  with  the  above  principles. 


32  GENERAL   VIEW   OF   THE   SUBJECT.  §  32. 

^ 

defendant."  In  regard  to  the  rate  of  damages  on  a 
foreign  bill  of  exchange,  the  New  York  Court  of  Errors 
said,  "  In  this,  as  in  other  cases  of  contract,  the  rule  by 
which  the  amount  or  extent  of  redress  should  be  ascer- 
tained, is  a  question  of  law."  The  amount  of  compen- 
sation, or,  in  other  words,  the  measure  of  damages,  is, 
therefore,  as  a  general  rule,  matter  of  law,  to  be  disposed 
of  by  the  court. 

§  32,  Damnum  absque  injuria  and  injuria  sine  damno. — 
It  is  not,  however,  to  be  understood  that  legal  relief  is  to 
be  had  for  every  species  of  loss  that  individuals  sustain 
by  the  acts  of  others.  It  is  undoubtedly  true  that  dam- 
age resulting  from  fraud,  deceit,  or  malice,  always  fur- 
nishes a  good  cause  of  action.'  "This  principle,"  says 
the  Supreme  Court  of  Ohio,  "  is  one  of  natural  justice, 
long  recognized  in  the  law,"'  But  where  the  injury  is 
not  to  be  traced  to  any  evil  motive,  the  rule  is  by  no 
means  universal  that  injury  is  always  entitled  to  redress. 
In  addition  to  the  great  class  of  moral  rights  and  duties 
which  the  law  does  not  attempt  to  protect  or  enforce,* 
there  are  many  sufferings  inflicted  by  human  agency, 
where  the  immediate  instruments  of  the  injury  are  free 
from  fault,  or  the  act  beyond  their  control.  In  these 
cases  the  law  does  not  seek  to  interfere."     It  is  only  legal 

'  Graves  v.  Dash,  12  Johns.  17.  fence  of  the  kingdom  against  the  king's 

'  Pasley  v.    Freeman,   3  T.  R.   51 ;  enemies."      Such,     again,    are    those 

Upton  V.  Vail,  6  Johns.  181  ;  Barney  v.  which  fall  within  the  maxim  Necessitas 

Dewey,  13  Johns.  224.  inducit  privilegium  quod  jura  privata, 

'Bartholomew  v.  Bentley,  15   Ohio,  "As  a  general  rule,    says  Mr.  Broom, 

659,  666.  in  his  work  above  cited,  p.  6,  "  the  law 

*  Pasley  v.  Freeman,  3  T.  R.  51.  charges  no  man  with  default  where  the 

'  Such  are  the  cases  governed  by  the  act  done  is  compulsory  and  not  volun- 

maxim,     Salus    populi    suprema     lex.  tary,  and  where  there  is  not  a  careful 

"There  are   many  cases,     says   Mr.  selection  on  his  part;  and,  therefore. 

Broom,  in  his  work  on  Legal  Maxims,  if  either  there  be  an  impossibility  for  a 

p.  I,  "  in  which  individuals  sustain  an  man  to  do  otherwise,  or  so  great  a  per- 

in jury  for  which  the  law  gives  no  action,  turbation  of  the  judgment  and  reason, 

as  where   private  houses    are    pulled  as  in  presumption  of  law  man's  nature 

down,  or  bulwarks  raised  on  private  cannot  overcome,  such  necessity  carries 

property  for  the  preservation  and  de-  a  privilege  in  itself." 


§  32.  DAMNUM  ABSQUE  INJURIA  AND  INJURIA  SINE  DAMNO.    T,;^ 

injury  that  sets  its  machinery  in  operation  ;  and  this  is 
meant  by  the  maxim  that  damnum  absque  injurid  gives 
no  cause  of  action.'  So,  if  in  the  prudent  and  reasonable 
exercise,  by  an  owner  of  property,  of  his  right  of 
dominion,  another  sustains  damage,  it  is  damnum  absque 
injurid.''  So  it  has  been  said  in  regard  to  a  corporation 
charged  with  committing  a  nuisance,  "  If  the  defendants 
have  only  pursued  the  path  presented  for  them  by  the 
laws  from  which  they  derive  their  existence,  they  have 
committed  no  wrongful  act.  Though  the  plaintiffs  may 
have  sustained  damage,  it  is  indeed  damnum  absque  inju- 
rid ;  for  the  act  of  the  law,  like  the  act  of  God,  works  no 
wrong  to  any  one."'  (")  There  must  not  only  be  loss, 
but  it  must  be  injuriously  brought  about  by  a  violation 
of  the  legal  rights  of  others.  "  No  one,  legally  speak- 
ing," says  the  Supreme  Court  of  New  York,  "  is  injured 
or  damnified  unless  some  right  is  infringed.  The  rcT 
fusal  or  discontinuance  of  a  favor  gives  no  cause  of 
action,"*  C")  The  prosecution  of  this  inquiry,  however, 
would  lead  us  directly  into  the  great  field  of  causes  of 

'  Ashby  V.  White,  i  Salk.  19 ;  s.  c.  2  damnum,  but  it  is  damnum  absque  in- 

Ld.   Raym.   938;  Lamb   v.    Stone,    11  jurid."     So  in   Massachusetts,   where 

Pick.  527  ;  Broom's  Legal  Maxims,  93.  the  owner  of  land  made  an  excavation 

"In  point  of  law,"  said  Rolfe,  B.,  in  therein  near  the  street,  and  a  person 

Davies  v.  Jenkins,  11  M.  &  W.   745,  in  the  night-time  fell  in  ;  held,  that  the 

756,  where  process  had  been  by  mistake  owner  was  not  liable.    "  Where  neither 

served  on  the  wrong  person,  "  if  the  party  is  in  fault,"  said  the  Supreme, 

proceedings  have  been  adopted  purely  "and  an   accident  takes   place,   it   is 

through   mistake,   though   injury   may  damnum  absque  injurid." — Howland  v. 

have  resulted  to  the  plaintiff,  it  is  dam-  Vincent,  10  Met.  371,  3"'4. 

num  absque  injurid,  and  no  action  will  ^  Gardner  v.  Heartt,  2  Barb.  165. 

lie."     "This  is  one  of  those  unfortu-  'First   Baptist  Church  v.    Sch'y   & 

nate  cases,"  says  the    same    learned  Troy  R.R.  Co.,  5  Barb.  79,  84. 

judge,    in    Winterbottom    v.   Wright,  ''Mahan  v.   Brown,   13  Wend.    261, 

10   M.  &  W.   log,  116, — a  suit  by    a  265,  where  it  was  held  that  an  action 

mail  coachman  against  a  contractor  for  will  not  lie  for  obstructing  a  neighbor's 

supply  of  mail  coaches  for  injury  re-  lights,  if  they  be  not  ancient  lights,  and 

suiting  from  a  coach  breaking  down, —  no  right  has  been  acquired  by  grant  or 

"in  which  there   certainly  has    been  occupation  and  acquiescence. 


(»)  Donovan  v.  The  City  of  New  Orleans,  11  La.  Ann.  711. 
C)  See  Steuart  v.  State  of  Maryland,  20  Md.  97. 
Vol.  1.— 3 


34  GENERAL   VIEW    OF   THE    SUBJECT.  §  ^S. 

action.  Suffice  it  for  our  present  purposes  to  say  that 
whenever  loss  is  coupled  with  legal  injury,  the  law  gives 
compensation. 

It  is  further  to  be  borne  in  mind,  that  if  loss  without 
legal  injury  goes  unredressed,  the  correlative  proposition 
is  equally  true,  that  the  infringement  of  a  legal  right, 
when  unattended  by  any  positive  injury,  furnishes  no 
ground  for  other  than  nominal  relief.  It  is  not  sufficient 
that  an  act  unauthorized  by  law  has  been  committed. 
For  Injuria  sine  damno  there  is  no  compensation.  Sub- 
stantial loss  to  the  party  plaintiff  must  have  ensued  to 
entitle  him  to  substantial  relief.  De  minimis  non  curat 
lex.''  (")  But  of  this  we  shall  have  occasion  to  take 
notice  again,  when  we  come  to  consider  the  subject  of 
nominal  damages.  ** 

§  33.  Fletcher  V.  Rylands. — In  Fletcher  v.  Rylands  (*)  the 
plaintiffs  were  owners  of  a  mine  which  they  had  worked 
under  the  defendants'  land.  The  defendants  erected  on 
their  own  land  a  reservoir  for  the  purpose  of  working 
their  mill.  There  were  some  old  shafts  in  the  defend- 
ants' land  which  had  become  partly  filled,  but  connected 
below  with  the  plaintiff's  mine.  Of  these  the  defendants 
knew  nothing.  The  reservoir  was  not  made  sufficiently 
strong  with  regard  to  the  shafts,  and,  in  consequence,  the 
water  burst  into  the  shafts  and  flooded  the  plaintiff's 
mine.  In  the  Court  of  Exchequer,  it  was  held,  Bram- 
well,  B.,  dissenting,  that  the  plaintiff  could  not  recover 
without  showing  want  of  due  care  on  the  part  of  the 
defendants. (°)     On  appeal  to  the  Exchequer  Chamber, 

'  Paul  V.  Slason,  22  Vt.  231. 


(»)  De  minimis  non  curat  lex  does  not  prohibit  the  allowance  of  nominal 
damages.    Fullam  v.  Stearns,  30  Vt.  443. 

C)  L.  R.  I  Ex.  265.  («)  3  H.  &  C.  774. 


§  33-  FLETCHER  V.  RYLANDS.  35 

this  decision  was  reversed,  Blackburn,  J.,  delivering  the 
opinion.  He  said  :  "  We  think  that  the  true  rule  of  law 
is  that  the  person,  who  for  his  own  purposes  brings  on 
his  lands  and  collects  and  keeps  there,  anything  likely  to 
do  mischief  if  it  escapes,  must  keep  it  in  at  his  peril, 
and,  if  he  does  not  do  so,  is  prima  facie  answerable  for 
all  the  damage  which  is  the  natural  consequence  of  its 
escape."  In  support  of  this  doctrine,  he  cited  the  rule 
in  the  case  of  cattle  escaping  from  control,  without  neg- 
ligence on  the  part  of  the  owners,  and  the  case  of  Ten- 
ant V.  Goldwin,(')  where  a  defendant  was  held  liable  for 
filth  flowing  from  his  cellar  through  defects  in  the  wall. 
On  appeal  to  the  House  of  Lords,  this  judgment  was 
affirmed.C')  Lord  Cairns  drew  a  distinction  between  a 
natural  and  a  non-natural  user  of  land,  defining  the  latter 
as  "  introducing  into  the  close  that  which  in  its  natural 
condition  was  not  in  or  upon  it ";  and  held  that,  in  the 
latter  case,  the  defendant  acted  at  his  peril.  In  Losee 
V.  Buchanan  (")  the  plaintiff's  house  was  injured  through 
the  bursting  of  a  boiler  on  the  defendant's  land.  It  was 
held  that  the  defendant  was  only  liable  for  negligence. 
Earl,  C,  said  that  the  rule  in  the  case  of  the  escape  of 
animals  did  not  furnish  analogies  absolutely  controlling 
in  reference  to  inanimate  objects.  He  considered 
Fletcher  v.  Rylands  in  conflict  with  the  law  of  this 
country,  especially  those  cases  holding  that  if  one  light  a 
fire  on  his  land  and  it  spread  to  his  neighbor's,  the  former 
is  liable  only  in  case  of  negligence.  He  then  said  :  "  This 
examination  has  gone  far  enough  to  show  that  the  rule 
is,  at  least  in  this  country,  a  universal  one,  which,  so  far 
as  I  can  discern,  has  no  exceptions  or  limitations,  that 
no  one  can  be  made  liable  for  injuries  to  the  person  or 


e)6Mod.  311.  C)  L.  R.  3  H.  L.  330.  OS'N.Y.  476. 


36  GENERAL   VIEW    OF   THE    SUBJECT.  §  33- 

property  of  another,  without  some  fault  or  negligence  on 
his  part."  In  a  case  in  New  Jersey,  precisely  like  the 
last  case  in  its  facts,  the  same  conclusion  was  reached.  (*) 
Beasley,  C.  J.,  after  saying  that  in  principle  the  case 
could  not  be  distinguished  from  Fletcher  v.  Rylands, 
said  that  the  fallacy  in  that  case,  consisted  in  extending 
into  a  general  principle  the  rule  relating  to  cattle,  a 
class  of  cases  to  be  regarded  as  in  a  great  degree  excep- 
tional. He  then  referred  to  the  case  of  Tenant  v.  Gold- 
win,  and  remarked,  that  allowing  the  cellar  to  get  out  of 
repair  was  in  itself  negligence,  and  that  nothing  was  said 
as  to  the  defendant's  liability,  had  he  taken  all  proper 
precautions  to  prevent  the  escape  of  the  filth.  He  said 
that  this  case  partook  largely  of  the  character  of  nui- 
sances. He  then  said  :  "  The  common  rule,  quite  insti- 
tutional in  its  character,  is,  that  in  order  to  sustain  an 
action  for  a  tort,  the  damage  complained  of  must  have 
come  from  a  wrongful  act."  In  New  Hampshire,  the 
doctrine  of  Fletcher  v.  Rylands  has  also  been  disap- 
proved. C")  The  defendant's  horses  became  frightened  by 
a  locomotive,  and  escaping  from  the  defendant's  control, 
ran  upon  the  plaintiff's  land  and  injured  a  post.  Doe,  J., 
in  a  very  elaborate  opinion,  endeavored  to  show  the  con- 
sequences to  which  the  doctrine  of  Fletcher  v.  Rylands 
must  lead.  After  quoting  the  language  of  Blackburn,  J., 
cited  supra,  he  said  :  "  This  seems  to  be  substantially  an 
adoption  of  the  early  authorities,  and  an  extension  of  the 
ancient  practice  of  holding  the  defendant  liable  in  some 
cases,  on  the  partial  view  that  regarded  the  misfortune 
of  the  plaintiff  updn  whom  a  damage  had  fallen,  and  re- 
quired no  legal  reason  for  transferring  the  damage  to  the 
defendant.    The  ancient  rule  was,  that  a  person  in  whose 

(»)  Marshall  v.  Welwood,  38  N.  J.  L.  339. 
0  Brown  v.  Collins,  53  N.  H.  442. 


§33-  FLETCHER  V.  RYLANDS.  ^7 

house  or  on  whose  land  a  fire  accidentally  originated, 
which  spread  to  his  neighbor's  property  and  destroyed  it, 

must  make  good  the  loss One  result  of  such  a 

doctrine  is,  that  every  one  building  a  fire  on  his  own 
hearth,  for  necessary  purposes,  with  the  utmost  care,  does 
so  at  the  peril,  not  only  of  losing  his  own  house,  but  of 
being  irretrievably  ruined  if  a  spark  from  his  chimney 
starts  a  conflagration  which  lays  waste  the  neighbor- 
hood." (*)  But  in  Massachusetts  the  doctrine  seems  to 
have  been  regarded  with  more  favor.  In  Shipley  v. 
Fifty  Associates  (*")  the  defendant  built  a  house  in  Boston, 
with  a  high  pitched  roof,  so  situated  that  anything  falling 
off  the  roof  would  naturally  fall  into  the  street.  During 
the  winter  some  ice  slid  off  the  roof  and  injured  a  passer. 
It  was  held  that  the  defendant  was  liable.  Ames,  J., 
cited  the  opinions  of  Lord  Cairns  and  of  Blackburn,  J., 
but  he  also  put  the  decision  on  the  ground  that,  from 
the  position  and  style  of  the  building  it  was  highly  prob- 
able the  accident  would  occur.  It  was  therefore  a  clear 
case  of  negligence,  and  in  that  distinguishable  from 
Fletcher  v.  Rylands.  In  Wilson  v.  New  Bedford  (°)  the 
defendants  had  built  a  dam  and  made  a  reservoir  under 
a  power  conferred  by  statute,  but  owing  to  the  increased 
pressure,  the  water  percolated  through  the  soil  and 
flooded  the  plaintiff's  cellar.  The  statute  made  the  de- 
fendant liable  for  all  damage  caused  by  the  construction 
of  the  reservoir.  The  plaintiff  had  repeatedly,  during 
two  years,  demanded  payment  for  the  damage  sustained 
by  him.  The  Court,  on  the  authority  of  several  Massa- 
chusetts cases,  in  which  damages  sustained  through  arti- 
ficial percolation  had  been  recovered,  and  on  the  author- 


(")  See  further  Sweet  v.  Cutts,  50  N.  H.  439 ;  Bassett  v.  Salisbury  Mfg.  Co., 
43  N.  H.  569. 

C)  106  Mass.  194.  C)  108  Mass.  261. 


38  GENERAL   VIEW   OF   THE    SUBJECT.  §  ^;i. 

ity  of  a  New  York  case,  and  of  Fletcher  v.  Rylands, 
held  the  defendants  liable.  This  case  is  clearly  distin- 
guishable from  Fletcher  v.  Rylands,  as  the  defendant 
continued  the  use  of  the  land  after  it  had  notice  of  the 
injury  it  was  causing.  Although  nothing  is  said  in  the 
opinion  on  this  point,  it  is  to  be  noticed  that  one  of  the 
cases  cited  in  support  of  the  judgment,  and  in  which 
Fletcher  v.  Rylands  was  cited,  Ball  v.  Nye,(°^)  was  decided 
expressly  on  this  ground.  The  other  two  Massachusetts 
cases  on  which  Wilson  v.  New  Bedford  was  decided, 
were  actions  for  damages  for  percolation,  arising  from 
flowing  lands  for  mills,  and  it  was  held  that  damages  by 
percolation  were  the  natural  consequences  of  flooding 
the  lands,  no  questions  of  damnum  absque  injuria  being 
raised.  The  case  cited  from  New  York,  Pixleyz/.  Clark,  C") 
was  one  where  the  defendants  dammed  a  stream,  and 
caused  percolation  on  the  plaintiff's  land.  Peckham,  J., 
in  an  elaborate  review  of  the  cases,  held  the  defendants 
liable.  But  he  placed  his  decision  on  the  ground  that 
there  was  no  difference  between  flooding  land  from  the 
direct  overflow  of  the  stream  and  from  percolation,  and 
in  Losee  v.  Buchanan,  supra,  this  decision  was  said  to  be 
an  application  of  the  principle,  aqua  currit  et  debet  cur- 
rere,  to  the  facts  of  the  case.  Peckham,  J.,  also  pointed 
out  the  fact  that  the  defendants  continued  their  works 
without  change,  after  they  knew  the  injury  it  was  caus- 
ing,.saying:  "These  defendants  tried  an  experiment  for 
their  own  benefit  and  found  it  seriously  injured  the 
plaintiff.  When  they  see  the  injury  they  insist  upon  con- 
tinuing it."  A  second  distinction  to  be  drawn  between 
Wilson  V.  New  Bedford  and  Fletcher  v.  Rylands  seems 
to  be,  that  in  the  former  the  injury  was  a  direct  and  nat- 


(»)  99  Mass.  582.  (t)  35  N.  Y.  520. 


§  33-  FLETCHER  V.  RYLANDS.  39 

ural  consequence,  flowing  from  the  use  of  the  defend- 
ant's land  in  the  very  manner  in  which  it  was  intended 
to  be  used,  whereas,  in  Fletcher  v.  Rylands,  the  use  to 
which  the  defendant  intended  to  put  his  land  was  by  a 
wholly  and  unforeseen  circumstance  entirely  destroyed, 
and  the  injury  resulted  not  from  the  use  for  which  he 
intended  it,  but  from  the  destruction  of  this  use.  This 
same  distinction  was  drawn  in  Losee  v.  Buchanan  be- 
tween the  facts  of  that  case  and  of  Hay  v.  Cohoes  Co.(") 
In  the  latter  case,  the  defendants  were  authorized  to  dig 
a  canal.  In  blasting,  a  piece  of  rock  was  thrown  against 
the  plaintiff's  house  ;  it  was  held  that  the  defendant  was 
liable  without  any  proof  of  negligence  on  his  part.  Earl, 
C,  said  of  this  decision,  in  Losee  v.  Buchanan,  that  it 
was  based  upon  the  soundest  principles.  "  The  damage 
was  the  necessary  consequence  of  just  what  the  defend- 
ant was  doing."  In  McKeon  v.  See  Q")  the  defendant  was 
held  liable  for  injury  caused  by  his  machinery  jarring  the 
walls  of  the  plaintiff's  houses.  And  in  Gray  v.  Harris,^) 
Chapman,  C.  J.,  says:  "The  degree  of  care  which  a 
person  is  bound  to  use  in  constructing  a  dam  across  a 
stream  ....  must  be  in  proportion  to  the  extent  of 
the  injury  which  will  be  likely  to  result  to  third  persons, 
provided  it  should  prove  insufficient."  In  Smith  v. 
Fletcher  (•*)  the  defendants  by  working  their  mines  had 
caused  hollows  to  form  in  the  surface  of  the  land.  A 
watercourse  ran  across  their  land  which  they  had  di- 
verted from  its  original  channel.  In  an  extraordinary 
freshet  the  water  overflowed  the  banks  of  the  stream, 
into  the  hollows,  thence  through  openings  made  into  the 
defendant's  mines,  and  thence  into  the  plaintiff's  mine. 
The  Court  of  Exchequer  held  the  case  not  to  be  distin- 

C)  2  N.  Y.  159:  ace.  Colton  v.  Onderdonk,  69  Cal.  155. 

0")  51  N.  Y.  300.  C)  107  Mass.  492.  C)  L.  R.  7  Ex.  305. 


40  GENERAL   VIEW   OF   THE    SUBJECT.  §  S^. 

guishable  from  Fletcher  v.  Rylands,  but  on  appeal  to  the 
Exchequer  Chamber  this  decision  was  reversed  and  sent 
back  for  a  new  trial.  Lord  Coleridge  said  that  the  case 
was  not  in  every  respect  within  the  authority  of  Fletcher 
V.  Rylands,  and  thought  it  desirable  that  the  opinion  of 
the  jury  should  be  taken  whether  the  defendant's  acts 
were  done  in  the  ordinary  reasonable  and  proper  mode 
of  working  the  mine.  On  a  new  trial  the  jury  found 
that  the  flooding  was  caused  by  the  diversion  of  the 
stream,  and  that  the  diverted  channel  was  insufficient, 
and  more  likely  to  overflow  than  in  its  original  condi- 
tion. The  case  was  carried  to  the  House  of  Lords, (")  and 
Lord  Penzance  held  the  findings  of  the  jury  to  be  con- 
clusive against  the  defendant.  He  said  that  apart  from 
these  findings  there  would  have  been  a  question  what 
obligations  the  defendants  took  upon  themselves  in  di- 
verting the  channel.  He  expressed  the  opinion  that  the 
new  course  must  be  in  itself  capable  of  conveying  such 
rainfalls  as  might  reasonably  be  anticipated,  and  that  the 
defendants  were  not  bound  to  make  provision  for  any 
quantities  of  rain  however  heavy  that  might  be  dis- 
charged into  it.  In  Wilson  v.  Waddell  (^)  the  defendant's 
mining  operations  caused  the  surface  land  to  split  so  that 
in  rain-storms  the  water  passed  through  and  flooded  the 
plaintiff's  land.  This  was  held  not  to  create  any  cause 
of  action,  but  to  be  a  case  of  damnum  absque  injuria,  on 
the  ground  that  the  use  of  the  land  was  a  natural  one, 
and  necessarily  caused  the  cracking  of  the  surface.  In 
Nichols  V.  Marsland  (")  the  defendant's  reservoir  through 
an  extraordinary  fall  of  rain  gave  way  and  carried  off 
some  bridges.  It  was  held  on  appeal  that  the  law 
imposed  a  duty  upon  the  defendant  to  keep  the  water 


(•)  2  App.  qas.  781.  C)  2  App.  Cas.  93.  O  2  Ex.  Div.  i. 


§  33-  FLETCHER  V.  RYLANDS. 


41 


within  bounds,  but  that  it  was  a  general  rule  that  if  an 
act  of  God  prevented  the  performance  of  a  duty  imposed 
by  rule  of  law,  the  defendant  was  excused  from  liabili- 
ties, and  it  was  held  that  the  unusual  rainfall  must  be 
considered  an  act  of  God.  In  Jones  v.  Festiniog  Ry. 
Co.(*)  the  Court,  following  Fletcher  v.  Rylands,  held  that 
the  defendant  was  liable  for  the  escape  of  sparks  from 
an  engine  without  any  negligence  on  his  part,  the  use  of 
engines  not  being  especially  provided  for  in  the  com- 
pany's charter.  The  case  was  distinguished  from  Vaughan 
V.  Taff  Vale  Ry.  Go.,(^)  where  the  Exchequer  Chamber 
held  that  there  was  no  liability  for  the  escape  of  sparks 
where  the  use  of  engines  v/as  authorized  by  statute,  and 
there  was  no  negligence  on  the  defendant's  part.  If 
these  cases  hold  that  there  was  no  liability  for  damages 
resulting  necessarily  from  the  use  of  the  engines,  they 
were  properly  decided  on  the  ground  that  a  grant  by  the 
Legislature  carries  with  it  the  incidents  of  the  grant,  one 
of  which  here  would  be  immunity  from  liability  for  dam- 
age necessarily  caused.  But  if  it  was  intended  to  decide 
that  the  legislative  sanction  relieved  the  defendant  from 
the  duty  to  restrain  under  all  circumstances  the  danger- 
ous element  it  was  employing,  it  seems  difficult  to  under- 
stand why  the  sanction  of  the  common  law  should  not 
have  the  same  effect.  In  Cattle  v.  Stockton  Water 
Works  (°)  the  plaintiff  was  working  under  a  contract  with 
one  Knight ;  the  defendant's  water-pipes,  which  their , 
charter  had  authorized  them  to  construct,  burst,  flooded 
Knight's  land,  and  delayed  the  plaintiff  in  his  work. 
The  Court  refused  to  pass  upon  the  question  whether 
the  defendants  were  relieved  from  liability  on  the 
ground  of  the  sanction  of  their  charter,  but  held  that 


e)  L.  R.  3  Q.  B.  733.         C)  5  H.  &  N.  679.         e)  L.  R.  10  Q.  B.  453. 


42  GENERAL   VIEW    OF   THE   SUBJECT.        §§  34,  35. 

there  was  no  liability  to  the  plaintiff,  although  there 
might  have  been  to  Knight. 

§  34.  No  compensation  for  loss  by  nuisance  common  to  all. 
— *To  this  general  principle,  that  where  loss  and  legal  in- 
jury unite,  relief  will  be  given  by  suit,  the  law  recognizes 
one  exception  :  that  where  the  wrong  is  on  so  great  a  scale 
that  the  whole  community,  or  a  large  portion  of  them, 
suffer  from  it.  "  Here,"  says  Blackstone,  "  I  must  premise 
that  the  law  gives  no  private  remedy  for  anything  but  a 
private  wrong."'  And  so  the  law  is  laid  down  by  Lord 
Coke  in  regard  to  nuisances  on  the  highway  :  "  A  man 
shall  not  have  an  action  on  the  case  for  a  nuisance  done 
in  the  highway,  for  it  is  a  common  nuisance,  and  then  it 
is  not  reasonable  that  a  particular  person  should  have 
the  action,  for  by  the  same  reason  that  one  person  might 
have  an  action  for  it,  by  the  same  reason  every  one 
might  have  an  action,  and  then  he  would  be  punished  a 
hundred  times  for  one  and  the  same  cause."  In  such 
case  the  remedy  is  by  indictment. 

§  35-  Unless  particular  damage  results. — But  Coke  goes 
on  immediately  to  make  this  distinction  :  "  But  if  any 
particular  person  afterwards,  by  the  nuisance  done,  has 
more  particular  damage  than  any  other,  then  for  that  partic- 
ular injury  he  shall  have  a  particular  action  on  the  case."' 
The  rule  and  the  exception  have  both  been  repeatedly 
recognized  in  England  and  in  the  courts  of  this  country, 
though  there  has  been  much  controversy  as  to  the  nature 
and  amount  of  the  "  particular  damage "  that  will  sup- 
port the  action.  It  has  been  held  in  England  that  an 
obstruction  of  a  navigable  creek,  by  which  the  plaintiff's 
vessel  was  arrested  in  her  course,  was  sufficient  to  main- 

'  3  Bl.  Com.  2ig  ;  4  ib.  167  ;  Broom's        '  Williams's  case,  5  Rep.  72. 
Legal  Maxims,  206. 


$35- 


UNLESS    PARTICULAR   DAMAGE   RESULTS. 


43 


tain  a  suit;'  and  where  a  corporation  bound  to  repair 
certain  banks,  mounds,  sea-shores,  and  piers  neglected  to 
do  so,  in  consequence  of  which  the  plaintiff's  house  was 
injured,  it  was  also  held  that  the  action  lay.'  So,  again, 
where  a  bookseller,  having  a  shop  by  the  side  of  a  public 
thoroughfare,  suffered  loss  in  his  business  in  consequence 
of  passengers  having  been  diverted  from  the  thorough- 
fare by  the  defendant's  continuing  an  unauthorized  ob- 
struction across  it  for  an  unreasonable  time,  this  was 
held  a  sufficient  particular  damage  to  be  the  foundation 
of  an  action.'  The  doctrine  of  these  cases  has  been 
substantially  adopted  in  this  country,  as  we  shall  have 
occasion  to  see  when  we  come  to  treat  of  trespasses  to 
real  estate.* 


'  Rose  V.  Miles,  4  Maule  &  Sel.  loi, 
which  virtually  overruled  Hubert  v. 
Groves,  i  Esp.  148,  and  Paine  v.  Part- 
rich,  Carth.  191  ;  and  the  doctrine  of 
Rose  V.  Miles  was  affirmed  in  Greasly 
V.  Codling.  2  Bing.  263,  as  to  a  high- 
way. The  authority  of  Hubert  v. 
Groves  has  also  been  denied  in  this 
country.  Lansing  v.  Wiswall,  5  Denio 
213. 

^  The  Mayor  and  Burgesses  of  Lyme 
Regis  V.  Henly,  i  Bing.  N.  C.  222. 

^  Wilkes  V.  Hungerford  Market  Com- 
pany, 2  Bing.  N.  C.  281,  where  the  au- 
thority of  Hubert  v.  Groves  was  again 
denied. 

*  Pierce  v.  Dart,  7  Cowen  6og  ;  Lan- 
sing V.  Smith,  8  Cowen  146  ;  s.  c.  4 
Wend.  9  ;  Mills  v.  Hall,  9  Wend.  315  ; 
The  Mayor,  etc.  v.  Furze,  3  Hill  612  ; 
Myers  v.  Malcolm,  6  Hill  292  ;  Lan- 
sing V.  Wiswall,  5  Denio  213 :  First 
Baptist  Church  v.  Sch'y  &  Troy  R.R. 
Co.,  5  Barb.  79 ;  Baxter  v.  Winooski 
Turnpike  Co.  22  Vermont  114  ;  Stetson 
V.  Faxon,  19  Pick.  147.  In  the  Propri- 
etors of  the  Quincy  Canal  v.  Newcomb 
(7  Met.  276),  it  was  said,  that  if  a 
party  "had  suffered  damage  from  the 
filling  up  of  a  canal  and  want  of  cleans- 
ing, by  means  of  which  he  was  unable 
to  enter  it,  it  would  have  been  a  dam- 
age suffered  in  common  with  all  other 
members  of  the  community,  and  there- 
fore redress  must  be  sought  by  a  public 


prosecution.  Where  one  suffers  in  com- 
mon with  all  the  public,  although  from 
his  proximity  to  the  obstructed  way, 
or  otherwise,  from  his  more  frequent 
occasion  to  use  it  he  may  suffer  in  a 
greater  degree  than  others,  still  he  can- 
not have  an  action,  because  it  would 
cause  such  a  multiplicity  of  suits  as  to 
be  itself  an  intolerable  evil.  But  when 
he  sustains  a  special  damage  differing 
in  kind  from  that  which  is  common  to 
others,  as  where  he  falls  into  a  ditch 
unlawfully  made  in  a  highway,  and 
hurts  his  horse,  or  sustains  a  personal 
damage,  then  he  may  bring  his  action." 
In  Pennsylvania,  the  rule  has  been 
applied  to  an  obstruction  in  the  Big 
Schuylkill,  which  prevented  the  plain- 
tiff's rafts  from  descending.  Hughes  v. 
Heiser,  i  Binney  463.  In  that  State, 
when  a  private  person  suffers  some  ex- 
traordinary damage  beyond  other  citi- 
zens, by  a  public  nuisance,  he  shall 
have  a  private  satisfaction  by  action, 
even  if  his  special  damage  be  merely 
consequential.  Pittsburgh  v.  Scott,  i 
Barr  309.  In  Kentucky,  it  has  been 
said  that  it  is  not  enough  that  one  be 
turned  out  of  the  way.  Barr  v.  Stevens, 
I  Bibb  292.  In  Connecticut,  see  Bige- 
low  V.  Hartford  Bridge  Co.,  14  Conn. 
565  ;  and  O'Brien  v.  Norwich  &  W.  R. 
R.  Co.,  17  Conn.  372.  The  doctrine  is 
the  same  in  regard  to  abatement : 
"  The   ordinary  remedy  for  a  public 


44  GENERAL   VIEW   OF   THE   SUBJECT.  §  36. 

We  shall  be  obliged  to  make  a  more  minute  examina- 
tion of  this  subject  when  we  come  to  speak  particularly 
of  the  subject  of  Nuisances  ;  but  we  should  not  omit  to 
notice  here  that  in  cases  like  these,  in  which  the  right  to 
relief  depends  upon  the  amount  of  injury,  we  may  be 
said  to  approach  a  vanishing  point,  where  all  distinctions 
between  the  cause  of  action  and  the  rule  of  compensa- 
tion are  confounded  and  lost. 

§  36.  Nor  by  way  of  settlement  for  crime. — It  is  proper 
here  to  call  attention  to  the  distinction  .maintained  be- 
tween those  cases  of  a  criminal  character  which  can  be 
compromised  by  the  parties  themselves,  and  those  in 
which  no  such  private  interference  is  permitted.  It  was 
early  held,  that  a  contract  to  withdraw  a  prosecution  for 
perjury  is  founded  on  an  unlawful  consideration  and  void. 
If  the  party  charged  were  innocent,  the  law  was  abused 
for  the  purpose  of  extortion  ;  if  guilty,  it  was  eluded  by 
a  corrupt  compromise,  screening  the  criminal  for  a  bribe.* 
The  subject  has  been  much  considered  in  subsequent 
cases ;  and  it  seems  now  to  be  well  settled  that  the  right 
to  compromise  depends  on  the  right  to  recover  damages 
in  a  civil  action.  "  The  law  permits  a  compromise  of 
all  offences,  though  made  the  subject  of  a  criminal  prose- 
cution, for  which  offences  the  injured  party  might  sue 
and  recover  damages  in  an  action.  It  is  often  the  only 
manner  in  which  he  can  obtain  redress.  But  if  the  offence 
is  of  a  public  nature  only,  no  agreement  can  be  valid  that 
is  founded  on  the  consideration  of  stifling  a  prosecution 
for  it ; "  therefore,  although  the  party  injured  may  law- 
fully compromise  an  indictment  for  a  common  assault, 

nuisance  is  itself  public— that  of  indict-  bring  an  action." — Mayor  of  Colches- 

ment— and  each  individual  who  is  only  ter  v.  Brooke,  7  Q.  B.  339,  377. 
injured  as  one  of  the  public  can   no        '  Collins   v,  Blantern,   2   Wils.   341, 

more  proceed   to   abate    than   he  can  347. 


§  ^6.        NOR   BY   WAY   OF   SETTLEMENT   FOR   CRIME.  45 

yet  an  agreement  to  pay  the  costs  of  a  prosecution  of  an 
assault  on  the  plaintiff  and  riot,  and  of  an  action  for  a 
wrongful  levy  under  a  yf.  /a,,  which  agreement  was 
founded  partly  on  compromise  of  the  prosecution,  and 
partly  on  an  undertaking  to  withdraw  the  execution,  is 
altogether  invalid  as  founded  on  an  illegal  considera- 
tion.' ** 

'.  Keir  v.  Leeman,  6  Q.  B.  308,  321. 


CHAPTER   II. 


COMPENSATION. 


I.— Kinds  of  Injury  Compensated. 


37- 

The  elements  of  injury. 

§45- 

in  actions  of  contract. 

38. 

Perfect  compensation  impossi- 

46. 

Difficulty  of  estimating  in  money 

ble. 

no  objection. 

39- 

The  injuries  for  which  compen- 

47- 

Kinds  of  mental  injury  compen- 

sation is  given. 

sated. 

40. 

Compensation   for    injuries    to 

48. 

Compensation   for    injuries    to 

property. 

family  relations. 

41- 

For  physical  injuries. 

49- 

To  personal  liberty. 

42. 

For  inconvenience. 

SO. 

To  reputation  and  standing  in 

43- 

For  mental  injuries  ;  early  mis- 

society. 

conception  of  rule. 

Si- 

Aggravation and  mitigation. 

44. 

In  actions  of  tort. 

sk- 

Matter of  evidence,  not  of  law. 

II.— Reduction  of  the  Original  Loss. 


.  53.  Offer  of  specific  reparation. 

54.  Bringing  converted  property  in- 

to court. 

55.  Reparation  accepted. 

56.  Reparation    preventing    actual 

loss. 

57.  Reparation  by  a  third  party. 

58.  Recovery  of  property  by  the  in- 

jured party. 

59.  Application  of  property  to  the 

benefit  of  the  injured  party. 

60.  Application  authorized  by  law ; 

seizure  on  execution. 


§61.  Informal  sale  after  legal  seizure. 

62.  Reparation   which   would  pre- 

vent further  loss. 

63.  Benefit  conferred  on  the  injured 

party  by  the  wrongful  act. 

64.  In  an  action  for  flooding  land. 

65.  On  the  injured  party  in  common 

with  others. 

66.  Not    caused     directly    by    the 

wrongful  act  itself. 

67.  Benefit  received  from  third  par- 

ties on  account  of  the  injury. 


III. — Compensation  for  Injury  to  a  Limited  Interest  in  Prop- 
erty. 


§68 


Damages  as  affected  by  limited 
ownership. 

69.  Damages  recoverable  by  owner 

of  limited  interest  in  land. 

70.  By  an  occupant  of  land. 

71.  By  a  lessee  of  land. 

72.  By  a  life-tenant  of  land. 

(46) 


§  73.  By  a  mortgagee  of  land. 

74.  By  a  reversioner. 

75.  By  a  tenant  in  common  of  land. 

76.  By   a    possessor    of    chattels 

against  a  trespasser. 
^^.  In  replevin,  by  one  who  counts 
on  possession  merely. 


§  2,7- 


THE   ELEMENTS    OF   INJURY. 


47 


78.  By  the    possessor  of   chattels 

in    an    action    against    the 
owner. 

79.  By   the   possessor    of   chattels 

where  the  owner  cannot  re- 
cover full  value. 


§  80.  By  an  owner  of  chattels  out  of 
possession. 

81.  By  the  mortgagor  or  mortgagee 

of  chattels. 

82.  Between  the  parties  to  a  mort- 

gage of  chattels. 

83.  By  the  part  owner  of  chattels. 


IV. — Time  to  which  Compensation  may  be  Recovered. 


§84. 
85. 

86. 

87. 
88. 

89. 
go- 


Damages  must  be  recovered  in 

a  single  action. 
The   early   rule   different ;  loss 

after  action  brought. 
Damages  for  prospective  loss. 
Continuing  agreements. 
Renewed  injury  requires  new 

action. 
Continuing  breach  of  contract. 
Damages   recoverable   for   act 

destroying  a  contract. 


91.  Continuing  tort. 

92.  By  trespass  on  plaintiff's  land. 

93.  By  unauthorized  private  struc- 

ture or  use  of  land. 

94.  For  a  tort  causing  permanent 

injury. 

95.  For  injury  caused    by  lawful 

permanent    structure  or   use 
of  land. 


§  37.  The  elements  of  injury. — *  It  has  been  said  that 
the  effect  of  our  law  is  to  give  in  damages  what  it  calls 
compensation.  When,  however,  we  come  to  analyze  this 
phrase,  we  shall  find  its  juridical  interpretation  a  very  re- 
stricted one.  Injury  resulting  from  the  acts  or  omissions 
of  others,  free  from  any  taint  of  fraud,  malice,  or  wilful 
wrong,  consists : — 

First.  Of  the  actual  pecuniary  loss  directly  sustained  ; 
as  the  amount  of  the  note  unpaid  ;  the  value  of  the  prop- 
erty paid  for,  but  not  delivered. 

Second.  Of  the  indirect  pecuniary  loss  sustained  in 
consequence  of  the  primary  loss  ;  the  profits  that  might 
have  been  made  if  the  contract  had  been  performed,  the 
derangement  and  disturbance  produced  by  the  failure  of 
others  to  comply  with  their  engagements,  and  the  conse- 
quent inability  of  those  who  depend  on  them  to  adhere 
to  their  own;  loss  of  credit ;  loss  of  business ;  insolvency. 

Third.  Of  the  physical  and  mental  suffering  pro- 
duced by  the  act  or  omission  in  question  ;  pain ;  vexa- 
tion ;  anxiety. 


48  COMPENSATION.  §  38. 

Fourth.  The  value  of  the  time  consumed  in  establish- 
ing the  contested  right  by  process  of  law,  if  suit  become 
necessary. 

Fifth,  The  actual  expenses  incurred  to  obtain  the  same 
end — costs  and  counsel  fees. 

To  these  one  further  element  is  to  be  added  in  those 
cases  where  the  aggressor  is  animated  by  a  fraudulent,  a 
malicious,  or  an  oppressive  intention,  and  that  is — 

Sixth.  T\\Q  sense  of  wrong  or  insult,  va.  the  sufferer's 
breast,  resulting  from  an  act  dictated  by  a  spirit  of  wilful 
injustice,  or  by  a  deliberate  intention  to  vex,  degrade,  or 
insult.  This  constitutes  the  difference,  and  the  only  dif- 
ference between  the  injury  produced  by  inability  and  that 
produced  by  design.  All  the  other  constituents  are  the 
same.  The  pecuniary  loss,  direct  and  indirect,  the  anxi- 
ety, the  time  and  expense,  are  the  same  whether  a  wrong 
be  done  through  the  honest  inability,  the  wilful  fraud,  or 
the  deliberate  malice  of  the  offending  party.  But  in  the 
two  latter  cases,  the  last  element  is  superadded  ;  a  sense 
of  wrong  or  insult  which  does  not  exist  in  the  former.' 

§  38.  Perfect  compensation  impossible. — All  the  items 
must,  therefore,  be  taken  into  the  account  in  any  effort  to 
make  complete  compensation,  in  the  ordinary  acceptation 
of  the  word.  But  we  shall  find  that  the  legal  meaning 
of  the  term  is  very  different.  In  fact,  unless  the  word  is 
used  in  a  technical  sense,  it  is  altogether  inaccurate  to 
speak  of  damages  as  always  resulting  in  compensation ; 

'  The  Scotch  law  is  the  only  one,  so  Adam  said,  "There  are,  first,  special 
far  as  we  are  aware,  which  has  endeav-  damages,  consisting  of  the  surgeon's  ac- 
ored  practically  to  analyze  the  elements  count,  and  the  person  being  kept  from 
of  injury.  By  the  jurisprudence  of  his  work.  Second,  the  solatium,  which 
Scotland,  in  actions  for  personal  torts,  is  peculiarly  within  the  province  of  the 
the  damages  are  divided  into  special  jury."  So  in  Cameron  v.  Cameron,  2 
damages,  the  actual  pecuniary  loss,  and  Murr.  232,  "  If  no  damages  are  proved, 
solatium,  solace,  or  recompense  for  the  you  cannot  find  them  ;  but  there  is  a 
wounded  feelings.  So  in  Forgie  v.  claim  for  solatium,  and  you  must  con- 
Henderson,  i  Murray  410,  in  assault  and  sider  what  evidence  there  is  of  the  in- 
battery,  the  Lord  Chief  Commissioner  jury  to  the  mind  and  feelings." 


§  38.  PERFECT   COMPENSATION    IMPOSSIBLE.  49 

and  whatever  restricted  meaning  this  term  may  be  sup- 
posed to  have  technically  acquired,  it  is  at  all  events 
entirely  incorrect  to  say  in  the  language  which  we  have 
above  seen  used  by  various  eminent  judges,  that  "the 
remedy  is  commensurate  to  the  injury."  This  language 
attributes  to  legal  relief  a  degree  of  perfection  which  it  is 
very  far  from  possessing.  "It  would  be  going  a  great 
way,"  said  Chief-Justice  Marshall,'  "to  subject  a  debtor, 
who  promises  to  pay  a  debt,  to  all  the  loss  consequent  on 
his  failure  to  fulfil  his  promise.  The  general  policy  of 
the  law  does  not  admit  of  such  strictness ;  and  although 
in  morals  a  man  may  justly  charge  himself  as  the  cause 
of  any  loss  occasioned  by  the  breach  of  his  engagement^ 
yet,  in  the  course  of  human  affairs,  such  breaches  are  sa 
often  occasioned  by  events  which  were  unforeseen,  and 
could  not  easily  be  prevented,  that  interest  is  generally 
considered  as  compensation  which  must  content  the  in- 
jured." "  It  has  been  contended,"  said  another  eminent 
judge,  "  that  the  true  measure  of  damages,  in  all  actions 
of  covenant,  is  the  loss  actually  sustained.  But  this  rule 
is  laid  down  too  generally.  In  an  action  of  covenant  for 
non-payment  of  money  on  a  bond  or  mortgage,  no  more 
than  the  principal  and  legal  interest  of  the  debt  can  be 
recovered,  although  the  plaintiff  may  have  suffered  to  a 
much  greater  amount  by  the  default  of  payment." '  And 
it  is  to  be  borne  in  mind,  that  the  same  deficiency  of 
compensation  exists  in  the  case  of  defendants  as  well  as 
plaintiffs.  If  the  party  who  receives  the  injury  is  obliged 
to  bear  his  proportion  of  the  loss — so,  on  the  other  hand, 
the  party  wrongfully  charged  recovers  his  costs  only,  and 
no  allowance  is  made  for  his  time,  indirect  loss,  annoy- 
ance, or  counsel  fees.      "  Every  defendant,"  says  Mr. 

'  Short  V.   Skipwith,  i  Brock.  103,        ^  Tilghman,    C.    J.,    in    Bender  v. 
114.  Fromberger,  4  Dall.  436,  444. 

Vol.  I.— 4 


So  COMPENSATION.  §  ^g. 

Broom,  "  against  whom  an  action  is  brought,  experiences 
some  injury  or  inconvenience  beyond  what  the  costs  will 
compensate  him  for." '  ** 

To  say  nothing  of  the  anxiety  and  pain  of  mind  which 
often  result  from  a  breach  of  contract,  and  which  the 
law  is  powerless  to  assuage,  all  lawyers  know  that  in 
most  cases  of  the  non-payment  of  money  when  due, 
where  the  creditor  has  no  means  of  replacing  it,  and  in- 
deed, in  a  large  proportion  of  all  lawsuits,  the  mere 
delay  in  obtaining  sucn  redress  as  can  be  had,  entails  on 
the  sufferer  consequential  damages  often  serious,  some- 
times ruinous,  for  which  there  is  no  legal  compensation. 
To  quote  the  language  of  an  article  •  entitled  "  The 
Rule  of  Damages  in  Actions  ex  delicto,"  published  in 
the  Law  Reporter  in  June,  1847,  "  I"  the  most  ordinary 
case  of  a  suit  on  a  note  of  hand,  the  damages  do  not 
amount  to  compensation.  Who  pays  the  counsel  fees  ? 
Who  pays  for  the  time  of  the  plaintiff  ?  Who  pays  for 
his  annoyance  and  vexation  ?  The  most  successful  law- 
suit is  too  often  a  Barmecide  feast." 

But  although  the  law  does  not  attempt  the  impossi- 
bility of  replacing  the  plaintiff  in  exactly  the  position  he 
was  in  before  the  injury,  yet  within  the  bounds  of  possi- 
bility its  aim  is  compensation. 

§  39.  The  injuries  for  which  compensation  is  given. — The 
injuries  for  which  the  common  law  affords  a  remedy,  and 
for  which,  therefore,  in  a  proper  case  it  gives  reparation 
by  way  of  damages,  are  all  comprised  in  the  following 
classes : 

Injuries  to  property. 

Physical  injuries. 

Mental  injuries. 

■  Broom's  Legal  Maxims,  igg;  Davies        '  Bjr  the  author. 
p.  Jenkins,  ii  M.  &  W.  745,  756. 


^§  40,  41.  FOR   PHYSICAL   PAIN. 


51 


Injuries  to  family  relations. 

Injuries  to  personal  liberty. 

Injuries  to  reputation. 
It  may  be  laid  down  as  a  general  rule  that  an  injury 
to  any  right  protected  by  the  common  law  will,  if  the 
direct  consequence  of  an  actionable  wrong,  be  a  subject 
for  compensation. 

§  40.  Compensation  for  injuries  to  property. — For  an  in- 
jury to  property  resulting  in  its  total  loss  compensation 
is  recoverable,  measured  by  the  value  of  the  property  at 
the  time  of  loss  :  the  principles  governing  the  admeasure- 
ment of  the  value  of  property  will  be  stated  in  a  later 
chapter.  For  an  injury  to  property  resulting  in  a 
permanent  diminution  of  value,  compensation  may  be 
recovered  for  such  diminution.  Other  forms  of  pecuni- 
ary loss  may  be  compensated  in  a  proper  case,  such  as  the 
loss  of  use  of  property,  the  loss  of  time,  etc.  AH  these 
questions  will  be  discussed  at  large  in  later  chapters. 

§  41.  For  physical  pain. — Physical  pain  is  always  re- 
garded as  a  subject  for  compensation,  this  compensation 
being    its    pecuniary   equivalent    as   measured    by  the 

(■)  Phillips  V.  Southwestern  Ry.  Co.,  4  Q.  B.  Div.  406 ;  Wade  v.  Leroy 
20  How.  34 ;  Beardsley  v.  Swann,  4  McLean  333  ;  Hanson  v.  Fowle,  i  Sawy. 
539 ;  Boyle  v.  Case,  9  Sawy.  386 ;  Paddock  v.  Atchison  T.  &  S.  F.  R.R.  Co., 
37  Fed.  Rep.  841 ;  Carpenter  v.  Mexican  N.  R.R.  Co.,  39  Fed.  Rep.  315  ; 
Campbell  v.  Pullman  P.  C,  Co.,  42  Fed.  Rep.  484;  South  &  N.  A.  R.R.  Co. 
V.  McLendon,  63  Ala.  266 ;  Ward  v.  Blackwood,  48  Ark.  396 ;  Cameron  v, 
VandegrifF,  13  S. W.  Rep.  1092  (Ark.);  Fairchild  v.  Cahfornia  S.  Co.,  13 
Cal.  599 ;  Masters  v.  Warren,  27  Conn.  293 ;  Lawrence  v.  Housatonic  R.R. 
Co.,  29  Conn.  390;  Larmon  v.  District,  16  D.  C.  (5  Mackey)  330;  Johnson 
V.  Baltimore  &  P.  R.R.  Co.,  17  D.  C.  (6  Mackey)  232 ;  Cooper  v.  MuUins,  30 
Ga.  146 ;  Atlanta  &  W.  P.  Ry.  Co.  v.  Johnson,  66  Ga.  259 ;  Pierce  v.  Millay, 
44  111.  189;  Indianapolis  &S.  L.  R.R.  Co.  v.  Stables,  62  111.  313;  Chicago  v. 
Jones,  66  111.  349 ;  Chicago  v.  Langlass,  66  111.  361 ;  Chicago  v.  Elzeman, 
71  111.  131 ;  Sheridan  v.  Hibbard,  119  111.  307;  Chicago  &  E.  R.R.  Co.  v. 


52  COMPENSATION.  §  42. 

Of   necessity  the   measurement   of  such   compensation 
must  be  left  entirely  to  the  jury. 

§42.  For  inconvenience. — Damages  will  not  be  given 
for  mere  inconvenience  and  annoyance,  such  as  are  felt 
at  every  disappointment  of  one's  expectations,  if  there  is 
no  actual  physical  or  mental  injury.  Thus  w^here  the  plain- 
tiff was  delayed  on  the  defendant's  railway,  and  was 
obliged  to  remain  overnight  in  a  place  distant  from  his 
destination,  it  was  held  that  he  could  recover  only  the 
cost  of  his  night's  lodging,  not  his  disappointment  and 
annoyance  on  account  of  the  delay. (*)  In  an  action  for 
breach  of  contract  to  give  a  lease  of  a  house,  the  fact  that 
the  plaintiff  is  not  so  conveniently  situated  in  the  house 
subsequently  procured  as  he  would  have  been  in  the 
house  the  defendant  agreed  to  lease  him,  has  been  held 


Holland,  122  111.  461 ;  Indianapolis  v.  Gaston,  58  Ind.  224;  Ohio  &  M.  Ry. 
Co.  z/.  Dickerson,  59  Ind.  317;  Huntington  z/.  Breen,  77  Ind.  29;  Muldowney 
V.  Illinois  C.  Ry.  Co.,  36  la.  462  ;  McKinley  v.  Chicago  &  N.  W.  Ry.  Co.,  44 
la.  314;  Reddin  v.  Gates,  52  la.  210;  Stafford  v.  Oskaloosa,  64  la.  251; 
Fleming  7/.  Shenandoah,  71  la.  456;  Tefft  w.  Wilcox,  6  Kas.  46;  Kansas  P. 
Ry.  Co.  V.  Pointer,  9  Kas.  620 ;  Missouri,  K.  &  T.  Ry.  Co.  v.  Weaver,  16 
Kas.  456;  Kentucky  C.  R.R.  Co.  v.  Ackley,  87  Ky.  278;  Rutherford  v. 
Shreveport  &  H.  R.R.  Co.,  41  La.  Ann.  793;  Verrill  v.  Minot,  31  Me.  299  ; 
Mason  v.  Ellsworth,  32  Me.  271 ;  McMahon  v.  Northern  C.  Ry.  Co.,  39  Md. 
438;  Hawes  v.  Knowles,  114  Mass.  518;  Ross  v.  Leggett,  6i  Mich.  445  ; 
Memphis  &  C.  R.R.  Co.  z/.  Whitfield,  44  Miss.  466;  Stephens  v.  Hannibal  & 
S.  J.  R.R.  Co.,  96  Mo.  207;  Ridenhour  -v.  Kansas  C.  C.  Ry.  Co.,  13  S.  W. 
Rep.  889  (Mo.)  ;  Steiner  v.  Moran,  2  Mo.  App.  47 ;  McMillan  v.  Union  P. 
B.  W.,  6  Mo.  App.  434 ;  Cohen  v.  Eureka  &  P.  R.R.  Co.,  14  Nev.  376 ;  Morse 
V.  Auburn  &  S.  R.R.  Co.,  10  Barb.  621 ;  Brignoli  v.  Chicago  &  G.  E.  Ry. 
Co.,  4  Daly  182 ;  Wallace  z/.  Western  N.  C.  R.R.  Co.,  104  N.  C.  442 ;  Oliver 
V.  Northern  P.  T.  Co.,  3  Ore.  84;  Pennsylvania  R.R.  Co.  v.  Allen,  53  Pa. 
276 ;  Pennsylvania  &  O.  C.  Co.  v.  Graham,  63  Pa.  290 ;  McLaughlin  v.  Cony, 
77  Pa.  109;  Scott  V.  Montgomery,  95  Pa.  444;  Lake  Shore  &  M.  S.  Ry.  Co, 
V.  Frantz,  127  Pa.  297;  Houston  &  T.  C.  Ry.  Co.  v.  Boehm,  57  Tex.  152  ; 
Giblin  v.  Mclntyre,  2  Utah  384;  Fulsome  v.  Concord,  46  Vt.  135;  Goodno 
V.  Oshkosh,  28  Wis.  300. 

(»)  Hamlin  v.  Great  Northern  Ry.  Co.,  i  H.  &  N.  408. 


§  42.  FOR   INCONVENIENCE.  53 

not  to  be  a  cause  of  damage  where  the  plaintiff  is  not 
shown  to  have  lost  money  by  the  inconvenience. (") 

But  inconvenience  amounting  to  physical  discomfort 
is  a  subject  of  compensation. (*")  "The  injury  must  be 
physical,  as  distinguished  from  one  purely  imaginative ; 
it  must  be  something  that  produces  real  discomfort  or 
annoyance  through  the  medium  of  the  senses,  not  from 
delicacy  of  taste  or  a  refined  fancy."  (")  It  must  be  "  such 
as  is  capable  of  being  stated  in  a  tangible  form,  and  as- 
sessed at  a  money  value."  (^) 

In  a  case  in  the  Supreme  Court  of  the  United  States 
the  defendant,  a  railroad  company,  had  built  a  round- 
house near  the  church  edifice  of  the  plaintiff,  and  inter- 
rupted the  church  services  by  noise,  smoke,  and  other 
discomforts.  Field,  J.,  said  :  "  The  plaintiff  was  entitled 
to  recover  because  of  the  inconvenience  and  discomfort 
caused  to  the  congregation  assembled,  thus  tending  to 
destroy  the  use  of  the  building  for  the  purposes  for  which 
it  was  erected  and  dedicated.  The  property  might  not 
be  depreciated  in  its  salable  or  market  value,  if  the  build- 
ing had  been  entirely  closed  for  those  purposes  by  the 
noise,  smoke,  and  odors  of  the  defendant's  shops.  It 
might  then,  perhaps,  have  brought  in  the  market  as  great 
a  price  to  be  used  for  some  other  purpose.  But,  as  the 
Court  below  very  properly  said  to  the  jury,  the  congre- 


(«)  Hunt  V.  D'Orval,  Dudley  180. 

O")  Chicago  &  A.  R.R.  Co.  v.  Flagg,  43  111.  364;  Southern  K.  Ry.  Co.  v. 
Rice,  38  Kas.  398;  Emery  v.  Lowell,  109  IMass.  197;  Ross  v.  Leggett,  61 
Mich.  445  ;  Luse  v.  Jones.  39  N.  J.  L.  707  ;  Ives  v.  Humphreys,  i  E.  D.  Smith 
196;  Scott  V.  Montgomery,  95  Pa.  444.  But  in  Vi^alsh  v.  Chicago,  M.  &  S. 
P.  Ry.  Co.,  42  Wis.  23,  the  court  refused  to  allow  damages  for  the  annoyance 
of  being  kept  out  late  at  night,  though  physical  discomfort  existed. 

C)  Bird,  V.  C,  in  Westcott  v.  Middleton,  43  N.  J.  Eq.  478,  486 ;  affirmed 
44  N.  J.  Eq.  297. 

('•)  Baltimore  &  O.  R.R.  Co.  v.  Carr,  71  Md.  135. 


54  COMPENSATION.  §  42. 

gation  had  the  same  right  to  the  comfortable  enjoyment 
of  its  house  for  church  purposes  that  a  private  gentleman 
has  to  the  comfortable  enjoyment  of  his  own  house,  and 
it  is  the  discomfort  and  annoyance  in  its  use  for  those 
purposes  which  is  the  primary  consideration  in  allowing 
damages.  As  with  a  blow  on  the  face,  there  may  be  no 
arithmetical  rule  for  the  estimate  of  damages.  There  is, 
however,  an  injury  the  extent  of  which  the  jury  may 
measure."  C) 

So  where  a  railroad  track  was  wrongfully  laid  along 
the  rear  of  the  plaintiff's  land,  it  was  held  that  he  might 
recover  compensation  for  the  loss  and  inconvenience  in 
the  prosecution  of  his  business. C') 

In  Hobbs  v.  London  &  S.  W.  Ry.  Co-.^)  the  plain- 
tiff,  a  passenger  on  the  defendant's  railway,  was  set  down 
at  the  wrong  station,  and  a  verdict  of  ;^8  for  inconvenir 
ence  suffered  by  having  to  walk  home  was  sustained  on 
appeal.  Cockburn,  C.  J.,  said  that  Hamlin  v.  Great 
Northern  Ry.  Co.C*)  did  not,  as  was  contended  for  by 
the  defendants,  decide  that  personal  inconvenience  could 
not  be  taken  into  account  as  a  subject-matter  of  damage 
on  a  breach  of  contract.  Blackburn,  J.,  cited  Burton  v. 
Pinkerton(^)  as  an  authority  to  the  effect  that  a  recovery 
can  be  had  for  inconvenience.  Mellor  and  Parry,  JJ., 
distinguished  the  inconvenience  appearing  in  this  case, 
calling  it  physical  inconvenience,  which  they  said  could 
be  estimated  in  damages,  from  annoyance,  loss  of  tem- 
per, vexation,  disappointment,  which  they  thought  could 
not  be. 

Where  the  plaintiff,  a  woman,  was  carried  beyond  her 
station   by  the  defendant's  fault,  it  was  held  that  she 


(')  B.  &  P.  Ry.  Co.  V.  Fifth  Baptist  Church,  108  U.  S.  317,  335. 

(»)  Hatfield  v.  C.  R.R.  Co.,  33  N.  J.  L.  251.  («)  L.  R.  10  Q.  B.  in. 

C)  1  H.  &  N.  408.  C)  L.  R.  2  Ex.  340. 


^  43.  FOR   MENTAL   INJURIES.  55 

might  recover  compensation  for  the  discomforts  of  a 
long  walk  over  a  dusty  road  in  a  hot  day,  in  the  course 
of  which  she  had  to  wade  across  creeks  and  pass  at  night- 
fall through  a  piece  of  dark  woods.  (") 

In  most  cases  of  contract,  there  is  no  specific  recovery 
for  inconvenience,  which  may  be  regarded  as  merged  in 
the  pecuniary  injury.  In  some  cases  it  has  been  suggested 
that  personal  inconvenience  which  is  the  direct  conse- 
quence of  tort  would  be  an  item  of  compensation  in  such 
action,  but  that  if  an  action  for  the  same  injury  were  in 
form  an  action  of  contract,  the  inconvenience,  not  being 
contemplated  at  the  time  the  contract  was  entered  into, 
could  not  be  considered  in  estimating  damages.  ('')  This 
is  a  question  which  will  be  discussed  in  connection  with 
the  subject  of  natural  consequences. 

§  43.  For  mental  injuries — Early  misconception  of  rule. — 
It  has  frequently  been  made  a  question  whether  mental 
suffering,  as  distinct  from  physical  suffering,  is  ever  a 
subject  for  compensation.  The  importance  of  the  ques- 
tion, and  the  more  or  less  doubtful  state  of  the  law,  call 
for  a  careful  discussion. 

It  was  early  settled  that  substantial  damages  might  be 
recovered  in  a  class  of  torts  where  the  only  injury  suf- 
fered is  mental,  namely,  in  cases  of  assault  without  phys- 
ical contact. (")  Moreover,  in  actions  for  false  impris- 
onment where  the  plaintiff  was  not  touched  by  the 
defendant   sabstantial   darriages   have    been    recovered. 


(")  Cincinnati  H.  &  I.  R.R.  Co.  v.  Eaton,  94  Ind.  474;  ace.  Triggs  v.  St. 
L.,  K.  C.  &  N.  Ry.  Co.,  74  Mo.  147. 

C)  Cincinnati  H.  &  I.  R.R.  Co.  v.  Eaton,  94  Ind.  474 ;  Murdock  v.  B.  & 
A.  R.R.  Co.,  133  Mass.  15 ;  Brown  v.  C.  M.  &  St.  P.  Ry.  Co.,  54- Wis.  342. 

C)  I.  de  S.  V.  W^.  de  S.,  Y.  B.  Lib.  Ass,  fol.  99,  pi.  60 ;  s.  C  Ames,  Cds. 
on  Torts  i  ;  Mortin  v.  Shoppee,  3  C.  &  P.  373 ;  Goddard  v.  G.  T.  Ry.  Co., 
57  Me.  202  ;  Handy  v.  Johnson,  5  Md.  450;  Beach  v.  Hancock,  27  N.  H. 
223  ;  Alexander  v.  Blodgett,  44  Vt.  476. 


56  COMPENSATION.  §  44. 

though  physically  the  plaintiff  did  not  suffer  any  actual 
detriment.  (")  But  when  the  question  of  allowing  dam- 
ages for  mental  pain  came  directly  before  the  courts, 
these  cases  seem  to  have  been  entirely  lost  sight  of,  and 
it  was  .assumed  that  mental  anguish  is  not  generally  a 
subject  for  compensation. 

This  opinion  apparently  arose  from  a  misconception 
of  Lord  Wensleydale's  meaning  in  the  case  of  Lynch  v. 
Knight  C"),  where  he  said  :  "  Mental  pain  or  anxiety  the 
law  cannot  value,  and  does  not  pretend  to  redress,  when 
the  unlawful  act  complained  of  causes  that  alone:  though 
where  a  material  damage  occurs,  and  is  connected  with 
it,  it  is  impossible  a  jury,  in  estimating  it,  should  alto- 
gether overlook  the  feelings  of  the  party  interested." 
Taking  this  language  in  connection  with  the  facts  of  the 
case,  the  meaning  is  clear.  The  case  was  an  action  of 
slander,  brought  for  an  imputation  on  the  plaintiff's 
chastity ;  and  the  decision  was  that  such  an  imputation 
was  not  actionable  without  special  damage,  and  that 
J  mental  pain  alone  is  not  such  special  damage.  No  ques- 
tion of  the  measure  of  damage  was  under  consideration, 
and  the  opinion  is  no  authority  for  the  proposition  that 
mental  suffering  which  is  the  result  of  an  actionable 
wrong  is  not  in  any  case  a  proper  subject  for  compensation. 

§  44.  In  actions  of  tort. — Mental  suffering  as  a  distinct 
element  of  damage  in  addition  to  bodily  suffering  has 
been  held  not  to  be  a  subject  for  compensation.  (°)    Other 


(•)  Wood  V.  Lane,  6  C.  &  P.  774 ;  Peters  v.  Stanway,  6  C.  &  P.  737 ; 
Grainger  w.  Hill,  4  Bing.  N.  C.  212;  Fotheringham  v.  Adams  Ex.  Co.,  36 
Fed.  Rep.  252  ;  Courtoy  v.  Dozier,  20  Ga.  369;  Hawk  v.  Ridgway,  33  111. 
473;  Gold  V.  Bissell,  i  Wend.  210  ;  Mead  v.  Young,  2  Dev.  &  Bat.  521. 

C)  9  H.  L.  C.  577.  598. 

C)  Joch  V.  Dankwardt,  85  111.  331  ;  Salinas.  Trosper,  27  Kas.  544;  John- 
son V.  Wells,  6  Nev.  224. 


§  44-  IN    ACTIONS   OF   TORT.  57 

cases,  however,  have  allowed  recovery.  (')  There  would 
be  great  difficulty  in  upholding  a  rule  refusing  recovery. 
The  result  of  it  would  seem  to  be  that  if  A  sees  B  lying 
in  the  street,  and  threatens  him  with  a  club,  he  is  liable 
in  an  action  of  assault  for  the  fright  caused ;  but  if  A 
sees  B  standing,  and  first  knocks  him  down  and  then 
threatens  him,  he  is  not  liable  for  the  fright,  for  it  is 
"  mental  suflfering  as  a  distinct  element  of  damage  in  ad- 
dition to  bodily  suflfering."  It  is,  however,  often  true  in 
this  sort  of  case,  that  the  suflfering  is  not  the  direct  result 
of  the  injury,  and  is  not  a  subject  of  compensation  for 
that  reason.  So  where  a  physical  injury  results  directly 
in  a  miscarriage,  physical  or  mental  suflfering  attending 
the  miscarriage  is  a  proper  subject  of  compensation  ;  but 
grief  for  loss  of  the  child  cannot  be  considered,  because 
it  is  too  remote  a  result  of  the  injury. C*)  So  where  a 
man  brings  an  action  for  personal  injuries  by  being 
thrown  from  a  carriage,  his  anxiety  for  the  safety  of 
others  who  were  driving  with  him  is  too  remote  a  result 
of  the  injury  for  compensation.^)  This  distinction 
seems  to  be  recognized  in  Illinois,  one  of  the  jurisdictions 
where  the  supposed  rule  above  stated  has  been  laid  down. 
In  Chicago  v.  McLean  C*)  it  was  held  that  the  mental 
suflfering  which  is  inseparable  from  the  bodily  injury  can 
be  recovered  for,  without  allegation  of  special  damage. 
The  Court  added  :  "  Any  mental  anguish  which  may  not 
have  been  connected  with  the  bodily  injury,  but  caused 


(•)  Lunsford  v.  Dietrich,  86  Ala.  250 ;  Pittsburgh  C.  &  St.  L.  Ry.  Co.  v. 
Sponier,  85  Ind.  165  ;  Moyer  v.  Gordon,  113  Ind.  282  ;  Parkhurst  v.  MasteU 
ler,  57  la.  474 ;  Shepard  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  77  la.  54  ;  Por- 
ter V.  H.  &  St.  J.  Ry.  Co.,  71  Mo.  66. 

C)  Bovee  v.  Danville.  53  Vt.  183 ;  W.  U.  Tel.  Co.  v.  Cooper,  71  Tex, 
507. 

(0  Keyes  v.  M.  &  St.  L.  Ry.  Co.,  36  Minn.  290. 

(■>)  8  Lawyers'  Reports  765 ;  24  N.  E.  Rep.  527. 


'58  COMPENSATION.  §  45. 

by  some  conception  arising  from  a  different  source"  could 
not  be  taken  into  consideration. 

In  other  cases  whicii  are  often  cited  in  connection  with 
this  rule,  the  defendant's  negligence,  for  which  action 
was  brought,  infringed  no  right  of  the  plaintiff's,  and 
therefore  gave  no  right  of  action  to  the  plaintiff,  though 
as  a  matter  of  fact  it  frightened  him.C)  I'hese  cases  are 
entirely  analogous  to  Lynch  v.  Knight. (*") 

Mental  suffering  resulting  from  an  injury  to  property 
has  been  held  not  to  be  a  subject  for  compensation. (°) 
But  where  mental  pain  was  the  natural  and  proximate 
result  of  the  injury,  compensation  has  been  allowed  for 
it.  Thus  where  the  defendant  entered  the  plaintiff's  land 
and  removed  the  dead  body  of  his  child,  it  was  held  that 
the  plaintiff  might  recover  compensation  for  the  mental 
anguish  caused  thereby. (*)  Where  the  plaintiff  and  his 
family  were  wrongfully  turned  out  of  their  house,  it  was 
held  that  he  could  recover  compensation  for  his  sense  of 
shame  and  humiliation,(^)  And  where  the  defendant 
maliciously  injured  the  plaintiff's  horse,  it  was  held  that 
the  plaintiff  might  recover  compensation  for  his  wounded 
feelings.  (') 

§  45.  In  actions  of  contract. — Mental  suffering  result- 
ing from  breach  of  contract  has  been  held  not  to  be  a 
subject  for  compensation,  (s) 

Undoubtedly  in  most  cases  of  contract,  where  the 
basis  of  the  agreement  involves  the  delivery  of  articles 


(•)  Wyman  v.  Leavitt,  71  Me.  227 ;  Canning  v.  Williamstown,  i  Cush.  45  r. 

C)  9  H.  L.  C.  577,  supra. 

(")  Smith  V.  Grant,  56  Me.  255. 

C)  Meagher  v.  Driscoll,  99  Mass.  281. 

(')  Moyer  v.  Gordon,  113  Ind.  282. 

(0  Kimball  v.  Holmes,  60  N.  H.  163. 

(e)  Russell  V.  W.  U.  Tel.  Co.,  3  Dak.  31s. 


§  45-  IN   ACTIONS   OF    CONTRACT.  59 

or  the  rendering  of  services  having  a  recognized  pecu- 
niary value,  or  the  payment  of  money,  that  is,  in  the 
great  body  of  cases  of  contract,  the  question  of  mental 
suffering  is  excluded.  This  is  very  likely  a  consequence 
of  those  general  rules  governing  the  allowance  of  dam- 
ages, to  be  discussed  hereafter,  that  damages  must  be 
certain,  and  not  remote,  and  must  represent  the  natural 
and  probable  consequences  of  the  act  complained  of. 
From  the  fact  that  this  is  the  general  rule,  the  conse- 
quence has  been  deduced  that  there  is  something  in  the 
nature  of  an  action  of  contract  which  makes  it  impossi- 
ble that  the  plaintiff  should  recover  damages  for  injury  to 
feehngs.  It  has  been  necessary  to  recognize  a  supposed 
exception  to  the  universality  of  the  rule  in  cases  of 
breach  of  promise  of  marriage,  where  damages  for 
mental  suffering  are  allowed,  (")  though  it  is  hard  to  see 
any  distinction,  except  that  mental  suffering  is  usually 
the  natural  and  proximate  result  of  a  breach  of  that  con- 
tract, while  it  is  usually  not  the  natural  and  proximate 
result  of  a  breach  of  an  ordinary  contract. 

But  in  other  cases  of  breach  of  contract  damages  for 
mental  pain  are  now  allowed.  Thus  in  an  English  case, 
where  a  passenger  was  wrongfully  put  off  a  vessel  in  an 
insulting  manner,  it  was  held  that  this  might  be  shown 
to  aggravate  the  damages,  though  the  action  was  con- 
tract-C)  Parke,  B.  said  :  "Surely  it  would  make  a  most 
material  difference  if  the  contract  were  broken  because 
it  would  be  inconvenient  to  carry  him  to  his  journey's 
end,  and  if  he  were  turned  out  under  circumstances  of 
aggravation."  

C)  Collins  V.  Mack,  31  Ark.  684;  Tobin  v.  Shaw  45  Me.  331 ;  Coolidge  v. 
Neat,  129  Mass.  146;  Vanderpool  v.  Richardson,  52  Mich.  336;  Wilburs. 
Johnson,  58  Mo.  600 ;  Southard  v.  Rexford,  6  Cow.  254 ;  Wells  v.  Padgett, 
8  Barb.  323 ;  Allen  v.  Baker,  86  N.  C.  91. 

C)  Coppin  V.  Braithwaite,  8  Jur.  875. 


6o  COMPENSATION.  §  45. 

When  a  telegraph  company  contracts  to  deliver  a  mes- 
sage, and  has  notice  that  failure  to  deliver  it  will  cause 
mental  pain,  it  is  now  generally  held  that  in  an  action 
against  it  for  failure  to  deliver  the  message,  the 
plaintiff  may  recover  compensation  for  his  mental  pain.C) 
In  Chapman  v.  Western  U.  T.  Co,,('')  Holt,  J.,  said : 
"  Many  of  the  text-writers  say  that  a  person  cannot  re- 
cover damages  for  mental  anguish  alone,  and  that  he  can 
recover  such  damages  only  where  he  is  entitled  to  recover 
some  damages  upon  some  other  ground.  It  will  gener- 
ally be  found,  however,  that  they  are  speaking  of  cases 
of  personal  injury.  If  a  telegraph  company  undertakes 
to  send  a  message,  and  it  fails  to  use  ordinary  diligence 
in  doing  so,  it  is  certainly  liable  for  some  damage.  It 
has  violated  its  contract,  and,  whenever  a  party  does  so, 
he  is  liable  at  least  to  some  extent.  Every  infraction  of 
a  legal  right  causes  injury  in  contemplation  of  law.  The 
party  being  entitled,  in  such  a  case,  to  recover  something, 
why  should  not  an  injury  to  the  feelings,  which  is  often 
more  injurious  than  a  physical  one,  enter  into  the  esti- 
mate ?  Why,  being  entitled  to  some  damage  by  reason 
of  the  other  party's  wrongful  act,  should  not  the  com- 
plaining party  recover  all  the  damage  arising  from  it  ? 
It  seems  to  us  that  no  sound  reason  can  be  given  to  the 
contrary.  The  business  of  telegraphing,  while  yet  in  its 
infancy,  is  already  of  wonderful  extent  and  importance 
to  the  public.     It  is  growing,  and  the  end  cannot  yet  be 

(')  Beasley  v.  Western  U.  T.  Co.,  39  Fed.  Rep.  181 ;  Reese  v.  Western 
U.  T.  Co.,  123  Ind.  294 ;  Chapman  v.  Western  U.  T.  Co.,  13  S.  W.  Rep.  880 
(Ky.) ;  Young  v.  Western  U.  T.  Co.,  1 1  S.  E.  Rep.  1044  (N.  C.)  ;  Wads- 
worth  V.  Western  U.  T.  Co.,  86  Tenn.  695 ;  So  Relle  v.  Western  U.  T.  Co., 
S5  Tex.  308  ;  Stuart  v.  Western  U.  T.  Co.,  66  Tex.  580,  explaining  Gulf  C. 
&  S.  F.  Ry.  Co.  V.  Levy,  59  Tex.  563 ;  Western  U.  T.  Co.  v.  Cooper,  71  Tex. 
507.  But  contra,  Russell  v.  Western  U.  T.  Co.,  3  Dak.  315  ;  West  v.  Tel. 
Co.,  39  Kas.  93. 

C)  13  S.  W.  Rep.  880  (Ky.). 


§  45'  IN   ACTIONS    OF   CONTRACT.  6 1 

seen.  A  telegraph  company  is  a  quasi  public  agent,  and 
as  such  it  should  exercise  the  extraordinary  privileges  ac- 
corded to  it  with  diligence  to  the  public.  If,  in  matters 
of  mere  trade,  it  negligently  fails  to  do  its  duty,  it  is 
responsible  for  all  the  natural  and  proximate  damage. 
Is  it  to  be  said  or  held  that,  as  to  matters  of  far  greater 
interest  to  a  person,  it  shall  not  be,  because  feelings  or 
affections  only  are  involved  ?  If  it  negligently  fails  to 
deliver  a  message  which  closes  a  trade  for  $ioo,  or  even 
less,  it  is  responsible  for  the  damage.  It  is  said,  how- 
ever, that  if  it  is  guilty  of  like  fault  as  to  a  message  to 
the  husband  that  the  wife  is  dying,  or  to  the  father  that 
his  son  is  dead,  and  will  be  buried  at  a  certain  time,  there 
is  no  responsibility  save  that  which  is  nominal.  Such  a 
rule,  at  first  blush,  merits  disapproval.  It  would  sanc- 
tion the  company  in  wrong-doing.  It  would  hold  it  re- 
sponsible in  matters  of  the  least  importance,  and  suffer 
it  to  violate  its  contracts  with  impunity  as  to  the  greater. 
It  seems  to  us  that  both  reason  and  public  policy  re- 
quire that  it  should  answer  for  all  injury  resulting  from 
its  negligence,  whether  it  be  to  the  feelings  or  the 
purse,  subject  only  to  the  rule  that  it  must  be  the  direct 
and  proximate  consequence  of  the  act.  The  injury  to 
the  feelings  should  be  regarded  as  a  part  of  the  actual 

damage,  and  the  jury  be  allowed  to  consider  it 

Whether  the  injury  be  to  the  feelings  or  pecuniary,  the 
act  of  the  violator  of  a  right  secured  by  contract  has 
caused  it.  The  source  is  the  same,  and  the  violator 
should  answer  for  all  the  proximate  damages." 

The  Supreme  Court  of  Tennessee  lays  down  the  rule  : 
"  Where  other  than  pecuniary  benefits  are  contracted  for, 
other  than  pecuniary  standards  will  be  applied  to  the 
ascertainment  of  damages  flowing  from  the  breach."  (^) 

(»)  Wadsworth  v.  Western  U.  T.  Co.,  86  Tenn.  695,  703. 


62  COMPENSATION.  §  45. 

These  cases  were  followed,  and  the  rule  laid  down  in 
Wadsworth  v.  Telegraph  Co.,  approved  in  a  recent  case 
in  Indiana.  C)  The  defendant,  an  undertaker,  agreed  to 
keep  the  body  of  the  plaintiff's  daughter  in  a  vault  till 
the  plaintiff  should  be  ready  to  inter  it.  Instead  of 
doing  so,  he  allowed  a  third  party  to  inter  the  body.  It 
was  held  that  the  plaintiff  could  recover  compensation 
for  his  mental  anguish.  Coffey,  J.,  said:  "The  case  is 
analogous  in  principle  to  the  case  of  Reese  v.  Telegraph 
Co.C")  In  that  case  it  was  held  that  the  telegraph  com- 
pany was  liable  for  the  mental  anguish  occasioned  by  its 
failure  to  deliver  a  message  in  case  of  extreme  illness. 
The  doctrine  announced  in  that  case  is  fully  supported. 
The  cases  rest  upon  the  reasonable  doctrine  that  where  a 
person  contracts,  upon  a  sufficient  consideration,  to  do  a 
particular  thing,  the  failure  to  do  which  may  result  in 
anguish  and  distress  of  mind  on  the  part  of  the  other 
contracting  party,  he  is  presumed  to  have  contracted 
with  reference  to  the  payment  of  damages  of  that  character 
in  the  event  such  damages  accrue  by  reason  of  a  breach 

of  the  contract  on  his  part When  the  appellants 

contracted  with  the  appellees  to  safely  keep  the  body  of 
their  daughter  until  such  time  as  they  should  desire  to 
inter  the  same,  they  did  so  with  a  knowledge  of  the  fact 
that  a  failure  on  their  part  to  comply  with  the  terms  of 
such  contract  would  result  in  injury  to  the  feelings  of 
the  appellees,  and  they  must,  therefore,  be  held  to  have 
contracted  with  reference  to  damages  of  that  character, 
in  the  event  of  a  breach  of  the  contract  on  their  part." 

In  many  cases,  if  mental  suffering  cannot  be  compen- 
sated, only  nominal  damages  can  be  recovered  for  a  total 
breach  of  contract.     For  instance,  if  a  defendant  con- 


(»)  Renihan  v.  W^right,  25  N.  E.  Rep.  822  (Ind.). 
O  123  Ind.  294. 


§  46.  DIFFICULTY  OF  ESTIMATING  IN  MONEY.  6 


J 


tracts  not  to  disturb  the  plaintiff,  ill  with  nervous  pros- 
tration, by  making  a  noise,  either  the  court  must  allow 
compensation  for  mental  suffering  upon  breach  or  else 
only  nominal  damages  can  ever  be  recovered  on  the  con- 
tract. If  the  latter  is  the  true  rule,  such  a  contract  can 
never  be  enforced. 

§  46.  Difficulty  of  estimating  in  moneyno  objection. — The 
chief  objection  urged  against  the  allowance  of  compen- 
sation for  mental  suffering  is  that  it  is  not  capable  of 
being  estimated  in  money ;  but  that  argument  might  as 
well  be  urged  against  awarding  damages  for  physical  pain. 
"  Wounding  a  man's  feelings,"  said  Beckley,  C.  ).,(")  "  is 
as  much  actual  damage  as  breaking  his  limbs.  The  dif- 
ference is,  that  one  is  internal  and  the  other  external ;  one 
mental,  the  other  physical ;  in  either  case  the  damage  is 
not  measurable  with  exactness.  There  can  be  a  closer 
approximation  in  estimating  the  damage  to  a  limb  than 
to  the  feelings,  but  at  the  last  the  amount  is  indefinite." 
"  That  the  amount  of  damages  allowable  in  such  a  case 
as  this  IS  not  capable  of  easy  and  accurate  mathematical 
computation  is  freely  conceded ;  but  that  should  not  be 
a  sufficient  reason  for  refusing  or  defeating  the  right  of 
action  altogether ;  for  the  same  objection  may  be  urged 
with  the  same  force  in  all  cases  where  mental  and  bodily 
suffering  are  treated  as  proper  elements  of  damage."  C") 

The  Supreme  Court  of  Massachusetts,  in  a  carefully 
reasoned  opinion,  has  effectually  disposed  of  the  objec- 
tion. The  plaintiff  claimed  compensation  for  diminution 
of  mental  capacity  caused  by  the  injury.  The  court 
said :(") 

"  In  all  actions  of  this  description,  and  particularly  in 

(»)  Head  v.  G.  P.  Ry.  Co.,  79  Ga.  358,  360. 

Q)  Caldwell,  J.,  in  Wadsworth  v.  W.  U.  Tel.  Co.,  86  Tenn.  695,  711. 

C)  Ballou  V,  Farnum,  1 1  All.  73,  77,  per  Colt,  J. 


64  COMPENSATION.  §  46. 

those  in  which  damages  for  mental  suffering  or  loss  of 
mental  capacity  are  sought  to  be  recovered,  the  difficulty 
of  furnishing  by  evidence  the  means  of  measuring  the 
extent  of  the  injury,  so  that  the  jury  may  be  able  to 
award  with  any  certainty  a  pecuniary  equivalent  there- 
for, is  at  once  apparent ;  and  in  this  difficulty  the  defend- 
ants find  argument  for  the  support  of  their  objection. 
But  the  answer  is,  that  the  law  does  not  refuse  to  take 
notice  of  such  injur)'-  on  account  of  the  difficulty  of  as- 
certaining its  degree.  In  a  variety  of  actions  founded  on 
personal  torts,  and  in  many  where  no  positive  bodily 
harm  has  been  inflicted,  the  plaintiff  is  permitted  to  re- 
cover for  injury  to  the  feelings  and  affections,  for  mental 
anxiety,  personal  insult,  and  that  wounded  sensibility 
which  follows  the  invasion  of  a  large  class  of  personal 
rights.  The  impossibility,  in  all  such  cases,  of  precisely 
appreciating  in  money  mental  suffering  of  this  descrip- 
tion is  certainly  as  great  as  is  suggested  where  the  ques- 
tion is  what  shall  be  allowed  for  a  permanent  injury  to 
mental  capacity.  The  compensation  for  personal  injury 
occasioned  by  the  negligence  or  misconduct  of' others, 
which  the  law  promises,  is  indemnity,  so  far  as  it  may 
be  afforded  in  money,  for  the  loss  and  damage  which  the 
man  has  suffered  as  a  man.  Some  of  its  elements  may 
be  bodily  pain,  mutilation,  loss  of  time,  and  outlay  of 
money  ;  but  of  more  important  consideration  oftentimes 
is  the  mental  suffering  and  loss  of  capacity  which  ensues. 
Of  these  several  items  of  injury,  if  compensation  is  to  be 
confined  to  those  capable  of  accurate  estimate  it  will  in- 
clude but  a  small  part,  and  must  exclude  all  those  injuries 
commonly  regarded  as  purely  physical ;  for  the  difficulty 
in  ascertaining  a  pecuniary  equivalent  for  the  last  named 
is  precisely  the  same  and  quite  as  great  as  any  that  have 
been  suggested.     In  fact,  it  will  be  found  impossible  to 


§  47-        KINDS    OF   MENTAL   INJURY   COMPENSATED.  65 

fix  a  limit  to  injuries  of  a  physical  nature  so  as  to  exclude 
from  consideration  their  effect  on  the  mental  organization 
of  the  sufferer.  The  intimate  union  of  the  mental  and 
physical,  the  mutual  dependence  of  each  organization — 
if,  indeed,  for  any  practical  purpose  in  this  regard,  they 
can  be  considered  as  distinct — the  direct  and  mysterious 
sympathy  that  exists  whenever  the  sound  and  healthy 
condition  of  either  is  disturbed,  render  useless  any  at- 
tempt to  separate  them  for  the  purpose  indicated." 

§  47.  Kinds  of  mental  injury  compensated. — It  remains  to 
consider  the  various  kinds  of  mental  suffering  for  which 
compensation  has  been  awarded.  It  must  be  more  than 
mere  vexation  or  loss  of  temper  for  being  disappointed 
-in  a  particular  thing  on  which  the  mind  was  set.  "  For 
mere  inconveniences,  such  as  annoyance  and  loss  of  tem- 
per or  vexation,  or  for  being  disappointed  in  a  particular 
thing  which  you  have  set  your  mind  upon,  without  real 
physical  inconvenience  resulting,  you  cannot  recover 
damages.     That  is  purely  sentimental."(*) 

In  "Hamlin  v.  G.  N.  Ry.  Co.,(^)  Lord  Chief  Baron 
Pollock  pointed  out  that  in  actions  founded  on  a  promise 
of  marriage  or  on  a  tort,  a  plaintiff  could  recover  for  in- 
jury to  his  feelings,  but,  he  continued,  "  In  actions  for 
breaches  of  contract  the  damages  must  be  such  as  are 

capable  of  being  appreciated  or  estimated It  may 

be  laid  down  as  a  rule,  that  generally  in  actions  upon 
contracts  no  damages  can  be  given  which  cannot  be 
stated  specifically,  and  that  the  plaintiff  is  entitled  to  re- 
cover whatever  damages  naturally  result  from  the  breach 
of  contract,  but  not  damages  for  the  disappointment  of 
mind  occasioned  by  the  breach." 

(»)  Mellor,  J.,  in  Hobbs  v.  L.  &  S.  W.  Ry.  Co.,  L.  R.  10  Q.  B.  iii  ;  ace. 
Walsh  V.  C,  M.  &  St.  P.  Ry.  Co.,  43  W^is.  23. 

C)  I  H.  &N.  408,  411. 
VOL.  I.— S 


66  COMPENSATION.  §  47. 

1.  Loss  of  mental  capacity  is  a  proper  subject  of  com- 
pensation. (") 

2.  Mental  suffering  accompanying  physical  pain  is  a 
subject  of  compensation. C")  It  is  difficult  in  most  cases 
to  distinguish  the  mental  from  the  physical  pain,  but 
compensation  may  be  recovered  for  both. 

(")  Ballou  V.  Famum,  ii  All.  73  ;  Wallace  i/.  Western  N.  C.  R.R.  Co.,  104 
N.  C.  442. 

("■)  Phillips  V.  London  &  Southwestern  Ry.  Co.,  4  Q.  B.  Div.  406 ;  Wade  v. 
Leroy,  20  How.  34;  Mclntyre  v.  Giblin,  131  U.  S.  clxxiv  ;  Hanson  7/.  Fowle,  i 
Sawy.  539 ;  Boyle  v.  Case,  9  Sawy.  386  ;  Carpenter  v.  Mexican  N.  R.R.  Co., 
39  Fed.  Rep.  315  ;  South  &  N.  A.  R.R.  Co.  v.  McLendon,  63  Ala.  266 ;  Fair, 
child  V.  California  S.  Co.,  13  Cal.  599;  Jones  v.  The  Cortes,  17  Cal.  487  ; 
Malone  v.  Hawley,  46  Cal.  409 ;  Wall  v.  Cameron,  6  Col.  275  ;  Seger  v.  Bark- 
hamsted,  22  Conn.  290 ;  Masters  v.  Warren,  27  Conn.  293  ;  Lawrence  v. 
HousatonicR.R.  Co.,29Conn.39o;  Larmon  v.  District,  16  D.  C.  (5  Mackey) 
330;  Cooper  V.  MuUins,  30  Ga.  146;  Smith  v.  Overby,  30  Ga.  241  ;  City  &  S. 
Ry.  Co.  V.  Findley,  76  Ga.  311 ;  Pierce  v.  Millay,  44  111.  189  ;  Indianapolis  & 
S.  L.  R.R.  Co.  V.  Stables,  62  111.  313;  Chicago  v.  Jones,  66  111.  349;  Chicago 
V.  Langlass,  66  111.  361  ;  Chicago  v.  Elzeman,  71  III.  131 ;  Sorgenfrei  v. 
Schroeder,  75  111.  397;  Hannibal  &  S.  J.  R.R.  Co.  v.  Martin,  in  111.  219; 
Sheridan  v.  Hibbard,  119  111.  307;  Taber  v.  Hutson,  5  Ind.  322  ;  Nossaman 
V.  Rickert,  18  Ind.  350;  Wright  v.  Compton,  53  Ind.  337;  Indianapolis  v. 
Ga.ston,  58  Ind.  224 ;  Muldowney  v.  Illinois  C.  Ry.  Co.,  36  la.  462  ;  McKin- 
ley  7/.  Chicago  &  N.  W.  Ry.  Co.,  44  la.  314;  Ferguson  v.  Davis  Co.,  57  la. 
601;  Gronan  v.  Kukkuck,  59  la.  iS;  Stafford  v.  Oskaloosa,  64  la.  251; 
Kendall  v.  Albia,  73  la.  241  ;  Tefft  v.  Wilcox,  6  Kas.  46  ;  Kansas  P.  Ry.tZo. 
V.  Pointer,  9  Kas.  620;  Missouri  K.  &  T.  Ry.  Co.  v.  Weaver,  16  Kas.  456; 
Alexander  v.  Humber,  86  Ky.  565 ;  Kentucky  C.  R.R.  Co.  v.  Ackley,  87  Ky. 
278  ;  Stockton  v.  Frey,  4  Gill  406 ;  McMahon  v.  Northern  C.  Ry.  Co.,  39 
Md.  438 ;  Tyler  v.  Pomeroy,  8  All.  480 ;  Smith  v.  Holcomb,  99  Mass.  552  ; 
Memphis  &  C.  R.R.  Co.  v.  Whitfield,  44  Miss.  466 ;  West  v.  Forrest,  22  Mo. 
344;  Porter  v.  Hannibal  &  S.  J.  R.R.  Co.,  71  Mo.  66;  Ridenhour  v.  Kansas 
C.  C.  Ry.  Co.,  13  S.  W.  Rep.  889  (Mo.) ;  McMillan  v.  Union  P.  B.  W.,  6  Mo. 
App.  434  ;  Holyoke  v.  Grand  T.  Ry.  Co.,  48  N.  H.  541 ;  Clark  v.  Manchester, 
64  N.  H.  471  ;  Matteson  v.  New  York  C.  R.R.  Co.,  62  Barb.  364 ;  Brignoli  v. 
Chicago  &  G.  E.  Ry.  Co.,  4  Daly  182  ;  Wallace  v.  Western  N.  C.  R.R.  Co., 
104  N.  C.  442  ;  Pennsylvania  &  O.  C.  Co.  v.  Graham,  63  Pa.  390 ;  McLaugh- 
lin V.  Corry,  77  Pa.  109 ;  Scott  v.  Montgomery,  95  Pa.  444 ;  Houston  &  T- 
C.  Ry.  Co.  V.  Boehm,  57  Tex.  152  ;  Texas  &  P.  Ry.  Co.  v.  Curry,  64  Tex.  85  ; 
Bovee  v.  Danville,  53  Vt.  183;  Richmond  &  D.  R.R.  Q.Q.V.  Norment,  84  Va. 
167  ;  Vinal  v.  Core,  18  W.  Va.  i ;  Riley  v.  West  V.  C.  &  P.  Ry.  Co.,  27  W. 
Va.  145 ;  Goodno  v.  Oshkosh,  28  Wis.  300 ;  Stewart  v.  Ripon,  38  Wis.  584. 


§  47-        KINDS   OF    MENTAL   INJURY   COMPENSATED.  67 

3.  Mental  anxiety  and  distress,  which,  though  the  di- 
rect and  natural  result  of  the  injury,  are  independent  of 
it,  are  subjects  of  compensation  (though,  as  has  been 
seen,  there  are  cases  the  other  way).  So  where  one  was 
bitten  by  a  dog  suspected  of  being  mad,  he  was  allowed 
to  recover  for  his  fear  of  evil  results,  (")  and  compensa- 
tion has  been  recovered  for  anxiety  caused  by  the  non- 
arrival  of  a  physician,  a  telegram  summoning  him  not 
having  been  delivered,  owing  to  the  defendant's  negli- 
genccC") 

4.  Fright  caused  by  apprehension  of  physical  harm  is  a 
subject  of  compensation.  (°)  Thus,  where  the  plaintiff, 
put  off  the  defendant's  train  wrongfully  at  night  in  a 
freight  yard  before  reaching  his  station,  fell  into  a  cul- 
vert, and  was  frightened  by  trains  backing  over  the  cul- 
vert, he  was  allowed  to  recover  for  his  fright.C')  So  re- 
covery is  allowed  for  a  shock  to  the  nervous  system.  (°) 

5.  Loss  of  peace  of  mind  and  happiness  is  a  subject  of 
compensation.  (') 

6.  Sense  of  insult  or  indignity,  mortification,  or 
wounded  pride  is  a  subject  of  compensa:tion.(^)  A  com. 
mon  instance  is  where  a  passenger  is  wrongfully  ejected 
from  a  railroad  train.C*)      So,  where  the   plaintiff  was 


(»)  Godeau  v.  Blood,  52  Vt.  251. 

C)  W.  U.  Tel.  Co.  V.  Cooper,  71  Tex.  507. 

C)  L.  &  N.  R.R.  Co.  V.  W^hitman,  79  Ala.  328.  This  is  the  ground  of  re- 
covery in  the  actions  of  assault  considered  above. 

(■«)  Stutz  V.  C.  &  N.  W.  Ry.  Co.,  73  Wis.  147. 

{')  Kendall  v.  Albia,  73  la.  241. 

O  Cox  V.  Vanderkleed,  21  Ind.  164,  and  the  cases  of  breach  of  promise  of 
marriage  above. 

(s)  Quigley  v.  C.  P.  R.R.  Co.,  5  Sawy.  107;  Boyle  v.  Case,  9  Sawy.  386; 
Ward  V.  Blackwood,  48  Ark.  396. 

(•')  Coppin  V.  Braithwaite,  8  Jur.  875  ;  Louisville  &  N.  R.R.  Co.  v.  Whit- 
man, 79  Ala.  328;  Head  v.  Georgia  P.  Ry.  Co.,  79  Ga.  358;  Chicago  &  A. 
R.R.  Co.  V.  Flagg,  43  111.  364;   Chicago  &  N.  W.  Ry.  Co.  v.  Williams,  55 


68  COMPENSATION.  §  47- 

wrongfully  ejected  from  his  house,  it  was  held  that  he 
could  recover  compensation  for  mortification. (")  So  the 
plaintiff  may  recover  compensation  for  wounded  pride  in 
actions  for  malicious  prosecution  (^)  or  false  imprison- 
ment (")  or  in  an  action  for  assault  and  battery  committed 
in  arresting  the  plaintiff  illegally.  (*) 

On  the  same  ground  the  plaintiff  recovers  in  actions 
of  libel  and  slander ;(®)  but  when  in  an  action  of  slander 
the  words  are  not  actionable  in  themselves,  and  special 
damage  must  be  shown,  recovery  cannot  be  had  for  men- 
tal suffering  alone.  (') 

So  where  a  plaintiff  suffered  bodily  mutilation  through 
the  defendant's  tort,  he  may  recover  compensation  for 
mortification  which  he  has  suffered  and  will  suffer  by 
reason  of  the  mutilation,  and  of  the  fact  that  he  may  be- 


lli. 185  ;  Chicago  &  N.  W.  Ry.  Co.  v.  Chisholm,  79  111.  584;  Pennsylvania 
R.R.  Co.  V.  Connell,  112  III.  295  ;  Lake  E.  &  W.  Ry.  Co.  v.  Fix,  88  Ind.  381  ; 
Shepard  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  ^^  la.  54 ;  S.  K.  Ry.  Co.  v.  Rice, 
38  Kas.  308 ;  Smith  v.  Pittsburgh,  F.  W.  &  C.  Ry.  Co.,  23  O.  S.  10 ;  Stutz 
V.  Chicago  &  N.  W.  Ry.  Co.,  73  Wis.  147.  It  is,  however,  held  in  some 
jurisdictions  that  if  the  conductor  acted  considerately,  the  plaintiff  should 
have  felt  no  sense  of  insult,  and  therefore  that  he  can  recover  nothing  for 
sense  of  indignity.  Paine  v.  C,  R.  I.  .&  P.  Ry.  Co.,  45  la.  569 ;  Fitzgerald  v. 
C,  R.  I.  &  P.  Ry.  Co.,  50  la.  79;  Batterson  v.  C.  &  G.  T.  Ry.  Co.,  49  Mich. 
184;  but  contra,  Chicago  &  A.  R.R.  Co.  v.  Flagg,  43  111.  364;  Carsten  v. 
Northern  P.  Ry.  Co.,  47  N.  W.  Rep.  49  (Minn.). 

(»)  Moyer  v.  Gordon,  113  Ind.  282* 

C)  Lunsford  v.  Dietrich,  86  Ala.  250;  Parkhurst  v.  Masteller,  57  la.  474; 
Vinal  V.  Core,  18  W.  Va.  I. 

(")  Ross  V.  Leggett,  61  Mich.  445  ;  Hays  v.  Creary,  60  Tex.  445. 

(■")  Morgan  v.  Curley,  142  Mass.  107. 

(')  Swift  V.  Dickerman,  31  Conn.  285  ;  Adams  v.  Smith,  58  111.  418 ;  Prime 
V.  Eastwood,  45  la.  640;  Miller  v.  Roy,  10  La.  Ann.  231 ;  Dufort  v.  Abadie, 
23  La.  Ann.  280;  Blumhardt  v.  Rohr,  70  Md.  328 ;  Hastings  v.  Stetson,  130 
Mass.  76;  Mahoney  v.  Belford,  132  Mass,  393;  Chesley  v.  Tompson,  137 
Mass.  136 ;  Scripps  v.  Reilly,  38  Mich.  10 ;  Newman  v.  Stein,  75  Mich.  402  ; 
Barnes  v.  Campbell,  60  N.  H.  27. 

O  Lynch  v.  Knight,  9  H.  L.  C.  577. 


§  47-        KINDS   OF    MENTAL   INJURY   COMPENSATED.  69 

come  an  object  of  curiosity  and  ridicule  among  iiis  fel- 
lows. (") 

71  Sense  0/  shame  and  humiliation  is  a  subject  of  com- 
pensation. So  where  a  father  brings  an  action  for  the 
seduction  of  his  daughter,  he  may  recover  compensation 
for  the  shame  it  caused  him  ;  C")  and  in  jurisdictions 
where,  by  statute,  the  woman  may  recover  for  her  seduc- 
tion, her  shame  is  an  element  of  compensation. (°)  In 
an  action  for  indecent  assault,  the  woman  may  recover 
compensation  for  her  sense  of  shame  and  humiliation  ;  (*) 
so  may  the  plaintiff  in  an  action  for  the  unlawful  execu- 
tion of  a  search  warrant.  (*) 

So  where  a  physician  brought  with  him  a  layman  to 
help  him  deliver  the  plaintiff  of  a  child,  and  they  were 
admitted  upon  the  supposition  that  both  were  physicians, 
it  was  held  that  the  plaintiff,  on  learning  the  truth,  might 
recover  compensation  from  the  physician  for  her  sense  of 
shame.Q  And  where  a  female  passenger  was  kissed  by 
a  conductor,  it  was  held  that  she  could  recover  compen- 
sation for  her  sense  of  humiliation.(^) 

8.  A  blow  to  the  affections  is  a  subject  for  compensa- 
tion, as  in  case  of  breach  of  promise  of  marriage.  Com- 
pensation is  awarded  for  this  cause  in  those  jurisdictions 
which  permit  recovery  for  the  grief  caused  by  non-deliv- 


(«)  Heddles  v.  Chicago  &  N.  W.  Ry.  Co.,  46  N.  W.  Rep.  115  (V^is.) ;  ace. 
Sherwood  v.  Chicago  &  W.  M.  Ry.  Co.,  46  N.  W.  Rep.  773  (Mich.). 

(")  Barbour  v.  Stephenson,  32  Fed.  Rep.  66;  Hatch  v.  Fuller,  131  Mass. 
574;  Russell  v.  Chambers,  31  Minn.  54;  Lunt  i/.  Philbrick,  59  N.  H.  59 ; 
Riddle  V.  McGinnis,  22  W.  Va.  253. 

(")  Simons  v.  Busby,  119  Ind.  13;  Breon  v.  Henkle,  14  Ore.  494,  500; 
Giese  v.  Schultz,  53~Wis.  462  ;  65  Wis.  487. 

('I)  Campbell  v.  Pullman  P.  C.  Co.,  42  Fed.  Rep.  484;  Wolff.  Trinkle,  103 
Ind.  355  ;  Fay  v.  Swan,  44  Mich.  544;  Ford  v.  Jones,  62  Barb.  484. 

(■)  Melcher  v.  Scruggs,  72  Mo.  407. 

0  De  May  v.  Roberts,  46  Mich.  160. 

(K)  Craker  v.  C.  &  N.  W.  Ry.  Co.,  36  Wis.  657. 


"JO  COMPENSATION.  §§  48,  49. 

ery  of  a  telegram  announcing  the  illness  or  death  and 
funeral  of  a  relative. 

§  48.  Compensation  for  injuries  to  family  relations. — 
The  relations  existing  between  the  members  of  a  family 
are  protected  by  the  common  law,  and  for  injuries  to 
such  relations  compensation  may  be  had  :  thus,  damages 
may  be  recovered  for  the  loss  by  a  husband  or  wife  of  the 
consortium  of  the  other,  and  by  a  parent  for  the  society 
and  services  of  his  child.  In  such  cases  there  is  injury 
independent  of  pecuniary  loss  ;  indeed,  recovery  may  be 
had  though  there  is  no  pecuniary  loss. 

The  right  of  a  husband  to  the  consortium  of  his  wife 
includes  not  only  a  right  to  the  services  of  the  wife,  but 
also  to  her  affection,  comfort,  and  fellowship,  and  to  an 
undefiled  marriage-bed.  A  husband  has  therefore  been 
allowed  to  recover  damages  for  a  rape  on  his  wife, 
though  their  relations  were  uninterrupted  and  her 
household  services  continued  to  be  performed, (*)  and 
for  alienating  the  affections  of  his  wife,  though  she  con- 
tinued to  live  with  him.C")  And  a  father,  suing  for  the 
seduction  of  his  daughter,  may  recover  compensation  for 
"  loss  of  society  of  a  virtuous  daughter,"  (")  and  for  the 
"destruction  of  his  domestic  peace."  C) 

So  in  an  action  for  malicious  prosecution,  it  was  held 
that  the  plaintiff  could  recover  compensation  for  the  loss 
of  society  of  his  family.(^) 

§  49.  To  personal  liberty. — For  an  illegal  restraint  of 
the  plaintiff's  personal  liberty  compensation  may  be  re- 


(°)  Bigaouette  v.  Paulet,  134  Mass.  123. 
0  Heermance  v.  James,  47  Barb.  120. 
C)  Russell  V.  Chambers,  31  Minn.  54. 
C)  Kendrick  v.  McCrary,  1 1  Ga.  603. 
(«j  Hamilton  v.  Smith,  39  Mich.  222. 


§§  50'  5^'         AGGRAVATION   AND    MITIGATION.  7 1 

covered.  C)  This  is  something  different  from  either  the 
loss  of  time  or  the  physical  injury  or  mental  suffering 
caused  by  the  imprisonment.  It  is  of  the  same  general 
character  as  the  latter,  and  the  measurement  of  the  com- 
.  pensation  must  necessarily  be  left  entirely  to  the  jury. 

§  50.  To  reputation  and  standing  in  society. — For  an  in- 
jury to  the  plaintiff's  reputation,  honor,  and  standing  in 
society,  caused  by  the  defendant's  wrongful  act,  compen- 
sation may  be  recovered.  C")  So,  in  a  case  of  indecent 
assault,  the  court  said  the  plaintiff  could  recover  compen- 
sation for  "  loss  of  honor  and  good  name."  (")  The 
same  decision  was  made  where  the  defendant  wrongfully 
entered  the  plaintiff's  premises  with  the  avowed  purpose 
of  searching  for  stolen  money. ('')  And  where  the  plain- 
tiff and  his  family  were  wrongfully  turned  into  the  street, 
it  was  held  that  he  could  be  compensated  for  "  injury  to 
his  pride  and  social  position."  (*) 

A  plaintiff  may  also  recover  compensation  if  prevented 
from  gaining  an  advantage  in  worldly  position.  Thus, 
in  an  action  for  breach  of  promise  of  marriage,  the  plain- 
tiff may  recover  damages  for  "  loss  of  station."  (')  And 
so  where  the  defendant's  defamation  has  deprived  the 
plaintiff  of  a  marriage,  the  plaintiff  may  recover  com- 
pensation for  the  "advantages"  of  it.(^) 

§  51.  Aggravation  and  mitigation. — In  all  actions  where 
the  damages  are  not  capable  of  exact  pecuniary  measure- 


(»)  Fotheringham  v.  Adams  Ex.  Co.,  36  Fed.  Rep.  252 ;  Hamilton  v.  Smith, 
39  Mich.  222. 

0)  Barnes  v.  Martin,  15  Wis.  240 ;  and  in  all  actions  for  defamation. 

(')  Wolf  w.  Trinkle,  103  Ind.  355  ;  so  in  an  action  for  seduction,  Hawn  v. 
Banghart,  76  la.  683  ;  Breon  v.  Henkle,  14  Ore.  494,  500. 

(•i)  Anon.,  Minor,  52. 

(«)  Moyer  v.  Gordon,  113  Ind.  282. 

O  Kelly  V.  Renfro,  9  Ala.  325. 

(s)  Davis  V.  Gardiner,  4  Co.  166. 


72  COMPENSATION.  §  52. 

ment — that  is,  where  the  amount  is  to  a  certain  extent 
within  the  control  of  the  jury — all  circumstances  may 
be  shown  in  evidence  which  will  in  any  way  assist  the 
jury  in  forming  its  estimate  of  the  amount  of  damages. 
In  all  cases  where  the  amount  of  damages  depends  upon 
the  effect  of  the  injury  on  the  feelings,  the  circumstances 
of  the  injury  and  the  position  in  life  of  the  parties  have 
a  bearing  on  the  amount  v^^hich  should  be  awarded  as 
compensation.  So  in  the  case  of  an  injury  to  liberty,  to 
family  relations,  to  reputation  and  social  standing.  And 
where  exemplary  damages  are  to  be  given,  such  circum- 
stances have  great  bearing  on  the  defendant's  malice, 
and  may  be  shown  in  evidence  for  the  purpose  of  in- 
creasing or  decreasing  the  exemplary  damages.  Circum- 
stances shown  by  the  plaintiff  for  the  purpose  of  increas- 
ing the  amount  either  of  compensatory  or  of  exemplary 
damages  are  said  to  be  shown  in  aggravation  of  the 
damages ;  circumstances  shown  by  the  defendant  for  the 
purpose  of  cutting  down  the  amount  allowed  as  damages 
are  said  to  be  shown  in  mitigation.  These  terms,  often 
misused,  are  properly  applied  only  where  evidence  is 
presented  to  the  jury  for  the  purpose  of  affecting  its 
estimate  of  damages  in  this  class  of  cases. 

§  52.  Matter  of  evidence,  not  of  law. — It  will  be  ob- 
served that  matters  of  aggravation  or  mitigation  are 
properly  matters  of  evidence  only ;  and  it  is  not  really  a 
question  of  law  whether  or  not  a  circumstance  is  one  of 
aggravation  or  mitigation.  In  fact,  it  is  easily  conceiv- 
able that  a  circumstance  that  would  aggravate  the  dam- 
ages in  one  case  would  mitigate  them  in  another.  Even  in 
the  same  form  of  action  the  same  circumstance  might  be 
in  one  instance  an  aggravation,  in  another  a  mitigation 
of  the  injury.  In  an  action  of  slander  the  high  position 
of  the  plaintiff  usually  aggravates  the  damages,  since  it 


§  52.  MATTER    OF    EVIDENCE,  NOT    OF   LAW.  73 

puts  an  unusually  high  value  on  the  reputation  injured  ; 
but  it  has  been  held  to  be  a  matter  of  mitigation  if  the 
plaintiff's  character  were  so  high  as  to  be  above  the  reach 
of  the  slander.  (") 

The  court  is  called  upon  to  decide  whether  evidence 
offered  by  a  party  is  admissible  in  his  favor,  either  in 
aggravation  or  in  mitigation.  But  counsel  for  the  other 
party  might  desire  to  argue  before  the  jury  that  the 
evidence  offered  in  aggravation  should  really  be  consid- 
ered by  the  jury  as  a  matter  of  mitigation,  or  vice  versa. 
It  seems  that  in  fairness  this  privilege  should  be  allowed 
him,  on  the  same  principle  that  he  is  allowed  to  argue 
that  the  evidence  is  not  of  any  weig'ht  at  all.  But  if  so, 
the  court  would  not  be  justified  in  charging  that  the 
evidence  must  be  taken  in  one  way  or  the  other ;  to  do 
so  would  be  to  take  from  the  jury  the  decision  of  a  con- 
troverted question  of  fact.  It  would,  therefore,  seem 
that,  in  any  case  where  the  effect  of  evidence  admitted 
is  reasonably  contested  by  the  parties,  the  court  should 
not  charge  in  favor  of  either  side,  but  should  leave  the 
matter  to  the  jury.  It  is  rarely,  however,  a  matter  of 
any  doubt  whether  a  circumstance  tends  to  mitigate  or 
aggravate  damages,  and  in  the  ordinary  case  the  court  is 
justified  in  charging  that  certain  facts  are  to  be  consid- 
ered by  the  jury  in  aggravation  or  mitigation. 

The  question,  in  short,  is  one  as  to  the  admissibility 
and  effect  of  evidence,  and  not  strictly  one  as  to  the 
legal  measure  of  damages.  Nevertheless,  certain  rules 
as  to  the  effect  of  some  common  circumstances  (such  as 
provocation,  good  faith,  the  position  of  the  parties,  etc.)  in 
aggravating  or  mitigating  the  damages  have  been  laid 
down,  and  are  followed  in  ordinary  cases  ;  though,  as  has 


(»)  Broughton  v.  McGrew,  39  Fed.  Rep.  672. 


74  COMPENSATION.  §  53> 

been  said,  they  should  not  be  regarded  as  conclusive. 
These  rules  are  applied  in  actions  of  breach  of  promise 
of  marriage  and  of  tort  for  personal  injury,  and  in  all 
actions  where  exemplary  damages  are  allowed,  and  will 
be  stated  and  discussed  in  connection  with  those  actions. 

Reduction  of  the  Original  Loss. 

§  S3.  Offer  of  specific  reparation. — A  court  of  law  can- 
not, as  has  been  seen,  decree  specific  reparation  for  a 
wrong ;  nor  can  it  require  the  injured  party  to  accept  such 
reparation  in  lieu  of  damages.  The  right  to  damages  is 
absolute  upon  the  happening  of  the  wrong,  and  nothing 
but  the  act  of  the  ihjured  party  can  release  it.  Conse- 
quently an  offer  of  specific  reparation,  unaccepted,  will 
not  reduce  the  plaintiff's  damage.  For  instance,  the 
plaintiff  is  not  obliged  to  receive  converted  property 
which  the  defendant  desires  to  return^Qj  And  of  course 
the  plaintiff  cannot  be  obliged  to  buy  back  his  property, 
though  offered  to  him  at  less  than  the  market  price,  C") 
nor  to  accept  other  property  in  lieu  of  that  converted.  (") 
So  in  an  action  of  trover  (^)  it  was  said  if"  No  tender  or 
offer  to  restore  the  property  after  conversion,  will  defeat  ^ 
the  action  or  mitigate  the  damages^  If  the  injured 
party  accept  the  property  when  tendered,  this  may  be 
shown  in  mitigation  of  damages,  but  will  not  defeat  the 
action  entirely.  Nor  will  a  mere  agreement  without 
consideration  to  receive  the  property,  defeat  the  action 
or  mitigate  the  damages  where  the  injured  party  thinks 


(»)  Norman  v.  Rogers,  2Q  Ark.  365 ;  Carpenter  v.  Dresser,  72  Me.  377 ; 
Stickney  v.  Allen,  10  Gray  352  ;  Bringard  v.  Stellwagen,  41  Mich.  54 ;  Liver- 
more  V.  Northrup,  44  N.  Y.  107 ;  Carpenter  v.  Manhattan  Life  Ins.  Co.,  2a 
Hun  47  ;  Green  v.  Sperry,  16  Vt.  390 ;  Morgan  v.  Kidder,  55  Vt.  367. 

C)  "Weld  V.  Reilly,  48  N.  Y.  Super.  Ct.  531. 

(')  Munson  v.  Munson,  24  Conn.  115  ;  Woods  v.  McCall,  67  Ga.  506. 

(f)  Norman  v.  Rogers,  29  Ark.  365,  369. 


§  54-     BRINGING   CONVERTED    PROPERTY   INTO    COURT.       75 

proper  to  disregard  the  agreement  and  bring  his  suit  for 
the  conversion." 

And  if  a  contract  to  marry  is  broken,  a  subsequent 
offer  to  marry  will  not  mitigate  the  damage.  (") 

§  54.  Bringing  converted  property  into  court. — The  prac- 
tice of  staying  proceedings  in  certain  cases  upon  bring- 
ing converted  property  into  court  was  not  unknown  in 
England.  The  question  was  early  considered  by  Lord 
Mansfield/  where  a  motion  was  made  to  stay  proceed- 
ings on  bringing  the  chattel  into  court,  with  costs  to  that 
time.  The  rule  was  refused  on  the  circumstances  of  the 
particular  case ;   but  his  lordship  said  : 

"  Where  trover  is  brought  for  a  specific  chattel,  of  an 
ascertained  quantity  and  quality,  and  unattended  with 
any  circumstances  that  can  enhance  the  damages  above 
the  real  value,  but  that  its  real  and  ascertained  value  must 
be  the  sole  measure  of  the  damages,  there  the  specific 
thing  demanded  may  be  brought  into  court ;  where  there 
is  an  uncertainty  either  as  to  the  quantity  or  quality  of 
the  thing  demanded,  or  that  there  is  any  tort  accompa- 
nying it  that  may  enhance  the  damages  above  the  real 
value  of  the  thing,  and  there  is  no  rule  thereby  to  esti- 
mate .the  additional  value,  then  it  shall  not  be  brought 
in."  The  case  of  Whitten  v.  Fuller'  was  a  motion  by 
defendant,  in  an  action  of  trover  for  a  bond,  to  have  pro- 
ceedings stayed  oh  delivering  up  the  bond  and  paying 
costs.  But  the  plaintiff  objecting,  that  he  had  sustained 
great  loss  by  the  detention  of  the  bond  till  after  the 
death  of  the  obligor,  and  insisting  on  his  right  to  go  for 
special  damages,  the  motion  was  denied. 

'  Fisher  v.  Prince,  3  Burr.  1363.  '^  2  W.  Black  902. 

(*)  Kurtz  w.  Frank,  76  Ind.  594 ;  Bennett  v.  Beam,  42  Mich.  346  ;  contra 
Kelly  V.  Renfro,  9  Ala.  325.  J 


76  COMPENSATION.  §  55- 

This  practice  of  staying  proceedings,  though  known  in 
England  much  later  than  the  time  of  Lord  Mansfield,'  is 
little  known  in  this  country.'  In  Stevens  v.  Low,' 
Cowen,  J.,  said,  however:  "It  is  quite  common  for  the 
courts  to  make  a  rule  stopping  the  action  on  a  redelivery 
and  payment  of  costs."  The  reports  of  our  decisions 
would  not  seem  to  warrant  the  remark  ;  but  the  prac- 
tice seems  still  to  prevail  in  Vermont.  (") 

§  55.  Reparation  accepted. — Where,  however,  the  in- 
jured party  accepts  reparation,  it  operates  as  a  reduction 
of  damages.  Thus  where  goods  wrongfully  taken  from 
the  owner  are  returned  to  him  and  accepted-,  damages 
are  reduced  by  the  value  of  the  goods  when  accepted.  C") 
The  same  rule  applies  in  actions  of  contract.  Thus 
where  machinery  sold  by  the  defendant  to  the  plaintiff 
was  not  delivered  in  good  condition,  evidence  that  the 
plaintiff  allowed  the  defendant  after  delivery  to  remedy 

'  Earle  v.  Holderness,  4  Bing.  462  ;        ^  Shotwell  v.  Wendover,  i  Johns.  65. 
Tucker  v.  Wright,  3  Bing.  601 ;  Gibson        ^  2  Hill  132. 
V.  Humphrey,  1  Cr.  &  M.  544. 


(■>)  Rutland  &  W^.  R.R.  Co.  v.  Bank  of  Middlebury,  32  Vt.  639 ;  Bucklin 
V.  Beals,  38  Vt.  653  {semble). 

(^)  Actions  of  trover :  Willoughby  v.  Backhouse,  2  B.  &  C.  821 ;  Bayliss  v. 
Fisher,  7  Bing.  153  ;  S.  C.  4  M.  &  P.  790;  Moon  v.  Raphael,  2  Bing.  N.  C. 
310;  Bates  V.  Clark,  95  U.  S.  204;  Renfro  v.  Hughes,  69  Ala.  581 ;  Murphy 
V.  Hobbs,  8  Col.  17;  Cook  v.  Loomis,  26  Conn.  483;  Lazarus  v.  Ely,  45 
Conn.  504 ;  Barrelett  v.  Bellgard,  71  III.  280 ;  Long  v.  Lambkin,  9  Cush.  361 ; 
Lucas  V.  Trumbull,  1 5  Gray,  306 ;  Delano  v.  Curtis,  7  All.  470 ;  Perham  v. 
Coney,  117  Mass.  102  ;  Hackett  v.  B.  C.  &  M.  R.R.  Co.,  35  N.  H.  390 ;  Gove 
V.  Watson,  61  N.  H.  136  ;  McFadden  v.  Whitney,  51  N.  J.  L.  391  ;  Bowman 
V.  Teall,  23  Wend.  306  ;  McCormick  v.  P.  C.  R.R.  Co.,  80  N.  Y.  353 ;  Dailey 
■V.  Crowley,  5  Lans.  301  ;  Yale  v.  Saunders,  16  Vt.  243. 

Actions  of  trespass:  Gibbs  v.  Chase,  10  Mass.  125  ;  Kaley  v.  Shed,  10 
Met.  317  {^semble);  Vosburgh z/.  Welch,  n  Johns.  175;  Hanmerr/.  Wilsey,  17 
Wend.  91  ;  Hibbard  v.  Stewart,  i  Hilt.  207. 

Actions  of  replevin  :  Conroy  v.  Flint,  5  Cal.  327  ;  Dewitt  v.  Morris,  13 
Wend.  496. 


§  5^.     REPARATION  PREVENTING  ACTUAL  LOSS.       7/ 

the  defect  is  admissible  to  reduce  damages. (*)  But  in 
any  case  nominal  damages  at  least  may  be  recovered.' 
When  the  goods  taken  are  inclosed  in  boxes,  the  mere 
opening  of  the  boxes  subsequently  by  the  owner,  to  en- 
able a  witness  to  appraise  the  value  of  the  goods,  is  not 
such  a  resumption  of  the  property  as  will  justify  a  miti- 
gation of  damages.' 

§  56.  Reparation  preventing  actual  loss. — In  some  cases 
the  reparation  has  absolutely  prevented  the  happening  of 
damage  from  the  injury.  In  such  cases  this  is  allowed 
to  be  shown,  not,  properly  speaking,  in  reduction  of 
damages,  but  in  proof  of  the  actual  amount  of  damages. 
Acceptance  by  the  injured  party  need  not  be  shown,  for 
no  right  ever  accrued  to  him  to  recover  more  than  the 
original  and  actual  loss.  In  Dow  v.  Humbert  C")  the 
defendants,  supervisors  of  a  town,  being  sued  for  refus- 
ing to  put  two  judgments  of  the  plaintiff  on  the  tax  list, 
were  allowed  to  show  in  mitigation  that  they  were  sub- 
sequently placed  on  the  list.  So  where  a  lien  was  dis- 
charged and  the  discharge  enured  to  the  benefit  of  the 
plaintiff,  the  amount  paid  may  be  deducted.  (")  Where 
the  grantor  of  land  bought  in  an  outstanding  incum- 
brance, the  grantee,  not  having  been  actually  injured  by 

'  The  language  of  the  oldest  author-  Johns.  172,  Thompson,  J.,  said;  "It 

ity  on  this   point  is  as  follows:  "Si  is  every  day's  practice  to  sustain  this 

home  prist  mon  cheval  et  ceo  chevau-  action  for  the  injury  suffered,  although 

cha  et  puis  ceo  redeliver  al  moy  uncore  the  owner  has  repossessed  himself  of 

jeo  poio  aver  cest  action  vers  luy;  car  his  property."    And  the  same  point 

ceo  est  un  convercion,  et  le  redelivery  was   held    in   Reynolds   v.    Shuler,    5 

nest  ascun  barr  del  action  mes  sole-  Cowen,  323. 

ment  serra  un  mitigacion  de  damages.  The  same  has  been  held  in  Massa- 

Per  Cur,  in  the  Countess  of  Rutland's  chusetts.     Wheelock  v.  Wheelright,   5 

Case,  I  Roll.  Abr.  15.  Mass.   104;  Gibbs  v.  Chase,  10  Mass. 

Baldwin  v.  Cole,  6  Mod.  212;  5  Bac.  125;   Greenfield   Bank  v.    Leavitt,    17 

Ab.  Trover,  D.  §  39;  Esp.   N.  P.  igo,  Pick.  i. 

191 ;  Cook  V.  Hartle,  S  Car.  &  Payne,  '  Connah  v.  Hale,  23  Wend.  462. 
568.     So,   in  Murray    v.    Burling,    10 

(»)  Marsh  v.  McPherson,  105  U.  S.  709. 

C)  91  U.  S.  294.  (°)  Stollenwerck  v.  Thacher,  115  Mass.  224. 


78  COMPENSATION.  §  57- 

the  incumbrance,  could  recover  only  nominal  damages.(*) 
Such  a  case  was  Hartford  and-  Salisbury  Ore  Co.  v. 
Miller,('')  an  action  for  breach  of  covenant  of  seisin  con- 
tained in  a  deed  purporting  to  convey  certain  mineral 
rights  v^^hich  the  defendant  in  fact  could  not  convey,  not 
having  the  consent  of  his  co-tenants.  They  afterwards 
consented,  so  that  the  plaintiffs  acquired  the  same  rights 
which  they  would  have  had  if  there  had  been  no  breach  ; 
and  it  was  held  that  the  plaintiff  could  only  recover  nom- 
inal damages. 

In  an  action  for  the  diversion  of  a  watercourse,  the 
fact  that  part  of  the  water  diverted  was  returned  to 
the  stream  above  the  plaintiff's  land  was  to  be  consid- 
ered in  estimating  the  amount  of  damages.(°) 

§  57.  Reparation  by  a  third  party. — Reparation,  not  by 
the  wrong-doer,  but  by  a  stranger,  will  reduce  the  dam- 
ages if  it  w^as  accepted  by  the  injured  party  or  was  of  a 
nature  to  prevent  loss.  So,  where,  by  the  defendant's 
procurement,  the  plaintiff's  wife  had  left  the  plaintiff, 
taking  a  quantity  of  his  personal  property,  but  afterwards 
returned  to  the  vicinity  of  his  house,  and  delivered  to  him 
the  baggage  checks  given  by  the  railway  for  his  goods, 
so  that  these  came  under  his  control,  it  was  held  that 
this  delivery  should  go  in  reduction  of  his  damages,  and 
a  verdict  for  the  full  value  of  the  property  was  held 
wrong.  C^) 

Where  goods  were  misdelivered  by  a  carrier,  the  latter 
may  show  in  reduction  of  damages  that  the  owner  has 
accepted  compensation  from  the  person  to  whom  they 
were  delivered.(^)     Similarly,  in  a  suit  on  an  adminis- 

(»)  Mclnnis  v.  Lyman,  62  Wis.  191.  C)  41  Conn.  112. 

(=)  Mannville  Co.  v.  Worcester,  138  Mass.  89. 
('')  Dailey  v.  Crowley,  5  Lans.  301. 

(•)  Rosenfield  v.  Express  Co.,  i  Woods  131 ;  Jellett  v.  St.  P.,  M.  &  M. 
Ry.  Co.,  30  Minn.  265. 


^  S^-    RECOVERY  OF  PROPERTY  BY  THE  INJURED  PARTY.     79 

trator's  bond  for  failure  to  account  for  the  proceeds  of  a 
sale  of  property,  it  may  be  shown  in  reduction  of  dam- 
ages that  payment  has  been  made  by  the  purchaser  to 
the  administrator  de  bonis  non.Q')  And  so  in  an  action 
by  a  sheriff  on  a  bond  indemnifying  him  from  damage  in 
levying  execution,  where  he  had  been  required  to  pay 
$1,600  in  a  suit  by  the  owner  for  conversion,  it  was  held 
that  the  sureties  could  show,  in  mitigation  of  damages, 
that  he  had  received  $  1,000  on  a  sale  of  the  goods,  for 
his  injury  was  the  difference  between  those  sums.(^) 

Where  an  action  is  brought  against  one  of  two  joint 
tortfeasors,  it  may  be  shown  in  reduction  of  damages 
that  the  other  tortfeasor  has  made  part  compensation.  (°) 

§  58.  Recovery  of  property  by  the  injured  party. — If  the 
owner  has  recovered  property  taken  from  him  by  tbe 
wrong-doer,  that  fact  will  reduce  the  damages ;  but  the 
owner  is  allowed  compensation  for  his  expenditure  in 
recovering  the  property.('*)  Thus  where  the  plaintiff's 
property  was  seized  and  sold  by  the  defendant,  a  sheriff, 
and  was  repurchased  by  the  plaintiff  from  the  one  who 
bought  it  at  the  sheriff's  sale,  it  was  held  that  the  meas- 


(')  Probate  Court  v.  Bates,  10  Vt.  285. 

O  O'Brien  v.  McCann,  58  N.  Y.  373. 

(")  Burn  V.  Morris,  2  C.  &  M.  579 ;  Knapp  v.  Roche,  94  N.  Y.  329. 

('')  Tamvaco  v.  Simpson,  19  C.  B.  (N.  S.)  453 ;  Ewing  v.  Blount,  20  Ala. 
694;  Baldwin  v.  Porter,  12  Conn.  473  ;  Merrill  v.  How,  24  Me.  126;  Alex- 
ander V.  Helber,  35  Mo.  334 ;  Ford  v.  Williams,  24  N.  Y.  359 ;  McDonald 
V.  North,  47  Barb.  530;  Sprague  v.  McKinzie,  63  Barb.  60;  Vedder  w.  Van 
Buren,  14  Hun  250;  Hough  v.  Bowe,  51  N.  Y.  Super.  Ct.  208;  Forsyth  v. 
Palmer,  14  Pa.  96  ;  Mclnroy  v.  Dyer,  47  Pa.  118  ;  Huriburt  v.  Green,  41  Vt. 
490;  Chase  v.  Snow,  52  Vt.  525  ;  Johannesson  v.  Borschenius,  35  Wis.  131 ; 
Sprague  v.  Brown,  40  Wis.  612.  But  it  was  held  in  Vermont,  in  an  action 
of  trover  for  a  pair  of  oxen,  which  had  been  stolen  from  the  plaintiff,  and 
were  found  in  the  defendant's  possession  in  New  York,  that  the  expenses  in- 
curred by  the  plaintiff  in  regaining  possession  of  the  cattle,  by  legal  process 
in  New  York,  could  not  be  included  in  the  damages  recoverable  for  the  con- 
version.    Harris  v.  Eldred,  42  Vt.  39. 


8o  COMPENSATION.  §  59. 

ure  of  damages  was  the  amount  paid  to  repurchase  the 
property.  C')  Where  the  defendant  secured  a  loan  from 
the  plaintiff  by  fraud,  and  was  sued  for  the  fraud,  it  was 
held  that  the  amount  of  a  judgment  previously  obtained 
by  the  plaintiff  in  an  action  to  recover  the  money  loaned 
should  be  deducted  from  the  compensation  given  for  the 
fraud.C")  So  in  an  action  for  breaking  into  the  plaintiff's 
house  and  removing  his  furniture,  the  amount  of  a  judg- 
ment for  the  value  of  the  use  of  the  furniture,  recovered 
by  the  plaintiff  in  a  replevin  suit  previously  brought  by 
him  against  the  defendant,  is  to  be  recovered. (") 

§  59.  Application  of  property  to  the  benefit  of  the  injured 
party. — The  rules  are  the  same  where  the  defendant 
attempts  to  show  not  that  he  has  made  specific  repara- 
tion, but  that  he  has  applied  the  proceeds  of  his  wrong 
to  the  benefit  of  the  injured  party.  The  injured  party 
has  ordinarily  the  right  to  refuse  to  accept  such  applica- 
tion, and  in  that  case,  if  he  does  refuse,  there  can  be  no 
reduction  of  damages.  C^)  So  a  sheriff  who  wrongfully 
levied  upon  and  sold  the  goods  of  the  plaintiff,  cannot 
show,  in  mitigation  of  damages,  that  he  has  applied  the 
proceeds  of  the  sale  to  the  payment  of  a  debt  of  the 
plaintiff.  O 

So  a  defendant  cannot  show  that  he  has  paid  the 
plaintiff's  note  with  the  proceeds  of  the  converted 
property.  (') 

If  the  injured  party  consents  to  the  application,  it 


(")  Dodson  V.  Cooper,  37  Kas.  346 ;  Felton  v.  Fuller,  35  N.  H.  226 ;  Win- 
burne  v.  Bryan,  73  N.  C.  47  ;  Mclnroy  v.  Dyer,  47  Pa.  118. 

C)  Whittier  v.  Collins,  1 5  R.  I.  90. 

(»)  Briggs  V.  Milburn,  40  Mich.  512. 

C)  Torry  v.  Black,  58  N.  Y.  185. 

(")  Parham  v.  McMurray,  32  Ark.  261 ;  Dallam  v.  Filler,  6  W.  &  S.  323; 
M'Michael  v.  Mason,  13  Pa.  214. 

(')  Northrup  v.  McGill,  27  Mich.  234. 


§  6o.  APPLICATION   AUTHORIZED    BY   LAW.  8 1 

may  be  shown  in  reduction  of  damages.  (*)  Thus,  in 
Torry  v.  Black,  C")  the  defendant  had  unlawfully  cut 
timber  from  the  plaintiff's  land.  It  was  held  that  he 
might  show,  in  mitigation  of  damages,  that  he  had,  with 
the  assent  of  the  infant's  guardian,  applied  part  of  the 
proceeds  to  the  payment  of  taxes  upon  and  debts  against 
the  infant's  estate,  but  could  not  show  payments  made 
without  such  consent.  Grover,  J.,  said  :  "  A  trespasser 
cannot  mitigate  the  damages  by  an  offer  to  return  the 
property  to  its  owner ;  but  if  the  owner  accept  the  prop- 
erty, or  otherwise  regains  possession  of  it,  it  may  be 
proved  for  that  purpose,  as  in  that  case  he  is  not  de- 
prived of  his  property.  The  inquiry  is,  what  is  the  amount 
of  damage  sustained  by  the  plaintiff  from  the  wrongful 
act  of  the  defendant.  But  to  warrant  this  evidence,  the 
property  must  be  received  by  the  plaintiff  or  applied  to 
his  use  with  his  assent.  The  law  will  not  permit  a 
wrong-doer  to  take  the  property  of  another  and  apply 
the  same  to  his  use  without  his  assent,  and  if  so  applied, 
the  damages  recoverable  for  the  injury  will  not  be 
thereby  affected.  When  the  owner  voluntarily  receives 
the  proceeds  of  the  property  wrongfully  taken  or  directs 
or  assents  to  their  application  to  his  use,  such  facts  may 
be  shown  in  mitigation,  the  same  as  the  receipt  or  appli- 
cation of  the  identical  property  taken  by  the  treSpasser." 
§  60.  Application  authorized  by  law— Seizure  on  execu- 
tion, etc. — In  certain  cases  the  injured  party  cannot  object 
to  the  application  made  of  the  property ;  in  such  cases 
the  property  is  to  be  considered  as  returned  to  him,(°) 
and  damages  will  be  reduced,  not  by  the  actual  proceeds  of 


(»)  Bringard  v.  Stellwagen,  41  Mich.  54 ;  Doolittle  v.  McCullough,  7  Oh. 
St.  <299. 
C)  58  N.  Y.  185. 
(«)  Kaley  v.  Shed,  10  Met.  317. 
Vol.  I.— 6 


82  COMPENSATION.  §  6o 

the  property,  as  would  be  the  case  if  the  doctrine  of 
recoupment  were  invoked,  but  by  the  value  of  the  prop- 
erty thus  applied.  In  other  words,  no  damages  can  be 
recovered,  in  the  absence  of  special  circumstances,  for 
the  original  taking  of  property  afterwards  so  applied. (") 

Thus  where  goods  in  the  possession  of  a  wrong-doer 
are  seized  by  a  sheriff  on  a  writ  against  the  owner,  sold, 
and  the  proceeds  applied  to  discharge  the  owner's  debt, 
the  damages  recoverable  against  the  wrong-doer  for  con- 
version of  the  goods  will  be  reduced  by  the  value  of  the 
goods-C")  In  some  States  this  may  be  done  even  when 
the  process  was  in  favor  of  the  wrong-doer  himself ;  (") 
but  the  better  view  is  that  to  enable  the  wrong-doer  to 
obtain  a  reduction  of  damages  the  process  must  be  in 
favor  of  a  third  person. ('^)  So  in  Edmondson  v.  Nut- 
tall,(°)   Willes,  J.,   said:  "Subsequently  to  the  conver- 

(»)  Unless  the  property  is  sold  for  less  than  its  value :  Empire  Mill  Co.  v. 
Lovell,  77  la.  loo;  Ward  v.  Benson,  31  How.  Pr.  411. 

(">)  Lazarus  v,  Ely,  45  Conn.  504 ;  Perkins  v.  Freeman,  26  111.  477 ;  Bates 
V.  Courtwright,  36  111.  518  ;  Howard  v.  Manderfield,  31  Minn.  337  ;  Beyersdorf 
■V.  Sump.  39  Minn.  495 ;  Howard  v.  Cooper,  45  N.  H.  339 ;  Ball  v.  Liney,  48 
N.  Y.  6;  Wehle  v.  Spelman,  25  Hun  99 ;  Parker  v.  Connor,  44  N.  Y.  Super. 
Ct.  416;  Morrison  v.  Crawford,  7  Ore.  472;  Mayer  v.  Duke,  72  Tex.  445; 
Stewart  v.  Martin,  16  Vt..  397  ;  Montgomery  r/.  Wilson,  48  Vt.  616. 

(°)  Curtis  V.  Ward,  20  Conn.  204 ;  Lazarus  v.  Ely,  45  Conn.  504 ;  Hopple 
V.  Higbee,  23  N.  J.  L.  342 ;  Morrison  v.  Crawford,  7  Ore.  472 ;  Mayer  v. 
Duke,  72  Tex.  445. 

('')  Stickney  v.  Allen,  10  Gray  352;  Beyersdorf  w.  Sump,  39  Minn.  495! 
Otis  V.  Jones,  21  Wend.  394 ;  Higgins  v.  Whitney,  24  Wend.  379 ;  Sherry  v. 
Schuyler,  2  Hill  204 ;  Ball  v.  Liney,  48  N.  Y.  6 ;  Wehle  v.  Butler,  61  N.  Y. 
24s  ;  Wehle  v.  Spelman,  25  Hun  99.  But  where  a  sale  of  goods  was  made 
by  a  debtor  in  violation  of  the  State  insolvent  laws,  and  the  goods,  while  in 
the  purchaser's  hands,  were  attached  by  a  creditor,  who  held  them  till  the 
institution  of  proceedings  in  insolvency  and  choice  of  an  assignee,  and  then 
delivered  them  to  the  assignee  ;  these  facts  were  allowed  in  mitigation,  in  an 
action  of  tort  brought  by  the  purchaser  against  the  attaching  creditor.  Leg- 
gett  V.  Baker,  13  Allen,  470. 

(•)  34  L.  J.  (C.  P.)  102,  104.  In  the  regular  reports  this  language  is  not 
found,  but  the  substance  of  it  is  given;  17  C.  B.  (N.  S.)  280. 


§  6 1.  INFORMAL   SALE   AFTER   LEGAL   SEIZURE.  83 

sion  the  defendant  acquired  a  right  to  the  goods,  but 
this  is  a  right  which  he  could  not  have  exercised  but  for 
a  wrongful  act  of  his  own  in  taking  possession  of  the 
goods,  and  it  would  be  against  the  plainest  principles  to 
allow  a  man  to  take  advantage  of  his  own  wrong." 

§  61.  Informal  sale  after  legal  seizure. — Where  there  is 
an  informal  sale  by  one  who  has  rightfully  seized  the 
plaintiff's  property  under  authority  of  law,  but  by  the 
informality  becomes  a  trespasser  ab  initio,  the  case  is 
different.  There  is  no  return  of  the  goods  in  that  case 
either  to  the  owner  or  to  his  use ;  and  the  defendant  is 
obliged  to  rely  upon  the  principle  that  he  is  legally  dis- 
charging the  plaintiff's  debt.  The  damages  are  reduced, 
therefore,  not  by  the  value  of  the  goods  seized,  but  by 
the  amount  of  the  debt  paid.  So  in  the  case  of  an  illegal 
distress  without  the  statutory  appraisement  required,  it 
was  intimated  that  the  measure  of  damages  would  be 
the  difference  between  the  fair  value  of  the  goods  and 
the  amount  of  rent  discharged  by  the  proceeds  of  the 
sale.(*)  So  where  goods  were  seized  by  a  tax-collector, 
for  non-payment  of  taxes,  but  a  subsequent  irregularity 
rendered  all  the  proceedings  void,  the  collector  was  held 
liable  for  the  value  of  the  goods  less  the  amount  applied 
to  the  payment  of  the  tax.C) 

Where  a  sheriff  rightfully  seized  property  on  execu- 
tion, but  wrongfully  sold  it  without  due  notice,  it  was 
held  that  though  he  became  a  trespasser  ab  initio,  yet  he 
might  show  his  authority  in  mitigation  of  damages  ;  and 
that  damages  would  be  reduced  to  the  increase  of  price 


(")  Wilson  V.  Nightingale,  8  Q.  B.  1034  {semble)  ;  Biggins  v.  Goode,  2  Cr. 
&  J.  364 ;  Proudlove  v.  Twemlow,  i  Cr.  &  M.  326 ;  Knight  v.  Egerton,  7 
Ex.  407  ;  Mickle  v.  Miles,  i  Grant  320. 

0")  Cressey  v.  Parks,  76  Me.  532. 


84  COMPENSATION.  §§   62,  63. 

that  would  have  been  obtained  if  due  notice  of  the  sale 
had  been  given.  (*) 

So  in  the  case  of  an  executor  de  son  tort,  who  is  liable  for 
the  value  of  goods  appropriated  by  him,  it  was  long  ago  held 
by  Lord  Holt,  that  although  "  he  cannot  plead  payment 
of  debts,  etc.,  to  the  value,  etc.,  or  that  he  hath  given  the 
goods,  etc.,  in  satisfaction  of  the  debts neverthe- 
less, upon  the  general  issue  pleaded,  such  payments  shall 
be  recouped  in  damages."  (**)  But  where  an  officer,  by 
selling  the  attached  property  unlawfully,  had  become  a 
trespasser  ab  initio,  and  it  did  not  appear  that  judgment 
had  been,  or  would  be,  rendered  in  the  original  suit,  and 
the  proceeds  of  the  sale  of  the  attached  property  applied 
on  the  execution,  the  defendant  was  held  not  entitled  to 
a  reduction  of  damages.  (°) 

§  62.  Reparation  which  would  prevent  further  loss. — If 
the  reparation  offered  would  prevent  further  loss,  the  in- 
jured party  is  bound  to  accept  it.  This  is,  however,  not 
a  reduction  of  damages  for  a  loss  already  inflicted,  but 
rather  a  prevention  of  future  loss,  and  it  will  be  discussed 
later  as  part  of  the  subject  of  Avoidable  Consequences. 

§  63.  Benefit  conferred  on  the  injured  party  by  the 
Wrongful  act.-^If  the  wrongful  act  of  the  defendant  at 
once  confers  a  benefit  and  inflicts  an  injury,  the  loss  act- 
ually caused  will  be  the  net  result  of  the  act  to  the  plain- 
tiff ;  and  this  net  result  will  be  the  measure  of  damages. 
Thus,  where  the  defendant  placed  earth  on  the  plaintiff's 
land,  the  damages  will  be  measured  by  the  actual  dam- 
age caused  to  the  land  from  having  the  earth  there.     In 


(")  Wright  V.  Spencer,  i  Stew.  576. 

(^)  Whitehall  v.  Squire,  Carthew  103,  ace.  Mountford  v.  Gibson,  4  East. 
441,  447 ;  Carpenter  v.  Going,  20  Ala.  587 ;  Saam  v.  Saam,  4  Watts  432 ; 
Cook  V.  Sanders,  1 5  Rich.  63. 

(°)  Ross  V.  Philbrick,  39  Me.  29. 


§  64.  IN    AN    ACTION   FOR   FLOODING    LANDS.  85 

Mayo  V.  Springfield, (*)  Field,  J.,  said  :  "  In  determining 
the  extent  of  the  injury  to  the  plaintiff's  land,  the  court 
had  a  right  to  consider  the  benefits,  if  any,  arising  from 
placing  the  earth  upon  the  land.  An  allowance  for  such 
benefits  is  not  in  the  nature  of  recoupment  or  set-off, 
but  a  method  of  determining  the  actual  damages  sus- 
tained." 

In  an  action  against  a  railroad  for  a  nuisance  caused 
by  running  its  tracks  near  the  plaintiff's  land,  and  thereby 
incommoding  his  business,  the  defendant  was  allowed  to 
reduce  damages  by  showing  that  the  plaintiff  could  carry 
on  his  business  to  greater  advantage  in  certain  respects 
on  account  of  the  railroad.C") 

§  64.  In  an  action  for  flooding  lands. — There  is  some 
conflict  of  authority  on  the  question  whether  in  an  ac- 
tion for  flooding  lands  the  defendant  can  be  allowed  for 
benefit,  if  any,  caused  by  the  flowing.  All  allowance  for 
benefit  was  denied  in  Gerrish  v.  The  New  Market  Mfg. 
Co.C)  But  in  Massachusetts,  in  an  action  for  damages 
occasioned  by  the  filling  up  by  the  defendants  of  their 
land  lying  adjacent  to  that  of  the  plaintiff,  whereby  the 
free  flow  of  water  off  the  plaintiff's  land  as  formerly  ex- 
isting had  been  obstructed,  it  was  held  that  instructions 
to  the  jury,  that  "  they  should  take  into  consideration 
the  evidence  on  both  sides  bearing  on  this  point,  and  if 
they  were  satisfied  that  the  filling  up  had  actually  bene- 
fited the  plaintiff's  estate  in  any  particular,  they  would, 
in  assessing  the  damages,  make  an  allowance  for  such 
benefit,  and  give  the  plaintiff  such  sum  in  damages  as 
they  found  upon  the  evidence  would  fully  indemnify  and 


(■)  138  Mass.  70;   ace.  Schroeder  w.  De  Graff,  28  Minn.  299;  Murphy  v. 
Fond  du  Lac,  23  Wis.  365. 

f)  Jeffersonville,  M.  &  I.  R.R.  Co.  v.  Esterle,  13  Bush  667. 
0  30  N.  H.  478  ;  ace.  Tillotson  v.  Smith,  32  N.  H.  90. 


86  COMPENSATION,  §  64, 

compensate  him  for  all  the  damages  he  had  actually  sus- 
tained," were  correct. (*)  So  where  the  defendant  at  first 
erected  a  dam  which,  benefited  the  plaintiff's  property, 
and  the  subsequent  heightening  of  the  dam  caused  the 
injury,  it  was  said  that  the  benefits  should  be  deducted, 
and  therefore,  that  the  value  of  the  plaintiff's  property 
before  any  dam  had  been  erected  would  be  the  standard, 
and  not  the  value  before  the  heightening.  ('')  The  Mas- 
sachusetts rule  seems  to  be  somewhat  restricted  by  late 
decisions.  The  allowance  must  be  confined  to  benefits 
resulting  from  the  overflow  itself,  and  does  not  include 
those  incidentally  received  from  the  defendant's  opera- 
tions in  other  respects.  So  the  benefit  to  the  complain- 
ant's land  by  being  drained  by  a  ditch  made  by  the  re- 
spondent on  his  own  land  to  draw  water  from  a  pond  to 
the  projected  dam,  cannot  be  offset  against  the  damage 
caused  by  the  overflow  of  the  dam  after  its  erection. (°) 
So  where  a  riparian  proprietor,  by  obstructing  a  river 
and  thereby  setting  back  the  water,  becomes  liable  to  a 
mill  owner  for  the  injury' sustained,  he  cannot,  in  an  ac- 
tion by  the  injured  party,  offset  the  benefit  to  the  plain- 
tiff's lands  by  the  removal  of  obstructions  in  the  river  at 
another  time  and  place. ('^)  Benefit  from  the  neighbor- 
hood of  a  mill  cannot  be  considered  in  an  action  for 
flooding  land.(')  Where  in  consequence  of  the  wrongful 
construction  of  a  railway  embankment  the  plaintiff's  lands 
were  flooded,  but  would  have  been  flooded  in  a  lesser  de- 
gree had  the  embankment    not  been   constructed,   the 


C)  Luther  v.  Winnisimmet  Co.,  9  Cush.  171 ;  ace.  Imboden  v.  Etowah  & 
B.  B.  Co.,  70  Ga.  86,  116 ;  Brower  v.  Merrill,  3  Chand.  (Wis.)  46. 
(^)  Howe  V.  Ray,  113  Mass.  88. 
(")  Gile  V.  Stevens,  13  Gray  146. 
(■i)  Talbot  V.  Whipple,  7  Gray  122. 
(°)  Marcy  v.  Fries,  18  Kas.  353. 


§§  65,  66.      NOT  CAUSED  DIRECTLY  BY  WRONGFUL  ACT.      87 

measure  of  damages  was  held  to  be  the  difference  be- 
tween the  two  amounts  of  damage. (*) 

§  65.  On  the  injured  party  in  common  with  others. — But 
even  where  the  value  of  a  benefit  would  be  deducted,  it 
has  been  held  that  the  value  of  one  which  accrues  to 
many  others  with  the  plaintiff,  cannot.  Kellogg  v. 
Malin  C")  was  an  action  on  a  covenant  against  incum- 
brances, the  incumbrance  being  a  right  of  way  in  a  rail- 
road corporation  over  part  of  the  land.  It  was  held  that 
the  defendant  could  not  show  that  the  railroad  raised  the 
value  of  all  land  thereabouts,  including  the  plaintiff's,  for 
that  was  a  common  benefit.  (°) 

So  in  an  action  for  maintaining  a  nuisance,  the  nui- 
sance being  a  factory,  the  defendant  was  not  allowed  to 
show,  in  reduction  of  damages,  that  the  rental  value  of 
the  plaintiff's  premises  was  increased  by  the  increase  of 
population,  that  increase  consisting  of  employees  of  the 
defendant.  (**)  This  qualification  applies  generally  ta 
benefits  which,  by  statute,  are  allowed  to  be  set  off. 
The  allowance  of  benefits  in  condemnation  proceedings  is 
governed  by  special  rules  hereafter  to  be  considered. 

§  66.  Not  caused  directly  by  the  wrongful  act  itself.— If 
the  benefit  is  not  caused  by  the  wrongful  act  itself,  the 
defendant  cannot  claim  a  reduction  of  damages  on  ac- 
count of  it.(°)  So  the  benefit  to  the  plaintiff's  land  by 
being  drained  by  a  ditch  dug  by  the  defendant  to  draw 
water  from  a  certain  pond  to  his  dam  will  not  reduce  the 
damages  recoverable  by  the  plaintiff  for  injury  caused  by 

(»)  Workman  v.  Great  N.  Ry.  Co.  32  L.  J.  Q.  B.  275 ;  St.  Louis,  \.  M.  &  S. 
Ry.  Co.  V.  Morris,  35  Ark.  622 ;  Stewart  v.  Schneider,  22  Neb.  286. 

(^)  62  Mo.  429. 

C)  Ace.  Gilbert  v.  S.  G.  &  N.  A.  Ry.  Co.,  69  Ga.  396 ;  Martinsville  v. 
Shirley,  84  Ind.  546  ;  Koestenbader  v.  Peirce,  41  la.  204;  Marcyw.  Fries,  18 
Kas.  353  ;  Jeffersonville  M.  &  I.  R.R.  Co.  v.  Esterle,  13  Bush  667. 

(*)  Francis  v.  Schoellkopf,  53  N.  Y.  152. 

(=)  Burcky  v.  Lake,  30  111.  App.  23. 


88  COMPENSATION.  §  66. 

the  overflow  of  the  dam.C)  Nor  can  the  defendant  in 
an  action  for  obstructing  a  watercourse  show  that  he  re- 
moved obstructions  at  another  time  and  placcC")  Nor 
can  the  defendant  in  an  action  for  injuring  the  plaintiff's 
land  take  advantage  of  a  benefit  conferred  on  other  land 
of  the  plaintiff.  (")  A  defendant  in  an  action  for  the  se- 
duction of  the  plaintiff's  daughter  cannot  prove  in  reduc- 
tion of  damages  presents  or  money  given  by  him  to  the 
daughter,  C^)  or  the  amount  of  a  judgment  recovered 
against  him  by  the  daughter  for  the  same  act.(') 

Nor  can  benefits  only  indirectly  caused  by  the  wrong- 
ful act  be  shown  to  reduce  damages.  In  an  English 
case,  by  the  defendant's  delay  in  discharging  a  vessel  the 
plaintiffs  lost  profits  in  the  loss  of  the  passage-money  of 
emigrants  who  were  booked  to  sail  in  her.  Some  of  the 
plaintiffs  were  part  owners  of  another  vessel  which  de- 
rived a  benefit  by  receiving  these  emigrants ;  but  it  was 
held  that  the  plaintiffs'  damages  could  not  be  reduced  at 
all  by  these  profits.  (') 

In  an  action  for  failure  to  accept  a  certain  number  of 
bricks  manufactured  by  the  plaintiff,  the  defendant  can- 
not show  that  the  plaintiff,  at  the  time  fixed  for  delivery, 
sold  bricks  at  a  higher  price  than  the  defendant  was  to 
pay ;  for  as  many  bricks  might  have  been  sold  at  the 
higher  price,  even  if  the  defendant  had  received  the 
bricks   he   contracted   for.(^)     So   where,  through   the 

(")  Gile  V.  Stevens,  13  Gray  146. 

C")  Talbot  V.  Whipple,  7  Gray  122. 

(«)  Gerrish  v.  New  Market  Manuf.  Co.,  30  N.  H.  478. 

('')  Russell  V.  Chambers,  31  Minn.  54. 

(«)  Pruitt  V.  Cox,  21  Ind.  15  ;  Sellars  v.  Kinder,  i  Head  134. 

C)  Jebsen  v.  E.  &  W.  Ind.  Dock  Co.,  L.  R.  10  C.  P.  '300 ;  ace.  Coffin  v. 
The  Osceola,  34  Fed.  Rep.  921.  Contra,  Leathers  v.  Sweeney,  41  La.  Ann. 
287.  The  English  case  was  decided  on  the  analogy  of  the  cases  discussed  in 
the  next  section. 

(s)  Canda  v.  Wick,  49  N.  Y.  Super.  Ct.  497. 


§  67.        BENEFIT    RECEIVED    FROM   THIRD    PARTIES.  89 

master's  wrongful  act,  the  delivery  of  a  cargo  of  sugar 
was  delayed  and  part  of  the  sugar  lost  by  leakage,  it  was 
held  that  the  master  could  not  reduce  the  damages  recov- 
ered for  the  sugar  that  was  lost  by  showing  that  during 
the  delay  the  market  price  of  sugar  had  increased.('') 

The  defendant,  in  examining  the  title  to  land  for  the 
plaintiff,  negligently  failed  to  find  an  incumbrance.  The 
plaintiff  took  a  mortgage  on  the  land,  and  in  order  to 
protect  his  mortgage  was  obliged  to  buy  the  land  at  a 
sale  made  to  satisfy  the  prior  incumbrance.  The  value 
of  the  land  advanced  so  much  that  the  plaintiff,  before 
bringing  this  action,  had  sold  it  for  more  than  he  had 
paid  out  in  all ;  but  it  was  held  that  this  fact  could  not 
be  shown  in  reduction  of  damages. C")  So  where  the 
plaintiff,  a  lessee  of  the  defendant,  was  obliged,  in  order 
to  protect  his  possession,  to  take  out  a  new  lease  from 
the  holder  of  the  paramount  title,  it  was  held  in  an  ac- 
tion on  the  covenant  for  quiet  enjoyment  that  the  de- 
fendant could  not  show,  in  reduction  of  damages,  that 
the  plaintiff  had  sold  his  new  lease  at  a  profit.  (") 

§  67.  Benefit  received  from  third  parties  on  account  of  the 
injury. — Damages  cannot  be  reduced  by  an  amount  which 
the  plaintiff  may  have  received  from  third  parties,  acting 
independently  of  the  defendant,  though  it  is  given  to  the 
plaintiff  on  account  of  the  injury.  For  it  is  given  either 
as  a  pure  gift,  not  intended  by  the  giver  to  be  in  lieu  of 
damages,  or  else  it  is  given  in  performance  of  a  contract, 
the  consideration  of  which  was  furnished  by  the  plaintiff. 
In  neither  case  has  the  defendant  any  equitable  or  legal 
claim  to  share  in  the  benefit. 


(•)  Elwell  V.  Skiddy,  ^^  N.  Y.,  282 ;  ace.  Morrison  v.  Florio  S.S.  Co.,  36 
Fed.  Rep.  569. 

0  Harrison  v.  Brega,  20  Up.  Can.  Q.  B.  324. 
(°)  Fitzgibbons  v.  Freisem,  12  Daly  419. 


90  COMPENSATION.  §  67. 

So  no  reduction  of  damages  is  made  because  of  any 
charitable  aid  the  plaintiff  has  received  on  account  of  the 
injury. (*)  Nor  is  he  precluded  from  recovering  the 
value  of  the  time  he  has  lost  by  reason  of  the  injury, 
though  his  employer  has  in  fact  continued  his  salary. C") 

In  an  action  for  breach  of  a  covenant  of  warranty 
under  a  mortgage,  it  was  held  that  the  plaintiff,  having 
paid  the  mortgage  before  judgment,  might  recover  the 
whole  amount  of  it,  although  he  had  previously  conveyed 
the  estate  to  one  who  assumed,  as  a  part  of  the  consider- 
ation of  that  conveyance,  to  pay  part  of  the  mortgage.  (") 

The  amount  received  by  the  plaintiff  on  an  insurance 
policy  cannot  be  shown  to  reduce  the  damages.C*)  In 
Perrott  v.  Shearer,(^)  Cooley,  C.  J.,  said  of  the  defend- 
ant in  such  a  case  :  "  His  equitable  claim  to  a  reduction 
of  damages,  if  he  could  have  any,  would  spring  from  the 
fact  that  the  plaintiff  recovers  pay  for  his  property  twice  ; 
but  the  answer  to  this  is,  that  he  recovers  but  once  for 
the  wrong  done  him,  and  he  receives  the  insurance 
money  upon  a  contract  to  which  the  defendant  is  in  no 
way  privy,  and  in  respect  to  which  his  own  wrongful  act 
can  give  him  no  equities." 


(')  Norristown  v.  Moyer,  67  Pa.  355  ;  as  by  gratuitous  nursing,  Pennsyl- 
vania R.R.  Co.  V.  Marion,  104  Ind.  239. 

C)  Ohio  &  M.  Ry.  Co.  vt  Dickerson,  59  Ind.  317  ;  contra,  Drinkwater  v. 
Dinsmore,  80  N.  Y.  390. 

(")  Estabrook  v.  Smith,  6  Gray  572. 

(f\  Yates  V.  Whyte,  4  Bing.  N.  C.  272  ;  Propeller  Monticello  v.  MoUison, 
17  How.  152 ;  Cannon  v.  The  Potomac,  3  Woods  158 ;  Cunningham  v.  E.  & 
T.  H.  R.R.  Co.,  102  Ind.  478  ;  Hayward  v.  Cairi,  105  Mass.  213  ;  Weber  v. 
M.  &  E.  R.R.  Co.,  35  N.  J.  L.  409;  Kingsbury  v.  Westfall,  61  N.  Y.  356; 
Carpenter  v.  Eastern  Transp.  Co.,  71  N.  Y.  574;  Briggs  v.  N.  Y.  C.  &  H. 
R.  R.R.  Co.,  72  N.  Y.  26 ;  Hammond  v.  Schiff,  100  N.  C.  161 ;  Texas  &  P. 
Ry.  Co.  V.  Levi,  59  Tex.  674 ;  Harding  v.  Townshend,  43  Vt.  536 ;  Brown 
V.  McRae,  17  Ont.  712. 

(')  17  Mich.  48,  56. 


§  68.     DAMAGES  AS  AFFECTED  BY  LIMITED  OWNERSHIP.     9 1 

In  Bradburn  v.  Great  Western  R.  Co.C)  it  was 
held,  in  an  action  for  injuries  suffered  by  the  defendant's 
negligence,  that  a  sum  received  by  the  plaintiff  on  an 
accident  insurance  policy  could  not  be  taken  into  account 
in  reduction  of  damages,  the  court  saying :  "  The  plain- 
tiff is  entitled  to  recover  the  damages  caused  to  him  by 
the  negligence  of  the  defendants,  and  there  is  no  reason 
or  justice  in  setting  off  what  the  plaintiff  has  entitled 
himself  to  under  a  contract  with  a  third  party." 

Where  an  action  is  brought  (under  a  statute)  for  dam- 
ages causing  death,  the  rule  in  England  is  different. 
There  it  is  held  that  since  the  ground  of  the  plaintiff's 
recovery  is  loss  of  support,  it  may  be  shown  that  the 
wrongful  act  has  given  to  the  plaintiff  a  certain  amount 
of  money  from  an  insurance  company  to  apply  to  his 
support.  (^)  In  the  United  States,  however,  the  ordi- 
nary rule  is  followed,  and  the  amount  recovered  is  not 
reduced  by  the  amount  of  insurance  money. (")  In  Can- 
ada the  English  rule  was  at  first  followed,  ('^)  but  the 
contrary  rule  has  been  laid  down  by  the  Privy  Council 
in  a  Canadian  appeal,(^)  and  followed  in  Canada.(') 
What  effect  the  decision  of  the  Privy  Council  will  have 
in  England  remains  to  be  seen. 

Compensation  for  Injury  to  a  Limited  Interest 
IN  Property. 

§  68.  Damages  as  affected  by  limited  ownership. — Prop- 
erty may  be  injured  in  which  two  or  more  persons  have 

(')  L.  R.  10  Ex.  I. 

C)  Blake  V.  M.  Ry.  Co.,  18  Q.  B.  93  ;  Hicks  v.  N.  A.  &  H.  R.R.  Co.,  4  B. 

&  S.  403  n- 

(«)  Sherlock  v.  Ailing,  44  Ind.  184,  199;  Althorf  z/.  Wolfe,  22  N.  Y.  355; 
Terry  v.  Jewett,  17  Hun  395  ;  Harding  v.  Townshend,  43  Vt.  536. 

(■1)  Beckett  v.  Grand  T.  Ry.  Co.,  13  Ont.  App.  174. 

(«)  Grand  T.  Ry.  Co.  v.  Jennings,  13  App.  Cas.  800. 

O  Grand  T.  Ry.  Co.  v.  Beckett,  16  Can.  713. 


92  COMPENSATION.  §§  69,   'JO. 

an  interest,  and  the  amount  of  compensation  recoverable 
by  one  of  the  owners  will  not  usually  be  the  whole 
amount  which  the  wrong-doer  should  pay.  In  no  case 
should  the  fact  that  there  are  two  owners  put  upon  the 
wrong-doer  the  liability  of  paying  increased  damages ; 
and  if  (as  will  sometimes  be  the  case)  one  party  in  inter- 
est recovers  compensation  for  the  entire  injury,  this  is  a 
bar  to  an  action  by  any  one  else,  or  at  least  to  the  recov- 
ery of  more  than  nominal  damages.  But  where  one 
owner  recovers  less  than  the  amount  of  the  injury,  the 
exact  measure  of  his  recovery  is  often  a  matter  difficult 
to  settle. 

§  69.  Damages  recoverable  by  owner  of  limited  interest 
in  land. — Any  one  having  an  interest  in  land  is  liable  to 
suffer  injury  with  respect  to  this  right ;  and  accordingly, 
if  his  right,  however  limited  it  be,  is  injured,  he  may 
recover  compensation  equal  to  his  individual  loss.  The 
general  rule  may  be  said  to  be  that  the  extent  of  the 
injury  to  the  plaintiff's  proprietary  right,  whatever  it 
may  be,  furnishes  the  measure  of  damages.  The  owner 
of  a  freehold  may  recover  for  an  injury  which  perma- 
nently depreciates  his  property,  while  a  tenant,  or  one 
having  only  a  possessory  right,  may  recover  for  an  injury 
to  the  use  and  enjoyment  of  that  right. (")  If  there  is  a 
reversionary  interest,  and  the  defendant  is  answerable 
over  in  part  to  the  reversioner,  the  defendant  must  show 
that  factC) 

§  70.  By  an  occupant  of  land. — The  mere  occupant  of 
premises  injured  by  the  setting  back  of  water  upon  them 
is  entitled  to  damages  to  an  amount  sufficient  to  indem- 


(»)  Gourdier  v.  Cormack,  2  E.  D.  Smith  2<x) ;  Seeley  v.  Alden,  61  Pa.  302 ; 
Jefcoat  V.  Knotts,  13  Rich.  L.  50. 
C)  Todd  V.  Jackson,  26  N.  J.  L.  525. 


§   71-  BY   A'   LESSEE    OF   LAND.  93 

nify  him  for  the  interest  he  had  in  the  premises.(')  So 
it  has  been  held  in  North  Carolina  that  a  cestui  que  trust 
in  possession  may  recover  the  damages  actually  caused 
to  him — that  is,  such  loss  as  he  suffered  through  loss  of 
the  bare  possession — which,  in  the  absence  of  special 
damages,  would  be  nominal  merely.  (**) 

§  71.  By  a  lessee  of  land. — The  injury  to  a  lessee 
may  consist  in  a  definite  and  particular  loss  in  the  enjoy- 
ment of  demised  premises,  or  in  an  act  permanently 
depreciating  the  value  of  the  lease.  In  the  former  case 
the  extent  of  the  particular  loss,  not  the  diminished 
value  of  the  entire  lease  or  of  the  injured  portion  of  the 
premises,  is  the  measure  of  damages.(°)  In  estimating 
the  injury  to  the  tenant's  right  of  possession,  it  may  be 
necessary  to  allow  full  compensation  for  the  injury. 
Thus  where  the  plaintiff  was  the  lessee  for  years  of  cer- 
tain premises  at  an  annual  rent,  with  liberty  to  dig  half 
an  acre  of  brick  earth  annually,  and  covenanted  that  he 
would  not  dig  more,  or  that,  if  he  did,  he  would  pay  an 
increased  rent  of  ;^375  per  half  acre,  being  after  the  rate 
that  all  the  brick  earth  was  sold  for,  and  a  stranger  dug 
and  took  away  brick  earth  ;  the  lessee  recovered  against 
him  the  full  value  of  the  earth  dug,  on  the  ground  that 
by  the  terms  of  the  lease  the  tenant  would  be  liable  over 
for  the  waste  to  the  landlord. C^)  So  where  the  tenant  sues 
for  an  injury  to  the  building  demised,  and  by  the  terms 
of  the  tenancy  the  plaintiff  is  bound  to  make  repairs, 
and  to  restore  the  premises  to  the  landlord  at  the  end  of 

(")  Brown  v.  Bowen,  30  N.  Y.  519.  Where  an  action  is  maintainable  by 
one  who  has  possession  only,  and  is  brought  by  one  claiming  title  as  well  as 
possession,  the  defendant  cannot  show  want  of  title  in  the  plaintiff  in  miti- 
gation of  damages.     Reed  v.  Price,  30  Mo.  442.  " 

C)  Salisbury  v.  Western  N.  C.  R.R.  Co.,  98  N.  C.  465. 

(")  Terry  v.  New  York,  8  BoSw.  504. 

O  Attersoll  v.  Stevens,  i  Taunt.  183. 


94  COMPENSATION.  §  71- 

the  term  in  as  good  a  condition  as  when  they  were 
leased,  then  the  defendant  is  hound  to  enable  the  plain- 
tiff to  put  the  building  in  as  good  a  condition  as  it  was 
when  the  trespass  was  committed.  (") 

In  the  ordinary  case,  however,  the  injury  will  be  to 
the  reversioner  as  well  as  to  the  lessee,  and  the  latter  can 
recover  only  the  loss  to  his  interest,  which  is  the  dimin- 
ished value  of  the  lease.C')  Thus  Heath,  J.,  said,  in 
AttersoU  v.  Stevens :  (")  "  If  trees  are  demised  and  a 
stranger  cuts  them,  the  lessee  shall  have  his  action  of 
trespass  ;  but  the  measure  of  damages  is  not  the  value  of 
the  trees,  but  the  loss  of  the  shade  and  fruit  during  his 
term."  So  the  measure  of  damages  for  an  injury  to  a 
tenant  for  years  caused  by  flooding  his  lands  was  held  to 
be  the  loss  of  the  use  of  the  lands  and  their  yearly  pro- 
ducts.('^)  And  where  in  an  action  of  trespass  by  a  tenant 
against  his  landlord,  the  premises  had  been  in  the  posses- 
sion of  subtenants,  who  before  the  end  of  the  term  left 
them  for  a  consideration  paid  by  the  defendant,  and  the 
defendant  thereupon  removed  the  houses  with  a  view  to 
rebuilding,  the  measure  of  the  tenant's  damages  was  held 
to  be  the  rent  or  value  of  the  use  of  the  premises  for  the 
rest  of  the  term  only.(') 


(")  Walter  v.  Post,  4  Abb.  Pr.  382 ;  6  Duer,  363  S.C.  In  Weston  v.  Grav- 
lin,  49  Vt.  507,  it  was  held  that  a  tenant  could  recover  for  all  the  damage 
done  to  a  house  where  the  acts  directly  interfered  with  the  plaintiff's  enjoy- 
ment of  the  premises,  the  court  saying  that,  as  the  facts  appeared  in  the  case 
at  bar,  the  tenant  would  ordinarily  have  to  repair  the  injuries  in  order  to 
make  the  house  habitable. 

C)  Holmes  v.  Davis,  19  N.  Y.  488;  Sheldon  z/.  Van  Slyke,  16  Barb.  26; 
Van  Buren  v.  Fishkill  &  M.  W.  W.  Co.,  50  Hun  448  ;  Drew  v.  Baby,  I  Up. 
Can.  Q.  B.  438 ;  Fisher  v.  Grace,  37  Up.  Can.  Q.  B.  158 ;  Atkinson  v.  Beard, 
II  Up.  Can.  C.  P.  245. 
•     C)  I  Taunt.  182,  189. 

('')  Grand  Rapids  Booming  Co.  v.  Jarvis,  30  Mich.  308. 

(")  Schlemmer  v.  North,  32  Mo.  206. 


§§  72.   1Z-  SY   A   MORTGAGEE    OF    LAND.  95 

§  72.  By  a  life-tenant  of  land.— In  an  action  by  a  tenant 
for  life  for  damages  to  the  estate,  the  damages  were  held 
to  be  measured  by  the  present  value  of  the  rents  and 
profits  of  the  premises,  multiplied  by  the  probable  num- 
ber of  years  of  the  plaintiff's  life,  less  the  probable  amount 
of  taxes,  repairs,  and  insurance,  and  a  rebate  of  inter- 
est. (^ 

§73.  By  a  mortgagee  of  land. — The  mortgagee  of  real 
estate  out  of  possession  may  bring  an  action  for  the  im- 
pairment of  his  security,  and  may  recover  the  amount 
by  which  his  security  is  impaired,  not,  however,  exceed- 
ing the  amount  of  the  injury.  This  is  generally  held  to 
be  all  he  can  recover,  whether  his  action  is  against  the 
mortgagor  or  his  assignee,  C*)  or  against  a  stranger. (°) 

In  Massachusetts,  however,  it  has  been  held  that  the 
mortgagee,  as  legal  owner,  is  not  limited  in  his  recovery 
to  the  amount  by  which  the  security  may  be  impaired, 
but  is  entitled  to  recover  the  whole  loss.  While  there 
are  perhaps  technical  grounds  for  supporting  this  decision, 
where  the  action  is  by  a  first  mortgagee  against  a 
stranger,  C)  yet  the  doctrine  is  carried  further  and  the 
junior  mortgagee  is  allowed  to  recover  the  whole  amount 
of  the  loss,(°)  even  against  the  mortgagor  or  his  as- 
signee. C)  There  seems  to  be  a  conclusive  objection  to 
such  recovery :  the  junior  mortgagee,  having  no  legal 
title  and  no  possession,  can   bring  no  action  of  trespass 


(»)  Greer  v.  New  York,  i  Abb.  N.  S.  2C36. 

(^)  Cory  V,  Silcox,  6  Ind.  39 ;  Lane  v.  Hitchcock,  14  Johns.  213  ;  Van  Pelt 
11.  McGraw,  4  N.  Y.  no;  State  w.  Weston,  17  Wis.  107. 

f)  Jackson  v.  Turrell,  39  N.  J.  L.  329 ;  Schalk  v.  Kingsley,  42  N.  J.  L. 
32  ;  Yates  v.  Joyce,  11  Johns.  136 ;  Gardner  v.  Heartt,  3  Den.  232 ;  Atkinson 
V.  Hewett,  63  Wis.  396. 

(^)  Jackson  v.  Turrell,  39  N.  J.  L.  329. 

(=)  Gooding  v.  Shea,  103  Mass.  360. 

O  Byrom  w.Chapin,  113  Mass.  308. 


96  COMPENSATION.  §  73- 

or  waste,  but  is  restricted  to  an  action  on  the  case 
for  the  impairment  of  his  security  ;  and  in  such  an  action, 
as  impairment  is  the  gist  of  it,  so  recovery  should  be  had 
for  such  injuries  only  as  cause  impairment.  But  even  in 
Massachusetts  it  w^as  held  that  the  trespasser  should  be 
allowed  to  show,  in  mitigation  of  damages,  that  the  plain- 
tiff had,  since  the  taking,  under  his  power  of  sale,  sold 
the  property  for  more  than  his  debt  and  prior  incum- 
brances.(*)  The  court  said  :  "The  general  rule  is  that 
the  damages  must  be  precisely  commensurate  with  the 
injury  which  the  plaintiff  suffers  by  the  act  of  wrong  at 
the  time  it  was  committed  ;  but  under  this  rule  the  de- 
fendant is  constantly  permitted  to  give  in  evidence  the 
plaintiff's  subsequent  change  of  relation  to  the  property 
for  the  purpose  of  showing  that  the  damages,  to  which  he 
would  otherwise  have  been  entitled,  have  been  thereby 
diminished." 

A  practical  difficulty  arises  in  case  of  recovery  by  a 
junior  mortgagee.  It  may  be  impossible  to  decide,  in 
the  absence  of  the  first  mortgagee,  whether  the  security 
of  the  junior  mortgagee  alone,  or  of  the  prior  mortgagee 
also,  has  been  impaired.  If  the  injury  was  so  great  as  to 
impair  the  security  of  the  first  mortgagee,  he  has  a  right 
to  compensation  which  cannot  be  barred  by  judgment  in 
favor  of  the  junior  mortgagee.  In  New  Jersey,(^) 
though  the  question  was  not  passed  upon  by  the  court, 
it  has  been  suggested  that  the  money  should  be  paid  into 
court,  and  that  if  the  prior  mortgagee  should  not  come 
in  to  present  his  claim,  the  junior  mortgagee  may  be 
required,  before  taking  it  out,  to  give  a  bond  of  indem- 
nity. In  Massachusetts  it  has  been  held,  as  just  stated, 
that  the  junior  mortgagee's  measure  of  damages  is  not 

(')  King  z/.  Bangs,  120  Mass.  514. 

0")  Jackson  v.  Turrell,  39  N.  J.  L.  329. 


§   74-  BY    A    REVERSIONER.  97 

affected  by  the  existence  of  a  prior  mortgage  •,(^')  but  how 
the  defendant  can  be  protected  against  his  liability  to  the 
prior  mortgagee  is  a  question  not  disposed  of  by  the 
courts  of  that  State. 

§  74.  By  a  reversioner. — In  actions  brought  by  rever- 
sioners for  injuries  to.  their  inheritance  (the  remedy  being 
by  an  action  on  the  case),  it  was  at  first  doubted  whether 
the  reversioner's  remedy  was  not  limited  to  the  case  of 
an  absolute  and  permanent  diminution  of  the  value  of 
the  property  ;  and  in  an  action  for  erecting  a  wall,  where- 
by the  plaintiff's  lights  were  obstructed,  the  declaration 
counting  for  the  plaintiff  as  reversioner,  it  was  insisted 
that  a  temporary  nuisance  could  not  be  an  injury  to  the 
inheritance  ;  but  the  court  held  otherwise,  being  of  opin- 
ion that  an  action  might  be  brought  by  the  tenant  in  re- 
spect of  his  possession,  and  by  the  landlord  or  reversioner 
in  respect  of  his  inheritance,  for  the  injury  done  to  the 
value  of  it.'  It  is  now  well  settled  that,  if  the  act  com- 
plained of  works  any  injury  to  the  inheritance,  or  affects; 
in  any  way  the  reversioner's  title,  the  law  will  remunerate 
him  in  damages. C")     For  example,  building  a  roof  with 

'  Jesser  v.  Gifford,  4  Burr.  2141.     In  pass  would  lie.     Now,  however,  since 

Massachusetts  it  was  held,  previous  to  the    Pub.    Stat.,  ch.    121,    §    12,    r6- 

the  revision  of  the  statutes  of  that  State,  quiring  three  months'  notice  to  be  given 

that  the  owner  of  real  estate  in  the  pos-  in  order  to  determine  estates  at  will, 

session  of  a  lessee,  other  than  at  will,  this  distinction  is  held  to  be  done  away, 

could  not  maintain  trespass  for  an  in-  and  case  is  considered  the  proper  rem- 

jury  to  his  reversionary  interest,  and  edy  for  any  injury  to  the  landlord's  re- 

that  case  was  the  only  remedy.  Lienow  versionary  interest  in  estates  at  will  as 

V.  Ritchie,  8  Pick.  235.  But  if  the  lessee  well  as  others.    French  v.  Fuller,  23 

were  at  will  only,  it  was  held  that  tres-  Pick.  104. 


(")  Gooding  v.  Shea,  103  Mass.  360. 

C)  Shadwell  v.  Hutchinson,  3  C.  &  P.  615;  S.  C.  4  C.  &  P.  333;  Cooper  v. 
Randall,  59  111.  317;  Indianapolis  B.  &  W.  Ry.  Co.  v.  McLaughlin,  77  III. 
275 ;  Illinois  &  S.  L.  R.R.  &  C.  Co.  v.  Cobb,  94  III.  55 ;  Dorsey  v.  Moore, 
100  N.  C.  41 ;  Dutro  v.  Wilson,  4  Oh.  St.  loi ;  Schnable  v.  Koehler,  28  Pa. 
181 ;  Drew  v.  Baby,  I  Up.  Can.  Q.  B.  438;  Atkinson  v.  Beard,  11  Up.  Can. 
C.  P.  245. 

Vol.  I.— 7 


gS  COMPENSATION.  §  74- 

eaves  which  discharge  rain  water  by  a  spout  into  the  ad- 
joining premises  is  an  injury  for  which  the  landlord  of 
such  premises  may  recover  as  reversioner,  while  they  are 
under  demise,  if  the  jury  think  there  is  a  damage  to  the 
reversion.' 

But  the  injury  must  always  be  to  the  reversion,  and  the 
reversioner  cannot  recover  for  damage  to  tenants  mere- 
ly ;(*)  so  a  reversioner  cannot  maintain  an  action  on  the 
case  against  a  stranger  for  merely  entering  upon  his 
land  held  by  a  tenant  on  lease,  though  the  entry  be 
made  in  exercise  of  an  alleged  right  of  way.'  But  case 
lies  by  reversioner  against  one  who  erects  a  dam  on  the 
adjacent  land  and  backs  the  water  on  the  plaintiff's 
mill  race.' 

So,  where  the  defendant,  being  a  lessee  for  years, 
without  leave  opened  a  door  in  the  house  owned  by  the 
plaintiff  as  landlord,  and  the  jury  found  that  the  house 
was  not  in  any  way  weakened  or  injured  by  the  act,  the 
court  refused  to  allow  a  verdict  for  nominal  damages 
to  be  entered,  and  directed  a  new  trial  to  be  had  on  this 
point,  saying  :  "  We  cannot  say  that  the  opening  of  the 
door  in  this  case  affects  the  evidence  of  the  plaintiff's 
title.  That  is  a  question  of  fact."*  But  as  it  is  evi- 
dent that  injuries  of  this  character  are  often  of  a  nature 
very  difficult  to  be  estimated,  the  courts  have  uniformly 
exhibited  great  caution  in  requiring  the  fact  of  damage 
to  the  reversionary  interest  to  be  clearly  established. 
Thus  it  is  held  that,  in  actions  of  this  nature,  it  must  be 
distinctly  averred  in  the  declaration  that  the  act  com- 
plained of  has  been  done  to  the  damage  of  the  reversion, 

'  Tucker  v.  Newman,  li  A.  &  E.  40.        '  Ripka  v.  Sargeant,  7  W.  &  S.  9. 
°  Baxter  v.  Taylor,  4  B.  &  A.  72.  *  Young  v.  Spencer,  lo  B.  &  C.  145. 


(»)  Cooper  V.  Randall,  59  111.  317 ;  Dixon  v.  Baker,  65  111.  518 ;  I.  &  St.  L. 
H.R.  &  C.  Co.  V.  Cobb,  94  111.  55. 


§  75-       BY  A  TENANT  IN  COMMON  OF  LAND.        99 

or  must  state  an  injury  of  such  permanent  nature  as  to 
be  necessarily  injurious  to  the  reversion  ;(")  and  where  a 
verdict  was  obtained  on  a  declaration  alleging  that  the 
defendant  had  constructed  a  wall  so  as  to  overhang  the 
yard  of  which  the  plaintiff  was  reversioner,  and  to  pro- 
duce a  water  drip  in  the  yard,  but  without  alleging  any 
injury  to  the  plaintiff's  reversionary  estate  and  interest 
in  the  premises,  the  judgment  was  arrested  by  the  King's 
Bench.'  So,  again,  it  has  been  held  that  the  obstruction 
of  a  public  navigable  river  is  not  a  damage  to  a  rever- 
sioner out  of  possession  of  premises  abutting  thereon.'' 

As  in  previous  instances,  the  market  value  of  the 
reversion  cannot  be  taken  as  the  measure  of  damages 
where  the  injury  to  be  compensated  is  not  a  permanent 
continuing  one,  but  consists  in  specific  past  damage. 
Thus  in  an  action  by  a  reversioner  for  damages  done  to 
the  reversion,  by  cutting  off  the  eaves  of  a  building  be- 
longing to  him,  and  by  erecting  a  wall  with  a  drip  over 
his  premises,  it  was  held  that,  as  there  might  be  repeated 
actions  for  continuing  the  nuisance,  evidence  for  the 
purpose  of  showing  the  diminution  in  the  salable  value 
of  the  premises  should  be  rejected.C") 

Where  there  are  several  reversioners,  as  tenants  for 
life,  in  tail,  or  in  fee,  each  can  recover  compensation  for 
the  injury  to  his  own  estate. (°) 

§  75-  By  a  tenant  in  common  of  land. — One  tenant  in 
common  of  land  may  maintain  an  action  for  injury  to 
the  land  if  the  non-joinder  of  the  other  tenants  in  com- 

'  Jackson  v.  Pesked,  i  M.  &  S.  234.  °  Dobson  v.  Blackmore,  9  Q.  B.  991. 

C)  Chicago  V.  McDonough,  112  III.  85  ;  Tinsman  v.  B.  D.  R.R.  Co.,  25  N. 
J.  L.  255  ;  Halsey  v.  L.  V.  R.R.  Co.,  45  N.  J.  L.  26. 
(*)  Battishill  v.  Reed,  18  C.  B.  696. 
(")  Zimmerman  v.  Shreeve,  59  Md.  357. 


lOO  COMPENSATION.  §  76. 

mon  is  not  pleaded  in  abatement,  and  may  recover  his 
share  of  the  damages.(*)  So  one  of  two  reversioners 
may  maintain  an  action,  if  the  defendant  does  not  plead 
in  abatement,  and  recover  his  share  of  the  damages.  C") 

Where,  under  the  old  practice  in  ejectment,  a  recovery 
was  effected  on  the  demise  of  two  only,  out  of  several 
tenants,  and  suit  was  afterward  brought  for  mesne  prof- 
its, it  was  held  that  none  but  the  shares  of  the  mesne 
profits  to  which  those  two  tenants  were  entitled  could 
be  recovered. (°)  So,  where  a  plaintiff  in  ejectment  was 
tenant  in  common  of  the  premises  withheld,  with  one 
not  a  party  to  the  suit,  he  was  entitled  to  recover  as 
damages  for  the  detention  a  part  of  the  mesne  profits 
only,  in  proportion  to  his  interest,  and  not  the  whole. (^) 

Where  one  tenant  in  common  sues  the  other  for  ex- 
cluding him  from  the  land,  the  measure  of  damages  is 
the  proportional  part  of  the  rental  value,  and  not  of  the 
profits  which  may  in  fact  have  been  received  by  the 
defendant.(°) 

§  76.  By  a  possessor  of  chattels  against  a  trespasser. — '■ 
By  a  peculiar  doctrine  of  the  law  of  personal  property, 
the  possessor  of  such  property  is  endowed,  for  the  pur- 
pose of  protecting  it  against  strangers,  with  all  the  rights 
of  ownership.  It  follows  from  this  general  principle 
that  one  in  possession  of  a  chattel  may  recover  from  a 
stranger  who  injures  it  full  damages,  and  in  that  case  he 
will  be  held  responsible  at  law  to  the  owner  (')  for  all  the 
damages  above  the  amount  of  his  own  interest.     And 


(»)  Daniels  v.  Brown,  34  N.  H.  454. 
C")  Putney  v.  Lapham,  10  Cush.  232. 
(")  Holdfast  V.  Shepard,  9  Ired.  222. 
(0)  Clark  V.  Huber,  20  Cal.  196.  • 
(=)  Cutter  V.  Waddingham,  33  Mo.  269. 

0  Heydon  &  Smith's  Case,  13  Co.  67;  Treadwell  v.  Davis,  34  Cal.  601 ; 
White  v.  Webb,  1 5  Conn.  302 ;  Schley  v.  Lyon,  6  Ga.  530 ;  Atkins  v.  Moore, 


§   76-     POSSESSOR  OF  CHATTELS  AGAINST  TRESPASSER.       lOI 

SO  it  has  been  held  in  the  various  cases  of  consignors, (') 
depositaries,  C")  factors,  (°)  lessees,  (*)  lieno  rs,  (")  pledgees,  (') 
sheriffs,(^)  and  finders  of  property-C") 

Thus,  where  the  plaintiff  was  a  collector  and  trans- 
mitter of  small  parcels  and  responsible  for  their  safe  de- 
livery, he  was  allowed  to  recover  the  full  value  against  a 
railway  company,  in  an  action  of  case  for  negligence,  on 
the  ground  of  his  liability  to  pay  their  value  to  the  true 
owner,  whether  he  had  actually  paid  it  or  not-C") 

Again,  where  unredeemed  pledges  deposited  with  the 
plaintiff  in  the  way  of  his  trade  as  a  pawnbroker,  and 
which  were  held  under  the  English  law  to  be  protected 
from  distress,  had  been  seized  by  his  landlord  under  a 
distress  warrant,  it  was  held  in  an  action  of  trover  for  the 
goods,  that  as  the  defendant  was  an  absolute  wrong-doer, 
without  color  of  right,  the  bailee  was  entitled  to  recover 
their  full  value.  (^) 


82  111.  240 ;  Davidson  v.  Gunsolly,  i  Mich.  388 ;  Burk  v.  Webb,  32  Mich.  173 ; 
Chesley  v.  St.  Clair,  i  N.  H.  189. 

(»)  Crouch  V.  L.  &  N.  W.  Ry.  Co.,  2  C.  &  K.  789 ;  Finn  v.  W.  R.R.  Co., 
112  Mass.  524;  Garretson  v.  Brown,  26  N.  J.  L.  425. 

Q')  Rooth  ».  Wilson,  I  B.  &  Aid.  59;  Burton  v.  Hughes,  2  Bing.  173. 

(=)  Groover  v.  Warfield,  50  Ga.  644. 

(■1)  St.  L.  I.  M.  &  S.  Ry.  Co.  v.  Biggs,  50  Ark.  169 ;  Freeman  v.  Underwood, 
66  Me.  329  ;  Harker  v.  Dement,  9  Gill  7 ;  Caswell  v.  Howard,  16  Pick.  562 ; 
Baker  v.  Hart,  52  Hun  363. 

(«)  Arnd  v.  Amiing,  53  Md.  192 ;  Davidson  v.  Gunsolly,  i  Mich.  388  ;  Hays 
V.  Riddle,  i  Sandf.  248  ;  Hill  v.  Larro,  53  Vt.  629. 

O  Swire  v.  Leach,  18  C.  B.  (N.  S.)  479 ;  Treadwell  v.  Davis,  34  Cal.  601 ; 
U.  S.  Ex.  Co.  V.  Meints,  72  111.  293 ;  Soule  v.  White,  14  Me.  436 ;  Pomeroy 
V.  Smith,  17  Pick.  85;  Ullman  v.  Barnard,  7  Gray  554;  Adams  i-.  O'Connor, 
100  Mass.  515  ;  Mechanics'  &  Traders'  Bank  v.  Farmers'  &  -Mechanics'  Bank, 
60  N.  Y.  40 ;  Alt  V.  Weidenberg,  6  Bosw.  176 ;  Lyle  v.  Barker,  5  Binn.  457. 

(B)  Robinson  v.  Ensign,  6  Gray  300;  Burk  z/.  Webb,  32  Mich.  173;  Poole 
V.  Symonds,  I  N.  H.  289 ;  Buck  v.  Remsen,  34  N.  Y.  383. 

(■>)  Armory  v.  Delamirie*  i  Stra.  504.- 

(^)  Crouch  V.  L.  &  N.  W.  Ry.  Co.,  2  C.  &  K.  789. 

(1)  Swire  v.  Leach,  18  C.  B.  .(N.  S.)  479- 


I02  COMPENSATION.  §  TT- 

And  where  certain  formalities  are  required  by  statute 
for  the  attachment  of  pledged  property,  and  a  sherifif  pre- 
tends to  attach  pledged  property  without  following  out 
the  method  prescribed,  he  is  liable  to  the  pledgee  for  the 
whole  value  of  the  property.  (*) 

The  plaintiff  was  lessee  of  a  quarry,  with  the  right  to 
take  out  stone.  The  defendant  wrongfully  quarried  and 
carried  away  stone,  and  the  plaintiff  sued  him  for  conver- 
sion. It  was  held  that  the  plaintiff  had  sufficient  interest 
in  the  stone  to  bring  trover,  and  could  recover  the  whole 
value  of  it.(^)  In  a  similar  action  by  a  lessee  against  a 
trespasser  who  carried  away  fruit,  it  was  held  that  the 
lessee  could  recover  the  full  value  of  the  fruit.  (°) 

In  an  isolated  case  in  Alabama,  intimating  that  he  who 
has  a  bare  possessory  right  is  not  entitled  to  full  dam- 
ages, the  facts  are  not  clearly  reported. (*)  Of  the  cases 
cited  by  the  court,  two  are  actions  against  the  general 
owner,  and  one  is  an  action  by  a  joint  owner.  It  can 
hardly  be  regarded  as  authority  on  the  point  under  dis- 
cussion. 

§  77.  In  replevin  by  one  who  counts  on  possession  merely. 
— The  same  rule  should  prevail  in  replevin ;  the  person 
from  whose  possession  goods  have  been  taken  wrongfully 
by  a  stranger  should  recover  the  full  value  of  the  goods, 
either  in  an  action  on  the  bond,  or,  in  those  States  per- 
mitting such  a  proceeding,  in  the  original  action.  And 
such  is  the  doctrine  generally  held.(°) 


(»)  Pomeroy  v.  Smith,  17  Pick.  85  ;  Compton  v.  Martin,  5  Rich.  L.  14. 

(»)  Baker  v.  Hart,  52  Hun  363. 

(°)  Freeman  v.  Underwood,  66  Me.  229. 

(■i)  Sterrett  v.  Kaster,  37  Ala.  366. 

(')  Broadwell  v.  Paradice,  81  111.  474;  Atkins  v.  Moore,  82  111.  240;  Burt 
V.  Burt,  41  Mich.  82;  Dilworth  v.  McKelvy,  30  Mo.  149;  Fallon  v.  Manning, 
35  Mo.  271  ;  Frei  v.  Vogel,  .1.0  Mo.  149;  Miles  v.  Walther,  3  Mo.  App.  96  ; 
Frey  v.  Drahos,  7  Neb.  194 ;  Buck  v.  Remsen,  34  N.  Y.  383. 


§  78.     POSSESSOR  OF  CHATTELS  AGAINST  THE  OWNER.       103 

But  there  seems  a  disposition  on  the  part  of  some 
courts  to  hold  that  the  mere  possessor  can  recover  in  this 
case  compensation  for  his  own  interest  only.C)  And  so 
it  has  been  held  in  Iowa  that  where  goods  in  the  posses- 
sion of  a  sheriff  are  wrongfully  replevied  by  a  stranger, 
the  damages  are  limited  to  the  amount  of  the  execu- 
tion. (*•)  Unless  these  cases  are  to  be  justified  by  local 
usage  (on  which  the  Maryland  court  seemed  to  rely)  or 
on  the  form  of  the  statute,  they  can  hardly  be  supported. 

In  Ohio  the  statute  authorizes  the  jury  to  give  one 
who  has  a  mere  right  of  possession  such  damages  as  he 
has  sustained.  It  is  held  that  according  to  this  statute 
the  prevailing  party  is  limited  to  the  value  of  his  inter- 
est, (°)  or  if  that  exceeds  the  value  of  the  goods  replev- 
ied, to  the  value  of  the  goods.  (*) 

§  78.  By  the  possessor  of  chattels  in  an  action  against 
the  owner. — The  rule  which  puts  the  possessor  of  chattels 
in  the  position  of  the  owner  in  actions  against  strangers  does 
not  apply  where  the  wrong-doer  is  himself  the  owner.  In 
such  a  case,  according  to  the  general  principle,  the  pos- 
sessor wrongfully  deprived  of  the  possession  can  recover 
only  the  amount  by  which  he  is  actually  damaged  ;  that  is, 
the  amount  of  his  interest  in  the  property.  (^) 

C)  Noble  V.  Epperly,  6  Ind.  468 ;  Cumberland  Coal  and  Iron  Co.  v.  Tilgh- 
man,  13  Md.  74. 

C)  Hayden  v.  Anderson,  17  Ta.  158,  165;  contra.  Buck  v.  Remsen,  34 
N.  Y.  383. 

(=)  Jennings  7/.  Johnson,  17  Ohio  154.  So  in  Michigan:  Darling  2/.  Teg- 
ler,  30  Mich.  54. 

("i)  Latimer  v.  Motter,  26  Oh.  St.  480. 

(«)  In  general :  Sopris  v.  Lilley,  2  Col.  496 ;  Schley  v.  Lyon,  6  Ga.  530 ; 
Benjamin  v.  Stremple,  13  111.  466 ;  Davidson  v.  GunsoUy,  i  Mich.  388 ;  Fitz- 
hugh  z/.  Wiman,  9  N.  Y.  559;  Seaman  v.  Luce,  23  Barb.  240;  Rhoads  7/. 
Woods,  41  Barb.  471. 

Factor :  Frost  v.  Willard,  9  Barb.  440. 

Lessee  :  Compton  v.  Martin,  5  Rich.  L.  14 ;  Hickok  v.  Buck,  22  Vt.  149. 

Lienor :  Albert  v.  Lindau,  46  Md.  334 ;   Jarvis  v.  Rogers,  1 5  Mass.  389 ; 


I04  COMPENSATION.  §  78. 

"  If  the  defendant,  in  the  assertion  and  vindication  of 
his  supposed  rights,  and  not  for  fraudulent  purposes,  or 
as  a  mere  stranger,  replevied  the  property,  the  measure 
of  damages  in  this  action  is  not  necessarily  the  value  of 
the  property,  but  the  extent  of  the  plaintiff's  injury  by 
being  deprived  of  such  right  as  he  in  fact  had  in  the 
property  when  return  thereof  should  have  been  made. 
....  The  true  question  is,  what  has  the  plaintiff  lost, 
or  to  what  amount  is  he  injured  by  the  failure  of  the  de- 
fendant to  return  the  property  ?  and  to  determine  this,  it 
is  material  to  know  the  extent  of  his  interest."  (*) 

Accordingly,  when  goods  are  replevied  by  the  owner 
from  one  having  the  right  of  possession,  the  latter  can 
recover  as  damages  only  the  amount  of  his  interest.'(^) 
Thus,  in  Illinois  it  appeared  that  one  B.  distrained  for 
rent.  D.,  the  owner,  replevied  the  property,  but  did  not 
prosecute  the  action,  and  a  return  of  the  property  was 
decreed  to  B.  D.  did  not  return,  and  B.  sued  on  the 
replevin  bond.  His  damages  were  held  to  be,  not  the 
full  value  of  the  property,  but  only  the  value  of  his  spe- 
cial interest,  i.  e.,  the  rent.(°)  Where  goods  were  sold  by 
the  defendant  to  the  plaintiff,  and  delivered,  but  the  title 
was  not  to  pass  until  complete  payment  was  made,  the 

'  Harman  v.  Goodrich,  i  Greene  (la.)  13  ;  Belt  v.  Worthington,  3  G.  &  J.  247. 


IngersoU  v.  Van  Bokkelin,  7  Cow.  670  ;  Case  v.  Hart,  1 1  Ohio  364 ;  Lyle  v. 
Barlcer,  5  Binn.  457,  460. 

Pledgee:  Hurst  z/.  Coley,  15  Fed.  Rep.  645  ;  Clark  v.  Bell,  61  Ga.  147; 
Bradley  v.  Burkett,  82  Ga.  255  ;  Hays  v.  Riddle,  i  Sandf.  248. 

Sheriff:  Bartlett  v.  Kidder,  14  Gray  449 ;  Spoor  v.  Holland,  8  Wend.  445  ; 
Scrugham  v.  Carter,  12  Wend.  131. 

(»)  Warner  n/.  Matthews,  18  111.  83. 

0  Hawley  v.  Warner,  12  la.  42 ;  Jones  v.  Hicks,  52  Miss.  682 ;  Cruts  v. 
Wray,  19  Neb.  581 ;  Dows  v.  Greene,  24  N.  Y.  638 ;  Weaver  v.  Darby,  42 
Barb.  411. 

(=)  David  V.  Bradley,  79  111.  316. 


§  79-     WHERE  OWNER  CANNOT  RECOVER  FULL  VALUE.        I05 

plaintiff  in  an  action  for  conversion  by  wrongfully  resum- 
ing possession  of  the  goods  can  recover  only  his  interest  ; 
that  is,  the  amount  of  his  payments.  (*) 

§  79.  By  a  possessor  of  chattels  where  the  owner  cannot 
recover  the  full  value.— The  possessor,  even  if  he  is  suing 
a  stranger,  cannot  recover  more  than  the  value  of  his 
own  interest  where  the  owner  would  not  have  been  en- 
titled to  recover  more.  In  Sheldon  v.  Southern  Express 
Co.(^)  it  appeared  that  one  T„  being  indebted  to  the  plain- 
tiff, transferred  a  note  to  the  defendant  express  company 
(which  the  company  agreed  to  collect),  giving  the  receipt 
for  it  to  the  plaintiff  as  security  for  his  debt.  The  de- 
fendant, failing  to  collect  it,  allowed  it  to  go  into  the 
hands  of  T.,  who  collected  it  and  paid  the  plaintiff  a 
portion  of  his  debt.  The  measure  of  damages  was  held 
to  be  the  unpaid  portion  of  T.'s  debt  to  the  plaintiff. 

So  although  as  a  general  rule  a  bailee,  e.  g.,  a  ware- 
houseman, may  insure  goods  and  recover  the  full  value 
on  the  policy,  yet  if  the  owner  has  also  insured  them 
the  loss  must  be  apportioned  between  the  companies  in- 
suring. (°)  Where  goods  were  taken  from  the  plaintiff, 
a  naked  bailee,  and  restored  by  the  wrong-doer  to  the 
owner,  nominal  damages  only  can  be  recovered.  (*)  And 
a  pledgee  in  a  suit  against  a  warehouseman  for  wrongful 
delivery  to  the  pledgor  recovers  the  amount  of  his  loan, 
being  less  than  the  value  of  the  property.  (^) 

And  the  rule  is  the  same  where  the  defendant  claims. 


(')  Levan  v.  Wilten,  135  Pa.  61. 

C)  48  Ga.  625. 

(■=)  Home  Ins.  Co.  v.  Baltimore  Warehouse  Co.,  93  U.  S.  527. 

(^)  Squire  v.  Hollenbeck,  9  Pick.  551  ;  Lowell  v.  Parker,  10  Met.  309; 
Mears  v.  Cornwall,  73  Mich.  78  ;  Criner  v.  Pikes,  2  Head  39S. 

(«)  Fifth  National  Bank  v.  Providence  Warehouse  Co.,  20  Atl.  Rep.  203 
(R.  L). 


I06  COMPENSATION.  §  8o. 

under  the  owner,  as  a  vendee.C)  or  an  attaching  sheriff.C*) 
Where  an  officer  had  paid  freight  due  on  goods  attached 
by  him,  and  afterwards,  on  demand  of  a  person  who  had 
a  lien  on  them  for  advances,  refused  to  pay  either  the 
amount  of  the  lien  or  to  release  the  attachment,  it  was 
held,  in  an  action  against  him  for  conversion  of  the 
property,  that  the  amount  he  had  paid  for  the  freight 
must  be  deducted  from  its  value. (°) 

But  of  course  the  amount  that  can  be  recovered  is 
limited  by  the  injury  done  or  the  goods  taken.  (*) 

§  80.  By  an  owner  of  chattels  out  of  possession. — An 
owner  of  chattels,  though  out  of  possession,  can  gener- 
ally recover  full  compensation  for  any  injury  done  to  them  ; 
and  such  recovery  will  bar  action  by  the  possessor.  (°) 

Where,  however,  the  defendant  has  a  beneficial  interest 
in  the  property,  the  measure  of  damages  is  reduced 
by  the  amount  of  the  defendant's  interest.  Thus,  a 
pledgor  or  other  lienor  can  recover  of  the  pledgee,  in 
an  action  for  a  wrongful  sale  or  other  conversion  of  the 
pledged  goods,  only  the  excess  of  the  value  of  the  prop- 
erty over  the  amount  of  the  debt.(') 


(')  Bel  Jen  v.  Perkins,  78  III.  449 ;  Linville  v.  Black,  5  Dana,  177  ;  Chad- 
wick  7/.  Lamb,  29  Barb.  518. 

0")  Baldwin  v.  Bradley,  69  111.  32 ;  Penland  v.  Leatherwood,  loi  N.  C. 
509 ;  Clark  v.  Lamoreux,  70  Wis.  508. 

if)  Clark  V.  Dearborn,  103  Mass.  335. 

(■i)  Burk  V.  Webb,  32  Mich.  173;  Hamilton  v.  Lau,  24  Neb.  59;  Boyds- 
ton  V.  Morris,  71  Tex.  697. 

C)  Eisendrath  v.  Knauer,  64  111.  396;  Chesley  w.  St.  Clair,  i  N.  H.  189; 
Green  v.  Clarke,  12  N.  Y.  343. 

0  Bac.  Abr.  Bailment,  B. ;  Halliday  v.  Holgate,  L.  R.  3  Ex.  299 ;  Bald- 
win V.  Bradley,  69  111.  32 ;  Loomis  v.  Stave,  72  III.  623  ;  Belden  v.  Perkins, 
78  111.  449;  Ludden  v.  Buffalo  Belting  Co.,  22  111.  App.  415  ;  Shaw  v.  Fer- 
guson, 78  Ind.  547  ;  Rosenzweig  v.  Frazer,  82  Ind.  342  ;  First  Nat.  Bank  of 
Louisville  v.  Boyce,  78  Ky.  42  ;  Baltimore  Mar.  Ins.  Co.  v.  Dalrymple,  25 
Md.  269;  Chamberlain  v.  Shaw,  18  Pick.  278;  Fowler  t-.  Oilman,  13  Met. 
267 ;  Briggs  v.  B.  &  L.  R.R.  Co.,  6  All.  246 ;  Fisher  v.  Brown,  104  Mass, 


§  8o.  BY   OWNER   OUT   OF   POSSESSION.  107 

In  an  English  case,  a  bankrupt  had  deposited  certain 
dock  warrants  for  brandy  in  dock  as  security  for  a  loan, 
and  it  was  agreed  that  the  pledgee  might  sell  the 
brandy  if  the  loan  were  not  repaid  on  the  29th  of  Jan- 
uary following.  The  pledgee  sold  the  brandy  on  the 
28th,  and  on  the  29th  delivered  the  warrants  to  the  pur- 
chaser, who  took  possession  of  the  brandy  on  the  30th. 
This  was  held  by  all  the  court  to  be  a  conversion,  although 
the  bankrupt  could  not  have  redeemed  the  property. 
But  the  majority  of  the  court  held  that  the  wrongful 
acts  of  the  pawnee  did  not  annihilate  the  contract 
between  the  parties,  nor  the  interest  of  the  pawner  in 
the  goods  under  it.  The  pawnee  had  the  right  to  have 
his  debt  deducted  from  the  value  of  the  property  in  es- 
timating damages.  Mr.  Justice  Williams  dissenting, 
held  that  the  bailment  having  been  terminated  by  the 
wrongful  act  of  the  pledgee,  the  property  reverted  to  the 
pledgor  as  its  absolute  owner,  and  as  such  absolute  owner 
he  was  entitled  to  full  damages.  (")  So  where  a  corpora- 
tion wrongfully  sold  stock  of  a  stockholder  for  non-pay- 
ment of  calls,  in  an  action  for  the  conversion  it  was  held 
that  the  plaintiff's  recovery  must  be  diminished  by  the 
amount  of  the  calls.  (^) 

A  note  payable  twelve  months  after  date,  given  to  an 
insurance  company  for  premiums,  was  pledged  by  the 
company  as  collateral  security  for  a  loan  less  than  its 
face.  The  maker  of  the  note  paid  the  loan,  taking  up 
the  note  before  its  maturity.  The  company,  becoming 
insolvent,  assigned  their  property  to  assignees,  who 
brought  trover  for  the  note.     The  action  was  held  main- 


259;  Stearns  v.  Marsh,  4  Den.  227  ;  Levy  v.  Loeb,  47  N.  Y.  Super.  Ct.  61 ; 
Craig  V.  McHenry,  35  Pa.  120;  Wheeler  v.  Pereles,  43  Wis.  332. 

(•)  Johnson  v.  Stear,  15  C.  B.  (N.  S.)  330;  33  L.  J.  C.  P.  130. 

('')  Budd  V.  Multnomah  S.  Ry.  Co.,  15  Ore.  413. 


I08  COMPENSATION.  §  8o. 

tainable,  as  the  note  was  by  its  terms  liable  for  the  com- 
pany's losses  up  to  its  maturity,  and  the  measure  of 
recovery  was  the  balance  of  the  note  over  the  amount  of 
the  loan.C)  So  it  was  held  in  Boutell  v.  Warne.C)  that 
where  property  was  adjudged  to  the  defendant,  the  jury 
should  deduct  from  the  value  of  the  property  the  amount 
paid  by  the  plaintiff  for  the  property  on  a  contract  to 
purchase. 

So  where  an  agent  pawned  his  principal's  watch,  and 
waived  notice  without  authority,  and  the  pledgee  sold  it 
without  notice,  it  was  held  that  the  principal  could  re- 
cover the  excess  of  the  value  of  the  watch  over  the 
money  received  by  the  agent.(°)  So  a  pledgee  who  has 
converted  stock  can  recoup  the  amount  of  assessments 
rightfully  paid  on  the  stock.  (**) 

The  same  principle  is  applied  where  the  action  is 
brought  by  the  owner  of  chattels  against  one  who  has 
succeeded  to  the  rights  of  the  lienor  or  other  possessor. 
Thus  it  was  held  that  a  defendant  who  had  received 
goods  from  the  plaintiff's  agent,  which  were  intended  for 
sale,  but  were  sold  contrary  to  the  instructions  of  the 
principal,  could  have  deducted  from  the  market  value 
of  the  goods  the  amount  paid  by  him  to  discharge  a  lien 
of  a  common  carrier. (") 

By  the  law  of  Massachusetts  an  assignment  in  trust 
for  creditors  is  valid  as  to  those  creditors  only  who  assent 
to  it.  Property  so  assigned .  having  been  attached  by  a 
creditor  of  the  assignor,  it  was  held  that  the  trustee  to 
whom  the  assignment  was  made  could  recover  only  the 


(»)  Fell  V.  McHenry,  42  Pa.  41. 

0")  62  Mo.  350. 

(■=)  Van  Arsdale  v.  Joiner,  44  Ga.  173. 

(■")  McCalla  v.  Clark,  55  Ga.  53. 

(»)  Stollenwerck  v.  Thacher,  1 1 5  Mass.  224. 


§  8o.  BY   OWNER   OUT   OF   POSSESSION.  109 

amount  of  his  own  debt.(*)  Indeed,  wherever  the  de- 
fendant, although  in  the  wrong  in  assuming  or  retaining 
a  possession  which  rightfully  belongs  to  the  plaintiff,  has 
yet  a  legal  or  equitable  interest  in  the  chattel,  the  action 
is  now  treated  on  equitable  principles,  and  the  recovery 
limited  to  the  actual  net  amount  of  the  plaintiff's  claim.  C") 

So  where  one  having  bought  sheep  on  credit  left  them 
in  custody  of  the  vendor,  and  without  default  of  the 
vendee  the  vendor  resold  them,  it  was  held  by  the  Eng- 
lish Court  of  Exchequer  that  the  measure  was  not  their 
value,  but  merely  the  actual  damage  sustained.  (°)  And 
where  the  lessor  of  sheep  sued  the  lessee  for  conversion  of 
the  wool,  on  which  the  lessee  had  alien,  it  was  held  that  the 
amount  of  the  lien  should  be  deducted  from  the  damage.  ('^) 

This  doctrine  applies  only  where  the  defendant  has  an 
interest  in  the  goods ;  and  in  that  case,  the  reduction 
allowed  is  only  the  amount  of  such  interest.  So  where 
the  conversion  sued  for  is  by  an  unlawful  sale  of  goods 
by  one  having  a  lien  on  them,  the  expenses  of  the  sale 
cannot  be  allowed  the  defendant.^')  So  where  a  bailee 
wrongfully  retained  the  property  until  he  secured  judg- 
ment against  the  owner,  and  then  levied  on  the  prop- 
erty, the  owner  was  allowed  to  recover  the  whole  value, 
for  at  the  time  of  the  injury  the  defendant  had  no  inter- 
est in  the  property.  (') 

So,  again,  where  personal  property  has  been  delivered 
under  an  agreement  of  sale,  by  which  the  title  is  not  to 
vest  in  the  vendee  till  the  payment  in  full  of  the  pur- 


(•)  Boyden  v.  Moore,  1 1  Pick.  362. 
(^)  Baltimore  Mar.  Ins.  Co.  v.  Dalrymple,  25  Md.  269. 
p)  Chinery  v.  Viail,  5  H.  &  N.  288 ;  2  L.  T.  R.  (N.  S.)  466. 
(*)  Chamberlain  v.  Shaw,  18  Pick.  278. 
(«)  Briggs  V.  B.  &  L.  R.R.  Co.,  6  All.  246. 

O  Edmundson  v.  Nuttall,  17  C.  B.  (N.  S.)  280;  and  see  St.  John  v. 
■  O'Cbiinel,  7  Port.  466;  Hatheway  v.  F.  R.  Nat.  Bank,  131  Mass.  14. 


no  COMPENSATION.  §  8l. 

chase-money,  but  is  sold  or  mortgaged  to  a  third  party 
or  attached  by  the  vendee's  creditors,  the  general  rule 
remains  unqualified,  and  the  vendor  is  entitled  to  re- 
cover the  full  value  and  interest  from  the  time  of  the 
conversion,  without  any  deduction  for  payments  made 
on  account  by  the  original  vendee ;  for  the  vendee  has 
no  interest  in  the  property  which  could  be  conveyed  to  a 
third  party  or  attached,  and  the  defendant  in  this  case 
has  therefore  no  interest  in  the  property.  (*) 

§  8i.  By  the  mortgagor  or  mortgagee  of  chattels. — The 
right  of  a  party  to  a  mortgage  of  chattels  to  recover  for 
injury  inflicted  by  a  stranger  depends  usually  on  posses- 
sion. It  is  often  held  that  a  chattel  mortgage  does  not 
pass  the  legal  title,  but  only  an  interest  in  the  property, 
to  the  mortgagee.  But  if  the  mortgagee  takes  possession 
of  the  property,  he  stands  in  the  same  position  as  a 
pledgee  with  reference  to  damages,  and  therefore  a 
mortgagee  in  possession  can  recover  full  compensation 
from  a  stranger.  (**)  And  so  a  mortgagor  left  in  posses- 
sion of  the  goods,  no  matter  whether  he  is  regarded  as 
the  legal  owner  or  merely  as  having  an  equitable  interest 
in  them,  can  recover  full  compensation  for  injuries  in- 
flicted by  a  stranger.(°) 


(»)  Brown  v.  Haynes,  52  Me.  578 ;  Angier  v.  Taunton  Paper  Manufactur- 
ing Co.,  I  Gray  621 ;  Colcord  v.  McDonald,  128  Mass.  470.  But  contra, 
Chaffee  v.  Sherman,  26  Vt.  237  ;  Lillie  v.  Dunbar,  62  Wis.  198. 

C")  White  V.  Webb,  15  Conn.  302 ;  Madison  Nat.  Bank  v.  Farmer,  5  Dak. 
282  ;  Warren  Vi  Kelley,  80  Me.  512  ;  Barry  v.  Bennett,  7  Met.  354 ;  Allen  v. 
Butman,  138  Mass.  586;  Densmore  v.  Mathews,  58  Mich.  616;  Adamson  v, 
Petersen,  35  Minn.  529. 

{')  Turner  v.  Hardcastle,  11  C.  B.  (N.  S.)  683 ;  Cram  v.  Bailey,  10  Gray 
87;  Brown  v.  Carroll,  16  R.  I.  604;  Turnpike  Co.  v.  Fry,  88  Tenn. 
296.  In  a  case  in  England  at  nisi  prius  the  court,  in  its  anxiety  to 
punish  the  plaintiff  for  fraud,  seems  to  have  lost  sight  of  the  rights  secured 
by  possession.  The  plaintiff,  in  order  to  baffle  his  creditors,  made  a  colora- 
ble transfer  of  property  to  a  third  party,  but  remained  in  possession  ;  and  the 


§  8 1.   BY  MORTGAGOR  OR  MORTGAGEE  OF  CHATTELS.   Ill 

If  a  mortgagee  brings  suit  against  a  wrong-doer,  and 
pending  the  suit  the  mortgage  is  redeemed,  it  has  been 
held  that  the  plaintiff  can  recover  only  nominal  damages ; 
for  no  longer  having  an  interest  in  the  property,  he  would 
not  hold  the  proceeds  in  trust  for  the  owner. (*)  If  the 
decision  is  sound,  it  would  apply  to  any  case  where  suit 
is  brought  by  a  bailee,  and  possession  is  resumed  by  the 
bailor  pending  the  suit. 

The  party  out  of  possession  should,  if  regarded  as  owner, 
be  allowed  to  recover  full  compensation  from  a  stranger  ; 
and  if  not  the  owner,  compensation  to  the  amount  of  his 
interest,  if  he  recovers  judgment  before  the  other  party. 

So  where,  under  an  execution  against  a  mortgagor  of 
chattels  rightfully  in  possession,  the  chattels  are,  without 
notice  to  the  mortgagee,  sold  to  various  purchasers  so  as 
to  injure  or  sacrifice  the  interest  of  the  mortgagee,  al- 
though the  latter  cannot  maintain  an  action  in  the  nature 
of  trespass  or  trover  for  the  value  of  the  goods,  he  may, 
it  seems,  in  an  action  in  the  nature  of  case,  recover  dam- 
ages to  the  extent  of  the  injury  to  his  interestC*)  In 
such  an  action  by  a  mortgagee  against  the  receiver  of 
the  mortgaged  property  and  others  for  an  injury  to  his 
interest,  the  damages  should  be  confined  to  the  loss  he 
has  suffered  by  the  dispersion  of  the  property  among  the 
several  purchasers.  (°)     A  junior  mortgagee,  suing  for  the 


property  was  injured  by  the  defendant.  It  was  left  to  the  jury  to  find  a  ver- 
dict for  the  plaintiff's  real  and  bona  fide  interest,  and  though  the  property 
taken  was  worth  £2.1,  the  verdict  was  for  one  farthing.  Cameron  v.  Wynch, 
2  C.  &  K.  264. 

(")  Kingz/.  Bangs,  120  Mass.  514.  This  was,  to  be  sure,  a  mortgage  of 
land  ;  but  the  reasoning  of  the  court  would  apply  equally  well  to  a  mortgage 
of  chattels. 

O  Goulet  V.  Asseler,  22  N.  Y.  225. 

(=)  Welch  V.  Whittemore,  25  Me.  86  ;  Googins  v.  Gilmore,  47  Me.  9 ;  Ayer 
V,  Bartlett,  9  Pick.  1 56 ;  Forbes  v.  Parker,  16  Pick.  462  ;  Manning  v.  Mon- 
aghan,  28  N.  Y.  585. 


I  1 2  COMPENSATION.  §  82. 

conversion  of  the  mortgaged  property,  recovers  the  value 
of  his  interest,  that  is,  he  can  be  compensated  only  for 
the  value  of  the  property  above  the  prior  mortgage.  (") 

§  82.  Between  the  parties  to  a  mortgage  of  chattels. — 
When  the  suit  is  between  the  parties  to  the  mortgage,  the 
plaintiff,  whether  he  has  been  .in  possession  or  not,  can, 
on  the  equitable  principle  already  explained,  recover  com- 
pensation only  for  the  injury  done  to  his  interest.  Thus, 
when  a  mortgagor  sues  a  mortgagee  for  prematurely 
seizing  or  selling  the  mortgaged  chattel,  his  recovery  is 
diminished  by  the  amount  of  the  debt.('')  And  where 
the  mortgagee  sues  a  mortgagor  for  conversion  of  the 
mortgaged  property,  the  measure  of  damages  is  the 
amount  of  the  debt  and  interest  (°)  up  to  the  value  of 
the  property ;  (*)  and  the  measure  of  recovery  is  the 
same  against  one  who  stands  in  place  of  the  mortgagor, 
as  his  vendee  or  attaching  creditor.  (') 

In   an   action  of   trover  by  a  mortgagee  of   chattels 


(«)  Straw  V.  Jenks,  43  N.  W.  Rep.  941  (Dak.). 

C)  Brierly  v.  Kendall,  17  Q.  B.  937  ;  Toms  v.  Wilson,  32  L.  J.  (N.  S.)  Q.  B. 
382,  4  B.  &  S.  442 ;  McClure  v.  Hill,  36  Ark.  268 ;  Jones  v.  Horn,  51  Ark. 

19  ;  Treat  v.  Gilmore,  49  Me.  34 ;  Dahill  v.  Booker,  140  Mass.  308 ;  Bearss 
V.  Preston,  66  Mich.  11  ;  Torp  v.  Gulseth,  37  Minn.  135  ;  Kimball  v.  Mar- 
shall, 8  N.  H.  291 ;  Russell  v.  Butterfield,  21  Wend.  300;  McAulay  v.  Allen, 

20  Up.  Can.  C.  P.  417. 

C)  Perrigo  G.  M.  &  T.  Co.  v.  Grimes,  2  Col.  651  ;  Bailey  v.  Godfrey,  54 
111.  507;  Mcfadden  v.  Hopkins,  81  Ind.  459;  Parish  v.  Wheeler,  22  N.  Y. 
494;  Hinman  z/.  Judson,  13  Barb.  629;  Warner  w.  Vallily,  13  R.  I.  483; 
Williams  v.  Dobson,  26  S.  C.  no;  Ward  v.  Henry,  15  Wis.  239;  Lowe  v. 
Wing,  56  Wis.  31. 

(*)  Keith  V.  Haggart,  33  N.  W.  Rep.  465  (Dak.);  Ganong  2/.  Green,  71 
Mich.  I ;  Deal  v.  Osborne,  42  Minn.  102 ;  Smith  v.  Phillips,  47  Wis.  202. 

(•)  Sherman  v.  Finch,  71  Cal.  68;  Albert  -v.  Lindan,  46  Md.  334  ;  Boyden 
7/.  Moore,  11  Pick.  362;  Howe  z/.  Bartlett,  8  All.  20;  Ganong  v.  Green,  71 
Mich.  1  ;  Becker  v.  Dunham,  27  Minn.  32 ;  Hamilton  v.  Lau,  24  Neb.  59 ; 
Carpenter  v.  Cummings, 40  N.  H.  158;  Williams  v.  Dobson,  26 S.  C.  no; 
Boydston  v.  Morris,  71  Tex.  697 ;  Chaffee  z/.  Sherman,  26  Vt.  237  ;  Clark  v. 
Lamoreux,  70  Wis.  508. 


§  82.         BETWEEN    THE   PARTIES   TO   A   MORTGAGE.  II3 

against  one  who  had  bought  them  from  the  mortgagor, 
the  defendant  may  show,  in  diminution  of  the  mortga- 
gee's special  interest  in  the  property,  that  other  property 
was  embraced  in  the  mortgage,  and  that  the  plaintiff 
has  reduced  the  same  to  possession.  (")  So  in  an  action 
by  the  mortgagee  of  goods,  against  an  officer  who  has 
taken  a  part  of  them  out  of  his  possession  under  an 
attachment  against  the  mortgagor,  the  defendant  may 
show  in  mitigation  that  the  mortgagee  has  collected  his 
debt  out  of  the  residue. C")  On  the  other  hand,  where 
the  mortgagee  took  possession  of  mortgaged  property 
prematurely,  and  the  mortgagor  brought  replevin,  but 
the  mortgagee's  right  to  the  property  soon  after  vested, 
it  was  held  that  the  mortgagor  could  only  recover  dam- 
ages for  detention  of  the  property  until  the  mortgagee's 
right  to  it  became  vested.  (")  i 

The  rule  in  this  case  is  the  same,  whether  the  plaintiff 
is  the  legal  owner  or  not ;  but  the  reduction  rests  on 
different  grounds  in  the  two  cases.  If  the  plaintiff  has  a 
lien  only,  his  legal  property  is  the  lien,  and  he  recovers 
damages  for  injury  done  to  that :  if  he  is  the  legal  owner 
of  the  property  he  would  on  general  principles  be 
entitled  to  full  damages,  but  to  avoid  circuity  of  action 
the  amount  he  recovers  is  reduced  by  the  amount  of  the 
defendant's  interest.  (*)  If  the  plaintiff  has  neither 
legal  ownership  nor  lien,  but  only  an  equitable  interest 
in  the  property,  he  can  recover  nothing  for  injury  to  the 
property :  his  recovery  must  be  upon  the  contract 
between  the  parties. 


(»)  Bailey  v.  Godfrey,  54  111.  507. 
0")  Ward  V.  Henry,  15  Wis.  239. 
(f)  Deal  V.  Osborne,  42  Minn.  102. 

(^)  Peck  V.  Inlow,  8  Dana,  192  ;  Parish  v.  Wheeler,  22  N.  Y.  494,  511. 
Vol.  I.— 8 


114  COMPENSATION.  §83. 

§  83.  By  the  part  owner  of  chattels.— Where  the  inter- 
est of  the  plaintiff  is  a  particular  estate  or  a  reversion  in 
a  chattel  he  can  recover  from  one  who  injures  the  prop- 
erty only  the  amount  he  is  personally  injured,  though 
he  may  be  in  possession  ;  for  his  possession  is  for  himself 
alone,  and  he  has  no  fiduciary  relation  with  the  other 
owners.  Thus  the  life-tenant  of  a  chattel  can  recover,  in 
an  action  for  injury  to  it,  only  the  amount  of  injury 
done  to  his  interest ;  (")  and  the  remainder-man  can 
recover  compensation  for  the  injury  done  to  the  rever- 
sion. In  an  instructive  case  of  this  sortC")  stock  was 
converted  ^during  the  continuance  of  the  life,  and  the 
remainder-man  brought  action  ;  but  before  trial  the  life- 
tenant  died.  It  was  held  that  the  measure  of  damages 
was  the  value  of  the  stock  at  the  expiration  of  the  life, 
not  at  the  time  of  conversion.  Where  a  party  is 
entitled  to  recover  on  a  bond  as  the  cestui  que  trust,  he 
can  recover  only  the  amount  of  his  interest,  although 
the  obligee  might  have  recovered  for  him  a  greater 
sum.C) 

Where  one  of  two  joint  owners  sues  for  injury  to 
the  property  jointly  owned,  the  defendant,  though  he 
neglect  to  plead  in  abatement,  may  show  that  the  plain- 
tiff is  only  a  part  owner,  and  the  plaintiff  can  then 
recover  damages  only  in  proportion  to  his  interest. (*) 
Since  at  law   partners   hold    property  simply  as  joint 

(»)  McGowen  *.  Young.  2  Stew.  160 ;  Strong  v.  Strong,  6  Ala.  345  ; 
Russell  V.  Kearney,  27  Ga.  96 ;  Glascock  v.  Hays,  4  Dana  58 ;  Lloyd  v. 
Goodwin,  12  Sm.  &  M.  223. 

(")  Caulkins  v.  Gas-Light  Co.,  85  Tenn.  683. 

(»)  Sweeney  v.  Lomme,  22  Wall.  208. 

(■i)  Hillhouse  v.  Mix,  i  Root  246 ;  Jones  v.  Lowell,  35  Me.  538  ;  Dailey  v. 
Grimes,  27  Md.  440,  451 ;  Thompson  v.  Hoskins,  11  Mass.  419;  Bartlett 
V.  Kidder,  14  Gray  449;  Sherman  v.  F.  R.  Iron  Works  Co.,  5  All.  213; 
Zabriskie  v.  Smith,  13  N.  Y.  322  ;  Green  v.  Edick,  66  Barb.  564;  Turnpike 
Co.  V.  Fry,  88  Tenn.  296. 


§84.  DAMAGES  RECOVERED  IN  SINGLE  ACTION.  II 5 

owners,  one  partner  can  recover  from  one  who  injures 
the  partnership  property  his  proportionate  share  of  the 
full  compensation,  no  matter  whether  the  partnership  is 
or  is  not  solvent,  and  without  regard  to  the  state  of  the 
partnership  accounts.^)  Thus  in  an  Illinois  case  the 
plaintiff,  and  one  of  the  partners  of  the  defendant's  firm, 
purchased  from  the  defendant  a  distillery  business.  The 
stock  was  represented  to  be  much  more  valuable  than  it 
really  was.  The  plaintiff  and  his  partner  gave  their 
partnership  notes  for  the  amount.  The  partner 
absconded.  It  was  held,  that  the  plaintiff  could  only 
recover  his  proportion  of  the  excess  of  the  notes  over 
the  value  of  the  property,  although  he  had  been  obliged 
to  pay  all  the  notes.  C") 

In  these  cases  the  possession  is  joint.  In  tenancy  in 
common  the  possession,  instead  of  being  in  both  owners, 
may  be  in  one  only.  If  that  is  the  case  the  part  owner 
out  of  whose  possession  a  chattel  is  wrongfully  taken  by 
a  stranger  recovers  full  compensation.  (°) 

Time  to  which  Compensation  may  be  Recovered. 

§  84.  Damages  must  be  recovered  in  a  single  action. — 
It  is  an  elementary  principle  of  the  law  that  an  injured 
party  must  not  split  his  cause  of  action  into  various  suits, 
but  must  include  in  his  first  suit  all  items  of  loss  which 
the  wrongful  act  caused  him. 

The  defendant  obstructed  a  watercourse  and  so  over- 
flowed the  plaintiff's  land,  which  comprised  a  tract  of  half  a 
section.  The  plaintiff  brought  suit  for  the  injury  done  to 
part  of  this  land  and  recovered  ;  he  then  brought  another 


(')  Crabtree  v.  Clapham,  67  Me.  326;  Walsh  v.  Adams,  3  Den.  125; 
Berry  v.  Kelly,  4  Robt.  106  ;  Foster  v.  Weaver,  118  Pa.  42. 
C)  Schwabacker  v.  Riddle,  84  111.  517. 
(«)  Hasbrouck  v.  Winkler,  48  N.  J.  L.  431. 


1 1 6  COMPENSATION.  §  84. 

suit  for  the  injury  done  another  portion  of  the  same  half 
section.  It  was  held  that  he  could  recover  nothing  more  ; 
for  he  must  recover  in  the  first  suit  all  the  damage  he 
suffered  from  the  defendant's  act.(')  So  several  suits 
cannot  be  brought  for  a  personal  injury,  even  though  new 
damage  appear.  All  the  damage  must  be  estimated  in 
one  action. (*")  The  question  was  early  considered  by 
Lord  Holt  in  a  case  of  tort'  The  plaintiff  declared  of  a 
battery,  alleging  that  he  had  previously  brought  an  action 
for  it  against  the  defendant,  and  recovered  £11,  and  no 
more ;  and  that  afterward  part  of  his  skull,  by  reason  of 
the  said  battery,  came  out  of  his  head,  and  for  this  sub- 
sequent damage  the  suit  was  brought.  The  defendant 
pleaded  the  recovery  in  bar  and  demurrer.  And  Shower, 
pro  querente,  argued,  "  that  if  a  consequence  will  take 
away  an  action,  for  the  same  reason  it  will  give  an  action." 
But  judgment  was  given  for  the  defendant,  the  whole 
court  being  of  opinion  "  that  the  jury,  in  the  former  ac- 
tion, considered  the  nature  of  the  wound,  and  gave  dam- 
ages for  all  the  damage  that  it  had  done  the  plaintiff." 
The  case  was  moved  again,  when  Holt,  C.  J.,  said  :  "  If 
this  matter  had  been  given  in  evidence  as  that  which  in 
probability  might  have  been  the  consequence  of  the  bat- 
tery, the  plaintiff  would  have  recovered  damages  for  it. 
The  injury,  which  is  the  foundation  of  the  action,  is  the 
battery,  and  the  greatness  or  consequence  of  that  is  only 
in  aggravation  of  damages." 

And  where,  in  an  action  for  breaches  of  a  covenant, 
the  plaintiff  was  entitled  to  damages  accruing  subse- 
quently to  the  bringing  of  the  suit,  but  under  the  erro- 

'  Fetter  v.  Beale,  i  Ld.  Raym.  339,  692  ;  s.  c.  i  Salk.  11. 

C)  Wichita  &  W.  R.R.  Co.  v.  Beebe,  39  Kas.  465.    Ace.  of  a  trespass, 
Pierro  v.  St.  Paul  &  N.  P.  Ry.  Co.,  39  Minn.  451. 
C)  Howell  V.  Goodrich,  69  111.  556. 


§  85.  EARLY   RULE    DIFFERENT.  II7 

neous  instruction  of  the  court,  damages  to  the  time  of 
the  trial  only  were  given,  it  was  held  that  this  afforded 
no  ground  for  bringing  another  action  for  the  same 
breaches.  (") 

It  thus  appears  that  fresh  damages  merely  will  not  give 
a  fresh  action,  and  a  judgment  in  a  suit  founded  on  a 
single  act  of  tort,  will  be  a  conclusive  bar  to  a  second 
suit  for  the  same  injury,  although  harmful  consequences 
have  made  themselves  apparent  subsequent  to  the  first 
suit ;  as  it  will  be  held  that  in  the  first  verdict  the  plain- 
tiff recovered  all  he  was  entitled  to  claim.  Hence  the 
statute  of  limitations  runs  from  the  time  of  the  breach. 
So  where  the  plaintiff  sued  the  defendant  on  a  contract 
made  in  1810,  to  deliver  spring  wheat,  alleging  that  the 
plaintiff  had  resold  the  wheat  to  one  Shephard  as  spring 
wheat,  but  that  it  was  in  fact  winter  wheat,  and  that  in 
consequence  thereof  it  failed;  hereupon  Shephard  sued 
the  plaintiff,  and  recovered  a  judgment,  which  the  plain- 
tiff paid  in  1818,  and  then  brought  this  suit.  The  statute 
of  limitations  was  pleaded,  and  the  Court  of  King's  Bench 
held  it  a  good  bar,  saying  that  the  breach  of  contract 
was  the  gist  of  the  action,  and  that  the  special  damage 
was  stated  merely  as  a  measure  of  the  damages  resulting 
from  that  cause  of  action  ;  and  Bailey,  J.,  said  :  "  If  the 
plaintiff  had  failed  in  proving  the  special  damage  in  the 
case,  it  would  not  have  been  a  ground  of  nonsuit."  ' 

§  85.  Early  rule  different — Loss  after  action  brought. — 
The  principle  of  allowing  prospective  loss  to  be  compen- 
sated was  not  always  recognized.  "  The  general  rule  in 
personal  actions,"  says  Chief  Baron   Comyn,  "  is  that 

'  Battley  v.  Faulkner,  3  B.  &  Aid.  was  not  too  remote  to  be  taken  into 
288.  It  may,  perhaps,  be  doubted  consideration,  but  the  question  does 
whether  the  damage  here  complained  of    not  appear  to  have  been  discussed. 


(")  Winslow  V.  Stokes,  3  Jones  L.  285. 


Il8  COMPENSATION.  §85. 

damages  are  allowed  only  to  the  time  of  the  action  com- 
menced." '  "  Judgments,"  says  the  Constitutional  Court 
of  South  Carolina,  "  generally  refer  to  the  situation  of 
the  parties  at  the  commencement  of  the  suit.  If  at  that 
time  the  plaintiff  had  no  cause  of  action,  he  must  suffer 
a  nonsuit.  It  is  then  the  defendant  is  informed  of  the 
wrong  with  which  he  is  charged,  and  the  redress  which  is 
demanded.  The  declaration,  which  is  but  an  amplification 
of  the  writ,  must  set  forth  the  form  and  manner  of  in- 
jury, to  enable  the  defendant  to  file  the  pleas  necessary 
to  his  defense,  and  the  judgment  must  correspond  with 
the  pleadings.  If  new  matter  be  introduced  subsequent 
to  the  pleadings,  the  defendant  may  be  surprised,  and 
the  judgment  of  the  court  may  not  conform  to  the 
pleadings."  '  So,  too,  in  Massachusetts,  it  has  been  said  : 
"  The  cases  are  decisive  that  by  the  common  law  the 
plaintiff  can  recover  damages  only  to  the  time  of  bringing 
the  action,  and  that  in  this  respect  there  is  no  distinction 
between  actions  of  covenant  and  of  tort."'  The  rule 
arbitrarily  limiting  the  damages  to  the  commencement  of 
the  suit,  was  so  long  adhered  to,  that  up  to  the  time  of 
Lord  Mansfield,  even  in  actions  of  assumpsit,  it  seems  to 
have  been  the  practice  to  compute  the  interest  only  to 
the  time  of  the  bringing  of  the  action ;  that  great  judge, 
however,  declared  the  true  doctrine,  and  said :  "  It  is 
agreeable  to  the  principles  of  the  common  law,  that 
wherever  a  duty  has  incurred  pending  the  writ,  for  which 
no  satisfaction  can  be  had  by  a  new  suit,  such  duty  shall 
be  included  in  the  judgment  to  be  given  upon  the  ac- 
tion already  depending."  But  "in  trespass  and  in  tort 
new  actions  may  be  brought  as  <jften  as  new  injuries  and 

■  Comyn's  Digest,  Damages,  D  ;  and  Pierce  v.  Woodward,  6  Pick.  206.    See, 

Robert  Pilfold's  Case,  10  Coke  115*.  alno,  Catherwood  v.  Caslon,  i  Car,  & 

'  Duncan  v.  Markley,  i  Harper  276.  Marsh.  431. 
'  Powers    V.    Ware,    4    Pick.    106 ; 


§  85.  EARLY   RULE   DIFFERENT.  II9 

wrongs  are  repeated,  and  therefore  damages  shall  be  as- 
sessed only  up  to  the  time  of  the  wrong  complained 
of."> 

It  was  still  later  that  the  true  rule  was  recognized  in 
actions  of  tort.  In  an  action  for  a  libel,  which  had  led  to 
the  plaintiff's  arrest,  both  before  and  after  the  commence- 
ment of  the  suit,  it  was  held  that  the  defendant  might 
insist  that  all  that  took  place  subsequent  to  the  bringing  of 
the  action  should  be  excluded  from  the  consideration  of 
the  jury ;  but  that  after  consenting  to  the  admission  of 
evidence  in  regard  to  what  took  place  after  the  commence- 
ment of  the  suit,  the  jury  were  at  liberty  to  take  it  into 
consideration.'  In  cases  of  contract  the  question  was  once 
raised  whether  the  day  of  the  breach  was  to  fix  the  dam- 
ages ;  that  is,  whether  they  were  to  be  computed  according 
to  the  state  of  things  existing  on  that  day,  and  on  the  as- 
sumption that  such  state  of  facts  would  not  change  dur- 
ing the  time  the  agreement  has  to  run,  or  whether  proof 
should  be  gone  into  as  to  any  fluctuations  that  might 
have  taken  place  prior  to  the  trial  of  the  cause,  and  the 
rights  of  the  parties  determined  by  the  precise  facts." 

This  theory  was  at  the  bottom  of  the  case  of 
Charles  v.  Altin,(')  which  will  be  discussed  at  large  in  a 
later  chapter,  and  offers  the  only  explanation  of  that  de- 
cision. The  theory  is  now  nowhere  held.  In  an  action 
of  assumpsit  against  an  attorney  for  negligence,  the 
Supreme  Court  of  the  United  States  said  :  "  When  the 
attorney  was  chargeable  with  negligence,  his  contract 
was  violated,  and  the  action  might  have  been  sustained 

'  Robinson  v.  Bland,  2  Burr.  1077,        '  This  is  rather  a  question  of  evi- 
1086.  dence,  which  we  shall  consider  more  at 

^  Goslin  V.  Corry,  7  M.  &  G.  343.         large  hereafter. 


e)lSC.  B.46. 


I20  COMPENSATION,  §  86. 

immediately.  Perhaps,  in  that  event,  no  more  than 
nominal  damages  may  be  proved,  and  no  more  recov- 
ered ;  but,  on  the  other  hand,  it  is  perfectly  clear  that 
the  proof  of  actual  damages  may  extend  to  facts  that 
occur  and  grow  out  of  the  injury,  even  up  to  the  day  of 
the  verdict."' 

In  Kentucky,  also,  the  rule  is  recognized  that  loss, 
accruing  subsequent  to  the  suit,  may  be  recovered,  where 
the  subsequent  damages  are  the  very  incident  or  acces- 
sory of  the  principal  thing  demanded,  and  no  action  can 
be  maintained  for  them.'  If  there  is  a  breach  of  con- 
tract, the  right  to  nominal  damages  exists  at  once  to 
vindicate  the  right,  and  suit  may  be  brought ;  if  those 
consequences  of  the  act  for  which  the  law  renders  the 
party  in  default  responsible,  have  developed  themselves 
so  as  to  create  absolute  injury  before  the  verdict,  the  jury 
are  bound  to  give  compensation  for  such  injury  ;  (°)  but 
if  at  the  time  of  trial  the  loss  is  still  only  probable,  the 
verdict  should  be  but  for  nominal  damages. 

§  86.  Damages  for  prospective  loss. — Consequently  the 
plaintiff  in  an  action  recovers  compensation  not  only 
for  such  loss  as  has  already  accrued,  but  also  for 
such  loss  as  he  can  with  reasonable  certainty  show  will 
accrue  in  future.  Thus  in  an  action  of  covenant  by 
trustees  of  a  wife  against  the  husband,  on  his  covenant 
to  pay  off  certain  incumbrances  within  twelve  months, 
although  no  special  damage  was  laid  or  proved,  it  was 
held  that  the  plaintiffs  were  entitled  to  a  verdict  for  the 
whole  amount  of  the  incumbrances.' 

In  an  action  of  contract  the  plaintiff  recovers  all  that 

1  Wilcox  V.  Plummer,  4  Pet.  172, 182.        '  Lethbridge  v.  Mytton    2  B.  &  A. 
'  Trigg  V.  Northcut,  Lit.   Sel.   Cas.     772. 
414. 


(»)  So  in  an  action  for  breach  of  warranty :  Dickey  v.  Weston,  61  N.  H.  23. 


§  86.  DAMAGES   FOR   PROSPECTIVE    LOSS.  121 

he  would  have  made  to  the  time  fixed  for  the  completion 
of  the  contract.  (*) 

Where  a  tenancy  at  will  is  wrongfully  terminated  by 
the  landlord,  the  tenant's  damages  are  not  restricted  to 
the  beginning  of  the  suit,  but  he  may  recover  such  dam- 
ages as  are  the  direct  result  of  his  expulsion,  up  to  the 
time  when  the  tenancy  might  be  lawfully  determined.  (**) 

Prospective  damages  are  frequently  recovered  in  ac- 
tions for  personal  injuries.  Thus  in  such  actions  the 
plaintiff  may  recover  for  permanent  loss  of  earning 
power,  which  includes  both  the  pecuniary  loss  he  has 
sustained  and  that  he  is  likely  to  sustain  during  the  re- 
mainder of  his  life,(°)  or  for  future  pain  or  permanent 
physical  injury.C^)  In  an  action  for  loss  of  service,  the 
plaintiff  may  recover  compensation  for  probable  future 
loss  during  the  continuance  of  the  term  of  service. (")  So 
where  one  had  let  a  slave  for  a  specified  time  to  another, 
from  whose  possession  it  was  immediately  taken  by  a 
third  party,  it  was  held,  in  Missouri,  that  the  lessee  might 
recover  the  value  of  the  slave's  services  from  the  wrong- 


(')  Roper  V.  Johnson,  L.  R.  8  C.  P.  167. 

C")  Palmer  v.  Crosby,  i  Blacki.  139 ;  Ashley  v.  Warner,  11  Gray  43. 

f«)  Barbour  Co.  v.  Horn,  48  Ala.  566 ;  Malone  v.  Hawley,  46  Cal.  409 ;  Chi- 
cago V.  Jones,  66  111.  349  ;  Chicago  v.  Elzeman,  71  111.  131  ;  Pittsburgh,  C.  & 
St.  L.  Ry.  Co.  V.  Sponier,  85  Ind.  165  ;  Ind.  Car  Co.  v.  Parker,  100  Ind.  181 ; 
Sheehan  v.  Edgar,  58  N.  Y.  631  ;  McLaughlin  v.  Corry,  ^^  Pa.  109;  Ful- 
some V.  Concord,  46  Vt.  135. 

C)  Atlanta  &  W.  P.  R.R.  Co.  v.  Johnson,  66  Ga.  259 ;  Russ  v.  Steamboat 
War  Eagle,  14  la.  363 ;  Townsend  v.  Paola,  41  Kas.  591  ;  Alexander  v. 
Humber,  86  Ky.  565  ;  Caldwell  v.  Murphy,  11  N.  Y.  416 ;  Curtis  v.  R.  &  S. 
R.R.  Co.,  18  N.  Y.  534  ;  Ganiard  v.  R.  C.  &B.  R.R.  Co.,  50  Hun  22  ;  Crank 
V.  Forty-second  St.,  M.  &  S.  N.  A.  Ry.  Co.,  53  Hun  425  ;  Birchard  v. 
Booth,  4  Wis.  67  ;  Fox  v.  St.  John,  23  N.  B.  244. 

(»)  HodsoU  V.  Stallebrass,  11  A.  &  E.  301 ;  Hatch  v.  Fuller,  131  Mass.  574; 
Plate  V.  N.  Y.  C.  R.R.  Co.,  37  N.  Y.  472  ;  Cuming  v.  B.  C.  R.R.  Co.,  109 
N.  Y.  95  ;  Whitney  v.  Clarendon,  18  Vt.  252. 


122  COMPENSATION.  §  86. 

doer  for  the  whole  term,  although  the  suit  was  brought 
before  it  had  ended.  (")  And  in  an  action  against  a  sur- 
geon for  negligence  in  healing  the  plaintiff's  broken  leg, 
the  plaintiff  may  recover  compensation  for  inability  to 
use  the  leg  in  the  future  ;  (*")  and  so  in  an  action  by  a 
husband  against  a  railway  company  for  an  injury  to  his 
wife,  his  expenses  for  her  cure  incurred  after  the  bringing 
of  the  suit  were  allowed.  (")  In  a  statutory  action  for  the 
death  of  a  human  being,  the  plaintiff  may  recover  com- 
pensation for  the  loss  of  future  support.  (") 

So  where  the  defendant  was  employed  as  an  attorney, 
to  investigate  securities  on  which  a  loan  was  to  be  made, 
and  it  was  alleged  that  he  had  neglected  to  use  proper 
care,  and  that  the  securities  had  proved  defective,  that  a 
large  amount  of  interest  was  lost,  and  that  probably  a 
portion  of  the  principal  would  be  also  lost ;  the  statute 
of  limitations  was  pleaded,  and  it  appeared  that  the  ex- 
amination of  the  title  took  place  in. 1814,  but  that  the 
insufficiency  was  not  discovered  till  1820,  up  to  which 
time  the  interest  was  paid.  It  was  insisted  that  the  stat- 
ute ran,  not  from  the  time  when  the  insufficient  security 
was  taken,  but  from  the  period  when  the  special  damage 
alleged  in  the  declaration — namely,  the  loss  of  interest — 
accrued.  But  the  statute  was  held  a  good  bar,  and  Hol- 
royd,  J.,  said:  "If  the  action  had  been  brought  imme- 
diately after  the  insufficient  security  had  been  taken,  the 
jury  would  have  been  bound  to  give  damages  for  the  prob- 


(')  Moore  v.  Winter,  27  Mo.  380. 

C)  Chamberlain  v.  Porter,  9  Minn.  260. 

(=)  Hopkins  v.  A.  &  St.  L.  R.R.  Co.,  36  N.  H.  9. 

(■i)  U.  P.  Ry.  Co.  V.  Dunden,  37  Kas.  i  ;  Houghkirk  v.  Del.  &  Hudson 
Canal  Co.,  92  N.  Y.  219;  Eames  v.  Brattleboro,  54  Vt.  471  ;  Hoppe  v.  C.  M. 
&  St.  P.  Ry.  Co.,  61  Wis.  357 ;  Lawson  v.  C.  St.  P.  M.  &  O.  Ry.  Co.,  64  Wis. 
447 ;  Johnson  v.  C.  &  N.  W.  Ry.  Co.,  64  Wis:  425. 


§87.  CONTINUING   AGREEMENTS.  1 23 

able  loss  which  the  plaintiff  was  likely  to  sustain  from  the 
invalidity  of  the  security."'  And  the  authority  of  this 
case  was  recognized  in  the  Court  of  Chancery,  by  Mr. 
Vice-Chancellor  Wigram.' 

In  Goodrich  v.  Dorset  Marble  Co.,(*)  the  defendant, 
by  obstructing  a  stream,  caused  the  water  to  overflow 
the  plaintiff's  meadow.  It  was  held  that  he  might  re- 
cover compensation  for  a  loss  caused  by  the  overflow, 
which  did  not  become  apparent  until  after  the  bringing 
of  the  action.  So  where  the  defendant  negligently  set 
fire  to  the  plaintiflf's  grass-land,  and  the  roots  of  the  grass 
were  destroyed,  damages  for  the  entire  injury  were  held 
to  be  recoverable  at  once.('') 

§  87.-  Continuing  agreements. — Where  an  agreement 
covers  a  long  period  and  is  broken,  there  is  no  doubt 
that  suit  may  be  brought  at  once.  Nor  is  there  any 
doubt  that  prospective  damages  for  the  whole  time  cov- 
ered by  the  contract  may  be  obtained.  So  in  Massachu- 
setts, in  suits  on  the  covenant  of  warranty  and  against 
incumbrances,  the  plaintiff  may  recover  the  amount 
fairly  and  justly  advanced  to  remove  the  incumbrance, 
though  paid  after  the  suit  begins.' 

The  principle  is  now  universally  recognized  that  a  loss 
that  happens  after  action  brought,  as  a  direct  conse- 
quence of  the  wrong  for  which  the  action  was  brought, 
may  be  compensated,  though  it  had  not  happened  or 
could  not  be  foreseen  when  the  action  was  brought.  (") 

'  Howell  V.  Young,  5  B.  &  C.  25g,        '  Smith  v.  Fox,  6  Hare  386,  12  Jur. 
268.    Ace.  Gillon  v.  Boddington,  i  R.     130.     See  12  Wtns.  Saund.  i6g. 
&  M.  i6x.  '  Leffingwell  v.  Elliott,  10  Pick.  204 ; 

Brooks  V.  Moody,  20  Pick.  474. 


(»)  60  Vt.  280. 

O')  Fort  Worth  &  N.  O.  Ry.  Co.  v.  M^allace,  74  Tex.  581. 
(■=)  Pendergast  v.  M'Caslin,  2  Ind.  87 ;  Cannings  v.  Norton,  35  Me.  308  ; 
Whitney  v.  Slayton,  40  Me.  224;  Hagan  v.  Riley,  13  Gray  515. 


124  COMPENSATION,  §§88,89. 

§  88.  Renewed  injury  requires  a  new  action. — Both  in 
contract  and  tort,  where  the  injury  for  which  suit  has 
been  brought  is  repeated,  a  new  action  must  be  brought 
to  recover  compensation  for  the  new  injury.  No  action 
can  be  brought  to  redress  an  injury  before  it  happens ; 
consequently  no  injury  will  be  redressed  which  was  in- 
flicted after  the  date  of  the  writ.  So,  in  slander,  no  evi- 
dence can  be  given  of  words  spoken  after  the  commence- 
ment of  the  action.* 

The  renewed  injuries  may  consist  of  a  series  of  similar 
acts,  as,  for  instance,  trespassing  upon  the  plaintiff's  land 
every  day.  In  such  a  case  each  act  is  plainly  a  new 
injury,  and  successive  actions  must  be  brought  in  order 
to  obtain  redress.  But  the  renewed  injuries  may  be 
caused  by  a  single  continuing  act,  as,  for  instance, 
obstructing  a  stream  and  flowing  the  plaintiff's  land. 
In  such  a  case,  if  the  right  of  the  plaintiff  continues  to 
exist,  each  moment's  continuance  of  the  wrong  is  a  new 
injury.  "  In  the  case  of  a  personal  injury,  the  act  com- 
plained of  is  complete  and  ended  before  the  date  of  the 
writ.  It  is  the  damage  only  which  continues  and  is 
recoverable,  because  it  is  traced  back  to  the  act ;  while 
in  the  case  of  a  nuisance  it  is  the  act  which  continues, 
or,  rather,  is  renewed  day  by  day.  The  duty  which  rests 
upon  the  wrong-doer  to  remove  a  nuisance  causes  a  new 
trespass  for  each  day's  neglect."  (*) 

§  89.  Continuing  breach  of  contract. — A  single  act  of 
the  defendant  may  be  of  such  a  nature  as  to  give  rise  to 
a  continuous  breach  of  his  contract  with  the  plaintiff, 
which,  however,  the  defendant  may  bring  to  a  close  by 
resuming  performance.     In  such  a  case  each  moment 

'  Root  V.  Lowndes,  6  Hill  518  ;  Keenholts  v.  Becker,  3  Den.  346. 


C)  Danforth,  J.,  in  Rockland  Water  Co.  v.  Tillson,  69  Me.  255,  268. 


§  go.     RECOVERABLE  FOR  ACT  DESTROYING  CONTRACT.     I  25 

during  which  the  injury  is  allowed  to  continue  is  really 
a  new  breach  ;  and  if  action  is  brought  during  the  con- 
tinuance of  the  injury,  compensation  can  be  recovered 
for  such  loss  only  as  is  caused  before  the  beginning  of 
the  action. 

Thus,  where  a  contract  to  support  the  plaintiff  is  broken, 
compensation  is  recoverable  only  to  the  date  of  the 
writ ;  (*)  and  so,  on  breach  of  contract  not  to  engage  in 
business  in  a  certain  place,  compensation  can  be  recov- 
ered only  for  loss  suffered  before  the  date  of  the  writ-C") 
So,  on  breach  of  contract  to  keep  a  gate  in  repair,  dam- 
ages are  recoverable  only  to  the  date  of  the  writ,  and  for 
disrepair  after  that  time  a  new  action  may  be  brought.  (°) 
Additional  damage  from  the  continued  withholding  of 
the  conveyance  of  real  estate  sustained  after  the  com- 
mencement of  a  suit  for  breach  of  a  contract  to  convey 
it  cannot  be  recovered  in  that  action,  but  may  in  a  sub- 
sequent one  (*) 

§  90.  Damages  recoverable  for  act  destroying  a  contract. 
— The  wrongful  act  of  the  defendant  may  be  of  such  a 
nature  as  to  put  an  end  to  the  plaintiff's  right  at  once, 
though  the  consequence  is  a  continuing  one.  In  such  a 
case  compensation  may  be  recovered  at  once  for  the 
whole  loss. 

Thus  where  a  breach  of  contract,  though  of  a  sort  to 
be  regarded  as  a  continuing  one,  so  goes  to  the  essence 
of  the  contract  and  destroys  its  object  as  to  justify  the 
plaintiff  in  considering  the  contract  at  an  end,  compen- 
sation may  be  recovered  in  one  action  for  the  entire 
loss.     Whether  or  not  a  breach  puts  an  end  to  the  con- 


(•;  Fay  v.  Guynon,  131  Mass.  31. 
0")  Hunt  V.  Tibbets,  70  Me.  221. 
(«)  Beach  v.  Grain,  2  N.  Y.  86. 
(■i)  Warner  v.  Bacon,  8  Gray  397. 


126  COMPENSATION.  '  §  91. 

tract  is,  in  case  of  doubt,  a  question  of  fact  for  the 
jury.C)  Where  a  defendant  was  sued  on  a  contract  to 
keep  certain  cattle-passes  in  repair,  the  court  refused  to 
allow  prospective  damages,  since,  if  in  the  future  the 
defendant  should  fail  to  repair,  there  would  be  a  new 
injury  and  a  new  cause  of  action  would  accrue ;  (^)  but 
in  another  case,  where  the  contract  was  to  repair  ma- 
chinery in  a  mill,  it  was  held  that  entire  damages  could 
be  recovered,  both  past  and  prospective, (°)  for  the  facts 
showed  that  the  contract  could  not  be  kept  alive. 

We  have  seen  that  a  contract  to  support  is  ordinarily 
a  continuing  one.  But  a  breach  of  contract  to  support 
the  plaintiff  for  life  is  often  of  such  a  nature  that  the 
plaintiff  could  not  reasonably  be  expected  to  return  and 
live  with  the  defendant  afterwards  even  if  he  were  al- 
lowed to  do  so.  In  such  a  case  the  breach  would  be  a 
-total  one,  and  the  plaintiff  could  recover  compensation 
for  prospective  as  well  as  past  loss.('^)  So  in  the  com- 
mon case  of  a  contract  of  service,  the  plaintiff  may 
usually  bring  suit  before  the  term  of  service  expires  and 
recover  compensation  for  his  whole  loss.(°) 

§  91.  Continuing  tort.— Just  as  a  single  wrongful  act 
may  give  rise  to  an  indefinite  number  of  breaches  of 
contract,  so  it  may  give  rise  to  a  continuous  series  of 
torts  which  can  be  brought  to  an  end  by  the  defendant 
discontinuing  the  act. 

As  stated  above,  a  wrongful  act  may  create  a  nuisance 
which  will  continue,  and  each  moment  of  its  continuance 


(»)  Shaffer  v.  Lee,  8  Barb.  412 ;  Remelee  v.  Hal],  31  Vt.  582. 

(*)  Phelps  V.  N.  H.  &  N.  Co.,  43  Conn.  453. 

(■=)  Cooke  V.  England,  27  Md.  14. 

('')  Amos  V.  Oakley,  131  Mass.  413;  Parker  v.  Russell,  133  Mass.  74; 
Wright  V.  Wright,  49  Mich.  624;  Shaffer  v.  Lee,  8  Barb.  412. 

(«)  Sutherland  v.  Wyer,  67  Me.  64 ;  Lamoreux  v.  Rolfe,  36  N.  H.  33. 
Contra,  Gordon  v.  Brewster,  7  Wis.  355. 


§  gi.  CONTINUING   TORT.  I27 

will  be  a  new  tort.  If  in  such  case  action  is  brought,  com- 
pensation can  be  had  only  for  loss  caused  before  the  bring- 
ing of  the  action.  (")  Thus  in  an  action  for  flowing  lands, ('') 
or  for  diverting  (")  or  polluting  C)  a  watercourse,  compen- 
sation can  be  had  only  for  loss  accruing  before  the  date  of 
the  writ ;  and  the  same  is  true  in  the  case  of  an  action  for 
wrongfully  placing  a  structure  on  the  plaintiff's  land,(^)  and 
for  recovery  of  rents  and  profits  against  a  disseizor.  Q 

An  excavation  by  the  owner  of  land  is  not  a  tort,  but 
causing  another's  land  to  fall  by  such  an  excavation  is  a 
tort.  So  where  one  excavation  causes  land  to  fall  sev- 
eral times,  each  fall  is  a  separate  tort,  and  action  may  be 
brought  for  it.(^) 

But  where  the  plaintiff  has  an  easement  of  support 
for  its  structure  in  the  defendant's  land,  and  the  defend- 
ant by  his  excavation  causes  the  structure  to  fall,  the 
injury  caused  by  the  excavation  is  committed  once  for 
all,  and  entire  damages  may  be  recovered  for  it.C") 


(")  Denver  C.  I.  &  W.  Co.  v.  Middaugh,  12  Col.  434;  Duncan  v.  Markley, 
I  Harper,  276;  Cobb  7/.  Smith,  38  Wis.  21  ;  Stadlerr/.  Grieben,  61  Wis.  500. 
In  North  Carolina  by  interpretation  of  a  provision  of  the  code  it  has  been 
held  that  in  a  case  of  continuing  trespass  damages  may  be  recovered  to  the 
time  of  trial ;  but  this  is  recognized  to  be  a  departure  from  the  common  law. 
Pearson  v.  Carr,  97  N.  C.  194;  Dailey  v.  Dismal  Swamp  Canal  Co.,  2  Ired. 
L.  222. 

C")  Polly  V.  McCall,  i  Ala.  Sel.  Cas.  246;  s.  c.  37  Ala.  20;  Benson  z/. 
Chicago  &  A.  R.R.  Co.,  78  Mo.  504;  Nashville  v.  Comar,  88  Tenn.  415. 

(")  Greenup  v.   Stoker,   7   111.    688;    Langford  v.  Owsley,  2  Bibb  2I5»{ 
Dority  v.  Dunning,  78  Me.  381  ;  Shaw  v.  Etheridge,  3  Jones  L.  300. 
,     (^)  Sanderson  v.  Pa.  Coal  Co.,  102  Pa.  370. 

(')  Holmes  v.  Wilson,  10  A.  &  E.  503 ;  Esty  v.  Baker,  48  Me.  495  ;  Rus- 
sell V.  Brown,  63  Me;  203. 

(f)  Larrabee  v.  Lumbert,  36  Me.  440. 

(e)  Mitchell  v.  Darley  Main  Colliery  Co.,  14  Q.  B.  Div.  125,  11  App.  Cas. 
127,  overruling  Lamb  v.  Walker,  3  Q.  B.  D.  389;  McGuire  v.  Grant,  25  N. 
J.  L.  356;  Snarri/.  Granite  Curling  and  Skating  Co.,  i  Ont.  102. 

C)  Rockland  Water  Co.  v.  Tillson,  69  Me.  255  ;  Conlon  v.  McGraw,  66 
Mich.  194. 


128  COMPENSATION.  §92. 

So  in  an  early  action  on  the  case,  where  the  plaintiff 
declared  for  procuring  his  apprentice  to  depart  from  his 
service,  and  for  the  loss  of  his  service  for  the  whole 
residue  of  the  term  of  his  apprenticeship,  and  the  jury 
assessed  damages  generally,  judgment  was  arrested,  be- 
cause it  appeared  that  the  term  was  not  expired  at  the 
commencement  of  the  suit.(*) 

In  New  York,  in  an  action  to  recover  damages  for  en- 
ticing the  plaintiffs  son  away,  and  inducing  him  to  enlist 
in  the  army  for  three  years,  as  a  substitute  for  the  de- 
fendant, it  was  held  by  the  Supreme  Court  that  the  plain- 
tiff could  only  recover  to  the  time  of  the  commence- 
ment of  the  action,  or  at  most  to  the  time  of  the  trial.  C*) 

So  in  an  action  for  enticing  an  apprentice  where  it 
appeared  that  the  apprentice  was  still  in  the  neighbor- 
hood, it  was  held  in  North  Carolina  that  damages  could 
be  recovered  only  to  the  date  of  the  writ.(°) 

Where,  however,  an  action  is  brought  to  abate  a 
nuisance,  and  the  nuisance  is  in  fact  abated  before  the 
trial,  damages  are  given  up  to  the  time  the  nuisance  was 
abated,  and  not  merely  to  the  date  of  the  writ,  although 
the  tort  was  a  continuing  one.(^)  This  is  a  departure 
from  principle,  to  be  justified  on  account  of  its  practical 
convenience. 

§  92.  By  trespass  on  plaintiff's  land. — Where  injury  is 
caused  by  a  trespass  on  the  plaintiff's  land,  since  the  de- 
fendant cannot  remedy  the  wrong  without  another  tres- 
pass, the  injury  is  not  continuing,  but  inflicted  once  for 
all,  and  full  compensation  is  to  be  recovered  in  one  ac- 

(»)  Hambleton  v.  Veere,  2  Saund.  169 ;  ace.  Lewis  v.  Peachy,  i  H.  &  C. 
S18. 

(f)  Covert  V.  Gray,  34  How.  Pr.  450.  Recovery  should  clearly  not  be  al- 
lowed to  time  of  trial. 

(°)  Moore  v.  Love,  3  Jones  L.  215. 

('')  Fritz  V.  Hobson,  14  Ch.  D.  542 ;  Comminge  v.  Stevenson,  76  Tex.  642. 


§  93-  BY    UNAUTHORIZED    PRIVATE    STRUCTURE.  1 29 

tion.  So  where  the  defendant  made  an  excavation  in 
the  plaintiff's  land,  the  entire  damage  was  awarded  in  a 
single  action.  (")  Where  the  defendant  broke  through 
into  the  plaintiff's  mine,  which  afterwards  was  flooded 
through  the  breach,  it  was  held  that  the  entire  damage 
must  be  recovered  in  one  action  ;  C")  and  the  same  deci- 
sion was  reached  where  the  defendant  wrongfully  filled 
up  the  plaintiff's  pond,(°)  and  where  he  threw  up  an  em- 
bankment on  the  plaintiff's  land,  wrongfully  claiming 
that  it  was  a  highway. (*) 

§  93.  By  unauthorized  private  structure  or  use  of  land. — 
If  a  private  structure  or  other  work  on  land  is  the  cause 
of  a  nuisance  or  other  tort  to  the  plaintiff  the  law  can- 
not regard  it  as  permanent,  no  matter  with  what  inten- 
tion it  was  built ;  and  damages  can  therefore  be  recovered 
only  to  the  date  of  the  action. 

So  where  a  stream  is  wrongfully  obstructed  by  a  pri- 
vate dam  or  canal,  the  plaintiff  injured  by  it  can  recover 
compensation  only  to  the  date  of  the  writ.(')  So  in  an 
action  for  obstructing  the  plaintiff's  lights  the  plaintiff  can 
recover  only  to  the  date  of  the  writ ;  (')  and  the  same  is 
true  where  the  defendant  wrongfully  filled  a  canal,(^) 


(»)  Clegg  V.  Dearden,  12  Q.  B.  576;  Kansas  P.  Ry.  Co.  v.  Mihlman,  17 
Kas.  224. 

(>■)  National  Copper  Co.  v.  Minn.  Mining  Co.,  57  Mich.  83  ;  Lord  v.  Car- 
bon Iron  Mfg.  Co.,  42  N.  J.  Eq.  157  ;  Williams  v.  Pomeroy  Coal  Co.,  27  Oh. 
St.  583. 

(")  Finley  v.  Hershey,  41  la.  389. 

(■i)  Ziebarth  v.  Nye,  42  Minn.  541. 

(«)  Langford  v.  Owsley,  2  Bibb.  215  ;  Williams  v.  Camden  and  Rockland 
Water  Co.,  79  Me.  543 ;  Van  Hoozier  v.  Hannibal  &  St.  J.  R.R.  Co.,  70  Mo. 
145  ;  Thayer  v.  Brooks,  17  Oh.  489  ;  Bare  v.  Hoffman,  79  Pa.  71. 

O  Union  Trust  Co.  v.  Cuppy,  26  Kas.  754;  Blunt  v.  McCormick,  3  Den. 
283 ;  Spilman  v.  Roanoke  Nav.  Co.,  74  N.  C.  675  ;  Winchester  v.  Stevens 
Point,  58  Wis.  350  ;  Pugsley  v.  Ring,  Cass.  Can.  Dig.  138. 

(e)  Cumberland  &  Oxford  Canal  v.  Hitchings,  65  Me.  140. 
Vol.  I.— 9 


130  COMPENSATION.  §§  94,  95. 

flowed  the  plaintiff's  landjC)  erected  a  building  which 
was  a  nuisance, (^)  laid  out  a  highway  wrongfully  around 
the  plaintiff's  toll-gate,  thus  depriving  the  plaintiff  of 
tolls.  C) 

§  94.  For  a  tort  causing  permanent  injury. — The  chief 
difficulty  in  this  subject  concerns  acts  which  result  in 
what  effects  a  permanent  change  in  the  plaintiff's  land, 
and  is  at  the  same  time  a  nuisance  or  trespass.  The  sub- 
ject is  one  which  has  become  of  much  importance  in  the 
last  few  years,  in  connection  with  the  construction  of 
railroads  and  great  public  works. 

Courts  of  the  highest  authority  have  differed  on  the 
question.  It  is  urged  on  the  one  hand,  with  much  pro- 
priety, that  the  law  will  not  proceed  upon  the  assump- 
tion that  a  nuisance  or  illegal  conduct  will  continue 
forever,  and  therefore  that  entire  damages  will  not  be 
given,  as  for  a  permanent  injury,  no  matter  how  lasting 
it  seems  destined  to  be.  On  the  other  hand  it  is  urged 
that  the  law  will  not  allow  the  unnecessary  multiplica- 
tion of  suits,  and  will  if  possible  settle  the  entire  contro- 
versy in  a  single  suit ;  and  that  if  the  injury  is  proved 
with  reasonable  certainty  to  be  permanent,  damages 
should  be  allowed  for  the  whole  loss,  past  and  future.  If 
this  view  is  adopted  it  is  to  be  noted  that  as  a  result  the 
defendant  will  by  satisfaction  of  the  judgment  acquire 
a  right  to  do  the  act  previously  wrongful ;  but  this  is  no 
anomaly,  for  the  same  is  true,  for  instance,  on  satisfac- 
tion of  a  judgment  in  an  action  of  trover  for  refusal  to 
deliver  a  chattel,  which  is  of  a  very  analogous  nature. 

§  95.  For  injury  caused  by  lawful  permanent  structure  or 
use  of  land. — If  the  injury  is  caused  by  erecting  a  struc- 

(•)  Hargfreaves  v.  Kimberly,  26  W.  Va.  787. 

0")  Barrick  v.  Schifferdecker,  48  Hun  355. 

{')  Cheshire  Turnpike  Co.  v.  Stevens,  13  N.  H.  28. 


§  95-    I^OR  INJURY  BY  LAWFUL  PERMANENT  STRUCTURE.    131 

ture  or  making  a  use  of  land  which  the  defendant  has  a 
right  to  continue,  the  injury  is  regarded  as  committed 
once  for  all,  and  action  must  be  brought  to  recover  the 
entire  damage,  past  and  future. 

So  in  Stodghill  v.  Chicago,  B.  &  Q.  R.R.  Co.^)  the  Su- 
preme Court  of  Iowa  said  :  "  When  a  nuisance  is  of  such 
character  that  its  continuance  is  necessarily  an  injury, 
and  that  when  it  is  of  a  permanent  character  that  will 
continue  without  change  from  any  cause  but  human 
labor,  the  damage  is  original  and  may  be  at  once  fully 
estimated  and  compensated  ;  .  .  .  .  successive  actions 
will  not  lie.  The  damages  being  entire  and  susceptible 
of  immediate  recovery,   plaintiff  could   not  divide  his. 

claim  and  maintain  successive  actions It  was  the. 

duty  of  plaintiff  to  have  excepted  and  appealed."  s) 

A  typical  instance  is  an  action  against  a  railroad  com- 
pany  for  a  nuisance  caused  by  its  embankment  or  other 
permanent  structure.  In  such  case,  when  the  Constitu- 
tion permits  recovery,  the  great  weight  of  authority  is  to 
the  effect  that  the  injured  party  may,  and  therefore  must, 
recover  compensation  in  one  action  for  the  entire  loss.('') 
And  where  the  building  and  operation  of  the  railroad  pro- 
duces a  nuisance,  as  by  polluting  the  air  by  smoke,  or  by 
obstructing  a  street  by  its  tracks  lawfully  located,  the  rule 
is  generally  held  to  be  the  same.C)  In  some  cases  it  is 
held  that  the  plaintiff  may  recover  prospective  damages, 


(')  S3  la.  341 ;  ace.  Van  Orsdol  v.  B.  C.  R.  &  N.  Ry.  Co.,  56  la.  470. 

0")  Chicago  &  E.  I.  R.R.  Co.  v.  Loeb,  1 18  111.  203,  and  cases  cited ;  Indian- 
apolis B.  &  W.  Ry.  Co.  V.  Eberle,  1 10  Ind.  542  ;  Fowle  v  New  Haven  &  N. 
R.R.  Co.,  112  Mass.  334:  Troy  v.  Cheshire  R.R.  Co.,  23  N.  H.  83  ;  Knapp 
V.  Great  W.  Ry.  Co.,  6  Up.  Can.  C.  P.  187.  So  in  case  of  the  erection  of  a 
dock :  Rust  v.  Victoria  Graving  Dock  Co.,  36  Ch.  Div.  113. 

(°)  Chicago  &  E.  I.  R.R.  Co.  v.  Loeb,  118  111.  203;  Cadle  v.  Muscatine 
W.  R.R.  Co.,  44  la.  II ;  Jeffersonville,  M.  &  I.  R.R.  Co.  v.  Esterle,  13  Bush 


132  COMPENSATION.  §  95- 

treating  the  injury  as  a  permanent  one.C)  And  if  he 
may,  it  is  clear  that  he  must.  Where,  however,  the  com- 
pany can  institute  condemnation  proceedings,  and  espec- 
ially if  such  proceedings  have  actually  been  instituted 
since  the  bringing  of  the  action,  C")  it  has  been  held  that 
damages  in  the  action  of  trespass  can  be  recovered  only 
to  the  date  of  the  writ.(°)  In  a  few  States  it  is  held 
that  even  a  nuisance  caused  by  a  permanent  railroad 
structure  is  continuous,  and  compensation  can  be  recov- 
ered only  for  loss  to  the  date  of  the  action.  C^)  Of  course, 
if  the  structure  or  the  use  of  it  is  unauthorized  by  law,  it 
is  not  to  be  supposed  permanent,  and  compensation  is 
recovered  only  for  loss  to  date  of  writ.(') 

Where  any  other  lawful  work  of  a  permanent  nature 
causes  injury  to  the  plaintiflf  for  which  he  may  recover, 
the  rule  is  the  same,  and  he  must  recover  all  his  damages 
in  one  action.     So  damages  for  the  enlargement  of  a 

C)  Central  B.  U.  P.  R.R.  Co.  v.  Andrews,  26  Kas.  702  ;  Wichita  &  W. 
R.R.  Co.  V.  Fechheimer,  36  Kas.  45, 

(•')  Anderson,  L.  &  St.  L.  R.R.  Co.  v.  Kemodle,  54  Ind.  314 ;  Sherman  v. 
Milwaukee,  L.  S.  &  W^.  R.R.  Co.,  40  Wis.  645. 

(«)  Callanan  v.  Port  Huron  &  N.  W.  Ry.  Co.,  61  Mich.  15. 

(■1)  Omaha  &  R.  V.  R.R.  Co.  v.  Standen,  22  Neb.  343  ;  Uline  v.  New  York  C. 
&  H.  R.  R.R.  Co.,  loi  N.  Y.  98,  following  a  long  line  of  New  York  cases.  In 
Pond  V.  Met.  El.  Ry.  Co.,  112  N.  Y.  186,  the  court  seemed  to  regret  that 
the  law  was  so  established  by  authority,  and  the  rule  is  practically  neutralized 
by  allowing  a  petition  for  injunction  to  be  inserted,  making  it  an  equitable 
action  ;  damages  are  then  given  to  the  time  of  trial,  and  the  defendant  is  re- 
quired to  give  reasonable  compensation  for  the  future  or  to  be  enjoined,  as 
in  Henderson  v.  New  York  C.  R.R.  Co.,  78  N.  Y.  423,  or  by  allowing  the 
parties  to  agree  upon  damages  for  the  whole  period,  as  in  Lahr  v.  Met.  El. 
R.R.  Co.,  104  N.  Y.  268.  Uline  v.  N.  Y.  C,  etc.,  R.R.  Co.  is  followed  in  the 
latest  cases :  Ottenot  v.  New  York,  L.  &  W.  Ry.  Co.,  119  N.  Y.  603.  This 
whole  subject  is  discussed  at  length  in  a  later  chapter  in  connection  with  the 
rules  relating  to  condemnation  proceedings. 

C)  Frith  V.  Chicago,  D.  &  M.  Ry.  Co.,  45  la.  406;  Cain  z/.  C.  R.  I.  &  P. 
Ry.  Co.,  54  la.  255;  Adams  v.  H.  &  D.  R.R.  Co.,  18  Minn.  260;  Harmon 
V.  L.  N.  O.  &  T.  R.R.  Co.,  87  Tenn.  614  ;  Ford  v.  Chicago  &  N.  W.  R.R. 
Co.,  14  Wis.  609 ;  Carl  v.  Sheboygan  &  F.  R.R.  Co.,  46  Wis.  625. 


§  95-    ^O^  INJURY  BY  LAWFUL  PERMANENT  STRUCTURE.     1 33 

public  canal  (*)  or  for  constructing  a  sewer  (^)  or  a  cul- 
vert through  a  railway  embankment  (")  must  be  recovered 
in  a  single  action. 

If  a  permanent  work  rightfully  done  by  public  author- 
ity is  yet  so  negligently  done  as  to  cause  continuing  in- 
jury to  the  plaintiff,  it  is  to  be  supposed  that  the  negli- 
gence will  be  remedied,  and  the  plaintiff  can  therefore 
recover  only  for  loss  to  the  date  of  his  writ.(^) 


('■)  Queen  v.  Hubert,  14  Can.  737. 

0)  Maysville  v.  Stanton.  14  S.  W.  Rep.  675  (Ky.). 

(°)  Kansas  P.  Ry.  Co.  v.  Mihlman,  17  Kas.  224  ;  Patterson  v.  G.  W.  Ry. 
Co.,  8  Up.  Can.  C.  P.  89. 

(*)  Eufaulaw.  Simmons,  86  Ala.  515  ;  Duryea  v.  Mayor,  26  Hun  120.  Coft- 
tra,  North  Vernon  v.  Voegler,  103  Ind.  314  ;  Powers  v.  Council  Bluffs,  45 
la.  652. 


CHAPTER    III. 


NOMINAL   DAMAGES. 


96.  The  common  law  relieves  only 

actual  injury. 

97.  Damage  inferred  from  the  fact 

of  wrong  done. 

98.  Nominal  damages  for  the  in- 

fringement of  a  right. 

99.  Nominal  damages  establish  ti- 

tle. 

100.  Application   of    the    rule    in 
torts :  English  cases. 

loi.  Application    of    the    rule   in 
torts :  American  cases. 

102.  In  actions  upon  patents. 


§  103.'  In  actions  against  public  offi- 
cers. 

104.  General  principle  in  actions  of 

tort. 

105.  Actions  of  contract :   English 

cases. 

106.  Actions  of  contract:  American 

cases. 

107.  Where    no    loss    is    inflicted, 

damages  must  be  nominal. 

108.  Nominal  damages  as  affecting 

costs. 

109.  Error  in  the  disallowance  of 

nominal  damages. 


§  96.  The  common  law  relieves  only  actual  injury. — 
*Before  proceeding  to  consider  the  measure  of  legal  com- 
pensation in  cases  where  actual  loss  is  sustained,  it  will 
be  proper  to  examine  the  rule  of  Nominal  Damages  as 
contra-distinguished  from  Substantial  Damages. 

We  shall  have  frequent  occasion  hereafter  to  notice 
that  the  common  law,  as  a  general  rule,  only  gives  actual 
compensation  in  cases  of  actual  injury.  The  object  of 
the  suit  is  to  obtain  remuneration  for  loss  actually  sus- 
tained. If  it  appear  that  though  the  defendant  is  in 
fault,  still  that  the  plaintiff  is  not  injured,  he  can  have  no 
relief.  It  is  injuria  sine  damno.  As  far  back  as  the 
Year  Books,  it  is  said,  "  If  a  man  forge  a  bond  in  my 
name,  I  can  have  no  action  on  the  case  yet ;  but  if  I  am 
sued,  I  may,  for  the  wrong  and  damage,  though  I  may 
(134) 


§  97-  DAMAGE  INFERRED  FROM  WRONG  DONE.  1 35 

avoid  it  by  plea."'  And  so  Lord  Hobart,  C.  J.,  says, 
"  There  must  be  not  only  a  thing  done  amiss,  but  also 
a  damage  either  already  fallen  upon  the  party,  or' else  in- 
evitable." '  Equity  often  proceeds,  quia  timet,  in  the  ex- 
ercise of  her  preventive  powers  to  arrest  the  threatened 
injury,  and  there  were  some  early  and  now  obsolete  pro- 
ceedings of  the  same  character  at  law  ;•  but,  as  a  general 
rule,  it  may  at  present  be  considered  well  settled  that  the 
relief  of  the  common  law  is  only  to  be  obtained  by  those 
who  have  suffered  actual  injury.  This  proposition  is, 
however,  subject  to  the  modification  which  we  shall  now 
proceed  to  consider  in  relation  to  nominal  damages. 

§  97.  Damage  inferred  from  the  fact  of  wrong  done.— 
Wherever  the  breach  of  an  agreement  or  the  invasion  of 
a  right  is  established,  the  English  law  infers  some  dam- 
age to  the  plaintiff ;  and  if  no  evidence  is  given  of  any 
particular  amount  of  loss,  it  declares  the  right  by  award- 
ing what  it  terms  nominal  damages,  being  some  very 
small  sum,  as  a  farthing,  a  penny,  or  sixpence — Ubi  jus, 
ibi  remedium.  "  Every  injury,"  said  Lord  Holt,  "  im- 
ports a  damage."  *  So  again,  in  the  same  case  as  else- 
where reported,  his  Lordship  said : 

"  My  brother  Powell,  indeed,  thinks  that  an  action  upon  the 
case  is  not  maintainable,  because  there  is  no  hurt  or  damage  to 
the  plaintiff ;  but  surely,  every  injury  imports  a  damage,  though 
it  does  not  cost  the  party  one  farthing,  and  it  is  impossible  to 
prove  the  contrary ;  for  a  damage  is  not  merely  pecuniary,  but 
an  injury  imports  a  damage  where  a  man  is  thereby  hindered  of 

'  19  H.  6,  44.  3.  A  ^tfwj/raz'^raM^  before  any  distresse 

"^  Waterer  v.  Freeman,  Hobart,  266.  or  vexation.     4.  Kn  Audita  Querela  be- 

*  "  And    note,"     says    Lord   Coke,  fore  any  execution  sued.     5.  A  Curia 

"'that  there  be   six  writs  in  law  that  Claudenda   before  any   default   of  in- 

may  be  maintained,  quia  timet,  before  closure.     6.  A   ne  injuste  vexes  before 

any  molestation,  distresse  or  implead-  any  distresse  or  molestation.  And  these 

ing,  as  I.  A  man  may  have  his  writ  of  be  called  brevia  anticipantia,  writs  of 

mesne  (whereof  Littleton  here  speaks),  prevention." — Coke,  Lit.  looa.   Story's 

before  he  be  distreyned.     2.  A  War-  Equity  Jurisprudence,  §§  730  and  825. 
fantia  Carta  before  he  be  impleaded.        ■*  Ashby  v.  White,  1  Salk.  19. 


136  NOMINAL    DAMAGES.  §  98. 

his  right.  As  in  an  action  for  slanderous  words,  though  a  man 
does  not  lose  a  penny  by  reason  of  the  speaking  them,  yet  he 
shall  have  an  action.  So  if  a  man  gives  another  a  cuff  on  the 
ear,  though  it  cost  him  nothing,  no,  not  so  much  as  a  little  dia- 
chylon, yet  he  shall  have  his  action,  for  it  is  a  personal  injury.  So 
a  man  shall  have  an  action  against  another  for  riding  over  his 
ground,  though  it  do  him  no  damage,  for  it  is  an  invasion  of  his 
property,  and  the  other  has  no  right  to  come  there." ' 

"  Wherever,"  says  Mr.  Sergeant  Williams,  "  any  act 
injures  another's  right,  and  would  be  evidence  in  future 
in  favor  of  the  wrong-doer,  an  action  may  be  maintained 
for  an  invasion  of  the  right,  without  proof  of  any  specific 

injury."^** 

§  98.  Nominal  damages  for  the  infringement  of  a  right. — 
It  is  now  well  established  that  nominal  damages  may  be 
recovered  for  the  bare  infringement  of  a  right,  or  for  a 
breach  of  contract,  unaccompanied  by  any  actual  dam- 
age.('')     To  state  when  rights  are  infringed,  and  conse- 

'  2  Ld.  Raym.  938,  955.  «  Mellor  v.  Spateman,  i  Saund.  346*. 


(•)  Marzetti  v.  Williams,  I  B.  &  A.  415;  Feize  ti.  Thompson,  i  Taunt. 
121;  Barker  v.  Green,  2  Bing.  317;  Nosotti  v.  Page,  10  C.  B.  643;  Watts 
V.  Phoenix  Mut.  L.  Ins.  Co.,  16  Biatch.  228  ;  Bagby  v.  Harris,  9  Ala.  173 ; 
Drum  V.  Harrison,  83  Ala.  384 ;  Barlow  v.  Lowder,  35  Ark.  493 ;  Browner  v. 
Davis,  15  Cal.  9 ;  Hancock  v.  Hubbell,  71  Cal.  537 ;  Kenny  v-.  Collier,  79  Ga. 
743;  Burnap  v.  Wight,  14  111.  301 ;  McConnel  v.  Kibbe,  33  111.  175;  Dent 
■V.  Davison,  52  III.  109;  Rosenbaum  v.  McThomas,  34  Ind.  331 ;  Wimberg  v. 
Sehwegeman,  97  Ind.  528 ;  Madison  County  v.  Tullis,  69  la.  720 ;  Webb  v. 
Gross,  79  Me.  224 ;  Brown  v.  Perkins,  l  All.  89 ;  Smith  v.  Whiting,  100  Mass. 
122;  McKim  V.  Bartlett,  129  Mass.  226;  Shattuck  z/.  Adams,  136  Mass.  34; 
Cowley  V.  Davidson,  10  Minn.  392  ;  Potter  v.  Mellen,  36  Minn.  122  ;  Runlett 
V.  Bell,  5  N.  H.  433 ;  French  v.  Bent,  43  N.  H.  448 ;  Golden  v.  Knapp,  41  N. 
J.  L.  215  ;  Taylor  v.  Read,  4  Paige  561  ;  Quin  v.  Moore,  15  N.  Y.  432 ;  Pierce 
V.  Hosmer,  66  Barb.  345  ;  Colt  v.  Owens,  47  N.  Y.  Super.  Ct.  430 ;  Lawrence 
V.  Kemp,  I  Duer  363 ;  Shannon  v.  Burr,  i  Hilt.  39 ;  Bond  v.  Hilton,  2  Jones 
L.  149  ;  Ledbetteri/.  Morris,  3  Jones  L.  543  ;  Kimel  v.  Kimel,  4  Jones  L.  121 ; 
White  V.  Griffin,  4  Jones  L.  139 ;  Anders  v.  Ellis,  87  N.  C.  207 ,  Coe  v.  Pea- 
cock, 14  Oh.  St.  187 ;  Coopers  v.  Wolf,  15  Oh.  St.  523 ;  Hutchinson  v.  Schim- 
melfeder,  40  Pa.  396 ;  Hogg  v.  Pinckney,  16  S.  C.  387 ;  Seat  v.  Moreland,  7 


§  99'  NOMINAL  DAMAGES  ESTABLISH  TITLE.  1 37 

quently  when  nominal  damages  are  recoverable,  would  be 
to  recapitulate  the  whole  corpus  juris.  A  few  additional 
illustrations,  however,  may  be  given.  In  Tootle  v.  Clif- 
ton, (")  the  wrong  complained  of  was  the  erection  by  the 
defendant  of  an  embankment  on  his  own  land,  whereby 
the  surface  water  accumulating  on  the  land  of  the  plain- 
tiff was  prevented  from  flowing  off  in  its  natural  course 
and  caused  to  flow  off  in  a  different  direction  over 
land  of  the  plaintiff.  The  plaintiff  was  allowed  to  main- 
tain the  action,  and  recover  nominal  damages,  although 
not  actually  injured.  So  the  reversioner  can  recover 
nominal  damages  on  the  general  covenant  to  repair, 
although  hfi  has  not  suffered  any  substantial  damage.  C")  In 
Mississippi,  if  a  passenger  on  a  railroad  train  is  carried 
beyond  his  destination  he  can  recover  nominal  damages.  ") 
In  libel  the  plaintiff  can  recover  nominal  damages. ('') 

If  the  defendant  pending  suit  pays  the  debt  or  returns 
the  property  converted,  and  the  payment  or  return  is 
accepted  by  the  plaintiff,  nominal  damages  may  be  re- 
covered. (°) 

§  99.  Nominal  damages  establish  title. — *  In  regard  to 
the  right  invaded,  a  verdict  and  judgment  for  the  smallest 
amount  is  as  effectual  as  any  sum,  however  large  ;  for  it 
establishes  the  fact  of  the  plaintiff's  title.  And  in  the 
common  case  of  trespass  to  lands,  the  main  object  usually 


Humph.  57S;  Hope  v.  Alley,  9  Tex.  394;  Eaton  v.  Lyman,  30  Wis.  41; 
M'Leod  V.  Boulton,  3  Up.  Can.  Q.  B.  84 ;  Doan  v.  Warren,  1 1  Up.  Can.  C. 
P.  423  ;  Doe  V.  Ausman,  i  R.  &  J.  Ont.  Dig.  989 ;  Morrow  v.  Waterous,  24 
N.  B.  442. 

C)  22  Oh.  St.  247. 

O")  Williams  v.  Williams,  L.  R.  9  C.  P.  659. 

(«)  Thompson  v.  N.  O.  J.  &  G.  N.  R.R.  Co.,  50  Miss.  315. 

C)  Kelly  V.  Sherlock,  L.  R.  I  Q.  B.  686. 

(")  Conroy  v.  Flint,  S  Cal.  327 ;  Shattuck  v.  Adams,  136  Mass.  34.  But 
in  England  it  is  decided  that  judgment  should  be  given  for  the  defendant. 
Thame  v.  Boast,  12  Q.  B.  808. 


138  NOMINAL   DAMAGES,  §99, 

being  to  determine  the  right,  this  principle  becomes 
very  important.  In  many  of  these  cases  it  might  seem 
at  first  sight  that  the  maxim  injuria  sine  damno  applied, 
and  that  the  law  would  refuse  redress.**  But  besides  en- 
forcing the  principle  that  wherever  there  is  a  wrong 
there  should  be  a  remedy,  this  rule  of  giving  nominal 
damages  for  the  breach  of  a  contract  may  settle  the  ques- 
tion of  title  or  determine  rights  of  the  greatest  import- 
ance. (")  *As  has  been  clearly  said  by  the  Supreme  Court 
of  Connecticut,  in  an  action  for  flowing  lands,  "  An 
act  which  occasions  no  other  damage  than  putting  at 
hazard  those  rights,  which,  if  the  act  were  acquiesced  in, 
would  be  lost  by  lapse  of  time,  is  a  sufficient  ground  of 
action."' 

So,  again,  it  has  been  said  in  Maine,  speaking  of  the 
flowage  of  lands,  "  Generally,  when  one  encroaches  on 
the  inheritance  of  another  the  law  gives  a  right  of  action, 
and  even  if  no  actual  damages  are  proved,  the  action  will 
be  sustained  and  nominal  damages  recovered ;  because, 
unless  that  could  be  done,  the  encroachment  acquiesced 
in  might  ripen  into  a  legal  right,  and  the  trespasser,  by 
a  continuance  of  his  encroachments,  acquire  a  perfect 
title."" 

So,  in  Pennsylvania,  in  trespass  for  flowing  lands,  it 
was  held  "  that  the  law  implies  damage  from  flooding  the 
ground  of  another,  though  it  be  in  the  least  possible  de- 
gree, and  without  actual  prejudice.  But  where  the  law 
implies  the  injury,  it  also  implies  the  lowest  damage."'  ** 
And  the  rule  is  generally  recognized.  ('') 

'Chapman  v.  Thames  Manuf.  Co.,  Seidensparger  ».  Spear,  17  Me.  123. 

13  Conn.  269  ;  ace.  Bassett  v.  Salisbury  '  Pastorius  v.  Fisher,   i    Rawle  27  ; 

Manuf.  Co.,  28  N.  H.  438.  Ripka  v.  Sergeant,  7  W.  &  S.  9. 

'  Hathorne  v.  Stinson,  12  Me.  183  ; 


(»)  Patrick  v.  Greenaway,  i  Wms.  Sauiids.  346  b,  note ;  Devendorf  v.  Wert, 
42  Barb.  227. 

("■)  Whipple  V.  Cumberland  Manuf.  Co.,  2  Story  661  ;  Stein  v.  Burden,  24 


§  lOO.  APPLICATION  OF  THE  RULE  IN  TORTS.  1 39 

§  100.  Application  of  the  rule  in  torts — English  cases. — 
*  In  an  early  English  case,  well  known  as  that  of  The 
Tunbridge  Wells  Dippers^  an  action  on  the  case  was 
brought  by  the  plaintiffs,  who  were  dippers  at  Tunbridge 
Wells,  against  the  defendants  for  dipping,  without  being 
duly  appointed  ;  and  on  the  subject  of  damage,  "  there 
was  no  proof  of  the  defendants  having  received  any  gra- 
tuity, other  than  general  evidence  that  the  employment 
of  dipper  is  attended  with  profits  which  arise  from  the 
voluntary  contribution  of  company  resorting  to  Tun- 
bridge Wells."  The  Court  of  Common  Pleas,  in  no- 
ticing the'  objection,  said,  "There  is  a  real  damage  to 
the  dippers  in  depriving  them  of  some  gratuity  which 
they  would  otherwise  have  received,  perhaps  more  than 
they  might  truly  deserve  for  their  labor  and  pains.  Be- 
sides, an  action  upon  the  case  will  lie  for  a  possibility  of 
a  damage  and  an  injury ;  as  for  persuading  A.  not  to 
come  and  sell  his  wares  at  the  market  of  B.,  the  lord  of 
the  market  may  have  his  action." 

So,  again,  subsequently  in  an  action  on  the  case  for  a 
surcharge  of  common,  it  was  held  that  the  plaintiff  need 
not  show  that  he  turned  on  any  cattle  of  his  own  at  the 
time  of  the  surcharge,  but  only  that  he  could  not  have 

'  Weller  v.  Baker,  2  Wils.  414. 


Ala.  130;  Ulbricht  v.  Eufeula  Water  Co.,  86  Ala.  587  ;  Parker  v.  Griswold, 
17  Conn.  288;  Plumleigh  v.  Dawson,  6  111.  544;  Blanchard  v.  Baker,  8  Me. 
253 ;  Munroe  v.  Gates,  48  Me.  463 ;  Bolivar  Manuf.  Co.  v.  Neponset  Manuf. 
Co.,  16  Pick.  241 ;  Newhall  v.  Ireson,  8  Cush.  595;  Stowell  v.  Lincoln,  11 
Gray  434;  Lund  v.  New  Bedford,  m  Mass.  286;  Hooten  v.  Barnard,  137 
Mass.  36;  Dorman  v.  Ames,  12  Minn.  451 ;  Truckee  Lodge  v.  Wood,  14 
Nev.  293  ;  Amoskeag  Manuf.  Co.  v.  Goodale,  46  N.  H.  53 ;  Crooker  v.  Bragg, 
lo  Wend.  260  ;  Kimel  v.  Kimel,  4  Jones  L.  121 ;  Kemmerer  v.  Edelman,  23 
Pa.  143;  Delaware  &  Hudson  Canal  Co.  v.  Torrey,  33  Pa.  143;  Graver  v. 
Sholl,  42  Pa.  58 ;  Tuthill  v.  Scott,  43  Vt.  525 ;  Mitchell  v.  Barry,  26  Up. 
Can.  Q.  B.  416 ;  Plumb  v.  McGannon,  32  Up.  Can.  Q.  B.  8;  Warren  v.  Des- 
lippes,  33  Up.  Can.  Q.  B.  59. 


140  NOMINAL   DAMAGES.  §  lOO. 

enjoyed  his  common  so  beneficially  as  he  might ;  and 
Nares,  J.,  commenting  on  the  Dippers'  case,  said  it  was 
there  held  that  a  ''probable"  damage  is  a  sufficient  injury 
on  which  to  ground  an  action.'  And  "  probable "  is, 
perhaps,  the  more  correct  phrase.  An  invasion  of  right 
being  shown,  the  law  holds  injury  to  be  z.  probable  result, 
and  therefore  gives  judgment  against  the  wrong-doer. 
In  other  words,  it  presumes  some  damage  to  have  re- 
sulted from  the  wrong.  And  the  principle  was  adhered 
to  by  the  King's  Bench  in  an  action  on  the  case  for  in- 
juries to  a  right  of  common,  the  jury  having  found  a 
verdict  of  one  farthing,  and  a  motion  to  set  aside  the 
verdict  and  to  enter  a  nonsuit  being  denied.' 

But  in  a  suit  brought  by  the  owner  of  a  house  against 
a  lessee  for  opening  a  door  without  leave,  the  premises 
not  being  in  any  way  injured  or  weakened  by  the  open- 
ing, the  court  refused  to  allow  nominal  damages,  and 
remitted  the  case  to  the  jury  to  say  whether  the  plaintiff's 
reversionary  interest  had,  in  point  of  fact,  been  preju- 
diced.' This  case,  however,  does  not  present  any  excep- 
tion to  the  general  rule,  for  the  court  evidently  consid- 
ered that  a  verdict  for  nominal  damages  would  have  been 
right  if  there  had  been  any  proof  of  the  plaintiff's  title 
being  affected.  So,  again,  in  the  King's  Bench,  in  an 
action  on  the  case  for  the  fraudulent  imitation  of  the 
plaintiff's  trade-marks  ;  the  jury  having  found  a  verdict, 
with  one  farthing  damages,  a  motion  was  made  to  enter 
a  nonsuit ;  but  the  rule  was  refused,  and  Littledale,  J., 

'  Wells  V.  Watling,  2  W.  Black.  1233.  "  Pindar  v.  Wadsworth,  2  East  154. 

By  this  decision    a   dictum   of    Lord  We  shall  hereafter  see  that  this  prin- 

Coke,   in    Robert   Marys's  case,  was  ciple  does  not  apply  in  cases  of  waste, 

overruled.     9  Co.    iii*,   113.     "So,"  and  that  if  the  damages  there  be  purely 

says  Lord  Coke,  "that  if  the  trespass  nominal,    the    defendant    may    enter 

he  so  small  that  the  commoner  has  not  judgment.     Harrow  School  v.  Alder- 

any  loss,  but  sufficient  in  ample  manner  ton,  2  B.  &  P.  86. 

remains  for  him,  he  shall  not  have  any  *  Young  v.  Spencer,  10  B.  &  C.  145. 
action  for  it." 


§  lOO.  APPLICATION  OF  THE  RULE  IN  TORTS.  I4I 

said,  "  The  act  of  the  defendants  was  a  fraud  against  the 
plaintifif ;  and  if  it  occasioned  him  no  specific  damage,  it 
was  still,  to  a  certain  extent,  an  injury  to  his  right."' 

And  in  the  same  court,  in  an  action  on  the  case 
brought  by  a  tenant  against  his  landlord,  for  illegally 
distraining  for  more  rent  than  was  due,  it  appearing  that 
the  proceeds  of  the  sale  were  insufficient  to  satisfy  the 
rent  actually  in  arrears,  the  jury  found  a  verdict  for  the 
plaintiff,  with  one  shilling  damages.  A  motion  was 
made  to  enter  a  nonsuit,  but  it  was  denied,  and  Denman, 
C.  J.,  said,  "There  was  a  wrongful  act  of  the  defendant, 
and  though  by  reason  of  the  value  of  the  goods  taken 
falling  short  of  the  actual  rent  due,  no  real  damage  was 
sustained,  yet  there  was  a  legal  damage  and  cause  of  ac- 
tion, for  which  the  plaintiff  was  entitled  to  a  verdict." ' 
This  case  carries  the  principle  of  the  English  law  to  its 
extreme  limit  ;  for  so  far  from  the  plaintiff's  having 
proved  any  damage,  it  was  conclusively  shown  that  he 
could  not  have  suffered  any ;  and  on  the  contrary,  the 
defendant  was  the  real  loser.** 

In  an  action  brought  under  the  statute  of  Marlbridge 
(52  Hen.  Ill,  c.  4)  for  excessive  distress,  the  plaintiff 
was  held  entitled  to  nominal  damages,  although  he 
proved  no  actual  damage.  (*) 

*  Thus,  also,  it  has  been  held  by  the  English  Common 
Pleas,  in  an  action  on  the  case  for  deceit  against  the 
secretary  of  an  insurance  company  for  false  representa- 
tions as  to  the  management  and  affairs  of  the  company, 
whereby  the  plaintiff  was  induced  to  effect  an  insurance 

'  Blofeld  V.  Payne,  4  B.  &  A.  410.  377.     See  also,   Butts  v.   Edwards,   2 

'  Taylor  v.   Henniker,   12  A.  &  E.  Denio  164,  where  it  is  said  that  in  case 

488,    which    overruled    the    cases    of  for  illegal  distress,  if  no  actual  damage 

Avenell  v.   Croker,   Moo.  &  M.   172,  is  sustained,  the  plaintiff  could  at  most 

and  Wilkinson  v.  Terry,  1  M.  &  Rob.  but  recover  nominal  damages. 


(•)  Chandler  v.  Doulton,  3  H.  &  C.  553. 


142  NOMINAL    DAMAGES.  §   lOI. 

with  thera,  though  it  did  not  appear  that  he  had  sus- 
tained any  positive  loss,  that  he  was  entitled  to  nominal 
damages.' 

The  principle  has  been  applied  to  the  diversion  of 
watercourses.  It  has  been  long  held  that  the  riparian 
proprietor  of  a  stream  has  a  right  to  the  use  of  its  waters, 
but  it  has  been  doubted  whether  he  could  recover  in  an 
action  for  its  diversion  without  showing  actual  damage. 
It  is  now,  however,  well  settled,  in  favor  of  the  right ; 
and  if  the  infringement  be  established,  nominal  damages, 
at  least,  will  in  all  cases  be  given." 

•  So  where  a  reversioner  brought  trover  against  his  ten- 
ant for  cutting  some  branches  off  the  trees  growing  on 
the  demised  close,  it  was  held  that  the  plaintiff  was  enti- 
tled to  nominal  damages,  though  no  proof  of  the  value 
was  given  at  the  trial.'  ** 

§  101.  American  cases.— *  The  general  rule  has  been 
recognized  by  the  Supreme  Court  of  New  York,  in  rela- 
tion to  personal  actions  as  well  as  those  affecting  real 
property.  In  an  action  of  trespass,'  Bronson,  J.,  said  : 
"  If  the  plaintiff  succeeded  in  showing  an  unlawful  entry 
upon  his  land,  or  that  his  fences  or  any  portion  of  them 
were  improperly  thrown  down  and  his  fields  exposed,  he 
was  entitled  to  a  verdict  for  nominal  damages  at  the  least. 
It  was  not  necessary  for  him  to  prove  a  sunt,  or  that  any 
particular  amount  of  damages  had  been  sustained.  Every 
unauthorized  entry  upon  the  land  of  another  is  a  tres- 

'  Pontifex  v.  Bignold,  3  Scott  N.  R.  cases,  where  it  was  held  that  a  false 

390.     The  text  contains  the  substance  affirmation  made  by  the  defendant  with 

of  the  marginal  note,  but  it  should  be  intent  to  defraud  the  plaintiff,  whereby 

noticed   that    the    question    came    up  the  plaintiff  receives    damage,    is    the 

on  demurrer  to  the  plea,  that  the  dec-  ground  of  an  action  upon  the  case  in 

laration  alleged  that  the  policy  was  of  the  nature  of  a  deceit." 
less  value  to  the  plaintiff  than  if  the        *  Bower  v.  Hill,  i  Bing.  N.  C   549 ; 

representations  complained  of  had  been  Northam  v.  Hurley,   i   E.  &   B.  665  ; 

true,   and    that    Tindal,   C.   J.,   said:  Embrey  i".  Owen,  6  Ex.  353. 
"  This  case  ranges  itself  within  Pasley        '  Cotterill  v.  Hobby,  4  B.  &  C.  465. 
■v.  Freeman,  3  T.  R.  51,  and  Haycraft        *  Dixon  v.  Clow,  24  Wend.  188. 
V.  Creasy,  2  East  92,  and  that  class  of 


§   lOI.  AMERICAN    CASES.  1 43 

pass,  and  whether  the  owner  suffer  much  or  little,  he  is 
entitled  to  a  verdict  for  some  damages."'** 

Even  if  the  result  of  the  trespass  benefits  the  plaintiff 
instead  of  damnifying  him,  he  is  entitled  to  nominal  dam- 
ages. (")  The  obstruction  of  a  highway  gives  a  right  of 
action  to  one  thereby  prevented  from  passing,  against  the 
person  who  erected  the  obstruction.  C")  So,  also,  nominal 
damages  may  be  recovered  by  a  riparian  proprietor  for  a 
bare  infringement  of  his  rights.  (")  So  in  case  of  unlaw- 
ful fiowage  of  lands,  nominal  damages  at  least  will  be 
given.  (^) 

*  So  in  an  action  of  trespass  for  false  imprisonment." 
The  plea  containing  an  allegation  that  the  trespass  con- 
sisted in  arresting  the  plaintiff  on  an  execution  on  a 
judgment  in  trover,  it  was  replied  that  the  plaintiff  had 
obtained  his  discharge  from  imprisonment,  and  that  the 
defendant  had  notice  of  the  discharge,  to  which  a  demur- 
rer was  put  in  ;  the  court  said,  "  Want  of  notice  may  in- 
deed depress  the  damages  to  a  mere  nominal  sum,  but  is 
never  allowed  absolutely  to  excuse  a  trespass  ";  and  there 
was  judgment  for  the  plaintiff. 

In  a  case  where  fraud  was  charged,  the  same  court  was 
equally  explicit.     They  said :  "  Actual  damage   is   not 

'  The  same  point  has  been  ruled  else-        '  Deyo  v.  Van  Valkenburgh,  5  Hill, 
where  :  White  v.  Griffin,   4  Jones   L.     242. 
139  ;  Carter  v.  Wallace,  2  Tex.  206. 


(')  Jewett  V.  Whitney,  43  Me.  242  ;  Jones  v.  Hannovan,  55  Mo.  462 ;  Mur- 
phy V.  Fond  du  Lac,  23  Wis.  365. 

(>■)  Brown  v.  Watson,  47  Me.  161. 

(")  Ulbricht  v.  Eufaula  Water  Co.,  86  Ala.  587  ;  Lund  v.  New  Bedford,  121 
Mass.  286 ;  Tillotson  v.  Smith,  32  N.  H.  90 ;  Shannon  v.  Burr,  I  Hilt.  39  ; 
Champion  v.  Vincent,  20  Tex.  811 ;  Mitchell  v.  Barry,  26  Up.  Can.  Q.  B.  416 
But  in  some  States  it  has  been  laid  down  that  actual  material  damage  must 
be  shown:  Cory  v.  Silcox,  6  Ind.  39;  M'Elroy  v.  Goble,  6  Oh.  St.  187. 

(■•)  Chapman  v.  Copeland,  55  Miss  476;  Gerrish  v.  New  Market  Manuf, 
Co.,  30  N.  H.  478  ;  Amoskeag  Manuf.  Co.  v.  Goodale,  46  N.  H.  53. 


144  NOMINAL    DAMAGES.  §§    102,    IO3. 

necessary  to  an  action.  A  violation  of  right,  witli  a 
possibility  of  damage,  forms  the  ground  of  an  action. 
....  Once  establish,  therefore,  that  in  all  matters  of 
pecuniary  dealing,  in  all  matters  of  contract,  a  man  has  a 
legal  right  to  demand  that  his  neighbor  shall  be  honest, 
and  the  consequence  follows,  namely :  if  he  be  drawn 
into  a  contract  by  fraud,  this  is  an  injury  actionable  per 
se.  Indeed,  it  would  not  be  difficult,  in  all  such  cases,  to 
show  the  degree  of  actual  damage.  The  time  of  the  in- 
jured party  has  been  consumed  in  doing  a  vain  thing,  or 
one  comparatively  vain  ;  and  time  is  money.  Fraud  is 
odious  to  the  law ;  and  fraud  in  a  contract  can  hardly  be 
conceived  of  without  being  attended  with  damage  in 
fact."  ^  ** 

§  102.  In  actions  upon  patents. — *  The  general  principle 
has  been  also  laid  down  by  Mr.  Justice  Story,  in  regard 
to  patents.  In  an  action  for  the  infringement  of  a  patent 
right  by  making  a  machine,  it  was  argued  for  the 
defendant,  that  no  action  lay  except  for  actual  damage. 
"But,"  said  Story,  J.,  "we  are  of  opinion  that  where 
the  law  gives  an  action  for  a  particular  act,  the  doing  of 
that  act  imports  of  itself  a  damage  to  the  party.  Every 
violation  of  a  right  imports  some  damage  ;  and  if  none 
other  be  proved,  the  law  allows  a  nominal  damage."('')  ** 

§  103.  In  actions  against  public  officers. — *  It  has  been 
so  held  in  Massachusetts,  in  the  case  of  a  sheriff  neglecting 
to  return  an  execution.  "  The  plaintiff  is  entitled,"  said 
Wilde,  J.,  "to  nominal  damages  for  the  officer's  neglect, 
in  not  returning  the  execution  till  after  the  return  day. 

'  Allaire  v.  Whitney,  i  Hill  484.     See  Whitney  v.  Allaire,  4  Denio  554. 


(»)  Whittemore  v.  Cutter,  I  Gall.  429,  478 ;   ace.  Marsh  v.  Billings,  7 
Cush.  322  ;  Davis  v.  Kendall,  2  R.  I.  566. 


§    103.  IN    ACTIONS   AGAINST    PUBLIC   OFFICERS.  I45 

No  actual  damages  are  proved,  but  where  there  is  a 
neglect  of  duty,  the  law  presumes  damages."' 

So  where  the  sheriff  does  not  return  a  fi.  fa.  after 
being  notified  to  do  so,  if  the  plaintiff  has  intermeddled 
with  the  execution  of  the  writ  so  as  to  defeat  its  opera- 
tion, he  is  still  entitled  to  nominal  damages.' 

So  in  an  action  for  breach  of  duty  in  the  compromise 
by  an  attorney  of  a  suit  contrary  to  his  client's  express 
directions,  although  the  compromise  was  a  reasonable 
one  and  made  in  good  faith,  and  there  was  no  positive 
damage.  (') 

We  shall  have  occasion  to  consider  this  branch  of  the 
subject  more  at  large  when  treating  of  damages  in  suits 
against  sheriffs  and  other  public  officers.' 

In  Vermont,  an  able  effort  was  made  to  limit  nominal 
damages  strictly  to  cases  where  some  damage  is  the 
probable  result  of  the  defendant's  act,  or  where  the  act 
would  be  evidence  afterwards  in  favor  of  the  wrong-doer, 
or  where  a  right  is  wantonly  invaded  for  the  purpose  of 
injury ;  and  it  was  said,  "  that  no  case  can  be  found 
where  damages  have  been  given  for  a  trespass  to  per- 
sonal property,  when  no  unlawful  intent  or  disturbance 
of  a  right  or  possession  is  shown,  and  where  not  only 
all  probable  but  all  possible  damage  is  expressly  dis- 
proved," *  **  But  in  a  later  case  in  the  same  State,  it  is 
held  that  if,  during  the  pendency  of  an  action  against  an 
officer  for  not  keeping  property  attached  so  that  the 

'  Laflin    v.   Willard,    16    Pick.   64 ;  Farnham,  L.  R.  7  Q.  B.  175  ;  and  ace. 

Goodnow  V.  Willard,  5  Met.  517  ;  Law-  State  v.  Case,  77  Mo.  247. 

rence  v.  Rice,  12  Met.  535.  '  P"st,  ch.  xvli. 

''■  Mickles  v.  Hart,  i   Den.  548 ;  but  *  Paul  v.   Slason,   22  Vt.  231,    per 

in  England  there  can  be  no  recovery  Poland,  J. 
without   actual   damage.     Stimson    v.. 


(»)  Fray  v.  Voules,  i  E.  &  E.  839;  ace.  Wilcox  v.  Plummer,  4  Pet.  172 ; 
M'Leod  V.  Boulton,  3  Up.  Can.  Q.  B.  84 ;  Doan  v.  Warren,  1 1  Up.  Can.  C. 

P.  423- 

Vol.  I. — 10 


146  NOMINAL    DAMAGES.  §§   IO4,    IO5. 

execution  could  be  levied  on  it,  the  execution  be  paid 
and  discharged,  the  plaintiff  may  recover  nominal  dam- 
ages and  costs,  if  he  had  a  good  cause  of  action  at  the 
commencement  of  the  action.  (*)  And  still  later  it 
was  held  that  the  maxim,  de  minimis  non  curat  lex,  is 
never  applied  to  a  wrongful  invasion  of  property  from 
which  result  damages  capable  of  estimation,  however 
small.  (") 

§  104.  General  principle  in  actions  of  tort. — ^The  general 
principle  in  regard  to  nominal  damages '  in  cases  of  tort 
seems  to  be  this  :  If  a  trespass  is  committed,  that  is,  if  a 
right  is  invaded  or  interfered  with,  although  without  any 
actual  damage  resulting,  the  person  to  whom  the  right 
belongs  may  maintain  an  action  and  recover  nominal 
damages.  But  where  a  person  is  directly  using  or  con- 
fines his  operations  to  his  own  property  only,  although 
the  doing  so  may  inconvenience  another,  there  is  no 
right  of  action,  and  no  damages  whatever  can  be  recov- 
ered, so  long  as  the  damage  is  not  appreciable.  (°)  The 
maxim,  Sic  utere  tuo  ut  alienum  non  Icedas,  does  not 
here  apply  to  the  extent  of  giving  a  right  of  action. 
The  law,  in  such  case,  no  longer  distinguishes  between 
no  "appreciable  damage"  and  no  damage  at  all.C^) 

§  105.  Actions  of  contract :  English  cases. — *  The  rule 
that  the  invasion  of  a  right  gives  a  claim  in  all  cases  to 
nominal  damages,  applies  equally  to  matters  of  contract ; 
and  so  it  was  held  by  the  Court  of  King's  Bench,  in  an 
action  brought  against  a  banker,  for  refusing  payment 


(")  Brown  v.  Richmond,  27  Vt.  583. 

0")  Fullam  V.  Stearns,  30  Vt.  443. 

(°)  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  C.  642. 

O  Smith  V.  Thackerah,  L.  R.  i  C.  P.  564. 


§   I06.  ACTIONS   OF   CONTRACT.  I47 

of  a  check  although  in  funds,  no  actual  damage  being 
sustained.' 

But  when  the  debt  was  paid,  though  after  maturity, 
it  was  held  to  support  a  plea  that  it  was  paid  in  full 
satisfaction  of  debt  and  damage,  and  the  plaintiff  was 
not  allowed  to  recover  either  interest  or  nominal  dam- 
ages.' And  so,  again,  in  assumpsit,  where  the  defend- 
dant,  on  being  applied  to  by  the  plaintiff  for  payment 
of  interest,  stated  that  he  would  bring  her  some  on 
the  following  Sunday,  it  was  held  that,  though  this 
was  an  admission  that  something  was  due,  still  as  it 
did  not  appear  what  the  nature  of  the  debt  was,  or 
that  it  was  due  to  the  plaintiff  as  executrix,  or  in  her 
own  right,  or  that  it  was  a  debt  for  which  assumpsit 
would  lie,  the  plaintiff  was  not  entitled  to  recover 
even  nominal  damages,  and  a  nonsuit  was  entered.'  ** 

§  106.  American  cases. — The  same  principle  in  regard 
to  contracts,  as  well  as  invasions  of  right  in  general,  has 
been  recognized  in  this  country.  In  an  action  on  the 
common  money  counts,*  the  Supreme  Court  of  New 
York  held  that  if  in  assumpsit  an  issue  be  joined  on  a 
plea  of  payment,  and  no  evidence  be  given  at  the  trial 
by  either  party,  the  plaintiff  will  be  entitled  to  a  verdict, 
but  such  verdict  will  be  for  nominal  damages  only.  When 
plaintiff  in  a  suit  for  wages  proves  services,  but  fails  to 
prove  their  value,  he  is  entitled  at  least  to  a  nominal 
sum.(*)  Where  judgment  is  given  by  the  court  on 
agreed  facts,  but  no  damages  are  agreed  by  the  parties, 

'  Marzetti  v.   Williams,   i  B.  &  A.        '  Green  v.  Davies,  4  B.  &  C.  235  ; 

415.       See,    also,      Winterbottom     v.  and  also  Teal  v.  Auty,  2  Bro.  &  Bing. 

Wright,  10  M.  &  W.   log.     See,  also,  99.  Sed  vide  contra  at  nisi  prius,  Dixon 

Rolin  V.  Steward,  14  C.  B.  595,  where  v.  Deveridge,  2  C.  &  P.  109. 
actual    damages   were    given — an  im-        *  New  York  Dry  Dock  Co.  v.  M'ln- 

portant  case.  tosh,  5  Hill  290. 

'  Beaumont  v.  Greathead,  2  C.  B.  494. 


(")  Owen  V.  O'Reilly,  20  Mo.  603. 


148  NOMINAL   DAMAGES.  §  106. 

the  judgment  for  the  plaintiff  will  be  for  nominal  dam- 
ages only.(*) 

In  an  action  of  covenant  it  has  been  held  that  the  plea 
of  non  est  factum  admits  a  breach  on  the  part  of  the  de- 
fendant, and  throws  on  him  the  onus  of  showing  the 
contrary,  but  that  such  admission  only  entitled  the  plain- 
tiff to  nominal  damages.^  And  it  is  held  that  in  an  action 
upon  an  instrument  under  seal,  a  court  of  law  will  give 
nominal  damages  only,  where  the  presumption  of  valu- 
able consideration  is  negatived  by  something  appearing 
on  the  face  of  the  paper.  C") 

Upon  a  covenant  to  an  attorney  to  pay  him  a  reason- 
able fee  for  defending  the  defendant  on  a  criminal  charge, 
nothing  more  can  be  recovered  than  nominal  damages, 
unless  it  be  averred  that  he  did  defend,  or  special  damage 
be  shown.  C)  So  the  omission  of  an  administrator  to 
settle  his  account  with  the  probate  court,  renders  him  at 
all  events  liable  to  nominal  damages.('^)  So  the  damages 
in  a  suit  on  the  covenant  against  incumbrances  are  merely 
nominal,  if  the.  plaintiff  has  paid  nothing  towards  the 
incumbrance.'  In  such  an  action  nominal  damages  may 
be  recovered,  though  the  incumbrances  are  removed  be- 
fore suit  is  brought.  (^) 

So  in  a  suit  growing  out  of  an  attachment,  the  goods 
having  been  delivered  to  a  receiptor,  and  he  having  failed 
to  perform  his  duty,  it  was  said  that  if  there  was  a  good 

'  Goulding  v.  Hewitt,  2  Hill  644.  ^  Tufts  v.  Adams,  8  Pick.  547. 


(")  McAneany  7/.  Jewett,  10  All.  151. 

(')  Cox  V.  Sprigg,  6  Md.  274. 

(°)  Wilson  V.  Barnes,  13  B.  Men.  330. 

('^)  Webb  w.  Gross,  79  Me.  224;  State  z/.  Bishop,  24  Md.  310;  Fay  v. 
Haven,  3  Met.  109;  McKim  z;.  Bartlett,  129  Mass.  226;  Probate  Court  v. 
Slason,  23  Vt.  306.  But  contra,  that  no  damages  at  all  can  be  recovered  un- 
less actual  loss  is  suffered  :  Olmstead  v.  Brush,  27  Conn.  530. 

(')  Smith  V.  Jefts,  44  N.  H.  482. 


§   107.  WHERE    NO   LOSS   IS   INFLICTED. 


149 


cause  of  action,  at  the  time  of  the  commencement  of  the 
suit,  but  the  right  of  action  is  lost  by  a  neglect  to  take 
the  necessary  steps  to  preserve  the  attachment,  nominal 
damages  may  be  recovered.'  So  in  an  action  on  a  bond 
given  to  procure  the  release  of  a  debtor  from  arrest,  there 
being  no  evidence  of  the  loss  sustained  by  the  plaintiff, 
it  was  held  that  the  execution  could  issue  for  nominal 
damages  only."  In  Iowa,  in  an  action  on  a  penal  bond 
under  the  Code  of  that  State,  unless  special  damage  is 
averred  and  proved,  nominal  damages  only  can  be  recov- 
ered. (*)  In  an  action  on  a  covenant  to  transfer  to  the 
plaintiff  the  defendant's  title  to  a  slave,  it  was  held  that 
the  measure  of  damages  was  not  the  value  of  the  slave, 
but  of  the  defendant's  title ;  and  that  appearing  to  be 
defective,  it  was  considered  a  case  for  nominal  damages.' 
So  in  Louisiana,  in  a  suit  against  the  sureties  on  a  se- 
questration bond.*  And  generally,  for  the  technical 
breach  of  a  bond  unattended  by  actual  damages,  the 
obligee  is  entitled  to  nominal  damages,  and  no  morcC") 

§  107.  Where  no  loss  is  indicted  damage?  must  be  nominal. 
— The  principles  already  examined  concern  the  allowance 
of  nominal  damages  where  the  question  at  issue  is  the 
right  to  recover.  The  question  of  nominal  damages, 
however,  is  often  raised  by  the  defendant's  attempt,  not 
to  defeat  the  action  altogether,  but  to  restrict  the  amount 
of  damages  recovered  to  a  nominal  sum  by  proving  that 
the  injury  itself  has  not  been  substantial.  The  question 
involved  in  such  cases  is  really  one  of  compensation  purely. 
If  no  substantial  loss  can  be  proved,  the  plaintiff  must  be 

'  Moulton  V.  Chapin,  28  Me.  505.  '  Whitehead  v.  Ducker,  11  Sm.  &  M. 

'  Waldron  v.  Berry,  22  Me.  486.  98. 

*  Clarke  v.  Scott,  2  La.  Ann.  907. 


(")  Linder  v.  Lake,  6  la.  164. 

O  State  V.  Reinhardt,  31  Mo.  95. 


150  NOMINAL   DAMAGES.  §  IO7, 

restricted  to  nominal  damages.  (*)  So  in  an  action  for  delay 
in  registering  the  transfer  of  shares,  only  nominal  dam- 
ages can  be  recovered.  (^)  When  the  plaintiff's  intestate, 
who  was  killed  by  the  defendant's  negligence,  remained 
unconscious  from  the  time  of  the  injury  till  his  death, 
and  therefore  suffered  no  pain  either  physical  or  mental, 
only  nominal  damages  could  be  recovered  in  an  action 
for  personal  injury.(°)  Where  a  recorder  has  negligently 
recorded  the  plaintiff's  deed,  unless  special  damage  is 
proved,  the  plaintiff  can  recover  nominal  damages  only.C') 
By  the  negligence  of  the  defendant  in  transmitting  a 
message  the  plaintiff  lost  the  benefit  of  a  contract  of  em- 
ployment, which,  however,  was  terminable  at  the  will  of 
either  party,  without  notice.  It  was  held  that  only  nom- 
inal damages  could  be  recovered.  (') 

In  an  action  to  recover  private  letters  written  to  the 
intestate,  in  the  absence  of  proof  of  their  having  a  pecu- 
niary value,  nominal  damages  only  can  be  recovered.  (^) 

In  some  cases  the  defendant's  act,  though  wrongful, 
was  of  such  a  nature  that  it  was  in  fact  not  calculated  to 
cause  loss  to  the  defendant. (^)  Thus  the  defendant,  hav- 
ing mortgaged  his  life  interest  in  certain  property  to  secure 
a  loan  of  £\  2,500,  which  was  further  secured  by  a  convey- 
ance of  the  reversion  in  fee  and  of  a  policy  for  ;^  13,000, 
payable  within  three  months  after  the  death  of  the 
defendant,  in  case  he  should  "leave  issue  male  by  his 
then  present  wife  living  at  his  death,"  covenanted  that 

(')  Freese  z/.  Crary,  29  Ind.  524;  Carl  z/.  Granger  Coal  Co.,  69  la.  519; 
Thorp  z/.  Bradley,  75  la.  50;  Bruce  v.  Pettengill,  12  N.  H.  341 ;  Hunt  v. 
D'Orval,  Dudley  180. 

0")  Skinner  v.  London  Mar.  Assur.  Corp.,  14  Q.  B.  Div.  882. 

C)  TuUy  z/.F.  R.R.  Co.,  134  Mass.  500. 

('')  State  V.  Davis,  117  Ind.  307. 

(•)  Merrill  v.  W.  U.  Tel.  Co  ,  78  Me.  97. 

0  Donohue  v.  Henry,  4  E.  D.  Smith  162. 

(«)  Woods  w.  Varnum,  21  Pick.  165  ;  Chamberlain  v.  Parker,  45  N.  Y.  569. 


§   lO;.  WHERE   NO   LOSS    IS   INFLICTED.  151 

he  would  during  his  life,  and  so  long  as  the  ;,{^t  2,500  or 
any  part  thereof  remained  due,  continue  to  pay  the  pre- 
miums on  the  policy.  The  mortgage  deed  also  provided 
that  the  plaintiff  might  pay  the  premiums  if  the  defend- 
ant neglected  to  do  so,  and  charge  such  payments 
against  the  mortgaged  premises,  but  contained  no  cove- 
nant on  the  part  of  the  defendant  to  repay  the  premiums 
so  paid.  The  defendant,  after  paying  the  premiums  for 
a  time,  discontinued  doing  so,  after  there  was  no  further 
possibility  of  issue  by  his  then  wife.  The  subsequent 
premiums  were  regularly  debited  year  by  year  by  the 
office  to  the  mortgage  account  of  the  defendant,  but  the 
defendant  had  no  notice  of  this  course  of  dealing.  In 
an  action  brought  against  the  defendant  on  his  covenant 
to  pay  the  premiums,  it  was  held,  assuming  the  plaintiffs 
to  have  paid  the  premiums,  they  were  not  entitled  to 
more  than  nominal  damages.  (") 

And  where  the  assignee  of  a  mortgage  had  paid  the 
assignor  part  of  the  amount,  and  given  his  bond  condi- 
tioned to  collect  the  balance  by  foreclosure  or  otherwise, 
and  pay  it  over,  or  after  foreclosure  sell  the  land  by 
auction  and  pay  the  assignor  the  proceeds,  deducting  the 
amount  paid  and  the  costs  and  interest,  and  afterwards 
assigned  the  mortgage  to  another  person,  who  entered 
on  the  land  for  the  purpose  of  foreclosure,  but  subse- 
quently instead  purchased  the  equity  of  redemption  and 
sold  the  land  at  auction  within  three  years  for  $1,500,  it 
was  held  that,  although  there  was  a  technical  breach  of 
the  bond,  as  the  mortgage  was  not  foreclosed,  the  plain- 
tiff, in  the  absence  of  proof  of  actual  damage  from  the 
mode  of  sale,  was  entitled  to  nominal  damages  only.^*) 

So  where  goods  were  illegally  attached,  but  were  im- 

(»)  Browne  v.  Price,  4  C.  B.  (N.  S.)  598. 
(f)  Pollard  V.  Porter,  3  Gray  312. 


152  NOMINAL    DAMAGES.  §   IO7. 

mediately  replevied  by  the  plaintiff  and  never  taken  out 
of  his  possession,  only  nominal  damages  could  be  recov- 
ered. (°)  And  where  a  deed  given  into  the  defendant's 
possession  in  escrow  was  wrongfully  recorded  by  him, 
the  grantor  could  recover  only  nominal  damages,  since 
the  deed  was  not  valid.  (")  So  where  a  plaintiff  was 
imprisoned  on  two  warrants,  one  legal  and  the  other 
illegal,  the  justice  issuing  them  could  be  held  for  no 
more  than  nominal  damages. (") 

And  often  on  the  facts  of  a  case  it  may  appear  that 
the  defendant's  act,  though  it  would  naturally  cause  loss, 
did  not  do  so  in  the  present  instance. C^)  Thus  in  Massa- 
chusetts, though  an  officer  who  takes  a  bail-bond  is  liable 
to  an  action  for  not  returning  it  with  the  writ,  yet  if  he 
deliver  or  offer  to  deliver  it  to  the  plaintiff  in  season  for 
him  to  prosecute  a  scire  facias  against  the  bail,  he  is 
liable  for  nominal  damages  only.' 

So  in  Connecticut,  in  an  action  of  slander,  for  charging 
the  plaintiff,  a  female,  with  want  of  chastity,  the  judge 
directed  the  jury  "  that  if  they  should  find  that  the  plain- 
tiff had  so  destroyed  her  character  by  her  own  lewd  and 
dissolute  conduct  as  to  have  sustained  no  injury  from 
the  words  spoken  by  the  defendant,  they  might  give 
only  nominal  damages";'  and  on  review  this  was  held 
correct. 

The  plaintiff,  a  sheriflF,  attached  goods  of  the  defend- 
ant and  took  a  delivery  bond.  The  defendant  brought 
an  action  of  replevin  against  the  sheriff,  and  the  latter 

'  Glezen  v.  Rood,  2  Met.  490.  '  Flint  v.  Clark,  13  Conn.  361. 

(»)  McLeod  V.  Sandell,  26  N.  B.  526. 

C)  Derry  v.  Derry,  3  P.  &  B.  (N.  B.)  621. 

(")  Doherty  v.  Munson,  127  Mass.  495. 

('')  Dow  V.  Humbert,  91  U.  S.  294 ;  Spafford  v.  Goodell,  3  McLean  97 ; 
Hotchkiss  t;.  Whitten,  71  Me.  577;  Pond  v.  Merrifield,  12  Cush.  181  ;  New- 
comb  V.  Wallace,  112  Mass.  25  ;  Kelly  v.  Jones,  2  All.  (N.  B.)  465. 


§  I08.       NOMINAL    DAMAGES   AS   AFFECTING    COSTS.  1 53 

recovered  ;  the  defendant  elected  to  retain  the  goods, 
and  paid  the  value  of  them  to  the  sheriff.  In  an  action 
by  the  sheriff  on  the  delivery  bond,  it  was  held  that  he 
could  recover  only  nominal  damages.'  (") 

§  108.  Nominal  damages  as  affecting  costs. — *The  im- 
portance of  the  principle  of  nominal  damages  is  mainly 
its  effect  upon  the  costs.(^)  Costs  are  usually  made  to 
depend  on  the  amount  recovered,  according  to  the  nature 
of  the  action.     Thus  in  Massachusetts  a  plaintiff  is  en- 

'  The  case  of  Hall  v.  Ross,  i  Dow.  person  who  had  made  out  his  claim  to 

201,  presents,  in   a  striking  point  of  damages.     Too  much  might  be  given 

view,  the  difference  between  the  Scotch  him,  or  too  little  ;  but  he  could  never, 

and  English  law  on  the  subject  of  nom-  under  such  circumstances,  be  dismissed 

inal  damages.     It  was  a  suit  growing  out  of  court,  with  the  additional  loss  of 

out  of  a  lease  of  certain  salmon-fishing  having  to  pay  the  expenses  of  the  suit, 

stations  which  had  been  disturbed  by  It  might  be  very  often  difficult  to  ascer- 

the  erection  of  a  dock.     In  the  Scotch  tain  the  amount  of  the  damage  ;  and  in 

court  the  judges  (fourteen  in  number)  this  country  there  were  two  modes  of 

were  equally  divided.     Of  the  seven  proceeding  in  such  cases,  viz.  .  to  prove 

who   decided  against  the   claim,  four  the  amount  by  the  testimony  of  com- 

were  satisfied  that  the  appellant  had  sus-  petent  witnesses;  or,  where  there  was 

tained  damage,  but  apparently  thought  no  ground  or  criterion  to  estimate  the 

the  damage  could  not  be  ascertained  ;  damage,  they  were  in  the  habit  of  giv- 

and  judgment  was  given  against  the  ing  nominal  damages  ;  but  they  never 

party  claiming,  with  costs.     The  Lord  dismissed  the  claim  altogether  when  it 

President,  however,  said  that  in  several  appeared  that  there  was  some  damage." 

actions  usual  in  Scotland  they  were  un-  And  the  judgment  was  reversed,  with 

der  the  necessity  of  ' '  conjecturing  the  instructions  :    J^irst,  that,  if  damages 

damages."  had  been  sustaingd,  compensation  was 

On  appeal  to  the  House  of  Lords,  due.      Second,   that  the   party   should 

Lord  Eldon  said :   "  If ,  in  England,  a  furnish  further  proof ;  and  if  not,  that 

majority  of  the  judges   had  been   of  the  court  should  ascertain  the  amount 

opinion  that  some  damages  were  due,  of  damages  by  such  other  means  as 

their    Lordships    would    never    have  their  practice  should  authorize,  and  then 

heard  of  the  decision  being  against  the  to  do  what  was  fit  and  just. 


(»)  Stuart  V.  Trotter,  75  la.  96. 

C")  In  admiralty,  where  costs  are  discretionary,  the  right  to  nominal  dam- 
ages seems  to  be  regarded  as  less  important  than  in  the  common-law 
courts.  Thus,  in  Barnett  v.  Luther  (l  Curtis'  C.  C.  434),  Curtis,  J.,  said  : 
"  If  it  were  admitted  that  jn  an  action  at  law  a  seaman  could  recover  nomi- 
nal damages  for  a  blow  inflicted  by  the  master,  it  does  not  follow  that  the 

Admiralty  will  award  him  nominal  damages At  the  common  law,  the 

prevailing  party  having  a  legal  right  to  costs,  which  is  of  itself  a  substantial 
right,  it  is  necessary  to  decide  claims  to  nominal  damages  upon  strict  legal 
principles,  even  where  nothing  but  a  question  of  costs  is  involved.  But  in 
the  Admiralty  the  costs  are  in  the  discretion  of  the  court." 


154  NOMINAL   DAMAGES.  §  IO9. 

titled  to  full  costs  in  personal  actions,  in  which  the  title 
to  real  estate  may  be  concerned,  if  he  recover  any  sum 
less  than  twenty  dollars.^  The  practical  results  of  the 
principle,  therefore,  can  only  be  understood  by  a  careful 
analysis  of  the  statutes  of  costs,  of  the  details  of  which, 
being  matters  of  local  legislation,  this  work  cannot  prop- 
erly treat. 

Where  the  action  is  brought  to  prevent  trespasses,  to 
try  titles  to  land,  or  to  determine  rights  of  any  kind,  it 
is  very  equitable  that  the  party  in  the  wrong  should  bear 
the  expense  of  the  controversy  ;  but  in  most  other  cases 
the  rule  of  nominal  damages,  provided  they  carry  costs, 
only  tends  to  engender  litigation.  (")  We  shall  have 
occasion  hereafter  to  notice  this  more  particularly ;  but 
it  should  be  borne  in  mind  that  the  rule  of  nominal 
damages,  unless  carefully  limited  to  cases  where  a  right 
is  necessarily  litigated,  results  in  gross  injustice.  It  is 
of  no  consequence  whether  a  claim  to  real  or  to  personal 
property  is  in  question  ;  the  defendant  ought  not  to  be 
charged  with  the  costs  of  the  proceeding  if  the  suit 
be  either  malicious  or  unnecessary.  The  law  should 
hold  out  no  inducement  to  useless  or  vindictive  litiga- 
tion.' ** 

§  109.  Error  in  the  disallowance  of  nominal  damages. — 
A  motion  for  a  nonsuit  should  be  denied  where  the 

'  Pub.  Stats,  of  Mass.,  ch.  198,  §§  5,        ^  This  language  is  cited  with  appro- 
6  ;  Ryder  v.  Hathaway,  2  Met.  96.  bation  in  Vermont,  in  Paul  v.  Slason, 

22  Verm.  231,  per  Poland,  J. 


(■)  It  is  provided  by  statute  in  England,  and  generally  in  the  different 
States  of  the  Union,  that  in  actions  at  law  for  the  recovery  of  money,  a  re- 
covery to  a  certain  amount  beyond  nominal  damages  shall  be  necessary  to 
carry  costs.  Where  a  jury,  acting  on  the  information  of  the  plaintiff's  coun- 
sel in  his  summing  up,  that  a  verdict  for  less  than  ^5  would  not  carry  costs, 
found  that  amount  for  a  trifling  assault,  the  court  granted  a  new  trial.  Poole 
V   iVhitcomb,  12  C.  B.  (N.  S.)  770. 


§  log.  ERROR    IN   DISALLOWANCE.  1 55 

plaintiff  is  entitled  to  noniinal  damages.  (*)  But  a  new 
trial  will  not  be  granted  to  the  plaintiff  where,  upon  the 
whole  case  presented,  it  appears  that  he  is  entitled  to 
nominal  damages  onlyjC")  unless  the  recovery  of  nomi- 
nal damages  would  have  carried  costs, (°)  or  unless  the 
allowance  of  nominal  damages  is  necessary  for  the  pro- 
tection of  the  plaintiff's  interest  in  property.  C^)  But  if 
the  jury  finds  substantial  damages  when  only  nominal 
damages  should  have  been  found,  the  court  cannot  give 
judgment  for  the  defendant  non  obstante  veredicto,  but 
must  award  a  new  trial.  (°)  Where  nominal  damages 
should  be  given  on  the  facts  as  found,  but  the  jury 
neglected  to  find  any  damages,  the  court  may  amend  the 
record  by  awarding  a  nominal  sum  as  damages. (') 


(»)  Hancock  v.  Hubbell,  71  Cal.  537 ;  Quin  v.  Moore,  15  N.  Y.  432. 

C)  New  Orleans.  M.  &  T.  R.R.  Co.  v.  South.  &  Atl.  Tel.  Co.,  53  Ala.  211  ; 
•  Bustamente  v.  Stewart,  55  Cal.  115;  McAllister  v.  Clement,  75  Cal.  182; 
Ely  I/.  Parsons,  55  Conn.  83;  Jennings  v.  Loring,  5  Ind.  250;  Hill  v.  Fork- 
ner,  76  Ind.  115;  Platter  v.  Seymour,  86  Ind.  323;  Mcintosh  v.  Lee,  57 
la.  356  ;  Thorp  v.  Bradley,  75  la.  50  ;  Faulkner  v.  Closter,  79  la.  1 5  ;  Robert- 
son V.  Gentry,  2  Bibb  542  ;  Hickey  v.  Baird,  9  Mich.  32  ;  Haven  v.  Beidler 
Mfg.  Co.,  40  Mich.  286  ;  Harris  v.  Kerr,  37  Minn.  537  ;  French  v.  Ramge,  2 
Neb.  254  ;  Brantingham  v.  Fay,  i  Johns.  Cas.  255  ;  Chambers  v.  Frazier,  29 
Oh.  St.  362  ;  Watson  v.  Hamilton,  6  Rich.  L.  75  ;  Hibbard  v.  W.  U.  Tel. 
Co.,  33  Wis.  558  ;  Middleton  v.  Jerdee,  73  Wis.  39  ;  Benson  v.  Waukesha, 
74  Wis.  31  ;  Beatty  v.  Oille,  12  Can.  706.  But  a  new  trial  was  granted  for 
failure  to  give  nominal  damages,  though  without  argument  of  the  point,  in 
Woods  z*.  Varnum,  21  Pick.  165  ;  Brown  v.  Emerson,  18  Mo.  103.  There  is 
an  analogous  rule,  viz. :  that  trifling  damages  found  on  insufficient  evidence 
are  not  ground  for  a  new  trial.  Maher  w.  Winona  &  St.  P.  R.R.  Co.,  31 
Minn.  401. 

(«)  French  v.  Ramge,  2  Neb.  254 ;  Chambers  v.  Frazier,  29  Oh.  St.  362  ; 
Seat  V.  Moreland,  7  Humph.  575  ;  Middleton  v.  Jerdee,  73  Wis.  39. 

(")  Ely  V.  Parsons,  55  Conn.  83  ;  Beatty  v.  Oille,  12  Can.  706. 

(»)  Carl  V.  Granger  Coal  Co.,  69  la.  519. 

(0  Regina  v.  Fall,  i  Q.  B.  636  ;  Segelke  v.  Finan,  48  Hun  310. 


CHAPTER   IV. 


CONSEQUENTIAL   DAMAGES. 


§  no.  Not  all  results  of  a  wrongful 
act  are  compensated. 

Ill,  Direct  and  indirect  results  of  a 
wrong. 


§112.  Direct    consequences 
compensated. 


always 


1.— Proximate  and  Remote  Loss. 


§113 


not 


Remote      consequences 
compensated. 

Right   of    action — Proximate 
cause. 

Scott  V.  Shepherd. 

Question  of  remoteness  a  ques- 
tion of  fact. 

Remote   consequences  in  the 
civil  law. 

French  law. 

Difference  between  civil  and 
common  law. 

Scotch  law. 

Louisiana  law. 

General  principles  in  the  com- 
mon law. 

123.  Consequences  of  an  act  com- 

plex in  nature. 

124.  Avoidable  consequences. 

125.  Instances    of    remote    conse- 

quences. 

126.  Intervention  of  a  living  agency 

— Independent  will. 

127.  Loss  of  credit  or  custom. 

128.  Loss  caused  by  a  crowd  at- 

tracted. 


114. 

115. 
116. 

117. 

118. 
119. 

120. 
121. 
122. 


§129.  Intervening  agencies — General 
rule. 

130.  Loss  through  a  forced  sale  of 

property. 

131.  Injury  to  animals — Infectious 

disease. 

132.  Straying  animals — Non-repair 

of  fences  or  gates. 

133.  Loss    through   deprivation   of 

machinery   or    of    business 
premises. 

134.  Of  means  of  protection  to  per- 

son or  property. 

135.  Through    detention   of   prop- 

erty. 

136.  Personal  injury — False  impris- 

onment. 

137.  Loss  of  service. 

138.  Loss  of  a  dependent  contract. 

1 39.  Expense  of  preparation  for  per- 

formance. 

140.  Expense  incurred  on  faith  of 

the  defendant's  contract. 

141.  Stock   purchased   on   faith  of 

lease  or  conveyance. 


II. — Natural  Consequences. 


142.  Unnatural  or  unexpected  con- 
sequences not  compensated. 
(156) 


§  143.  Natural   consequences   in  ac- 
tions of  tort. 


§  no. 


NOT   ALL   RESULTS   COMPENSATED, 


157 


§  144.  The  rule  in  Hadley  v.  Baxen- 
dale. 

145.  Griffin  v.  Colver. 

146.  Meaning  of  the  rule  in  Hadley 

V.  Baxendale. 

147.  Hadley  v.  Baxendale  as  inter- 

preted in  England. 

148.  Hadley  v.  Baxendale  as  inter- 

preted in  New  York. 

149.  General  results  of  Hadley  v. 

Baxendale. 


§  ISO- 
151. 

152. 


153- 


154. 

155. 
156. 


Hobbs'  Case. 

Cory  V.  Thames  I.  W.  &  S.  B. 
Co. 

Loss  caused  by  unexpected 
natural  causes  supervening 
on  the  defendant's  act. 

Through  deprivation  of  mate- 
rial for  manufacture  or 
trade. 

Telegraph  companies. 

Agreement  to  repair. 

Loss  of  a  sub-contract. 


HL— Notice. 


§  157.  Notice — General  rule. 

158.  Notice  of  consequences  of  a 

breach  of  contract. 

159.  Notice  must  form  the  basis  of 

a  contract. 

160.  But   need   not  be  part  of  the 

contract. 

161.  Notice  of  a  sub-contract. 

162.  Notice  of  a  contemplated  re- 

sale. 


§'63. 


Notice  of  a  sub-contract,  but 
not  of  the  price. 

Notice  of  special  use  for  goods. 

Notice  of  use  of  machinery. 

Notice  of  special  use  for  mate- 
rial. 

Notice  of  special  use  for  prem- 
ises. 

168.  Notice  of  special  use  for  funds 

169.  Notice  of  special  use  for  in- 

formation. 


164. 
165. 
166. 

167. 


§  110.  Not  all  results  of  a  wrongful  act  are  compensated. 
— Having  in  the  last  chapter  stated  the  measure  of  dam- 
ages in  cases  where  nominal  damages  only  are  given, 
we  now  proceed  to  consider  the  general  rule  which 
fixes  the  limit  of  compensation  in  cases  where  compen- 
sation is  allowed.  *  That  rule  is  the  one  which  prohibits 
any  allowance  for  damages  remotely  resulting  from  the 
principal  illegal  act.  Such  damages  are  frequently 
termed  remote  damages,  and  sometimes  consequential 
damages.  These  terms  are  not,  however,  necessarily 
synonymous,  or  to  be  indifferently  used.  All  remote 
damages  are  consequential,  but  all  consequential  dam- 
ages are  by  no  means  remote. 

We  shall  have  frequent  occasion  to  notice  the  exist- 
ence of  this  principle  hereafter,  when  examining  more 
minutely  the  rules  of  damages  in  particular  cases ;  but  it 


158  CONSEQUENTIAL    DAMAGES.  §   III. 

is  proper,  before  entering  on  that  part  of  our  subject,  to 
have  an  idea  of  the  general  boundaries  of  this  branch  of 
our  jurisprudence.** 

§  III.  Direct  and  indirect  results  of  a  wrong. — A  wrong- 
ful act  may  be  followed  directly  and  immediately  by  cer- 
tain consequences ;  and  from  theee  may  result,  more  in- 
directly, other  consequences.  For  instance,  an  assault 
and  battery  may  directly  result  in  pain  and  bruises,  and 
in  the  aggravation  of  a  pre-existing  disease.  These  are 
direct  results  of  the  battery.  It  may  also  result  in  loss 
of  time,  expense  of  medical  attendance,  and  loss  of  a 
business  situation.  These  are,  perhaps,  direct  results  of 
illness  caused  by  the  battery,  but  they  are  indirect  results 
of  the  battery  itself.  A  loss  which  is  the  immediate  re- 
sult of  the  wrong  is  called  a  direct  loss ;  one  that  is  an 
indirect  result  of  the  wrong  is  called  a  consequential  loss. 
Again,  a  consequential  loss  may  be  one  step  or  a  dozen 
in  the  line  of  causation  from  the  wrong.  If  it  is  suffi- 
ciently near  the  wrong  for  the  law  to  concern  itself  with 
the  connection,  it  is  called  a  proximate  loss ;  if  not  suffi- 
ciently near,  it  is  called  a  remote  loss ;  both  proximate 
and  remote  losses  being  consequential.  Still  further,  a 
result  may  be  the  consequence  that  might  naturally  have 
been  expected  to  follow  from  the  wrong,  or  it  may  be 
quite  unexpected.  Consequences  of  the  expected  sort 
are  called  natural  consequences.  It  should  be  observed 
that' the  term  consequential  is  often  erroneously  used  as 
if  it  were  the  equivalent  of  remote.  It  has  been  urged 
with  much  force  by  Grove,  J.,  in  Smith  v.  Green," 
that  a  more  correct  term  would  be  normal  con- 
sequences. Every  consequence  in  the  order  of  na- 
ture must  in  one  sense  be  natural.  But  a  perfectly  nat- 
ural consequence  may  be  at  the  same  time  such  as  is  not 

(»)  I  C.  p.  D.  92. 


§112.      DIRECT  CONSEQUENCE  ALWAYS  COMPENSATED.      1 59 

generally  expected  to  flow  from  the  act  in  the  normal 
or  usual  order.  But  the  term  natural  consequence  is, 
perhaps,  too  well  fixed  to  be  now  changed. 

§  112.  Direct  consequence  always  compensated. — The  di- 
rect consequence  of  a  wrongful  act  is  always  a  subject 
for  compensation,  whether  it  is  or  is  not  a  natural  {i.  e., 
normal,)  consequence. (') 

So  where  the  result  of  an  assault  was  the  closing  up 
of  the  plaintiff's  tear-passages,  thus  weakening  his  eyes, 
he  was  allowed  compensation  for  it.(*)  And  where  an 
assault  rendered  the  plaintiff"  subject  to  fits,  he  was  al- 
lowed compensation  for  the  injury.  (") 

So  where  the  defendant  drove  against  the  plaintiff's 
carriage,  and  by  the  shock  the  plaintiff's  friend  was 
thrown  off"  the  seat  on  to  the  dashing-board,  and  the 
dashing-board  falling  on  the  horse,  he  kicked  and  broke 
it ;  it  was  held  that  all  the  damage  so  sustained  was  re- 
coverable in  trespass.' 

In  Eten  v.  Luyster,(*)  an  action  for  dispossessing  the 
plaintiff"  under  a  New  York  statute  ("  Summary  Proceed- 
ings Act "),  where  the  proceedings  were  set  aside  on  appeal 
as  unauthorized  by  the  act,  it  was  held  that  the  plaintiff 
could  recover  for  the  destruction  of  a  building,  the  loss 
of  his  chattels  and  of  his  money,  and  the  value  of  his 
unexpired  term,  even  though  the  money  was  kept  in  an 
unusual  place,  and  the  defendants  probably  did  not  sus- 
pect its  presence,  Allen,  J.,  saying:  "The  loss  of  the 
money,  although  the  defendants  may  not  have  suspected 
its  presence,  was  the  direct  and  necessary  consequence  of 
the  acts  of  the  defendants." 

'  Gilbertson  v.  Richardson,  5  C.  B.  502. 

(»)  Bowas  V.  Pioneer  Tow  Line,  2  Sawy.  2i, 
C)  Blake  v.  Lord,  16  Gray  387. 
(■=)  Sloan  V.  Edwards,  61  Md.  89. 
C)  60  N.  Y.  352. 


l60  CONSEQUENTIAL    DAMAGES.  §   I  I  2. 

The  defendant  negligently  ran  against  a  pier  on  which 
the  plaintiff  was  working,  though  he  had  not  been  seen 
by  the  defendant.  The  jar  knocked  out  a  brace  between 
two  piles,  and  the  piles,  coming  together,  caught  the 
plaintiff  and  he  was  injured.  It  was  held  that  the  plain- 
tiff could  recover.  (") 

A  common  case  of  directly  ensuing  loss  is  where  a 
physical  injury  stimulates  a  pre-existing  tendency  to  dis- 
ease Q)  or  leads  to  peculiarly  unfortunate  results  owing 
to  a  prior  injury  (°)  or  to  a  delicate  state  of  health, C)  or 
peculiar  physical  condition  such  as  pregnancy. (*)  In  all 
these  cases  the  loss  is  the  direct  though  unexpected  con- 
sequence of  the  injury,  and  the  plaintiff"  may  recover 
compensation  for  it.(') 

So  in  an  action  for  personal  injuries,  alleged  to  have 


(»)  Hill  V.  Winsor,  ii8  Mass.  251.  This  was  a  case  involving  the  right  of 
action,  and  so  cannot  properly  be  cited  as  an  authority  on  the  measure  of 
damages ;  but  it  affords  a  striking  illustration  of  a  direct  but  entirely  unex- 
pected consequence  of  a  wrongful  act. 

('')  Terre  Haute  &  I.  R.R.  Co.  v.  Buck,  96  Ind.  346 ;  Louisville  N.  A.  & 
C.  Ry.  Co.  v.  Jones,  108  Ind.  551 ;  Ohio  &  M.  R.R.  Co.  v.  Hecht,  115  Ind. 
443 ;  Lapleine  v.  R.  R.  &  S.  Co.,  40  La.  Ann.  661  ;  Baltimore  C.  P.  Ry.  Co.  v. 
Kemp,  61  Md.  74;  Baltimore  &  L.  T.  Co.  v.  Cassell,  66  Md.  419;  Elliott  v. 
Van  Buren,  33  Mich.  49;  Jewell  v.  Grand  Trunk  Ry.  Co.,  55  N.  H.  84; 
Stewart  v.  Ripon,  38  Wis.  584 ;  Macnamara  v.  Clintonville,  62  Wis.  207. 

(")  Coleman  7/.  New  York  &  N.  H.  R.R.  Co.,  106  Mass.  160  (hernia) ; 
Allison  V.  Chicago  &  N.  W.  Ry.  Co.,  42  la.  274 ;  Driess  v.  Frederich,  73 
Tex.  460  (limb  previously  broken). 

C)  East  T.  V.  &  G.  R.R.  Co.  v.  Lockhart,  79  Ala.  315  ;  Tice  v.  Munn,  94 
N.  Y.  621. 

(f)  Campbell  v.  Pullman  P.  C.  Co.,  42  Fed.  Rep.  484 ;  Barbee  v.  Reese, 
60  Miss.  906 ;  Oliver  v.  La  Valle,  36  Wis.  592  ;  Brown  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  54  Wis.  342. 

O  In  Pullman  P.  C.  Co.  v.  Barker,  4  Col.  344,  the  Supreme  Court  of  Colo- 
rado refused  to  allow  such  damages  where  they  resulted  from  the  peculiar 
physical  condition  of  the  plaintiff.  The  case  is  opposed  to  all  the  other  au- 
thorities, and  has  been  often  criticised. 


§112.      DIRECT  CONSEQUENCE  ALWAYS  COMPENSATED,      l6l 

been  received  by  the  negligence  of  others,  an  instruc- 
tion, in  effect,  that,  "  If  you  find  from  the  evidence  that 
the  plaintiff  received  the  injuries  complained  of,  or  any 
of  them,  in  the  manner  alleged,  and  that  at  the  time  of 
the  reception  of  said  injuries,  or  any  of  them,  the  plain- 
tiff was  predisposed  to  malarial,  scrofulous,  or  rheumatic 
tendencies,  but  otherwise  in  good  health,  and  you  further 
find  that  said  injuries,  or  any  of  them,  solely  excited  or 
developed  said  predisposition  to  malarial,  scrofulous,  or 
rheumatic  tendencies,  so  that  thereby,  without  the  fault 
of  plaintiff,  her  present  condition,  whatever  you  may  find 
that  to  be,  has  directly  resulted,  then  I  instruct  you  that 
the  plaintiff  is  entitled  to  recover  to  the  full  extent  of 
whatever  you  may  find  her  present  condition  to  be,"  cor- 
rectly states  the  law.(*) 

In  cases  of  breach  of  contract  direct  consequences  are 
generally  natural.  In  some  cases,  however,  principally  con- 
tracts of  carriage,  the  direct  consequence  of  the  breach  is 
unexpected  ;  but  compensation  for  it  is  allowed.  So  where 
a  package  of  jewels  was  sent  by  a  carrier,  no  notice 
being  given  of  the  contents,  the  carrier  having  lost  the 
package  was  required  to  make  compensation  for  the 
jewels,  though  the  loss  of  jewels  was  an  unexpected  con- 
sequence of  the  loss  of  the  package. C')  And  where  a 
carrier  lost  a  package  containing  plans  from  which  it  was 
intended  to  build  a  house  the  owner  was  allowed  to  re- 
cover the  cost  of  obtaining  new  plans,  though  the  car- 
rier did  not  know  the  contents  of  the  package. (°)  And 
generally,  when  the  value  of  the  goods  is  enhanced  by 
special  circumstances  not  known  to  the  carrier,  such  en- 


(»)  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Falvey,  104  Ind.  409. 
Q')  Little  V.  Boston  &  M.  R.R.  Co.,  66  Me.  239. 
(°)  Mather  v.  American  E.  Co.,  138  Mass.  55. 

VOL.  I.— II 


1 62  CONSEQUENTIAL   DAMAGES.  §   ^S- 

hanced  value  may  be  recovered. (")  In  an  action  for 
breach  of  contract  to  indemnify  the  plaintiff  for  an  in- 
jury caused  by  surrounding  his  canal  boat  (containing 
potatoes)  with  manure,  he  can  recover  for  rottenness 
which  was  caused  to  the  boat  by  the  manure,  the  meas- 
ure of  damages  being  the  excess  of  rottenness  of  the 
boat  over  what  would  have  been  produced  if  the  manure 
had  not  been  used.C") 

Proximate  and  Remote  Loss. 

§  113.  Remote  consequences  not  compensated. — It  has 
already  been  stated  (")  that  the  law  does  not  and 
cannot  give  complete  compensation  for  the  injury  sus- 
tained ;  it  refuses  to  take  into  consideration  any  damages 
remotely  resulting  from  the  act  complained  of. 

In  the  language  of  the  Supreme  Court  of  Pennsyl- 
vania, to  visit  upon  the  defendant  all  the  consequences 
of  his  wrongful  act  "  would  set  society  on  edge,  and  fill 
the  courts  with  useless  and  injurious  litigation.  It  is 
impossible  to  compensate  for  all  losses,  and  the  law  there- 
fore aims  at  a  just  discrimination,  which  will  impose 
upon  the  party  causing  them,  the  proportion  of  them 
that  a  proper  view  of  his  acts  and  the  attending  circum- 
stances would  dictate."  C^) 

And  as  the  Supreme  Court  of  Massachusetts  expresses 
it,  "A  rule  of  damages  which  should  embrace  within  its 
scope  all  the  consequences  which  might  be  shown  to 
have  resulted  from  a  failure  or  omission  to  perform  a 
stipulated  duty  or  service,  would  be  a  serious  hindrance 
to  the  operations  of  commerce,  and  to  the  transaction  of 


(')  France  v.  Gaudet,  L.  R.  6  Q.  B.  199;  Wilson  v.  Lancashire  &  Y.  Ry. 
Co.,  9  C.  B.  N.  S.  632. 

0")  Starbird  v.  Barrows,  62  N.  Y.  615. 

e)  §  38. 

('')  Agnew,  J.,  in  Fleming  v.  Beck,  48  Pa.  St.  309,  313. 


§   1 14-  RIGHT   OF   ACTION.  163 

the  common  business  of  life.  The  effect  would  be  to 
impose  a  liability  wholly  disproportionate  to  the  nature 
of  the  act  or  service  which  a  party  has  bound  himself 
to  perform,  and  to  the  compensation  paid  and  received 
therefor."  (*) 

§  114.  Right  of  action — Proximate  cause. — An  anal- 
ogous question  to  the  one  we  are  now  considering  arises 
in  cases  of  tort,  where  the  defendant  attempts  to  show 
that  the  entire  injury  is  too  remote  a  result  of  his  act 
fairly  to  be  attributed  to  it.  It  is  evident  that  much  the 
same  considerations  are  involved,  whether  the  attempt  is 
to  show  that  the  injury  itself  is  remote  from  the  act,  or 
only  certain  consequences  of  the  injury.  But  the  former 
question  concerns  the  right  to  bring  an  action,  and  is 
therefore  not  involved  in  a  discussion  of  the  measure  of 
damages. 

These  classes  of  cases  are,  however,  often  difficult  to 
distinguish  in  practice  ;  and  both  are  to  some  extent  in- 
volved in  the  consideration  of  nominal  damages,  where 
they  shade  into  one  another.  Besides  this,  a  case  turn- 
ing upon  the  right  of  action  may  frequently  be  a  prec- 
edent for  the  decision  of  a  case  involving  the  measure  of 
damages.  It  is  impossible,  therefore,  entirely  to  exclude 
from  this  treatise  cases  involving  the  right  of  action, 
or,  as  it  is  frequently  called,  proximate  cause.  The  doc- 
trine is  founded,  or  at  least  found  its  first  expression,  in 
the  maxim,  Causa  proxima,  non  remota,  spectatur ;  or, 
in  the  language  of  Lord  Bacon,  "  It  were  infinite  for  the 
law  to  judge  the  causes  of  causes,  and  their  impulsion 
one  on  another.  Therefore,  it  contenteth  itself  with  the 
immediate  cause,  and  judgeth  of  acts  by  that  without 
looking  to  any  further  degree."' 

'  Maxims  of  the  Law,  Regula  I. 
(«)  Bigelow,  C.  J.,  in  Squire  v.  Western  U.  T.  Co.,  q8  Mass.  232,  237, 


164  CONSEQUENTIAL   DAMAGES.  §§   I15,  I16, 

§  115.  Scott  V.  Shepherd. — The  discussion  of  the  ques- 
tion of  proximate  cause  is  chiefly  founded  on  the  famous 
squib  case.'  In  that  case  it  appeared  that  the  defendant 
threw  a  lighted  squib  into  the  market-house,  which  fell 
on  the  stall  of  a  ginger-bread  seller ;  he,  to  save  himself, 
threw  it  on  another  stall ;  the  proprietor  of  the  second 
stall  also  threw  it  off,  and  in  so  doing  struck  the  plaintiff 
and  put  out  his  eye.     The  judges  differed  in  opinion. 

Nares,  J.,  held  that  trespass  would  lie  because  the  nat- 
ural and  probable  consequence  of  the  defendant's  act  was 
injury  to  somebody,  and  therefore  the  act  was  unlawful ; 
and  being  unlawful,  the  defendant  was  answerable  for  its 
consequences,  whether  the  injury  were  mediate  or  imme- 
diate. In  this  opinion  Gould,  J.,  concurred,  expressing 
further  the  opinion  that  trespass  would  lie  for  the  mis- 
chievous consequences  of  another's  act,  whether  lawful 
or  not.  Blackstone,  J.,  dissenting,  held  that  the  injury 
being  consequential  only  and  not  immediate,  the  action 
could  not  be  maintained,  but  that  case  should  have  been 
brought.  De  Grey,  C.  J.,  held  that  the  injury  was  the 
direct  and  immediate  result  of  the  act  of  the  defendant, 
and  that  trespass  would  lie. 

Later  cases  have  followed  this  decision,  on  the  ground 
that  the  acts  of  the  others  were  involuntary ;  that  the 
injury  to  the  plaintiff  was,  therefore,  the  immediate  re- 
sult of  the  defendant's  acts,  as  if  the  squib  had  struck 
against  boards,  and  rebounded  instead  of  having  been 
thrown, 

§  116.  Question  of  remoteness  a  question  of  fact. — The 
question  whether  an  item  of  loss  is  or  is  not  a  proximate 
consequence  of  the  wrong  is  in  each  case  a  question  of 
fact.  Only  general  principles  can  be  laid  down,  and  in 
applying  them  much  latitude  must  necessarily  be  left  to 

'  Scott  w.  Shepherd,  2  W.  Bl.  892. 


§117.       REMOTE  CONSEQUENCES  IN  THE  CIVIL  LAW.  1 65 

the  court  and  jury.  The  difficulty  is  increased  by  the 
fact  that  the  distinction  between  the  question  of  proxi- 
mate or  remote  consequences  and  the  question  of  natural 
consequences  has  been  so  frequently  lost  sight  of ;  on 
the  other  hand,  the  matter  has  been  further  confused 
with  questions  of  certainty  or  uncertainty  of  loss.  The 
line  between  proximate  and  natural  consequences  is  in 
fact  a  vague  one,  and  an  item  of  damage  might  often  be 
disallowed  either  as  a  remote  or  as  an  unexpected  conse- 
quence of  the  wrongful  act.  But  the  subject  will  be 
clearer  upon  considering  remote  and  unexpected  losses 
separately,  and  much  will  be  gained  by  a  classification  of 
the  cases,  so  far  as  that  is  possible. 

§  117.  Remote  consequences  in  the  civil  law. — Before 
proceeding  to  a  discussion  of  the  principles  governing 
consequential  damages  in  our  law,  it  may  be  profitable 
briefly  to  examine  the  rules  of  the  Civil  Law  governing 
the  subject.  Here,  too,  as  will  be  seen,  writers  have 
not  clearly  distinguished  remote  from  unnatural  conse- 
quences. 

*  The  general  principle  denying  compensation  for  re- 
mote consequences  pervades  the  civil  as  well  as  the 
common  law,  and  applies  equally  to  cases  of  breach  of 
contract,  and  of  violation  of  duty  ;  to  all  cases,  in  short, 
where  no  complaint  is  made  of  any  deliberate  intention 
to  injure.  In  these  latter  cases  we  have  seen  that  our 
law  does  not  pause  at  the  line  of  mere  compensation, 
but  proceeds  to  punish  the  offender.  The  language, 
however,  held  on  this  subject,  and  the  reasons  assigned 
for  the  disregard  of  remote  damages,  are  far  from  being 
uniform.  In  regard  to  contracts,  it  is  sometimes  said 
that  the  defendant  shall  be  held  liable  for  those  damages 
only  which  both  parties  may  be  fairly  supposed  to  have 
contemplated  at  the  time  they  entered  into  the  agree- 


1 66  CONSEQUENTIAL   DAMAGES.  §   I17' 

ment,  as  likely  to  result  from  it ;  and  this  appears  to  be 
the  rule  adopted  by  the  writers  of  the  modern  civil  law. 
Thus  Pothier'  puts  the  case  of  an  agreement  for  the  sale 
of  a  horse,  and  failure  to  deliver.  If  in  this  instance 
horses  have  risen  in  price,  the  purchaser  has  a  claim  for 
what  he  has  been  obliged  to  give  for  a  similar  animal, 
over  and  above  the  price  at  which  he  was  to  have  that 
of  the  seller ;  and  this,  in  the  language  of  the  Roman 
Law,  he  terms  the  damages  propter  rem  ipsam  non  hab- 
itant. But,  on  the  other  hand,  if  the  purchaser  were  a 
canon  of  the  church,  and  by  reason  of  the  non-delivery  of 
the  horse  could  not  arrive  at  his  residence  in  season  to 
receive  his  gros  fruits  (or  tithes),  the  seller  is  not  liable 
for  the  loss  of  those  gros  fruits,  because  this  accident 
was  not  foreseen  at  the  time  of  the  contract. 

So,  in  case  of  a  letting  of  a  house  for  a  given  term, 
say  eighteen  years,  which  the  lessor  in  good  faith  supposes 
his,  and  if  at  the  end  of  ten  or  twelve  years  the  lessee  is 
evicted  by  the  true  owner,  the  lessor  is  liable  for  the 
damages  resulting  from  the  expense  of  moving,  and  the 
rise  of  the  rent  of  similar  tenements ;  these  are  propter 
rem  ipsam  non  habitam.  But  he  is  not  liable  for  an  in- 
jury done  to  a  business  established  in  the  house  by  the 
lessee  subsequent  to  the  letting,  nor  for  furniture  injured 
in  the  removal ;  this  is  damage  that  could  not  have  been 
contemplated  at  the  time  of  the  contract.  But  if,  on 
the  other  hand,  the  horse  above  referred  to  had  been  sold 
for  the  express  object  of  enabling  the  canon  to  arrive  in 
time  for  h\s  gros  fruits,  or  the  building  had  been  let  for 
the  express  object  of  carrying  on  a  particular  business, 
then  the  injuries,  which  otherwise  would  be  too  remote, 
become  direct  and  immediate,  and  constitute  a  valid 
claim,  as  forming  part  of  the  contract  between  the  par- 

'  Traitfe  des  Obligations,  part  i,  ch.  ii,  art.  iii,  §  i6o  et  seq. 


§   117.        REMOTE  CONSEQUENCES  IN  THE  CIVIL  LAW.        1 67 

ties.  So  if  one,  not  a  carpenter,  sell  timber  which  the 
purchaser  uses  to  prop  up  his  building,  and  by  reason  of 
the  timber  being  defective,  the  building  fall  and  be  de- 
stroyed,— if  the  seller  acted  in  good  faith,  and  was  igno- 
rant of  the  defect,  he  will  only  be  liable  for  the  difference 
in  price  between  good  timber  and  that  sold.  If,  how- 
ever, the  seller  was  a  carpenter  who  sold  the  timber  for  the 
express  purpose  of  propping  up  the  house,  then  he  shall 
be  held  liable  for  all  damage  done  the  building.  But 
again,  if  the  timber  be  sold  to  be  used  in  reference  to  a 
particular  building,  and  it  be  used  for  one  larger  and 
more  valuable, — even  if  it  were  insufficient  for  a  smaller 
one,  the  seller  shall  be  liable  only  for  the  value  of  the 
smaller  building.  So,  again,  in  the  second  case,  the 
seller  of  the  timber  is  only  liable  for  the  building  itself, 
and  not  for  furniture  in  it  at  the  time  of  its  destruc- 
tion. But  if  an  architect  contract  to  erect  a  dwelling- 
house,  and  by  reason  of  his  negligence  it  fall,  he  shall  be 
liable  for  the  furniture  as  well  as  the  building,  because  it 
is  to  be  considered  that  the  architect  must  have  been 
aware  that  the  house  would  be  used  for  holding  furni- 
ture. But  he  is  not  liable  for  jewelry  and  manuscripts 
of  great  and  extraordinary  value. 

In  cases  of  fraud,  the  civil  law  made  a  broad  distinc- 
tion. In  such  cases  the  debtor  was  liable  for  all  the  con- 
sequences of  his  fraud,  not  only  of  those  propter  rem 
ipsam,  but  all  others ;  for  he  who  commits  a  fraud  is 
bound,  veltt  nolit,  to  repair  the  wrong  caused  thereby. 
For  instance,  if  a  cow  tainted  with  an  infectious  malady 
is  fraudulently  sold,  the  seller  will  be  liable,  not  only  for 
the  animal  itself,  but  for  the  others  destroyed  by  the 
spread  of  the  contagion.  But  Pothier  is  of  opinion  that 
there  is  still  a  limit  to  this  liability ;  and  he  puts  the  case 
of  a  similar  contagious  disease,  and  supposes  that  in  con- 


1 68  CONSEQUENTIAL   DAMAGES.  §§  1 1 8,   II 9. 

sequence  thereof  the  purchaser  is  prevented  from  culti- 
vating his  lands,  by  means  whereof  his  payments  are  sus- 
pended, his  property  is  seized,  and  he  is  thrown  into 
prison  ;  he  considers  it  clear  in  this  case,  that  the  seizure 
of  property  is  not  to  be  charged  to  the  fraudulent  sale, 
— doubts,  also,  if  the  being  prevented  from  cultivating 
the  property  should  enter  into  the  consideration  as  dam- 
ages, and  thinks,  at  all  events,  it  should  only  do  so  in 
part. 

§  n8.  French  law. — The  modern  French  law,  as  de- 
clared in  the  Code  Napoleon,  contains  the  recognition  of 
the  same  general  principles.  "The  damages  due  the 
creditor  consist  in  general  of  the  loss  that  he  has  sus- 
tained, and  the  profit  which  he  has  been  prevented  from 
acquiring,  subject  to  the  modifications  hereinafter  con- 
tained." 

"  The  debtor  is  liable  only  for  the  damages  foreseen, 
or  which  might  have  been  foreseen  at  the  time  of  the  ex- 
ecution of  the  contract,  when  it  is  not  owing  to  his  fraud 
that  the  agreement  has  been  violated." 

"  Even  in  the  case  of  non-performance  of  the  contract, 
resulting  from  the  fraud  of  the  debtor,  the  damages  com- 
prise only  so  much  of  the  loss  sustained  by  the  creditor, 
and  so  much  of  the  profit  which  he  has  been  prevented 
from  acquiring,  as  directly  and  immediately  result  from 
the  non-performance  of  the  contract."' 

§  119.  Difference  between  civil  and  common  law. — Two 

'  The  language  of  the  Code  is  as  fol-  Dans  les  cas  mSme  oil  rinex£cution 

lows  :  Les  dommages  et  intferSts  dus  au  de  la  convention  rfesulte  du  dol  du  dfebi- 

crfeancier  sont,  en  gfenferal,  de  la  perte  teur,  les  dommages  et  intferSts  ne  doi- 

qu'il  a  faite,  et  du  gain  dont  il  a  6t6  vent  comprendre  t.  I'fegard  de  la  perte 

priv6,  sauf  les  exceptions,  et  modifica-  6prouv6e  par  le  crfeancier,  et  du  gain 

tions  ci-apr6s.  dont  il  a  6t6  privfe,  que  ce  qui  est  une 

Le  dfebiteur  n'est  tenu  que  des  dom-  suite  immediate  et  directe  de  Tinexfecu- 

mages  et  int^rfets  qui  ont  fet6  prfevus  ou  tion  de  la  convention. — Code  Civil,  liv. 

qu'on  a  pu  prSvoir  lors  du  contrit,  lors  iii,  tit.  iii,  sec.  1149,  1150,  1151. 
que  ce  n'est  point  par  son  dol  que  I'ob- 
ligation  n'est  point  ex6cut6e. 


§  Iig.    DIFFERENCE  BETWEEN  CIVIL  AND  COMMON  LAW.   169 

prominent  points  of  difference  will  be  borne  in  mind, 
between  the  principles  of  the  modern  civil  system  as  thus 
laid  down,  and  those  of  the  common  law,  which  arise 
mainly  from  the  arbitrary  character  of  the  forms  of  ac- 
tion as  they  originally  existed  at  common  law.  By  those 
forms  of  action,  contracts  and  wrongs  are  intended  to  be 
kept  wholly  distinct.  In  case  of  a  breach  of  contract 
(with  the  single  exception  of  promises  to  marry),  the 
animus  or  intention  of  the  party  in  default,  as  a  general 
rule,  is  entirely  immaterial,  and  whether  the  non-per- 
formance of  the  agreement  result  from  inability  or  delib- 
erate malice,  the  rule  of  damages  is  the  same.  On  the 
other  hand,  in  cases  of  fraud  or  vexation,  as  has  been 
already  repeatedly  said,  compensation  is  blended  with 
punishment,  and  the  jury  left  largely  to  their  discre- 
tion. 

It  will  be  perceived  that  the  above  provisions  of  the 
French  Code  recognize  the  same  principles  as  those 
which  we  have  illustrated  by  the  extracts  from  Pothier, 
and  which  are,  in  fact,  nothing  else  as  to  the  leading  prin- 
ciple, than  a  repetition  of  the  general  language  of  the 
Roman  law :  quantum  mea  interfuit,  id  est,  quantum 
m,ihi  abest  quantumque  lucrari  potui}  It  is  difficult, 
however,  to  understand  practically  what  rules  the  civil 
or  the  French  law  intends  to  lay  down  ;  as  they  are 
subject  to  the  arbitrary  discretion  already  often  noticed. 
A  very  able  commentator  on  the  Code,  holds  this  lan- 
guage : 

"  There  is  nothing  more  abstract  than  the  subject  of 
damages ;  the  law,  therefore,  has  only  been  able  to  lay 
down  general  principles,  leaving  the  wisdom  of  the  tri- 
bunals to  apply  them  according  to  the  circumstances  and 

'  L.  13,  if.  ratem  rem  hab.;  and  see  supra,  p.  24. 


170  CONSEQUENTIAL    DAMAGES.  §119' 

the  facts  of  the  case ;  and  though  it  establishes  that,  in 
general,  damages  consist  of  the  loss  which  the  creditor 
has  suffered,  and  the  profit  of  which  he  has  been  de- 
prived, nevertheless  the  judge  should  be  more  moderate 
in  granting  large  damages  for  profits  prevented  than  for 
loss  actually  sustained ;  the  lucrum  cessans  is  generally 
less  calculated  to  excite  the  solicitude  of  the  judge  than 
the  damnum  emergens ;  and  too  much  rigor  on  this 
branch  of  the  subject  would  degenerate  into  injustice. 
Summum  jus  summa  injuria.  Such  is  the  general  opin- 
ion of  our  authors." ' 

Another  very  eminent  commentator  on  the  Code,  in 
order  to  illustrate  the  general  principle  in  regard  to  re- 
moteness of  damage,  puts  the  case  of  a  contract  by  which 
Titius  is  to  let  a  sufficient  number  of  vehicles  on  a  given 
day,  for  the  vintage  of  a  certain  vineyard  remote  from 
my  domicil,  and  whither  I  have  proceeded  to  prepare  for 
the  work,  and  hired  my  hands.  Titius  failing  to  furnish 
the  vehicles,  I  am  compelled  to  dismiss  my  hands  and 
postpone  the  vintage.  A  day  or  two  after  a  hailstorm 
takes  place  and  destroys  the  whole  crop  which  I  have 
sold  to  pay  my  creditors ;  owing  to  their  not  being  paid, 
my  property  is  seized  and  I  am  driven  into  bankruptcy. 
The  question  is  then  asked.  What  does  Titius  owe  ;  does 
he  owe  me  the  value  of  my  crop  in  whole  or  in  part  ? 
Should  he  indemnify  me  for  the  loss  of  my  property  and 
my  consequent  insolvency  ?     And  the  learned  writer  de- 

'  II  n'est  pas  de  matifere  plus  abstraite  feservfe  ^  en  accorder  de  considerables 

que  celle  relative  aux  dommages-intfer-  pour  le  gain  manqu6  qu6  pour  la  perte 

fets  ;  aussi  fa  loi  n'a  t'elle  pu  tracer  que  rfeellementfe  prouvfee :  lucrum  cessans  est 

des  principes  g^nferaux  en  s'en  remet-  gfinferalement  moins  susceptible  d'ex- 

tant  i.  la  sagesse  des   tribunaux   pour  citer  sa  solicitude  que  le  damnum  emer- 

leur  application  selon  les  circonstances  gens.      Et  c'est  en   cette  matifere   que 

et  les  faites  de  la  cause.    Et  quoiqu'elle  trop  de  rigeur  d6g6n6rerait  souvent  en 

fetablisse    que    les    dommages-intferfets  injustice.    Summum  jus  summa  injuria. 

sont  en  gfenferal  la  perte  que  le  crfean-  Tel  est  le  sentiment  commun  des  au- 

cier  a  6prouv6e  et  le  gain  dont  il  a  k\.k  teurs —  Duranton,  Cows  de  Troit  Fran- 

priv6,  nfeanmoins  le  juge  doitfitre  plus  (ais,  vol.  x.  n,  480  and  481. 


§119.   DIFFERENCE  BETWEEN  CIVIL  AND  COMMON  LAW.    171 

cides  as  to  the  latter  head  of  damage,  that  Titius  is  not 
responsible.  He  pronounces  it  too  remote  a  loss.  It  is 
the  direct  and  immediate  result  of  the  bad  state  of  my 
pecuniary  affairs,  which  Titius  had  no  means  to  foresee, 
and  which  he  was  not  bound  to  consider.  As  to  the  loss 
of  the  crop,  he  proceeds  to  distinguish  between  bad  faith 
{dol,  mauvatse  fot)  and  inability.  If  the  failure  to  per- 
form the  contract  was  owing  to  the  latter,  then,  though 
Titius  is  in  fault,  still,  as  it  is  not  in  consequence  of  his 
bad  faith  that  the  contract  has  been  broken,  he  is,  by  the 
provisions  of  the  Code  above  cited,  liable  only  for  the 
damages  which  were  foreseen,  or  which  might  have  been 
foreseen  at  the  time  ;  and  it  could  not  be  anticipated  that 
the  day  after  that  fixed  upon,  a  hailstorm  would  destroy 
my  crop.  But  on  the  contrary,  if  the  non-performance 
was  owing  to  bad  faith,  then  the  same  author  considers 
Titius  liable  for  the  loss  of  the  crop,  because  it  cannot 
reasonably  be  denied  that  this  loss  is  an  immediate  and 
direct  result  of  the  non-performance  of  the  contract.  If 
it  be  said  that  the  immediate  and  direct  cause  of  the  loss 
of  my  crop  was  the  storm,  and  not  the  fault  of  Titius,  the 
answer  is,  that  to  render  the  debtor  acting  in  bad  faith 
responsible  for  damages,  the  Code  (Art.  1151)  does  not 
require  that  the  non-performance  of  the  contract  should 
be  the  immediate  and  direct  cause  of  the  damage,  but 
only  that  the  damage  should  be  the  immediate  and  direct 
result  (suite)  of  its  violation,  which  is  a  very  different 
thing.' 

This  case,  again,  well  illustrates  the  difference  between 
the  French  system  and  our  own  in  regard  to  damages. 
With  us,  as  a  general  rule,  no  discrimination  is  made  in 
regard  to  contracts,  as  to  the  motive  which  produces  their 

•  Toullier,  Droit  Civil,  liv.  iii,  tit.  iii,   ch.  iii.  De  I'effet  des    Obligations, 
§  284  et  seq.j  vol.  vi,  p.  290  et  seq. 


172  CONSEQUENTIAL   DAMAGES.  §119. 

non-performance.  So  in  this  instance,  whether  Titius 
was  actuated  by  a  fraudulent  or  a  malicious  purpose,  no 
action  could  be  maintained  but  for  a  breach  of  contract ; 
and  in  that  action,  we  apprehend  that  the  damage  result- 
ing from  an  extraordinary  hailstorm  would  be  considered 
altogether  too  remote  to  be  allowed  as  damages.  On  the 
other  hand,  however,  if  Titius,  instead  of  violating  an 
agreement,  had  committed  a  malicious  trespass,  as  by 
removing  the  vehicles  prepared  for  the  vintage,  the  jury 
might  give  damages  in  their  discretion  to  punish  the 
offense. 

Another  case  from  the  same  commentator  will  illus- 
trate the  extent  to  which  the  civil  law  goes  in  quest  of 
resulting  damage.  If,  for  instance,  an  architect  who  has 
contracted  to  build  a  house  by  a  given  time  for  a  given 
tenant,  constructs  it  so  ill  that  a  part  of  it  falls  down, 
this  causes  three  sorts  of  loss, — the  expense  of  rebuild- 
ing, the  rent  that  the  proprietor  might  have  received,  the 
damage  done  the  tenant ;  and  though  the  second  and 
third  class  appear  remote,  yet,  as  they  are  caused  by  the 
act  of  the  contractor,  they  should  be  charged  to  him. 
And  there  is  even  a  fourth  class  of  loss  for  which  he 
should  answer,  that  of  the  furniture  in  the  house,  and 
which  could  not  be  saved,  for  the  architect  must  be  pre- 
sumed to  know  that  the  house  would  contain  furniture ; 
but  he  is  not  responsible  for  jewelry,  or  things  of  extra- 
ordinary value,  unless,  indeed,  there  was  a  deliberate  de- 
sign to  injure.  Toullier  proceeds  to  say  that  in  this  case, 
and  in  many  others,  the  damages  might  be  so  enormous 
as  to  ruin  the  party  charged,  although  he  was  acting  in 
entire  good  faith  ;  and  that  hence  Domat  has  been  in- 
duced to  adopt  the  principle  that  the  architects  able  to 
meet  these  losses  should  be  charged  with  them,  but  that 
inasmuch  as  contractors  have  not  always  the  means  to 


§   I20.  SCOTCH    LAW. 


^72,- 


make  such  complete  remuneration,  and  as  humanity  should 
moderate  the  rigor  of  extreme  justice,  this  kind  of  dam- 
ages should  be  regulated  by  discretion.  Toullier,  how- 
ever, vigorously  combats  what  he  pronounces  a  false  and 
dangerous  doctrine,  and  which,  he  says  with  extreme  good 
sense,  would  result  in  different  judgments  of  the  same 
cause,  according  to  the  fortune  of  the  debtor.  The  dis- 
cussion is  curious  as  going  to  illustrate  the  apparent  ab- 
sence of  any  fixed  measure  of  damages  in  the  French 
law,'  and  the  caution  with  which  its  authors  should  be 
consulted  on  questions  connected  with  this  branch  of 
jurisprudence. 

Having  thus  rapidly  exhibited  the  rules  of  the  French 
and  Modern  Civil  law  as  to  remote  and  consequential 
damages,  we  turn  to  other  systems. 

§  120.  Scotch  law. — One  of  the  most  eminent  authors  of 
the  Scotch  jurisprudence,  divides  resulting  damage  into 
certain  and  uncertain:  certain,  as  the  loss  of  rent  con- 
sequent on  the  destruction  of  a  house  ;  uncertain,  as  the 
profit  that  might  have  been  made  upon  property  of  which 
the  owner  has  been  robbed. 

Certain  consequential  damage  is,  he  says,  always  al- 
lowed by  a  court  of  law.  Uncertain  damage  will  be 
allowed  by  a  court  of  equity,  where  a  criminal  act  is  the 
cause  of  the  loss  ;  and  this,  because  the  criminality  throws 
the  burden  of  proof  on  the  delinquent,  and  he  is  charged 
with  every  probable  item  of  profit,  unless  he  can  give 

'  The  vagueness  of  the  French  sys-  des  juges  que  les  fixent  i.  une  somme  si 

tern  in  this  respect  dates,  as  we  have  modique  qu'ils  ne  vont  pas  4  recom- 

already  seen,  from   an   early   period,  penser  la  dixifeme  partie  de  ceux  qui  ont 

One  of  the  best  authors  of  their  ante-  6t6  soufferts  par  la  partie  i  laquelle  ils 

revolutionary  laws  says,  "Nothing  is  sont  adjudges  ;  ces  sortes  d'indulgenCes 

more    arbitrary   than    the  amount  of  ne  sont  pas  seulement  contraires  au 

damages."     But    the   whole  clause  is  bien  des  particuliers,  mais  elles  nuisent 

worth  extracting  :  encore  advantage  au  bien  public,  puis- 

Pour  les  dommages  et  int^rets,   ils  qu'elles  foraentent  les  violences  et  la 

dependent  toujours  des  circonstances  mauvaisefoiparl'espferanced'impunitS. 

du  fait ;  c'est  pourquoi  il  n'y  a  rien  de  — ^Argou,  Institution  au  Droit  Francois, 

plus  arbitraire,  etl'on  voit  trfes  souvent  Paris,  1787,  liv.  iv,  ch.  17. 


174  CONSEQUENTIAL   DAMAGES.  §§121,122. 

conclusive  evidence  that  no  profit  could  have  been  made. 
But  we  apprehend  that  with  us  no  distinction  exists  be- 
tween the  rules  of  equity  and  law  upon  this  subject." 

In  regard  to  acts  merely  culpable  and  not  criminal,  or 
when  fault  exists  without  malice,  the  same  writer  declares 
that  uncertain  consequential  damages  cannot  be  allowed.' 

So  of  the  pretium  affedionis,  or  value  set  upon  the 
injured  property  by  its  owner,  over  and  above  its  intrinsic 
or  market  value,  he  holds  that  it  is  not  to  be  allowed 
unless  the  injury  is  intentional. 

§  121.  Louisiana  law. — In  Louisiana  the  subject  of  dam- 
ages is  regulated  by  the  Code  of  that  State  (Arts,  1933, 
2315,  2316),  and  it  is  declared  in  reference  to  our  present 
subject,  "  that  when  the  object  of  the  contract  is  anything 
but  the  payment  of  money,  where  the  debtor  has  been 
guilty  of  no  fraud  or  bad  faith,  he  is  liable  only  for  such 
damages  as  were  contemplated,  or  may  reasonably  be  sup- 
posed to  have  entered  into  the  contemplation  of  the  parties, 
at  the  time  of  the  contract ";  and  this  principle  has  fre- 
quently been  carried  out  by  the  courts  of  that  State.'  So, 
in  a  case  where  it  might  be  inferred  to  be  in  the  contem- 
plation of  the  parties  to  a  contract  that  a  sugar-mill  and 
engine,  which  the  manufacturer  undertook  to  put  up 
within  a  given  time,  was  for  the  purpose  of  getting  a  cer- 
tain crop,  it  was  held  that  a  failure  to  put  it  up  in  time 
entitled  the  plaintiff  to  recover  for  the  loss  of  crop  and 
extra  wages  caused  by  the  delay.* 

§  122.  General  principles  in  the  common  law, — The  lan- 
guage employed  by  the  courts  of,  common  law  to  define 
the  limits  of  conseqiiential  damages  has  not  been  uniform. 

'  The  question  whether,  in  awarding    Kaims,  book  i,  part  i,  ch.  iv,  §  v,  p. 
damages,  there  be  any  difference  be-    159. 

tween  a  court  of  equity  and  a  court  of        ^  Book  i,  part  i,  ch.  iv,  §  v,  p.  160. 
common  law,  is   considered  by   Lord        '  Williams  w.  Barton,  13  La.  40^. 

*  Goodloe  V.  Rogers,  10  La.  Ann.  631. 


§122.       GENERAL  PRINCIPLES  IN  THE  COMMON  LAW,         1 75 

It  has  been  sometimes  said  by  the  courts  which  follow 
the  course  of  the  common  law,  that  no  allowance  could 
be  made  for  remote  or  consequential  loss  ;  sometimes  that 
the  damages  to  be  compensated  must  be  the  proximate 
and  natural  consequences  of  the  act  complained  of. 

•'  Where  the  action,"  says  the  Supreme  Court  of  New 
York,'  "  is  for  the  breach  of  a  contract,  and  no  special 
damages  are  stated  in  the  declaration,  the  plaintiff  is  con- 
fined in  his  recovery  to  such  only  as  naturally  arise  from 
the  breach  complained  of ;  but  if  the  damages  claimed  do 
not  naturally  arise  from  that  fact,  they  cannot  be  recov- 
ered unless  they  are  particularly  stated  in  the  declara- 
tion, and  not  then  if  they  are  not  proximate.  Conse- 
quential damages  may  naturally  arise  from  the  mere 
breach  of  the  contract,  but  they  often  depend  on  the  pe- 
culiar circumstances  of  the  case.  Such  are  allowed  with- 
out being  stated  in  the  pleadings,  as  are  the  fair,  legal 
and  natural  result  of  the  breach  of  the  defendant's  agree- 
ment ;  if  they  do  not  thus  result,  the  jury  cannot  allow 
them,  unless  they  are  stated  in  the  declaration  and  estab- 
lished by  proofs."  Here  it  is  said  that  damages  not  "  nat- 
urally "  arising  from  the  defendant's  act  can  be  recovered, 
provided  they  be  "proximate,"  and  that  though  such 
damages  be  not  the  "  fair,  legal  and  natural "  result  of  the 
breach  of  contract,  still,  they  can  be  allowed  for  if  alleged 
and  proved. 

The  rule  is  not  much  more  definite  when  it  is  said  that 
the  damages  must  be  the  legal  and  natural  consequence 
of  the  act  complained  of.  As  in  a  case,'  in  which  the 
defendant  had  slandered  the  plaintiff — who  was  employed 
by  one  J.  O.  as  a  journeyman  for  a  year,  at  certain  wages — 
by  saying  that  he  had  cut  certain  flocking  cord,  and  the 

'  Marcy,  J.,  in  Armstrong  v.  Percy,  5        '  Vicars  v.  Wilcocks,  8  East  i. 
Wend.  535,  538. 


176  CONSEQUENTIAL   DAMAGES,  §   122. 

plaintiflF  claimed  special  damages  for  his  discharge  by  J. 
O.  in  consequence  of  the  slander,  before  the  expiration  of 
the  year,  it  was  held  by  Lord  Ellenborough,  that  the  dis- 
charge of  the  plaintiff  by  J.  O.  was  a  mere  wrongful  act, 
and  not  "  the  legal  and  natural  consequence  of  the 
slander  complained  of." ' 

Mr.  Greenleaf  has  said,  with  more  accuracy : '  "  The 
damage  to  be  recovered  must  always  be  the  natural  and 
proximate  consequence  of  the  act  complained  of."  But 
it  is  far  easier  to  lay  down  a  general  proposition  than  to 
apply  it  to  a  particular  case.  When  we  come  to  analyze 
causes  and  effects,  and  undertake  to  decide  what  is  the 
natural  result  of  a  given  act,  and  what  is  to  be  regarded 
as  unnatural — what  is  proximate  and  what  remote — we 
shall  find  ourselves  involved  in  serious  difficulty.  Many 
things  are  perfectly  natural,  and  yet  very  remote  conse- 
quences of  a  particular  act ;  many  other  results  are  prox- 
imate, nay,  immediate,  and  yet  so  little  to  be  expected 
that  they  can  scarcely  be  pronounced  natural.  Nor  does 
the  requirement  that  the  damage  be  both  natural  and 
proximate  relieve  us  from  the  difficulty.'  ** 

For  the  purpose  of  making  this  subject  clearer:  All 
losses,  as  has  been  seen,  are  either  direct  or  consequen- 

'  In  Kelly  v.  Partington,  5  B.  &  A.  licious  prosecution.  Donnell  v.  Jones, 
645,  an  action  of  slander  for  words  of  13  Alabama  490.  But  in  truth  the 
ambiguous  meaning,  and  to  which  no  question  of  the  remoteness  or  conse- 
interpretation  was  given  by  innuendo,  quentiality  of  damage  often  loses  it- 
it  was  said,  by  Taunton,  J.,  "In  order  self»in  the  most  metaphysical  regions 
to  make  words  actionable,  they  must  of  cause  and  effect.  The  reader  of 
be  such  that  special  damage  may  be  Plutarch  will  remember  the  charge 
the  fair  and  natural  result  of  them";  brought  against  Pericles  by  his  son 
and  by  Patterson,  J.,  "I  have  always  Xanthippus,  who  said  "  that  Epitimius, 
understood  that  the  special  damage  the  Pharsalian,  having  undesignedly 
must  be  the  natural  result  of  the  thing  killed  a  horse  with  a  javelin  that  he 
done."  Similar  language  is  used  by  the  threw  at  the  public  games,  his  father 
Supreme  Court  of  New  York,  in  Crain  spent  a  whole  day  in  disputing  with 
■V.  Petrie,  6  Hill  522.  Protagoras  which  might  be  properly 
^  Evidence,  14th  ed.,  vol.  ii,  §  256.  deemed  the  cause  of  his  death,  the  jav- 
'  In  Alabama,  the  phrase,  "  natural  elin,  or  the  man  that  threw  it,  or  the 
and  proximate  consequence,"  has  been  president  of  the  games." 
cited  with  approbation  in  a  case  of  ma- 


§123.    CONSEQUENCES  OF  AN  ACT  COMPLEX  IN  NATURE.    I77 

tial ;  and,  further,  consequential  losses  are  either  proxi- 
mate or  remote.  A  direct  loss  must  always  be  compen- 
sated ;  a  remote  loss,  never.  Between  the  two  lies  the 
debatable  ground  of  proximate  loss.  Proximate  losses 
are  either  natural  or  unexpected.  Of  these,  natural  losses 
must  always  be  compensated  ;  unexpected  losses  cannot. 
But  the  line  between  the  two  latter  classes  of  loss  is  a 
varying  one ;  it  depends,  as  will  be  seen,  not  only  upon 
the  nature  of  the  wrongful  act,  but  also  upon  the  expec- 
tations which  the  wrong-doer,  as  a  reasonable  man,  could 
have  formed  as  to  its  result.  Notice  to  the  wrong-doer 
of  a  probable  consequence  may  render  that  consequence 
a  natural  one,  though  it  might  otherwise  have  been 
unexpected.  Compensation  may  be  recovered  for  such 
proximate  losses  as  are  also  the  natural  results  of  the  wrong- 
ful act,  either  in  the  nature  of  things,  or  in  thelight  of  special 
circumstances  of  which  the  wrong-doer  had  notice. 

§  123.  Consequences  of  an  act  complex  in  nature. — Be- 
fore examining  the  decided  cases,  it  should  be  clearly 
comprehended  that  recovery  of  compensation  for  remote 
loss  is  refused,  not  because  the  wrongful  act  was  not  in 
one  sense  the  cause  of  the  loss,  but  because  the  loss  is  so 
far  in  causal  sequence  from  the  injury  that  the  law  cannot 
take  it  into  account.  It  should  be  noticed  that  the  effects 
which  flow  from  the  cause  of  aciian  do  not  form  a  single 
chain,  but  that  each  effect  in  this  chain  is  produced  in 
part  by  one  or  more  other  causes.  Every  effect  is  the 
product  of  numerous  causes,  and  every  cause  produces  in 
its  turn  numerous  effects.  The  general  result  is  a  net- 
work of  causes  and  effects  rather  than  a  single  causal 
chain.  For  example  :  A  fails  to  pay  his  note  when  due 
to  B.  B,  in  consequence,  loses  the  money,  and  becomes 
bankrupt.  But  this  failure  was  due  not  only  to  the  lack 
of  this  particular  money,  but  to  a  multitude  of  co-oper- 
VOL.  I. — 12 


178  CONSEQUENTIAL    DAMAGES.  §§   1 24,   1 25. 

ating  causes,  such  as  a  stringency  in  the  money  market, 
which  at  the  time  made  the  loss  irreparable.  Hence  we 
say  that  the  only  direct  and  proximate  consequence  was 
the  loss  of  the  money,  leaving  the  efTect  of  the  combina- 
tion of  the  cause  of  action  with  other  causes  wholly  out 
of  view.  So,  one  effect  of  B's  failure  is  domestic  misery 
and  the  consequent  death  of  his  child.  But  in  this  ap- 
pear the  effects  of  additional  co-operating  causes,  such  as 
exposure,  constitutional  tendency  to  disease,  etc.  But  as 
the  law  stops  short  at  this  primary  effect,  a  fortiori,  it 
must  set  these  down  as  remote  consequences. 

§  124.  Avoidable  consequences. — Another  class  of  con- 
sequences, which  it  is  necessary  briefly  to  refer  to  here 
are  those  called  avoidable.  These  are  such  consequences, 
as  under  ordinary  circumstances  would  be  recoverable, 
but  which  are  nevertheless  excluded  from  consideration 
on  the  ground  that  the  plaintiff  should,  acting  as  a  person 
of  ordinary  prudence  under  the  circumstances,  have  pre- 
vented or  avoided  them.  These  will  be  fully  considered 
in  a  subsequent  chapter.  It  is  only  necessary  here  to 
point  out  that  in  many  decided  cases  elements  of  avoidable 
damage  have  been  excluded  by  the  courts  as  remote.  In- 
deed it  will  further  appear  that  there  is  much  ground  for 
holding  all  avoidable  consequences  to  be  in  the  strict 
sense  of  the  word  remote,  as  being  the  result  not  of  the 
cause  of  action,  but  primarily  of  negligence  or  indifference 
of  the  plaintiff.  They  are  the  result,  in  the  view  of  the 
law,  not  of  the  cause  of  action,  but  of  this  combined 
with  the  influence  of  the  plantiff 's  own  will. 

§  125.  Instances  of  remote  consequences. — Every  suit  at 
law  is  likely  to  involve  some  novel  question  of  remote- 
ness of  damage.  So  far-reaching  and  varied  are  the  con- 
sequences of  what  seems  the  least  important  act,  that 


§   125.         INSTANCES   OF    REMOTE    CONSEQUENCES.  1 79 

every  wrong  drags  after  it  a  chain  of  more  or  less  disas- 
trous consequences,  wiiich  the  injured  party  may  ascribe 
with  truth  to  the  first  wrongful  act ;  and  in  every  suit 
the  plaintiff  attempts  to  shift  to  the  defendant  the  bur- 
den of  as  many  links  as  possible  of  this  chain.  A  few 
simple  cases  may  first  be  stated. 

The  plaintiff  having  been  induced  to  put  money 
into  an  oil  speculation  by  the  defendant's  false  represen- 
tations, afterwards,  but  before  he  discovered  the  fraud, 
put  in  more  money.  The  loss  of  the  latter  money  Was 
a  proximate  consequence  of  the  false  representation,  and 
the  plaintiff  could  recover  compensation  for  it.(*)  Where 
a  defective  boiler,  sold  by  the  defendant  to  the  plaintiff, 
exploded  and  injured  the  plaintiff's  mill  and  machinery, 
the  damage  thus  done  was  held  not  too  remote  for  re- 
covery.C*)  Diminution  of  the  value  of  the  property  for 
purposes  of  renting,  and  the  hindrance  to  the  plaintiff's 
servants  in  performing  their  labor,  and  damage  resulting 
from  water  passing  through  a  hole  in  the  roof,  caused  by 
an  explosion  from  a  neighboring  quarry,  are  proximate 
damages,  and  as  such  recoverable. (")  The  damages 
caused  to  the  plaintiff's  crops  by  the  defendant  repeat- 
edly pulling  down  his  fences,  is  sufficiently  proximate  to  be 
recovered.  C^)  Where  the  jury  found  that  in  consequence 
of  the  wrongful  abduction  of  all  the  plaintiff's  slaves,  the 
cattle  of  the  neighbors  destroyed  his  corn,  and  a  flood 
in  the  river  swept  away  a  quantity  of  his  wood,  it  was 
held  that  it  was  not  erroneous  to  include  the  value  of 
these  things  in  the  damages,  in  an  action  of  trespass  for 
carrying  away  the  slaves,  nor  to  allow  compensation  for 


(»)  Crater  z*.  Binninger,  33  N.  J.  L.  513. 

C)  Page  V.  Ford,  12  Ind.  46 ;  Erie  C.  I.  W.  v.  Barber,  106  Pa.  125. 

(°)  Scott  V.  Bay,  3  Md.  431. 

("i)  Bridgers  v.  Dill,  97  N.  C.  222. 


l8o  CONSEQUENTIAL   DAMAGES.       ,  §   1 25. 

corn  eaten  by  hogs  through  lack  of  the  slaves  to  guard 
it.('')  Where  the  plaintiff  was  wrongfully  expelled  from 
a  protective  union,  whereby  he  lost  employment  in  his 
trade,  he  was  allowed  to  recover  compensation  for  the 
loss  of  employment. (*)  Where  the  plaintiff's  carriage 
was  injured  by  the  defendant's  default,  and  he  was  ex- 
posed to  a  storm  while  getting  another  carriage,  he  may 
recover  compensation  for  the  illness  caused  by  the  ex- 
posure. (°)  A  young  boy  was  put  by  force  in  a  car  and 
carried  five  miles  from  home  ;  he  walked  back  home,  and 
illness  resulted.  It  was  held  that  he  could  recover  com- 
pensation for  the  illness.  C^) 

But  on  the  other  hand,  where  a  public  bridge  over  a 
slough  became  impassable  for  want  of  repairs,  by  reason 
of  which  the  plaintiff  could  not  transport  over  it  a  quan- 
tity of  wood  collected  for  that  purpose,  and  the  wood, 
while  awaiting  transportation,  was  washed  away  by  a 
freshet,  the  loss  was  held  too  remote  for  recovery,  (*) 
Where  the  plaintiff  suffered  a  miscarriage  through  the 
defendant's  wrong,  her  grief  at  the  loss  of  the  child  is  too 
remote  to  be  compensated, (')  In  an  action  for  breach 
of  a  contract  to  convey  an  undivided  share  of  certain 
land,  the  other  share  of  which  was  owned  by  the  plaintiff, 
it  was  held  that  the  expense  of  proceedings  for  partition 
of  the  land  was  too  remote.(^) 


(')  McAfee  v.  Crofford,  13  How.  447.  In  this  case  and  the  previous  one  it 
will  be  noticed  that  the  plaintiflf  could  not  avoid  the  consequences  of  the 
defendant's  act,  so  that  the  principle  referred  to  in  the  last  section  is  not 
involved. 

(^)  People  V.  Musical  M.  P.  Union,  1 18  N.  Y.  loi. 

f )  Ehrgott  V.  New  York,  96  N.  Y.  264.-V 

(■")  Drake  v.  Kiely,  93  Pa.  492. 

(')  Dubuque  W.  &  C.  A.  v.  Dubuque,  30  la.  176. 

(')  Western  U.  T.  Co.  v.  Cooper,  71  Tex.  507;  Bovee  v.  Danville,  53  Vt. 
183. 

(e)  Morrison  v.  Darling-,  47  Vt.  dr]. 


§   126.  INTERVENTION   OF   A   LIVING   AGENCY.  l8l 

In  a  recent  case  in  Wisconsin  the  plaintiff  brought  suit 
for  a  personal  injury.  It  appeared  that  his  leg  had  been 
broken  by  the  injury  and  had  healed,  when  it  was  again 
broken  by  an  accident,  which  was  not  chargeable  in  any 
way  to  the  plaintiff".  If  the  leg  had  not  been  weakened 
by  the  first  fracture,  it  would  not  have  been  broken  by 
the  accident.  It  was  held  that  the  second  fracture  was  a 
proximate  consequence  of  the  first  injury,  and  that  his 
damages  should  include  compensation  for  it.(*)  This  is 
an  extreme  case,  and  might  well  have  been  decided  other- 
wise. The  loss  seems  remote  from  the  injury,  being 
complicated  by  several  intervening  causes.  In  Lincoln 
V.  Saratoga  &  S.  R.R.  Co.(^)  the  probability  ol  such  a 
second  fracture  was  held  too  remote. 

§  126.  Intervention  of  independent  will. — There  are  many 
cases  in  which  a  human  agency  or  the  voluntary  act  of  a 
person  over  whom  the  defendant  has  no  control,  and  his 
act  no  influence,  intervenes  after  the  defendant's  wrongful 
act.  Here  the  consequences  are  generally  treated  as  re- 
mote. Thus  in  an  English  case  the  defendant  engaged 
the  plaintiff"  as  a  seaman  for  a  voyage  to  Peru ;  the  vessel 
proved  to  be  a  privateer.  At  Peru  the  plaintiff  went 
ashore  to  consult  the  consul,  and  was  arrested  and  im- 
prisoned by  the  Peruvian  authorities  as  a  deserter  from 
the  Peruvian  army.  It  was  held  that  this  consequence 
of  the  defendant's  fraud  was  too  remote  for  compensa- 
tion. (°)  Wool  imported  by  the  plaintiff  was  wet  by  the 
defendant's  tort,  and  the  plaintiff"  was  obliged  to  open  the 
original  packages  in  order  to  dry  it.  Congress  afterwards 
allowed  importers  a  drawback  on  wool  in  the  original 


(»)  W^eiting.w.  Millston,  46  N.  W.  Rep.  879  (Wis.). 

(")  23  Wend.  425  ;  see  chap.  v. 

(")  Burton  v.  P  i.kerton,  L.  R.  2  Ex.  340. 


I  82  CONSEQUENTIAL    DAMAGES.  §   1 26. 

packages.  It  was  held  that  the  loss  of  this  drawback  was 
too  remote  a  consequence  of  the  defendant's  tort  to  be 
compensated-C)  In  an  action  under  the  civil  damage 
act  it  appeared  that  the  plaintiff's  intestate,  after  being 
made  drunk  by  the  defendant,  made  an  attack  upon  a 
neighbor's  house  and  was  killed.  This  result  was  held 
too  remote  for  compensation.  (^)  In  an  action  for  mali- 
cious prosecution,  it  appeared  that  the  plaintiff  had  suf- 
fered loss  through  the  illness  and  insanity  of  his  wife, 
caused  by  the  arrest.  This  loss  was  held  too  remote.  (°) 
Where  the  defendant  agreed  to  pay  a  creditor  of  the 
plaintiff,  and  on  his  default  the  creditor  attached  the 
plaintifTs  property  and  sold  it  at  a  sacrifice,  it  was  held 
that  the  loss  was  too  remote  and  the  plaintiff  could  not 
recover  damages  for  the  sale.C^) 

In  a  case  in  Tennessee,  it  appeared  that  the  State 
leased  convicts  to  the  defendant,  and  agreed  to  keep  a 
guard  over  them.  It  failed  to  keep  the  guard.  The  de- 
fendant's shop  was  burned  by  a  fire  set  by  one  of  the  con- 
victs, and  in  an  action  by  the  State  for  the  hire  the  de- 
fendant set  up  his  loss  in  recoupment.  The  court  held 
that  the  loss  was  not  the  natural  consequence  of  the 
State's  breach  of  contract. (')  Nicholson,  C.  J.,  said: 
"  Looking  on  the  contract  for  the  measure  of  damages 
for  its  breach,  it  follows  inevitajaly  that  the  expense  of 
such  guards  as  are  contracted,  furnishes  the  true  measure 
of  damages.  It  is  conceded  for  the  lessees  that  the  fail- 
ure to  keep  a  night  guard  on  watch  did  not  cause  the  fire, 
but  it  enabled  the  incendiary  to  consummate  his  design 


(')  Stone  V.  Codman,  1 5  Pick.  297. 

0")  Schmidt  v.  Mitchell,  84  III.  195. 

(«)  Hampton  v.  Jones,  58  la.  317 :  ace.  Ellis  v.  Cleveland,  55  Vt.  358. 

(■i)  Mitchell  V.  Clarke,  71  Cal.  163. 

(«)  State  V.  Ward,  9  Heisk.  100,  133. 


§   127"  LOSS    OF   CREDIT    OR   CUSTOM,  183 

of  setting  fire  to  the  shop.  While,  therefore,  it  is  clear 
that  the  loss  was  the  direct  and  immediate  consequence 
of  the  fire,  it  is  equally  clear  that  it  was  not  the  direct 
and  immediate  consequence  of  a  failure  to  keep  up  a 
night  watch.  Such  a  loss  cannot  reasonably  be  assumed 
to  have  entered  into  the  contemplation  of  the  parties. 
The  contract  was  that  a  night  guard  should  be  employed  ; 
the  breach  was  in  not  having  such  a  guard ;  the  damage 
looked  to  in  making  the  contract  was  the  expense  of  such 
guard,  and  not  the  probable  or  possible  or  remote  damage 
that  might  occur." 

But  where  the  act  of  the  third  party  is  caused  entirely 
by  the  defendant's  act,  the  consequence  is  not  too  remote. 
So  where  the  plaintiff  was  wrongfully  arrested  by  the  de- 
fendant and  delivered  to  the  authorities,  who  imprisoned 
him,  compensation  for  the  imprisonment  was  allowed 
against  the  defendant.  (") 

§  127.  Loss  of  credit  or  custom. — Loss  of  credit  or  cus- 
tom generally  involves  the  intervention  of  the  will  of 
strangers,  and  is  therefore  generally  remote.  Thus,  in  case 
of  a  wrongful  attachment,  no  compensation  is  allowed 
for  loss  of  credit  ■,{^)  and  the  same  result  was  reached 
where  the  plaintiff  wrongfully  sued  out  a  writ  of  ne  ex- 
eat.i^^  So,  in  Alexander  v.  Jacoby,('')  it  was  held  that  a 
plaintiff,  whose  goods  had  been  attached,  could  not  re- 
cover damages  for  their  diminished  market  value  by  their 


(•)  Tyler  v.  Pomeroy,  8  All.  480. 

C)  Lowenstein  w.  Monroe,  55  la.  82 ;  Marqueze  z/.  Sontheimer,  59  Missr. 
430 ;  Weeks  v.  Prescott,  53  Vt.  57.  In  Pollock  v.  Gannt,  69  Ala.  373,  the 
court  seems  to  have  assumed  that  compensation  in  such  a  case  may  be  re- 
covered for  loss  ol  credit ;  but  the  point  was  not  involved  in  the  decision.  In 
MacVeagh  v.  Bailey,  29  III.  App.  606,  compensation  was  allowed  for  injury 
to  credit. 

(»)  Burnap  v.  Wight,  14  111.  301. 

(■i)  23  Oh.St.  358. 


184  CONSEQUENTIAL     DAMAGES.  §   I  2  7. 

reputation  being  affected,  the  court  saying,  "The  injury 
is  too  vague  and  uncertain,  and  the  damage  too  remote." 
So  where  the  defendant  failed  to  assign  to  the  plaintiff 
(according  to  agreement)  a  judgment  against  him,  in 
consequence  of  which  property  of  the  plaintiff  was  seized 
and  sold  to  satisfy  the  judgment,  it  was  held  that  loss  of 
credit  arising  therefrom  was  too  remote  to  be  compen- 
sated. (") 

In  an  action  for  delay  in  furnishing  a  cider-press,  loss 
of  custom  is  too  remote. (*")  And  where  the  defendant 
negligently  allowed  oil  to  drip  from  his  tenement  above 
the  plaintiff  down  on  the  plaintiff's  goods,  it  was  held 
that  loss  of  custom  to  the  plaintiff  through  the  injury  to 
his  goods  was  too  remote  for  compensation.  (°) 

But  on  the  other  hand,  where  the  cause  of  action  is  a 
direct  blow  to  the  credit  or  trade  of  plaintiff,  the  rule  is 
otherwise.  Thus,  where  the  defendant,  agent  of  the  plain- 
tiff in  G.,  broke  hiscontracttokeepa  cash  account  of  ;^5oo 
to  meet  drafts  of  the  plaintiff,  and  in  consequence  a  draft 
was  returned  dishonored,  he  was  held  liable  for  the  loss 
of  trade  in  G.,  which  was  consequently  suspended,  and 
for  loss  in  the  general  business  of  the  plaintiff  because 
of  his  impaired  credit.('^)  In  a  case  at  Nisi  Prius,'  Lord 
Kenyon  held  that  an  action  lay  for  firing  on  negroes  on 
the  coast  of  Africa,  and  thereby  deterring  them  from 
trading  with  the  plaintiff,  so  that  the  plaintiff  lost  their 
trade.  This,  though  a  case  involving  the  right  of  ac- 
tion, seems  an  authority  in  point. 

'  Tarleton  v.  McGawley,  Peake,  N.  P.  205. 


(")  Gilbert  v.  Campbell,  i  Hannay  471. 

C)  Dennis  w.  Stoughton,  55  Vt.  371. 

(°)  Stapenhorst  v.  American  M.  Co.,  36  N.  Y.  Supr.  Ct.  392. 

('')  Boyd  V.  Fitt,  14  Ir.  C.  L.  43  ;  ace.  Larios  v.  Bonany  y  Gurety,  L.  R.  5 

P.  C.  346. 


§  128',   LOSS  CAUSED  BY  A  CROWD  ATTRACTED,      1 85 

§  128.  Loss  caused  by  a  crowd  attracted. — Whether  a 
trespasser  who  draws  a  crowd  after  him  is  responsible 
for  the  injury  done  by  it  depends  upon  whether  his  act 
was  of  a  nature  to  attract  a  destructive  crowd.  Where 
the  defendant  made  a  harangue  in  the  street,  and  a  crowd 
collecting  to  hear  him  broke  a  pile  of  paving  stones 
belonging  to  the  plaintiff,  the  question  whether  or  not 
the  loss  was  proximate  to  the  defendant's  act  was  held 
to  depend  upon  whether  it  was  to  be  expected  to  re- 
sult. (*)  Where  the  defendant  went  up  in  a  balloon, 
which  descended  into  the  plaintiff's  garden  and  attract- 
ed a  crowd,  who  trod  down  the  plaintiff's  vegetables 
and  flowers,  the  original  wrong-doer  was  held  answer- 
able for  the  injury  done  by  the  crowd  as  well  as  by  himself.' 

A  similar  principle  has  also  been  applied  to  the  con- 
struction of  statutes.  An  action  was  brought  in  the  King's 
Bench  on  the  stat.  i  Geo.  I,  st.  2,  c.  5,  §  6,  against  the 
hundred  for  reparation  in  damages  on  account  of  riot- 
ers having  pulled  down  in  part  the  plaintiff's  dwelling- 
house  ;  and  there  was  a  second  count  for  beginning  to 
pull  down  an  out-house.  The  plaintiff  was  a  baker.  It 
was  proved  that  the  mob  compelled  the  plaintiff  to  sell 
a  quantity  of  flour  at  a  price  much  below  its  value  ; 
that  they  then  began  to  break  the  windows  of  the  bake- 
house, and  of  his  dwelling-house.  Besides  this,  they 
burst  open  the  lock  of  a  warehouse  belonging  to  the 
plaintiff  on  the  other  side  of  the  street,  and  threw  some 
flour  into  the  street.  It  was  held  that  the  damage  done 
the  warehouse  was  an  act  not  consequential  to  the  other 
— and   that   the   flour   which   the    mob   compelled  the 

"  Guille  V.  Swan,  19  Johns.  381. 


(»)  Fairbanks  v.  Kerr,  70  Pa.  86.  The  court  said  that  the  latter  was  a 
question  for  the  jury.  There  can  be  no  doubt,  however,  that  the  determina- 
tion of  all  questions  of  remoteness  lies  with  the  court. 


1 86  CONSEQUENTIAL   DAMAGES.  §   I  29. 

plaintiff  to  sell  was  not  a  damage  recoverable  against 
the  hundred.'  And  the  same  point  was  held  in  another 
action  brought  against  the  hundred,  as  to  flour  taken 
away  or  stolen  by  a  mob.' 

§  129.  Intervening  agencies — General  rule. — The  forego- 
ing cases  have  not  led  to  the  general  statement  of  any 
explicit  rule  with  regard  to  the  effect  of  the  introduction  of 
an  independent  will  upon  the  measure  of  damages.  That 
such  a  rule  might  be  formulated  may  be  inferred  from  the 
fact  that  an  analogous  rule  exists  bearing  on  the  right  of 
action.  In  cases  where  the  plaintiff  can  clearly  show  that 
the  wrong  defendant  has  suffered  is  the  result  not  of  the 
act  complained  of,  but  of  a  subsequent  act  in  the  chain  of 
causation  by  a  third  person,  only  remotely  connected  with 
the  principal  action,  the  action  fails.('')  So,  too,  it  might 
be  inferred  that  the  allowance  of  damages  should  stop, 
although  the  action  itself  be  maintained,  when  it  appears 
that  further  damage  really  flows  from  a  similar  independent 
cause.  In  cases  such  as  some  of  those  we  have  just  consid- 
ered the  action  of  the  intervening  agents  {e.  g.,  the  crowd 
attracted)  is  regarded  as  the  natural  or  normal  result  of 
the  plaintiffs  own  act. 

The  true  test  would  seem  to  be  whether  the  action  of 
the  intervening  agency  was  such  as  was  to  be  expected  to 
happen  upon  the  defendant's  act :  if  it  were  so  to  be 
expected,  the  result  is  not  remote.  In  the  case  of  a 
human  agency,  the  intervention  will  generally  be  of  a 
sort  not  to  be  expectedC")  But  where  the  intervention 
was  directly  and  naturally  induced  by  the  defendant's  act, 
the  consequence  is  not  remote,  though  the  intervening 
agency  was  human.C)     This  is  strikingly  shown  in  cases 

'  Burrows  v.  Wright,  i  East  615.  *  Greasley  v.  Higginbottom,   i  East 

636. 


(')  Carter  v.  Towne,  103  Mass.  507.  0")  §§  126,  127.  (")  §  128. 


§   130.     LOSS  THROUGH  A  FORCED  SALE  OF  PROPERTY.      1 87 

where  damages  are  sought  for  loss  of  credit.  As  has  been 
seen,  if  the  injury  was,  for  instance,  to  the  stock  in  trade 
of  a  merchant,  loss  of  credit  is  a  remote  consequence ;  if 
it  was  a  direct  blow  to  his  credit,  for  instance,  a  breach  of 
contract  to  accept  a  draft,  loss  of  credit  is  proximate. 

§  130.  Loss  through  a  forced  sale  of  property. — Where 
through  the  defendant's  default  the  plaintiff  is  obliged  to 
raise  money,  and  in  order  to  raise  it  his  goods  are  sold  at 
a  loss,  this  loss  is  too  remote  from  the  injury  to  be  com- 
pensated. 

So  in  New  York,  the  plaintiff  sued  the  defendant  on  a 
contract,  by  which  the  defendant,  in  consideration  of  $5 
paid  him,  agreed  to  take  a  note  executed  by  the  plaintiff 
and  a  surety,  payable  the  first  of  May,  and  to  forbear 
prosecution  of  the  note  for  nine  months  ;  and  it  was  al- 
leged that  the  defendant  did  not  forbear,  but  sued  on  the 
note,  by  which  the  plaintiff  lost  $500.  The  plaintiff  of- 
fered to  prove,  to  enhance  the  damages,  that  when  he  was 
sued  he  was  engaged  in  his  harvest,  and  that  for  the  pur- 
pose of  raising  money  to  satisfy  the  demand'  he  was 
obliged  to  quit  his  work  and  thresh  his  grain,  and  that 
he  was  put  to  great  trouble  in  raising  the  money.  But 
on  certiorari  to  the  Supreme  Court,  Woodworth,  J.,  said, 
"  It  appears  to  me  that  this  could  not  form  a  ground  of 
damage,  although  the  plaintiff  might  have  suffered  incon- 
venience and  loss  by  the  failure  to  fulfill  the  contract. 
Such  remote  consequences  cannot  be  taken  into  consid- 
eration in  estimating  the  damages";  which  was  qualified 
by  this  remark,  "  Besides,  there  does  not  appear  any  ne- 
cessity that  the  plaintiff,  at  the  moment  the  writ  was 
served,  should  quit  his  harvest  and  make  sacrifices  to  raise 
the  money." ' 

So   in  Alabama,   in  case  for  malicious  prosecution, 

Dcyo  V.  Waggoner,  19  Johns.  241  ;  ace.  Garland  v.  Cunningham,  37  Pa.  228. 


1 88  CONSEQUENTIAL   DAMAGES,  §   IS^- 

whereby  the  plaintiffs  were  driven  to  an  assignment,  the 
loss  in  the  sale  of  the  goods  made  under  the  assignment 
is  not  a  proximate  or  natural  consequence  of  the  mali- 
cious prosecution.  C) 

So  in  an  action  for  failure  to  accept  drafts,  a  loss  on 
pork  which  the  plaintiff  was  obliged  to  sell  in  order  to 
raise  money  was  held  too  remote  for  compensation.(^) 

So  in  Texas,  where  the  defendant  had  sued  the  plain- 
tiff in  his  absence  from  the  State,  by  publication,  and  the 
plaintiff's  agent,  seeing  the  advertisement  in  the  paper, 
got  the  defendant  to  promise  to  discontinue  the  suit, 
which  he  failed  to  do,  and  judgment  having  been  obtained 
in  it,  a  tract  of  the  plaintiff's  land,  worth  about  $5,000, 
was  sold,  under  an  execution  on  the  judgment,  to  a  pur- 
chaser in  good  faith,  without  notice,  for  $150 — it  was 
held  that  if  the  defendant  were  liable  for  his  failure  to 
dismiss  the  suit,  the  loss  of  the  tract  of  land,  if  a  conse- 
quence at  all  of  such  failure,  was  too  remote  to  make  him 
responsible  for  it.('') 

The  plaintiff  built  a  railroad  for  the  defendant.  The 
contract  price  not  being  paid  by  the  defendant. at  the 
proper  time,  the  plaintiff  was  unable  to  pay  his  workmen, 
and  the  plaintiff's  tools  and  carts  were  seized  and  sold  for 
debt  at  a  sacrifice.  It  was  held  that  this  loss  was  too 
remote  a  consequence  of  the  breach  of  contract.C^) 

§  131.  Injury  to  animals — Infectious  disease. — Where 
animals  sold  have  an  infectious  disease,  known  to  the 
seller,  but  not  to  the  purchaser,  which  is  communicated  to 


(»)  Donnell  i/,  Jones,  13  Ala.  490;  ace.  Fitzjohn  v.  Mackinder,  9  C.  B.  (N. 
S.)  505,  2  L.  T.  (N.  S.)  374.  And  the  same  decision  was  reached  where  the 
assignment  was  caused  by  a  wrongful  attachment :  Cochrane  v.  Quackenbush, 
29  Minn.  376. 

(•')  Larios  v.  Bonany  y  Gurety,  L.  R.  5  P.  C.  346. 

(")  Travis  v.  Duffau,  20  Tex.  49. 

(■i)  Smith  V.  O'Donnell,  8  Lea  468. 


§   132.  STRAYING   ANIMALS.  189 

Other  animals  of  the  purchaser,  the  latter  may  recover 
compensation  for  the  damage  done  to  his  other  animals.  (") 
The  same  rule  applies  where  the  defendant's  sheep  tres- 
pass on  the  plaintiff's  land  and  communicate  disease.('') 
And  where  the  defendant's  rams  trespassed  on  the  plain- 
tiff's land  and  got  his  ewes  with  lamb  out  of  season,  so 
that  the  lambs  died  soon  after  birth,  the  plaintiff  was 
allowed  to  recover  the  diminution  in  value  of  the  ewes 
for  breeding  and  other  purposes.  (") 

Where  the  plaintifiF's  horse  was  injured  by  the  defend- 
ant's wrongful  act,  and  as  a  result  was  rendered  timid, 
unsound,  and  unkind,  loss  from  this  source  was  not  too 
remote  from  the  injury.('^)  So  damages  from  the  non- 
.  thriving  of  cattle  in  consequence  of  the  construction  of 
a  railroad  through  their  pasture  were  held  not  too  re- 
mote. (^) 

§  132.  Straying  animals — Non-repair  of  fences  or  gates. — 
Trespass  by  cattle  and  injury  to  crops  is  a  natural  conse- 
quence of  a  defect  in  a  fence,  and  damages  therefor  are 
accordingly  recoverable. (')  Through  the  defendant's 
failure  to  keep  a  fence  in  repair,  his  calf  strayed  into  the 
plaintiff's  premises.  It  was  held  that  the  plaintiff,  in  an 
action  of  trespass  for  the  entry  (alleged  as  defendant's 
trespass),  could  show,  in  aggravation  of  damages,  that  the 
calf  bit  off  some  limbs  of  one  of  the  plaintiff's  trees  and 

(•)  MuUett  V.  Mason,  L.  R.  i  C.  P.  559;  Smith  v.  Green,  i  C.  P.  D.  92 ; 
Knowles  v.  Nunns,  14  L.  T.  R.  592  ;  Wheeler  v.  Randall,  48  HI-  182  ;  Sher- 
rod  V.  Langdon,  21  la.  518  ;  Joy  v.  Bitzer,  77  la.  73  ;  Broquet  v.  Tripp,  36 
Kas.  7CW  ;  Faris  v.  Lewis,  2  B.  Mon.  375  ;  Bradley  v.  Rea,  14  All.  20;  Long 
V.  Clapp,  IS  Neb.  417  ;  Jeffrey  v.  Bigelow,  13  W^end.  518  ;  Wintz  v.  Morri- 
son, 17  Tex.  372  ;  Routh  v.  Caron,  64  Tex.  289  ;  Packard  v.  Slack,  32  Vt.  9. 

O  Barnum  z/.Vandusen,  16  Conn.  200. 

(")  Stearns  v.  McGinty,  55  Hun  loi. 

(*)  Whiteley  v.  China,  61  Me.  199. 

(•)  Baltimore  &  O.  R.R.  Co.  v.  Thompson,  10  Md.  76. 

(0  Scott  V.  Kenton,  81  111.  96. 


igO  CONSEQUENTIAL    DAMAGES.  §   I32. 

broke  another  tree,  although  it  was  shown  that  this  was 
not  an  injury  which  cattle  are  by  nature  wont  to  com- 
mit.(") 

Where,  through  the  defect  of  a  gate  which  the  defend- 
ant was  bound  to  repair,  his  horse,  which  was  not  shown 
to  be  vicious,  strayed  into  the  plaintiff's  field  and  there 
kicked  the  plaintiff's  horse,  the  damage  was  held  not  too 
remote.(^) 

Where  the  defendant  had  not  repaired  his  fence,  by 
reason  of  which  the  plaintiff's  horses  escaped  into  the  de- 
fendant's close  and  were  there  killed  by  the  falling  of  a 
hay-stack,  the  court  considered  that  such  damage  was  not 
too  remote.' 

On  account  of  the  disrepair  of  a  fence  which  defendant 
was  required  to  maintain,  the  plaintiff's  cattle  strayed  into 
a  field,  ate  branches  of  a  yew-tree,  and  were  thereby  poi- 
soned. The  defendant  was  held  liable  for  the  loss  of  the 
cattle.  C) 

So  where  the  statute  provided  that  a  party  neglecting 
to  keep  in  repair  his  part  of  a  fence  should  "  be  liable  for 
all  damages  done  to  or  suffered  by  the  opposite  party  in 
consequence  of  such  neglect,"  and  in  consequence  of  the 
defective  condition  of  the  defendant's  fence,  the  plaintiff's 
horses  escaped  into  the  defendant's  pasture,  where  they 
were  gored  by  a  vicious  bull  of  the  defendant,  the  damage 
was  held  not  too  remote,  the  court  considering  the  de- 
fendant's liability  very  much  that  of  a  party  at  common 
law — "  bound  to  do  an  act,  from  the  omission  to  do  which 
an  injury  results  to  others,"  and  not  regarding  it  as  in- 
dispensable to  the  maintenance  of  the  action  that  the 

'  Powell  V.  Salisbury,  2  Y.  &  J.  391. 


(')  Keenan  v.  Cavanaugh,  44  Vt.  268. 

O  Lee  V.  Riley,  34  L.  J.  C.  P.  212  ;  Lyons  v.  Merrick,  105  Mass.  71. 

f)  Lawrence  v.  Jenkins,  L.  R.  8  Q.  B.  274. 


§   133'  LOSS   THROUGH    DEPRIVATION.  I9I 

vicious  habits  of  the  bull  should  have  been  known  to  the 
defendant.  (*) 

§  133.  Loss  through  deprivation  of  machinery  or  of  busi- 
ness premises. — Where  the  plaintiff  has  been  deprived  of 
machinery  or  other  means  of  carrying  on  his  business, 
he  may  recover  for  loss  of  business,  if  such  loss  naturally 
follows.  Thus,  for  deprivation  of  machinery  evidently 
to  be  used  in  a  mill,  the  owner  may  redover  damages 
caused  by  the  loss  of  use  of  the  mill ;  for  instance,  wages 
paid  the  hands  in  excess  of  the  work  they  were  able  to 
to  do,(^)  or  for  loss  of  stock  on  hand  rendered  useless  for 
lack  of  the  machine. (°)  Where  the  plaintiff's  vessel  is  in- 
jured by  collision,  he  may  recover  the  amount  paid  out 
to  the  crew  in  wages  during  the  period  of  detention. ('') 
And  where  through  repairs  improperly  made  a  sea-going 
steamship  was  detained,  the  owner  may  recover  the  ex- 
pense of  the  detention.  (') 

So  for  deprivation  of  premises  used  in  business,  the  in- 
jured party  may  recover  damages  for  the  value  to  him  of  the 
use  of  the  premises.  (')  A  railroad  contractor  built  houses 
for  shelter  of  his  workmen.  The  defendant  v^rongfully 
took  possession  of  the  premises.  The  contractor  was 
allowed  to  recover  compensation  for  loss  by  reason  of 
his  men  leaving  him  for  lack  of  shelter. (^)  In  an  action 
on  an  injunction  bond,  where  the  injunction  prevented 


(»)  Saxton  V.  Bacon,  31  Vt.  540. 

0)  Waters  v.  Towers,  8  Ex.  401 ;  New  York  &  CM.  S.  v.  Eraser,  130  U. 
S.  611 ;  Jolly  V.  Single,  16  Wis.  280;  but  contra,  Ruthven  W.  Co.  v.  Great 
W.  Ry.  Co.,  18  Up.  Can.  C.  P.  316. 

(")  Savannah,  F.  &  W.  Ry.  Co.  v.  Pritchard,  ^^  Ga.  412  ;  Van  Winkle  v. 
Wilkins,  81  Ga.  93  ;  Sitton  v.  MacDonald,  25  S.  C.  68. 

(■1)  New  Haven  S.  B.  Co.  v.  Mayor,  36  Fed.  Rep.  716. 

(•)  Wilson  V.  General  I.  S.  C.  Co.,  47  L.  J.  Q.  B.  239. 

O  Moore  v.  Davis,  49  N.  H.  45. 

(s)  Carlisle  v.  Callahan,  78  Ga.  320. 


192  CONSEQUENTIAL   DAMAGES.  §  1 34. 

the  erection  of  a  stable,  the  plaintiff  may  recover  for  the 
exposure  of  his  cow  to  the  weather  and  the  diminution 
of  her  milk.(") 

§  134.  Loss  through  deprivation  of  means  of  protection 
to  person  or  property. — Where  the  defendant  wrongfully 
took  possession  of  a  place  of  safety  behind  a  sea-wall  to 
which  the  plaintiff  was  exclusively  entitled,  and  thereby 
prevented  the  plaintiff's  vessels  from  being  protected 
from  the  weather,  it  was  held  by  the  Supreme  Court  of 
Massachusetts  that  the  plaintiff  could  recover  for  the  loss 
of  his  vessels,  such  injury  being  the  natural  and  probable 
result  of  the  misconduct.  Morton,  J.,  said :  "  He  (a 
w^rong-doer)  is  liable  not  only  for  those  injuries  which 
are  caused  directly  and  immediately  by  his  act,  but  also 
for  such  consequential  injuries  as,  according  toJ:he  com- 
mon experience  of  men,  are  likely  to  result  from  his  act. 
And  he  is  not  exonerated  from  liability  by  the  fact  that 
intervening  events  or  agencies  contribute  to  the  injury. 
The  true  inquiry  is  whether  the  injury  sustained  was  such 
as,  according  to  common  experience  and  the  usual  course 
of  events,  might  reasonably  be  anticipated."  C") 

Where,  by  the  result  of  a  collision  for  which  the  de- 
fendant was  liable,  the  masts  of  the  plaintiff's  vessel  were 
carried  away,  and  she  was  wrecked  in  a  storm  which  im- 
mediately arose,  the  defendant  was  required  to  pay  com- 
pensation for  the  loss  of  the  vessel.  (") 

In  an  English  case  it  appeared  that  in  pursuance  of 


(")  Lange  v.  Wagoner,  52  Md.  310.  But  where  a  wagon,  by  means  of 
which  the  plaintiff  was  moving  his  goods  over  frozen  roads,  was  wrongfully 
seized  by  the  plaintiff  and  detained  until  spring,  when  the  bad  condition  of 
the  roads  increased  the  expense  of  moving  the  property,  it  was  held  that  this 
increased  expense  was  too  remote  to  be  compensated.  Vedder  v.  Hildretb, 
2  Wis.  427. 

O")  Derryz*.  Flitner,  118  Mass.  131. 

(«)  The  George  and  Richard,  L.  R.  3  Adm.  466. 


§  134-    PROTECTION  TO  PERSONAL  PROPERTY.      1 93 

the  defendants'  agreement  to  admit  the  plaintiffs'  ship 
into  the  dock  at  a  certain  time,  and  of  notice  to  the 
plaintiffs  to  bring  her  at  that  time,  they  did  so ;  byt  on 
the  arrival  of  the  ship  she  could  not  be  admitted,  owing 
to  the  dock  chain  being  out  of  order.  The  day  was 
stormy  and  the  captain  was  ignorant  of  the  river.  After 
a  discussion  as  to  what  should  be  done,  with  the  pilot, 
who  thought  he  might  take  the  ship  into  a  place  of 
safety,  the  captain  anchored  her  immediately  outside  the 
dock,  where  she  grounded,  and  in  consequence  was  much 
damaged.  The  jury  found  neither  the  captain  nor  pilot 
in  fault,  but  disagreed  as  to  whether  the  vessel  might  in 
fact  have  been  taken  to  a  place  of  safety. 

It  was  held  that  the  finding  of  the  jury  did  not  enable 
the  court  to  say  whether  the  defendants  should  be  liable 
or  not,  and  that  the  jury  must  come  to  an  agreement  on 
the  points  on  which  they  had  failed  to  agree  ;  for  the 
question  whether  the  damage  was  too  remote  was  not 
yet  ripe  for  the  decision  of  the  court,  but  depended  on 
the  issue  not  yet  found  by  the  jury.C)  i 

Perhaps  the  strongest  case  is  one  in  the  English  Com- 
mon Pleas,'  where  an  action  was  brought  on  the  war- 
ranty of  a  chain-cable,  that  it  should  last  two  years,  as  a 
substitute  for  a  rope  cable  of  sixteen  inches  ;  and  it  was 
alleged  that  within  the  two  years  the  cable  broke,  and 
that  thereby  an  anchor,  to  which  the  cable  was  affixed, 
was  lost.  A  verdict  being  found  for  the  value  of  cable 
and  anchor,  a  motion  was  made  for  a  new  trial,  and  it 
was  insisted  that  the  principle  contended  for  by  the 
plaintiffs  would  render  the  defendants  liable  for  the  loss 

'  Borradaile  v.  Brunton,  8  Taunton  535  ;  s.  c.  2  J.  B.  Moore,  582. 


(•)  Wilson  V.  Newport  Dock  Co.,  L.  R.  i  Ex.  177. 
Vol.  I.— 13 


194  CONSEQUENTIAL    DAMAGES,  §  I35. 

of  the  ship,  if  on  the  breaking  of'  the  cable  that  event 
had  happened.  But  the  loss  was  held  not  too  remote, 
Dallas,  C.  J.,  said  :  "  The  defendants  warrant  the  cable 
sufficient  to  hold  the  anchor,  and  it  is  proved  not  to  be 
•sufficient.  The  holding  of  the  anchor  by  the  cable  is 
the  very  essence  of  their  warranty,"  Park,  J.,  added  : 
"The  use  of  a  cable  is  to  hold  the  anchor."  And  a  new 
trial  was  refused.  (") 

§  135.  Loss  through  detention  of  property. — In  an  ac- 
tion against  a  carrier  for  delay  in  delivering  goods,  the 
plaintiff  may  recover  compensation  for  decline  in  market 
value  during  the  time  of  delay. C*)  So  where  the  de- 
fendant detained  the  plaintiff's  logs  by  placing  a  boom 
across  the  stream,  the  plaintiff  was  allowed  to  recover 
for  depreciation  in  the  market  while  detained.  (°)  And 
where  the  defendant,  by  obstructing  a  river,  delayed  the 
plaintiffs  logs  until  the  annual  dry  season,  when  the 
plaintiff"  was  put  to  additional  expense  in  getting  the 
logs  to  market,  it  was  held  that  he  might  recover  com- 
pensation for  such  increase  of  expense,  (*)  and  for  wages 
necessarily  paid  workmen  for  a  reasonable  time  while 
waiting  for  the  obstruction  to  be  removed. (^) 

The  plaintiff,  a  cap  manufacturer,  ordered  cloth  of  a 
certain  style  to  be  sent  by  the  defendant,  a  common  car- 


(")  This  case  is  discredited  by  Alderson  and  Parke,  B.  B.,  in  Hadley  w. 
Baxendale,  9  Exch.  341,  347 ;  but  if  the  cable  was  sold  for  a  special  use,  as 
it  probably  was,  we  see  no  reason  for  considering  the  loss  remote. 

C)  CoUard  v.  Southeastern  Ry.  Co.,  7  H.  &  N.  79 ;  Columbus  &  W.  Ry. 
Co.  V.  Flournoy,  75  Ga.  745  ;  Cutting  v.  Grand  T.  Ry.  Co.,  13  All.  381  ;  Scott 
V.  Boston  &  N.  O.  S.  S.  Co.,  106  Mass.  468  ;  Lindley  v.  Richmond  &  D. 
R.R.  Co.,  88  N.  C.  547. 

(")  Plummerz'.  Penobscot  L.  A.,  67  Me.  363  ;  Mississippi  &  R,  R.  B.  Co, 
V.  Prince,  34  Minn.  ^\  ;  Dubois  v.  Glaub,  52  Pa.  238. 

(1)  Gates  V.  Northern  P.  R.R.  Co.,  64  Wis.  64. 

<")  McPheters  v.  Moose  R.  L.  D.  Co.,  78  Me.  329, 


§   136.      PERSONAL   INJURY — FALSE    IMPRISONMENT.         I95 

rier.  The  defendant  negligently  delayed  delivery  of 
the  cloth  until  the  season  for  it  was  passed,  and  it  was 
therefore  less  valuable.  It  was  held  that  the  plaintiff 
might  recover  compensation  for  loss  in  value  of  the 
cloth.  (") 

In  an  action  for  wrongful  attachment,  the  plaintiff 
may  recover  compensation  for  the  deterioration  in  value 
of  the  goods  while  attached.  C*) 

§  136.  Personal  injury— False  imprisonment. — Where,  in 
an  action  for  an  assault,  the  plaintiff  sought  to  prove  as 
special  damages,  that  by  reason  of  the  assault  he  was 
driven  from  Alicant,  in  Spain,  where  he  had  previously 
done  business  as  a  merchant,  it  was  held  by  far  too  re- 
mote/ So  in  an  action  for  false  imprisonment,  where  the 
plaintiff  offered  to  prove  as  special  damage,  that  having 
been  imprisoned  till  after  2  o'clock  p.m.,  and  become  un- 
well from  his  imprisonment,  he  did  not  go  to  a  certain 
place  where  he  would  have  obtained  a  situation  if  he  had 
appeared  at  2  o'clock,  the  alleged  damage  was  held  too 
remote.  C) 

Where  a  passenger,  having  been  unjustifiably  ordered 
out  of  a  railway  carriage,  left  a  pair  of  race-glasses  on  his 
seat,  and  lost  them  in  consequence,  the  loss  was  held  not  to 
be  the  result  of  the  wrongful  act,  and  the  passenger  could 
not  recover  for  it.(*)  So  the  loss  of  an  office  for  which 
an  application  had  been  made  by  the  plaintiff  before  the 

'  Moore  v.  Adam,  2  Chitty  198. 


(«)  Wilson  V.  Lancashire  &  Y.  Ry.  Co.,  9  C.  B.  (N.  S.)  632. 

(^)  MacVeagh  v.  Bailey,  29  111.  App.  606  ;  Knapp  v.  Barnard,  78  la.  347. 

(«)  Hoey  V.  Felton,  11  C.  B.  (N.  S.)  142.  So  in  an  action  for  wrongful 
expulsion  from  a  railroad  train.  Carsten  v.  Northern  P.  Ry.  Co.,  47  N.  W. 
Rep.  49  (Minn.). 

(•i)  Glover  v.  London  &  S.  W.  Ry.  Co.,  L.  R.  3  Q.  B.  25. 


196  CONSEQUENTIAL   DAMAGES.         §§   1 3 7,   1 38. 

assault  and  battery,  but  withdrawn  after  it  because  of 
the  disability  occasioned  by  the  battery,  as  the  plaintiff 
alleged,  was  held  too  remote  to  be  considered,  although 
alleged  in  the  declaration.  (")  But  in  an  action  for  false 
imprisonment  it  has  been  held  that  the  plaintiff  may 
recover  compensation  for  loss  of  a  contract  of  employ- 
ment which  would  have  extended  beyond  the  term  of 
imprisonment.  C") 

§  137.  Loss  of  service. — Where  the  defendant,  by  the 
malicious  arrest  of  the  plaintiff's  engineer  while  in  the 
performance  of  his  duties,  deprived  the  plaintiff  of  the 
latter's  services,  it  was  held  that  the  damage  caused  the 
defendant  by  the  stoppage  of  its  train  was  not  too  remote 
for  compensation.  (°)  And  where  an  operative  in  a  mill 
had  left  the  owner's  employment  without  giving  a  four^ 
teen  days'  notice  as  required  in  the  agreement,  it  was 
held  that  the  owner  could  recover  loss  suffered  by  the 
stoppage  of  the  looms,  caused  by  the  fact  that  a  jack 
ceased  running  which  it  was  the  operative's  duty  to  atr 
tend  to.  He  was  allowed  to  recover  for  the  three  days' 
loss  of  the  use  of  the  looms,  during  which  he  was  unable 
to  get  other  workmen.  C^) 

§  138.  Loss  of  a  dependent  contract. — The  defendant 
had  agreed  to  let  the  plaintiff  have  the  carrying  of  pas- 
sengers from  its  statioi^  at  D.  to  G.  by  stage.  The 
plaintiff  had  also  had  the  carriage  of  them  by  steamboat 
from  G.  to  K.,  but  not  under  any  contract  with  the 
defendant.  It  was  held  (')  (i)  that  the  plaintiff  was  not 
confined  to  the  difference  between  what  he  was  to  receive 


(")  Brown  v.  Cummings,  7  All.  507. 

C")  Thompson  v.  Ellsworth,  39  Mich.  719. 

f)  St.  Johnsbury  &  L.  C.  R.R.  Co.  v.  Hunt,  55  Vt.  570, 

(■')  Satchwell  v.  Williams,  40  Conn.  371. 

(")  Frye  v.  Maine  C.  R.R._Co.,  67  Me.  414. 


§  139-    EXPENSE  OF    PREPARATION  FOR  PERFORMANCE.    197 

for  each  passenger  and  what  it  would  have  cost  him  to 
carry  the  passengers  ;  that  he  was  also  entitled  to  profits 
he  would  have  made  on  way  passengers,  express,  mail, 
etc.,  by  being  so  situated  (by  his  contract  with  the  de- 
fendant) that  he  could  have  carried  more  cheaply  than 
any  one  else.  It  was  further  held  (2)  that  the  plaintiff 
could  not'recover  for  loss  of  profits  on  the  route  from 
G.  to  K.,  for  that  loss  did  not  arise,  "according  to  the 
usual  course  of  things,  from  the  breach  of  the  contract 
itself,  nor  was  such  as  might  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  both  parties  at  the 
time  they  made  the  contract,  as  the  probable  result  of  a 
breach  of  it."  They  were  excluded,  it  was  said,  as  in 
Fox  V.  Harding, C)  as  profits  arising  from  another  inde^ 
pendent  and  collateral  undertaking,  and,  therefore,  too 
uncertain  and  remote  to  be  taken  into  consideration  as 
part  of  the  damages  occasioned  by  the  breach  of  the 
contract  in  question. 

In  Mandia  v.  M'MahonC*)  the  plaintiff  contracted  to 
supply  laborers  to  the  defendant  at  $1.25  per  day.  He 
procured  the  laborers,  but  the  defendant  refused  to  hire 
them.  It  was  held  that  the  plaintiff  could  recover  noth- 
ing for  loss  of  commissions  from  the  laborers. 

§  139.  Expense  of  preparation  for  performance. — When 
the  plaintiff  has  made  preparation  for  performing  a  con- 
tract, he  may,  on  breach,  sometimes  recover  compensa- 
tion for  the  expense  of  such  preparation.  Such  compen- 
sation is  usually  included  in  the  general  damages  given 
for  breach  of  the  contract ;  but  if  for  any  reason  a  sep- 
arate allowance  is  necessary,  it  will  be  made.(°) 


(")  7  Cush.  516,  522.  0")  »7  Ont.  App.  34. 

(")  U.  S.  V.  Behan,  i  lo  U.  S.  338 ;  Brent  v.  Parker,  23  Fla.  200 ;  Mandia 
V.  M'Mahon,  17  Ont.  App.  34.  But  on  a  common  count  a  plaintiff  cannot 
recover  for  labor  performed,  with  the  expectation  of  making  it  available 


198  CONSEQUENTIAL    DAMAGES.  §  1 39. 

Thus  in  an  action  for  breach  of  a  contract  to  refer  a 
dispute  to  referees,  it  was  held  that  the  plaintiff  ijiight 
recover  the  expenses  necessarily  incurred  in  preparing  for 
trial  before  the  referees,  except  so  far  as  they  were  neces- 
sary for  the  subsequent  trial  of  the  action  in  court, 
and  also  might  recover  payments  made  to  counsel  and 
witnesses  on  account  of  the  expected  trial  before  the  ref- 
erees. (*) 

Where  the  agreement  is  that  the  plaintiff  shall  come 
from  a  distance  and  take  employment  with  the  defendant, 
in  an  action  for  breach  of  the  contract  of  employment, 
the  plaintiff  may  recover  the  expense  of  removal.  Thus 
where  a  defendant  had  engaged  the  plaintiff  to  remove 
to  Indiana,  to  carry  on  business  there,  and  failed  to  fur- 
nish the  stock  necessary  for  so  doing  ;  the  court  allowed 
the  plaintiff  as  damages  compensation  for  the  loss  of  his 
time  in  removing  to  Indiana  and  back  again  to  his  orig- 
inal domicile.' 

So,  in  New  Hampshire,  where  the  defendant  proposed 
by  letter  to  the  plaintiff  that  the  latter  should  come  to 
that  State  from  Minnesota ;  agreeing,  if  he  would  do  so, 
to  give  him  and  his  wife  a  year's  board,  and  allow  him 
to  carry  on  the  defendant's  farm  ;  it  was  held  that  the 
expenses  incurred  by  the  plaintiff  in  removing  his  family, 
and  probably  compensation  for  his  necessary  loss  of  time, 
might  be  recovered.  C")  And  upon  breach  of  an  agree- 
ment that  the  plaintiff  shall  have  the  exclusive  sale  of 
the  defendant's  goods  in  a  certain  territory,  the  plaintiff 

'  Johnson  v.  Arnold,  2  Cush.  46. 


in  the  performance  of  a  contract  with  the  defendant,  which  contract  the  de- 
fendant terminated  before  any  part  had  been  performed.  Curtis  v.  Smith, 
48  Vt.  116. 

(»)  Call  T.  Hagar,  69  Me.  521  ;  Pond  v.  Harris,  113  Mass.  114. 

Q>)  Woodbury  v.  Jones,  44  N.  H.  206. 


^§   140,   T41.  STOCK  PURCHASED.  I99 

may  recover  the  advertising  expenses  and  other  expend- 
itures in  preparation  for  sale.C) 

§  140.  Expense  incurred  on  faith  of  the  defendant's  con- 
tract.— Where  a  lessor  had  agreed  to  pay  the  lessee  for 
any  damage  sustained  in  consequence  of  fitting  up  the 
premises  if  he  ousted  him,  the  lessee  was  allowed  to  re- 
cover the  expense  of  fitting  them  up,  less  the  use  which 
he  had  had  for  two  years.  In  the  estimate  should  be 
included,  it  was  said,  the  injury  to  the  carpets  by  being 
cut.C) 

Expense  of  removal  to  leased  premises,  of  which  the 
landlord  fails  to  give  possession,  may  be  recovered. 
Thus  where  an  agreement  had  been  made  to  let  certain 
premises  as  a  tavern  stand,  and  the  plaintiff  had  removed 
his  family  to  take  possession,  which  was  refused,  it  was 
held  that  the  plaintiff  was  entitled  to  recover,  not  only 
the  value  of  the  lease,  but  also  his  expenses  in  removing 
his  family  and  furniture,  and  this  without  any  allegation 
of  special  damage  in  the  declaration.' 

So  where  the  defendant  agreed  to  set  up  a  machine 
for  the  plaintiff,  and  give  him  the  exclusive  use  of  such 
machines  in  his  county,  the  plaintiff,  upon  breach  of  the 
contract,  may  recover  the  loss  incurred  by  procuring  a 
boiler.  C) 

§  141.  Stock  purchased  on  faith  of  lease  or  conveyance.— 
Loss  on  a  stock  of  goods  bought  on  faith  of  a  lease  of 
business  premises  of  which  the  lessor  refuses  to  give 

•  Driggs  V.   Dwight,   17  Wend.  71 ;    Lawrence  a.  Wardwell,  6  Barb.  423  ; 
ace.  Giles  v.  O'Toole,  4  Barb.  261. 


(»)  Taylor  Mfg.  Co.  v.  Hatcher  Mfg.  Co.,  39  Fed.  Rep.  440  ;  Smith  v.  Weed 
S.  M.  Co.,  26  Oh.  St.  562 ;  Sterling  O.  Co.  v.  House,  25  W.  Va.  64. 

C)  Pratt  V.  Paine,  119  Mass.  439.  Ace.  in  a  case  of  wrongful  ejectment. 
Redon  v.  Cafifin,  11  La.  Ann.  695. 

(»)  Dean  v.  White,  5  la.  266. 


200  CONSEQUENTIAL   DAMAGES.  §  I4I. 

possession  is,  it  would  seem,  too  remote.  Nevertheless, 
in  an  early  case,  in  which  the  plaintiff  declared  for  breach 
of  an  agreement  to  let  the  plaintiff  have  the  use  of  cer- 
tain mills  for  six  months,  in  consideration  of  ;^io,  it  ap- 
peared that  the  mills  were  worth  but  ;^20  per  annum, 
and  yet  damages  were  given  to  ;^500,  by  reason  of  the 
stock  laid  in  by  the  plaintiff ;  and,  per  curiam,  "  the 
jury  may  well  find  such  damages,  for  they  are  not  only 
bound  to  give  .the  ;^io,  but  also  all  the  special  dam- 
ages."' The  Supreme  Court  of  New  York,  comment- 
ing on  this  case,  said  :  "  Very  likely  it  appeared  that  the 
breach  of  contract  was  committed  to  favor  some  par- 
ticular interest  of  the  defendant,  or  his  friend,  though 
the  case  mentions  a  simple  refusal  to  perform "; '  but 
perhaps  it  may  rather  be  brought  within  the  rule  of  Had- 
ley  V.  Baxendale,  which  will  be  presently  stated,  both 
parties  knowing  the  object  to  which  the  niills  were  to  be 
applied,  and  the  loss  of  the  plaintiff's  stock  being  con- 
sidered as  contemplated  by  them. 

Recent  authorities  hold  such  a  loss  not  to  be  compen- 
sated, in  the  absence  of  notice.  Thus,  where  the  leased 
premises  consisted  of  a  farm,  the  plaintiff  was  not  al- 
lowed to  recover  the  loss  he  suffered  by  a  purchase  of 
stock  for  it.(°) 

In  a  similar  action,  where  machinery  of  a  less  capacity 
than  that  bargained  for  was  furnished  for  a  new  mill,  it 
was  held  that  loss  on  large  purchases  of  stock  for  run- 
ning a  mill  of  the  agreed  capacity  and  loss  caused  by 
abandoning  the  planting  for  the  milling  business,  were 
both  too  remote.  C")  Where  the  defendant  broke  his 
contract  to  convey  land  to  the  plaintiff,  the  latter  cannot 

'  Nurse  v.  Barns,  T.  Raym.  77.  '  Blanchard  v.  Ely,  21  Wend.  342. 

(•)  Robrecht  v.  Marling,  29  W.  Va.  765. 
("•)  Willingham  v.  Hooven,  74  Ga.  233. 


§§   142,   143-  NATURAL  CONSEQUENCES.  20I 

recover  compensation  for  money  paid  an  architect  for 
plans  for  a  proposed  building  on  the  premises. (*)  But 
he  may  recover  for  expense  of  examining  title.  (*") 

Natural  Consequences. 

§  142.  Unnatural  or  unexpected  consequences  not  com- 
pensated.— -A  consequence,  however  proximately  it  fol- 
lows the  injury,  will  not  be  compensated  unless  it  follows 
the  injury  in  the  usual  course  of  things,  or,  as  it  Is  gen- 
erally expressed,  is  a  natural  consequence.  In  one  sense 
every  result  naturally  follows  its  cause  ;  everything  hap- 
pens subject  to  the  laws  of  nature.  In  order  to  be  com- 
pensated, j  consequential  injury  must  be  such  a  result  of 
the  injury  as  according  to  common  experience  and  the 
usual  course^  of  events  might  reasonably  have  been  an- 
ticipated. (°) 

§  143.  Natural  consequences  in  actions  of  tort. — Thus  in 
an  action  for  personal  injury  it  appeared  that  the  plain- 
tiff dealt  in  gold,  which  he  kept  locked  in  a  safe,  and 
that  no  one  but  himself  knew  the  combination.  As  a 
consequence,  no  gold  could  be  sold  during  the  absence 
caused  by  the  injury.  This  consequence,  however,  was 
held  to  result  from  "  his  abnormal  and  peculiar  mode  of 
doing  his  business,"  and  to  be  too  unexpected  for  com- 
pensation. (^)  In  an  action  for  injury  to  a  mare,  damage 
to  her  colt  from  loss  of  milk  cannot  be  recovered.  (*) 

(»)  Chamberlain  v.  Brady,  49  N.  Y.  Super.  Ct.  484. 

Cf)  Walker  v.  Moore,  10  B.  &  C.  416. 

(")  Hoadley  v.  Northern  Transportation  Co.,  115  Mass.  304;  FlOri  v.  St. 
Louis,  69  Mo.  341 ;  Forney  v.  Geldmacher,  75  Mo.  113  ;  Hughes  v.  McDon- 
ough,  43  N.  J.  L.  459 ;  Wiley  v.  West  Jersey  R.R.  Co.,  44  N.  J.  I,.  247 ;  War- 
wick V.  Hutchinson,  45  N.  J.  L.  61 ;  Chalk  v.  Charlotte,  C.  &  A.  R.R.  Co., 
85  N.  C.  423 ;  Daniels  v.  Ballantine,  23  Oh.  St.  532 ;  Jackson  v.  N.  C.  &  S. 
L.  Ry.  Co.,  13  Lea  491 ;  Borchardt  v.  Wausau  Boom  Co.,  54  Wis.  107. 

(■»)  Phyfe  V.  Manhattan  Ry.  Co.,  30  Hun  377. 

(»)  Teagarden  v.  Hetfield,  1 1  Ind.  522  ;  Gamble  v.  Mullin,  74  la.  99. 


202  CONSEQUENTIAL   DAMAGES.  §  I43. 

In  an  action  under  the  Civil  Damage  Act,  it  appeared 
that  the  plaintiff's  intestate,  when  drunk,  made  an  attack 
on  a  neighbor's  house  and  was  wounded  by  a  shot,  and 
died  from  the  effect  of  the  wound.  This  was  held  not 
to  be  the  natural  result  of  the  defendant's  act  in  selling 
liquor.  (")  But  where  the  defendant,  in  violation  of  a 
statute,  sold  liquor  to  a  slave,  who  died  of  drunkenness 
and  exposure,  the  jury  held  the  death  to  be  the  natural 
result  of  the  defendant's  act,  and  he  was  therefore  obliged 
to  give  compensation  for  itC")  Where  an  ag;ent,  author- 
ized to  sell  a  flock  of  sheep,  sold  a  portion  of  them  with 
knowledge  that  they  were  diseased,  and  the  diseased 
sheep  were  mixed  with  another  flock,  it  was  held  that 
the  claim  of  the  purchaser  against  the  principal  was  not 
limited  to  the  loss  of  the  sheep  purchased,  but  extended 
to  that  of  the  others  to  which  the  distemper  was  com- 
municated ;  and  the  court  said,  "  This  damage  was  the 
natural  consequence  of  the  fraudulent  act  of  the  defend- 
ant's agent."'  This  case  we  have  seen  similarly  decided 
by  Pothier.(°)  But  in  an  action  for  falsely  representing 
that  a  horse  was  kind  in  harness,  the  plaintiflf  has  been 
held  not  entitled  to  recover  the  value  of  a  wagon  and 
harness  broken  by  the  horse.  (*) 

The  distinction  between  unnatural  and  remote  conse- 
quences, as  has  been  pointed  out,  is  often  difficult  to 
trace.     Many  of  the  cases  cited  on  the  question  of  re- 

'  Jeffrey  v.  Bigelow,  13  Wend.  518;  see  §  131. 


(»)  Schmidt  v.  Mitchell,  84  111.  195. 

C")  Harrison  v.  Berkley,  i  Strobh.  L.  525. 

e)§ii7. 

(■i)  Case  V.  Stevens,  137  Mass.  551.    But  the  loss  in  this  case  might  well 
have  been  held  a  natural  consequence  of  the  injury. 


§  144-  THE  RULE  IN  HADLEY  V.  BAXENDALE.  203 

moteness  might  also  be  cited  as  illustrations  of  the  rule 
excluding  compensation  for  unnatural  consequences. 

§  144.  The  rule  in  Hadley  v.  Baxendale. — The  applica- 
tion of  the  rule  in  actions  of  contract  is  governed  by  a 
series  of  decisions  founded  on  the  leading  case  of  Had- 
ley V.  Baxendale.(*) 

*  The  plaintiffs  were  owners  of  a  steam  mill.  The  shaft 
was  broken,  and  they  gave  it  to  the  defendant,  a  carrier, 
to  take  to  an  engineer,  to  serve  as  a  model  for  a  new 
one.  On  making  the  contract,  the  defendant's  clerk  was 
informed  that  the  mill  was  stopped,  and  that  the  shaft 
must  be  sent  immediately.  He  delayed  its  delivery  ;  the 
shaft  was  kept  back  in  consequence ;  and  in  an  action 
for  breach  of  contract,  they  claimed,  as  specific  damages, 
the  loss  of  profits  while  the  mill  was  kept  idle.  It  was 
held  that  if  the  carrier  had  been  made  aware  that  a  loss 
of  profits  would  result  from  delay  on  his  part,  he  would 
have  been  answerable.  But  as  it  did  not  appear  he  knew 
that  the  want  of  the  shaft  was  the  only  thing  which  was 
keeping  the  mill  idle,  he  could  not  be  made  responsible 
to  such  an  extent.     The  court  said  : 

"  We  think  the  proper  rule  in  such  a  case  as  the  present  is 
this  :  Where  two  parties  have  made  a  contract  which  one  of 
them  has  broken,  the  damages  which  the  other  party  ought  to 
receive  in  respect  of  such  breach  of  contract  should  be  such 
as  may  fairly  and  reasonably  be  considered  either  arising 
naturally,  i.  e.,  according  to  the  usual  course  of  things,  from 
such  breach  of  contract  itself,  or  such  as  may  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  both  parties  at  the 
time  they  made  the  contract,  as  the  probable  result  of  the 
breach  of  it.     Now,  if  the  special  circumstances  under  which  the 


(»)  9  Ex.  341 ;  23  L.  J.  Ex.  179 ;  18  Jur.  358  ;  26  Eng.  L.  &  Eq.  398.  So 
entirely  is  the  later  law  founded  on  this  case,,  that  the  great  body  of  cases 
since  decided  involving  the  measure  of  damages  for  breach  of  contract,  re- 
solve themselves  into  a  continuous  commentary  upon  it. 


204  CONSEQUENTIAL    DAMAGES.  §  I45. 

contract  was  actually  made  were  communicated  by  the  plaintiff 
to  the  defendant,  and  thus  known  to  both  parties,  the  damages 
resulting  from  the  breach  of  such  a  contract  which  they  would 
reasonably  contemplate,  would  be  the  amount  of  injury  which 
would  ordinarily  follow  from  a  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  in- 
jury which  would  arise  generally,  and  in  the  great  multitude  of 
cases,  not  affected  by  any  special  circumstances,  from  such  a 
breach  of  contract.  For  had  the  special  circumstances  been 
known,  the  parties  might  have  specially  provided  for  the  breach 
of  contract  by  special  terms  as  to  the  damages  in  that  case,  and 
of  this  advantage  it  would  be  very  unjust  to  deprive  them.  The 
above  principles  are  those  by  which  we  think  the  jury  ought  to 
be  guided  in  estimating  the  damages  arising  out  of  any  breach 
of  contract."  ** 

§  145.  Griffin  v.  Colver. — The  leading  case  in  this  coun- 
try was  decided  in  New  York  on  somewhat  similar 
facts.  (") 

The  plaintiff  agreed  to  build  and  deliver  to  the  defend- 
ant, on  a  certain  day,  a  steam  engine  which  he  knew  the 
defendant  intended  to  use  to  drive  certain  machinery  for 
sawing  and  planing  lumber.  In  an  action  for  the  price, 
the  defendant  recouped  damages  for  the  plaintiff's  delay 
in  delivering  the  engine.  It  was  held  that  the  measure 
of  damages  was  not,  as  claimed  by  the  defendant,  the 
net  average  value  of  the  use  at  the  place  where  it  was 
located  for  the  purpose  for  which  it  was  intended  and 
in  connection  with  defendant's  machinery,  and  it  was 
said  that  the  proper  method  of  measuring  the  damages 
was  to  ascertain  what  would  have  been  a  fair  price  to  pay 
for  the  use  of  the  machinery,  in  view  of  all  the  hazards 


(•)  Griffin  V.  Colver,  16  N.  Y.  489. 


§   146.    MEANING  OF  RULE  IN  HADLEY  V.  BAXENDALE.     205 

and  chances  of  the  business.     In  the  course  of  the  opin- 
ion the  court  said  :  (*) 

"The  broad,  general  rule  in  such  cases  is,  that  the  party  in- 
jured is  entitled  to  recover  all  his  damages,  including  gains  pre- 
vented 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  par- 
ties when  they  made  the  contract,  that  is,  must  be  such  as 
might  naturally  be  expected  to  follow  its  violation  ;  and  they 
must  be  certain,  both  in  their  nature  and  in  respect  to  the  cause 
from  which  they  proceed.  The  familiar  rules  on  the  subject  are 
all  subordinate  to  these.  For  instance  :  That  the  damages  must 
flow  directly  and  naturally  fromthe  breach  of  contract,  is  a  mere 
mode  of  expressing  the  first ;  and  that  they  must  be  not  the  re- 
mote but  proximate  consequence  of  such  breach,  and  must  be  not 
speculative  or  contingent,  are  different  modifications  of  the  last." 

Selden,  J.,  cited  Blanchard  v.  Ely.C")  as  an  instance  of 
profits  which  were  the  direct  consequence,  but  were  too 
uncertain.     He  continued  : 

"  So  they  may  be  definite  and  certain,  and  clearly  consequent 
upon  the  breach  of  contract,  and  yet  if  such  as  would  not  nat- 
urally flow  from  such  breach,  but  for  some  special  circumstances, 
collateral  to  the  contract  itself  or  foreign  to  its  apparent  object, 
they  cannot  be  recovered  ;  as  in  the  case  of  the  loss  by  the 
clergyman  of  his  tithes  by  reason  of  the  failure  to  deliver  the 
horse." 

The  decision  in  this  case  was  that  profits  could  be  re- 
covered, since  the  defendant  had  notice  of  the  conse- 
quence of  his  delay. 

§  146.  Meaning  of  the  rule  in  Hadley  v.  Baxendale. — The 
rule  in  Hadley  v.  Baxendale,  would  seem  to  mean  that 
the  plaintiff  may  recover  such  damages  as  normally 
result  from  the  breach  of  contract ;  or  he  may  show  cer- 
tain special  facts  to  have  been  known  to  the  defend- 


(•)  Selden,  J.,  at  p.  494.  C)  21  Wend.  342,  supra. 


206  CONSEQUENTIAL   DAMAGES.  §  I47. 

ant  at  the  time  of  the  contract,  which  would  give  notice 
to  him  that  a  breach  of  the  contract  would  result  in  an 
otherwise  unexpected  loss,  and  in  such  case  the  plaintiff 
might  recover  his  special  loss.  The  decision  in  the  case 
was  clearly  that  loss  of  profits  of  a  mill  was  not  a  natural 
consequence  of  a  carrier's  delay  in  delivering  machinery  ; 
but  the  court  added  that  if  the  special  circumstances  had 
been  known  at  the  time  of  the  contract  of  bailment,  the 
damages  claimed  might  have  been  recovered. 

The  New  York  court,  in  Griffin  v.  Colver,  took  sub- 
stantially the  same  view  of  the  decision.  The  court  says, 
as  quoted  above,  "  The  damages  must  be  such  as  may 
fairly  be  supposed  to  have  entered  into  the  contemplation 
of  the  parties  when  they  made  the  contract,  that  is,  must 
be  such  as  might  naturally  be  expected  to  follow  its  vio- 
lation  That  the  damages  must  flow  directly  and 

naturally  from  the  breach  of  contract,  is  a  mere  mode  of 
expressing  ".the  former  principle. 

§  147.  Hadley  v.  Baxendale  as  interpreted  in  England. — 
It  has  been  intimated  in  one  English  case  that  the  rule 
in  Hadley  v.  Baxendale  applies  only  to  profits ;  (")  this 
view,  however,  has  not  been  followed.  According  to  the 
interpretation  which  has  finally  prevailed  in  England,  the 
rule  was  not  intended  to  change  materially  what  has  al- 
ways been  the  common  law,  namely,  that  the  plaintiff 
can  recover  for  the  damage  directly  resulting  from  the 
defendant's  breach  of  contract,  but  not  remote  damage  ; 
that  the  rule  is  only  a  new  way  of  stating  the  well-estab- 


(»)  Wilson  V.  Newport  Dock  Co.,  L.  R.  1  Ex.  177.  In  Gee  v.  Lancashire 
&  Y.  Ry.  Co.,  6  H.  &  N.  211,  Mr.  Baron  Wilde  observed:  "For  my  own 
part  I  think  that,  although  an  excellent  attempt  was  made  in  Hadley  v.  Bax- 
endale to  lay  down  a  rule  on  the  subject,  it  will  be  found  that  the  rule  is  not 
capable  of  meeting  all  cases ;  and  when  the  matter  comes  to  be  further  con- 
sidered, it  will  probably  turn  out  that  there  is  no  such  thing  as  a  rule,  as  to 
the  legal  measure  of  damages,  applicable  in  all  cases." 


§   147-        AS  INTERPRETED  IN  ENGLAND.  207 

lished  principle  that  damages  can  only  be  given  for  the 
natural  consequences  of  a  breach  of  contract,  "  natural  " 
being  defined  to  mean  "arising  in  the  usual  course  of 
things,"  but  with  the  extension  that  damages  which  were 
in  the  actual  contemplation  of  the  parties  can  also  be  re- 
covered. Under  this  interpretation  of  the  rule,  the 
plaintiff  can  always  recover  for  the  damage  directly  re- 
sulting from  the  defendant's  breach  of  contract,  although 
that  damage  did  not  arise  according  to  the  usual  course 
of  things,  nor  was  in  the  contemplation  of  the  parties. 
Where  the  damages  claimed  are  not  direct,  but  the  ques- 
tion is  as  to  the  degree  of  remoteness  for  which  a  party  is 
to  be  held,  this  rule  limits  his  responsibility  to  the  conse- 
quences which  would  result  in  the  usual  course  of  things, 
or  those  which  vvere  in  the  contemplation  of  the  par- 
ties. (")  In  a  case  in  the  English  Court  of  Queen's 
Bench, (")  Blackburn,  J.,  said  :  "That  argument  seems  to 
assume  that  the  principle  laid  down  in  Hadley  v.  Baxen- 
dale  is,  that  the  damages  can  only  be  what  both  parties 
contemplated,  at  the  time  of  making  the  contract,  would 
be  the  consequence  of  the  breach  of  it ;  but  that  is  not 
the  principle  laid  down  in  Hadley  v.  Baxendale.  The 
court  say,  '  We  think  the  proper  rule  in  such  a  case  as 
the  present  is  this :  Where  two  parties  have  made  a  con- 
tract which  one  of  them  has  broken,  the  damages  which 
the  other  party  ought  to  receive  in  respect  of  such  breach 
of  contract  should  be  such  as  may  fairly  and  reasonably 
be  considered,  either  arising  naturally,  i.  e.,  according  to 
the  usual  course  of  things,  from  such  breach  of  contract 
itself,'  that  is  one  alternative—'  or  such  as  may  reason- 
ably be  supposed  to  have  been  in  the  contemplation  of 
both  parties,  at  the  time  they  made  the  contract,  as  the 

(»)  Hobbs  V.  London  &  S.  V^.  Ry.  Co.,  L.  R.  10  Q.  B.  iii. 
C)  Cory  V.  Thames  I.  ^N .  &  S.  B.  Co.,  L.  R.  3  Q.  B.  181,  188. 


208  CONSEQUENTIAL   DAMAGES.  §  147- 

probable  result  of  the  breach  of  it.'"     Cockburn,  C.  J,, 
agreed  with  this  interpretation. 

In  Hammond  v.  Bussey  (")  Lord  Esher,  M.  R.,  said : 
"  The  rule  is  laid  down  (in  Hadley  v.  Baxendale)  thus  : 
'  Where  two  parties  have  made  a  contract  which  one  of 
them  has  broken,  the  damages  which  the  other  party 
ought  to  receive  in  respect  of  such  breach  of  contract 
....  should  be  such  as  may  fairly  and  reasonably  be 
considered  either  arising  naturally,  i.  e.,  according  to  the 
usual  course  of  things,  from  such  breach  of  contract  it- 
self.' That  is  the  enunciation  of  the  rule  with  regard  to 
damages  for  a  breach  of  contract  where  no  special  cir- 
cumstances arise,  and  would  apply  to  this  case  if  there 
had  been  no  sub-contract  which  the  defendant  knew  to 
exist  or  to  be  likely  to  be  made.  The  rule  goes  on  to 
state  what  the  measure  of  damages  is  where  there  are 
special  circumstances,  as  follows :  '  or  such  as  may  rea- 
sonably be  supposed  to  have  been  jn  the"  contemplation 
of  both  parties,  at  the  time  they  made  the  contract,  as 
the  probable  result  of  the  breach  of  it.'  It  has  been  ar- 
gued that  these  words  are  not  an  enlargement  of  the 
former  part  of  the  rule,  but  I  cannot  take  that  view 
of  thern.  It  is  to  be  observed  that  the  words  are  not 
'  such  damages  as  were  in  fact  in  the  contemplation  of 
the  parties  at  the  time  they  made  the  contract,'  which 
would  have  raised  a  question  of  fact  for  the  jury,  but 
'  such  as  may  reasonably  be  supposed  to  have  been  in  the 
contemplation  of  the  parties,'  not  as  the  inevitable  but 
as  '  the  probable  result  of  the  breach.'  The  next  sentence 
of  the  judgment  is,  I  think,  to  be  considered  rather  as 
a  valuable  exemplification  of  the  rule,  an  illustration  of 
the  circumstances  under  which  the  second  branch  of  the 
rule  would  apply,  than  as  part  of  the  rule  itself." 

(•)  20  Q.  B.  Div.  79,  88. 


§   148.  AS    INTERPRETED    IN    NEW    YORK.  2O9 

§  148,  Hadley  v.  Baxendale  as  interpreted  in  New  Yprk. 
— The  New  York  courts,  following  Griffin  v.  Colver, 
state  the  rule  in  Hadley  v.  Baxendale  to  be  that  a  party 
who  breaks  a  contract  is  held  liable  for  such  damages 
only  as  he  probably  contemplated  as  the  result  of  a 
breach  when  he  entered  into  the  contract,  or,  as  it  is 
often  expressed,  for  such  damages  as  may  fairly  be  sup- 
posed to  have  been  in  the  contemplation  of  the  parties. 
It  has  been  thought  that  this  interpretation  is  different 
from  what  we  have  just  seen  to  be  the  English  interpre- 
tation. It  has  been  said  that  the  principle  of  the  civil 
law  had  been  introduced  into  our  law  by  the  New  York 
cases,  namely,  that  the  consequences  compensated  must 
be  not  only  natural,  but  actually  in  the  minds  of  the  par- 
ties at  the  time  the  contract  was  made.  The  language 
used  by  the  courts  in  some  of  the  New  York  cases  may 
have  lent  color  to  this  notion  ;  but  it  is  clear,  in  view  of 
all  the  cases  in  that  State,  that  the  interpretation  adopted 
is  another  and  perhaps  looser  way  of  stating  the  same 
doctrine  which  has  prevailed  in  England ;  that  is,  that 
both  the  consequences  naturally  flowing  from  the  breach 
and  such  consequences  as  seem  natural  only  in  the  light 
of  special  circumstances  communicated  to  the  defendant 
at  the  time  of  the  contract  can   be  recovered.  (*)     This 


(»)  In  New  York,  however,  the  language  used  in  Hadley  v.  Baxendale,  the 
"  usual  course  of  things,"  is  seldom  adopted  as  a  guide.  Instead  of  it,  as  we 
have  seen,  the  courts  have  adopted  the  expression,  "  such  as  may  fairly  be 
supposed  to  have  been  in  the  contemplation  of  the  parties."  We  think  the 
"  usual  course  of  things  "  preferable,  for  the  New  York  form  of  the  rule  is  some- 
times misleading.  See  Little  v.  Boston  &  Maine  R.R.,  66  Me.  239 ;  CoUard  v.  S. 
E.  Ry.  Co.,  7  H.  &  N.  79 ;  Gee  v.  Lancashire  &  Yorkshire  Ry.  Co.,  6  H.  &  N. 
21 1 ;  Wilson  v.  Lancashire  &  Yorkshire  Ry.  Co.,  9  C.  B.  N.  S.  632  ;  Wilson 
V.  Newport  Dock  Co.,  L.  R.  i  Ex.  177.  It  is  possible  to  say,  with  some  defi- 
niteness,  what  would  follow  in  the  usual  course  of  things ;  but  what  the  con- 
templation of  the  'pzxivt^  probably  was,  is  a  very  difficult  matter  to  arrive  at. 
The  criticism  of  Alderson,  B.,  in  Wilson  v.  Newport  Dock  Co.,  L.  R.  i  Ex. 
Vol.  I. — 14 


2IO  CONSEQUENTIAL    DAMAGES.  §  I4S. 

will  more  clearly  appear  upon  an  examination  of  the  lan- 
guage of  the  court  in  some  of  the  cases  following  Griffin 
V.  Colver. 

In  Baldwin  v.  United  States  Tel.  Co.,(')  Allen,  J., 
said  : 

"  Whenever  special  or  extraordinary  damages,  such  as  would 
not  naturally  or  ordinarily  follow  a  breach,  have  been  awarded 
for  the  non-performance  of  contracts,  ....  it  has  been  for  the  rea- 
son that  the  contracts  have  been  made  with  reference  to  peculiar 
circumstances  known  to  both,  and  the  particular  loss  has  been 
in  the  contemplation  of  both,  at  the  time  of  making  the  con- 
tract, as  a  contingency  that  might  follow  the  non-performance. 
In  other  words,  the  damages  given  by  way  of  indemnity  have 
been  the  natural  and  necessary  consequences  of  the  breach  of 
contract,  in  the  minds  of  the  parties,  interpreting  the  contract  in 
the  light  of  the  circumstances  under  which,  and  the  knowledge  of 
the  parties  of  the  circumstances  for  which,  it  was  made." 

In  Ward  v.  New  York  C.  R.R.  Co-.C)  Peckham,  J., 
said : 

"Where  a  contract  has  been  violated,  the  law  intends  to  give 
to  the  party  injured  the  damages  caused  thereby ;  that  is,  the 
natural  and  proximate  damages  caused  by  the  breach.  It  is 
supposed  that  both  parties  contemplated  the  consequences  of 
such  breach  at  the  time  they  made  the  contract,  and  acted  ac- 
cordingly both  in  making  and  in  performing  or  violating  its  pro- 
visions." 

In  Booth  V.  Spuyten  Duyvel  R.  M.  Co.,(°)  Church, 
C.  J.,  said  : 

"  It  is  presumed  that  the  parties  contemplate  the  usual  and 
natural  consequences  of  a  breach  when  the  contract  is  made  ; 
and  if  the  contract  is  made  with  reference  to  special  circum- 
stances, fixing  or  affecting  the  amount  of  damages,  such  special 
circumstances  are  regarded  within  the  contemplation  of  the  par- 
ties, and  damages  may  be  assessed  accordingly." 


177,  seems  also  very  just,  viz.,  that  parties  usually  contemplate  the  perform- 
ance and  not  the  breach  of  contracts. 
(•)  45  N.  Y.  744-  750-  C)  47  N.  Y.  29,  32.  (■=)  60  N.  Y.  487,  492. 


§§   149.    ISO-  HOBBS'    CASE.  211 

In  Devlin  v.  The  Mayor,('')  Allen,  J.,  said : 

"  It  (the  rule)  secures  to  the  injured  party  as  a  compensation 
only  such  advantages  as  the  parties  must  be  deemed  to  have  had 
in  their  minds  in  making  the  agreement,  and  excludes  all  con- 
tingent and  uncertain  profits,  everything  that  may  not  reason- 
ably be  supposed  to  have  been  within  the  contemplation  of  the 
contracting  parties,  and  would  not  naturally  follow  the  breach." 

§  149.  General  results  of  Hadley  v.  Baxendale. — The 
rule  in  Hadley  v.  Baxendale  has  been  discussed  in  a 
multitude  of  cases,  and,  on  the  whole,  it  will  be  found 
that  the  general  tendency  of  judicial  opinion  in  the 
United  States  as  well  as  in  England  is  that  no  new  rule 
of  damages  has  been  introduced  ;  that  the  plaintiff  re- 
covers such  damages  as  are  proximate  and  natural,  and 
that  in  ascertaining  what  are  natural  consequences,  we 
must  take  into  the  account  all  the  circumstances  of  the 
case,  including  all  facts  bearing  on  the  question  which 
were  in  the  knowledge  of  both  parties,  even  though 
these  be  such  as  would  not  necessarily,  without  such 
knowledge,  enter  into  it.  It  is  on  this  principle  that  the 
plaintiff  is  allowed  to  charge  the  defendant  with  loss  on 
sub-contracts,  sales,  etc.,  on  proving  notice,  which,  in  the 
absence  of  such  notice,  would  not  be  treated  as  natural 
or  expected  consequences. 

§  150.  Hobbs'  Case. — The  theory  at  one  time  held  by 
some  "judges  that  the  rule  in  Hadley  v.  Baxendale  changed 
the  law,  had  its  effect  in  the  decision  of  an  English  case 
which  must  here  be  noticed.  Hobbs  v.  London  &  S.  W. 
Ry.  Co.C)  was  an  action  for  breach  of  contract.  The 
plaintiff,  with  his  wife  and  two  children,  took  tickets  to 
H.  on  the  defendants'  railway.  They  were  set  down  at 
E.     It  being  late  at  night,  the  plaintiff  could  not  get  a 

(•)  63  N.  Y.  8,  25.  0")  L.  R.  10  Q.B.I  1 1. 


212  CONSEQUENTIAL    DAMAGES.  §   15O. 

wagon  or  accommodation  at  an  inn.  Tiiey  had,  there- 
fore, to  walk  five  or  six  miles  on  a  rainy  night,  and  the 
wife  caught  cold,  was  laid  up  in  bed  for  some  time,  and 
was  unable  to  assist  her  husband.  Expenses  were  in- 
curred for  medical  attendance.  The  jury  found  ;^8  for 
inconvenience  suffered  by  having  to  walk  home,  and  ;^2o 
for  the  wife's  illness  and  its  consequences.  The  Queen's 
Bench  held  the  plaintiff  could  recover  the  ^8,  but  not 
the  ;^20.  Cockburn,  C.  J.,  said,  that  Hamlin  v.  Great 
Northern  Ry.  Co.C)  did  not  decide  that  a  plaintiff  could 
not  recover  for  inconvenience  which  was  the  immediate 
consequence  of  breach  of  the  contract.  That  case  only 
decided  that  damages  for  delay  should  not  include  the 
loss  of  appointments  with  customers.  As  to  the  item  of 
£26,  the  Lord  Chief  Justice  declared  that  it  was  too  re- 
mote, and  on  that  question  he  said  :  "  I  think  that  the 
nearest  approach  to  anything  like  a  fixed  rule  is  this: 
That,  to  entitle  a  person  to  damages  by  reason  of  a 
breach  of  contract,  the  injury  for  which  compensation  is 
asked  should  be  one  that  may  be  fairly  taken  to  have 
been  contemplated  by  the  parties  as  the  possible  result 
of  the  breach  of  contract.  Therefore  you  must  have 
something  immediately  flowing  out  of  the  breach  of  con- 
tract complained  of,  something  immediately  connected 
with  it,  and  not  merely  connected  with  it  through  a  series 
of  causes  intervening  between  the  immediate  consequence 
of  the  breach  of  contract  and  the  damage  or  injury  com- 
plained of."  Blackburn,  J.,  agreed  with  these  remarks 
of  the  Lord  Chief  Justice. 

This  case  was  considered  later  in  McMahon  v.  Field. C*) 
In  the  latter  case  the  defendant  contracted  with  the 
plaintiff  to  furnish  stabling  for  his  horses  during  a  fair, 
but  instead  of  doing  so  he  let  his  stable  to  a  third  party, 

(>)  I  H.  &  N.  408.  Cf)  7  Q.  B.  Div.  S9I. 


§   150.  HOBBS'   CASE.  213 

who  turned  out  the  plaintiff's  horses  in  the  middle  of  the 
night  without  their  blankets.  It  was  held  that  the  defend- 
ant, in  an  action  of  contract,  must  compensate  the  plaintiff 
for  a  loss  caused  by  his  horses  taking  cold.  Brett,  L.  J., 
said  "  it  was  not  the  necessary  consequence  of  the  breach  of 
contract,  but  I  have  no  doubt  that  it  was  the  probable  con- 
sequence, and  if  so,  it  follows  that  it  was  in  the  contempla- 
tion of  the  parties  within  the  meaning  of  the  third  rule." 

In  this  case  the  wrongful  act  was  the  lease  to  the  third 
party  ;  the  breach  of  a  contract  to  furnish  stabling  would 
naturally  result  in  the  horses  being  exposed.  But  does 
not  the  breach  of  a  contract  to  carry  a  passenger  also 
naturally  result  in  exposure  ?  The  Lord  Justice  dis- 
tinguished Hobbs'  Case  (though  granting  that  there  was 
little  difference),  and  so  instead  of  overruling  it,  said 
merely  that  "  he  was  not  contented  with  it." 

In  Murdock  v.  Boston  &  A.  R.R.  Co.(")  the  plaintiff 
was  wrongfully  ejected  from  the  train  and  delivered  to  a 
police  officer,  who  detained  him  over  night.  It  was  held 
that  in  an  action  for  breach  of  the  contract  of  carriage 
the  plaintiff  could  not  recover  for  the  indignity  of  his 
imprisonment,  mental  suffering,  and  sickness  produced 
by  a  cold  caught. 

The  court  said  :  "  Without  inquiring  whether  all  the 
elements  of  damage  admitted  by  the  court  would  be 
competent,  if  this  had  been  an  action  of  tort  for  an  as- 
sault and  false  imprisonment,  we  are  of  opinion  that  too 
broad  a  rule  was  adopted  in  this  case.  Damages  for  the 
breach  of  a  contract  are  limited  to  such  as  are  the  natural 
and  proximate  consequences  of  the  breach,  such  as  may 
fairly  be  supposed  to  enter  into  the  contemplation  of  the 
parties  when  they  made  the  contract,  and  such  as  might 
naturally  be  expected  to  result  from  its  violation." 

(»)  133  Mass.  15. 


214  CONSEQUENTIAL    DAMAGES.  §   I5I- 

This  decision  is  vested  on  the  ground  that  the  action 
was  not  tort.  The  conductor  who  ejected  the  passenger 
was  himself  a  railroad  police  officer,  and  delivered  the 
passenger  into  the  hands  of  the  local  police ;  the  act  by 
vrhich  the  contract  was  broken  was  therefore  a  tort,  and 
in  those  jurisdictions  in  which  all  forms  of  action  have 
been  abolished,  it  would  probably  have  been  impossible 
to  tell  whether  the  action  sounded  in  tort  or  contract,  or 
both.  The  measure  of  damages  should  not  depend  on  a 
distinction  so  difficult  of  application. 

In  the  case  of  Williams  v.  Vanderbilt  (")  the  defendant 
agreed  to  transport  the  plaintiff  to  California  by  the  way 
of  the  Isthmus  of  Panama  ;  but  failed  to  furnish  trans- 
portation across  the  Isthmus.  After  waiting  some  time 
in  the  unhealthy  climate  of  the  Isthmus,  the  plaintiff  was 
taken  back  to  his  starting-point ;  but  meanwhile  he  had 
contracted  a  sickness  through  remaining  on  the  Isthmus. 
It  was  held  that  he  could  recover  compensation  for  loss 
of  time  and  expense  caused  by  the  sickness.  The  form 
of  action  was  tort. 

There  can  be  little  doubt  that  the  decisions  in  McMahon 
V.  Field  and  Williams  v.  Vanderbilt  are  sound.  The  con- 
trary decision  rests  on  a  mistaken  understanding  of  one 
of  the  forms  of  the  rule  in  Hadley  v.  Baxendale,  that  is, 
that  such  damages  only  can  be  recovered  as  the  parties 
may  be  supposed  to  have  had  present  in  mind  at  the  time 
of  the  contract.  Hobbs'  Case  is  usually  said  to  be  law 
in  this  country,  but  its  effect  is  much  restricted,  in  most 
jurisdictions,  by  holding  that  it  does  not  apply  where  the 
act  by  which  the  contract  was  broken  was  itself  a  tort.(^) 

§  151.  Cory  V.  Thames  I.  W.  &  S.  B.  Co. — In  Cory  v. 
Thames  I.  W.  &  S.  B.  Co.(')  the  defendants  had  agreed 

(•)  28  N.  Y.  217. 

C")  See  the  case  discussed  in  the  chapter  on  Carriers. 

(«)  L.  R.  3  Q.  B.  181. 


§  152.    LOSS  CAUSED  BY  UNEXPECTED  NATURAL  CAUSES.    215 

to  sell  and  deliver  to  the  plaintiffs,  within  a  certain  time, 
the  hull  of  a  floating  boom  derrick,  supposing  the  plain- 
tiff's intended  to  use  it  as  a  coal  store.  The  plaintiff's,  in 
fact,  intended  to  apply  it  to  the  purpose  of  transhipping 
coal  directly  from  colliers  to  barges  without  the  necessity 
of  an  intermediate  landing,  a  purpose  which  was  unusual 
and  unknown  to  the  defendants.  It  was  held  that  the 
plaintiff's  could  recover  damages  to  the  extent  of  the 
profits  which  would  have  resulted  from  its  use  as  a  coal 
store.  They,  in  fact,  suffered  a  much  greater  damage, 
for  they  would  have  derived  a  much  larger  profit  from  the 
use  they  intended  than  from  its  use  as  a  coal  store. 

In  reply  to  the  argument  of  the  defendant,  that  dam- 
ages for  loss  of  use  of  the  derrick  for  a  store  were  not 
within  the  contemplation  of  the  parties,  Cockburn,  C.  J., 
said  (p.  187)  : 

"  The  two  parties  certainly  had  not  in  their  common  contem- 
plation the  application  of  this  vessel  to  any  one  specific  purpose. 
The  plaintiffs  intended  to  apply  it  in  their  trade,  but  to  the  spe- 
cial purpose  of  transhipping  coals ;  the  defendants  believed 
that  the  plaintiffs  would  apply  it  to  the  purpose  of  their  trade,, 
but  as  a  coal  store.  I  cannot,  however,  assent  to  the  propositioa 
that,  because  the  seller  does  not  know  the  purpose  to  which  the 
buyer  intends  to  apply  the  thing  bought,  but  believes  that  the 
buyer  is  going  to  apply  it  to  some  other  and  different  purpose, 
if  the  buyer  sustains  damage  from  the  non-delivery  of  the  thing, 
he  is  to  be  shut  out  from  recovering  any  damages  in  respect  of 
the  loss  he  may  have  sustained.  I  take  the  true  proposition  to 
be  this.  If  the  special  purpose  from  which  the  larger  profit  may 
be  obtained  is  known  to  the  seller,  he  may  be  made  responsible 
to  the  full  extent.  But  if  the  two  parties  are  not  ad  idem  quoad 
the  use  to  which  the  article  is  to  be  applied,  then  you  can  only 
take  as  the  measure  of  damages  the  profit  which  would  result 
from  the  ordinary  use  of  the  article  for  the  purpose  for  which 
the  seller  supposed  it  was  bought." 

§  152.  Loss  caused  by  unexpected  natural  causes  super- 
vening on  the  defendant's  act— When  the  act  of  the  de- 


2l6  CONSEQUENTIAL   DAMAGES.  §   153- 

fendant  brought  property  into  such  a  situation  that  it 
was  afterwards  injured  or  destroyed  by  unexpected  nat- 
ural causes,  the  injury  is  too  remote  a  consequence  of 
the  defendant's  wrong  to  be  compensated.  Thus,  when 
a  carrier  negligently  delays  the  carriage  of  goods,  which 
are  overtaken  by  flood  or  storm  and  destroyed,  the  car- 
rier is  not  liable,  though  but  for  the  delay  the  goods 
would  have  been  in  safety.  (") 

Where  the  defendant  had  contracted  to  beat  the  plain- 
tiff's rice  before  any  other,  but  did  not  do  so,  as  a  result 
of  which  it  remained  over  night  in  the  mill  and  was 
burned  with  the  mill,  it  was  held  that  the  loss  of  the  rice 
was  too  remote  a  result  of  the  breach  of  contract  to  be 
recovered.  (*) 

The  defendant  contracted  to  pay  damages  caused  by 
cutting  away  a  dam  and  allowing  the  river  to  flow  in 
and  out  of  a  basin  previously  protected  by  it.  The  river, 
a  year  later,  became  dammed  up  by  ice,  and  the  water 
rushed  into  the  basin  with  such  unusual  velocity  as  to 
injure  plaintiff's  property  there.  The  loss  was  held  not 
to  be  in  contemplation  of  the  parties,  and  compensation 
was  not  allowed  for  it.('') 

§  153.  Through  deprivation  of  material  for  manufacture 
or  trade. — It  is  not  the  natural  consequence  of  the  failure 
or  delay  of  a  carrier  to  deliver  machinery  that  the  use  of 
a  mill  should  be  lost ;  consequently,  in  the  absence  of 
notice  or  of  facts  in  the  knowledge  of  the  carrier  indi- 


(')  Memphis  &  C.  R.R.  Co.  v.  Reeves,  10  Wall.  176 ;  Denny  v.  New  York 
C.  R.R.  Co.,  13  Gray  481  ;  Daniels  v.  Ballantine,  23  Oh.  St.  532 ;  Morrison 
V.  Davis,  20  Pa.  171 ;  Parmalee  v.  Wilks,  22  Barb.  539,  and  Read  v.  Spaulding, 
30  N.  Y.  630,  seem  to  be  opposed  to  this  rule ;  but  in  the  latter  case  the 
court  took  notice  of  the  fact  that  the  defendant  was  liable  apart  from  any 
question  of  delay. 

C')  Ashe  V.  De  Rossett,  5  Jones  L.  299. 

C)  People  V.  Albany,  5  Lans.  524. 


§  153-      THROUGH  DEPRIVATION  OF  MATERIAL,  ETC.  217 

eating  that  such  would  be  the  case,  the  owner  cannot  re- 
cover damages  for  loss  of  use  of  the  mill.(*) 

A  dentist  cannot  recover  against  a  carrier,  in  an  action 
for  the  loss  of  a  set  of  dentist's  instruments,  the  profits 
and  earnings  he  might  have  made  if  the  loss  had  not  oc- 
curred ;  Q)  unless  the  carrier  had  notice  of  the  special  use. 
So  upon  failure  to  deliver  a  brickmaking  machine  the 
owner,  in  the  absence  of  notice,  cannot  recover  from  the 
carrier  the  wages  of  hands  kept  idle  for  want  of  the 
machine. (°)  So  where  an  editor,  by  not  receiving  some 
"  plate  paper,"  on  which  to  print  a  frontispiece  for  his 
magazine,  suffered  damage  in  loss  of  circulation  and  of 
credit,  and  in  having  a  number  of  copies  left  on  his 
hands,  such  damages  could  not  be  recovered.  ('^)  And 
the  stoppage  of  a  mill  not  being  a  normal  consequence 
of  delay  in  transporting  cotton,  the  mill  owner  in  an  action 
against  the  carrier  for  delay  cannot,  in  the  absence  of  no- 
tice, recover  compensation  for  the  loss  of  use  of  his  mill.(°) 
For  the  same  reason,  in  an  action  against  a  carrier  for 
delay  in  delivering  coal,  a  mill  owner  cannot  recover  com- 
pensation for  the  loss  of  use  of  his  mill.(')  And  in  an  action 
for  failure  to  deliver  hogs  bought  of  the  defendant,  the 
plaintiff  cannot  recover  compensation  for  the  loss  he  suf- 
fered by  having  hired  cars  to  transport  the  hogs.(^) 

In  an  action  against  a  carrier  for  the  loss  of  a  package 
containing  plans,  the  carrier   having  no    notice  of   the 

(»)  Hadley  v.  Baxendale,  9  Ex.  341 ;  Pacific  E.  Co.  v.  Darnell,  62  Tex.  639 ; 
Thomas  B.  &  W^.  M.  Co.  v.  Wabash,  St.  L.  &  P.  Ry.  Co.,  62  Wis.  642.  See, 
however,  Waters  v.  Towers,  8  Ex.  401,  semble  contra. 

O  Brock  V.  Gale,  14  Fla.  523. 

(=)  Johnson  v.  Mathews,  5  Kas.  118;  Ruthven  W.  Co.  i/.  Great  W.  Ry. 
Co.,  18  Up.  Can.  C.  P.  316. 

(")  Parsons  v.  Sutton,  66  N.  Y.  92. 

(')  Gee  V.  London  &  Y.  Ry.  Co.,  6  H.  &  N.  211. 

0  Cooper  V.  Young,  22  Ga.  269. 

(s)  Cuddy  V.  Major,  12  Mich.  368. 


2l8  CONSEQUENTIAL   DAMAGES.  §  ^53- 

contents  of  the  package,  the  owner  cannot  recover  dam- 
ages for  the  delay  in  constructing  the  house,  caused  by 
the  loss  of  the  plans.  (*) 

A  delay  in  delivering  goods  (by  the  seller  or  the 
carrier)  does  not  normally  result  in  loss  of  business  ; 
consequently  the  owner  cannot,  in  an  action  for  the  de- 
lay, recover  compensation  for  such  loss.(*)  So  where  the 
owner  used  the  goods  to  hire  out  as  regalia  for  proces- 
sions, he  cannot  recover  compensation  for  the  hire  he 
would  have  obtained  for  them.C) 

So  upon  a  delay  of  one  day  by  the  defendant,  a  ware- 
houseman, in  delivering  cotton,  the  plaintiff  cannot  re- 
cover compensation  for  the  payment  of  an  unusually 
high  rate  of  interest  on  money  borrowed  (as  the  custom 
was)  on  security  of  the  cotton. (*)  And  in  an  action  for 
failure  to  furnish  the  fire  box  for  an  engine,  the  plaintiff 
cannot  recover  damages  he  was  obliged  to  pay  to  a  third 
party  for  failure  to  deliver  the  engine  to  him  at  an  agreed 
time.(^) 

But  if  the  defendant  contracted  to  deliver  raw  material 
to  the  plaintiff,  a  manufacturer,  and  failed  to  do  so,  and 
no  other  material  of  the  sort  could  be  procured,  the  de- 
fendant Is  liable  for  the  resulting  loss.  "If  an  article 
of  the  same  quality  cannot  be  procured  in  the  market,  its 
market  price  cannot  be  ascertained  and  we  are  without 
the  necessary  data  for  the  application  of  the  general 
rule.  This  is  a  contingency  which  must  be  considered 
to  have  been  within  the  contemplation  of  the  parties. 


(»)  Mather  v.  American  E.  Co.,  138  Mass.  55. 

O")  Anderson  v.  Northeastern  Ry.  Co.,  4  L.  T.  R.  (N.  S.)  216 ;  Baltimore 
&  O.  Ry.  Co.  V.  Pumphrey,  59  Md.  390 ;  Buffalo  B.  W^.  C.  v.  Phillips,  64 
Wis.  338. 

C)  Hales  V.  London  &  N.  W.  Ry.  Co.,  4  B.  &  S.  66. 

(^)  Swift  V.  Eastern  W.  Co.,  86  Ala.  294. 

C)  Portman  v.  Middleton,  4  C.  B.  (N.  S.)  322. 


§§   154-156-  LOSS   OF   A   SUB-CONTRACT.  219 

for  they  must  be  presumed  to  know  whether  such  arti- 
cles are  of  limited  production  or  not.  In  such  a  case 
the  true  measure  is  the  actual  loss  which  the  vendee  sus- 
tains in  his  own  manufacture,  by  having  to  use  an  infe- 
rior article,  or  not  receiving  the  advance  on  his  contract 
price  upon  any  contract  which  he  had  himself  made  in 
reliance  upon  the  fulfillment  of  the  contract  by  the 
vendor."(*) 

§  154.  Telegraph  companies.  (**) — Where  a  message  is 
delayed  by  a  telegraph  company,  no  consequential  dam- 
ages can  be  recovered  unless  the  sender  or  the  language 
of  the  message  itself  gives  an  indication  of  its  special  im- 
portance. (°)  So  in  the  absence  of  notice  no  consequen- 
tial damages  can  be  recovered  for  delay  in  transmitting  a 
cipher  message.(*) 

§  155.  Agreement  to  repair. — The  natural  consequences 
of  a  failure  to  keep  the  drains  of  premises  in  repair  are  a 
loss  of  rent  and  injuries  caused  by  the  stench. (^)  On 
the  breach  of  a  covenant  to  repair  contained  in  the  lease 
of  a  hotel,  the  lessee  may  recover  compensation  for  the 
loss  of  use  of  rooms  rendered  useless  by  the  disrepair.C) 

§  156.  Loss  of  a  sub-contract.— The  loss  suffered  on  a 
sub-contract  (either  through  the  necessity  of  paying  dam- 
ages on  it  or  through  loss  of  the  benefit  of  it)  in  the  ab- 


(")  Sharswood,  J.,  in  McHose  v.  Fulmer,  73  Pa.  365. 

(f)  The  special  questions  that  arise  in  connection  with  telegraph  compa- 
nies will  be  considered  at  large  in  a  later  chapter. 

f )  Sanders  v.  Stuart,  i  C.  P.  D.  326 ;  Deslottes  v.  Baltimore  &  O.  T.  Co., 
40  La.  Ann.  183  ;  but  a  contrary  rule  now  prevails  in  some  jurisdictions  :  see 
chapter  on  Telegraph  Companies. 

(■i)  Mackay  v.  Western  U.  T.  Co.,  16  Nev.  222  ;  Cannon  v.  Western  U.  T. 
Co.,  100  N.  C.  300 ;  Daniel  v.  Western  U.  T.  Co.,  61  Tex.  452 ;  Candee  v. 
Western  U.  T.  Co.,  34  Wis.  471. 

(")  Jutte  V.  Hughes,  67  N.  Y.  267. 

O  Myers  v.  Burns,  35  N.  Y.  269. 


2  20  CONSEQUENTIAL    DAMAGES.  §   ^57- 

sence  of  notice  is  not  a  normal  result  of  a  breach  of  con- 
tract and  will  not  be  compensated. (")  There  is,  however, 
an  exception  in  certain  cases  where  the  contract  contem- 
plates a  sub-contract.  A  building  contract,  for  instance, 
contemplates  the  purchase  of  materials,  and  on  breach  of 
it  the  builder  may  recover  compensation  for  the  damages 
he  is  compelled  to  pay  on  a  contract  to  furnish  certain 
necessary  materials.  C")  So  the  purchaser  of  coal,  war- 
ranted to  be  of  a  certain  quality  by  a  coal  dealer,  contem- 
plates a  resale  of  it  as  of  that  quality  :  and  if  the  dealer  is 
sued  by  a  purchaser  from  him  on  account  of  the  inferior 
quality  of  the  coal  he  may  recover,  in  an  action  on  the 
warranty,  the  damages  and  costs  of  that  action. (")  In 
the  absence  of  a  custom  for  reselling  at  once,  a  resale 
before  delivery  cannot  be  shown  for  any  purpose.  Thus, 
in  England,  a  resale  of  land  before  the  deeds  are  passed, 
cannot  be  shown  to  fix  damage  on  failure  to  convey. C) 

Notice. 

§  157.  Notice — General  rule. — The  effect  of  notice,  un- 
der the  rule  in  Hadley  v.  Baxendale,  is  to  enlarge  the 
boundaries  of  natural  consequences.  The  general  rule  is, 
that  the  notice  must  be  such  as  to  inform  the  defendant 
of  any  extraordinary  damages  which  will  be  suffered.  (^) 
Only  the  natural  and  proximate  consequences  of  the  facts 

(»)  Caledonian  Ry.  Co.  v.  Colt,  3  Macq.  833,  3  L.  T.  R.  (N.  S.)  252  (H.  of 
L.) ;  Thol  V.  Henderson,  8  Q.  B.  D.  457 ;  Wallace  v.  Ah  Sam,  71  Gal.  197 ; 
Rahm  v.  Deig,  121  Ind.  283  ;  Brown  v.  Allen,  35  la.  306;  Mihills  M.  Co.  v. 
Day,  50  la.  250  ;  Wetmorew.  Pattison,  45  Mich.  439;  Devlin  v.  Mayor,  63  N. 
Y.  8 ;  Horner  v.  Wood,  16  Barb.  386 ;  Lindley  v.  Richmond  &  D.  R.R.  Co., 
88  N.  C.  547  ;  Parks  v.  O'Connor,  70  Tex.  377. 

Q)  Smith  V.  Flanders,  129  Mass.  322. 

(")  Hammond  v.  Bussey,  20  Q.  B.  Div.  79;  ace.  Thome  v.  McVeagh,  75 
111.  81. 

(■')  Walker  v.  Moore,  10  B.  &  C.  416. 

('■)  Home  V.  Midland  Ry.  Co.,  L.  R.  7  C.  P.  583 ;  8  C.  P.  131. 


§  158.     CONSEQUENCES    OF   A   BREACH    OF   CONTRACT.     221 

made  known  can  be  recpvered.  Thus,  where  the  defend- 
ant had  notice  that  goods  were  bought  by  the  plaintiff 
for  the  purpose  of  fulfilling  a  sub-contract,  the  plaintiff 
cannot  recover  for  loss  of  the  sub-contract,  unless  he 
shows  that  the  goods  could  not  be  elsewhere  procured. (") 
A  delay  in  the  work  for  which  the  goods  were  bought 
would  be  a  natural  result  of  their  non-delivery,  and  the 
consequences  of  delay  may  be  recovered  ;  but  an  entire 
cessation  of  the  work  is  not  a  natural  result.  C")  Where 
the  defendant  contracted  to  supply  rigging  for  a  ves- 
sel and  failed  to  do  so,  and  the  plaintiff  was  unable 
to  procure  rigging  in  the  market,  it  was  held  that  he 
could  not  recover  for  the  loss  of  use  of  the  vessel.  Not- 
withstanding the  notice  of  the  object,  another  abnormal 
factor  intervened — the  peculiar  state  of  the  market ;  con- 
sequently, the  notice  given  in  this  case  was  not  sufficient 
to  inform  the  defendant  of  the  danger  of  extraordinary 
loss.("=) 

A  defendant  has  notice  of  what  will  occur  in  the  ordi- 
nary course  of  business  ;  for  instance,  that  goods  bought 
by  a  dealer  in  them  will  be  resold, (*)  but  not  that  a  fail- 
ure to  deliver  goods  to  a  manufacturer  will  cause  a  stop- 
page of  his  mill,(*)  nor  that  on  a  contract  to  sell  goods 
the  goods  will  be  resold  before  delivery.  (0 

§  158.  Notice  of  consequences  of  a  breach  of  contract.— 
The  theory  that  mere  notice  of  an  unusual  consequence 
likely  to  follow  a  breach  of  contract  given  before  breach 

(')  If  they  cannot,  he  may  recover  compensation  for  the  loss  of  a  sub-con- 
tract.    McHose  V.  Fulmer,  73  Pa.  365. 

C)  Friend  &  T.  L.  Co.  v.  Miller,  67  Cal.  464 ;   Bridges  v.  Stickney,  38 

Me.  361. 

(»)  Clark  V.  Moore,  3  Mich.  55. 

C)  Hammond  v.  Bussey,  20  Q.  B.  Div.  79. 

(•)  Gee  V.  Yorkshire  &  L.  Ry.  Co.,  6  H.  &  N.  211. 

O  Williams  v.  Reynolds,  6  B.  &  S.  495. 


2  22  CONSEQUENTIAL   DAMAGES.  §   '59- 

gives  a  right  to  recover  compensation  for  such  conse- 
quence was  suggested  by  the  able  opinion  of  Bramwell, 
B.,  in  Gee  v.  London  &  Y.  Ry.  Co.  :  (")  "  I  am  not  sure 
that  another  qualification  might  not  be  added  which 
would  be  in  favor  of  the  plaintiff  in  this  case,  viz.  :  that 
in  the  course  of  the  performance  of  the  contract  one 
party  may  give  notice  to  the  other  of  any  particular  con- 
sequences which  will  result  from  the  breaking  of  the  con- 
tract, and  then  have  a  right  to  say,  '  If,  after  that  notice, 
you  persist  in  breaking  the  contract,  I  shall  claim  the 
.damages  which  will  result  from  the  breach.'  "  The  major- 
ity of  the  court,  however,  took  a  different  view.  And 
however  reasonable  the  view  may  be  in  itself,  another 
rule  is  firmly  established.  Hadley  v.  Baxendale,  as  we 
have  seen,  held  that  damages  for  breach  of  contract  were 
limited  to  such  as  were  either  normal  or  communicated 
at  the  time  of  the  contract. 

§  159.  Notice  must  form  the  basis  of  a  contract. — It  ap- 
pears that  the  notice  must  be  more  than  knowledge  on 
the  defendant's  part  of  the  special  circumstances.  It 
must  be  of  such  a  nature  that  the  contract  was  to  some 
extent  based  upon  the  special  circumstances.  This  ap- 
pears from  the  language  of  the  courts  in  many  cases 
where  the  subject  is  discussed.  In  Smeed  v.  Foord,('') 
Campbell,  C.  J.,  doubted  whether  notice  could  have  any 
effect  in  changing  the  rule  of  damages,  unless  it  formed 
part  of  the  contract.  In  British  Columbia  S.  M.  Co. 
V.  Nettleship,(°)  Willes,  J.,  said:  "The  mere  fact  of 
knowledge  cannot  increase  the  liability.  The  knowledge 
must  be  brought  home  to  the  party  sought  to  be  charged 
under  such  circumstances  that  he  must  know  that  the  per- 
son he  contracts  with  reasonably  believes  that  he  accepts 


(«)  6  H.  &  N.  21 1 .        (»)  I  E.  &  E.  602, 608.        («)  L.  R.  3  C.  P.  499,  509. 


§   1 59-    NOTICE  MUST  FORM  THE  BASIS  OF  A  CONTRACT.    223 

the  contract  with  the  special  condition  attached  to  it." 
In  Booth  V.  Spuyten  Duyvil  R.  M.  C^.C)  Church,  C. 
J.,  stated,  as  his  opinion,  that  notice  of  the  object  of  the 
contract  would  not,  of  itself,  change  the  measure  of  dam- 
ages, "  unless  it  formed  the  basis  of  an  agreement." 
Proof  of  notice,  of  course,  cannot.be  received  to  vary  the 
contract,  which  always  speaks  for  itself ;  it  is  merely  an 
attendant  circumstance,  which,  like  any  other  matter  in 
evidence,  affects  the  consequences  of  the  breach  and  the 
measure  of  recovery. 

Hadley  v.  Baxendale  lays  no  stress  on  the  question 
whether  the  contract  was  founded  upon  or  influenced  by 
the  notice ;  but  the  weight  of  recent  authority  seems  to 
be  in  accordance  with  these  opinions,  to  the  effect  that 
the  notice  must  be  such  as  that  the  contract  was  in  some 
degree  founded  on  it.  The  defendant  sold  goods  to  rig 
a  vessel,  and  damages  were  claimed  for  loss  of  use  of  the 
vessel.  The  Supreme  Court  of  Michigan  said:  "To 
create  such  extraordinary  liability,  there  must  in  every 
case  be  something  in  the  terms  of  the  contract,  read  in 
the  light  of  the  surrounding  circumstances,  which  show 
an  intention  on  the  part  of  the  vendor  to  assume  an 
enlarged  engagement,  a  wider  responsibility  than  is 
assumed  by  the  vendor  in  ordinary  contracts  for  the  sale 
and  delivery  of  merchandise."  C") 

The  purchase  price  of  goods,  as  compared  with  the 
large  amount  of  the  special  damage,  is  often  regarded 
by  the  courts  as  material  in  deciding  the  question  of 
notice.  So  in  a  case  in  Illinois,(*')  the  plaintiff  sued 
for  the  price  due  him  for  building  a  railroad.  The  de- 
fendant claimed  to  recoup  damages  for  delay  in  the  con- 
struction.    It  appeared  that  the   defendant   had  given 

(»)  60  N.  Y.  487.  C)  Clark  v.  Moore,  3  Mich.  55,  61. 

(»)  Snell  V.  Cottingham,  72  111.  161. 


2  24  CONSEQUENTIAL    DAMAGES.  §   l6o. 

bonds  on  account  of  construction,  with  agreement  that 
interest  should  be  waived  for  the  time  the  road  was  com- 
pleted before  July  ist,  and  this  agreement  was  known  to 
the  plaintiff  at  the  time  his  contract  was  made.  The 
plaintiff's  work  was  to  have  been  completed  six  months 
before  the  time  named  in  the  sub-contract.  It  was  held 
that  the  plaintiff  should  not  be  charged  with  the  interest 
which  the  defendant  was  obliged  to  pay  from  January 
I  St  to  the  completion  of  the  work.  The  court  laid 
special  stress  on  two  facts  :  first,  that  the  interest  rebated 
was  enormously  disproportionate  to  the  contract  price  of 
the  work ;  second,  that  the  plaintiff  was  contracting  to 
build  only  a  part  of  the  whole  work.  If  the  case  can  be 
supported  on  the  first  ground,  it  must  be  because  the  dis- 
proportion showed  that  the  contract  was  not  based  upon 
the  special  circumstances. 

§  i6o.  But  need  not  be  part  of  the  contract. — In  Home 
V.  Midland  Ry.  Co.,(*)  Blackburn,  J.,  went  further,  and 
said  that  in  his  opinion  notice  did  not  change  the  rule  of 
damages  unless  it  were  such  as  to  create  a  special  con- 
tract. It  is  to  be  observed  that  if  this  opinion  is  sound, 
it  does  away  at  once  with  the  whole  doctrine  of  notice. 
For  if  the  notice  of  special  circumstances  is  incorporated 
into  the  contract,  that  is,  if  the  contract  provides  against 
the  special  loss,  the  loss,  if  it  happens,  is  not  a  conse- 
quential but  a  direct  result  of  a  breach  of  the  contract, 
and  as  such  is  of  course  recoverable.  The  opinion  of 
Lord  Blackburn  has  not  been  supported  by  any  decided 
case;  and  the  weight  of  authority  is  against  it.C")  So 
a  verbal  notice  has  been  allowed  to  change  the  rule  of 
damages,  although  the  contract  was  in  writing.  (")     The 

(•)  L.  R.  8  c.  P.  T31I 

Cf)  Cory  V.  Thames  I.  W.  &  S.  B.  Co.,  L.  R.  3  Q.  B.  181  ;  Baldwin  ^'. 
U.  S.  T.  Co.,  45  N.  Y.  744  (semble). 

C)  Hydraulic  Eng.  Co.  v.  M'Haffie,  4  Q.  B.  Div.  670. 


§   l6l.  NOTICE   OF   A   SUB-CONTRACT.  225 

defendant  had  failed  to  carry  out  a  contract  to  deliver  as 
piece  of  machinery.  The  plaintiffs  required  this  ma- 
chinery in  order  to  carry  out  a  contract  with  one  J.  The 
contract  with  J.,  though  made  subsequently  to  the  con- 
tract with  the  defendant,  was  the  subject  of  a  conversa- 
tion between  the  parties  before  they  entered  into  any 
agreement.  It  was  held  in  the  Court  of  Appeals,  that 
the  plaintiff  could  recover  the  profits  he  would  have  de- 
rived from  his  contract  with  J.,  and  also  the  expenses 
to  which  he  had  been  put  in  making  part  of  an  engine 
for  J.,  which  had  been  thrown  away. 

§  161.  Notice  of  a  sub-contract. — Where  the  plaintiff 
makes  the  contract  in  order  to  fulfil  another  contract 
with  a  stranger,  and  so  informs  the  defendant,  he  may 
recover  such  damages  as  the  information  given  would 
indicate  as  likely  to  happen. 

In  Borries  v.  Hutchinson  (*)  the  plaintiffs  bought 
caustic  soda  of  the  defendant,  part  to  be  shipped  in  June, 
part  in  July,  and  the  rest  in  August,  and  the  defendant 
knew  at  the  time  of  the  sale  that  the  plaintiffs  bought 
it  for  shipment  and  resale  abroad,  but  not  that  it  was  for 
Russia,  although  he  learned  this  also  before  the  end  of 
August.  He  neglected  to  deliver  any  of  the  soda  until 
September,  in  which  month  and  in  October  he  delivered 
a  portion.  There  was  then  no  market  for  the  soda,  and 
the  plaintiffs,  who  had  contracted  for  the  resale  to  one 
Heitman,  in  Russia,  lost  the  profit  of  the  resale  on  what 
was  not  delivered,  and  by  reason  of  the  approach  of 
winter  in  the  Baltic,  were  obliged  to  pay  increased  rates 
of  freight  and  insurance  for  what  was  delivered.  In  this 
case  there  was  no  market  value  for  the  caustic  soda.  It 
was  held  that  the  plaintiff  .could  recover  the  profits  he 


(»)  18  C.B.(N.S.:)  445,463. 
Vol.  I.— is 


226  CONSEQUENTIAL   DAMAGES.  §   l6l. 

would  have  made  on  his  resale  to  Heitman,  and  could 
also  recover  the  increased  rates  of  freight  and  insurance. 
Erie,  C.  J.,  put  the  decision  as  to  the  profits  on  the  ground 
that  the  vendor  had  notice  that  the  vendee  was  trying  to 
fulfil  an  order  abroad  ;  the  decision  as  to  freight  and  in- 
surance on  the  ground  that  the  plaintiff  did  the  best  he 
could  to  diminish  the  loss.  "  I  agree  that  it  is  not  com- 
petent to  a  purchaser  so  to  deal  with  goods  delivered 
under  such  circumstances  as  to  exaggerate  the  loss  ;  but 
if  he  does  all  that  a  man  of  reasonable  skill  and  care  can 
do  to  make  the  damage  as  small  as  possible,  there  is  no 
reason  why  he  should  not  be  recouped  to  that  extent." 
If  he  had  not  done  so,  the  deterioration  in  value  would 
have  been  very  great.  Willes,  J.,  points  out  that  the  de- 
cision as  to  the  profits  of  the  resale  rests  on  the  ground 
that  there  was  no  market  where  the  plaintiff  could  fur- 
nish himself  with  soda  of  the  same  quality.  It  was 
further  held  that  the  plaintiff  could  not  recover  money 
which  he  had  paid  to  reimburse  Heitman  for  damages 
which  Heitman  had  been  obliged  to  pay  to  a  sub-vendee, 
Heimburger,  for  failure  to  perform  a  contract  with  him. 
Elbinger  Actien-Gesellschaft  v.  Armstrong  (")  was  an 
action  for  the  defendant's  breach  of  a  contract  to  furnish 
the  plaintiffs  with  666  sets  of  wheels  and  axles.  The 
plaintiffs  were  under  a  contract  to  supply  wagons  to  the 
Russian  Government  by  a  certain  date.  They  informed 
the  defendants  that  they  were  under  a  contract  to  deliver 
wagons  to  the  Russian  Government  under  a  penalty,  but 
did  not  state  the  date  of  delivery  or  the  amount  of  the 
penalty.  By  reason  of  the  defendant's  delay  the  plain- 
tiffs had  to  pay  ^loo  on  their  sub-contract.  Although 
the  market  price  had  kept  the  same,  it  was  held  that  the 
plaintiffs  could  recover  substantial  damages,  and  it  was 

(»)  L.  R.  9  Q.  B.  473,  479. 


4   l6l.  NOTICE    OF   A   SUB-CONTRACT.  227 

said  that  it  would  have  been  proper  to  instruct  the  jury, 
"  that  the  plaintiffs  were  entitled  to  such  damage  as,  in 
their  opinion,  would  be  fair  compensation  for  the  loss 
which  would  naturally  arise  from  the  delay,  including 
therein  the  probable  liability  of  the  plaintiffs  to  damages 
by  reason  of  the  breach  of  that  contract,  to  which,  as 
both  parties  knew,  the  defendant's  contract  with  the 
plaintiffs  was  subsidiary,"  for,  said  the  court,  the  direction 
would  not,  at  all  events,  have  been  too  unfavorable  to 
the  defendants. 

The  distinction  between  these  cases  seems  to  be  that 
in  the  former  case,  the  sub-contract  by  the  sub-vendee, 
Heitman,  was  not  brought  to  the  defendant's  notice. 

In  Hinde  v.  Liddell  (")  the  defendant  contracted  to 
supply  the  plaintiff  with  shirtings  of  a  certain  quality  to 
fill  a  contract.  The  defendant  broke  his  contract,  and 
the  plaintiff,  being  unable  to  procure  shirtings  of  the 
same  quality  in  the  market,  was  obliged  to  fulfil  his  sub- 
contract by  delivering  more  valuable  shirtings.  It  was 
held  that  he  could  recover  the  excess  of  price. 

The  leading  case  on  the  subject  is  Gr^bert-Borgnis  v. 
Nugent.  C*)  The  defendant  agreed  to  furnish  the  plain- 
tiff with  goods  of  a  certain  sort,  not  procurable  in  the 
market,  knowing  that  the  plaintiff  required  them  to  fulfil 
a  contract  with  a  French  customer,  but  not  knowing  the 
price  named  in  the  latter  contract.  It  was  held  that  the 
plaintiff  could  recover,  in  addition  to  ordinary  damages, 
compensation  on  account  of  his  enforced  breach  of  the 
French  contract ;  that  the  amount  recovered  by  the 
French  customer  against  the  plaintiff  in  an  action  on 
the  other  contract  might  be  shown,  not  as  a  measure  of 
the  compensation,  but  as  evidence  of  what  a  reasonable 


if)  L.  R.  10  Q.  B.  265.  C)  IS  Q-  B.  Div.  85. 


2  28  CONSEQUENTIAL    DAMAGES.  §  l6l. 

compensation  for  forcing  the  plaintiff  to  break  the 
contract  would  be., 

Brett,  M.  R.,  in  the  course  of  his  opinion  (p.  89), 
said : 

"  Where  a  plaintiff  under  such  circumstances  as  the  present  is 
seeking  to  recover  for  some  liability  which  he  has  incurred 
under  a  contract  made  by  him  with  a  third  person,  he  must  show 
that  the  defendant,  at  the  time  he  made  his  contract  with  the 
plaintiff,  knew  of  the  contract,  and  contracted  on  the  terms  of 
being  liable  if  he  forced  the  plaintiff  to  a  breach  of  that  contract. 
If  such  sub-contract  was  not  -made  known  to  him  at  all,  the  de- 
fendant cannot  be  made  liable  for  what  the  plaintiff  has  had  to 
pay  under  it.  If  there  be  no  market  for  the  goods,  then  the 
sub-contract  by  the  plaintiff,  although  not  brought  to  the  knowl- 
edge of  the  defendant,  the  original  vendor,  may  be  put  in  evi- 
dence in  order  to  show  what  was  the  real  value  of  the  goods, 
and  so  enable  the  plaintiff  to  recover  the  difference  between  the 
contract  price  and  the  real  value.  But  where  the  sub-contract 
was  fully  made  known  to  him  in  all  its  terms,  in  my  opinion  the 
defendant  would  be  liable  ;  and  the  proper  inference,  and  one 
which  the  jury  might  infer,  would  be  that  he  had  contracted 
with  the  plaintiff  upon  the  terms  that  if  he  broke  his  contract 
he  should  be  liable  for  all  the  consequences  of  a  failure  by 
the  plaintiff  to  perform  his  sub-contract.  Still,  however,  it 
seems  to  me,  according  to  what  has  been  decided,  that  the  orig- 
inal vendor,  in  such  a  case  as  this,  is  only  liable,  in  the  case  of 
a  breach  of  contract,  for  the  natural  consequences  of  so  much 

of  the  sub-contract  as  was  made  known  to  him Supposing 

there  was  in  the  sub-contract  between  myself  and  my  purchaser 
not  only  a  stipulation  that  I  should  pay  4/.  a  ton,  but,  besides  that, 
I  should  be  liable  to  a  penalty  of  5/.  a  day,  although  that  is  in  the 
sub-contract,  yet  if  that  part  of  it  was  not  made  known  to  the  orig- 
inal vendor,  he  would  not  be  liable  to  pay  the  penalty  of  5/.  a 
day.  It  seems  to  me  that  the  cases  establish  that  the  original 
vendor  is  to  be  liable  to  so  much  of  the  sub-contract  as  was 
made  known  to  him,  but  only  to  that  extent." 

The  Master  of  the  Rolls  cited  in  support  of  his  posi- 
tion Borries  v.  Hutchinson  and  Elbinger  Actien-Gesell- 
schafft  V.  Armstrong. 


§   l6l.  NOTICE   OF   A   SUB-CONTRACT,  229 

Bowen,  L.  J.,  said  (p.  92)  : 

"  A  person  can  only  be  held  to  be  responsible  for  such  conse- 
quences as  may  be  reasonably  supposed  to  be  in  the  contem- 
plation of  the  parties  at  the  time  of  making  the  contract.  That 
is  the  principle  really  at  the  bottom  of  Hadley  v.  Baxendale. 
Now,  how  much  of  the  damages  claimed  may  reasonably  be 
supposed  to  have  been  in  the  contemplation  of  the  parties  at 
the  time  of  making  the  contract  depends  in  every  case  upon 
how  much  of  the  real  situation  of  the  parties  was  so  disclosed 
by  the  purchaser  to  the  vendor  at  the  time  the  contract  was 
made,  as  to  render  it  a  fair  infefrence  of  fact  that  damages  of 
that  class  were  intended  to  be  recouped  if  they  were  suffered. 
....  In  a  case  of  this  sort,  where  there  was  no  market  into 
which  the  parties  could  go  and  buy  against  the  broken  contract, 
the  natural  result  which  must  have  been  contemplated  at  the 
time  the  original  contract  was  made  must  have  been  that  there 
would  be  a  liability  by  the  purchaser  to  his  sub-purchaser." 

The  Lord  Justice  expressed  tlie  opinion  that  if  Ber- 
ries V.  Hutchinson  is  inconsistent  with  Elbinger  Actien- 
Gesellschaflft  v.  Armstrong,  it  must  be  overruled. 

In  Messmore  v.  The  N.  Y.  Shot  &  Lead  Co.(*)  it  was 
held  that  the  plaintiff  could  recover,  for  the  vendor's 
failure  to  supply  bullets,  the  profits  he  would  have  made 
on  a  contract  of  resale,  the  defendant  having  notice  of 
the  contract.  Mason,  J.,  delivered  the  opinion  of  the 
court.  He  stated  that  usually  the  difference  between 
the  market  and  the  contract  price  determined  the  measure 
of  damages,  because  the  vendee  could  go  into  the  market 
and  supply  himself.  He  said  the  rule,  however,  was  dif- 
ferent where  notice  was  given,  because  in  such  a  case 
the  profits  of  the  resale  might  be  said  to  be  in  the  con- 
templation of  the  parties.  He  continued  (p.  428)  :  "  It 
(the  notice)  showed  that  these  profits  to  this  plaintiff  were 
in  the  contemplation  of  the  parties  in  entering  into  this 


(»)  40  N.  Y.  423. 


230  CONSEQUENTIAL   DAMAGES.  §  162. 

contract,  and  as  the  evidence  showed  such  to  be  the  fact, 
these  profits  that  would  have  accrued  to  the  plaintiff, 
had  the  contract  been  performed  by  the  defendants,  are 
in  no  sense  speculative  or  uncertain  profits."  He  pointed 
out  that  in  this  case  the  plaintiff  could  not  have  supplied 
himself  in  the  market. 

§  162.  Notice  of  a  contemplated  resale. — In  Mann  v. 
Taylor  (")  the  defendant  contracted  to  deliver  to  the 
plaintiff  certain  goods  for  the  purpose  of  resale,  know- 
ing that  certain  expenses  were  necessary  in  preparation 
for  resale.  Upon  failure  to  deliver  the  goods,  the  plain- 
tiff was  allowed  compensation  for  such  expenses. 

In  Hammond  v.  Bussey  (*")  the  defendant  sold  the 
plaintiff  coal  as  of  a  certain  quality,  knowing  he  was 
buying  it  to  resell  as  coal  of  that  sort.  It  was  not  of  the 
quality  named,  but  the  difference  could  be  discovered 
only  when  the  coal  was  used.  The  plaintiff,  having  sold 
some  of  the  coal,  was  sued  by  the  purchaser  on  account 
of  the  inferiority  of  the  quality :  he  gave  notice  of  the 
suit  to  the  defendant,  who  declined  to  defend  it.  It  was 
held  that  the  plaintiff  might  include  in  his  damages  the 
damages  and  costs  in  the  action  against  him  by  the  pur- 
chaser. The  court  held  that  the  rule  as  to  sub-contracts 
extended  to  contracts  not  made  at  the  time  of  the  orig- 
inal contract,  but  in  the  ordinary  course  of  business  sure 
to  be  made.     Lord  Esher,  M.  R.,  said  : 

"  To  my  mind  it  is  perfectly  clear  that,  according  to  a  reason- 
able business  view  of  the  reasonably  probable  course  of  business, 
the  parties  may  be  supposed  to  have  contemplated,  at  the  time 
when  the  contract  was  made,  as  the  inevitable  or  at  any  rate  the 
highly  probable  result  of  a  breach  of  it,  that  there  would  be  a 
lawsuit  between  the  plaintiffs  and  their  sub-vendees,  in  which  it 
would  be  reasonable  for  the  plaintiffs  to  defend,  and  in  which, 


(•)  78  la.  355.  C)  20  Q-  B.  Div.  79,  93,  99. 


§  l62.  NOTICE   OF  A   CONTEMPLATED    RESALE.  23 1 

if  it  turned  out  that  there  was  a  breach  of  the  warranty,  the 
plaintiffs  would  lose,  and  that  they  would  thereby  necessarily 
incur  costs.  Costs  incurred  under  such  circumstances  appear  to 
me  to  fall  within  the  second  branch  of  the  rule  in  Hadley  v. 
Baxendale." 

Fry,  L.  J.,  said  : 

"  There  are,  I  think,  four  questions  which  have  to  be  answered 
in  order  to  see  whether  these  costs  come  within  it.  First,  what 
are  the  damages  which  actually  resulted  from  the  breach  of  con- 
tract ?  It  seems  to  me  that  the  loss  actually  sustained  by  reason 
of  such  breach  was  that  of  the  damages  recovered  by  the  sub- 
vendees  in  their  action  against  the  plaintiffs  and  the  costs  of  that 
action.  Secondly,  was  the  contract  made  under  any  special  cir- 
cumstances, and,  if  so,  what  were  such  circumstances  ?  It  ap- 
pears that  it  was  made  by  the  plaintiffs  with  the  intention  of  re- 
selling the  coal  to  steamships  visiting  Dover  in  the  course  of 
their  usual  business.  Thirdly,  what  at  the  time  of  making  the 
contract  was  the  common  knowledge  of  both  parties  ?  The  pur- 
poses for  which  the  plaintiffs  bought  the  coal  were  as  well  known 
to  the  defendant  as  to  the  plaintiffs  themselves.  Having  thus 
ascertained  the  special  circumstances  under  which  the  contract 
was  made,  and  the  knowledge  of  the  parties  with  regard  to 
them,  we  come  to  the  last  question,  viz.,  what  may  the  court 
reasonably  suppose  to  have  been  in  the  contemplation  of  the 
parties  as  the  probable  result  of  a  breach  of  the  contract,  assum- 
ing the  parties  to  have  applied  their  minds  to  the  contingency  of 
there  being  such  a  breach  ?  It  seems  to  me  that  they  must  have 
contemplated,  if  there  was  a  breach  of  the  contract,  that  the 
plaintiffs'  sub-vendees  would  make  a  claim  and  bring  an  action 
against  the  plaintiffs  to  enforce  such  claim  ;  and  further,  that 
the  plaintiffs  would  on  such  an  action  being  brought  behave  as 
reasonable  men  and  would  pay  without  contest  if  it  was  unrea- 
sonable to  defend  the  action,  but  would  defend  the  action  if  it 
was  reasonable  to  do  so.  I  think  all  these  matters  may  be  rea- 
sonably supposed  to  have  been  within  the  contemplation  of  the 
parties.  That  being  so,  it  follows  tnat  the  costs  of  a  reasonable 
defence  would  be  in  the  contemplation  of  the  parties,  if  they 
had  worked  out  the  question  what. the  damages  were  which 
would  reasonably  be  payable  upon  a  breach  of  contract.  There- 
fore it  seems  to  me  that,  applying  the  rule  in  Hadley  v.  Baxen- 


2$2  CONSEQUENTIAL   DAMAGES.  §  1 63. 

dale  to  the  special  circumstances  of  this  case,  we  arrive  at  the 
conclusion  that  these  costs  ought  to  be  recovered  as  damages." 

§  163.  Notice  of  a  sub-contract,  but  not  of  the  price. — In 
Home  V.  Midland  Ry.  Co.C)  the  plaintiffs  were  under 
a  contract  to  supply  a  quantity  of  military  shoes  to  H., 
in  London,  for  the  use  of  the  French  army,  at  4s.  per 
pair,  an  unusually  high  price.  On  the  day  on  which  the 
shoes  were  to  be  delivered  they  sent  them  to  the  defend- 
ants' station  at  K,,  in  time  to  be  delivered  in  the  usual 
course  of  business,  in  the  evening  of  that  day,  when  they 
would  have  been  accepted.  Notice  was  given  that  the 
plaintiffs  had  a  contract,  and  unless  they  were  delivered 
on  that  day  they  would  be  thrown  on  their  hands,  but 
not  of  the  price  stated  in  the  contract.  The  market 
price  was  2s.  gd.  It  was  held  that  the  plaintiffs  could 
not  recover  the  difference  between  4s.  and  2s.  gd.  per 
pair.  Willes,  J.,  said  :  "  The  damages  are  to  be  limited 
to  those  that  are  the  natural  and  ordinary  consequences 
vi^hich  may  be  supposed  to  have  been  in  the  contempla- 
tion of  the  parties  at  the  time  of  making  the  contract." 
This  decision  was  affirmed  in  the  Exchequer  Cham- 
ber. (^)  Mellor,  J.,  distinguished  France  v.  GaudetjC) 
on  the  ground  that  in  that  case  champagne  of  a  similar 
quality  was  not  procurable  in  the  market,  and  therefore 
the  resale  was  the  only  test  of  the  value  of  the  goods. 
Kelly,  C.  B.,  referred  to  the  fact  that  the  defendant  was 
a  common  carrier,  and  bound  to  accept,  even  if  notice 
had  been  given.  He  continued  :  "  But  in  the  absence  of 
any  such  contract  expressly  entered  into,  there  being  no 
power  on  the  part  of  the  company  to  refuse  to  accept 
the  goods,  or  to  compel  payment  of  an  extraordinary 
rate  of  carriage  by  the  consignor,  it  does  not  appear  to 


t)  L.  R.  7  C.  P.  583.         C)  L-  R-  8  C.  P.  131.  e)  L.  R.  6  Q.  B.  199. 


§  163.  NOTICE  OF  SUB-CONTRACT,  BUT  NOT  OF  PRICE.  233 

me  any  contract  to  be  liable  to  more  than  the  ordinary 
amount  of  damages  can  be  implied  from  the  mere  receipt 
of  the  goods  after  such  a  notice  as  before  mentioned." 
He  then  pointed  out  that  there  was  no  notice  here  of 
the  exceptional  nature  of  the  contract  and  of  the  unusual 
loss  that  would  result ;  that  here  the  defendants  would 
only  expect  a  contract  at  the  market  price.  Pigott,  B., 
dissented  from  the  decision,  saying  that  the  company 
could  decline  to  carry  goods  except  at  the  ordinary  risks, 
and  if  they  accepted  goods  after  such  a  notice,  they  be- 
came liable  for  the  special  value.  He  continued  :  "  Such 
loss  being  actually  the  result  of  the  defendants'  breach  of 
contract,  why  are  the  plaintiffs  not  to  recover  it  ?  It 
can  only  be  by  reason  of  some  artificial  rule  established 
by  the  decisions  or  some  ground  of  public  policy,  that 
makes  the  measure  of  damages  which  may  be  recovered  • 
less  than  that  which  is  actually  sustained."  He  said  that 
here  the  consignee  had  notice  and  should  have  made  fur- 
ther inquiries. 

The  decision  properly  rests  upon  the  same  principle 
that  excludes  unexpected  consequences  in  general.  The 
defendant  knew  of  the  sub-contract  of  sale,  and  was  pre- 
pared to  take  the  risk  of  it ;  but  no  notice  had  been 
given  that  the  sub-contract  was  for  an  extraordinary 
price. 

On  the  other  hand,  where  the  sub-contract  is  at  the 
market  price,  or  for  a  reasonable  advance  over  the  con- 
tract sued  on,  and  the  defendant  is  notified  of  the  sub- 
contract, but  not  of  the  price,  the  plaintiff  upon  default 
may  recover  the  profit  of  the  sub-contract.  (") 

In  an  action  for  breach  of  a  contract  to  deliver  steel 
caps  for  rails,  it  appeared  that  the  plaintiffs  were  under 

(»)  Illinois  C.  R.R.  Co.  v.  Cobb,  64  HI.  128  ;  Cobb  v.  Illinois  C.  RJl.  Co., 
38  la.  601.     But  contra.  Harper  v.  Miller,  27  Ind.  277  {semble). 


234  CONSEQUENTIAL   DAMAGES.  §   1 64. 

a  contract  to  deliver  a  quantity  of  steel-capped  rails  to 
the  Hudson  River  Railroad  Company  at  $315  per  ton, 
and  the  defendant  was  informed  of  the  contract,  but  not 
of  the  price.  This  contract  they  could  not  perform, 
owing  to  the  defendant's  failure.  There  was  no  market 
value  for  either  steel  caps  or  steel-capped  rails.  It  was 
held  that  the  plaintiff  could  recover  the  profits  of  his 
contract  with  the  Hudson  River  Railroad  Company. 
Church,  C.  J.,  said  that  the  damages  recoverable  in  breach 
of  contract,  were  such  "  as  ordinarily  and  naturally  flow 
from  the  non-performance."  He  approved  of  the  prin- 
ciple of  Hadley  v.  Baxendale,  that  the  damages  must  be 
such  as  were  in  the  contemplation  of  the  parties.  As  to 
the  damages  in  this  case,  he  said  that  the  plaintiff's  re- 
covery could  not  be  objected  to  on  the  ground  that  the 
plaintiff  had  not  suffered  loss,  for  he  had  lost  his  sub- 
contract ;  nor  on  the  ground  of  uncertainty,  since  the 
damages  were  fixed  and  definite.  As  to  the  notice  of 
the  object  of  the  contract,  he  said :  "  If  the  article  is  one 
which  has  a  market-price,  although  the  sub-contract  is 
contemplated,  there  is  some  reason  for  only  imputing  to 
the  vendor  the  contemplation  of  a  sub-contract  at  that 
price,  and  that  he  should  not  be  held  for  extravagant 
or  exceptional  damages  provided  for  in  the  sub-con- 
tract." (^) 

The  same  rule  applies  where  the  defendant  has  no 
actual  notice  of  the  sub-contract,  but  it  is  made  in  the 
regular  course  of  trade,  of  which  he  was  cognizant  (f) 

§  164.  Notice  of  a  special  use  for  goods. — In  a  case  which 
immediately  followed  Hadley  v.  Baxendale,  the  defend- 
ant had  contracted  to  build  a  ship,  which  was  to  be 


(»)  Booth  V.  Spuyten  Duyvil  R.  M.  Co.,  60  N.  Y.  487. 
('')  McHose  V.  Fulmer,  73  Pa.  365. 


§  164.  NOTICE   OF   SPECIAL   USE   FOR  GOODS.  235 

delivered  to  the  plaintiff  on  the  ist  of  August,  1854. 
It  was  not  delivered  till  March,  1855.  The  vessel  was 
intended  by  the  plaintiffs — and  from  the  nature  of  her 
fittings  the  defendants  must  have  known  the  fact — 
for  a  passenger  ship  in  the  Australian  trade.  Evi- 
dence was  given  that  freights  to  Australia  were  very- 
high  in  July,  August,  and  September,  but  fell  in  Oc- 
tober, and  continued  low  till  May,  when  the  vessel 
sailed ;  and  that,  had  she  been  delivered  on  the  day 
named,  she  could  have  earned  £2,yKiO  more  than  she 
did.  On  the  other  hand,  it  was  shown  that  the  plain- 
tiffs would  have  extended  the  time  for  delivery  till 
the  first  of  October,  if  the  defendants  would  have  bound 
themselves  to  that  day  under  a  demurrage  (which,  how- 
ever, was  refused),  and  that  they  had  stated  as  their  rea- 
son for  wishing  to  have  the  ship  then,  "  that  after  that  time 
the  days  would  be  shortening  so  fast  that  they  would  be 
seriously  inconvenienced  and  prejudiced  in  fitting  the 
vessel  out."  The  judge  charged  in  the  words  of  Hadley 
V.  Baxendale,  and  the  jury  found  a  verdict  of  ^2,750. 
An  attempt  was  made  to  set  aside  the  verdict  for  excess 
of  damages,  on  the  ground  that  if  the  plaintiff's  offer 
had  been  complied  with,  the  loss  of  freight  would  have 
been  suffered,  and  that  the  damages  should  be  measured 
rather  by  the  species  of  loss  which  they  had  themselves 
pointed  out,  than  by  that  which  they  afterwards  set  up. 
The  rule  was  refused.' 

In  Schulze  v.  Great  Eastern  Ry.  Co.C)  the  plaintiff 
sued  the  defendant,  a  common  carrier,  for  failure  to  de- 
liver a  package  containing  samples.  The  defendant  had 
notice  of  the  contents  of  the  package.     The  plaintiff  hav- 

■  Fletcher  v.  Tayleur,  17  C.  B.  21. 


(•)  19  Q.  B.  Div.  30. 


236  CONSEQUENTIAL   DAMAGES.  §   1 64. 

ing  lost  a  season's  trade  by  the  non-delivery  of  the  sam- 
ples was  allowed  to  recover  damages  on  that  account. 
In  Fox  V.  Boston  &  M.  R.R.  Co.C)  the  plaintiff  made 
a  special  arrangement  with  the  defendant,  a  common  car- 
rier, with  a  view  to  the  mildness  of  the  weather,  to  de- 
liver apples  which  were  shipped  to  a  connecting  rail- 
road at  a  certain  time.  The  defendant  delayed  the  de- 
livery, and  as  a  consequence  the  apples  were  frozen  while 
in  transit  on  the  connecting  line.  The  defendant  was 
held  liable  for  the  loss  of  the  apples. 

In  Smeed  v.  Foord  C*)  the  defendant  had  contracted 
to  deliver  a  threshing  machine  to  a  farmer  within  three 
weeks,  knowing  that  it  was  the  plaintiffs  practice  to  thresh 
his  wheat  in  the  field,  and  send  it  off  at  once  to  the  mar- 
ket. The  defendant  failed  to  deliver  it  in  time.  The 
farmer  made  some  attempts  to  hire  another  machine,  but 
not  any  very  active  ones,  as  he  was  continually  receiving 
letters  from  the  defendant  leading  him  to  expect  the  ar- 
rival of  the  machine.  He  stacked  the  wheat,  but  being 
unable  to  hire  thatchers,  it  was  injured  by  the  rain.  On 
this  account  it  became  necessary  to  kiln-dry  it.  The 
plaintiff  claimed  damages :  First,  for  the  expense  of 
•stacking  and  drying  the  wheat,  and  for  loss  arising  from 
its  deterioration  in  value  by  the  rain.  Second,  for  the 
fall  in  the  market  value  between  the  time  when  it  would 
have  been  ready  and  when  it  actually  was.  It  was  held 
that  the  parties  must  reasonably  have  contemplated  in- 
jury by  the  weather  if  the  wheat  was  not  threshed  at 
once,  and  therefore  the  first  claim  was  sustained  ;  but  the 
■court  refused  to  allow  damages  for  a  fall  in  the  market 
value,  holding  that  that  was  not  within  the  contemplation 
•of  the  parties. 


(')  148  Mass.  220.  0")  I  E.  &  E.  602. 


§  165.  NOTICE   or    USE   OF   MACHINERY.  237 

In  Simpson  v.  London  &  N.  W.  Ry.  Co.C)  the  plaintiff 
had  been  exhibiting  his  wares  at  a  show  at  B.  He  usually- 
sold  some,  but  his  chief  object  was  to  exhibit  them  as  an 
advertisement  to  procure  custom.  He  delivered  them  to 
the  defendant  to  take  to  the  show  ground  2X  N.,  and  in- 
dorsed on  the  consignment  note  that  they  must  be  there 
by  a  certain  day.  They  did  not  arrive  there  till  the  show 
was  over.  It  was  held  that  the  plaintiffs  could  recover 
damages  which  had  been  given  for  either  loss  of  profit  or 
of  time.  It  was  said  that  the  defendant  had  sufficient  no- 
tice of  the  special  circumstances,  and  therefore  it  must 
be  deemed  to  have  been  in  the  contemplation  of  the 
parties  that  the  damage  would  include  whatever  loss  the 
plaintiff  suffered  by  missing  the  show-C")  In  Hamilton 
V.  Western  N.  C.  R.R.  Co.C)  the  defendant  company 
failed  to  furnish  freight  cars  to  the  plaintiff  on  a  certain 
day,  according  to  agreement.  The  company  had  notice 
that  by  shipment  of  his  goods  on  that  day  the  plaintiff 
could  get  the,  advantage  of  a  favorable  market.  The 
company  was  held  liable  for  the  loss  of  the  favorable 
market.  The  defendant  contracted  with  the  plaintiff,  a 
butcher,  to  furnish  the  ice  required  for  his  ice-box,  know- 
ing the  use  which  the  plaintiff  had  for  it.  In  an  action 
for  failure  to  supply  the  ice,  it  was  held  that  the  plaintiff 
could  recover  compensation  for  meat  spoiled  for  lack  of 
ice.(^) 

§165.  Notice  of  use  of  machinery. — In  British  Colum- 
bia S.  M.  Co.  V.  Nettleship(^)  it  appeared  that  sev- 
eral cases  containing  machinery  intended  for  the  erection 

(»)  I  Q.  B.  D.  274. 

0  Ace.  Richardson  v.  Chynoweth,  26  Wis.  656. 

C)  96  N.  C.  398 ;  ace.  Deming  v.  Grand  T.  R.R.  Co.,  48  N.  H.  455. 

(■")  Hammer  v.  Schoenfelder,  47  Wis.  455. 

C)  L.  R.  3  C.  P.  499- 


238  CONSEQUENTIAL.  DAMAGES.  §   165. 

of  a  mill  at  Vancouver's  Island,  were  delivered  to  the 
defendant's  servants  at  Glasgow  for  transportation  to  that 
place,  and  the  defendant  knew  generally  of  what  the 
shipment  consisted,  but  did  not  know  for  what  purpose 
it  was  intended.  The  measure  of  damages  for  the  loss 
of  one  of  the  cases  was  held  to  be  the  cost  of  replacing 
the  missing  articles  at  the  Island,  the  plaintiff  having 
been  obliged  to  send  to  England  for  it,  as  none  similar 
could  be  procured  at  Vancouver's  Island.  It  was  further 
held  that  the  plaintiff  could  recover  interest  on  the 
amount  for  the  delay  in  sending  to  England,  but  not 
profits  he  might  have  made  if  the  mill  had  been  erected. 
The  rule  of  Hadley  v.  Baxendale  was  distinctly  affirmed 
on  the  ground  that  some  limitation  must  be  put  on  a 
defendant's  liability,  and  that  seemed  the  most  proper 
limitation.  Willes,  J.,  also  pointed  out  that  the  dam- 
ages claimed  here  were  speculative  in  the  extreme.  As 
to  the  effect  of  notice  of  the  object  of  the  contract,  he 
said  (p.  509):  "  To  my  mind,  that  leads  to  the  inevitable 
conclusion  that  the  mere  fact  of  knowledge  cannot  in- 
crease the  liability.  The  knowledge  must  be  brought 
home  to  the  party  sought  to  be  charged,  under  such  cir- 
cumstances that  he  must  know  that  the  person  he  con- 
tracts with  reasonably  believes  that  he  accepts  the  con- 
tract with  the  special  condition  attached  to  it." 

In  Hydraulic  E.  Co.  v.  M'Haffie  (*)  it  appeared  that 
the  defendant  had  failed  to  carry  out  a  contract  to  de- 
liver a  piece  of  machinery.  The  plaintiffs  required  this 
machinery  in  order  to  carry  out  a  contract  with  one  J. 
The  contract  with  J.,  though  made  subsequently  to  the 
contract  with  the  defendant,  was  the  subject  of  a  con- 
versation between  the  parties  before  they  entered  into 
any  agreement.     It  was  held  in  the  Court  of  Appeal, 

(°)  4  Q.  B.  Div.  670. 


§   1 66.      NOTICE   OF   A   SPECIAL   USE   FOR   MATERIAL.        239 

that  the  plaintiff  could  recover  the  profits  he  would  have 
derived  from  his  contract  with  J.,  and  also  the  expenses 
to  which  he  had  been  put  in  making  part  of  an  engine 
for  J.,  which  had  been  thrown  away. 

§  166.  Notice  of  a  special  use  for  material. — In  Gee  v. 
Lancashire  &  Yorkshire  Ry.  Co.jC)  the  plaintiffs,  who 
were  cotton  spinners,  having  rented  a  new  mill  which 
was  in  readiness  to  begin  working,  and  engaged  a  num- 
ber of  hands  for  it,  caused  to  be  delivered  to  the  defend- 
ants, to  be  carried  from  Liverpool  to  Oldham,  some  bales 
of  cotton,  which  were,  through  the  negligence  of  the 
carriers,  delayed  in  the  deliyery  for  some  days  beyond  the 
usual  time.  In  consequence  of  the  delay,  the  plaintiffs 
having  no  other  cotton  to  work  with,  the  mill  was  kept 
idle,  and  the  work-people  were  unemployed.  The  neces- 
sity of  cotton  to  enable  the  plaintiff  to  work  this  mill 
was  not  communicated  to  the  defendants  at  the  time  of 
its  delivery  for  freight,  but  was  so  communicated  imme- 
diately on  its  non-arrival  at  the  proper  time,  after  which 
there  was  still  an  unreasonable  delay  in  the  delivery  on 
the  part  of  the  carrier.  The  county  judge  had  charged 
that  the  plaintiff  could  recover  as  legal  damage  such  loss 
as  arose  from  the  stoppage  of  the  mill,  and  that  the  jury 
should  give  the  amount  of  wages  and  other  actual  loss. 
This  was  held  to  be  error.  The  court  said  that  the  stop- 
page of  the  mill  was  not  a  necessary  consequence  of  the 
non-delivery  of  the  cotton,  for  the  fact  that  the  plaintiff 
had  no  other  cotton  was  the  more  immediate  cause. 
Pollock,  C.  B.,  thought  that  the  company  could  not  be 
held  liable,  unless  it  had  special  notice  of  the  object  of 
the  contract  at  the  time  of  sending  the  goods.  Bram- 
well,  B.,  pointed  out  that  the  decision  was  not  to  the 
effect  that  the  plaintiff  could  not,  in  any  event,  recover  the 

(»)6H.  &N.  211. 


240  CONSEQUENTIAL   DAMAGES.  §   1 67. 

wages  and  the  loss  of  profit.  He  said  that  they  could,  if 
it  were  the  custom  for  mills  to  have  so  little  supply  of 
cotton  on  hand,  and  that  therefore  it  should  have  been 
left  to  the  jury  to  say  whether  the  stoppage  was  the  nat- 
ural consequence  of  the  non-delivery. 

In  Jones  v.  National  Printing  Co.('')  the  defendant 
contracted  to  furnish  paper  of  a  peculiar  size  at  a  certain 
day.  The  defendant  was  told  that  if  the  paper  was  not 
furnished  the  presses  would  stand  idle.  As  a  matter  of 
fact  the  plaintiff  was  under  contract  with  a  third  party  to 
do  certain  printing,  for  which  the  paper  ordered  of  the 
defendant  was  required  ;  but  the  defendant  was  not  noti- 
fied of  the  latter  contract.  The  delivery  of  the  paper 
was  delayed,  and  the  plaintiff  was  required  to  do  extra 
night  presswork  in  order  to  fulfil  his  contract  for  print- 
ing. It  was  held  that  the  plaintiff  might  recover  com- 
pensation for  his  presses  remaining  idle  during  the  period 
of  delay,  but  not  for  the  expense  of  the  night  presswork. 
In  Vickery  v.  McCormick  C")  the  defendant  agreed  to- 
deliver  timber  to  be  used  for  special  work,  and  had  notice 
that  delay  in  delivery  would  stop  the  work.  In  an  action 
for  delay  in  delivery,  it  was  held  that  the  plaintiff  miglit 
recover  compensation  for  his  loss  through  stoppage  of 
the  work. 

§  167.  Notice  of  special  use  for  premises. — The  rental 
value  of  a  building  w^ill  be  the  measure  of  damages  in  an 
action  for  delay  in  delivering  possession  ;  but  if  the  con- 
tract be  to  furnish  a  building  for  a  particular  purpose, 
the  rental  value  of  a  building  used  in  that  way  will  be  the 
measure  of  damages.  (°)  Townsendz/.  Nickerson  Wharf 
Co.C^)  was  an  action  by  a  lessee  against  his  lessor  for 


(»)  13  Daly  92.  0  "7  '"^d.  594, 

(»)  Hexter  v.  Knox,  63  N.  Y.  561.  C)  "7  Mass.  501. 


§  l68.      NOTICE  OF  SPECIAL  USE  FOR  INFORMATION.  241 

failure  to  deliver  all  the  demised  premises.  The  plaintiff 
had  entered  upon  part  of  the  premises,  and  had  paid  the 
rent  in  full  for  the  whole  term.  It.  was  held  that  the 
plaintiff  could  only  recover  the  diminished  value  of  the 
lease  from  its  not  giving  him  all  the  premises ;  that  he  could 
not  recover  for  expenses  put  on  the  building,  nor  for 
injury  to  his  business  on  account  of  the  fact  that  the  lease 
was  only  of  use  to  him  if  he  had  the  whole  building.  The 
court  said,  however,  that  if  the  lessor  had  special  notice 
of  the  lessee's  object  in  hiring  the  premises,  the  plain- 
tiff could  have  recovered  the  damage  to  his  business. 
The  defendant  failed  to  perform  his  contract  to  build 
a  building  for  the  plaintiff  to  store  his  corn  in.  The 
plaintiff  was  allowed  compensation  for  loss  of  his  corn, 
caused  by  lack  of  shelter  for  it.(*) 

§  168.  Notice  of  special  use  for  funds. — In  Grindle  v. 
Eastern  Express  Co.C*)  the  defendant,  a  common  carrier, 
neglected  to  deliver  in  time  some  money  which  was  to 
pay  the  premium  on  an  endowment  policy.  The  policy 
consequently  lapsed.  The  defendant  had  notice  of  the 
object  for  which  the  money  was  intended.  It  was  held 
that  the  plaintiff  could  recover  the  value  of  the  policy 
when  it  lapsed,  for  although  the  loss  of  the  money  would 
generally  only  have  made  the  defendant  liable  for  that, 
yet  where  he  was  "  reasonably  informed  "  of  the  purpose, 
his  liability  would  be  increased, 

§  169.  Notice  of  special  use  for  information. — In  Sanders 
V.  Stuart(°)  the  defendant's  business  was  to  collect  tele- 
graphic messages  for  transmission  to  America.  The 
plaintiff  gave  the  defendant  a  message  in  cipher,  which  he 
negligently  failed  to  send.     The  message  was  an  order 


(•)  Haven  v.  Wakefield,  39  111.  509. 

C)  67  Me.  317.  C)  I  C.  P.  D.  326. 

Vol.  L— 16 


242  CONSEQUENTIAL   DAMAGES.  §   1 69, 

for  goods  on  which  the  plaintiff  would  have  made  a  com- 
mission. It  was  held  that  the  plaintiff  could  not  recover 
the  commission  ;  h.e  could  only  recover  nominal  damages, 
Coleridge,  C.  J.,  said  that  there  were  no  damages  which 
were  in  the  contemplation  of  the  parties.  He  continued  : 
"  And  for  the  same  reason,  viz.  :  the  total  ignorance  of 
the  defendant  as  to  the  subject-matter  of  the  contract 
(an  ignorance  known  to,  and,  indeed,  intentionally  pro- 
cured by  the  plaintiff),  the  first  portion  of  the  rule  ap- 
plies also,"  for,  he  said,  there  were  no  damages  arising 
naturally  from  the  breach. 

In  Baldwin  v.  The  United  States  Telegraph  Co.(*) 
the  plaintiff  had  received  an  o/der  by  telegram  for  his 
interest  in  an  oil  well.  He  at  once  telegraphed,  by  de- 
fendant's and  a  connecting  company,  to  an  agent,  inquir- 
ing how  much  the  well  was  producing,  telling  the  opera- 
tor of  the  connecting  company  that  he  would  sell  his 
interest  unless  he  received  an  answer  promptly.  The  de- 
livery of  the  message  was  delayed  by  defendant's  careless- 
'  ness.  The  plaintiff  accordingly  sold  his  interest.  Very 
soon  afterward  he  received  a  message  from  his  agent,  in- 
forming him  that  the  interest  was  much  more  valuable 
than  the  price  for  which  he  had  sold  it,  and  offering  him 
$1,200  more  than  he  had  received  from  the  sale.  The 
market  price  was  found  to  be  even  greater  than  this. 
On  the  trial  he  recovered  $1,200  damages,  but  on  appeal 
this  was  held  to  be  error.  Allen,  J.,  delivering  the  opin- 
ion of  the  court,  adopted  the  rule  of  Hadley  v.  Bax- 
endale.  As  to  this  message,  he  said  it  indicated 
nothing  which  would  lead  parties  to  expect  any  spe- 
cial or  peculiar  loss.  "  Wiienever  special  or  extra- 
ordinary damages,  such  as  would  not  naturally  or 
ordinarily    follow    a    breach,    have   been   awarded    for 

(•)  45  N.  Y.  744. 


§   169.       NOTICE  OF  SPECIAL  USE  FOR  INFORMATION.  243 

the  non-performance  of  contracts,  ....  it  has  been 
for  the  reason  that  the  contracts  have  been  made  with 
reference  to  peculiar  circumstances  known  to  both,  and 
the  particular  loss  has  been  in  the  contemplation  of  both, 
at  the  time  of  making  the  contract,  as  a  contingency  that 
might  follow  the  non-performance.  In  other  words,  the 
damages  given  by  way  of  indemnity  have  been  the  nat- 
ural and  necessary  consequences  of  the  breach  of  con- 
tract in  the  minds  of  the  parties."  He  suggest- 
ed (")  that  it  was  doubtful  whether  in  any  view  such 
damages  could  be  allowed  as  a  result  of  the  non-de- 
livery, saying,  "  They  are  quite  too  remote,  and  depend 
upon  too  many  contingencies  ";  that  if  the  message  had 
been  received,  the  agent  might  not  have  answered  ;  if  he 
had,  it  was  doubtful  what  he  would  have  answered  ;  the 
answer  might  not  have  been  received.  Western  Union 
Tel.  Co.  V.  Graham  Q)  was  an  action  for  failure  to  deliver 
a  telegram  instructing  the  plaintiff's  correspondents  in 
Nebraska  City  to  "  ship  oil  as  soon  as  possible  at  the 
very  best  rates  you  can."  It  was  held  that  the  plaintiff 
could  recover  what  he  paid  for  the  transmission  of  the 
message  and  the  increased  price  of  freight  on  the  oil, 
but  not  profits  that  he  might  have  made  on  the  oil  if 
the  message  had  been  delivered  and  the  oil  sent  in  time. 
It  would  be  more  in  accordance  with  common-law  doc- 
trines to  give  damages  in  such  a  case,  for  the  natural 
consequence  of  the  failure  to  deliver  the  message  is  that 
the  plaintiff  has  not  the  oil  at  the  market  price  current 
when  the  message  should  have  been  received.  Damages 
were  given  in  such  a  case  in  Maine  ("')  in  an  action  for 
failure  to  send  a  message  accepting  an  offer  to  sell  the 


(•)  P.  752.  C)  '  Col.  230. 

(°)  True  V.  International  T.  Co.,  60  Me.  9. 


244  CONSEQUENTIAL   DAMAGES.  §   1 69. 

plaintiffs  some  corn.  The  message  was,  "  Ship  cargo 
named  at  ninety  if  you  can  secure  freight  at  ten."  It  was 
held  that  the  measure  of  damages  was  the  difference  be- 
tween the  price  named  and  that  which  the  plaintiff  would 
have  been  obliged  to  pay  at  the  same  place,  in  order  by 
due  and  reasonable  diligence,  after  notice  of  the  failure 
of  the  telegram,  to  purchase  the  like  quantity  and  quality 
of  the  same  species  of  merchandise. 


CHAPTER  V. 


CERTAIN    AND    UNCERTAIN    DAMAGES. 


§  170.  Amount  of  loss  must  be  shown 
with  reasonable  certainty. 

171.  Best  proof  possible  must  be 

given. 

172.  Prospective  loss— Personal  in- 

jury. 

Gain  prevented — Profits. 

Allowance  of  profits,  how  regu- 
lated. 

Early  cases. 

Profits  recoverable  if  proximate, 
natural,  and  certain. 

General  rule. 

Cases  of  entire  loss  do  not  fall 
within  the  rule. 

Gain  expected  from  the  use  of 
money. 

Loss  through  injury  to  ca- 
pacity to  labor. 

181.  Personal    injury    resulting   in 

loss  of  business. 

182.  Profits  of  an  established  busi- 

ness. 
Of  a  new  business. 
Damages  for  obstnicting  the 

use  of  land. 
Failure  to  give  possession  of 

real  estate. 


173- 
174- 

175- 
176. 

177. 
178. 

179. 

180. 


183. 
184. 

185. 


put  a  structure  on 
of  a    road    or 


i  186.  Failure  to 
land. 

187.  Loss    of  use 

bridge. 

188.  Damages  for   wrongful  evic- 

tion. 

189.  Loss  of  the  use  of  business 

premises. 

190.  Injury  to  machinery. 

191.  Injury  to  crop. 

192.  Profits  of  a  contract. 

193.  Contracts  for  a  share  in  the 

profits  of  a  business. 

194.  Collateral  profits. 

195.  Loss  of  use  of  personal  prop- 

erty. 

196.  Loss  of  use  of  a  vessel. 

197.  Profits  expected  from  the  sale 

of  goods. 

198.  Profits  included  in  the  mar- 

ket price. 

199.  Profits     expected     from     the 

manufacture    of    raw    ma- 
terial. 

200.  From  competition  or  specula- 

tion. 


§  170.  Amount  of  loss  must  be  shown  with  reasonable 
certainty. — A  party  who  claims  compensation  for  an  in- 
jury done  him  must  show,  as  part  of  his  case,  not  only 
that  he  has  suffered  a  loss  on  account  of  the  injury,  but 
also  what  is  the  amount  of  the  loss ;  and  the  burden  of 
proving  both  these  things  is  upon  him.  He  is  to  show, 
with  that  reasonable  certainty  required  by  the  law,  just 

(245) 


246  CERTAIN   AND    UNCERTAIN   DAMAGES.  §   1 70. 

the  amount  of  damages  that  should  be  allowed  him  as 
compensation  :  no  damages  can  be  recovered  for  an  un- 
certain loss. 

"  It  must  not  be  supposed  that  under  the  principle  of] 
Hadley  v.  Baxendale  mere  speculative  profits,  such  as 
might  be  conjectured  to  have  been  the  probable  results 
of  an  adventure  which  was  defeated  by  the  breach  of  the 
contract  sued  on,  the  gains  from  which  are  entirely  con- 
jectural, with  respect  to  which  no  means  exist  of  ascer- 
taining, even  approximately,  the  probable  results,  can, 
under  any  circumstances,  be  brought  within  the  range  of 
damages  recoverable.  The  cardinal  principle  in  relation 
to  the  damages  to  be  compensated  for  on  the  breach  of 
a  contract,  that  the  plaintiff  must  establish  the  quantum 
of  his  loss,  by  evidence  from  which  the  jury  will  be  able 
to  estimate  the  extent  of  his  injury,  will  exclude  all  such 
elements  of  injury  as  are  incapable  of  being  ascertained 
by  the  usual  rules  of  evidence  to  a  reasonable  degree  of 
certainty."C) 

Absolute  certainty  is  not  required.  The  true  rule  on 
the  subject  is  announced  by  the  Supreme  Court  of 
Michigan  in  a  well-reasoned  case.(*)  "  Shall  the  injured 
party  ....  be  allowed  to  recover  no  damages  (or 
merely  nominal)  because  he  cannot  show  the  exact 
amount  with  certainty,  though  he  is  ready  to  show,  to 
the  satisfaction  of  the  jury,  that  he  has  suffered  large 
damages  by  the  injury  ?  Certainty,  it  is  true,  would  bej 
thus  attained ;  but  it  would  be  the  certainty  of  injus- 
tice  Juries  are  allowed  to  act  upon  probable  and 

inferential,  as  well  as  direct  and  positive  proof.  And 
when,  from  the  nature  of  the  case,  the  amount  of  the 
damages  cannot  be  estimated  with  certainty,  or  only  a 

(•)  Depue,  J.,  in  Wolcott  v.  Mount,  36  N.  J.  L.  262,  271. 
C)  Christiancy,  J.,  in  Allison  v.  Chandler,  11  Mich.  542,  555. 


§171.         BEST   PROOF   POSSIBLE    MUST   BE   GIVEN.  247 

part  of  them  can  be  so  estimated,  we  can  see  no  objection 
to  placing  before  the  jury  all  the  facts  and  circumstances 
of  the  case,  having  any  tendency  to  show  damages,  or 
their  probable  amount ;  so  as  to  enable  them  to  make  the 
most  intelligible  and  probable  estimate  which  the  nature 
of  the  case  will  permit."  (")  In  Satchwell  v.  Williams,('') 
Phelps,  J.,  said  that  it  was  no  objection  that  the  de- 
fendant could  only  state  his  damage  proximately,  though 
it  would  be  to  show  that  his  evidence  was  so  vague  and 
uncertain  that  the  court  could  not  deduce  from  it,  that 
the  defendant  had  sustained  any  particular  amount  of 
damage. 

§  171.  Best  proof  possible  must  be  given. — But  on  the 
other  hand  where  the  amount  of  damage  is  susceptible 
of  proof,  proof  must  be  offered.  In  Duke  v.  Missouri 
P.  Ry.  Co.,(°)  an  action  for  personal  injuries,  nothing 
had  been  paid  by  the  plaintiff  on  account  of  medical  ex- 
penses, and  no  evidence  was  offered  as  to  the  value  of 
the  services  rendered.  The  court  said :  "  When  such 
damages  are  susceptible  of  proof  with  approximate  ac- 
curacy, and  may  be  measured  with  some  degree  of  cer- 
tainty, they  should  not  be  left  to  the  guess  of  the  jury, 
even  in  actions  ex  delicto.''  In  a  similar  case  in  New 
York,(*)  where  the  plaintiff  failed  to  prove  the  value  of 
the  time  lost,  the  court  said  :  "  Where  loss  is  pecuniary 
and  is  present  and  actual  and  can  be  measured,  but  no 
evidence  is  given  showing  its  extent  or  from  which  it 
can  be  inferred,  the  jury  can  allow  nominal  damages 
only.     For  pain  and  suffering  or  injuries  to  the  feelings 


(»)  See  ace.  East  Tennessee,  V.  &  G.  R.R.  Co.  v.  Staub,'  7  Lea  397. 

(•>)  40  Conn.  371. 

(«)  99  Mo.  347,  351- 

(^)  Leeds  v.  Metropolitan  G.  L.  Co.,  90  N.  Y.  26 ;  Danforth  and  Tracy, 

JJ.,  diss. 


248  CERTAIN    AND    UNCERTAIN    DAMAGES,  §   1 72. 

there  can  be  no  measure  of  compensation  save  the  arbi- 
trary judgment  of  a  jury.  But  that  is  a  rule  of  necessity. 
Where  actual  pecuniary  damages  are  sought  some  evi- 
dence must  be  given  showing  their  existence  and  extent. 
If  that  is  not  done  the  jury  cannot  indulge  in  an  arbi- 
trary estimate  of  their  own."  But  in  Feeney  v.  Long 
Island  R.R.  Co.,(*)  where  the  number  of  times  a  physi- 
cian had  visited  the  plaintiff  was  shown,  but  not  the  value 
of  his  services,  it  was  held  that  the  jury  must  give  at 
least  a  nominal  amount  on  account  of  medical  expenses, 
and  if  no  instruction  was  asked  by  the  defendant  on  the 
subject  the  latter  could  not  object  to  a  reasonable  amount 
found  by  the  jury  on  account  of  medical  expenses. 

§  172.  Prospective  loss — Personal  injury. — Where  the 
injury  is  in  the  nature  of  a  loss  inflicted,  the  amount  may 
generally  be  proved  without  any  uncertainty.  The  chief 
difficulty  experienced  is  in  cases  of  prospective  loss. 
When  the  plaintiff  claims  compensation  for  consequences 
of  the  injury  which  he  has  not  yet  experienced,  he  must 
prove  with  reasonable  certainty  that  such  consequences 
are  to  happen  ;  (^)  and  compensation  is  not  to  be  given 
where  there  is  a  mere  conjectural  probability  of  future 
loss.(°)  The  jury  has  no  right  to  allow  damages  for 
mere  possibilities.  ('') 

"  Future  consequences,  which  are  reasonably  to  be  expected 
to  follow  an  injury,  may  be  given  in  evidence  for  the  purpose  of 
enhancing  the  damages  to  be  awarded.  But  to  entitle  such  ap- 
prehended consequences  to  be  considered  by  the  jury,  they 
must  be  such  as  in  the  ordinary  course  of  nature  are  reasonably 


(»)  n6  N.  Y.  375. 

O  De  Costa  v.  Massachusetts  F.  W.  &  M.  Co.,  17  Cal.  613 ;  Fry  v.  Du- 
buque &  S.  Ry.  Co.,  45  la.  416  ;  Lincoln  v.  Saratoga  &  S.  R.R.  Co.,  23 
V^end.  425  ;  Staal  v.  Grand  St.  &  N.  R.R.  Co.,  107  N.  Y.  625. 

(")  Chicago  C.  Ry.  Co.  v.  Henrj-,  62  111.  142. 

(^)  Fry  V.  Dubuque  &  S.  Ry.  Co.,  45  la.  416. 


§   172.  PROSPECTIVE    LOSS. 


249 


certain  to  ensue.  Consequences  which  are  contingent,  specula- 
tive, or  merely  possible,  are  not  proper  to  be  considered  in  as- 
certaining the  damages To  entitle  a  plaintiff  to  recover 

present  damages  for  apprehended  future  consequences,  there 
must  be  such  a  degree  of  probability  of  their  occurring,  as 
amounts  to  a  reasonable  certainty  that  they  will  result  from  the 
original  injury.'^*) 

So  in  an  action  on  the  case  against  a  railroad  company, 
for  injuries  resulting  from  a  collision,  the  plaintiff  proved 
that  his  leg  was  broken,  and  that  the  oblique  character 
of  the  fracture  rendered  it  very  probable  that  a  second 
fracture  would  take  place ;  but  this  the  Supreme  Court 
of  New  York  held  too  remote.  The  present  and  proba- 
ble future  condition  of  the  limb  were  proper  matters  for 
inquiry  ;  but  the  consequences  of  a  hypothetical  second 
fracture  were  obviously  beyond  the  range  of  it,  and  cal- 
culated to  draw  the  minds  of  the  jury  into  fanciful  con- 
jectures. (^) 

This  "  reasonable  certainty "  does  not  mean  absolute 
certainty,  but  reasonable  probability. (")  Where  no 
evidence  appeared  as  to  the  circumstances  and  condi- 
tion in  life  of  the  plaintiff,  his  earning  power,  skill  or 
capacity,  no  damages  could  be  awarded  for  future  pecuni- 
ary loss.('')  But  the  fact  and  amount  of  future  loss 
is  a  question  for  the  jury,(®)  which  has  discretion  in 
estimating  it.(')  The  value  of  loss  of  future  support  and 
earning  capacity  can  be  estimated  in  a  statutory  action 


C)  Rapallo,  J.,  in  Strohm  v.  New  York,  L.  E.  &  W.  R.R.  Co.,  96  N.  Y. 

30s.  306- 
(T>)  Lincoln  v.  Saratoga  &  S.  R.R.  Co.,  23  Wend.  425. 

C)  Griswold  V.  New  York  C.  &  H.  R.  R.R.  Co.,  115  N.  Y.  61  (explaining 
Strohm  v.  Ry.  Co.) ;  Feeney  v.  Long  Island  R.R.  Co.,  1 16  N.  Y.  375. 
<^)  Staal  V.  Grand  St.  &  N.  R.R.  Co.,  107  N.  Y.  627. 
(')  Colby  V.  Wiscasset,  61  Me.  304. 
0  Union  P.  Ry.  Co.  v.  Dunden,  37  Kas.  i. 


250  CERTAIN  AND  UNCERTAIN  DAMAGES.       §§173,174. 

for  causing  death  of  a  husband,  (")  parent, C")  or  child.  (°) 
It  is,  however,  held  in  actions  for  defamation  that  pros- 
pective damages  for  injury  to  reputation  cannot  be  re- 
covered, ('')  for  the  verdict  heals  the  reputation.  ("') 

§  173.  Gain  prevented— Profits.— Where  an  injured  party- 
claims  compensation  for  gain  prevented,  the  amount  of 
loss  is  always  to  some  extent  conjectural ;  for  there  is 
no  way  of  proving  that  what  might  have  been,  would 
have  been.  Thus,  when  the  claim  is  made  for  compen- 
sation for  a  deprivation  of  property,  it  may  be  that  if 
the  property  had  remained  in  the  owner's  control  it 
would  have  brought  no  gain.  When  the  compensation 
claimed  is  for  loss  of  earnings  through  a  personal  injury, 
it  might  have  been  impossible  for  the  injured  party,  if 
uninjured,  to  earn  anything.  The  question  of  certainty 
of  loss,  therefore,  arises  in  all  cases  of  gain  prevented 
(the  lucrum  cessans  of  the  civil  law).  The  word  profits 
is  often  loosely  used  in  the  sense  of  gain  prevented ; 
and  this  use  of  the  word  has  caused  confusion  in  the 
cases.  Much  would  be  gained  by  restricting  the  use  of 
the  word  to  the  gains  of  business  ventures  ;  but  so  firmly 
fixed  is  the  looser  use  that  both  meanings  are  to  be 
borne  in  mind.  In  speaking  of  profits  as  damages  a  court 
may  mean  either  the  wages  a  man  could  earn,  the  rent 
or  value  of  use  of  property,  the  advantages  of  a  contract, 
or  the  true  profits  of  a  business. 

§  174.  Allowance  of  profits,  how  regulated. — The  allow- 
ance of  profits,  when    not  excluded  as  unnatural  or  re- 

C)  Lawson  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  64  Wis.  447. 

C")  Eames  v.  Brattleboro,  54  Vt.  471. 

if)  Houghkirlc  v.  Delaware  &  H.  C.  Co.,  92  N.  Y.  219;  Hoppe  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  61  Wis.  357 ;  Johnson  v.  Chicago  &  N.  W.  Ry.  Co.,  64 
Wis.  425. 

(^)  Bradley  v.  Cramer,  66  Wis.  257. 

(")  Halstead  v.  Nelson,  24  Hun  395. 


§   175-  EARLY   CASES.  25 1 

mote,  is  wholly  a  question  of  the  certainty  of  proof. 
Wherever  there  is  an  interference  with,  or  withholding 
of  property,  or  breach  of  contract,  or  commission  of  a 
tort,  the  gain  prevented,  if  provable,  may  be  recovered. 
As  a  general  rule,  the  expected  profits  of  a  business  can 
not  be  proved  and  therefore  cannot  be  recovered.  They 
might  have  been  made,  and  they  might  not.  Instead  of 
profits  there  might  have  been  losses.  Hence  in  such 
cases  the  measure  of  damages  is,  not  the  expected  profits, 
but  the  average  value  of  the  use  of  the  land,  property,  or 
business,  and  to  ascertain  this,  evidence  of  actual  past 
profits  must  be  admissible.  This  bears  a  close  analogy 
to  the  ordinary  rule  with  regard  to  money.  Expected 
profits  from  the  use  of  money  can  never  be  recovered. 
The  measure  of  damages  is  the  average  value  of  the  use, 
or  in  other  words,  interest.  Going  a  step  further,  we  shall 
find  that  whenever  expected  profits  become  capable  of 
certain  proof,  then  they  can  be  recovered. 

Thus  in  all  actions  for  breach  of  contract  in  which  the 
value  of  a  sub-contract  is  allowed,  and  in  all  actions 
against  carriers  for  the  loss  of  specific  pe'rsonal  property 
when  the  market  value  at  the  time  and  place  of  destina- 
tion is  given,  and  in  all  actions  by  the  vendee  for  failure 
to  deliver  property  sold,  where  the  difference  between 
price  and  market  value  is  allowed,  the  plaintiff  really 
recovers  the  specific  profit  lost,  or  gain  prevented.  In 
cases  in  which  the  plaintiff  does  not  recover  gain  pre- 
vented or  profits,  or  the  value  of  the  use,  he  should  be  al- 
lowed at  all  events  the  expenses  to  which  he  has  been 
put  by  the  tort  of  breach  of  contract. 

§  175.  Early  cases.— *  The  early  cases,  in  both  the  Eng-  / 
lish  and  American  courts,  generally  concurred  in  deny- 
ing profits  as  any  part  of  the  damages  to  be  compensated, 
and  that,  whether  in  cases  of  contract  or  of  tort.     So  in  a 


252  CERTAIN  AND  UNCERTAIN  DAMAGES.  §   1 75. 

case  of  illegal  capture,  Mr.  Justice  Story  rejected  the 
I  item  of  profits  on  the  voyage,  and  held  this  general  lan- 
guage :  "  Independent,  however,  of  all  authority,  I  am 
satisfied  upon  principle  that  an  allowance  of  damages 
>"  upon  the  basis  of  a  calculation  of  profits  is  inadmissible. 
The  rule  would  be  in  the  highest  degree  unfavorable  to 
the  interests  of  the  community.  The  subject  would  be 
involved  in  utter  uncertainty.  The  calculation  would 
proceed  upon  contingencies,  and  would  require  a  knowl- 
edge of  foreign  markets  to  an  exactness,  in  point  of  time 
and  value,  which  would  sometimes  present  embarrassing 
obstacles.  Much  would  depend  upon  the  length  of  the 
voyage  and  the  season  of  the  arrival,  much  upon  the 
vigilance  and  activity  of  the  master,  and  much  upon  the 
momentary,  demand.  After  all,  it  would  be  a  calculation 
upon  conjecture,  and  not  upon  facts.  Such  a  rule, 
therefore,  has  been  rejected  by  courts  of  law  in  ordinary 
cases ;  and  instead  of  deciding  upon  the  gains  or  losses 
of  parties  in  particular  cases,  an  uniform  interest  has  been 
applied  as  the  measure  of  damages  for  the  detention  of 
property."' 

So  where  a  privateer  had  improperly  detained  a  mer- 
chant vessel,  and  taken  out  her  crew,  in  consequence  of 
which  she  was  lost, — it  was  held  by  the  Supreme  Court 
of  the  United  States,  that  the  owners  of  the  privateer 
were  liable  only  for  the  value  of  the  vessel,  the  prime 
cost  of  the  cargo,  with  all  charges,  and  the  premium  of 
insurance.'' 

So  in  the  same  court,  where  a  privateer  had  improp- 
erly boarded  a  vessel  and  taken  away  her  papers,  in  con- 
sequence of  which  her  voyage  was  broken  up,  it  was  held 
that  the  owners  were  not  liable  for  the  loss  of  profits  on 

'  The  Schooner  Lively,  i  Gall.  315,        '  The  Anna  Maria,  2  Wheat.  327. 
325- 


§   175'  EARLY    CASES. 


253 


the  intended  voyage,  nor  for  loss  by  deterioration  of  the 
cargo  which  was  not  caused  by  the  improper  conduct  of 
the  captors,  and  it  was  said  :  "The  prime  cost  or  value 
of  the  property  lost  at  the  time  of  the  loss,  and,  in  case 
of  injury,  the  diminution  in  value  by  reason  of  the  in- 
jury, with  interest  upon  such  valuation,  afford  the  true 
measure  of  damages.  This  rule  may  not  secure  a  com- 
plete indemnity  for  all  possible  injuries ;  but  it  has  cer- 
tainly a  general  applicability  to  recommend  it,  and  in 
almost  all  cases  will  give  a  fair  and  just  recompense." 
The  suit  was  against  the  owners,  who  were  constructively 
liable;  and  it  was  admitted  "that  if  it  had  been  against 
the  original  wrong-doers,  it  might  be  proper  to  go  yet 
further,  and  visit  upon  them,  in  the  shape  of  exemplary 
damages,  the  proper  punishment  which  belongs  to  law- 
less misconduct."'  And  in  a  similar  case,' the  same  prin- 
ciple was  applied  to  a  claim  for  damages  for  loss  of  a 
market. 

So  in  Massachusetts,  in  an  action  of  trespass  against 
a  deputy  sheriff,  for  taking  a  schooner  of  the  plaintiff 
under  an  attachment  against  a  third  party,  there  being 
some  evidence  that  she  was  preparing  for  a  voyage,  and 
there  being  no  malice  on  the  part  of  the  defendant,  the 
jury  were  instructed  to  estimate  her  value  at  the  time  of 
taking,  and  "the  additional  damage  sustained,  if  any." 
But  it  was  held  by  the  Supreme  Court,  that  this  would 
not  justify  the  jury  in  assessing  damages  for  the  break- 
ing up  of  the  voyage,' 

So  in  a  case  of  collision  between  vessels,  it  has  been  ^ 
held  that  the  owner  of  the  injured  vessel  cannot  recover 
for  profits  on  the  voyage  broken  up  by  the  accident.    In 
such  a  case  the  Supreme  Court  of  the  United  States 

'  The  Amiable  Nancy,  3  Wheat.  546.        '  Boyd  v.  Brown,  17  Pick.  453. 
2  La  Amistad  de  Rues,  5  Wheat.  385. 


254  CERTAIN    AND    UNCERTAIN    DAMAGES.  §  1 75. 

said  :  "  It  has  been  repeatedly  decided  in  cases  of  insur- 
ance, that  the  insured  cannot  recover  for  the  loss  of 
probable  profits  at  the  port  of  destination,  and  that  the 
value  of  the  goods  at  the  place  of  shipment  is  the  meas- 
ure of  compensation.  There  can  be  no  good  reason  for 
establishing  a  diiferent  rule  in  cases  of  loss  by  collision. 
It  is  the  actual  damage  sustained  by  the  party  «/  the  time 
and  place  of  injury  that  is  the  measure  of  damages."'  ** 
These  cases  were  at  one  time  cited  as  of  general  au- 
thority in  cases  involving  the  allowance  of  profits.  But 
they  probably  should  not  be  so  considered.  With  the 
exception  of  the  Massachusetts  case,  where  profits  were 
properly  disallowed  as  conjectural,  they  are  cases  where 
a  voyage  was  interrupted,  and  the  court  refused  to  allow 
expected  profits  upon  the  cargo.  The  loss  having  oc- 
curred on  the  high  seas,  the  value  of  the  cargo  at  that 
place  was  taken  ;  and  as  the  most  certain  basis  of  value, 
the  prime  cost  was  shown,  and  the  freight  and  charges 
added  to  it.(")  Moreover,  at  that  time  every  mercantile 
voyage  was  more  or  less  a  speculative  venture,  and  hence 
profits  were  as  a  matter  of  fact  conjectural,where  through 
the  introduction  of  steam  and  the  telegraph,  they  have 
now  become  almost  a  matter  of  certainty.  The  preced- 
ing cases  are  therefore  not  to  be  regarded  as  authorities 
upon  the  allowance  of  profits  generally. 

'  Smith  V.  Condry,  1  How.  28;  ace.  distant  point,  their  value  at  the  place 
Minor  v.  Steamboat  Picayune  No.  2,  of  delivery  is  the  true  criterion ;  if  on 
13  La.  Ann.  564.  In  the  original  text  -a  contract  for  the  sale  of  chattels,  the 
of  this  work,  the  author  said  of  these  market  price  on  the  day  fixed  for  de- 
cases  :  "It  may  well  be  doubted  livery  is  the  true  measure  of  damage, 
whether  the  language  of  some  of  the  it  is  difficult  to  assign  a  reason  why  the 
earlier  American  cases  which  I  have  same  rule  should  not  be  applied  to  the 
cited  has  not  pushed  the  rule  beyond  breaking  up  of  a  voyage  actually  com- 
the  true  line.  The  analogies  of  the  menced,  nor  why  the  victim  of  an 
law  have  certainly  not  been  regarded,  illegal  capture  should  be  limited  to  the 
If  on  a  contract  to  deliver  goods  at  a  prime  cost  of  his  cargo." 


(")  See  the  chapters  on  Insurance  and  Torts  in  Admiralty. 


§  176.   PROFITS  RECOVERABLE  IF  PROXIMATE,  ETC.   255 

§  176.  Profits  recoverable  if  proximate,  natural,  and  cer- 
tain.— The  plaintiff,  then,  may  in  all  proper  cases  show  a 
gain  prevented  as  a  ground  for  compensation.  It  must, 
of  course,  as  has  been  seen  in  the  last  chapter,  be  a  nat- 
ural and  proximate  consequence  of  the  injury ;  it  must 
also,  as  will  be  seen  in  this  chapter,  be  a  certain  conse- 
quence of  the  injury.  But  if  a  plaintiff  is  not  allowed 
to  recover  compensation  for  a  gain  prevented,  it  must  be 
either  because  the  failure  to  realize  the  gain  is  too  re- 
mote and  unlooked-for  a  consequence  of  the  injury,  or 
because  it  is  uncertain  whether  the  gain  would  have  been 
realized ;  and  not  because  the  gain  was  in  the  nature  of 
an  expected  profit. 

In  the  leading  case  on  the  subject,^)  Selden,  J.,  said 
of  the  supposed  rule  that  profits  could  not  be  a  basis  for 
recovery : 

"  It  is  not  a  primary  rule,  but  is  a  mere  deduction  from  that 
more  general  and  fundamental  rule  which  requires  that  the 
damages  claimed  should  in  all  cases  be  shown,  by  clear  and 
satisfactory  evidence,  to  have  been  actually  sustained.  It  is  a 
well-established  rule  of  the  common  law,  that  the  damages  to  be 
recovered  for  a  breach  of  contract  must  be  shown  with  certainty, 
and  not  left  to  speculation  or  conjecture  ;  and  it  is  under  this 
rule  that  profits  are  excluded  from  the  estimate  of  damages  in 
such  cases,  and  not  because  there  is  anything  in  their  nature 
which  should  per  se  prevent  their  allowance.  Profits  which-  would 
certainly  have  been  realized  but  for  the  defendant's  default,  are 
recoverable  ;  those  which  are  speculative  and  contingent  are 
not." 

He  cited,  as  instances  of  profits  being  allowed,  cases 
where  a  common  carrier  or  a  vendor  fails  to'  deliver 
goods,  in  which  case  their  market  value  at  the  place  of 
delivery  determines  the  damages,  though  that  is  an  allow- 
ance of  profits.     He  again  said  (p.  492): 


(»)  Griffin  v.  Colver,  16  N.  Y.  489,  491. 


256  CERTAIN    AND    UNCERTAIN    DAMAGES.  §  1 77. 

"  Indeed,  it  is  clear  that  whenever  profits  are  rejected  as 
an  item  of  damages,  it.  is  because  they  are  subject  to  too  many 
contingencies,  and  are  too  dependent  upon  the  fluctuations  of 
markets  and  the  chances  of  business  to  constitute  a  safe  cri- 
terion for  an  estimate  of  damages." 

And  a  few  pages  later  (p.  494): 

"The  broad,  general  rule  in  such  cases  is,  that  the  party 
injured  is  entitled  to  recover  all  his  damages,  including  gains 
prevented  as  well  as  losses  sustained  ;  and  this  rule  is  subject 
to  but  two  conditions :  the  damages  must  be  such  as  may 
fairly  be  supposed  to  have  entered  into  the  contemplation  of 
the  parties  when  they  made  the  contract,  that  is,  must  be  such 
as  might  naturally  be  expected  to  follow  its  violation ;  and  they 
must  be  certain,  both  in  their  nature  and  in  respect  to  the  cause 
from  which  they  proceed." 

In  Brigham  v.  Carlisle  (*)  the  court  said  :  "  Profits  are 
not  excluded  from  recovery  because  they  are  profits ; 
but,  when  excluded,  it  is  on  the  ground  that  there  are  no 
criteria  by  which  to  estimate  the  amount  with  the  cer- 
tainty on  which  the  adjudications  of  courts,  and  the  find- 
ings of  juries,  should  be  based." 

§  177.  General  rule. — The  general  rule  is,  then,  that  a 
plaintiff  may  recover  compensation  for  any  gain  which 
he  can  make  it  appear  with  reasonable  certainty  the  de- 
fendant's wrongful  act  prevented  him  from  acquiring ; 
subject,  of  course,  to  the  general  principles  as  to  remote- 
ness, compensation,  etc.,  already  stated.  His  compensa- 
tion will  be  measured  by  the  most  liberal  scale  which  he 
can  show  to  be  a  proper  one.  Damages  for  interruption 
of  the  business  of  a  manufacturer,  for  instance,  may  be 
measured  either  by  the  rental  value  of  the  property  kept 
unproductive,  or  by  profits  of  manufacture  lost  if  the 
plaintiff  can  show  that  they  would  have  been  greater  than 
the  rental  value.     The  questions  that  arise  in  the  cases 

(•)  78  Ala.  243,  249,  per  Clopton,  J. 


§  178.    CASES  OF  ENTIRE  LOSS  NOT  WITHIN  THE  RULE.     257 

are  therefore  questions  of  sufficiency  of  proof,  and  it  is 
to  be  expected  that  the  courts  will  not  in  all  cases  agree 
in  their  interpretation  of  facts  ;  but  the  decisions  show, 
under  the  circumstances,  a  surprising  degree  of  harmony. 

§  178.  Cases  of  entire  loss  do  not  fall  within  the  rule. — It 
is  important  to  observe  that  actions  brought  for  the  im- 
mediate destruction  of  property  do  not  involve  any  ques- 
tion of  gain  prevented.  If  compensation  is  asked  for 
destruction,  that  is,  for  the  whole  value  of  the  property, 
it  is  upon  the  theory  that  the  plaintiff's  entire  interest  in 
the  property  ceased  at  the  time  of  the  injury,  and  was  re- 
placed by  a  right  to  have  the  value  of  the  property  in 
money.  Since,  therefore,  the  plaintiff  no  longer  has  title 
to  the  property,  he  can  no  longer  claim  that  he  might 
make  a  future  gain  from  it ;  and  his  recovery  is  lim- 
ited to  the  value  of  the  property  at  the  time  and 
place  of  destruction,  with  interest.(*)  If  the  injury  does 
not  extinguish  the  plaintiff's  title,  he  has  a  right  to  com- 
pensation for  the  loss  of  any  use  he  might  rightfully 
make  of  the  property,  subject  to  the  other  general  prin- 
ciples of  the  law  of  damages.  The  probable  aggregate 
value  of  such  uses,  that  is,  the  gain  prevented,  is  there- 
fore a  subject  for  compensation  only  when  the  injury 
leaves  the  title  to  the  thing  injured  in  the  plaintiff. 

A  misapprehension  of  the  true  distinction  has  led  to  a 
few  decisions  that  must  be  pointed  out  as  unsound. 
Thus,  in  an  action  on  a  contract  to  build  a  steamboat, 
vi^here  the  breach  was  delay  in  delivering  the  vessel,  the 
court  allowed  interest  on  the  value  of  the  vessel  at  the 
time  and  place  it  should  have  been  delivered,  from  that 
time  until  the  delivery  actually  took  place.(^)  '  Where 
through  a  defect  a  boiler  manufactured  by  the  defendant 

(')  McKnight  v.  Ratcliff,  44  Pa.  156  ;  Erie  C.  L  W.  v.  Barber,  106  Pa.  123. 
O  Taylor  -v.  Maguire,  12  Mo.  313. 
Vol.  L— 17 


258  CERTAIN   AND   UNCERTAIN   DAMAGES.  §  1 79. 

exploded  and  injured  the  plaintiffs  mill,  it  was  held  that 
interest  on  the  money  expended  in  repairs  (that  is,  on  the 
loss  sustained)  was  all  that  could  be  recovered  on  account 
of  gains  prevented.  (") 

An  example  of  the  proper  application  of  this  principle 
is  found  in  a  Wisconsin  case.  A  machine  was  destroyed 
in  transit.  The  owner  was  allowed  to  recover  the  value 
of  the  machine ;  but  no  compensation  for  being  out  of 
the  use  of  it,  which  he  would  have  had  if  the  action  had 
been  for  delay  in  delivery.C")  So  where  the  plaintiff's 
horse  was  drowned  in  consequence  of  a  collision  of  canal 
boats,  it  was  held  wrong  to  allow,  besides  the  value  of 
the  horse  and  interest  on  that  value,  the  expense  of  hiring 
another  horse  to  tow  the  plaintiff's  boat  to  its  place  of 
destination.(°)  But  although  in  this  class  of  actions  the 
value  of  property  destroyed,  with  interest  for  the  time 
the  owner  was  deprived  of  it,  will  compensate  him  for  the 
loss  if  no  special  or  extraordinary  damage  occurred,  yet 
if  the  injury  not  only  caused  a  loss  of  property,  but  also 
other  proximate  loss,  further  compensation  should  be 
given  to  that  extent. 

§  179.  Gain  expected  from  the  use  of  money. — Where 
an  injury  consists  of  a  deprivation  of  money,  the  com- 
pensation established  by  the  business  practice  of  many 
generations  is  the  current  rate  of  interest ;  and  such  is 
the  measure  of  damages  adopted  by  the  law.  The  prof- 
its which  might  have  been  made  by  the  use  of  the  money 
are  too  conjectural  to  be  considered. 

In  an  action  for  the  non-payment  of  money,  in  which 
the  plaintiffs  claimed  damages  for  profits  they  expected 


(»)  Erie  C.  I.  W.  V.  Barber,  102  Pa.  156;  but  on  a  later  consideration  of 
the  same  case,  damages  for  loss  of  use  were  allowed ;  106  Pa.  125. 
0>)  Thomas  B.  &  W.  M.  Co.  v.  Wabash,  St.  L.  &  P.  Ry.  Co.,  62  Wis.  642. 
if)  Edwards  v.  Beebe,  48  Barb.  106. 


§  l8o.    LOSS  THROUGH  INJURY  TO  CAPACITY  TO  LABOR.    259 

to  realize  from  the  use  of  the  money,  the  Supreme  Court 
of  Massachusetts  said  :  (")  "  In  the  use  of  money,  instead 
of  realizing  great  profits,  they  [the  plaintiffs]  might  have 
encountered  difficulties  and  sustained  injuries  unforeseen 
at  the  time,  and  have  suffered,  like  thousands  of  others. 
Theirs  is  not  a  loss,  in  the  just  sense  of  the  term,  but  the 
deprivation  of  an  opportunity  for  making  money,  which 
might  have  proved  beneficial,  or  might  have  been  ruin- 
ous ;  and  it  is  of  that  uncertain  character,  which  is  not  to 
be  weighed  in  the  even  balances  of  the  law,  nor  to  be  as- 
certained by  well-established  rules  of  computation  among 
merchants." 

The  principles  governing  the  allowance  of  interest  as 
damages  for  non-payment  of  money  will  be  considered 
later.  C) 

§  180.  Loss  through  injury  to  capacity  to  labor. — When 
a  person  is  so  injured  as  to  interrupt  his  earnings,  he  is 
entitled  to  recover  compensation  for  his  loss  of  time  ;  (") 

(•)  Greene  7/.  Goddard,  9  Met.  212,  232,  per  Hubbard,  J.         Q')  Chapter  X. 

(")  Phillips 7/.  Southwestern  Ry.  Co.,  4  Q.  B.  D.  406 ;  Wade  v.  Leroy,  20  How. 
34;  Carpenter  v.  Mexican  N.  R.R.  Co.,  39  Fed.  Rep.  315  ;  South  &  N.  A, 
R.R.  Co.  V.  McLendon,  63  Ala.  266 ;  Larmoni/.  District,  16  D.  C.  (5  Mackey) 
330;  Pierce  v.  Millay,  44  111.  189;  Chicago  &  A.  R.R.  Co.  v.  Wilson,  63  III. 
167  ;  Chicago  v.  Jones,  66  111.  349;  Chicago  w.  Langlass,66  111.  361 ;  Chicago 
■v.  Elzeman,  71  111.  131 ;  Sheridan  v.  Hibbard,  119  111.  307  ;  Joliet  v.  Conway, 
119  111.  489;  Indianapolis  v.  Gaston,  58  Ind.  224;  McKinleyw.  Chicago*  N. 
W.  Ry.  Co.,  44  la.  314 ;  Stafford  v.  Oskaloosa,  64  la.  251 ;  Tefft  v.  Wilcox,  6 
Kas.  46 ;  Kansas  P.  Ry.  Co.  v.  Pointer,  9  Kas.  620 ;  Missouri,  K.  &  T.  Ry. 
Co.  V.  Weaver,  16  Kas.  456 ;  Kentucky  C.  R.R.  Co.  v.  Ackley,  87  Ky.  278 ; 
Rutherford  w.  Shreveport  &  H.  R.R.  Co.,  41  La.  Ann.  793  ;  Jordan  v.  Mid- 
dlesex R.R.  Co.,  138  Mass.  425  ;  Memphis  &  C.  R.R.  Co.  v.  Whitfield,  44 
Miss.  466;  Stephens  w.  Hannibal  &  S.  J.  R.R.  Co.,  96  Mo.  207  ;  Cohen  v. 
Eureka  &  P.  R.R.  Co.,  14  Nev.  376 ;  Sheehan  v.  Edgar,  58  N.  Y.  631 ;  Clif- 
ford V.  Dam,  44  N.  Y.  Super.  Ct.  391 ;  Brignoli  v.  Chicago  &  G.  E.  Ry.  Co., 
4  Daly  182  ;  Wallace  v.  Western  N.  C.  R.R.  Co.,  104  N.  C.  442 ;  Oliver  v. 
Northern  P.  T.  Co.,  3  Ore^  84;  Pennsylvania  &  O.  C.  Co.  v.  Graham,  63  Pa, 
290;  Scott  V.  Montgomery,  95  Pa.  444;  Lake  Shore  &  M.  S.  Ry.  Co.  v. 
Frantz,  127  Pa.  297;  Houston  &  T.  C.  Ry.  Co.  v.  Boehm,  57  Tex.  152; 
Goodno  V.  Oshkosh,  28  Wis.  300. 


26o  CERTAIN   AND    UNCERTAIN    DAMAGES.  §  l8o. 

that  is,  for  the  income  which  he  would  have  received 
from  his  labor  during  the  time  lost.  The  safest  way 
of  estimating  the  loss,  adopted  in  ordinary  cases,  is  to 
give  him  the  market  value  of  his  labor ;  that  is,  the 
average  earnings  of  such  a  person  expressed  in  wages  or 
salary.  If  the  plaintiff  is  an  ordinary  workman,  whose 
labor  has  an  established  value  in  the  market,  he  may  re- 
cover for  loss  of  opportunity  to  labor  the  amount  a  work- 
man in  his  line  of  employment  would  have  received.  (*) 
So  in  a  suit  for  freedom  a  negro  has  been  held  entitled  to 
recover  damages  in  the  nature  of  hire  for  the  period  of 
the  restraint.(^) 

In  a  very  large  class  of  cases  the  earnings  of  the  in- 
jured party  have  depended  entirely  on  his  individual  abili- 
ties, as  in  the  case  of  professional  men  and  teachers, 
and  travelling  salesmen  who  are  paid  by  a  percentage  on 
their  sales.  In  the  case  of  most  professional  men,  there 
can  be  no  way  of  fixing  a  general  scale  of  remuneration. 
The  exclusive  services  of  such  men  cannot  be  measured 
by  any  pecuniary  scale  common  to  a  whole  class.  The 
most  trustworthy  basis  of  damages  in  such  a  case  is  the 
amount  which  the  injured  party  has  earned  in  the  past. 
This  is,  however,  only  evidence,  from  which  the  jury 
will  be  enabled  to  say  what  the  services  of  such  a  mari 
as  the  plaintiff  are  worth,  and  the  jury  should  distinctly 
understand  that  it  is  not  to  be  taken  as  the  necessary 
and  legal  measure  of  damages. (")     In  an  action  for  in- 


(»)  Alabama  G.  S.  R.R.  Co.  v.  Yarbrough,  83  Ala.  238 ;  Bridger  v.  Ashe- 
ville  &  S.  R.R.  Co.,  27  S.  C.  456. 

C")  Moore  v.  Minerva,  17  Tex.  20. 

if)  We  give  a  few  examples — Actor :  Ware  v.  Welch,  32  Mich.  77.  Arch- 
itect: New  Jersey  Ex.  Co.  v.  Nichols,  33  N.  .J.  L.  434.  Clergyman: 
Parshall  v.  M.  &  St.  L.  Ry.  Co.,  35  Fed. Rep.  649.  Dentist:  Nash 7/.  Sharpe, 
19  Hun  365.  Lawyer-  Walker  w.  Erie  Ry.  Co.,  63  Barb.  260.  Midwife: 
Luck  V.  Ripon,  52  Wis.  196.     Music  teacher  :  Baker  7/.  Manh.  Ry.  Co.,  54 


§  l8o.    LOSS  THROUGH  INJURY  TO  CAPACITY  TO  LABOR.    26 1 

jury  by  collision,  (")  it  was  Held  that  evidence  was  admis- 
sible that  the  plaintiff's  business  was  dealing  in  land,  and 
also  of  the  value  of  his  business  and  the  profits  arising 
from  it.  The  court  below  had  charged  that  the  plaintiff 
could  recover  profits  which  might  reasonably  be  antici- 
pated, but  if  the  business  was  uncertain  and  speculative, 
and  not  attended  with  any  reasonable  certainty  of  profits, 
that  none  could  be  recovered.  This  charge  was  approved 
on  appeal. 

Since  the  recovery  in  this  case  is  measured  not  by  the 
value  of  any  contract  or  contracts  lost,  but  by  the  value 
of  the  services  of  such  a  person  as  the  plaintiff,  it  is  not 
material  whether  or  not  the  plaintiff  is  entitled,  as  a  mat- 
ter of  law,  to  such  payment.  The  question  is  one  not  of 
legal  right  to  the  earnings,  but  of  the  customary  receipt 
of  them.  Thus  a  physician,  paid  by  fees  which  are  re- 
garded as  honoraria,  may  recover  compensation  for  in- 
terruption of  his  professional  labor.C)  A  physician  or 
midwife  who,  not  having  received  a  diploma  from  a 
regular  medical  college,  cannot  sue  for  a  fee,  may  re- 
cover for  interruption  of  professional  labor.  (°)  But  one 
who  is  forbidden  by  law  to  practice, — for  instance,  an 
unlicensed  midwife, — can  recover  nothing.C^) 


N.Y. Super.  Ct.  394.  Physician:  Phillips  v.  London  &  S.  W.  Ry.  Co.,  5 
C.  P.  Div.  280;  Indianapolis  v.  Gaston,  58  Ind.  224;  Logansport  v.  Jus- 
tice, 74  Ind.  378 ;  Holmes  v.  Halde,  74  Me.  28 ;  Metcalf  v.  Baker,  57  N.  Y. 
662  ;  McNamara  v.  Clintonville,  62  Wis.  207.  "  Professional  man  "  :  Col- 
lins V.  Dodge,  37  Minn.  503.  School  teacher :  Bloomington  v.  Chamberlain, 
104  111.  268.  The  dictum  of  Grover,  J.,  in  Masterton  v.  Mt.  Vernon,  58  N.  Y. 
391,  is  in  conflict  with  the  current  of  authorities. 

(")  Pennsylvania  R.R.  Co.  v.  Dale,  76  Pa.  47. 

C)  Phillips  V.  London  &  S.  W.  Ry.  Co.,  5  C.  P.  Div.  280. 

(")  Holmes  v.  Halde,  74  Me.  28;  Luck  v.  Ripon,  52  Wis.  196;  McNa- 
mara V.  Clintonville,  62  Wis.  207. 

f)  Jacques  v.  Bridgeport  H.  R.R.  Co.,  41  Conn.  61  ;  Chicago  W.  D.  Ry. 
Co.  V.  Lambert,  119  111.  255. 


262  CERTAIN   AND    UNCERTAIN    DAMAGES.  §  l8l. 

The  amount  of  recovery  is  not  necessarily  based  on 
the  plaintiff's  earnings  at  the  time  of  the  injury.  Thus 
an  unskilled  engineer,  who  was  learning  his  profession, 
may  recover  compensation  based  on  the  probable  skill  he 
would  have  acquired  if  the  defendant  had  not  put  it  out 
of  his  power  to  attend  to  his  work.('')  And  one  not  en- 
gaged in  business  at  the  time  of  the  injury  may  recover 
compensation  for  being  prevented  in  future  from  engag- 
ing in  business  in  which  he  might  reasonably  expect  suc- 
cess, though  he  was  not  entirely  certain  of  it.(*) 

§  i8i.  Personal  injury  resulting  in  loss  of  business. — Cases 
have  already  been  examined  where  a  personal  injury  re- 
sults in  a  loss  of  the  professional  income  of  the  plaintiff, 
which  is,  in  a  sense,  a  loss  of  the  profits  of  a  business. 
In  many  cases,  where  the  injured  party  was  at  the  head 
of  an  ordinary  mercantile  business,  compensation  is 
claimed  for  the  loss  of  the  profits  of  such  business.  In 
such  a  case  the  profits  of  the  business  would  consist  of 
three  items :  interest  on  the  capital  employed,  the  value 
of  the  personal  services  of  the  plaintiff,  and  the  value  of 
the  good-will  of  the  business.  The  first  item  would  not 
be  affected  by  the  injury  ;  the  third  might,  if  the  personal 
exertions  of  the  plaintiff  had  been  the  cause  of  the  suc- 
cess of  the  business,  but  this  would  not  be  a  result  natu- 
rally to  be  expected  from  a  personal  injury,  and  would 
therefore  be  excluded,  apart  from  any  question  as  to  the 
certainty  of  this  item  of  the  profits.  The  value  of  the 
plaintiff's  personal  services  would  therefore  alone  be  left 
as  fixing  the  amount  to  be  recovered,  and  such  value  is 
to  be  estimated  upon  the  principles  just  stated.  It  is 
well  settled,  therefore,  that  even  if  a  personal  injury 
results  in  a  loss  of  profits  of  the  plaintiff's  business,  no 

(»)  Howard  Oil  Co.  v.  Davis,  76  Tex  630. 
(')  Fisher  7/.  Jansen,  128  111.  549. 


§   l8l,        INJURY    RESULTING   IN    LOSS   OF    BUSINESS.         263 


O 


cornpensation  can  be  recovered  on  account  of  such  loss 
of  profits ;  the  recovery  is  limited  to  the  value  of  the 
plaintiff's  lost  time.('') 

So  in  Masterton  v.  Mount  Vernon  C")  it  was  held  error 
to  allow  evidence  of  the  profits  of  the  plaintiff,  as  a  tea 
merchant,  for  several  years  previous,  to  be  given  as  evi- 
dence of  the  loss  sustained,  by  showing  the  falling-ofif  in 
the  year  after  the  accident,  in  consequence  of  the  injury. 
The  plaintiff  had  testified  that  he  was  engaged  in  the  tea- 
importing  business,  buying  and  selling  teas ;  that  it  was 
his  duty  to  buy  the  teas  for  the  firm,  but  that  in  conse- 
quence of  the  injury  he  could  not  make  purchases,  and 
there  was  a  great  falling-ofif  in  the  business.  Grover,  J., 
said  :  "  Where,  in  such  a  case,  the  plaintiff  has  received 
a  fixed  compensation  for  his  services,  or  his  earnings  can 
be  shown  with  reasonable  certainty,  the  proof  is  compe- 
tent  In    none  of   these  cases  is  any  intimation 

given  that  proof  may  be  given  as  to  the  uncertain  future 
profits  of  commercial  business ;  or,  that  the  amount  of 
past  profits  derived  therefrom  may  be  shown  to  enable 
the  jury  to  conjecture  what  the  future  might  probably  be. 
These  profits  depend  upon  too  many  contingencies,  and 
are  altogether  too  uncertain  to  furnish  any  safe  guide  in 
fixing  the  amount  of  damages."  He  continued  :  "  But  the 
profits  of  importing  and  selling  teas  are  still  more  uncer- 
tain. In  some  years  they  may  be  large,  and  in  others 
attended  with  loss.  The  plaintiff  had  the  right  to  prove 
the  business  in  which  he  was  engaged,  its  extent,  and  the 
particular  part  transacted  by  him,  and,  if  he  could,  the 
compensation  usually  paid  to  persons  doing  such  business 
for  others.     These  are  circumstances  the  jury  have   a 


(")  Marks  v.  Long  Island  R.R.  Co.,  14  Daly  61  ;  Bierbach  v.  Goodyear  R. 
Co.,  54  Wis.  208. 
C)  58  N.  Y.  391. 


264  CERTAIN    AND    UNCERTAIN    DAMAGES.  §  1 82. 

right  to  consider  in  fixing  the  value  of  his  time.  But 
they  ought  not  to  be  permitted  to  speculate  as  to  uncer- 
tain profits  of  commercial  ventures,  in  which  the  plain- 
tiff, if  uninjured,  would  have  been  engaged."  It  is  to  be 
noticed  that  a  decision  on  this  point  was  unnecessary,  as 
the  case  went  off  on  other  grounds.  The  principle  here 
intimated,  that  a  plaintiff  should  not  necessarily  recover 
as  the  value  of  his  time,  what  it  had  been  worth  in  the 
past,  is  established. 

§  182.  Profits  of  an  established  business. — Where  it 
clearly  appears  that  the  defendant  has  interrupted  an  es- 
tablished business  from  which  the  plaintiff  expected  to 
realize  profits,  the  plaintiff  should  recover  compensation 
for  whatever  profit  he  makes  it  reasonably  certain  he 
would  have  realized.  Here  as  elsewhere  the  question  is 
one  of  fact :  whether  the  profit  can  be  proved  with  rea- 
sonable certainty.(*)   In  an  Illinois  case  the  court  said  :(^) 

"  We  all  know  that  in  many,  if  not  all,  professions  and  callings, 

(")  Lancashire  &  Y.  Ry.  Co.  v.  Gidlow,  L.  R.  7  H.  L.  517;  Simpson  v. 
London  &  N.  W.  Ry.  Co.,  i  Q.  B.  D.  274;  Gunter  v.  Aster,  4  Moore  12  ;  In- 
gram V.  Lawson,  6  Bing.  N.  C.  212  ;  Llewellyn' 2/.  Rutherford,  L.  R.  10  C. 
P.  456 ;  Sonneborn  v.  Stewart,  2  Woods  599 ;  Selden  v.  Cashman,  20  Cal. 
56  ;  Lambert  v.  Haskell,  80  Cal.  611  ;  Sturgis  v.  Frost,  56  Ga.  188 ;  Smith 
V.  Eubanks,  72  Ga.  280  ;  Stewart  v.  Lanier  H.  Co.,  75  Ga.  582  ;  Chapman  v. 
Kirby,  49  111.  211;  Lawrence  v.  Hagerman,  56  111.  68 ;  Dobbins  v.  Duquid,  65 
111.464;  Smith  V.  Wunderlich,  70  111.  426;  Terra  Haute  v.  Hudnut,  112 
Ind.  542 ;  Pettit  v.  Mercer,  8  B.  Mon.  51 ;  Dennery  v.  Bisa,  6  La.  Ann.  365  ; 
Moore  v.  Schultz,  31  Md.  418 ;  Shafer  v.  Wilson,  44  Md.  268 ;  Lawson  7/, 
Price,  45  Md.  123  ;  White  v.  Moseley,  8  Pick.  356;  French  v.  Connecticut 
R.  L.  Co.,  145  Mass.  261  ;  Chandler  v.  Allison,  10  Mich.  460 ;  Allison  v. 
Chandler,  1 1  Mich.  542 ;  Goebel  v.  Hough,  26  Minn.  252 ;  Gushing  v. 
Seymour,  30  Minn.  301 ;  Marqueze  v.  Sontheimer,  59  Miss.  430 ;  Holden  v. 
Lake  Co.,  53  N.  H.  552  ;  Luse  v.  Jones,  39  N.  J.  L.  707 ;  Lacour  v.  New 
York,  3  Duer  406  ;  St.  John  v.  New  York,  6  Duer  315  ;  Walter  v.  Post,  6 
Duer  363  ;  Alexander  v.  Jacoby,  23  Oh.  St.  358  ;  Wilier  v.  Ore.  Ry.  &  Nav. 
Co.,  15  Ore.  153;  Pennsylvania  R.R.  Co.  v.  Dale,  76  Pa.  47  ;  Simmons  v. 
Brown,  5  R.  I.  299;  Trafford  v.  Hubbard,  15  R.  I.  326;  Shepard  i/_ 
Milwaukee  Gas  Light  Co.,  15  Wis.  318. 

C)  Walker,  J.,  in  Chapman  v.  Kirby,  49  111.  211,  219. 


§   1 82.       PROFITS    OF   AN    ESTABLISHED    BUSINESS.  265 

years  of  effort,  skill  and  toil  are  necessary  to  establish  a  profita- 
ble business,  and  that  when  established  it  is  worth  more  than 
capital.  Can  it  then  be  said,  that  a  party  deprived  of  it  has  no 
remedy,  and  can  recover  nothing  for  its  loss,  when  produced  by 
another  ?  It  has  long  been  well-recognized  law,  tliat  when  de- 
.  prived  of  such  business  by  slander,  compensation  for  its  loss 
may  be  recovered  in  this  form  of  action.  And  why  not  for 
its  loss  by  this  more  direct  means  ?  And  of  what  does  this  loss 
consist,  but  the  profits  that  would  have  been  made  had  the  act 
not  been  performed  by  appellants  ?  And  to  measure  such 
damages,  the  jury  must  have  some  basis  for  an  estimate,  and 
what  more  reasonable  than  to  take  the  profits  for  a  reasonable 
period  next  preceding  the  time  when  the  injury  was  inflicted, 
leaving  the  other  party  to  show,  that  by  depression  in  trade,  or 
other  causes,  they  would  have  been  less  ?  Nor  can  we  expect 
that  in  actions  of  this  character,  the  precise  extent  of  the  dam- 
ages can  be  shown  by  demonstration.  By  this  means  they  can  be 
ascertained  with  a  reasonable  degree  of  certainty." 

Allison  V.  Chandler,  (*)  the  leading  case  on  this  sub- 
ject, was  a  case  where  the  defendant,  a  landlord,  wrong- 
fully ejected  the  plaintiff,  his  tenant,  from  premises 
where  he  was  established  as  a  jeweller.  In  an  able  opin- 
ion the  court  held  that  the  plaintiff  was  entitled  to 
damages  for  injury  to  his  business. 

The  defendant  broke  his  contract  not  to  compete  with 
the  plaintiff's  business.  It  was.  held  that  the  plaintiff 
might  recover  compensation  for  the  profit  he  had  lost,  to 
be  ascertained  by  comparing  the  amount  his  business 
actually  fell  short  of  what  he  might  have  done,  with  the 
business  done  by  the  defendant.('')  Where  the  injury  com- 
plained of  was,  that  the  defendants  had  invited  the 
plaintiff's  servants  to  dinner,  and  induced  them  to  leave 
him,  the  injurious  consequence  complained  of  was,  that 
the  plaintiff  had  lost  the  profits  of  the  sales  of  pianos 
for  two  years  ;  and  this  was  held  not  to  be  too  remote, 

(•)  II  Mich.  542.  C)  Peltz  v.  Eichele,  62  Mo.  171. 


266  CERTAIN    AND    UNCERTAIN    DAMAGES.  §  1 82. 

although  the  servants  were  not  hired  by  the  plaintiff  for 
any  definite  period,  but  worked  by  the  piece.  Rich- 
ardson, J.,  remarked  :  "The  measure  of  damages  he  is 
entitled  to  receive  from  the  defendants  is  not  necessarily 
to  be  confined  to  those  servants  he  might  have  in  his 
employ  at  the  time  they  were  so  enticed,  or  for  the  part 
of  the  day  on  which  they  absented  themselves  from  his 
service  ;  but  he  is  entitled  to  recover  damages  for  the 
loss  he  sustained  by  their  leaving  him  at  that  critical 
period."  ' 

The  defendant  raised  an  embankment,  by  which  he 
cut  off  the  plaintiff's  access  to  a  river.  The  plaintiff 
used  the  river  to  get  the  products  of  his  farm  to  market. 
It  was  held  that  he  could  recover  the  loss  of  profits  of 
his  farm  due  to  loss  of  marketC)  The  defendant  ob- 
structed a  river,  as  a  consequence  of  which  the  plaintiff 
lost  custom  at  his  hotel  on  the  bank.  It  was  held  that 
he  could  recover  compensation  for  the  diminution  in  his 
business  and  profits. C')  No  damages  can  be  recovered 
for  injury  to  an  unlawful  business,  such  as  gambling.  (") 

The  business  may  be  of  such  an  uncertain  nature  that 
its  profits  never  become  established.  For  instance,  where 
the  defendant  wrongfully  took  the  fixtures  from  the 
plaintiff's  premises,  which  the  plaintiff  let  from  time  to 
time  for  entertainments,  it  was  held  that  profits  expected 
were  too  speculative. (^)  Where  the  defendant  injured 
the  plaintiff's  fish-net,  it  was  held  that  the  business  of 
fishing  with  nets  was  too  uncertain  for  the  court  to 
make   any  allowance  for  loss  of   profits.  (®)      Where  a 

'  Gunter  v.  Astor,  4  Moore,  12. 

(')  Wilier  V.  Oregon  Ry.  &  N.  Co.,  15  Ore.  133. 

C)  French  v.  Connecticut  R.  L.  Co.,  145  Mass.  261. 

{')  Kauffman  v.  Babcock,  67  Tex.  241. 

{^)  Willis  V.  Branch,  94  N.  C.  142. 

(')  Wright  V.  Mulvaney,  46  N  W.  Rep.  1045  (Wis.). 


§  183.  OF   A   NEW    BUSINESS.  267 

river  boat  lost  a  trip  through  a  collision,  it  was  held 
that  the  profits  expected  from  the  return  trip  were  too 
conjectural  for  recovery. (*)  This  would  hardly  be  true 
in  the  ordinary  case.  It  was  held  in  North  Carolina 
that  where  the  plaintiff  had  been  in  the  business  of 
manufacturing  patented  machines  and  the  business  was 
broken  up,  he  could  recover  profits  only  so  far  as  he 
could  show  orders  for  machines ;  profits  based  on  his 
sales  for  the  year  before  were  too  uncertain.  C")  The 
decision  is  questionable.  It  might,  however,  be  sup- 
ported if  the  demand  for  the  machine,  being  a  patented 
one  and  so  presumably  novel,  were  ephemeral. 

§  183.  Of  a  new  business. — Where  the  plaintiff  was^ 
about  to  embark  on  a  new  business  venture,  which  was 
wrongfully  prevented  by  the  defendant,  he  can  recover 
nothing  on  account  of  the  expected  profits  :  for  there  is 
nothing  to  prove  that  a  profit  would  have  been  made.('') 
Where  the  defendant  fails  to  furnish  machinery  for  a 
new  use,  he  cannot  be  held  to  compensate  the  plaintiff 
for  the  profits  he  might  have  made.('^)  The  measure  of 
damages  is  the  ordinary  value  of  the  use  of  the  machine. 
So,  in  Cory  v.  Thames  I.  W.  &  S.  B.  Co.,(*)  the  plain- 
tiff intended  to  use  the  machine  ordered  for  a  novel  pur- 
pose, by  which  he  claimed  that  he  could  make  large 
profits ;  but  the  court  held  that  the  measure  of  damages 
was  the  value  of  the  use  of  the  machine  for  the  purpose 
it  was  ordinarily  used  for.  So  w^here  the  defendant  de- 
stroys a  building  in  course  of  erection  by  the  plaintiff, 

(•)  Hunt  V.  Hoboken  L.  I.  Co.,  3  E.  D.  Smith  144. 

C)  Jones  V.  Call,  96  N.  C.  337. 

(«)  Red  V.  Augusta,  25  Ga.  386 ;  Kenny  v.  Collier,  79  Ga.  743 ;  Green  v. 
Williams,  45  111.  206 ;  Hair  v.  Barnes,  26-  IlLApp.  580 ;  Morey  v.  Metropol- 
itan G.  L.  Co.,  38  N.  Y.  Super.  Ct.  185. 

C)  Coweta  F.  M.  Co.  v.  Rogers,  19  Ga.  416 ;  Crabbs  v.  Koontz,  69  Md.  59. 

(«)  L.  R.  3  Q.  B.  181. 


268  CERTAIN    AND    UNCERTAIN    DAMAGES.  §  1 84. 

prospective  profits  which  the  plaintiff  might  have  made 
by  renting  the  building  are  not  recoverable. (")  A  pub- 
lisher of  a  paper  who  merely  by  mistake  neglects  to 
insert  an  advertisement  of  the  sale  of  real  estate,  is  liable 
only  for  the  amount  paid  for  the  advertisement,  not  for 
speculative  damages.('')  In  an  action  of  replevin  for  a 
boat  which  was  taken  from  the  plaintiff  at  a  time  when 
he  was  about  to  use  it  in  getting  oats  from  a  stranded 
vessel,  the  profits  which  he  expected  in  that  way  to  gain 
cannot  be  considered.(°) 

§  184.  Damages  for  obstructing  the  use  of  land. — Where 
an  owner  of  land  is  wrongfully  prevented  from  occu- 
pying it,  the  measure  of  his  damages  is  the  value  of  the 
use  of  the  land, — that  is,  its  rental  value.  So  where 
the  plaintiff's  farming  land  was  wrongfully  overflowed 
by  the  defendant,  the  measure  of  damages  is  the  use 
of  the  land,  not  the  value  of  the  crops  that  might  have 
been  raised  on  it.('*)  But  since  the  rent  depends  upon 
the  nature  of  the  land,  that  may  be  shown ;  and  as  the 
net  profits  realized  from  the  use  of  it  afford  the  best 
indication  of  the  value  of  its  use,  they  may  be  shown  if 
they  can  be  proved  with  reasonable  certainty.  Thus 
where  the  defendant  by  a  malicious  and  unfounded  in- 
junction prevented  the  plaintiff  from  using  its  coal  lands 
for  a  year,  it  was  held  that  not  only  the  nature  and  ex- 
tent of  the  coal  beds,  but  also  the  profit  on  possible  sales 
of  coal,  might  be  shown,  "  not  in  order  to  be  allowed  by 
the  jury  as  profits,  but  to  be  treated  as  one  of  the  facts 
that  throw  light  upon  the  value  of  the  rights  taken."  (*) 


(")  Bingham  v.  Walla  Walla,  3  Wash.  68. 

C)  Eisenlohr  v.  Swain,  35  Pa.  107. 

(=)  Aber  v.  Bratton,  60  Mich.  357. 

(*)  Chicago  V.  Huenerbein,  85  111.  594. 

(')  Newark  Coal  Co.  v.  Upson,  40  Oh.  St.  17. 


§   185.    FAILURE  TO  GIVE  POSSESSION  OF  REAL  ESTATE.    269 

And  where  the  defendant,  by  wrongfully  blasting  in  the 
neighborhood  of  the  plaintiff's  factory,  caused  the  plain- 
tiff's workmen  to  leave  the  building  at  each  blast,  under 
a  reasonable  apprehension  of  danger,  it  was  held  that  the 
plaintiff  might  recover  the  value  to  him  of  the  time  thus 
lost ;  not  necessarily  measured  by  the  wages  paid.(*) 

§  185.  Failure  to  give  possession  of  real  estate. — Where 
a  lessor  fails  to  give  possession  of  the  leased  premises, 
the  measure  of  damages  is  the  difference  between  the 
actual  rental  value  and  the  rent  reserved.  The  rule  is 
the  same,  whether  the  leased  property  is  a  farm,('')  a 
dwelling-house  or  hotel,(°)  or  business  premises.^)  If, 
however,  the  premises  were  necessary  to  the  plaintiff 
for  carrying  on  an  established  business,  and  that  fact 
were  known  to  the  defendant  at  the  time  the  lease  was 
made,  the  plaintiff  might  on  principles  elsewhere  dis- 
cussed recover  further  damages.  The  measure  of  dam- 
ages would  be  the  difference  between  the  rent  and  the 
value  for  the  plaintiff's  business,  which  would  involve  an 
allowance  of  profits.(°)  If  the  business  were  a  new  one, 
since  there  could  be  no  basis  on  which  to  estimate  prof- 
its, the  plaintiff  must  be  content  to  recover  according  to 
the  general  rule.  The  profits  expected  from  a  singer's 
performance  are  not  certain  enough  to  be  recovered  in 

(')  Hunter  v.  Farren,  127  Mass.  481. 

C")  Snodgrass  v.  Reynolds,  79  Ala.  452  ;  Rose  v.  V^ynn,  42  Ark.  257  ; 
Olmstead  v.  Burke,  25  III.  86 ;  Robrecht  v.  Marling,  29  V^ .  Va."  765.  But 
contra,  Avan  v.  Frey,  69  Ind.  91  ;  where  the  court  allowed  the  plaintiff  to 
show  the  value  of  the  crops  that  could  have  been  raised  on  the  land  during 
the  period  of  the  lease,  "  with  a  view  to  laying  grounds  for  damages."  There 
was  no  argument  nor  citation  of  authorities. 

C)  Hexter  v.  Knox,  63  N.  Y.  561. 

C)  Townsend  v.  Nickerson  Wharf  Co.,  117  Mass.  501  ;  Giles  v.  OToole, 
4  Barb.  261  ;  Fondavila  v.  Jourgensen,  52  N.  Y.  Super.  Ct.  403. 

if)  Ward  V.  Smith,  11  Price  19 ;  Hexter  v.  Knox,  63  N.  Y.  561 ;  Poposkey 
V.  Munkwitz,  68  Wis.  322. 


270  CERTAIN    AND    UNCERTAIN    DAMAGES.  §  186. 

an  action  by  the  lessee  of  an  opera-house  against  the 
lessor  for  breach  of  a  contract  to  furnish  it  by  a  certain 
time  for  the  lessee's  use.C) 

§  186.  Failure  to  put  a  structure  on  land.-7-Where  the 
defendant  agreed  to  put  a  new  mill  on  the  plaintiff's 
land,  but  failed  to  do  so,  the  plaintiff  can  recover  nothing 
on  account  of  loss  of  profits. (*)  If  the  mill  was  built, 
but  the  completion  of  it  was  wrongfully  delayed,  rent  of 
the  mill  for  the  period  of  delay  may  be  recovered,  but 
not  expected  profits  from  the  use  of  it.('')  A  plaintiff 
cannot  recover  on  defendant's  failure  to  make  improve- 
ments on  a  lot,  the  profits  which  he  would  have  made  by 
erecting  a  distillery  on  the  lot,  as  he  intended  to  do.C) 
But  upon  failure  to  repair  an  established  mill  the  plain- 
tiff may  recover  the  profit  he  would  have  made  by  saw- 
ing the  logs  ready  for  manufacture  at  the  mill.C) 

In  a  case  where  the  defendant  attempted  to  recoup,  in 
an  action  on  a  building  contract,  the  rent  which  he  might 
have  obtained  from  the  store  if  it  had  been  finished  at 
the  agreed  time,  it  was  held  that  the  plaintiff  could  re- 
duce the  recovery  to  nominal  damages  by  showing  that 
the  building  if  finished  at  the  agreed  time  could  not  have 
been  rented. C^)  In  a  somewhat  similar  case  in  Michigan, 
where  a  mill  remained  idle  through  non-delivery  of  ma- 
chinery, Cooley,  J.,  went  further,  and  intimated  that  the 
plaintiff,  as  part  of  his  case,  should  show  that  the  mill 
might  have  been  rented,  or  else  he  should  be  allowed  to 
recover  no  damages.  (^)     The  latter  case  would  hardly  be 

(»)  Academy  of  Music  v.  Hackett,  2  Hilt.  217. 

C")  Jones  V.  Nathrop,  7  Col.  I. 

(")  Abbott  V.  Gatch,  13  Md.  314. 

(■•)  Hahn  v.  Horstman,  12  Bush  249. 

(')  Hinckley  v.  Beckwith,  13  Wis.  31. 

O  Wagner  v.  Corkhill,  40  Barb.  175. 

(«)  AUis  V.  McLean,  48  Mich.  428. 


>§§  187,  l88.        DAMAGES  FOR  WRONGFUL  EVICTION.  2/1 

followed  ;  and  even  the  former  case  seems  very  question- 
able. Rent  is  given,  not  as  specific  damage,  but  as  a 
fair  average  measure  of  compensation  for  interfering  with 
the  owner's  use  of  property :  and  no  inquiry  should  be 
permitted  as  to  the  likelihood  in  the  particular  case  of 
rent  having  been  obtained.  In  fact,  how  can  it  be 
proved  with  reasonable  certainty  that  rent  could  not 
have  been  obtained  ?  In  an  action  for  mesne  profits  the 
plaintiff  recovers  the  fair  rental  value,  irrespective  of  the 
actual  yield  or  income,  and  this  case  is  analogous.C) 

§  187.  Loss  of  use  of  a  road  or  bridge. — Where  the  de- 
fendant failed  to  complete  and  deliver  to  the  plaintiff  a 
line  of  railroad  at  the  agreed  time,  the  measure  of  dam- 
ages is  the  value  of  the  use  of  the  road  during  the  time 
of  delay.  Expected  profits  from  the  use  of  the  road 
cannot  be  recovered.(^)  The  defendant  failed  to  finish  a 
turnpike  at  the  time  prescribed  by  the  contract ;  in  an 
action  the  plaintiff  claimed  compensation  on  account  of 
the  loss  of  tolls  during  the  period  of  delay.  It  was  held, 
however,  that  the  loss  was  too  uncertain  and  conjectur- 
al. (°)  But  where  the  plaintifTs  toll-bridge,  which  had  been 
in  use  for  some  time,  was  carried  away,  through  the  fault 
of  the  defendants,  it  was  held  that  the  plaintiff  could  re- 
cover compensation  for  loss  of  the  tolls  during  the  time 
reasonably  necessary  to  rebuild. C^)  In  this  case,  the 
business  being  an  established  one,  the  profits  of  it  were 
not  conjectural. 

§  188.  Damages  for  wrongful  eviction. — Where  an  occu- 
pant of  real  estate  has  been  wrongfully  evicted,  the  gen- 


(•)  Campbell  v.  Brown,  2  Woods  349 ;  Boiling  v.  Lersner,  26  Gratt.  36. 
C")  Phillips  &  C.  C.  Co.  V.  Seymour,  91  U.  S.  646 ;  Hunt  v.  Oregon  P.  Ry. 
Co.,  36  Fed.  Rep.  481 ;  Snell  v.  Cottingham,  72  111.  161. 
(0  Western  G.  R.  Co.  v.  Cox,  39  Ind.  260. 
(")  Sewall's  F.  B.  Co.  v.  Fisk,  23  N.  H.  171. 


272  CERTAIN    AND    UNCERTAIN    DAMAGES.  §  1 88. 

eral  measure  of  damages  would  be  the  value  of  the  lease. 
In  a  case  in  Ohio,  the  defendant  had  agreed  to  make  to 
the  plaintiff,  for  the  term  of  ten  years,  a  lease  of  cer- 
tain lands  on  which  to  plant  and  cultivate  a  peach  or- 
chard. The  plaintiff  took  possession  of  the  land,  but  the 
defendant  failed  to  make  the  lease,  and  within  two  years 
from  the  time  of  the  plaintiff's  occupation  of  the  prem- 
ises caused  him  to  be  evicted.  Evidence  of  the  probable 
future  profits  of  the  land  was  held  incompetent  in  deter- 
mining the  plaintiff's  damages.  To  the  extent  that  they 
depended  on  the  loss  of  use  of  the  land,  its  market  value 
at  the  time  of  the  eviction,  subject  to  the  performance 
of  the  contract  on  the  plaintiflf's  part,  furnished  the  stand- 
ard of  their  assessment.  If  it  had  no  general  market 
value,  its  value  should  be  ascertained  from  the  opinions 
of  qualified  witnesses,  in  view  of  the  hazards  of  the  busi- 
ness. (*)  If,  however,  the  natural  result  of  the  eviction 
would  be  injury  to  an  established  business,  the  plaintiff 
should  also  recover  compensation  for  the  injury  to  his 
business. (*")  This  has  been  said  to  be  an  allowance  of 
compensation  for  the  good-will  of  the  premises.  (°)  If 
there  is  no  safe  criterion  by  which  to  estimate  profits,  no 
compensation  for  the  loss  of  them  can  be  recovered. 

Where  the  defendant  prevails  in  an  action  for  forcible 
entry  and  detainer,  and  is  allowed  by  the  statute  damages 
for  the  eviction,  it  is  doubtful  whether  he  can  in  any  case 
recover  more  than  the  value  of  the  property  taken  pos- 


(')  Rhodes  v.  Baird,  16  Oh.  St.  573. 

C")  Shaw  V.  Hoffman,  25  Mich.  163 ;  Seyfert  v.  Bean,  83  Pa.  450.  It  was 
held  in  Denison  v.  Ford,  10  Daly  412,  that  such  damages  could  not  be  re- 
covered ;  this  decision  must  be  rested  on  the  ground  of  remoteness,  not  of  un- 
certainty. In  Louisiana,  under  the  code,  there  can  be  no  recovery  of  profits 
in  such  cases  :  Redon  v.  Caffin,  1 1  La.  Ann.  695. 

(«)  Llewellyn  v.  Rutherford,  L.  R.  10  C.  P.  456. 


§   189.        LOSS  OF  THE  USE  OF  BUSINESS  PREMISES.  273 

session  of.C)  In  every  decided  case  of  the  sort,  how- 
ever, the  decision  has  been  rested  on  other  grounds,  and 
no  intimation  has  been  given  of.  the  court's  opinion  upon 
the  point. 

§  189.  Loss  of  the  use  of  business  premises. — When  the 
wrongful  act  of  the  defendant  deprives  the  plaintiff  of 
the  use  of  business  premises,  the  measure  of  damages 
would  ordinarily  be  ttie  value  of  the  use  of  the  premises, 
that  is,  their  rental  value. C')  If,  however,  the  business  is 
an  established  one,  and  the  interruption  of  business  not 
remote,  the  plaintiff  may  recover  the  value  of  the  use  of 
the  premises  to  him  in  his  business.  This  has  been  held 
in  an  action  for  direct  injury  to  business  premises.C)  for 
diversion  or  obstruction  of  water  from  a  mill,(^)  and  for 
destruction  of  a  mill  dam  (^)  or  failure  to  keep  it  in  re- 
pair. (^)  The  profits  previously  made  may  be  shown  in 
order  that  the  jury  may  estimate  the  value  of  such  use.(^) 
But  the  plaintiflF  cannot  recover  compensation  for  the  loss 
of  expected  specific  profits  ;  the  earning  of  such  profits  is 
too  conjectural,  and  depends  upon  too  many  contingen- 
cies.C")  In  a  Canadian  case,  an  action  for  detention  of  the 
plaintiffs  logs  by  the  defendant,  it  was  held  that  "  the  loss 
of  use  of  the  plaintiff's  mill  was  too  uncertain,  and  its  as- 
certainment too  much  dependent  on  contingencies  and 


C)  Howser  v.  Melcher,  40  Mich.  185 ;  Hayden  v.  Florence  S.  M.  Co.,  54 

N.  Y.  321. 

0)  Sinker  w.  Kidder,  123  Ind.  528. 

C)  Allison  V.  Chandler,  11  Mich.  542;  Schile  v.  Brokhahus,  80  N.  Y.  614. 

(■")  Gibson  v.  Fischer,  68  la.  29 ;  Woodin  v.  Wentworth,  57  Mich.  278 ; 
Colrick  V.  Swinburne.  105  N.  Y.  503  ;  PoUitt  v.  Long,  58  Barb.  20. 

(«)  White  V.  Moseley,  8  Pick.  356 ;  Simmons  v.  Brown,  5  R.  L  299. 

0  Winne  v.  Kelley,  34  la.  339 ;  Bostwick  v.  Losey,  67  Mich.  554. 

(e)  Crawford  v.  Parsons,  63  N.  H.  438. 

Cf)  Dodds  V.  Hakes,  1 14  N.  Y.  260  ;  Pollitt  v.  Long,  58  Barb.  20  ;  Cincin- 
nati V.  Evans,  5  Oh.  St.  594;  Marrin  v.  Graver,  8  Ont.  39. 
Vol.  L— 18 


274  CERTAIN    AND    UNCERTAIN    DAMAGES.  §  I90. 

conjectures,  and  too  remote."('')  The  true  ground  on 
which  to  rest  the  decision  seems  to  be  the  remoteness  and 
not  the  uncertainty  of  the  loss. 

§  190.  Injury  to  machinery. — When  machinery  is  not 
furnished  according  to  agreement,  or  is  wrongfully  in- 
jured, the  measure  of  damages  is  the  value  of  the  use  of 
it ;  and  if  the  natural  result  is  to  stop  the  mill,  the  value 
of  the  use  of  that  also.  This  is  not  an  allowance  of  the 
profits  which  in  the  particular  case  niight  have  been  made, 
but  of  the  average  sum,  represented  by  rent,  which  such 
property  is  worth.  Expected  profits,  in  such  a  case,  are  en- 
tirely too  contingent ;  but  rent  is  sufficiently  certain  to 
be  allowed.  The  distinction  is  well  shown  by  two  New 
York  cases,  in  the  first  of  which  profits  were  not,  and  in 
the  other  the  value  of  the  use  was,  allowed  to  be  recov- 
ered. The  first  case  was  an  action  brought  for  the  price 
of  a  steamboat.  The  defendant  showed  that  part  of  the 
machinery  was  unsound,  and  proved  other  imperfections 
by  which  considerable  delay  was  caused  ;  and  claimed  to 
deduct  from  the  contract  price  of  the  boat  not  only  the 
sum  necessary  to  remedy  the  actual  defects,  but  also  loss 
of  profits  upon  the  trips  that  might  have  been  run  during 
the  time  the  vessel  was  delayed  on  account  of  the  imper- 
fections in  the  construction,  having  proved  that  each  trip 
would  bring  one  hundred  dollars  net  profits.  But  it  was 
disallowed  ;  and  the  court,  citing  the  language  of  Pothier, 
said :  "  In  short,  it  will  be  seen  that  on  the  subject  in 
question  our  courts  are  more  and  more  falling  into  the 
track  of  the  civil  law." ' 

The  other  was  an  action  for  the  non-delivery  of  certain 
machinery  which  was  to  be  used  in  the  plaintiff's  mill. 
The  court  allowed  the  plaintiff  to  recover  not  only  the 

'  Blanchard  v.  Ely,  21  Wend.  342. 
(«;  Godard  v.  Fredericton  Boom  Co.,  6  All.  (N.  B.)  448. 


§   I90-  INJURY    TO   MACHINERY.  275 

value  of  the  machinery,  but  also  the  rent  which  might 
have  been  obtained  from  the  use  of  the  machinery.('') 
Selden,  J.,  delivering  the  opinion  of  the  court,  said  : 

"  Had  the  defendants,  in  the  case  of  Blanchard  v.  Ely,  taken 
the  ground  that  they  were  entitled  to  recoup,  not  the  uncertain 
and  contingent  profits  of  the  trips  lost,  but  such  sum  as  they 
could  have  realized  by  chartering  the  boat  for  those  trips,  I 
think  their  claim  must  have  been  sustained.  The  loss  of  the 
trips  which  had  certainly  occurred,  was  not  only  the  direct  but 
the  immediate  and  necessary  result  of  the  breach  of  the  plain- 
tiff's contract The  rent  of  a  mill  or  other  similar  prop- 
erty, the  price  which  should  be  paid  for  the  charter  of  a  steam- 
boat, or  the  use  of  machinery,  etc.,  etc.,  are  not  only  susceptible 
of  more  exact  and  definite  proof,  but  in  a  majority  of  cases  would, 
I  think,  be  found  to  be  a  more  accurate  measure  of  the  damages 
actually  sustained  in  the  class  of  cases  referred  to,  considering 
the  contingencies  and  hazards  attending  the  prosecution  of 
most  kinds  of  business,  than  any  estimate  of  anticipated  profits  ; 
just  as  the  ordinary  rate  of  interest  is  upon  the  whole  a  more 
accurate  measure  of  the  damages  sustained  in  consequence  of 
the  non-payment  of  a  debt  than  any  speculative  profit  which  the 
creditor  might  expect  to  realize  from  the  use  of  the  money.  It 
is  no  answer  to  this  to  say  that,  in  estimating  what  would  be  the 
fair  rent  of  a  mill,  we  must  take  into  consideration  all  the  risks 
of  the  business  in  which  it  is  to  be  used.  Rents  are  graduated 
according  to  the  value  of  the  property  and  to  an  average  of 
profits  arrived  at  by  very  extended  observation  ;  and  so  accurate 
are  the  results  of  experience  in  this  respect  that  rents  are  ren- 
dered nearly  if  not  quite  as  certain  as  the  market  value  of  com- 
modities at  a  particular  time  and  place." 

Where,  then,  the  defendant's  wrongful  act  resulted  in 
the  stoppage  of  machinery,  the  measure  of  damages  is 
the  value  of  the  use,  that  is,  the  rental  value  of  the  ma- 
chinery iC*)  so  in  an  action  against  a  carrier  for  delay  in 


(»)  Griffin  V.  Colver,  16  N.  Y.  489,  496. 

C)  Cory  V.  Thames  I.  W.  &  S.  B.  Co.,  L.  R.  3  Q.  B.  181 ;  Satchwell  v. 
WiHiams,  40  Conn.  371 ;  Strawn  v.  Cogswell,  28  111.  457  ;  Benton  v.  Fay,  64 
111.  417 ;  Griffin  v.  Colver,  16  N.  Y.  489  ;  Cassidy  v.  Lefevre,  45  N.  Y.  562  ; 


276  CERTAIN   AND    UNCERTAIN    DAMAGES.  §   I90. 

delivering  the  machinery ;  (")  against  a  manufacturer  of 
machinery  for  failure  to  furnish  it  according  to  contract ;  C") 
against  one  who  broke  a  contract  to  keep  machinery  in 
repair.  (°)  When  a  mill  was  prevented  from  being  run  by 
reason  of  a  steam-engine  not  being  furnished  for  it  accord- 
ing to  contract,  the  loss  of  use  of  the  mill  during  the  time 
of  its  being  stopped  was  held  to  be  rightly  included  in  the 
damages.  The  court  said :  "  When  a  contractor  under- 
takes to  perform  a  contract  to  erect  a  building  or  put  a 
mill  or  other  machinery  in  operation,  he  ought  to  be 
holden  to  indemnify  the  other  party  against  the  loss  of 
the  use  of  the  building,  mill,  or  other  machinery,  after  the 
expiration  of  the  time  for  performance  of  the  contract. 
And  in  case  it  was  defectively  made,  he  should  indemnify 
the  party  for  the  loss  of  the  use  of  the  property  for  the 
time  necessarily  required  t6  repair  it  and  put  it  in 
order."  (") 

But  profits  expected  from  the  use  of  the  machinery 
cannot  be  recovered  as  such.C')  The  defendant  agreed 
to  build  a  foundation  for  a  mill  which  the  plaintiff  had 
bought  and  was  to  move  to  the  foundation  ;  it  was  held 
that  the  plaintiff,  in  an  action  for  breach  of  the  agree- 
ment, could  recover  the  rental  value  of  the  mill,  though 
he  could  not  recover  compensation  for  the  loss  of  expected 


Freeman  v.  Clute,  3  Barb.  424;  Davis  v.  Talcott,  14  Barb.  611 ;  Pittsburgh 
Coal  Co.  V.  Foster,  59  Pa.  365 ;  Pettee  v.  Tennessee  M.  Co.,  i  Sneed 
381  ;  Hinckley  v.  Beckwith,  13  Wis.  31. 

C)  Priestley  v.  Norlhern  I.  &  C.  R.R.  Co.,  26  111.  205. 

(^)  Green  v.  Mann,  n  111.  613. 

(0  Middlekauffw.  Smith,  i  Md.  329. 

C)  Taggart,  P.  J.,  in  Davis  v.  Talcott,  14  Barb.  61 1,  628. 

(^)  Willingham  v.  Hooven,  74  Ga.  233 ;  McKinnon  v.  McEwan,  48  Mich. 
106 ;  Allis  V.  McLean,  48  Mich.  428  ;  Krom  v.  Levy,  48  N.  Y.  679 ;  Davis  v. 
Cincinnati  H.  &  D.  R.R.  Co.,  i  Disney  23 ;  Pennypacker  v.  Jones,  106  Pa. 
237. 


§  1 9 1.  INJURY    TO    CROP.  277 

profits.  (")  But  in  an  action  for  breach  of  a  similar  con- 
tract, where  the  plaintiff,  instead  of  moving  an  old  mill 
to  the  foundation  was  to  build  a  new  mill  upon  it,  the 
loss  of  use  of  the  mill  was  too  uncertain  and  conjectural 
for  compensation.  (^) 

§  191.  Injury  to  crop. — A  farmer  cannot  in  general  re- 
cover damages  for  the  loss  of  profit  he  expected  from  a 
crop  destroyed  before  maturity.  The  value  of  the  mature 
crop  is  too  uncertain. (")  Thus,  where  the  defendant 
wrongfully  seized  the  plaintiff's  negroes,  the  profits  of  a 
crop  he  expected  to  plant  and  cultivate  by  means  of  the 
negroes  are  too  uncertain  to  afford  ground  for  recovery.^) 
The  defendant  wrongfully  seized  the  plaintiff's  mule, 
which  he  intended  to  use  to  cultivate  his  crop  ;  the  loss 
of  his  crop  was  held  both  too  uncertain  and  too  remote 
for  compensation.(®)  If  the  mule  were  intended  to  use 
for  the  harvesting  of  a  crop  already  matured,  the  loss 
would  not  be  too  uncertain.  The  defendant  sold  a  drug 
which  he  warranted  to  kill  cotton-worm ;  but  it  failed  to 
do  so.  It  was  held  that  the  loss  of  the  crop  was  too 
uncertain  to  afford  ground  for  recovery. C)  In  Louisiana, 
under  the  Code,  where  the  crop  of  a  sugar  planter  was 
ruined  by  the  defendant's  tort,  it  was  held  that  the 
planter  could  reccver  for  the  loss  of  crop,  based  on  the 
average  crop  of  that  year,  which  happened  to  be  a  good 
one.(^)    In  California  the  same  decision  has  been  reached 


(»)  Rogers  v.  Bemus,  69  Pa.  432. 

C")  Bridges  v.  Lanham,  14  Neb.  369. 

f)  Gresham  v.  Taylor,  51  Ala.  505  ;  Richardson  v.  Northrup,  66  Barb. 
85  ;  Roberts  v.  Cole,  82  N.  C.  229 ;  Texas  &  S.  L.  R.R.  Co.  v.  Young,  60 
Tex.  201. 

C)  McDaniel  v.  Crabtree,  2i  Ark.  431. 

(«)  Sledge  V.  Reid,  73  N.  C.  440. 

(f)  Jones  V.  George,  56  Tex.  149. 

(s)  Payne  v.  Railroad  &  S.S.  Co.,  38  La.  Ann.  164. 


278  CERTAIN   AND    UNCERTAIN   DAMAGES.  §   1 9 1. 

in  a  case  where  the  defendant  broke  a  contract  to  lease  a 
farm  to  the  plaintiff :  the  court  allowed  the  plaintiff  to  re- 
cover compensation  based  on  the  crop  the  average  farmer 
would  have  raised  with  such  tools,  teams,  etc.,  as  the 
plaintiff  had.('')  In  cases  such  as  the  last  two,  the  rule, 
in  the  light  of  principle,  would  seem  to  be  the  value  of 
the  use  of  the  land,  evidence  of  the  average  value  of  the 
crop  of  that  or  other  years  being  admissible. 

Where  seed  is  warranted  good  and  does  not  grow,  ex- 
pected profits  from  the  crop  to  be  raised  are  too  uncer- 
tain. The  rent  of  the  land  and  the  wasted  labor  and 
expense  furnish  all  the  compensation  that  are  certain 
enough  to  base  recovery  upon.(*')  If,  however,  a  crop  is 
raised,  but  is  of  inferior  quality,  the  element  of  uncertainty 
is  removed.  The  value  of  the  crop,  if  it  had  been  of  the 
quality  warranted,  can  be  ascertained  with  exactness  ;  and 
the  measure  of  damages  is  the  difference  between  the 
value  of  the  crop  raised,  and  the  value  of  the  same  crop 
from  the  seed  ordered. (")  So  in  the  case  of  unproductive 
hop  roots  warranted  by  the  defendant,  the  plaintiff  was 
allowed  to  recover  the  profit  he  would  have  made  on  the 
plants  that  grew  if  they  had  been  productive. (**) 

It  will  be  noticed  that  there  are  three  classes  of  cases 
arising  out  of  the  breach  of  warranty  of  seed.  In  the 
first  class  of  cases,  the  seed  is  of  such  a  quality  that 


(»)  Rice  V.  Whitmore,  74  Cal.  619. 

0  Ferris  v.  Comstock,  33  Conn.  513 ;  Butler  v.  Moore,  68  Ga.  780.  Page 
V.  Pavey,  8  C.  &  P.  769,  contra,  is  a  bare  intimation  at  nisi prius. 

C)  Randall  v.  Raper,  E.  B.  &  E.  84 ;  Wolcott  v.  Mount,  36  N.  J.  L.  262  ; 
Passinger  v.  Thorbum,  34  N.  Y.  634;  White  v.  Miller,  7  Hun  427;  71  N.  Y. 
118;  Flick  V.  Wetherbee,  20  Wis.  392.  In  Van  Wyck  v.  Allen,  69  N.  Y. 
61,  there  was  an  intimation  that  the  decision  on  this  point  in  the  case  of 
Passinger  v.  Thorbum  was  still  open  for  revision.  And  Hurley  v.  Buchi,  10 
Lea  346,  holds  that  even  where  the  crop  from  the  inferior  seed  matured,  no 
compensation  can  be  recovered  for  loss  of  crop. 

(^)  Schutt  V.  Baker,  9  Hun  556. 


§   192.  PROFITS   OF   A   CONTRACT.  279 

i 

nothing  grows  from  it.  In  sucii  cases  there  is  no  basis 
for  the  estimation  of  expected  profits,  and  they  are  there- 
fore disallowed  as  uncertain.  In  the  second  class  of 
cases  the  plants  grow  and  the  crop  matures,  but  is  of  in- 
ferior quality.  Here  there  is  a  reasonable  basis  on  which 
to  estimate  the  profit  that  would  have  been  made  if  the 
seed  had  been  of  the  quality  called  for  by  the  contract ; 
for  the  court  has  only  to  estimate  the  difference  in  value 
between  the  crop  actually  raised  and  the  same  crop  of 
the  proper  quality.  An  allowance  in  these  cases  is  there- 
fore made  for  loss  of  profits.  The  third  class  of  cases 
lies  between  the  first  two.  The  plants  grow,  but  are  of 
such  a  sort  that  no  crop  matures  at  all.  Here  the  ex- 
pected profit  is  less  conjectural  than  in  the  first  class  of 
cases,  for  the  possible  extent  of  the  crop  is  limited  by 
the  number  of  plants  which  grow.  On  the  other  hand, 
the  profit  is  more  conjectural  than  in  the  second  class  of 
cases,  for  there  is  no  matured  crop  as  a  basis  for  estimat- 
ing the  profit.  -•<>-'  -■  \ 

§  192.  Profits  of  a  contract. — The  benefits  which  would 
have  accrued  to  the  plaintiif  from  a  contract  broken  by 
the  defendant  may  be  recovered,  though  they  are  in  a 
certain  sense  contingent.  The  plaintiff,  as  has  been 
seen,  must  prove  that  the  benefit  would  have  been  se- 
cured. "  The  jury  cannot  be  asked  to  guess.  They  are 
to  try  the  case  upon  evidence,  not  upon  conjecture."  (") 
But  having  made  it  appear  reasonably  certain  that  he 
would  have  obtained  a  benefit,  the  plaintiff  is  entitled  to 
recover  it. 

The  leading  case  on  this  subject  is  Masterton  v.  Mayor 
of  Brooklyn,  C*)  which  will  be  more  fully  considered 
later.     In  that  case  it  appeared  that  in  January,  1836, 


(")  Strong,  J.,  in  Lentz  v.  Choteau,  42  Pa.  435.  C)  7  Hill  61. 


28o  CERTAIN    AND    UNCERTAIN    DAMAGES.  §   I92. 

an  agreement  was  entered  into  between  the  defendants 
and  the  plaintiffs,  by  which  the  latter  agreed  to  furnish 
and  deliver  marble  to  build  a  City  Hall  in  Brooklyn, 
from  Kain  &  Morgan's  quarry,  in  Eastchester.  The  de- 
fendants were  to  pay  $271,600  in  different  sums,  as  the 
work  proceeded.  The  plaintiffs  proved  the  delivery  of 
the  marble  under  their  contract  with  the  defendants,  till 
July,  1837  ;  when  the  latter  refused  to  receive  any  more 
marble,  although  the  plaintiffs  were  ready  to  proceed. 
The  entire  quantity  of  marble  necessary  to  fulfil  the 
plaintiff's  contract  was  88,819  ^^^t.  At  the  time  the 
work  was  suspended,  the  plaintiffs  had  delivered  14,779 
feet,  for  which  the  contract  price  had  been  paid.  The 
defendant  claimed  that  the  profits  expected  from  a  full 
performance  of  the  contract  were  too  contingent  and 
speculative  to  be  allowed.  The  court,  however,  held 
otherwise.  Nelson,  C.  J.,  said  that  without  doubt  there 
were  expected  profits  which  would  be  excluded  as  uncer- 
tain in  actions  of  contract ;  such,  for  instance,  as  the 
profits  of  a  collateral  undertaking  entered  into  on  the 
faith  of  the  defendant's  contract.  "  But,"  he  continued, 
"  profits  or  advantages  which  are  the  direct  and  imme- 
diate fruits  of  the  contract  entered  into  between  the  par- 
ties, stand  upon  a  different  footing.  These  are  part  and 
parcel  of  the  contract  itself — entering  into  and  constitut- 
ing a  portion  of  its  very  elements,  something  stipulated 
for,  the  right  to  the  enjoyment  of  v/hich  is  just  as  clear 
and  plain  as  to  the  fulfilment  of  any  other  stipulation. 
They  are  presumed  to  have  been  taken  into  considera- 
tion and  deliberated  upon,  before  the  contract  was  made, 
and  formed,  perhaps,  the  only  inducement  to  the  arrange- 
ment." 

And  the  learned  chief  justice  fortified  this  allowance 
of  profits,  by  reference  to  the  civil  law,  and  the  analogies 


§   193-      CONTRACTS   FOR    A    SHARE    IN    THE    PROFITS.       281 

derived  from  the  cases  in  our  own  law,  which  we  shall 
hereafter  have  occasion  to  consider,  where  upon  non- 
performance of  contracts  for  the  sale  and  delivery  of 
chattels,  the  market  price,  which  of  course  includes 
profits,  is  made  the  measure  of  compensation.  There  is 
now  no  difficulty  in  such  cases  as  the  foregoing.  The 
direct  benefits  or  profits  of  a  contract  are  always  allowed. 

§  193.  Contracts  for  a  share  in  the  profits  of  a  business. — 
In  that  class  of  contracts,  however,  where  the  benefit  se- 
cured is  a  share  in  the  profits  of  a  business,  there  is,  as 
we  have  seen,  difficulty.  In  Bagley  v.  Smith, C)  which 
was  an  action  for  the  wrongful  dissolution  of  a  partner- 
ship, it  was  insisted  by  the  defendant's  counsel  that  the 
making  of  either  the  prospective  or  the  past  profits  of  a 
partnership  the  basis  of  a  rule  of  damages  was  contrary 
to  principle  ;  that  the  inquiry  into  past  profits  involved 
the  taking  of  an  account  which  was  impracticable  in  a 
trial  at  law,  and  that  there  was  no  basis  for  the  jury  to 
measure  the  fluctuations  of  trade,  the  danger  of  losses, 
and  the  effects  of  competition,  which  were  all  involved 
in  a  calculation  of  future  profits.  Moreover,  as  the  profit- 
able prosecution  of  the  business  of  the  firm  depended  on 
the  mutual  confidence  and  harmonious  co-operation  of 
its  members,  its  dissolution  under  circumstances  which 
precluded  these  conditions,  could  not  subject  the  with- 
drawing partner  to  damages  on  the  basis  of  prospective 
profits. 

But  the  court  held  that  no  rule  of  law  required  that 
the  breach  of  a  covenant  contained  in  partnership  articles 
should  be  compensated  by  nominal  damages  only ;  that 
as  the  object  of  commercial  partnerships  was  profit,  the 
most  direct  and  legitimate  injury  which  could  be  occa- 
sioned by  an  unauthorized  dissolution  of  a  firm  was  the 

(»)  10  N.  Y.  489. 


282  CERTAIN    AND    UNCERTAIN    DAMAGES.  §   1 93. 

loss  of  profits ;  that  although  there  was  great  inherent 
difficulty  in  accurately  estimating  future  gains,  this  diffi- 
culty would  not  be  lessened  by  shutting  out  the  light 
from  the  past,  and  that  as  no  one  out  of  a  court  of  justice 
could  undertake  to  judge  of  the  future  profits  of  a  busi- 
ness without  informing  himself,  if  practicable,  as  to  those 
in  the  past,  there  appeared  to  be  no  reason  why  a  legal 
tribunal  should  do  so.  The  court  also  refused  to  limit  the 
plaintiff's  claim  for  profits  to  the  period  between  the  dis- 
solution and  his  subsequent  entry  into  business. 

The  practice,  established  in  New  York  by  the  above 
case  of  Bagley  v.  Smith,  of  admitting  evidence  of  past 
profits,  not  as  in  themselves  a  safe  measure  of  future 
profits,  but  as  very  pertinent  to  the  question  what  the 
future  profits  would  probably  have  been  had  not  the  busi- 
ness been  interrupted,  and  as  a  material  aid  to  the  jury 
in  the  solution  of  this  question,  has  been  elsewhere  sanc- 
tioned, and  may  be  taken,  to  the  extent  here  stated,  as 
the  general  rule.('') 

Where  an  action  was  brought  for  breach  of  an  agree- 
ment to  form  a  partnership,  and  it  was  proved  that  the 
plaintiff  had  given  up  an  East  India  voyage,  as"  was  well 
known  to  the  defendant,  he  was  allowed  to  show  the 
value  of  the  voyage,  not  as  special  damage,  but  as  an  in- 
gredient for  estimating  the  value  which  each  of  the  par- 
ties set  on  the  contract  in  dispute.'  Where,  however, 
the  partnership  was  terminable  at  any  time  upon  notice, 
no  recovery  can  be  had  on  account  of  expected  future 
profits.  C*) 

In  Dennis  v.  Maxfield  (")  the  plaintiff  was  hired  for  a 

'  M'Neill  V.  Reid,  g  Bing.  68. 

(")  Gale  V.  Leckie,  2  Stark.  107  ;  Dart  v.  Caimbeer,  107  N.  Y.  664 ;  Reiter 
v.  Morton,  96  Pa.  229. 

C')  Skinner  v.  Tinker,  34  Barb.  333 ;  Ball  v.  Britton,  58  Tex.  57. 
C)  lo  All.  138. 


§  1 93-      CONTRACTS   FOR   A   SHARE   IN   THE   PROFITS.        283 

whaling  voyage,  and  was  to  receive  a  certain  "  lay  "  or 
percentage  of  the  profits,  and  additional  compensation  if 
the  cargo  reached  a  certain  amount.  Being  wrongfully 
dismissed,  it  was  held  he  could  recover  compensation  for 
both  items  of  loss,  the  voyage  having  ended  and  the 
profits  of  the  voyage  being  known.  The  court  (Bige- 
low,  C.  J.)  said  :  "  The  parties  have  expressly  stipulated 
that  profits  should  be  the  basis  on  which  a  portion  of  the 
plaintiff's  compensation  for  services  should  be  reckoned. 
These  earnings  or  profits  were  therefore  within  the  direct 
contemplation  of  the  parties,  when  the  contract  was  en- 
tered into.  They  are  undoubtedly  in  their  nature  con- 
tingent and  speculative  and  difficult  of  estimation  ;  but, 
being  made  by  express  agreement  of  the  parties  of  the  es- 
sence of  the  contract,  we  do  not  see  how  they  can  be  ex- 
cluded in  ascertaining  the  compensation  to  which  the  plain- 
tiff is  entitled."  The  court  then  cited  contracts  of  partner- 
ship and  of  insurance  of  profits,  and  continued  :  "  In  such 
cases  the  parties,  having  by  their  contract  adopted  a  con- 
tingent, uncertain,  and  speculative  measure  of  damages, 
must  abide  by  it,  and  courts  and  juries  must  approximate 
as  nearly  as  possible  to  the  truth  in  endeavoring  to  ascer- 
tain the  amount  which  a  party  may  be  entitled  to  recover 
on  such  a  contract  in  the  event  of  a  breach.  If  this  is 
not  the  rule  of  law,  we  do  not  see  that  there  is  any  alter- 
native short  of  declaring  that  where  parties  negotiate  for 
compensation  or  indemnity  in  the  form  of  an  agreement 
for  profits  or  a  share  of  them,  no  recovery  can  be  had  on 
such  a  contract  in  a  court  of  law — a  proposition  which  is 
manifestly  absurd." 

This,  it  must  be  noted,  is  a  contract  where  the  profits 
are  those  of  a  business,  n'ot  the  profits  of  the  plaintiff's 
individual  exertions.  He  may  in  such  a  case  wait  until 
the  business  is  completed  and  the  profit  realized,  and  then 


284  CERTAIN    AND    UNCERTAIN    DAMAGES.  §   1 94. 

recover  his  proportion,  as  he  did  in  the  case  just  cited ; 
or  if  the  business  has  been  so  long  established  that  he 
can  reasonably  prove  that  a  profit  will  be  realized,  he  may 
recover  at  once  upon  the  breach. (")  But  if  it  is  a  new 
enterprise,  and  there  is  no  proof  that  profit  will  be  made, 
the  plaintiff  can  prove  no  loss  and  should  recover  no 
damages  on  account  of  the  loss  of  profits ;  the  burden  of 
proving  a  profit  is  upon  him-C")  Thus,  where  the  plain- 
tiff had  a  contract  by  which  he  was  to  have  half  the  wood 
standing  on  a  certain  lot  for  cutting  and  cording  it,  and 
the  standing  wood  was  negligently  destroyed  by  the  de- 
fendant, it  was  held  that  the  plaintiff  could  recover  no 
compensation  for  the  profit  he  might  have  made,  for  it 
was  too  uncertain.  (°) 

§  194.  Collateral  profits.  —  Profits  which  the  plaintiff 
might  have  made  in  any  other  transactions  if  the  defend- 
ant had  performed  his  contract,  even  though  the  loss  of 
them  is  a  natural  consequence  of  the  wrong,  are  fre- 
quently disallowed,  on  the  ground  that  they  are  more 
or  less  speculative  and  contingent.  He  is  able  only  to 
show  that  he  might  have  made  those  profits.  He  is  not 
able  to  prove  that  he  certainly  could  or  would  have  made 
them  if  the  defendant  had  not  committed  any  wrong. 
In  Fox  V.  Harding (")  the  court  said  that  "If  the  profits 
are  such  as  would  have  accrued  and  grown  out  of  the 
contract  itself,  as  the  direct  and  immediate  result  of  its 
fulfilment,"  then  they  should  be  allowed.  "  But  if  they 
are  such  as  would  have  been  realized  by  the  party  from 
other  independent  and  collateral  undertakings,  although 
entered  into  in  consequence  and  on  the  faith  of  the  princi- 


(»)  W^akeman  v.  Wheeler  &  W.  M.  Co.,  loi  N.  Y.  205. 

C")  Winslow  V.  Lane,  63  Me.  i6r. 

(")  Barnard  v.  Poor,  21  Pick.  378. 

(■i)  7  Gush.  516;  ace.  Smith  v.  Flanders,  129  Mass.  322. 


§   1 94-  COLLATERAL   PROFITS.  285 

pal  contract,  then  they  are  too  uncertain  and  remote  to  be 
taken  into  consideration  as  a  part  of  the  damages  occa- 
sioned by  the  breach  of  the  contract  in  suit."  When  that 
is  the  objection,  the  plaintiff  is  usually  given  the  aver- 
age of  profits,  as  being  what  he  would  probably  have 
made.  On  a  contract  to  furnish  a  boat  to  ferry  excur- 
sionists who  were  to  arrive  at  a  certain  time,  the  measure 
of  damages  was  held  to  be  the  ordinary  earnings  of  such 
a  boat  at  such  a  time.('')  But  where  the  boat  was  to  be 
used  as  an  excursion  boat  on  an  entirely  new  route,  an- 
ticipated profits  are  too  uncertain,  and  nothing  can  be 
recovered  on  account  of  the  loss  of  use  of  the  boat.C") 
So  on  a  breach  of  contract  to  furnish  an  excursion 
train  to  the  plaintiff,  the  profit  he  would  have  made  on 
tickets  already  sold  may  be  recovered  ;  but  profit  he 
might  have  made  by  a  sale  of  tickets  after  the  breach  of 
the  defendant's  agreement  are  too  uncertain. (") 

It  was  attempted  in  a  New  York  case  C)  (which  is  not 
sustained  by  later  authorities)  to  apply  this  same  rule  in  a 
case  of  partnership.  The  distinction  is  plain.  In  the 
latter  case  the  plaintiff  is  attempting  to  recover  the  bene- 
fit conferred  on  him  by  the  contract ;  here  the  profit  is 
claimed,  not  as  promised  by  the  defendant,  but  as  likely 
to  arise  collaterally  out  of  the  performance  of  the  con- 
tract. 

A  railroad  company  agreed  to  locate  houses  for  its 
hands  near  the  plaintiff's  land.  It  was  held  that  possible 
loss  of  profits  at  his  store  and  mill  was  too  specula- 
tive. (°)     Where  a  railroad  company  failed  to  perform 


(»)  Mace  V.  Ramsey,  74  N.  C.  11. 

C)  Mitchell  V.  Cornell,  44  N.  Y.  Super.  Ct.  401. 

(')  Houston  &  T.  C.  Ry.  Co.  v.  Hill,  63  Tex.  381. 

C)  Van  Ness  v.  Fisher,  5  Lans.  236. 

(•)  Evans  v.  Cincinnati  S.  &  M.  Ry.  Co.,  78  Ala.  341. 


286  CERTAIN    AND    UNCERTAIN    DAMAGES.  §   1 94. 

its  agreement  to  make  the  city  of  Fort  Scott  the  terminus 
of  one  division  of  its  line,  and  erect  machine-shops,  etc., 
there,  it  was  held  that  an  inquiry  into  the  value  of  real 
estate  and  amount  of  business,  in  order  to  show  what 
profits  would  have  been  made, was  improper ;  such  profits 
were  too  speculative.  But  the  city  might  recover  for  the 
value  of  the  buildings  to  it  as  taxable  property,  to  be  esti- 
mated on  the  principle  of  annuity,  on  the  average  rate 
of  taxation  during  past  years. (")  On  a  contract  by  the 
defendant  to  erect  a  factory  or  establish  a  business  in  a 
place  where  the  plaintiff  owned  land,  it  has  been  held 
that  profits  which  might  have  been  made  by  the  plaintiff 
through  a  rise  in  the  value  of  his  land  are  too  uncer- 
tain.(^)  But  in  Watterson  v.  Allegheny  V.  R.R.  Co.,(°) 
an  action  for  the  defendant's  breach  of  contract  to  con- 
struct a  depot  on  land  sold  the  plaintiff  by  the  defendant, 
it  was  held  that  the  plaintiff  could  recover  the  additional 
value  which  would  accrue  to  the  plaintiff's  other  land 
by  the  erection  of  such  a  depot,  the  court  saying  that  the 
profits  of  the  plaintiff's  business  could  not  be  added  to 
his  damages,  for  they  were  too  speculative  and  uncertain. 
Where  it  can  be  made  reasonably  certain  that  a  gain 
would  have  resulted,  and  there  is  no  other  objection  to 
its  allowance,  the  mere  fact  that  the  amount  is  to  some 
extent  conjectural  will  not  prevent  its  allowance.  In  the 
case  of  Frye  v.  Maine  Central  R.R.('')  it  was  held,  in  an 
action  for  breach  of  an  agreement  to  allow  plaintiff  the  car- 
riage of  passengers  from  D.  to  G.,  that  the  plaintiff  could, 
not  only  recover  the  profits  he  would  have  made  on  the  carr 


(")  Missouri,  K..&  T.  Ry.  Co.  v.  Fort  Scott,  15  Kas.  435. 

C)  Shaw  V.  Hoffman,  25  Mich.  162 ;  DuUea  v.  Taylor,  35  Up.  Can.  Q.  B. 

395- 
(")  74  Pa.  208.    This  seems  a  very  speculative  measure  of  damages. 
C)  67  Me.  414. 


§§   195,    196-        LOSS    OF    USE    OF   A   VESSEL.  287 

riage  from  D.  to  G.,  but  also  what  he  would  have  made 
on  way  passengers,  on  express,  and  on  the  mail,  by  being 
so  situated  that  he  could  carry  more  cheaply  than  any  one 
else. 

§  195.  Loss  of  use  of  personal  property. — Where  the  de- 
fendant wrongfully  injured  or  withheld  the  plaintiff's 
chattel,  the  measure  of  damages  is  the  average  or  usual 
value  of  the  use  of  the  chattel  during  the  time  the 
plaintiff  lost  the  use  of  it.(*)  If  the  owner  had  an  es- 
tablished custom  of  letting  the  chattel  for  hire,  so  that 
the  jury  could  determine  what  income  he  had  from  it, 
he  may  recover  that  income,  which  is  analogous  to  the 
profit  of  an  established  business.  (**)  Thus  where  the 
plaintiff's  stallion  was  injured  by  the  defendant,  it  was 
held  that  the  profits  he  would  probably  have  made  during 
the  season  could  be  shown,  "not  as  the  measure  of  dam- 
ages, but  as  a  guide  to  the  exercise  of  that  discretion 
which  must  always,  to  a  certain  extent,  rest  with  the 
jury."('')  In  an  action  for  a  fraudulent  representation 
as  to  the  age  of  a  female  slave,  it  was  held  not  to  be 
an  element  of  the  damage  that  she  might  have  borne 
several  children  if  she  had  been  as  young  as  represented. 
This  is  too  uncertain.  (*) 

§  196.  Loss  of  use  of  a  vessel.— In  adjusting  the  dam- 
ages against  the  official  liquidator  of  a  ship-building  com- 
pany for  delaying  the  repairs  of  a  ship  beyond  the  time 


(")  Benton  v.  Fay,  64  111.  417 ;  Shelbyville  L.  B.  R.R.  Co.  v.  Lewark,  4  Ind. 
471 ;  Monroe  v.  Lattin,  25  Kas.  351  ;  Brown  v.  Hadley,  43  Kas.  267  ; 
Johnson  v.  Holyoke,  105  Mass.  80 ;  Luce  v.  Hoisington,  56  Vt.  436 ;  Wright 
V.  Mulvaney,  46  N.'W.  Rep.  1045  (Wis.).  But  contra,  McLaughlin  v.  Ban- 
gor, 58  Me.  398. 

C)  Cashing  v.  Seymour,  30  Minn.  301. 

(°)  Fultz  V,  Wycoff,  25  Ind.  321. 

(■")  Whitson  V.  Gray,  3  Head  441. 


288  CERTAIN    AND    UNCERTAIN    DAMAGES.  §    1 96. 

agreed,  the  Lord  Chancellor  observed  that  "he  had  pro- 
ceeded on  the  principle  that  if  a  profit  would  arise  from 
a  chattel,  and  it  is  left  with  the  tradesman  to  repair,  and 
detained  by  him  beyond  a  stipulated  time,  the  measure 
of  damages  is  prima  facie  the  sum  which  would  have 
been  earned  in  the  ordinary  course  of  employment  of  the 
chattel  in  the  time/'C)  And  the  same  rule  applies  vi^here 
the  defendant,  the  builder,  delayed  the  delivery  of  a  ves- 
sel beyond  the  stipulated  timc^*)  Where,  in  an  action 
on  a  bond  given  to  obtain  the  discharge  of  a  vessel  at- 
tached under  a  lien  for  repairs,  the  defendants  sought  to 
recoup  the  damages  sustained  by  them  from  the  plain-' 
tiff's  delay  in  completing  the  contract,  it  was  held  that 
the  probable  earnings  or  profits  of  the  vessel  were  too 
uncertain  to  form  a  rule  of  damages.  The  true  measure 
of  damages  was  the  price  which  would  have  to  be  paid 
for  the  charter  of  a  similar  boat  during  the  period  of 
unnecessary  detention,  less  all  expenses  which  would 
necessarily  have  been  incurred  by  the  owner.  C)  Where 
a  vessel  was  injured  by  a  collision,  the  measure  of  dam- 
ages was  held  to  be  the  loss  of  freight  during  the  period 
she  was  laid  up ;  in  other  words,  the  loss  of  use  of  the 


(")  In  re  Trent  and  Humber  Co.,  L.  R.  4  Ch.  112,  117,  affirming  L.  R.  6 
Eq.  396. 

(>>)  Brown  v.  Foster,  51  Pa.  165.  Bohn  v.  Cleaver,  25  La.  Ann.  419,  was 
an  action  for  breach  of  an  agreement  to  furnish  the  plaintiff,  on  a  certain 
day,  with  a  steamer  for  a  full  cargo  to  Liverpool  or  Havre,  at  a  stipulated 
rate.  The  ship  was  not  ready,  but  on  that  day  freights  to  Liverpool  were 
higher  than  the  agreed  rate.  The  plaintiff  was  not  allowed  to  recover  any 
damages,  the  court  holding  that  they  would  be  too  speculative.  Two  judges, 
however,  dissented,  holding  that  the  measure  of  damages  was  the  difference 
between  the  contract  and  the  ruling  rate  on  a  full  cargo.  This  latter  seems 
the  correct  view. 

(°)  Rogers  v.  Beard,  36  Barb.  31 ;  S.  C.  20  How.  Pr.  98;  Brown  v.  Foster, 
51  Pa.  165. 


f  197-     PROFITS  EXPECTED  FROM  THE  SALE  OF  GOODS.     289 

vessel.  ("}     But  expected  specific  profits  cannot  be   re- 
covered for  the  loss  of  use  of  a  vessel.('') 

§  197.  Profits  expected  from  a  sale  of  goods. — The 
profits  expected  upon  a  sale  of  goods  at  retail  cannot 
usually  be  recovered,  for  two  reasons.  In  the  first  place, 
the  value  of  the  goods  is  their  actual  wholesale  market 
price ;  in  the  second  place,  such  profits  are  too  con- 
tingent. (°) 

The  case  of  Wehle  v.  Haviland  (^)  is  an  important  de- 
cision on  this  point.  The  action  was  for  seizing  the 
stock  in  trade  of  the  plaintiff  under  an  attachment.  The 
court  below,  on  the  authority  of  an  opinion  previously 
expressed  by  the  Commission  of  Appeals  in  the  same 
case,(^)  had  allowed  the  plaintiff  to  recover  the  fair  retail 
value  of  her  goods.  In  the  Court  of  Appeals  this  was  held 
to  have  been  an  error,  Allen  J.,  saying  :  "  The  retail  value 
or  the  price  at  which  goods  are  sold  at  retail,  includes  the 
expected  and  contingent  profits,  the  earning  of  which 
involves  labor,  loss  of  time  and  expenses,  supposes  no 
damage  to  or  depreciation  in  the  value  of  the  goods,  and 
is  dependent  upon  the  contingency  of  finding  purchasers 
for  cash,  and  not  upon  credit,  within  a  reasonable  time, 

(»)  Heard  v.  Holman,  19  C.  B.  (N.  S.)  i ;  The  Clarence,  3  Rob.  Adm. 
283;  Williamson  v.  Barrett,  13  How.  loi ;  The  Potomac,  105  U.  S.  630; 
The  Mayflower,  i  Bro.  Adm.  376,  388 ;  The  Narragansett,  Olcott  388 ;  The 
M.  J.  Sanford,  37  Fed.  Rep.  148 ;  New  Haven  S.  B.  Co.  v.  Vanderbilt,  16 
Conn.  420;  Mailler  v.  Express  P.  L.,  61  N.  Y.  312.  But  contra,  Smyrna, 
L.  &  P.  S.  B.  Co.  V.  Whillden,  4  Harr.  228.  In  Brown  v.  Beatty,  35  Up. 
Can.  Q.  B.  328,  it  was  held  that  the  loss  of  freight  would  not  be  compen- 
sated in  an  action  at  law,  but  only  in  a  proceeding  in  admiralty  ;  but  the 
court  in  this  seems  to  have  been  mistaken. 

(>')  Brown  v.  Smith,  12  Cush.  366  ;  Aber  v.  Bratton,  60  Mich.  357 ;  Calla- 
way M.  &  M.  Co.  V.  Clark,  32  Mo.  305  ;  Marlow  v.  Lajeunesse,  18  Low.  Can. 
Jur.  188. 

(')  Young  V.  Cureton,  87  Ala.  727. 

C)  69  N.  Y.  448. 

(«)  R-ported_as  Wehle  v.  Butler,  61  N.  Y.  245. 
Vol.  L — 19 


290  CERTAIN    AND    UNCERTAIN   DAMAGES,  §  1 98. 

the  sale  of  the  entire  stock  without  the  loss  by  unsalable 
remnants,  and  the  closing  out  of  a  stock  of  goods  as 
none  ever  was  or  ever  will  be  closed  out,  by   sales  at 

retail  at  full  prices The  plaintiff  was  entitled  to 

compensation,  and  that  consisted  of  the  market  value  of 
the  goods,  their  cost,  or  what  they  would  have  cost  in  the 
market,  and  interest  thereon,  and  nothing  more.  The 
retail  profit  was  not  included  in  the  compensation  to 
which  she  was  entitled."  If,  however,  no  more  goods  of 
the  sort  are  to  be  procured  at  wholesale,  the  retail  price, 
if  proved  with  reasonable  certainty,  may  be  recovered.  (*) 

§  198.  Profits  included  in  the  market  price. — On  the  other 
hand,  the  owner  of  goods,  or  the  purchaser  of  goods  which 
are  not  delivered,  may  always  recover  the  market  price  at 
the  place  where  he  should  have  had  the  goods ;  this  often 
includes  profits.  So  in  trover,  where  the  plaintiff  recov- 
ers the  value  of  the  goods  at  the  place  of  conversion,  with- 
out taking  into  account  their  cost  in  some  distant  market, 
and  the  expenses  of  their  carriage,  he  may  really  obtain 
profits.  C")  So  in  an  action  against  a  carrier  for  failure 
to  deliver  goods,  the  owner  recovers  the  market  value  of 
the  goods  at  the  time  and  place  of  delivery.  (°)  And  in 
an  action  for  failure  to  deliver  goods  bought,  the  pur- 
chaser's recovery  is  based  upon  the  market  value  at  the 
time  and  place  of  delivery.('')  Frances.  Gaudet(^)  rests 
upon  this  principle.  The  plairftiff  had  purchased  cham- 
pagne lying  at  defendant's  wharf  at  14J.  per  dozen,  and 
resold  it  at  24^.;  defendant  refused  to  deliver  the  wine. 
The  plaintiff  could  not  fulfil  his  contract,  as  similar  wine 

(»)  Alabama  I.  W.  v.  Hurley,  86  Ala.  217,    There  being  no  wholesale 
market,  the  real  value  would  be  that  at  retail. 
(>■)  Blum  V.  Merchant,  58  Tex.  400. 
(°)  See  chapter  on  Carriers. 
('')  See  chapter  on  Sales. 
0  L.  R.  6  Q.  B.  199 


§   199-       PROFITS  EXPECTED  FROM  RAW  MATERIAL.  29 1 

was  not  procurable  in  the  market.  The  defendant  had 
no  notice  of  the  resale.  It  was  held  that  the  plaintiff 
could  recover  the  price  at  which  he  had  resold  the  cham- 
pagne, since  that  was  its  actual  value  at  the  time  and 
place  of  delivery.  Other  cases  rest  upon  the  same  princi- 
ple. So  where  by  the  defendant's  fault  the  plaintiff's; 
cattle  are  poorly  pastured,  he  may  recover  compensa- 
tion for  the  weight  which  they  should  have  gained,  that 
is,  for  the  additional  value  they  should  have  had  in  the 
market.  C) 

§  199.  Profits  expected  from  the  manufacture  of  raw 
material. — Where  raw  material  warranted  by  the  defend- 
ant to  be  of  a  certain  quality  is  manufactured  by  the 
plaintiff,  and  after  being  manufactured  is  discovered  to 
be  of  inferior  quality,  the  measure  of  damages  is  not  the 
lessened  value  of  the  material,  but  of  the  product :  pro- 
vided, of  course,  the  inferiority  could  not  be  discovered 
before  manufacture.  In  Parks  v.  Morris  A.  &  T.  Co.(^) 
a  plaintiff  was  allowed,  in  an  action  for  breach  of  warranty 
as  to  the  quality  of  steel,  to  recover  the  difference 
between  the  value  of  axes  he  had  manufactured  with 
the  steel  and  the  value  of  such  axes  if  they  had  been 
manufactured  of  steel  of  the  quality  warranted.  Where 
the  plaintiff  bought  dust  warranted  to  be  of  hard  coal 
for  use  in  making  bricks,  and  it  proved  to  contain  soft 
coal  dust,  the  measure  of  damages  was  the  lessened  value 
of  the  bricks.(°)  Such  cases  seem  to  amount  to  an  in- 
direct allowance  of  profits,  which  form  part  of  the  value 
which  the  plaintiff  has  lost. 

But  where  goods  were  purchased  for  manufacture,  and 
were  not  supplied,  the  plaintiff  cannot  recover  the  ex- 

C)  Hoge  V.  Norton,  22  Kas.  374;  Gilbert  v,  Kennedy,  22  Mich.  117. 

C)  54  N.  Y.  586. 

C)  Milburn  v.  Belloni,  39  N.  Y.  53. 


292  CERTAIN    AND    UNCERTAIN    DAMAGES.  §  200. 

pected  profit  of  manufacture  and  sale  of  the  manufac- 
tured goods.  C)  Such  profits  are  speculative.  Where 
the  defendant  converted  logs  which  the  plaintiff  was 
about  to  saw  in  his  mill,  and  the  plaintiff  was  unable 
to  get  other  logs,  it  was  held  that  the  profits  he  would 
have  made,  i.  e.,  the  full  value  of  the  lumber  less  the 
expense  of  sawing,  could  be  recovered.  (^)  Where  it  ap- 
peared that  the  logs  were  afterwards  delivered  to  the 
plaintiff,  sawed,  and  sold,  but  that  during  the  period  of 
delay  the  price  of  lumber  had  fallen,  such  profits  were 
measured  by  the  difference  between  the  price  of  lumber 
at  the  time  of  sale  and  at  the  time  it  would  have  been 
sold  but  for  the  defendant's  delay.  (°) 

§  200.  From  competition  or  speculation.  — Profits  expect- 
ed from  a  competition  or  a  speculation  are  too  uncertain 
for  compensation.  In  a  case  in  England,  where  a  prize 
had  been  offered  for  the  best  plan  and  model  of  a  ma- 
chine, and  plans  and  models  were  to  be  sent  by  a  certain 
day,  the  plaintiff  sent  a  plan  and  model  accordingly,  by  a 
railway ;  but  through  the  negligence  of  their  agents  it 
did  not  arrive  at  its  destination  till  after  the  time  ap- 
pointed ;  it  was  considered  that  the  proper  measure  of 
damages  was  the  value  of  the  labor  and  materials  ex- 
pended on  the  plan  and  model,  and  that  the  chance  of 
obtaining  the  prize  was  too  remote  to  be  estimated.'  In 
a  similar  case  in  Pennsylvania  this  opinion  was  disap- 
proved, the  court  holding  that  the  value  of  the  oppor- 
tunity to  compete  for  the  premium  furnished  the  measure 
of  the  plaintiff's  damages.    If  the  company  were  informed 

'  Watson  V.  Ambergate,  N.  &  B.  Ry.  Co.,  15  Jur.  448. 


(")  French  v.  Ramge,  2  Neb.  254. 

C)  Auger  V.  Cook,  39  Up.  Can.  Q.  B.  537  ;  Cockbum  v.  Muskoka  M.  & 
L.  Co.-,  13  Ont.  343. 

O  Mississippi  &  R.R.  B.  Co.  v.  Prince,  34  Minn.  71. 


§  200.  FROM  COMPETITION  OR   SPECULATION,  293 

of  the  object  of  the  transmission,  the  loss  of  the  privilege 
of  the  competition  was  in  view  of  both  parties  when  they 
entered  into  the  contract,  and  if  not,  the  loss  was  still 
the  result  of  the  carrier's  negligent  breach.  But  it  ap- 
pearing from  the  evidence  of  one  of  the  committee  by 
whom  the  prizes  were  awarded,  that  the  plaintiff  must  at 
any  rate  have  failed  to  obtain  the  prize,  he  was  held  en- 
titled to  nominal  damages  only.C)  The  rule  laid  down 
by  the  English  court  seems  most  in  accordance  with 
principle. 

It  has  been  held  that  in  an  action  for  the  wrongful 
transmission  of  a  telegraph  message,  whereby  the  plain- 
tiff was  prevented  from  entering  his  horse  in  a  race,  no 
damages  could  be  recovered  on  account  of  the  chance  of 
winning  a  prized)  And  in  an  action  for  injuring  a 
horse,  the  owner  could  recover  nothing  for  the  loss  of 
the  chance  of  winning  prizes  in  races. (°)  It  has  been 
held  that  the  chance  of  obtaining  employment  in  a  par- 
ticular situation,  for  which  the  plaintiff  intended  to  ap- 
ply, is  too  uncertain  ;  (^)  but  the  chance  that  a  father 
would  pay  a  son's  debt  to  release  him  from  custody  can 
be  estimated.(') 

A  telegram  ordering  the  purchase  of  oil  at  a  certain 
price  was  delayed,  until  the  next  day,  when  the  price  had 
risen,  and  no  oil  was  bought.  It  was  held  that  no  dam- 
ages could  be  recovered  of  the  telegraph  company  for 
loss  of  possible  profit  on  a  purchase  and  sale  of  oil ;  for 
the  sale  might  not  have  been  made,  and  the  chance  of 
gain  was  too  contingent.  C) 

C)  Adams  Express  Co.  v.  Egbert,  36  Pa.  360. 

(t)  Western  U.  T.  Co.  v.  Crall,  39  Kas.  580. 

(«)  Mizner  v.  Frazier,  40  Mich.  592. 

(0)  Hoey  V.  Felton,  11  C.  B.  (N.  S.)  142. 

(«)  Macrae  v.  Clark,  L.  R.  i  C.  P.  403- 

(0  Western  U.  T.  Co.  v.  Hall,  124  U.  S.  444. 


i294  CERTAIN   AND    UNCERTAIN    DAMAGES.  §  200. 

Where  the  defendant  agreed  to  pool  his  stock  with  the 
plaintiff's  until  it  could  be  sold  together,  but  broke  the 
contract  by  selling  to  a  stranger,  who  thereby  obtained 
control  of  the  corporation,  it  was  held  that  the  chance  of 
realizing  a  profit  by  the  pool  was  too  contingent  to  be 
compensated.  C) 


(»)  Havemeyer  v.  Havemeyer,  45  N.  Y.  Super.  Ct.  464. 


CHAPTER  VI. 


AVOIDABLE   CONSEQUENCES. 


§  201.  Plaintiff   cannot    recover    for 
avoidable  consequences. 

202.  Reason  of  the  rule. 

203.  Rule  sometimes  results  in  en- 

hancing damages. 

204.  Different  from  the  rule  of  con- 

tributory negligence. 

205.  The  rule  of  general  applica- 

tion. 

206.  Contracts  for  personal  services. 

207.  Employment  of  different  kind 

or  grade. 

208.  Duty  to  seek  employment  does 

not  arise  in  all  contracts. 

209.  Landlord's   agreement   to   re- 

pair. 

210.  Tenant's  agreement  to  make 

repairs. 

211.  Agreement  to  make  improve- 

ments. 

212.  Failure  to  furnish  freight. 

213.  Reparation  offered  by  defend- 

ant. 


§  214.  Actions  of  tort. 

215.  Expenses   of  avoiding  conse- 

quences recoverable. 

216.  Of  following  property. 

217.  Of  repairing  or   reducing  in- 

jury. 

218.  But  only  reasonable  expenses. 

219.  Rule  does  not  require  impossi- 

bilities. 

220.  Statutory   damages — Eminent 

domain. 

221.  Rule    requires    only   ordinary 

care. 

222.  Other  limits  of  the  rule. 

223.  Plaintiff's  knowledge— Notice. 

224.  Plaintiff  need    not    anticipate 

wrong. 

225.  Plaintiff  cannot  be   called  on 

to  commit  wrong. 

226.  Defendant    prevents    plaintiff 

from  avoiding  consequences. 

227.  Burden  of  proof. 

228.  Court  and  jury. 


§  201.  Plaintiff  cannot  recover  for  avoidable  consequences. 
— *  The  same  principle  which  refuses  to  take  into  consid- 
eration any  but  the  direct  consequences  of  the  illegal  act, 
is  applied  to  limit  the  damages  where  the  plaintiff,  by- 
using  reasonable  precautions,  could  have  reduced  them.** 

*  So  in  Maine,  in  an  action  of  assumpsit  for  a  quantity 
of  limestone,  the  court  said  : 

"  In  general,  the  delinquent  party  is  holden  to  make  good  the 
loss  occasioned  by  its  delinquency.  But  his  liability  is  limited 
to  direct  damages  which,  according  to  the  nature  of  the  sub- 
ject, may  be  contemplated  or  presumed  to  result  from  his  fail- 
ure.    Remote  or  speculative  damages,  although  susceptible  of 

(295) 


296  AVOIDABLE  CONSEQUENCES.         §  20I. 

proof  and  deducible  from  the  non-performance,  are  not  allowed  ; 
and  if  the  party  injured  has  it  in  his  power  to  take  measures  by 
which  his  loss  may  be  less  aggravated,  this  will  be  expected  of 
him.  If  the  party  entitled  to  the  benefit  of  a  contract  can  protect 
himself  from  a  loss  arising  from  a  breach,  at  a  trifling  expense 
or  with  reasonable  exertions, — he  fails  in  social  duty  if  he  omits 
to  do  so.  For  example,  a  party  contracts  for  a  quantity  of 
bricks  to  build  a  house,  to  be  delivered  at  a  given  time,  and  en- 
gages masons  and  carpenters  to  go  on  with  the  work.  The 
bricks  are  not  delivered.  If  other  bricks,  of  an  equal  quality 
and  for  the  stipulated  price,  can  be  at  once  purchased  on  the 
spot,  it  would  be  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." '  ** 

*  So  in  trespass  in  Massachusetts,  it  appearing  that  the 
defendant  had  broken  down  the  plaintiffs  fence  in  No- 
vember, but  that  the  plaintiff  did  not  repair  the  breach 
till  May,  in  consequence  of  which  cattle  got  in  and  de- 
stroyed the  crop  of  the  next  year,  and  the  claim  being 
for  the  loss  of  the  subsequent  year's  crop,  as  well  as 
the  expense  of  repairing  the  fence,  the  Supreme  Court 
said :  '■' 

"  In  assessing  damages,  the  direct  and  immediate  conse- 
quences of  the  injurious  act  are  to  be  regarded,  and  not  remote, 
speculative,  and  contingent  consequences,  which  the  party  in- 
jured might  easily  have  avoided  by  his  own  act.  Suppose  a 
man  should  enter  his  neighbor's  field  unlawfully,  and  leave  the 
gate  open  ;  if,  before  the  owner  knows  it,  cattle  enter  and  de- 
stroy the  crop,  the  trespasser  is  responsible.  But  if  the  owner 
sees  the  gale  open,  and  passes  it  frequently,  and  wilfully  and  ob- 
stinately, or  through  gross  negligence,  leaves  it  open-  all  sum- 
mer, and  cattle  get  in,  it  is  his  own  folly.  So,  if  one  throw  a 
stone  and  break  a  window,  the  cost-of  repairing  the  window  is 
the  ordinary  measure  of  damage.  But  if  the  owner  suffers  the 
window  to  remain  without  repairing  a  great  length  of  time  after 

'  Miller  v.  Mariner's  Church,  7  Me.        '  Loker  v.  Damon,  17  Pick.  284,  per 
51.     The    same   language  is  held   in     Shaw,  C.  J. 
Iowa,  Davis  v.  Fish,  i  Greene  (la.)  406. 


§  202.  REASON    OF   THE   RULE.  297 

notice  of  the  fact,  and  his  furniture,  or  pictures,  or  other  valu- 
able articles,  sustain  damage,  or  the  rain  beats  in  and  rots  the 
window,  this  damage  would  be  too  remote.  We  think  the  jury 
were  rightly  instructed,  that,  as  the  trespass  consisted  in  remov- 
ing a  few  rods  of  fence,  the  proper  measure  of  damages  was  the 
cost  of  repairing  it,  and  not  the  loss  of  a  subsequent  year's  crop, 
arising  from  the  want  of  such  fence."  '  ** 

And  the  rule  is  applied  in  equity  as  well  as  at  law-C) 

§  202.  Reason  of  the  rule. — It  is  frequently  said  that  it 
is  the  duty  of  the  plaintiff  to  reduce  the  damages  as  far 
as  possible.  It  is  more  correct  to  say  that  by  consequences 
which  the  plaintiff,  acting  as  prudent  men  ordinarily  do, 
can  avoid,  he  is  not  legally  damaged.  Such  consequences 
can  hardly  be  the  direct  or  natural  consequence  of  the  de- 
fendant's wrong,  since  it  is  at  the  plaintiff's  option  to  suffer 
them.  They  are  really  excluded  from  the  recovery  as  re- 
mote. In  this  view  the  doctrine  would  rest  on  the  interven- 
tion of  the  plaintiffs  will  as  an  independent  cause.  (")  Ad 
hoc  he  is  not  damaged  by  the  defendant's  act,  but  by  his 
own  negligence  or  indifference  to  consequences.  Thus,  in  a 
case  in  New  Jersey,  the  cause  of  action  was  the  taking 
by  the  defendant  of  the  plaintiff's  fiat  from  his  ferry, 
whereby  the  plaintiff  was  prevented  from  crossing  a  river, 
and  obliged  to  leave  his  horses  and  wagon  on  the  bank 
to  go  in  search  of  the  flat.  In  his  absence  the  horses  ran 
into  the  river  and  were  drowned ;  but  it  was  held  that 
the  plaintiff  could  not  recover  for  their  loss,  which  was 
caused  by  his  own  negligence  in  leaving  them  unse- 
cured. (":)  And  where  a  lease  contained  a  covenant  to- 
furnish  a  certain  amount  of  power,  and  less  was  furnished, 

'  And  see  Thompson  v.  Shattuck,  2  Met.  615. 

(»)  Taylor  v.  Read,  4  Paige  561. 

(")  The  use  of  the  word  duty  is  common  in  the  cases,  and  it  is  almost  im- 
possible to  avoid  it ;  but  it  should  be  clearly  understood  that  its  use  is  loose ; 
there  being  no  corresponding  right  in  the  defendant. 

C)  Gordon  v.  Butts,  3  N.  J.  L.  333. 


298  AVOIDABLE    CONSEQUENCES.  §  202. 

it  was  held  that  loss  caused  by  an  attempt  to  manufacture 
with  inadequate  power  was  remote. (") 

So  too  the  loss  of  crops  is  not  the  proximate  result  of 
deprivation  of  an  animal  by  which  the  owner  intended  to 
harvest  the  crops  ;  consequently  in  an  action  for  depriva- 
tion of  the  animal  no  compensation  can  be  recovered  for 
loss  of  the  crop.C')  So  where  through  deprivation  of 
the  use  of  an  agricultural  machine  or  through  a  defect  in 
it  the  owner  loses  his  crops,  such  loss  is  too  remote,  and 
he  cannot  recover  compensation  for  it.(°)  And  loss  of 
crops  from  loss  of  service  of  a  servant  or  slave  is  too 
remote  to  be  compensated  in  an  action  founded  on  the 
loss  of  service. C)  It  is,  however,  held  that  where  no 
other  assistance  can  be  procured  the  plaintiff  may  recover 
compensation  for  the  loss.(') 

Where,  in  a  lease  of  a  dairy  farm  for  five  years,  the 
lessor  agreed  to  put  the  barns  on  the  premises  in  a  good 
state  of  repair,  but  neglected  to  do  so ;  it  was  held  that 
the  lessee  could  recover  the  amount  it  would  cost  to  put 
the  barns  in  repair,  but  not  the  damage  sustained  by  in- 
juries to  the  cows  and  young  cattle,  the  increase  of  food 
required  and  the  decrease  of  produce  resulting  from  the 
state  of  the  barns ;  these  damages  being  "  altogether  too 
remote  and  contingent." 

'  Dorwin  v.  Potter,  5  Denio,  306 


(')  Manhattan  S.  W.  v.  Koehler,  45  Hun  1 50. 

C)  Sledge  V.  Raid,  73  N.  C.  440 ;  Jackson  v.  Hall,  84  N.  C.  489 ;  Luce  v. 
Hoisington,  54  Vt.  428 ;  56  Vt.  436. 

(O  Fuller  V.  Curtis,  100  Ind.  237 ;  McCormick  v.  Vanatta,  43  la.  389 ; 
Osborne  v.  Poket,  33  Minn.  10;  Brayton  v.  Chase,  3  Wis.  456.  It  is  held 
in  Louisiana  that  on  failure  to  deliver  a  sugar  mill  the  purchaser  may  recover 
compensation  for  the  crop  necessarily  lost.  Goodloe  v.  Rogers,  10  La.  Ann. 
<3i. 

(")  Prosser  v.  Jones,  41  la.  674  ;  Usher  v.  Hiatt,  18  Kas.  195  ;  Johnson  v. 
Courts,  3  H.  &  McH.  510;  Peters  v.  Whitney,  23  Barb.  24. 

(•)  Hobbs  V.  Davis,  30  Ga.  423;  Houser  v.  Pearce,  13  Kas.  104. 


§  203.       RULE    RESULTS   IN    ENHANCING   DAMAGES.  299 

So  in  an  action  brought  on  a  covenant  to  keep  one- 
half  of  a  mill-dam  in  repair  it  was  held  in  Massachu- 
setts that  the  plaintiff,  whose  duty  it  was  to  repair  the 
other  half,  could  not  recover  the  loss  of  profits  in  his 
business  through  the  dam  falling  out  of  repair.'  The 
lessor  of  a  mill  covenanted  to  repair  a  dam,  and  if  he 
did  not  the  lessee  had  the  right  to  make  repairs  at  the 
expense  of  the  lessor.  In  an  action  by  the  lessee  for 
breach  of  the  covenant  of  repair  it  was  held  that  loss  of 
profits  caused  by  the  disrepair  of  the  dam  was  too 
remote."(^)  The  defendant  pulled  down  the  plaintiffs 
fence ;  it  was  held  that  the  expense  of  keeping  intruders 
out  of  the  plaintiffs  unfenced  enclosure  was  "too  re- 
mote."('')  The  plaintiff  in  each  case  should  have  avoided 
the  loss  by  repairing. 

§  203.  Rule  sometimes  results  in  enhancing  damages. — 
The  observance  of  the  rule  by  the  plaintiff  will  not 
always  have  the  effect  of  reducing  the  damages ;  it  may 
even  enhance  them.  Thus,  where  one  has  hired  a  horse, 
and  by  improper  treatment  returned  him  in  an  injured 
condition,  and  the  owner  employs  a  proper  veterinary 
surgeon,  who  treats  the  animal  according  to  his  best 
judgment,  but  is  unable  to  cure  him,  the  hirer  will  be 
liable  for  the  full  value,  although  such  treatment  was  in 
fact  improper  and  contributed  to  the  horse's  death.  (°) 
And  so,  if  a  passenger  in  a  coach,  by  reason  of  a  peril 
arising  from  an  accident  for  which  the  proprietors  are 
liable,  is  in  so  dangerous  a  situation  as  to  render  his  leap- 
ing from  the  coach  an  act  of  reasonable  precaution,  and 
he  leaps  therefrom,  and  thereby  injures  himself,  the  pro- 

'  Thompson  v.  Shattuck,  2  Met.  615. 

(»)  Fort  V.  OrndofF,  7  Heisk.  167. 
O")  Krueger  v.  Le  Blanc,  62  Mich.  70. 
(')  Eastman  v.  Sanborn,  3  All.  594. 


300  AVOIDABLE  CONSEQUENCES.         §  204. 

prietors  are  responsible  in  damages,  thougii  he  might  have, 
retained  his  seat  in  safety. (") 

§  204,  Different  from  the  rule  of  contributory  negligence. 
— The  application  of  the  doctrine  of  contributory  negli- 
gence and  of  that  of  avoidable  consequences  often  pro- 
duce results  that  closely  resemble  each  other ;  but  there 
is  a  distinction  between  the  two.  Contributory  negli- 
gence defeats  the  action  itself.  The  rule  of  avoidable 
consequences  can  never  produce  this  result,  as  it  cannot  be 
applied  until  a  cause  of  action,  which  in  any  event  will  en- 
title the  party  injured  to  nominal  damages,  has  arisen. (*") 
The  rule,  therefore,  is  really  a  rule  of  limitation  upon  the 
plaintiff's  recovery.  Nor  is  it  properly  to  be  regarded  as 
a  species  of  mitigation  of  damages.  This  relates  to  the 
defendant  and  generally  to  the  character  of  his  acts;  e.g., 
that  a  tort  was  not  malicious ;  that,  after  committing  a 
trespass,  he  repaired  the  wrong  as  far  as  possible.  But  a 
reduction  of  t\ie  plaintiff ' s  damages  by  any  such  particu- 
lars as  flow  from  his  own  imprudent  act,  or  omission  to 
act  afier  the  wrong  has  been  committed,  constitute  a  dis- 
tinct class  of  remote  damages  in  the  strict  sense  of  the 


(»)  Jones  V.  Boyce,  l  Stark.  493  ;  Ingalls  v.  Bills,  9  Met.  i ;  and  see,  for  an 
interesting  discussion  of  the  principles  involved,  Wilson  v.  Newport  Dock 
Co.,  4  H.  &  C.  232. 

C)  Lawson  v.  Price,  45  Md.  123,  137.  This  distinction  is  made  very  clear 
by  the  fact  that  in  such  a  case  as  that  of  personal  service,  a  plea  in  bar  of  the 
action  that  by  reasonable  diligence  plaintiff  might  have  procured  employment 
at  a  compensation  equal  to  that  agreed  to  be  paid  him,  is  bad.  Armfield  -j. 
Marsh,  31  Miss.  361  (1856).  He  is  entitled  to  nominal  damages,  at  any  rate. 
It  is  true  that  the  case  of  Franklin  v.  Smith,  21  Wend.  624,  does  not  support 
this  view.  There  it  was  held  that,  in  an  action  against  a  notary  for  omission 
of  notice  of  protest,  where  it  appeared  that  the  plaintiff  need  not  have  sus- 
tained any  loss  with  ordinary  attentions  to  the  case,  the  notary  was  not 
liable.  But  the  distinction  between  the  rule  of  contributorj'  negligence  and 
of  avoidable  consequences  does  not  seem  to  have  been  called  to  the  attention 
of  the  court. 


f  205.  THE   RULE   OF   GENERAL   APPLICATION.  301 

word ;  of  damages  which  flow  from  the  illegal  act,  but 
for  which  the  law  gives  no  redress. 

§  205.  The  rule  of  general  application. — The  rule  ap- 
plies, both  in  contract  and  tort,  and  illustrations  may  be 
■drawn  from  every  branch  of  the  law.  It  should  be  noticed, 
however,  that  while  of  very  general  range,  the  circum- 
stances of  many  contracts  forbid  its  application.  Thus  in 
an  ordinary  contract  for  manufacture  and  delivery  of  chat- 
tels, when  a  vendor  fails  to  deliver,  the  usual  rule  is  the 
difference  between  the  contract  and  market  price,  and 
this,  says  Sharswood,  J.,('')  is  "for  the  evident  reason  that 
the  vendee  can  go  into  the  market  and  obtain  the  article 
■contracted  for  at  that  price."  This  would  be  an  application 
of  the  rule  of  avoidable  consequences,  and  it  follows  that 
when  it  appears  that  an  article  of  the  same  quality  cannot 
be  procured  in  the  same  market,  the  true  measure .  is  the 
actual  loss  in  manufacture  by  having  to  use  an  inferior 
article,  or  the  loss  on  any  sub-contract.  But  even  here, 
the  rule  of  avoidable  consequences  cannot  be  lost  sight 
of;  the  court  adds  :  "  We  do  not  mean  to  say  that  if  he  un- 
dertakes to  fill  his  own  contracts  with  an  inferior  article, 
and  in  consequence  such  article  is  returned  on  his  hands, 
he  can  recover  of  his  vendor,  besides  the  loss  sustained  on 
his  contracts,  all  the  extraordinary  loss  incurred  by  his 
attempting  what  was  clearly  an  unwarrantable  experi- 
ment." C) 

In  an  action  for  failure  to  deliver  certain  articles,  ac- 
cording to  contract,(°)  the  court  said,  that  if  the  article  to 
be  furnished  could  be  purchased  in  the  market,  the  mar- 
ket price  furnishes  the  rule  ;  but,  even  if  it  could  not,  still 
•"  the  party  who  suffers  from  a  breach  of  contract  must  so 
act  as  to  make  his  damage  as  small  as  he  reasonably  can." 

(")  McHose  V.  Fulmer,  73  Pa.  365  (1873).  C)  lb.,  p.  367. 

I')  Parsons  v.  Sutton,  66  N.  Y.  92. 


302  AVOIDABLE  CONSEQUENCES.         §  205. 

It  was  further  held,  where  the  articles  were  offered  to 
the  purchaser  after  the  time  for  delivery  fixed  in  the  con- 
tract, that  this  offer  excluded  his  claim  for  damage  which 
accrued  subsequently,  the  court  saying:  "  Under  such  cir- 
cumstances the  defendants  could  not  refuse  to  take  the 
paper  offered,  and  throw  upon  the  plaintiffs  all  the  remote 
subsequent  damage  which  they  claim  to  have  sustained. 
They  had  the  right  to  refuse  to  take  this  paper  after  the 
second  day  of  June.  But  they  could  not  refuse  to  take 
it  and  then  claim  special  damages  because  they  could  not 
get  it."  This  would  lead  to  the  conclusion  that  often 
the  reason  why  the  plaintiff  is  confined  to  the  market 
value  is  because  his  natural  course  was  to  go  into  the 
market  and  make  his  loss  good.^) 

Where  plaintiff  telegraphed  an  acceptance  of  an  offer 
to  buy  cotton  of  him,  on  finding  that  the  message  had 
not  been  sent,  it  was  held  that  he  should  have  taken, 
within  a  reasonable  time,  steps  to  prevent  unnecessary 
loss,  "  If  he  had  the  cotton  to  deliver,  or  had  arranged 
to  procure  it  for  delivery,  he  should  have  made  an  effort 
to  sell  it ;  and  if  he  made  future  contracts  for  its  pur- 
chase, for  the  purpose  of  fulfilling  his  contract  of  sale,  he 
was  not  authorized  to  extend  them  from  month  to  month  on 
a  declining  market,  and  fasten  the  loss  on  defendant." C") 

In  Baldwin  v.  U.  S.  Tel.  Co.C)  plaintiff  delivered  a 
message  to  a  telegraph  company,  requesting  his  agent  to 
telegraph  back  information  as  to  petroleum  wells,  the 
property  of  the  plaintiff.  Plaintiff  informed  the  operator 
that  unless  an  answer  was  received  he  would  sell  at  a  cer- 
tain price.  Receiving  no  reply,  he  sold  at  the  offer.  It 
was  held  that  he  could  not  hold  the  telegraph  company 


(")  See  chapter  on  Sales. 

C)  Western  Union  Telegraph  Co.  v.  Way,  83  Ala.  542. 

(•)  45  N.  Y.  744. 


§  205.  THE    RULE   OF   GENERAL   APPLICATION.  303 

for  the  difference  between  this  price  and  a  higher,  market 
value,  the  court  giving,  among  other  reasons,  that  the. 
notice  to  the  operator  did  not  relieve  the  plaintiff  of  the 
ordinary  duty  to  take  all  reasonable  measures  to  diminish, 
damages. 

Scott  V.  Boston  &  N.  O.  S.S.  Co.C)  was  a  case  against  a 
carrier  for  non-delivery,  where  the  plaintiff  lost  a  sub- 
contract at  an  increased  price.  The  case  seems  to  be 
rested  by  the  court  on  the  absence  of  notice,  but  it  is  also 
said  that  "  it  would  ordinarily  be  unjust "  to  make  loss  of 
profits  in  such  a  case  a  basis  of  damages,  because  the  plain- 
tiff can  generally  protect  himself  from  loss  by  a  purchase 
of  the  commodity  at  the  market.  "  He  cannot  be  per- 
mitted to  recover  of  the  defendant  for  losses  which  by 
reasonable  effort  he  might  have  avoided." 

So  a  purchaser  (giving  notice  of  the  intended  use)  can,, 
for  failure  to  delivermachinery,  recover  for  damages  for  his 
mill  being  kept  idle  till  he  could  replace  himself  in  the 
market.Q')  In  Hinde  v.  Liddell,(°)  an  action  for  breach 
of  contract  to  deliver  shirtings,  it  appeared  that  the  plain- 
tiff had  bought  the  best  substitute  he  could  get  after  the 
defendant's  breach,  so  as  to  comply  with  a  sub-contract  he 
had  entered  into.  Although  this  substitute  was  more  ex- 
pensive and  of  better  quality,  it  was  held  that  he  could  re- 
cover the  difference  between  the  contract  price  and  the 
price  he  had  paid  for  these  shirtings,  Blackburn,  J.,  saying  •, 
"  But  there  was  no  market  for  this  particular  description. 
of  shirtings,  and  therefore  no  market  price  ;  in  such  a  case 
the  measure  of  damages  is  the  value  of  the  thing  at  the 
time  of  the  breach  of  the  contract,  and  that  must  be  the 
price  of  the  best  substitute  procurable." 

In  True  v.  International   Telegraph   Company,(^)   an 

(")  106  Mass.  468.  {")  Benton  v.  Fay,  64  111.  417. 

(')  L.  R.  10  Q.  B.  265.  C)  60  Me.  9. 


304  AVOIDABLE    CONSEQUENCES.  §   205. 

action  against  a  telegraph  company  for  failure  to  deliver  a 
message  which  accepted  an  offer  to  sell  plaintiffs  some 
corn,  the  measure  of  damages  was  held  to  be  the  differ- 
ence between  the  price  named  and  that  which  the  plain- 
tiff would  have  been  obliged  to  pay  at  the  same  place,  in 
order,  by  due  and  reasonable  diligence  after  notice  of  the 
failure  of  the  telegram,  to  purchase  the  like  quantity  and 
quality  of  the  same  species  of  merchandise. 

And  so  in  an  action  against  a  railroad  company  for 
breach  of  contract  to  take  water  from  a  water-station  to 
be  constructed  by  plaintiff,  it  was  held  that  the  plaintiff 
could  not,  because  the  railroad  had  abandoned  the  con- 
tract, suffer  the  property  to  go  to  decay  and  become 
utterly  useless,  so  as  to  hold  the  defendant  for  the  original 
■cost  and  value.  The  plaintiff's  course  was  to  sell  the  mate- 
rials for  the  best  price  obtainable,  or  to  put  them  to  some 
use  to  which  they  were  adapted. (")  In  Grau  v.  Mc- 
Vicker,('')  a  case  of  a  lease  of  a  theatre  to  commence  at 
a  future  time ;  before  the  time  came,  the  lessor  notified  the 
lessee  that  he  would  not  take  the  theatre.  It  was  held 
that  this  refusal  was  a  breach, (")  entitling  the  lessor  to 
sue  at  once,  and  that  the  measure  of  his  damages  would 
be  the  stipulated  rental,  less  anything  which  he  might 
have  made  or  did  make  by  letting  the  premises  mean- 
time. In  Campbell  v.  Miltenberger  (^)  the  court  refused 
to  allow  large  damages  for  injuries  resulting  from  the  de- 
fendant's having  put  up  a  fence  improperly,  holding  that 
the  plaintiff,  who  had  stood  by  for  seven  years  seeing  the 
fence  slowly  go  to  ruin,  could  only  recover  the  amount 
which  it  would  have  cost  to  put  the  fence  in  a  proper 


(»)  New  Orleans  J.  &  G.  N.  R.R.  Co.  v.  Echols,  54  Miss.  264. 

C)  8  Biss.  13. 

f)  Following  Hochster  v.  De  la  Tour,  2  E.  &  B.  678. 

(■")  26  La.  Ann.  72. 


1^   205.  THE    RULE    OF   GENERAL   APPLICATION.  305 

condition  when  the  discovery  of  the  defect  was  first 
made. 

Mather  v.  Butler  County  (")  was  an  action  for  furnish- 
ing materials  and  work  and  labor  on  defendant's  court- 
house. The  defendant  had  a  counterclaim  for  damages 
caused  by  defective  work.  An  instruction  was  refused 
to  the  effect  that  if  defendant  could  have  protected  itself 
from  such  damages,  at  a  moderate  expense  and  by  or- 
dinary efforts,  it  was  bound  to  do  so,  and  could  charge 
the  plaintiff  only  for  such  expense  and  efforts,  and  for 
damages  which  would  not  be  prevented  by  such  efforts 
and  at  such  expense.  Held  that  it  should  have  been  given. 
Hamilton  v.  McPherson  (")  was  a  case  against  a  carrier 
for  injury  of  goods  through  delay.  It  was  held  in  ac- 
cordance with  the  general  rule  that  the  plaintiffs  could 
not  recover  for  the  injury,  if  it  were  caused  by  the  neglect 
on  their  part  to  take  ordinary  precautions  to  prevent 
damages  from  the  breach  of  defendant's  contract.  Where 
the  injury  complained  of  was  the  breach  of  a  contract 
to  make  plaintiff  sole  agent  for  the  sale  of  machinery, 
and  evidence  was  offered  to  the  effect  that  the  agent  of 
those  having  control  of  the  machines  offered  after  the 
breach  to  let  the  plaintiff  sell  them,  it  was  held  that  this 
tended  to  show  that  plaintiff  was  not  damaged  at  all.(°) 

In  a  case,  where,  through  the  defendant's  negligence, 
an  endowment  policy  lapsed,  it  was  said  to  be  the 
plaintiff's  duty  to  use  proper  care  and  to  adopt  all  rea- 
sonable means  to  prevent  further  damage,  either  by  re- 
instating himself  with  the  company,  or  by  reinsuring, 
and  that  the  defendant  would  not  be  liable  for  loss  the 
plaintiff  could  have  prevented,  the  court  saying :  "  But 
the  law  makes  it  incumbent  upon  a  person  for  whose  in- 

(»)  28  la.  253.  C)  28  N.  Y.  72. 

(")  Beymer  v.  McBride,  37  la.  114. 
Vol.  I.— 20 


306  AVOIDABLE    CONSEQUENCES.  §  205. 

jury  another  is  responsible,  to  use  ordinary  care  and  take 
all  reasonable  measures  within  his  knowledge  and  power 
to  avoid  the  loss  and  render  the  consequences  as  light  as 
may  be ;  and  it  will  not  permit  him  to  recover  for  such 
losses  as  by  such  care  and  means  might  have  been  pre- 
vented." The  court,  however,  pointed  out  that  the  plain- 
tiff could  show  a  good  excuse  for  not  reinsuring. (*)  In 
actions  to  recover  damages  for  breach  of  contract  for 
the  manufacture  and  sale  of  certain  milk-coolers,  it 
appeared  that  the  defect  complained  of  was  simply  in  the 
pans  used  ;  held  that  the  measure  of  damages  was  simply 
the  expense  of  substitution  of  perfect  pans-C")  In  an 
action  for  breach  of  contract,  where  the  plaintiff  had 
materials  left  on  his  hands,  the  court  said  that  dam- 
ages should  not  be  allowed  the  claimant  for  loss  or  injury 
to  his  materials,  which  he  might  have  prevented  by  the 
exercise  of  reasonable  care  and  prudence.(°) 

And  so  it  has  been  decided  that  a  passenger  should 
procure  another  conveyance  on  a  railroad's  failure  to  per- 
form the  contract  of  carriage. (*)  And  the  rule  has  been 
applied  to  a  continuing  contract  to  sell  books  by  sub- 
scription, (")  to  contracts  to  furnish  board  and  lodging,(*^) 
to  contracts  of  hiring,(8)  to  contracts  by  carriers,('')  to 
contracts  to  keep  premises  leased  in  repair,('')  and  to 
many  other  cases.  (')  Some  particular  classes  of  con- 
tracts will  now  be  considered. 


(»)  Grindle  v.  Eastern  Express  Co.,  67  Me.  317. 

(')  N.Y.  State  Monitor  Milk  Pan  Co.  (Limited)  v.  Remington,  log  N.Y.  143. 

C)  U.  S.  V.  Smith,  94  U.  S.  214. 

("*)  Indianapolis,  Bloomington  &  Western  Ry.  Co.  v.  Birney,  71  111.  391. 

(«)  Warren  v.  Stoddart,  105  U.  S.  224  (1881). 

O  Wilson  V.  Martin,  i  Den.  602  ;  Spencer  v.  Halstead,  lb.  606. 

(e)  Heavilon  v.  Kramer,  31  Ind.  241. 

0  Cincinnati  &  Chicago  A.  L.  R.R.  Co.  v.  Rodgers,  24  Ind.  103. 

P)  Flynn  v.  Trask,  u  All.  550. 

X')  Frost  V.  Knight,  L.  R.  7  Ex.  1 1 1 ;  Beymer  v.  McBride,  37  la.  1 14. 


■§  206.    EMPLOYMENT    OF   DIFFERENT   KIND    OR   GRADE.    307 

§  206.  Contracts  for  personal  services. — When  a  servant, 
or  other  employee,  is  discharged  without  lawful  cause, 
he  will,  acting  with  ordinary  prudence,  seek  other  em- 
ployment, and  the  amount  which  he  earns  in  this  way, 
or  which  he  might  have  earned  had  he  used  reasonable 
efforts,  will  be  allowed  in  reduction  of  the  damages  given 
for  his  discharge.C)  And  a  plaintiff  who  receives  as  much 
in  the  new  employment  as  he  would  have  received  in  the 
old  one,  is,  on  the  principles  already  stated,  still  entitled 
to  nominal  damages-C*)  The  rule  does  not  mean  that  the 
party  injured  is  bound  to  take  any  employment  that 
offers,  nor  to  abandon  his  home  and  place  of  residence  to 
seek  other  employment,  but  only  to  use  reasonable  dili- 
gence in  procuring  employment  of  the  same  or  similar 
kind.C) 

§  207.  Employment  of  different  kind  or  grade. — It  is 
well  established  that  the  plaintiff  is  not  compelled  to  ac- 
cept employment  of  an  entirely  different  sort.C^)  "The 
defendants  had  agreed  to  employ  the  plaintiff  in  super- 

(')  Walworth  v.  Pool,  9  Ark.  394  (1849) ;  McDaniel  v.  Parks,  19  Ark. 
671  (1858) ;  Sutherland  v.  Wyer,  67  Me.  64;  Hoyt  v.  Wildfire,  3  Johns.  518; 
Shannon  v.  Comstock,  21  Wend.  457  (1839) ;  Howard  v.  Daly,  6i  N.  Y. 
362  ;  Hendrickson  v.  Anderson,  j  Jones  L.  246 ;  King  v.  Steiren,  44  Pa.  99; 
Gordon  v.  Brewster,  7  Wis.  355.  And  as  the  plaintiff  cannot  enhance  his 
damages  by  lying  idle,  so  it  has  been  said  he  cannot  make  a  claim  for  serv- 
ices by  performing  his  side  of  the  contract  after  breach  by  defendant.  Thus, 
in  a  case  of  employment  to  do  work  and  labor  in  cleaning  and  repairing 
paintings,  when  defendant  notified  plaintiff  not  to  go  on,  but  the  latter  never- 
theless completed  the  work,  it  was  held  by  the  Supreme  Court  of  New  York 
that  he  had  no  right  to  increase  his  claim  in  this  way.  Clark  v.  Marsiglia,  I 
Denio  317. 

C)  Williams  v.  Chicago  Coal  Co.,  60  111.  149. 

(«)  Williams  v.  Chicago  Coal  Co.,  60  111.  149 ;  Costigan  v.  Mohawk  &  H. 
R.R.  Co.,  2  Den.  609 ;  Howard  v.  Daly,  61  N.  Y.  362 ;  Fuchs  v.  Koerner,  107 
N.  Y.  529.  The  case  of  Huntington  v.  Ogdensburgh  &  L.  C.  R.R.  Co.,  33 
How.  Pr.  416,  seems  in  conflict  with  this  general  limitation  of  the  rule. 

('')  Leatherberry  v.  Odell,  7  Fed.  Rep.  641 ;  Fuchs  v.  Koerner,  107  N.  Y, 
529. 


308  AVOIDABLE    CONSEQUENCES.         §§  207,   2o8. 

intending  a  railroad  from  Albany  to  Schenectady,  and 
they  cannot  insist  that  he  should,  in  order  to  relieve  their 
pockets,  take  up  the  business  of  a  farmer  or  a  merchant. 
Nor  could  they  require  him  to  leave  his  home  and  place 
of  residence  to  engage  in  business  of  the  same  character 
with  that  in  which  he  had  been  employed  by  the  defend- 
ants-''^)  So  in  a  case  where  the  manager  of  a  bank  was 
wrongfully  discharged,  the  court  said :  "No  doubt  the 
position  of  manager  of  a  bank  was  not  to  be  got  every 
day,  and  that  was  to  be  considered."('')  Nor  is  a  dis- 
charged agent  or  servant  bound  to  accept  employment  of 
greatly  inferior  sort  than  that  from  which  he  was  dis- 
charged. Thus,  where  a  mate  was  wrongfully  discharged, 
and  was  able  to  get  employment  only  before  the  mast, 
it  was  held  that  he  was  not  bound  to  accept  such  em- 
ployment ;  and  what  he  had  in  fact  earned  before  the  mast 
was  not  deducted  from  the  wages  due  him  by  his  con- 
tract. (°)  And  the  plaintiff  may  in  certain  cases  have  a 
right  to  reject  employment  suitable  in  kind  and  grade. 
Thus  the  plaintiff's  minor  son,  having  been  wrongfully 
discharged  by  the  defendant,  it  was  held  that  the  father 
was  not  bound  to  accept  for  his  son  the  first  employment 
that  was  offered,  but  had  a  right  to  look  for  other  things 
than  mere  wages,  namely,  for  the  material  and  moral  wel- 
fare of  his  son.C) 

§  208.  Duty  to  seek  employment  does  not  arise  in  ail 
contracts. — The  duty  to  seek  employment,  too,  is  depend- 
ent upon  the  original  contract  being  one  of  employment 
or  hiring.     It  is  not  applicable  to  every  species  of  con- 

(')  Costigan  v.  Mohawk  &  H.  R.R.  Co.,  2  Den.  609. 

<^)  Hartland  v.  General  Exchange  Bank,  14  L.  T.  Rep.  863. 

(=)  Sheffield  v.  Page,  i  Sprague,  285  ;  but  qucere,  as  to  the  last  point :  if 
he  actually  earned  it,  since  what  he  recovers  is  the  value  of  the  contract,  i.  e., 
the  value  of  his  whole  time,  must  not  all  actual  earnings  be  deducted  ? 

('')  Strauss  v.  Meertief,  64  Ala.  299. 


§  209.         landlord's  agreement  to  repair.  309 

tract.  This  question  has  been  considered  by  the  Supreme 
Court  of  Pennsylvania  (")  in  the  case  of  the  lease  of  a 
farm  when  possession  was  refused.  In  an  action  by  the 
lessee  the  lessor  was  permitted  to  prove  that  the  lessee  had 
been  engaged  in  a  totally  different  occupation  from  farm- 
ing, which  had  been  more  profitable  to  him.  The  Supreme 
Court  of  Pennsylvania  held  this  to  be  error,  on  the 
ground  that  ordinary  contracts  of  hiring  and  contracts 
for  the  performance  of  some  specific  undertaking  cannot 
be  governed  by  the  same  rule  ;  that  in  the  one  case  the 
party  can  earn  no  more  than  the  wages,  and  if  he  gets 
that  his  loss  will  be  but  nominal ;  whereas,  in  the  other 
case,  the  loss  of  the  party  is  the  loss  of  the  benefit  of  the 
contract.  To  apply  the  doctrine  of  avoidable  conse- 
quences to  such  cases  would  "  involve  proof  of  every- 
thing, great  and  small,  no  matter  how  various  the  items 
done  by  the  plaintiff  during  the  period  of  the  contract 
might  be,  and  how  much  he  made  in  the  meantime." 
Besides  this,  in  analogy  with  the  principle  of  proximate 
cause,  it  was  said  that  whatever  is  to  have  the  effect  of 
lessening  the  plaintiff's  damages  should  have  some  proxi- 
mate relation  to  the  contract  itself. 

§  209.  Landlord's  agreement  to  repair. — In  a  suit  by 
tenant  against  landlord  for  breach  of  agreement  to  repair, 
the  general  rule  is  that  the  measure  of  damages  is  the 
expense  of  the  repairs ;  for  these  the  plaintiff,  being  in 
possession  of  the  premises,  may  and  should  make.  And 
therefore,  if  a  landlord  fails  to  make  repairs  as  agreed 
before  a  certain  date,  the  damages  are  to  be  assessed  as 
of  that  date.  The  tenant  cannot  recover  a  claim  paid 
by  him  to  another  party  for  damages  subsequently  caused 
by  the  defective  condition  of  the  premises.('')     When 

(»)  Wolf  w.  Studebaker,  65  Pa.  459  (1870). 

(")  Sparks  v.  Bassett,  49  N.  Y.  Super.  Ct.  270  (1883). 


3IO  AVOIDABLE   CONSEQUENCES.  §  209. 

the  landlord  agrees  to  furnish  timber  to  keep  old  fences; 
in  repair  and  pay  the  tenant  for  any  new  rails  made 
and  put  up  necessary  for  repairs,  and  the  tenant  could 
have  made  the  fences  good  and  at  trifling  expenditure,, 
it  was  held  that  he  should  have  done  so,  and  not 
having  taken  the  proper  steps,  could  not  recover  for  sub- 
sequent injury  therefor  owing  to  want  of  fences.^) 
And  so  where  the  landlord  covenanted  to  repair  a  mill- 
dam,  and  failed  to  do  so,  it  was  the  duty  of  the  tenant 
to  repair  it,  and  he  could  not  neglect  to  do  so  and  then 
recover  for  injury  to  the  machinery  caused  by  its  inactiv- 
ity and  for  loss  of  custom. C")  In  a  case  in  Missouri  (°)  the 
lessor  covenanted  to  build  a  wall  on  leased  premises,  and 
it  was  held  by  the  Supreme  Court  of  that  State  that  the 
lessee's  measure  of  damages  in  such  a  case  was  not  the 
difference  in  rental  value,  but  the  cost  of  rebuilding  the 
wall  and  damages  for  the  period  of  delay.  The  tenant 
cannot  abandon  the  premises  and  then  claim  damages; 
for  the  whole  loss.  And  such  is  the  general  rule.('*)  In 
the  case  of  a  covenant  to  repair  by  a  landlord,  it  has  been 
held,  however,  by  the  New  York  Court  of  Appeals  that 
the  tenant  has  an  option  either  to  make  the  repairs  and 


(»)  Parker  v.  Meadows,  86  Tenn.  181. 

('')  Fort  V.  Orndorff,  7  Heisk.  167.  In  this  case,  as  well  as  the  preceding,, 
a  right  to  repair  was  reserved  to  the  tenant  by  contract,  but  the  cases  were  de- 
cided upon  the  general  principle  under  discussion.  In  the  case  of  a  mill-dam, 
where  the  ownership  on  the  two  banks  of  a  stream  is  in  different  persons,  aa 
express  stipulation  may  (as  in  Fort  v.  Orndorff,  supra)  give  the  tenant  a 
right  to  make  repairs  on  premises  outside  the  lease  which  he  would  otherwise- 
not  have.  In  such  a  case  as  Parker  v.  Meadows,  above,  the  stipulation  would 
oblige  the  landlord  to  pay  under  the  contract  what  otherwise  the  tenant 
might  compel  him  to  pay  outside  the  contract  by  way  of  damages  for  its- 
breach. 

(f)  Fisher  v.  Goebel,  40  Mo.  475  (1867). 

(^)  Penley  v.  Watts,  7  M.  &  W.  601  ;  Middlekauff  v.  Smith,  i  Md.  329 ^ 
Walker  v.  Swayzee,  3  Abb.  Pr.  136;  Keyes  7/..  Western  Vt.  Slate  Co.,  34. 
Vt.  81. 


§  2io.     tenant's  agreement  to  make  repairs.       311 

charge  the  expense  to  the  landlord,  or  to  hold  the  latter 
for  the  full  amount  of  the  damage.('')  In  a  subsequent 
case('')  the  court  (Grover,  J.)  approved  this  rule,  but 
said  :  "  There  may  be  exceptions  to  this  rule.  In  cases 
where  the  requisite  repairs  are  trifling,  and  the  damage 
by  not  making  them  is  large,  I  think  it  is  the  duty  of 
the  tenant  to  make  them  and  charge  the  landlord  with 
the  cost."('')  This  would  make  the  doctrine  of  avoid- 
able consequences  the  exception,  while  the  general  rule 
governing  covenants  to  repair  would  be  that  the  tenant 
had  a  choice  whether  to  repair  or  not. 

Two  Alabama  cases  seem  at  variance  with  each  other 
on  the  subject  of  the  general  rule,  that  where  a  landlord, 
who  is  under  obligation  to  repair  fences,  fails  to  do  so, 
it  is  the  tenant's  duty  to  make  them,  and  that  if  he  fails 
he  cannot  hold  the  landlord  responsible  for  consequen- 
tial damages,  such  as  the  depredations  of  cattle.('')  In 
the  first  of  these  cases  the  decision  is  expressly  rested 
on  the  ground  that  the  labor  and  expense  which  the  re- 
pairs would  have  required  were  of  an  extraordinary  char- 
acter, and  that  the  diligence  required  "did  not  extend 
so  far,"  which  seems  to  recognize  the  rule  of  avoidable 
consequences.  But  in  the  second  case  the  court  held 
that  the  tenant  had  the  right  to  rely  on  the  promise  of 
the  landlord  to  make  the  repairs,  and  that  on  a  breach 
the  landlord  was  liable  for  damages  by  depredations. 

§  210.  Tenant's  agreement  to  make  repairs. — The  case  of 
a  breach  by  a  tenant  presents  a  different  question.     The 

(•)  Myers  v.  Bums,  35  N.  Y.  269  (1866) ;  Hexter  v.  Knox,  63  N.  Y.  561 
(1876). 

C)  Cookw.  Soule,  56  N.  Y.  420  (1874). 

(")  Citing  Miller  v.  Mariners'  Church,  7  Me.  51 ;  Loker  v.  Damon,  17  Pick. 
284. 

(1)  Vandegrift  v.  Abbott,  75  Ala.  487  (1883) ;  Culver  v.  Hill,  68  Ala.  66 
(1880). 


312  AVOIDABLE    CONSEQUENCES.  §211. 

landlord  is  out  of  possession,  and  therefore  in  general  is 
not  in  a  position  to  make  repairs  himself.  Usually  his 
measure  of  damages  will  be  the  injury  to  the  reversion, 
and  the  rule  of  avoidable  consequences  will  not  apply.  (*) 

§211.  Agreement  to  make  improvements. — Incase  of  a 
breach  by  a  tenant  of  an  agreement  to  make  improve- 
ments, the  measure  of  damages  has  been  held  to  be  the 
reasonable  expense  of  making  the  improvements  after 
the  termination  of  the  lease  and  the  difference  in  rental 
value  during  the  period  of  delay.  C")  Where  the  plaintiff 
leased  premises  to  defendant,  no  term  of  demise  being 
stated,  and  no  rent  being  reserved,  the  defendant  agree- 
ing to  sink  an  oil  well,  and  to  pay  three  dollars  a  cord  for 
wood  standing  in  the  lot,  and  a  right  of  re-entry  being 
reserved ;  for  breach  of  covenant  the  jury  gave  what  it 
would  cost  to  sink  a  well.  Held,  that  nominal  dam- 
ages only  were  recoverable.  (°)  The  court  says  that  the 
rule  of  the  English  courts  that  in  covenant  by  lessor 
for  non-repair  under  an  unexpired  lease,  the  proper 
measure  of  damages  is  not  the  amount  required  to  put 
the  premises  in  repair,  but  the  injury  to  the  reversion 
"  tends  to  support  the  conclusion  that  the  rule  of  dam- 
ages adopted  in  this  case  was  erroneous."  (*) 


(")  Turner  v.  Lamb,    14  M.  &  W.  412  ;   Payne  v.  Haine,  16  Id.  541  ; 
Smith  V.  Peat,  9  Ex.  161  ;  Doe  v.  Rowlands,  9  C.  &  P.  734. 
(^)  Raybourn  v.  Ramsdell,  78  III.  622  (1875). 
(")  Chamberlain  v.  Parker,  45  N.  Y.  569. 

(■>)  This  decision  seems  based  on  the  idea  that  "the  loss  or  gain  in  sinking- 
a  well  was  wholly  the  defendant's  "  (p.  573),  and  the  court  distinguishes  the 
case  from  that  of  an  agreement  by  defendant/or  a  consideration  to  build  a 
house  for  plaintiff,  when,  on  breach,  the  value  of  the  house  would  measure 
the  damages.  But  unless  the  contract  is  unconscionable,  is  not  the  consid- 
eration to  be  assumed  to  be  a  fair  equivalent  for  the  covenant  ?  Under  the 
rule  in  this  case,  it  would  seem  as  if  there  would  have  to  be  an  inquiry  in 
each  case,  how  far  the  consideration  was  an  equivalent  for  the  covenant. 


§§  212,  213.   REPARATION  OFFERED  BY  DEFENDANT.   313 

§  212.  Failure  to  furnish  freight  or  cargo. — For  failure  to 
furnish  cargo,  the  measure  of  damages  is  the  contract 
price,  less  the  net  earnings  of  the  vessel,  during  the  period 
of  the  charter.  C) 

And  so  when  defendant  agreed  to  hire  a  barge,  for 
freighting,  and  subsequently  abandoned  it;  the  plaintiff 
notified  him  that  unless  he  used  the  barge,  he  would  do 
so  himself,  and  credit  him  with  all  net  earnings.  The 
barge  having  been  used  in  this  way,  it  was  held  that 
plaintiff  was  entitled  to  recover  the  contract  price,  less 
such  net  earnings.  (^)  And  the  rule  is  the  same  in  cases 
of  land-carriage.  (") 

§  213.  Reparation  offertd  by  defendant. — The  question 
has  arisen  in  the  case  of  contracts  for  personal  services, 
whether  after  a  breach,  the  duty  of  the  plaintiff  to  seek 
new  employment  obliges  him  to  accept  employment  if 
offered  by  the  employer  who  has  discharged  him.  In 
Bigelow  V.  The  American  Forcite  Powder  Manufacturing 
Company  C')  the  New  York  Supreme  Court  held  (Dan- 
iels, J.,  dissenting)  that  the  plaintiff  must  reduce  damages 
in  this  way  ;  in  another  case,(^)  however,  where  the  de- 
fendant offered  to  continue  the  employment  at  a  less  rate, 
it  was  held  that  this  did  not  go  to  reduce  the  damages,  the 
distinction  being  that  under  the  circumstances  of  the  case, 
if  the  plaintiff  had  accepted  the  new  offer,  it  would  have 
been  a  modification  of  the  original  contract  by  consent, 


(»)  Smith  V.  McGuire,  3  H.  &  N.  554  (1858)  ;  Murrell  v.  Whiting,  32  Ala. 
54;  Utter  V.  Chapman,  38  Cal.  659  (1869) ;  Bailey  v.  Pamon,  3  Gray  92; 
Dean  v.  Ritter,  i8  Mo.  182  (1853);  Shannon  v.  Comstock,  21  Wend.  457; 
Heckscher  v.  McCrea,  24  Wend.  304 ;  Ashburner  v.  Balchen,  7  N.  Y.  262. 

(')  Johnson  v.  Meeker,  96  N.  Y.  93. 

f )  Dunn  V.  Daly,  78  Cal.  640. 

(1)  39  Hun  599. 

(«)  Whitmarsh  v.  Littlefield,  46  Hun  418. 


314  AVOIDABLE    CONSEQUENCES.  §213. 

which  would  have  precluded  him  from  recovering  any 
damages  at  all,('') 

And  so  in  Havemeyer  v.  Cunningham,  C")  a  case  be- 
tween vendor  and  vendee,  when,  after  failure  to  deliver, 
the  defendant  offered  to  sell  to  plaintiffs  at  a  price  below 
the  market  value  on  the  day  fixed  for  delivery,  the  same 
court  said,  "  The  defendants  could  not  relieve  themselves 
from  the  consequences  of  their  refusal  to  deliver,  by  an 
offer  to  sell  at  a  higher  price,  although  less  than  the  subse- 
quent market  value.  Such  an  offer,  if  accepted  by  the  plain- 
tiffs before  the  time  of  performance  arrived,  might  have 
exposed  them  to  the  charge  of  having  abandoned  the  first 
contract."  In  another  case  already  cited,(°)  the  question 
came  before  the  New  York  Court  of  Appeals  in  a  dif- 
ferent way.  There,  after  a  failure  to  deliver,  the  vendor 
offered  to  let  the  vendee  have  the  goods,  and  it  was  held 
that  while  the  vendee  might  refuse  to  receive  them,  he 
could  not  refuse  and  then  claim  special  damages  because 
he  could  not  get  them. 

In  a  case  in  Texas,(^)  where  plaintiff  agreed  to  furnish 
transportation  with  wagons  and  trains,  but  on  finding  that 
there  were  no  goods  of  defendant's  to  transport,  refused 
to  take  other  goods  offered  him  by  defendant's  agent, 
it  was  held  on  demurrer  that  he  could  not  maintain  an 
action  for  the  entire  amount  of  dead  freight.  In  Illi- 
nois, it  has  been  held,  in  an  action  of  trespass  resulting  in 
eviction  from  leased  premises,  that  a  lessor  can  show  that 
he  has  offered  other  premises,  in  lieu  of  those  he  had  agreed 
to  lease,  on  discovering  his  inability  to  give  possession.(°) 


(»)  Parsons  v.  Sutton,  66  N.  Y.  92  (1876). 
C)  35  Barb.  515. 

(")  Parsons  v.  Sutton,  66  N.  Y.  92  (1876). 
('')  Heilbroner  v.  Hancock,  33  Tex.  714. 
(')  Dobbins  ^'.  Duquid,  65  111.  464. 


§  214.  ACTIONS    OF   TORT.  315 

§  214.  Actions  of  tort. — The  rule  is  of  frequent  applica- 
tion in  actions  for  personal  injury.  In  all  such  cases,  as 
well  as  in  actions  for  injury  to  animals,  the  party  injured 
will  in  the  exercise  of  ordinary  prudence  take  reasonable 
precautions  to  avoid  the  consequences  of  the  injury,  by 
the  employment  of  medical  aid,  etc.  Where  he  omits  to 
take  such  steps,  he  cannot  recover  for  the  consequences 
which  come  from  his  own  omission-C)  Among  the  nu- 
merous other  cases  of  tort,  in  which  the  rule  has  been 
applied,  may  be  mentioned  the  following :  trespass  by 
land-owner  against  railroad  for  digging  ditches  ;  (*')  action 
of  deceit  for  sale  of  an  impotent  bull ;  (°)  action  for  seizure 
of  furniture  ;  (**)  for  obstruction  of  mill-race  ;  (^)  for  inter- 
ference with  water-power ;  C)  for  setting  fire  to  a  prai- 
rie,(^)  or  to  woods ;  C")  for  trespass  by  cattle  ;  (^)  for  negli- 
gence of  a  telegraph  company ;  (')  against  a  public 
officer.  (■") 

In  replevin,  where  the  defendant  is  liable  on  outstanding 
contracts  for  ice,  which  he  is  obliged  to  fulfil,  he  cannot, 


(")  Smith  V.  Baker,  22  Blat£h..^o:  Allender  v.  Chicago,  R.  I.  &  P.  R.R. 
Co.,  37  la.  264;  French  v.  Vining,  102  Mass.  Jt2 :  Bardwell  v.  Jamaica,  15 
Vt.  438.  In  Crete  v.  Childs,  1 1  Neb.  252,  it  was  held  that  an  instruction  that 
if  the  plaintiff  employed  such  persons  to  attend  her  "as  she  thought  compe- 
tent, and  in  good  faith,"  she  would  not  be  responsible  for  contributing  to  the 
damages,  was  erronous. 
'    ('')  Kansas  Pacific  Ry.  Co.  v.  Mihlman,  17  Kas.  224. 

(')  Maynard  v.  Maynard,  49  Vt.  297. 

C)  Luse  V.  Jones,  39  N.  J.  707. 

(')  Lawson  v.  Price,  45  Md.  123. 

(<)  Decorah  Woolen  Mill  Co.  v.  Greer,  49  la.  490. 

(e)  Waters  v.  Brown,  44  Mo.  302. 

C)  Beyier  v.  Delaware  &  H.  C.  Co.,  13  Hun  254  (1878);  Hoglew.New 
York  Central  &  H.  R.  R.R.  Co.,  28  Hun  363. 

C)  Little  V.  McGuire,  38  la.  560 ;  43  la.  447. 

0  Marr  v.  Western  Union  Tel.  Co.  85  Tenn.  529. 

("')  State  V.  Ppwell,  44  Mo.  436.    For  other  cases  see  Terry  v.  The  Mayor, 
8  Bos.  504  (1861)  ;  Priest  v.  Nichols,  116  Mass.  401, 


3l6  AVOIDABLE    CONSEQUENCES.  §  2  I  5. 

it  is  said,  recover  any  extraordinary  damages  he  has  had 
to  pay  for  a  breach  of  these  contracts,  for  "  it  would  be 
easy  for  him  to  replace  the  ice  taken,  by  ice  to  be  pur- 
chased, for  which  he  would  be  obliged  to  pay  only  the 
fair  value,  which  will  be  precisely  what  he  will  receive/'C) 

In  New  York,(*)  instead  of  giving  as  the  measure  ot 
damages  in  trover  for  stocks  the  value  at  the  time  of  the  con- 
version or  the  highest  value  between  the  conversion  and  the 
trial,  the  rule  is  the  value  a  reasonable  time  after  notice  of 
the  conversion.  Rapallo,  J.,  in  that  case  limited  the  re- 
covery by  saying  that  the  damages  recoverable  are  for  conse- 
quences "  which  a  proper  degree  of  prudence  on  the  part 
of  the  complainant  would  not  have  averted."  In  Wright 
V.  Bank  of  the  Metropolis.C)  where  the  defendant  con- 
verted stock  which  the  plaintiff  had  pledged  with  him, 
Peckham,  J.,  said  :  "  His  {i.  e.,  the  defendant's)  duty  is  in 
each  case  to  replace  the  stock  upon  demand,  and  in  case 
he  fails  so  to  do,  then  the  duty  of  the  plaintiff  springs  up, 
and  he  should  repurchase  the  stock  himself.  This  duty,  it 
seems  to  me,  is  founded  upon  the  general  duty  which  one 
owes  to  another,  who  converts  his  property  under  an 
honest  mistake,  to  render  the  resulting  damages  as  light 
as  it  may  be  reasonably  within  his  power  to  do."  As 
already  stated,  the  reason  of  the  rule  given  by  Rapallo,  J., 
seems  preferable  to  this. 

§  215.  Expenses  of  avoiding  consequences  recoverable. 
— The  reasonable  expenses  of  avoiding  the  consequences 
of  the  defendant's  wrong  are  recoverable,  and  when  the 
plaintiff"  fails  to  take  proper  steps,  he  is  limited  in  his  re- 
covery on  this  head  to  what  the  cost  of  such  steps  would 
have  been.(*)     Thus  in  an  action  against  an  officer  for  a 

{»)  Washington  Ice  Co.  v.  Webster,  62  Me.  341. 

C")  Baker  v.  Drake,  53  N.  Y.  211.  (»)  iioN.  Y.  237,245. 

C)  Borries  v.  Hutchinson,  18  C.  B.  N.  S.  445  ;  IndianapoHs  B.  &  W.  Ry.  Co. 
V.  Bimey,  71  111.  391;  Kansas  Pacific  Ry.  Co.^'.  Mihlman,  17  Kans.  224(1876) ; 
Shaw  V.  Cummiskey,  7  Pick.  76 ;  Sherman  v.  Fall  River  Iron  Works  Co.,  2 


§215.  EXPENSES    RECOVERABLE,  317 

false  return,  in  certifying  that  he  had  left  a  true  copy  of  a 
notice  to  appear  for  examination,  that  the  person  served 
might  thereby  avoid  the  issuing  of  an  execution  against 
his  body  (under  the  poor  debtor's  act),  when  in  fact  the 
place  of  examination  was  omitted  in  the  copy,  it  was  held 
that  the  plaintiff  should  have  made  inquiries  of  the  justice 
or  the  officer,  and  ascertained  the  place,  and  that  the  only 
damages  he  could  recover  would  be  an  adequate  remunera- 
tion for  this  inconvenience.  (")  When  a  railroad  is  under 
a  statutory  duty  to  erect  cattle-guards,  plaintiff  recovers 
not  only  for  damages  to  crop  destroyed  by  cattle,  but  the 
expenses  of  a  reasonable  effort  to  protect  his  crop.C)  On 
a  contract  to  furnish  machinery  for  a  mill,  the  owner  may, 
if  the  machinery  proves  defective,  recover  a  sum  of  money 
sufficient  to  remedy  the  defects,  together  with  a  reasona- 
ble compensation  for  its  use  during  the  period  of  delay.  (") 
And  on  breach  of  a  contract  by  a  railroad  company 
with  owner  of  lots  to  build  a  bridge  over  its  road,  the 
measure  of  damages  is  not  the  difference  between  the 
value  of  the  lots  when  sold  and  their  value  had  the  bridge 
been  constructed,  but  the  cost  of  making  such  a  bridge, 
including  reasonable  compensation  for  time  and  labor,  and 
perhaps  whatever  damages  might  have  been  incurred  dur- 
ing the  time  required  to  build  it.C^) 

So  the  expense  of  perfecting  the  title  of  land  may  be 
recovered  by  the  grantee  in  an  action  for  breach  of  cove- 
nant of  warranty.^)    In  Kelsey  v.  Remer,(0  an  action  on 

All.  524;  Emery  v.  Lowell,  109  Mass.  197  ;  Jutte  v.  Hughes,  67  N.  Y.  267 ; 
Hoffman  v.  Union  Ferry  Co.,  68  N.  Y.  385  ;  Worth  v.  Edmonds,  52  Barb.  40 ; 
Comstock  V.  New  York  C.  &  H.  R.  R.R.  Co.,  48  Hun  225  ;  Lloyd  v.  Lloyd, 
60  Vt.  288. 

(')  Wright  V.  Keith,  24  Me.  1 58. 

C)  St.  Louis  &  S.  F.  Ry.  v.  Ritz  33  Kas.  404. 

C)  Strawn  v.  Cogswell,  28  111.  457  (1862)  ;  Phelan  v.  Andrews,  52  111. 
486  (1869). 

(■■)  St.  Louis  J.  &  C.  R.R.  Co.  v.  Lurton,  72  111.  1 18  (1874). 

(«)  See  the  chapter  upon  Real  Covenants.  (0  43  Conn.  129. 


o 


1 8  AVOIDABLE   CONSEQUENCES.  §215. 


a  covenant  against  incumbrances,  an  attaching  creditor 
recovered  judgment,  but  levied  his  execution  improperly. 
The  plaintiff,  having  paid  off  the  judgment  in  good  faith, 
believing,  and  having  reason  to  believe,  that  otherwise 
execution  would  issue,  it  was  held  that  he  acted  with 
reasonable  prudence  and  care  in  regard  to  the  interests 
of  the  defendant,  and  the  amount  paid  should  be  the 
measure  of  damages,  there  being  no  claim  that  it  was 
greater  than  the  value  of  the  land.  So  a  plaintiff  can 
show  what  he  has  had  to  pay  a  third  person  to  do  work 
the  defendant  agreed  to  do.^)  In  James  v.  Hodsden  C*) 
it  was  held  that  the  plaintiff,  in  assumpsit  to  recover 
back  the  consideration  paid  for  an  interest  in  a  patent- 
right  fraudulently  sold  him  by  defendant,  could  recover 
what  he  paid  to  compromise  certain  notes  which  he  had 
given  the  defendant,  although  he  could  have  defended 
them  on  the  ground  of  failure  of  consideration.  It  was 
said  that  he  was  not  obliged  to  follow  them  about  to  dif- 
ferent courts  and  spend  his  time  and  fortune,  and  that 
the  court  would  presume  he  did  the  best  he  could.  In 
an  action  against  a  railway  company  for  breach  of  con- 
tract to  fence  in  land  in  consideration  of  right  of  way 
granted  to  it,  the  measure  of  damages  is  the  cost  of 
erecting  the  fences,  and  it  is  no  defence  to  such  an  action 
that  the  plaintiff  has  not  erected  the  fences.  On  this 
point  the  Supreme  Court  of  Indiana  said  :(°)  "  The  po- 
sition assumed  by  counsel  that  the  plaintiff  in  such  a 
case  cannot  recover  unless  he  has  done  the  acts  which 
the  defendant  agreed  to  do,  cannot  be  correct.  Suppose 
the  defendant  has  agreed  to  erect  a  house  for  the  plain- 
tiff, has  received  the  consideration  for  which  he  agreed  to 


(•)  Clark  V.  Russell,  no  Mass.  133. 

(•■)  47  Vt.  127. 

(')  Logansport,  Crawfordsville  &  S.  Ry.  Co.  v.  Wray,  52  Ind.  578  (1876). 


§  215.  EXPENSES    RECOVERABLE.  319 

do  the  work,  but  failed  to  perform  the  contract  on  his 
part,  and  the  plaintiff  seeks  to  recover  damages  for  the 
breach  of  the  contract,  is  it  the  law  that  he  cannot  re- 
cover unless  he  has  himself  first  erected  the  house  ?  We 
think  not."  (*) 

Where  the  plaintiff  sold  goods  for  delivery  at  a  distant 
market  on  a  certain  date  and  shipped  them  by  the  de- 
fendant, which  unreasonably  delayed  delivery,  it  was  held 
that  the  plaintiff  could  recover  the  expense  of  a  journey 
to  the  place  of  delivery  to  get  the  time  of  delivery  ex- 
tended, if  that  was  a  reasonable  and  necessary  step  for 
the  purpose.  C")     Where  the  defendant,  by  the  wrong- 
ful construction  of  a  water-pipe,  caused  water  to  flow 
into  the  plaintiff's  cellar,  the  expense  of  a  reasonable  at- 
tempt to  keep  it  out  may  be  recovered.  (°)     Where  the 
defendant  wrongfully  refused  to  allow  the  plaintiff's  ves- 
sel to  proceed  through  a  certain  channel,  the  only  prac- 
ticable means  of  reaching  its  port  of  destination,  it  was 
held  that  the  plaintiff  might  recover  the  expense  of  un- 
loading the  cargo  by  lighters.  C)     Where  the  defendant 
obstructed  a  river,  and  the  plaintiff's   vessel    grounded 
upon  the  obstruction,  the  expense  of  getting  off  from  and 
over  the  obstruction  may  be  recovered. (")     Where  de- 
fendant's wrongful  act  sunk  the  plaintiff's   vessel,   the 
expense  of  an  attempt  to  raise  her  may  be   recovered 
from  the  defendant.  (')     Where  fire  escaped  through  the 
defendant's  negligence  and  burned  the  plaintiff's  meadow. 


(»)  Citing  Lawton  v.  Fitchburg  R.R.  Co.,  8  Cush.  230 ;  Chicago  &  R.  I. 
R..R.  Co.  V.  Ward,  16  111.  522. 

(^)  Ohio  &  M.  R.R.  Co.  v.  Dunbar,  20  111.  623. 

(0  Comstock  V.  New  York  C.  &  H.  R.  R.R.  Co.,  48  Hun  225. 

{^)  Buffalo  B.  S.  C.  Co.  v.  Milby,  63  Tex.  492. 

(»)  Benson  v.  Maiden  &  M.  G.  L.  Co.,  6  All.  149. 

(0  Sweeney  v.  Pt.  Burwell  H.  Co.,  17  Up.  Can.  C.  P.  574. 


320  avoiiSable  consequences.  §  216. 

the  expense  of  reseeding  the  meadow  may  be   recov- 
ered. O 

The  question  turns,  in  each  case,  upon  the  reasonable- 
ness of  the  expense  incurred.  Thus  expenses  incurred 
by  the  plaintiffs  in  altering  the  works  of  their  mill,  in 
consequence  of  their  apprehensions  founded  on  a  trespass 
of  the  defendant,  which  in  fact  caused  nominal  damages 
only,  but  was  accompanied  by  threats  on  his  part,  the 
carrying  out  of  which  would  render  them  necessary,  were 
held  too  remote.  C")  In  an  action  for  false  imprisonment 
on  board  a  ship,  the  plaintiff  cannot  recover  as  special 
damage  the  expense  he  incurred  in  leaving  the  ship  and 
taking  his  passage  on  board  another,  unless  the  imprison- 
ment continued  to  the  moment  of  his  transshipment,  and 
was  the  immediate  cause  thereof ; '  as  if  he  acted  to 
save  his  life,  or  from  a  reasonable  regard  to  his  safety. 

§  216.  Expense  of  following  property. — TheplaintiflFmay 
recover  the  reasonable  expense  of  attempting  to  find  and 
retake  property  of  which  he  has  been  wrongfully  de- 
prived.C)  The  same  decision  was  reached  in  a  case 
where  the  defendant  had  taken  a  horse  and  wagon  be- 
longing to  the  plaintiffs.  They  spent  four  days  in  search- 
ing for  the  horse  and  wagon,  and  incurred  other  expenses 
in  the  search.  A  verdict  was  given  for  the  time  spent, 
and  expenses  incurred  in  the  pursuit.     It  was  objected 

'  Boyce   v.   Bayliffe,   i  Campb.   58,  used  to   be  cited  by  Lord  Alvanley, 

where,  to  show  how  far  attempts  of  the  where  the  plaintiff  complained  of  false 

kind  might  be  carried,  if  the  necessary  imprisonment,  per  quod  being  confined 

connection  were  not  insisted  on,  Lord  on  shore  he  lost  a  lieutenancy. 
EUenborough  alluded  to  a  case  which 


(")  Pittsburgh  C.  &  St.  L.  Ry.  Co.  v.  Hixon,  no  Ind.  225. 

0")  Sibley  v.  Hoar,  4  Gray  222. 

(■=)  Hales  w.  London  &  N.  W.  Ry.  Co.,  4  B.  &  S.  66;  Savannah  F.  &  W. 
Ry.  Co.  V.  Pritchard,  77  Ga.  412 ;  Merrill  v.  How,  24  Me.  126 ;  Parmalee  v. 
Wilks,  22  Barb.  539 ;  Sprague  v.  McKinzie,  63  Barb.  60 ;  Hough  v.  Bowe, 
51  N.  Y.  Super.  Ct.  208 ;  Miller  v.  Garling,  1 2  How.  Pr.  203 ;  Chase  v. 
Snow,  52  Vt.  525. 


§217.      OF    REPAIRING    OR   REDRESSING   THE   INJURY.      321 

that  the  damages  were  too  remote ;  but  the  verdict  was 
retained  by  the  Supreme  Court ;  and  considerable  stress 
was  laid  on  the  circumstance  that  the  damages  were  oc- 
casioned by  the  wrongful  act  of  the  defendant.* 

It  has,  however,  been  held  in  California,  under  the 
Code  (and  the  decision  would  probably  be  followed  in  a 
court  of  common  law),  that  in  an  action  for  the  recovery 
of  chattels  (as  distinguished  from  an  action  for  conver- 
sion) the  plaintiff  cannot  recover  compensation  for  money 
spent  in  the  pursuit  of  the  property.  (°^) 

§  217.  Expense  of  repairing  or  redressing  the  injury. — In 
an  action  for  a  personal  injury,  the  plaintiff  may  recover 
the  expense  of  nursing  and  medical  attendance ;  (^)  and 
in  an  action  for  injury  to  a  domestic  animal,  the  owner 
may  recover  the  expense  of  curing  it.(°)     In  an  action 

'  Bennett  v.  Lockwood,  20  Wend.  223. 


(')  Kelly  V.  McKibben,  54  Cal.  192  ;  Redington  v.  Nunan,  60  Cal.  632. 

(>>)  Phillips  V.  Southwestern  Ry.  Co.,  4  Q.  B.  D.  406 ;  Wade  v.  Leroy,  20 
How.  34 ;  Beardsley  v.  Swann,  4  McLean  333 ;  Hanson  v.  Fowle,  i  Sawy, 
539  ;  Forbes  v.  Loftin,  50  Ala.  396  ;  South  &  N.  A.  R.R.  Co.  v.  McLendon, 
63  Ala.  266;  Larmonz'.  District,  16  D.  C.  (5  Mackey)  330;  Pierce  v.  Millay, 
44  111.  189 ;  Chicago  &  A.  R.R.  Co.  v.  Wilson,  63  111.  167  ;  Chicago  v.  Jones,  66 
111.  349 ;  Chicago  v.  Langlass,  66  111.  361  ;  Sheridan  ■v.  Hibbard,  119  III.  307  ; 
Indianapolis  v.  Gaston,  58  Ind.  224 ;  Muldowney  v.  Illinois  C.  Ry.  Co.,  36 
la.  462 ;  McKinley  v.  Chicago  &  N.  W.  Ry.  Co.,  44  la.  314  ;  Kendall  7/.  Albia, 
73  la.  241 ;  Tefft  v.  Wilcox,  6  Kas.  46 ;  Kansas  P.  Ry.  Co.  v.  Pointer,  9 
Kas.  620 ;  Missouri  K.  &  T.  Ry.  Co.  v.  Weaver,  16  Kas.  456 ;  Kentucky  C. 
R.R.  Co.  V.  Ackley,  87  Ky.  278 ;  McMahon  v.  Northern  C.  Ry.  Co.,  39  Md. 
438 ;  Memphis  &  C.  R.R.  Co.  v.  Whitfield,  44  Miss.  466 ;  Stephens  v.  Han- 
nibal &  S.  J.  R.R.  Co.,  96  Mo.  207 ;  Cohen  v.  Eureka  &  P.  R.R.  Co.,  14 
Nev.  376 ;  Metcalf  7/.  Baker,  57  N.  Y.  662 ;  Sheehan  v.  Edgar,  58  N.  Y.  631 ; 
Brignoli  v.  Chicago  &  G.  E.  Ry.  Co.,  4  Daly  182;  Wallace  v.  Western  N. 
C.  R.R.  Co.,  104  N.  C.  442 ;  Oliver  v.  Northern  P.  T.  Co.,  3  Ore.  84 ;  Penn- 
sylvania &  O.  C.  Co.  V.  Graham,  63  Pa.  290 ;  Scott  v.  Montgomery,  95  Pa. 
444;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Frantz,  127  Pa,  297  ;  Giblin  v.  Mcln- 
tyre,  2  Utah  384 ;  Goodno  v.  Oshkosh,  28  Wis.  300. 

e)  Atlanta  C.  S.  O.  Mills  v.  Coffey,  80  Ga.  145  ;  Sullivan  County  z/.  Arnett, 
116  Ind.  438. 

Vol.  I.— 21 


322  AVOIDABLE    CONSEQUENCES.  §2l8. 

for  wrongful  arrest  (on  the  bond  given  at  the  time  of 
suing  out  the  writ),  the  expense  of  procuring  release  from 
arrest  may  be  recovered. (")  Where  a  defective  boiler 
was  sold  by  the  defendant  and  exploded,  the  owner  may 
recover  the  expense  of  repairing  the  injury  it  caused. C*) 
Where  a  machine  was  delivered  in  an  unfit  condition 
to  do  the  work  it  was  purchased  for,  the  purchaser  was 
allowed  to  recover  the  expense  of  a  reasonable  but  un- 
successful attempt  to  adapt  it  to  the  contemplated  pur- 
pose ;  C)  and  so,  of  course,  of  a  successful  attempt.C*) 
Where  a  vessel  is  injured  by  a  collision,  the  expense  of 
surveying  the  injuries  (°)  or  of  raising  and  repairing  the 
vessel  C^)  may  be  recovered. 

§  218.  But  only  reasonable  expense. — But  a  plaintiff  can 
only  recover  the  reasonable  expenses  under  the  circum- 
stances. Therefore  a  delayed  passenger  cannot  recover 
the  expense  of  a  special  train  to  avoid  a  slight  delay. 
In  Le  Blanche  v.  London  &  N.  W.  Ry.  Co,(^) 
the  plaintiff  took  a  train  on  the  defendants'  railway,  by 
which  he  should,  according  to  the  time-table,  have 
reached  York  in  time  to  catch  a  train  which  would 
have  brought  him  to  his  destination  at  half-past  seven. 
The  defendants'  train  arrived  in  York  too  late  to  allow 
him  to  catch  that  train,  and  by  the  next  one  he  would 
not  have  reached  his  destination  till  10.     He  took  a 


(")  Burnap  v.  Wight,  14  111.  301.  But  where  the  defendant  suffered  a 
wrongful  distress  for  rent,  he  cannot  recover  the  expense  of  setting  aside  the 
distress  on  certain  parts  of  the  property  as  exempt  by  law.  Sturgis  v.  Frost, 
56  Ga.  188. 

(")  Phelan  v.  Andrews,  52  111.  486. 

C)  Whitehead  &  A.  M.  Co.  v.  Ryder,  139  Mass.  366. 

(")  Clifford  V.  Richardson,  18  Vt.  620. 

C)  New  Haven  S.  B.  Co.  v.  Mayor,  36  Fed.  Rep.  716. 

O  Williamson  v.  Barrett,  13  How.  101 ;  Mailler  v.  Express  P.  Line,  6i  N. 

y.  1^2. 

(8)  I  C.  p.  Div.  286. 


§  2l8.      BUT  ONLY  REASONABLE  EXPENSES.        323 

special  train,  by  which  he  arrived  there  at  9.  He  had  no 
special  engagements  which  required  his  presence.  In 
the  Common  Pleas  he  was  allowed  to  recover  the  ex- 
pense of  the  special  train,  the  court,  however,  admitting 
that  a  traveller  could  not  under  all  circumstances  take  a 
special  train,  saying :  "  The  question  must  always  be 
whether  it  was  a  reasonable  thing  to  do,  having  regard 
to  all  the  circumstances.  Where  to  take  a  special  train 
is  a  reasonable  thing  to  do,  we  are  of  opinion  that  it  is  a 
sufficiently  natural  result  of  the  breach  of  contract  to 
bring  it  within  the  legal  rule."  This  decision  was,  how- 
ever, reversed  in  the  Court  of  Appeal,  though  it  was  said 
that  it  was  for  the  county  judge  to  decide  whether  the 
expense  was  reasonable.  James,  L.  J.,  said :  "  I  agree 
that  the  general  rule  is  that  a  person  with  whom  a  con- 
tract has  been  broken  has  a  right  to  fulfil  that  contract 
for  himself  as  nearly  as  may  be,  but  he  must  not  do  this 
unreasonably  or  oppressively  as  regards  the  other  party, 
or  extravagantly."  Mellish,  L.  J.,  after  expressing  his 
approval,  as  a  general  rule,  of  the  dictum  of  Alderson, 
B.,  in  Hamlin  v.  Great  Northern  Ry.  Co.C)  said  that 
"the  question  must  always  be  whether  what  was  done 
was  a  reasonable  thing  to  do,  having  regard  to  all  the 
circumstances."  He  continued  :  "  Now,  one  mode  of 
determining  what,  under  the  circumstances,  was  reason- 
able, is  to  consider  whether  the  expenditure  was  one 
which  any  person  in  the  position  of  the  plaintiff  would 
have  been  likely  to  incur  if  he  had  missed  the  train 
through  his  own  fault,  and  not  through  the  fault  of  the 

railway  company I  think  that  any  expenditure 

which,  according  to  the  ordinary  habits  of  society,  a 
person  who  is  delayed  in  his  journey  would  naturally 
incur  at  his  own  cost,  if  he  had  no  company  to  look  to, 

(•)  I  H.  &  N.  408. 


324  AVOIDABLE   CONSEQUENCES.  §2l8. 

he  ought  to  be  allowed  to  incur  at  the  cost  of  the  com- 
pany, if  he  has  been  delayed  through  a  breach  of  con- 
tract on  the  part  of  the  company,  but  that  it  is  unreason- 
able to  allow  a  passenger  to  put  the  company  to  an 
expense  to  which  he  would  not  think  of  putting  himself 
if  he  had  no  company  to  look  to."  Where  a  passenger 
is  put  ofif  a  train  at  a  wrong  station,  he  may  take  neces- 
sary steps  for  self-protection ;  and  if  he  acts  reasonably 
he  may  recover  compensation  of  the  wrong-doer  for  all 
evil  results,  or  for  any  expense  to  which  he  is  put.  If  he 
can  procure  another  conveyance  at  reasonable  expense, 
he  cannot  recover  for  injury  caused  by  a  long  or  difficult 
journey  on  foot.(*)  If  it  is  night,  and  there  are  houses 
near  by  which  he  sees  or  should  see,  he  cannot  recover  for 
injury  caused  by  walking  home  unless  he  tried  to  obtain 
admission  at  the  houses  and  was  refused. C*)  So  in  Wil- 
cox V.  Campbell.^)  where  the  plaintiff,  in  order  to  save 
land  from  foreclosure,  would  have  had  to  raise  money  in 
excess  of  the  value  of  the  land,  and  it  did  not  appear  that 
he  could  have  raised  it,  it  was  held  by  the  New  York 
Supreme  Court  that  the  rule  did  not  apply — although,  if 
he  had  raised  it,  he  would  have  been  entitled  to  recover 
it  back;  and  on  appeal  the  judgment  was  affirmed. (**) 
So  the  owner  of  a  vessel  injured  by  a  collision  can  re- 
cover the  reasonable  expense  of  repairing  her.(')  So  a 
farmer  can  recover  the  reasonable  expense  of  trying  to 
save  his  crops  from  destruction  where  they  had  been  in- 
jured by  defendant's  failure  to  deliver  a  threshing  ma- 
chine, (')  and  the  purchaser  of  a  horse  with  warranty  as  a 

(")  Indianapolis,  B.  &  W.  Ry.  Co.  v.  Birney,  71  111.  391. 

C)  Louisville,  N.  &  G.  S.  R.R.  Co.  v.  Fleming,  14  Lea.  128 

(«)  35  Hun  254. 

('')  S.  C.  on  appeal,  106  N.  Y.  325. 

(f)  Mailler  v.  Express  Propeller  Line,  61  N.  Y.  312. 

(0  Smeed  v.  Foord,  i  E.  &  E.  602. 


§  2l8.      BUT  ONLY  REASONABLE  EXPENSES.        325 

foal-getter,  the  reasonable  expense  of  testing  him ;  but 
not  any  expenses  subsequent  to  this.C)  As  it  is  the 
plaintiff's  duty  to  render  the  loss  as  light  as  possible,  and 
this  generally  involves  expense,  it  has  been  held  in 
Maryland  that  for  breach  of  contract  to  furnish  freight  and 
employment  to  plaintiff's  boat,  it  was  not  the  duty  of 
the  plaintiff  to  get  rid  of  expense  by  keeping  his  boat 
and  horses  unemployed  and  dismissing  his  hands.(^) 

When  a  tenant  makes  repairs  to  avoid  the  conse- 
quences of  a  breach  of  a  covenant  to  repair,  he  can 
only  charge  the  landlord  with  a  reasonable  expense,  but 
he  is  not  compelled  to  select  precisely  the  same  kind  of 
materials,  or  to  be  precise  to  take  care  that  the  expense  is 
"  not  a  farthing  greater  than  had  before  been  expended  on 
the  same  spot."  Thus  a  tenant  has  been  allowed  to  re- 
cover the  expense  of  repainting  with  zinc  paint,  which 
was  about  fifteen  per  cent,  more  expensive  than  common 
lead  paint — the  original  style  of  painting — it  appearing 
that  the  zinc  paint  was  a  more  desirable  and  better  ma- 
terial. The  whole  question  is,  in  fact,  one  of  reasonable 
expense  in  view  of  all  the  circumstances  of  the  case.(°) 
And  so  a  plaintiff  can  show  what  he  has  had  to  pay  for 
the  best  substitute  he  could  procure  for  what  the  de- 
fendant had  neglected  to  furnish. ('')  Where  the  plaintiff! 
is  wrongfully  discharged  from  the  defendant's  employ- 
ment, he  may  recover  the  expense  incurred  in  obtaining 
another  employment;  (")  but,  as  in  all  cases,  the  expense 

(")  Newberry  v.  Bennett,  38  Fed.  Rep.  308. 

(*>)  Benson  v.  Atwood,  13  Md.  20;  Borden  Mining  Co.  v.  Barry,  17  Md. 
419.  But  this  must  not  be  taken  as  an  invariable  rule  of  law,  as  circum- 
stances might  show  that  the  expense  was  plainly  useless,  and  in  such  a  case, 
to  incur  it  would  be  a  wilful  act  on  the  part  of  the  plaintiff,  and  no  part  of 
the  ordinary  conduct  of  a  prudent  man. 

(f)  Myers  v.  Burns,  35  N.Y.  269  (1866). 

l^)  Hinde  v.  Liddell,  L.  R.  to  Q.  B.  265. 

(f)  Dickinson  v.  Talmage,  1 38  Mass.  249. 


326  AVOIDABLE   CONSEQUENCES.  §219- 

must  be  a  reasonable  one.  Thus,  where  one  had  wrong- 
fully delayed  delivering  a  conveyance  of  land  on  which 
was  a  barn,  but  afterward  conveyed  the  premises,  the 
expense  incurred  by  the  plaintiff  in  preparing  to  build 
another  barn  on  his  own  ground  during  the  period  of  the 
defendant's  refusal,  was  held  too  remote.  (")  But  when 
the  defendant  failed  to  repair  the  plaintiff's  saw-mill 
according  to  contract,  the  expense  of  hauling  his  logs  to 
another  mill  to  be  sawed  may  be  recovered. (*■)  In 
Green  v.  Mann  (")  it  is  laid  down  that  unless  the  expense 
of  making  repairs  is  "  trifling "  the  defendant  cannot 
insist  that  it  constitutes  the  sole  measure  of  damages. 
But  the  rule  seems  to  be  grounded  not  on  the  question 
whether  the  expense  is  trifling,  but  whether,  under  all 
the  circumstances  of  the  case,  it  is  such  an  expense  as  a 
prudent  man  would  under  the  circumstances  incur. 

§  219.  Rule  does  not  require  impossibilities. — In  an  ac- 
tion against  a  carrier  for  non-delivery  of  corn,  where  the 
plaintiflf  claimed  to  recover  for  a  sub-contract,  and  defend- 
ant urged  that  the  plaintiff  might  have  bought  the  corn 
in  the  market  to  fill  the  contract,  and  that  not  having 
done  so  the  measure  of  damages  was  merely  the  market 
price,  the  Supreme  Court  of  Illinois  said :  "  However 
this  might  be,  if  they  had  not  already  invested  their 
■money  in  the  corn  in  controversy,  we  cannot  so  hold  in  the 
present  case.  It  would  be  very  unreasonable  to  require 
one  who  has  bought  and  paid  for  an  article,  to  have  the 
money  in  his  pocket  with  which  to  buy  a  second,  in  case 
of  nori-deliveiy  of  the  first."  (**) 

(')  Warner  f.  Bacon,  8  Gray  397. 

O")  Hinckley  z/.  Beckwith,  13  Wis.  31. 

C)  II  111.613(1850). 

f)  Illinois  Centr.  R.R.  Co.  v.  Cobb,  64  111.  128  (1872).  This  would,  as 
stated,  seem  to  make  the  rule  applicable  only  where  no  consideration  had 
passed,  but  the  court  probably  did  not  mean  to  go  so  far.     The  onus  is  oa 


§  220.  STATUTORY    DAMAGES,  327 

And  so  in  Startup  v.  Cortazzi,('')  Alderson,  B.,  said  : 
"  It  appears  that  the  price  at  that  time  was  not  the  proper 
criterion  for  estimating  the  damages ;  for  as  the  plaintiffs 
had  already  parted  with  their  money  they  were  not  then 
in  a  situation  to  purchase  other  seed." 

§  220.  Statutory  damages — Eminent  domain. — The  fore- 
going general  rule  applies  as  well  where  the  damages  are 
statutory.  So  in  cases  of  injuries  inflicted  through  the 
exercise  of  the  power  of  eminent  domain,  it  is  expected 
that  the  owner  will  use  reasonable  and  proper  precautions 
to  prevent  or  diminish  the  injury,  and  expenses  incurred  in 
this  way  are  a  part  of  his  measure  of  damages.  (*)  And 
where  a  city  is  liable  for  damages  through  changing  the 
grade  of  the  street,  it  has  been  held  that  the  measure  is 
the  expense  of  changing  the  grade  of  the  house  and  lot 
to  conform.C) 

Where  part  of  the  plaintiffs  sea  wall  was  appropriated, 
but  the  wall  still  served  its  former  use,  it  was  held  that, 
the  measure  of  damages  was  what  would  make  the  plain- 
tiff whole  for  the  occupation  of  the  wall,  and  not  what 
the  wall  cost,  for  this  might  be  more  or  less  than  the 


the  defendant  to  prove  that  plaintiff  might  have  procured  the  corn.  If  the 
plaintiff  had  no  more  money,  nor  credit,  this  would  be  a  matter  for  him 
to  prove  in  reply,  See  Middlekauff  v.  Smith,  i  Md.  329,  where  the  Maryland 
Court  of  Appeals,  speaking  of  a  covenant  by  landlord  to  repair,  and  the  rule 
of  avoidable  consequences  as  applicable  to  the  lessee,  says  :  "  Many  repairs 
may  have  been  needed  which  his  peculiar  situation  or  circumstances  would 
not  have  permitted  him  to  have  made,  and  thus  one  of  the  very  purposes  he 
may  have  had  in  view  in  requiring  from  his  landlord  a  covenant  to  repair, 
might  have  been  defeated."  There  would  seem  to  be  no  way  of  escaping 
the  conclusion  that  in  all  such  cases  the  party  injured  may  prove  his  pecu- 
niary incapacity  to  make  expenditures  of  the  magnitude  required.  And  this 
limitation  upon  the  rule  appears  to  have  been  applied  in  Wilcox  v.  Campbell, 
35  Hun  234 ;  on  app.  106  N.  Y.  325. 

(»)  2  C.  M.  &  R.  165. 

(")  Gregg  V.  The  Mayor,  56  Md.  256. 

C)  McCarthy  v.  St.  Paul,  22  Minn.  527. 


328  AVOIDABLE    CONSEQUENCES.  §221. 

actual  damages. (*)  On  the  other  hand,  where  the  de- 
fendant cut  through  another  railroad's  embankment,  it 
was  held  that  the  measure  of  damages  was  the  cost  of 
building  a  bridge  and  keeping  it  in  repair.  C*)  So,  in  es- 
timating damages  caused  by  laying  a  railroad  illegally 
in  a  highway  without  making  compensation,  it  has 
been  held  that  the  measure  of  damages  may  be  the  cost 
of  removing  the  obstruction  and  restoring  the  high- 
way to  its  former  condition.  (°)  And  it  has  been  said 
that  where  the  damage  is  to  an  easement  of  access,  the 
measure  of  damages  may  be  the  expense  of  making  the 
access  as  good  as  it  had  been  before.  ('^) 

§  221.  Rule  requires  only  ordinary  care. — As  the  rule 
allows  only  reasonable  expenses,  so  it  requires  the  party 
injured  to  use  ordinary  efforts,(®)  neither  greater  nor  less 
than  a  prudent  man  would  be  likely  to  use,  and  conse- 
quently where  the  jury  were  told  that  they  must  find  for 
the  plaintiffs  unless  a  slight  expense  and  slight  effort 
would  have  prevented  the  injury,  this  was  held  to  be 
error. (')  And,  on  the  other  hand,  the  party  injured  is  not 
under  any  obligation  to  use  more  than  ordinary  diligence.(^) 

(»)  Gear  v.  C.  C.  &  D.  R.  Co.,  39  la.  23. 

C)  Chicago  &  A.  R.R.  Co.  v.  Springfield  &  N.  W.  R.R.  Co.,  67  III.  142. 

(■=)  Lawrence  R.R.  Co.  v.  Mahoning  County,  35  Oh.  St.  i. 

C)  In  re  N.  Y.,  W.  8.  &  B.  Ry.  Co.,  29  Hun  646. 

(«)  Parker  v.  Meadows,  86  Tenn.  i8i. 

(')  Simpson  v.  Keokuk,  34  la.  568  ;  Allender  v.  Chicago,  R.  L  &  P.  R.R. 
Co.,  37  la.  264  (1873).  In  Chase  v.  New  York  Central  R.R.  Co.,  24  Barb. 
273,  an  action  brought  for  damage  done  to  plaintiff's  premises  by  water 
which  got  into  her  cellar,  the  trial  judge  charged  that  she  was  bound  to  use 
"  ordinary  care  and  diligence  "  to  prevent  the  house  being  injured  thereby, 
and  only  ordinary  "  care  and  diligence.^'  The  General  Term  held  this  erro- 
neous, for  reasons  which  the  opinion  of  MuUett,  J.,  does  not  make  clear. 
The  decision  seems  to  be  contrary  to  the  current  of  authority.  So  also  does 
the  language  of  the  Supreme  Court  of  Illinois  (Green  v.  Mann,  n  111.  613), 
to  the  effect  that  the  rule  only  requires  the  performance  of  "  trifling  acts." 

(s)  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Falvey,  104  Ind.  409,  425  (1885) ; 
Leonard  v.  New  York,  A.  &  B.  E.  M.  T.  Co.,  41  N.  Y.  544. 


§  221.   RULE  REQUIRES  ONLY  ORDINARY  CARE.      329 

The  amount  of  effort  must  be  determined  by  all  the 
circumstances  of  the  case.  In  Bradley  v.  Denton  (")  it  is 
held  to  be  well  settled  and  founded  on  the  clearest  prin- 
ciples of  equity  that  if  the  freighter  fails  to  furnish  return 
freight,  it  is  the  duty  of  the  master  to  seek  for  and  obtain 
other  freight,  if  possible.  But  where,  on  a  contract  to 
furnish  several  cargoes,  after  one  has  been  furnished,  the 
shipper  notifies  the  carrier  that  he  will  not  furnish  any 
more,  this  is  a  breach,  and  the  freighter  cannot  enhance 
the  d^amages  by  returning  empty,  and  claiming  full  freight. 
His  natural  course  is  to  seek  other  employment ;  whether 
in  the  port  of  destination  only,  or  in  other  ports  as  well, 
must  depend  on  all  the  circumstances  of  the  case,  such  as 
insurance,  the  weather,  or  the  condition  of  the  vessel. 

In  case  of  breach  of  covenant  for  quiet  enjoyment, 
where  the  lessee  is  prevented  from  obtaining  possession  of  a 
store,  in  which  to  carry  on  his  business,  he  will,  as  a  pru- 
dent man  procure  a  new  store ;  but  he  is  not  bound  to  re- 
move to  a  remote  part  of  the  city,  and  thus  lose  to  some 
extent  the  good-will  of  his  business,  which  had  been  car- 
ried on  in  the  vicinity  of  the  premises  leased ;  nor  would 
he  be  required  to  take  another  store  not  reasonably  well 
adapted  to  his  business. (") 

In  an  action  against  a  railroad  for  failure  to  erect  cattle- 
guards,  in  compliance  with  statute,  it  appeared  that  injury 
to  the  crops  might  have  been  prevented  by  keeping  a  con- 
stant watch  day  and  night  for  four  or  five  months,  at  a 
cost  of  two  or  three  dollars  a  day  for  a  man  alone ;  but  it 
was  held  that  to  require  this  would  be  to  call  for  unrea- 
sonable efforts  and  great  expense.  (°) 


(•)  3  Wis.  557. 

(*)  Poposkey  v.  Munkwitz,  68  Wis.  322. 

(«)  Smith  V.  Chicago,  C.  &  D.  R.R.  Co.,  38  la.  518  (1874). 


^;iO  AVOIDABLE    CONSEQUENCES.  §  22  2 

§  222.  Other  limits  of  the  rule. — We  have  seen  that  the 
plaintiff  is  always  limited  in  his  recovery  by  the  boundary 
of  ordinary  care  and  of  reasonable  expense.  So  there  are 
many  other  limitations,  which  are  really  involved  in  the 
rule  itself,  but  the  statement  of  which  conduces  to  a 
clearer  apprehension  of  the  reason  upon  which  it  is 
founded.  Thus  it  has  been  decided  that  it  does  not  relate 
to  the  performance  of  the  primary  obligations  of  the  con- 
tract, and  the  party  whose  duty  it  is  to  perform,  cannot, 
while  the  contract  is  in  force,  be  heard  to  say  that  the 
plaintiff  might  have  performed  for  him.('')  And  so  the 
mere  fact  that  the  plaintiff  might  by  some  acts  of  his  have 
avoided  the  consequences,  will  not  prevent  the  plaintiffs 
recovery.  There  must  be  a  want  of  ordinary  diligence. 
Thus  in  Clark  v.  Miller,('')  an  action  for  failure  on  the 
part  of  a  town  supervisor  to  present  to  supervisors  of  a 
county  a  reassessment  of  damages  in  the  plaintiffs  favor, 
the  plaintiff  was  allowed  to  recover  the  amount  of  the  re- 
assessment, and  he  was  not  limited  in  his  recovery  of  in- 
terest to  the  period  when  he  might  have  had  his  claim 
presented  to  another  board  of  supervisors  (perhaps  be- 
cause what  the  result  would  have  been  was  not  certain). 
And  in  an  action  against  a  register  of  deeds  for  a  false 
return  in  omitting  a  mortgage,  it  was  held  that  plaintiff 
was  not  bound  to  tell  the  defendant  of  the  mortgage  when 
he  heard  of  it,  so  that  the  defendant  could  buy  it  up  be- 
fore foreclosure,  the  court  saying :  "It  is  undoubtedly 
true  that  the  plaintiff  was  under  obligation  to  make  rea- 
sonable exertions  to  prevent  the  increase  of  damages 
likely  to  fall  upon  himself,  and  thus  incidentally  to  pro- 
tect the  defendant ;  but  it  was  not  his  duty  to  go  one 


(')  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Sumner,  io6  Ind.  55  ;  Same  v.  Moore, 
lb.  600. 
C)  54  N.  Y.  528. 


§  223.  plaintiff's  knowledge.  331 

step  further,"  or  "  to  do  an  act  which  will  not  affect  his 
own  damages,  though  it  would  be  of  service  to  the 
wrong-doer."  (*)  Some  of  the  more  usual  limitations 
will  now  be  considered. 

§  223.  Plaintiffs  knowledge — Notice. — Notwithstanding 
that  a  wrong  has  been  committed,  the  plaintiff  may  be  in 
ignorance  of  the  fact,  and  so  long  as  he  remains  in  igno- 
rance, the  duty  to  avoid  the  consequences  cannot  arise. 
Thus  in  Loker  v.  Damon  (*)  the  learned  Chief-Justice 
Shaw  said  :  "  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  wilfully  and  obstinate- 
ly or  through  gross  negligence,  leaves  it  open  all  summer, 
and  cattle  get  in,  it  is  his  own  folly."  And  so  in  case  of 
a  sale,  if  the  vendor  has  reason  to  suppose  that  the  article 
does  not  correspond  with  a  warranty  or  description,  he 
cannot  be  permitted  to  shut  his  eyes  to  the  probable  con- 
sequences, and  then  hold  the  defendant  for  them.(°) 

In  most  cases,  there  is  probably  little  doubt  as  to  what 
is  the  most  proper  course  for  the  plaintiff  to  pursue  ;  but 
this  does  not  always  happen.  Thus  in  a  recent  case  in 
Texas,  where  the  plaintiff  sued  to  recover  for  personal  in- 
juries, it  appeared  that  the  injuries  had  been  aggravated 
by  his  own  conduct  in  neglecting  to  refrain  from  all  ex- 
ertion while  under  treatment.  But  it  not  appearing 
clearly  that  he  knew  of  the  importance  of  this,  or  that  he 
had  been  seriously  advised  as  to  the  proper  course  to  pur- 
sue, it  was  held  that  he  was  not  precluded  from  recover- 
ing for  the  entire  loss-C) 

(»)  Van  Schaick  v.  Sigel,  9  Daly  383.  C)  17  Pick.  284. 

C)  Bagley  v.  Cleveland  Rolling.  Mill  Co.,  22  Blatchf.  342. 

C)  Gulf  Col.  &  S.  F.  Ry.  Co.  v.  McMannewitz,  70  Tex.  73  (1888). 


332  AVOIDABLE    CONSEQUENCES.  §  224. 

In  Sherman  v.  Fall  River  Iron  Works  Co.,(*)  where  a 
lessee,  a  livery-stable  keeper,  had  a  right  of  action  against 
defendant  for  an  escape  of  gas  through  the  ground  and 
into  a  well  used  by  him  for  his  livery-stable,  it  was  held 
that  he  might  recover  for  expenses  incurred  in  reasonable 
and  proper  attempts  to  exclude  the  gas,  but  not  for  injury 
caused  by  allowing  his  horses  to  drink  the  water  after  he 
knew  that  it  was  corrupted.  Hoar,  J.,  said  :  "  He  can  re- 
cover only  for  the  natural  and  direct  consequences  of  the 
wrongful  act  of  the  defendants,  and  not  for  consequential 
damages  which  might  have  been  avoided  by  ordinary  care 
on  his  own  part."  And  so  where  cotton  stored  with  defend- 
ants as  warehousemen,  was  thrown  into  the  street  by 
military  authority,  it  was  held  that  the  owner,  if  he  was 
chargeable  with  knowledge  of  the  facts,  should  have  taken 
reasonable  steps  to  protect  his  property.^) 

§  224.  Plaintiff  need  not  anticipate  wrong. — The  duty  to 
prevent  damages,  or  to  lessen  the  loss  which  will  ulti- 
mately fall  on  plaintiff,  cannot  possibly  arise  until  a 
wrong  or  breach  of  contract  has  actually  been  committed. 
And  so,  in  proceedings  under  the  eminent  domain  stat- 
ute, it  has  been  held  that  before  the  taking,  the  land- 
owner is  under  no  duty  to  avoid  improving  his  property 
merely  because  he  has  notice  of  proceedings  to  condemn. 
Such  proceedings  may  be  abandoned,  and  until  they  are 
consummated  his  position  is  that  of  any  owner.('')  On 
the  same  principle,  where  a  cargo  of  fruit  was  injured 
through  a  fumigation  wrongfully  made  by  a  member  of  a 


(■")  2  All.  524. 

C)  Smith  V.  Frost,  51  Ga.  336  (1874). 

C)  Driver  v.  Western  Union  R.  R.  Co.,  32  Wis.  569.  The  court  in  this 
case  say  :  "  There  is  no  ground  for  saying  that  the  plaintiff  proceeded  in  bad 
faith,  and  made  an  expensive  improvement  merely  for  the  purpose  of  enhanc- 
ing the  damages."  But  if  the  plaintiff  was  in  the  enjoyment  of  his  full  legal 
rights,  on  what  principle  could  his  motive  be  inquired  into  in  any  case  ? 


§  224.       PLAINTIFF    NEED    NOT    ANTICIPATE    WRONG.        ^;^^ 

Board  of  Health,  and  it  appeared  that  plaintiff  might 
have  unloaded,  and  was  advised  so  to  do,  and  might  thus 
have  avoided  loss,  the  defendant  was,  after  full  considera- 
tion, held  responsible  by  the  Supreme  Court  of  Louisi- 
ana, on  the  ground  that  a  threat  of  the  commission  of  a 
trespass  does  not  raise  a  duty  in  the  person  threatened  to 
take  any  steps  to  avoid  the  consequences  of  such  a 
wrong.  (")  And  in  an  action  to  recover  damages  for  in- 
jury to  plaintiff's  hay  through  the  building  of  a  dam, 
where  the  jury  found  that  by  the  expenditure  of  $60 
above  what  was  usual  and  necessary  before  the  dam  was 
erected,  the  hay  might  have  been  secured,  it  was  held  that 
the  plaintiffs  damages  were  not  to  be  reduced  on  this  ac- 
count, as  it  did  not  appear  that  he  had  any  good  reason  to  an- 
ticipate the  injury.  It  would  seem  as  if  this  decision  might 
be  rested  explicitly  on  the  principle  that  it  is  never  the 
duty  of  the  plaintiff  to  attempt  to  reduce  the  loss  which 
may  flow  from  anticipated  wrong.  C')  And  so  a  plain- 
tiff need  not  exercise  any  care  of  logs  to  prevent 
their  being  lost  by  the  defendant's  wrong  in  putting  a 
boom  across  a  stream,  unless  he  had  notice  that  they 
were  in  danger ;  and  it  seems  that  he  need  do  nothing, 
even  when  he  heard  of  the  defendant's  intention  of 
swinging  the  boom,  the  court  saying,  that  it  is  enough  if 
he  exercises  ordinary  care  for  the  preservation  of  the  logs 
after  he  knows  that  the  wrong  is  doncC) 

Again,  where  a  passenger  on  a  railroad  train  has  paid 
his  fare,  and  for  no  fault  of  his  own  is  obliged  to  leave 
the  train  or  pay  more,  it  is  not  his  duty  to  pay  the  addi- 
tional fare,  merely  to  protect  the  company  against  the 


(»)  Beers  v.  Board  of  Health,  35  La.  Ann.  1132  (1883). 
C)  Reynolds  v.  Chandler  R.  Co.,  43  Me.  513  (1857). 
{')  Plummer  v.  Pen.  Lumber  Assoc,  67  Me.  363  (1877). 


334  AVOIDABLE    CONSEQUENCES.  §§  225,  226. 

consequences  of  their  own  wrong.  This  is  not  the  mean- 
ing of  the  rule.('') 

§  225.  Plaintiff  cannot  be  called  on  to  commit  a  wrong. — 
This  rule  never  can  be  pushed  to  the  extent  of  requiring 
the  plaintiff  to  commit  a  wrong  himself ;  e.  g.,  where  the 
cause  of  original  wrong  is  on  land  of  defendant,  plaintiff 
cannot  be  under  any  obligation  to  trespass  on  that  land 
to  reduce  it.(^)  So  in  an  action  for  overflowing  mining 
claims,  although  by  pulling  off  a  board  from  the  flume,  the 
plaintiff  might  have  stopped  the  damage,  he  was  not  held 
to  be  bound  to  reduce  the  loss  in  this  way,  because  in 
order  to  accomphsh  it,  he  would  have  been  obliged  to 
commit  a  trespass.  (°)  And  so,  probably  for  the  same 
reason,  in  an  action  against  a  city  for  injuries  caused  to 
abuttors  by  accumulations  of  water,  in  consequence  of  the 
construction  of  gutters  and  drains,  the  court,  in  laying 
down  the  usual  rule,  was  careful  to  qualify  it  by  adding : 
"  We  do  not  intimate  that  it  would  have  been  the  duty 
of  plaintiff  to  interfere  with  the  streets  or  gutters,  so  as 
to  change  the  construction  of  them."(*)  And  so,  gen- 
erally, the  plaintiff  is  not  required  to  take  any  measures 
to  reduce  the  damages  which  are  not  within  his  legal 
rights ;(')  e.  g.,  he  could  not  be  called  upon  to  violate  a 
contract  with  a  third  party.  (') 

§  226.  Defendant  prevents  plaintiff  from  preventing  conse- 
quences.— But  the  plaintiff  may  himself  be  prevented  by 
the  defendant  from  preventing  avoidable  consequences. 
It  may  happen  that  when  there  is  a  breach  of  contract  by 
defendant,  as  in  the  case  of  an  obligation  to  keep  leased 
premises  in  repair,  the  plaintiff  is  himself  prevented  from 

(•)  Yorton  v.  Mil.  L.  S.  &  W.  Ry.  Co,,  62  Wis.  367. 

(!•)  Chicago,  R.  I.  &  P.  R.R.  Co.  v.  Carey.  90  111.  514. 

(»)  Wolf  i/.  St.  Louis  Independent  Water  Co.,  15  Cal.  319. 

(^)  Simpson  v.  Keokuk,  34  la.  568. 

(')  Kankakee  &  8.  R.R.  Co.  v.  Horan,  23  111.  App.  259. 

(0  Earl,  Ch.  J.,  in  Leonard  v.  New  York,  etc.,  Tel.  Co.,  41  N.  Y.  544,  566. 


§  226.         DEFENDANT   PREVENTS   PLAINTIFF,  ETC.  335 

taking  the  necessary  steps  to  render  the  damage  as  light 
as  possible  by  the  dilatory  action  of  the  defendant ;  e.  g., 
where  the  defendants,  after  notice  to  repair,  promise 
from  time  to  time,  but  fail  to  do  so.  In  such  a  case, 
where  through  such  a  prolongation  of  the  period  of  loss, 
it  finally  extended  the  cost  of  the  repairs,  it  was  held 
in  Vermont  that  the  loss  was  caused  by  and  should  fall 
on  the  defendants. (") 

And  so  in  another  case  in  the  same  State.  The  com- 
plainants had  purchased  of  defendants,  in  1868,  a  patent 
stone  channelling  machine  for  $6,000,  the  defendants 
agreeing  to  indemnify  them  against  the  consequences  of 
infringement.  In  1870  complainants  were  enjoined  for 
infringement  of  another  patent,  and  set  the  machine  aside. 
They  might  then  have  bought  an  equally  valuable  ma- 
chine at  the  same  price,  but  did  not  do  so,  as  defendants 
from  time  to  time  promised  to  furnish  another.  They 
therefore  hired  their  channelling  done  at  regular  prices, 
and  at  an  expense,  down  to  the  spring  of  1872,  of 
$1,749.80  more  than  the  work  done  by  their  own  machine 
would  have  cost  them.  By  this  time  it  became  under- 
stood that  defendants  would  not  furnish  another  machine, 
but  the  complainants  went  on  hiring  the  work  done  as  be- 
fore, until  the  increased  cost  amounted  to  $9,243.45,  for 
which  sum  they  brought  suit.  It  was  held,  however,  that 
the  complainants  should  have  purchased  another  machine, 
as  soon  as  they  knew  that  the  defendants  would  not  fur- 
nish one,  and  that  their  increase  of  damages  was  :  ist,  the 
actual  cost  of  the  work,  $1,749.80,  with  interest  from 
May  ist,  1872,  also  the  cost  of  another  machine  ($6,000), 
with  interest  from  the  same  date ;  subject  to  the  right  of 
the  defendants  to  take  back  the  old  machine  or  apply  its 
value  in  reduction  of  damages. (*•) 

(')  Keyes  v.  Western  Vt.  Slate  Co.,  34  Vt.  81. 

C)  Eureka  Marble  Co.  v.  Windsor  Mfg  Co.,  51  Vt.  170  (1878). 


2^6  AVOIDABLE   CONSEQUENCES.  §22/, 

The  same  view  has  been  taken  by  the  Supreme  Court 
of  Massachusetts  in  an  action  for  breach  of  agreement, 
in  making  a  sale  of  a  house,  to  assign  the  policy  of  in- 
surance. (")  Defendant,  though  often  requested,  did  not 
assign,  but  continued  to  promise,  and  it  was  held  that 
plaintiff  was  not  entitled  to  recover  the  value  of  the  build- 
ing in  its  destruction  by  fire,  although  the  policy  had  be- 
come void  by  the  failure  to  assign,  and  the  insurance  was 
thus  lost,  and  could  recover  only  the  cost  of  insurance  for 
the  unexpired  term  of  policy,  the  reason  being  that  after 
the  defendant's  default  had  become  evident,  she  should 
have  insured  herself. 

§  227.  Burden  of  proof. — It  has  been  repeatedly  held  that 
the  burden  of  proof  is  always  on  the  defendant  to  prove 
that  the  plaintiff  might  have  reduced  damages.  C")  So  a 
vendee  cannot  in  an  action  for  vendor's  failure  to  deliver 
logs,  recover  damages  because  his  mill  remained  idle,  if  he 
could  have  bought  other  logs,  but  the  burden  of  proving 
that  he  could  is,  it  seems,  on  the  vendor.  (°)  "  But  first 
of  all  the  defence  set  up  should  be  proved  by  the  one 
who  sets  it  up.  He  seeks  to  be  benefited  by  a  particular 
matter  of  fact,  and  he  should,  therefore,  prove  the  matter 
alleged  by  him.  The  rule  requires  him  to  prove  an  af- 
firmative fact,  whereas  the  opposite  rule  would  call  upon 
the  plaintiff  to  prove  a  negative,  and  therefore  the  proof 
should  come  from  the  defendant.  He  is  the  wrong-doer, 
and  presumptions  between  him  and  the  person  wronged 
should  be  made  in  favor  of  the  latter.  For  this  reason, 
therefore,  the  onus  must  in  all  such  cases  be  upon  the  de- 
fendant."(^)    "Prima  facie,  the  plaintiff  is  damaged  to  the 

(•)  Dodd  V.  Jones,  137  Mass.  322. 

0")  Hamilton  v.  McPherson,  28  N.  Y.  72. 

C)  Hopkins  v.  Sanford,  41  Mich.  243. 

('')  Costiganz/.  Mohawk  &  H.  R.R.  Co.,  2  Den.  609  (1846) ;  ace.  Roper  v. 
Johnson,  L.  R.  8  C.  P.  167  ;  Murrell  v.  Whiting,  32  Ala.  54 ;  Dunn  v.  John- 
son, 33  Ind.  54;  Hamilton  v.  McPherson,  28  N.  Y.  72;  Leonnrd  v.  New 


§  228.  COURT    AND    JURY.  ^^y 

extent  of  the  amount  stipulated  to  be  paid.  The  burden  of 
proof  is  on  the  defendant  to  show  either  that  the  plaintiff 
has  found  employment  elsewhere,  or  that  other  similar 
employment  has  been  offered  and  declined,  or  at  least 
that  such  employment  might  have  been  found."  (*) 

§  228.  Court  and  jury. — Whether  the  party  injured  has 
used  ordinary  care  to  make  the  consequences  of  the  in- 
jury as  light  as  possible,  is  usually  a  question  of  fact,  de- 
pending upon  all  the  circumstances  of  the  case.  Thusirt 
the  common  case  of  injury  to  the  person,  the  plaintiff  is 
required  to  show  that  he  employed  a  competent  physi- 
cian, but  if  the  physician  makes  mistakes  in  his  treatment, 
this  is  not  the  fault  of  the  plaintiff.C*)  The  question 
whether  moderate  expense  and  ordinary  effort  would  have 
prevented  the  damages,  is  for  the  jury.(°)  1 

In  Parker  v.  Meadows  (*)  it  was  held  that  the  court  was 
to  determine  in  each  case  what  was  a  reasonable  expendi- 
ture, regard  being  had  to  all  the  circumstances  (°)  But 
whether  the  plaintiff  should  have  reduced  damages,  is 
substantially  the  same  as  the  question  whether  he  has  been 
negligent ;  and  this  is  usually  for  the  jury  under  proper  in- 
structions. (') 

York  A.  &  B.  E.  M.  T.  Co.,  41  N.  Y.  544;  Greene  v.  Waggoner,  2  Hilt.  (N. 
Y.)  297  (1859)  ;  Kingv.  Steiren,  44  Pa.  99. 

(•)  Howard  v.  Daly,  61  N.  Y.  362,  371.  When  an  employee  obtains  other 
employment  the  presumption  is  said  to  be  that  he  gets  the  best  wages  he 
can.     Hunt  v.  Crane,  33  Miss.  669. 

C")  Collins  V.  Council  Bluffs,  32  la.  324 ;  Rice  v.  Des  Moines,  40  la.  638 ; 
Page  I/.  Bucksport,  64  Me.  51  ;  Eastman  v.  Sanborn,  3  Allen  594;  Stover 
V.  Bluehill,  51  Mo.  439;  Tuttle  v.  Farmington,  58  N.  H.  13  ;  Lyons  v.  Erie 
Ry.  Co.,  57  N.  Y.  489  ;  Loeser  v.  Humphrey,  41  Ohio  St.  378  ;  Bardwell  v. 
Jamaica,  15  Vt.  438. 

(')  Little  V.  McGuire,  38  la.  560 ;  Smith  v.  Chicago  C.  &  D.  R.R.  Co.,  38 
la.  518;  Leonard  v.  New  York,  etc.  Tel.  Co.,  41  N.  Y.  544. 

(■i)  86  Tenn.  181. 

(«)  Citing  Hester  v.  Knox,  63  N.  Y.  561  ;  Martin  v.  Hill,  42  Ala.  275 ; 
Hinckley  z/.  Beckwith,  13  Wis.  31. 

0  Bevier  v.  Delaware  &  H.  C.  Co.,  13  Hun  254  (1878). 
Vol.  L — 22 


CHAPTER  VII. 


EXPENSES   OF    LITIGATION. 


i  229.  Expense  of  carrying  on  a  suit 
not  compensated. 

230.  Reason  of  the  rule. 

231.  Civil  and  old  common  law. 

232.  Rule  in  actions  of  contract. 

233.  General  rule  in  actions  of  tort. 

234.  In  cases  of  aggravation — Ex- 

emplary damages. 

235.  Patent  and  admiralty  cases. 

236.  Expenses  of  a  prior  litigation. 


i  237.  Expense  of  dissolving  injunc- 
tion or  discharging  attach- 
ment. 

238.  Covenants    and    contracts   of 

warranty  or  indemnity. 

239.  Expenses  must  be  reasonable. 

240.  Plaintifl     subjected     to     suit 

through  defendant's  breach 
of  contract. 

241.  Plaintiff    subjected     to     suit 

through  defendant's  tort. 


§  229.  Expense  of  carrying  on  a  suit  not  compensated. — 
We  have  seen  that  in  order  to  recover  complete  com- 
pensation, the  plaintiff  should,  in  case  he  is  successful,  be 
allowed  the  expenses  of  litigation.  Nevertheless,  the 
general  rule  is,  that  counsel  fees  are  not  recoverable  as  dam- 
ages. The  law  awards  to  the  successful  party  his  taxable 
costs,  but  the  fees  which  he  pays  to  counsel  are  not  taken 
into  consideration. (*)  "  In  general  the  law  considers  the 
taxed  costs  as  the  only  damage  which  a  party  sustains  by 
the  defence  of  a  suit  against  him,  and  these  he  recovers 
by  the  judgment  in  his  favor-''^") 

(»)  Oelrichs  v.  Spain,  15  Wall.  211  ;  Henry  v.  Davis,  123  Mass.  345; 
Warren  v.  Cole,  15  Mich.  265;  Haverstick  v.  Erie  Gas  Co.,  29  Pa.  254. 
Nor  can  he  recover  for  his  expense  and  time  in  attending  court.  Jacobson 
V.  Poindexter,  42  Ark.  97. 

0  Young  7'.  Courtney,  13  La.  Ann.  193.  This  rule  applies  also  in  the 
analogous  case  of  witness  fees.  Thus  where  a  physician's  charge  for  attend- 
ing the  plaintiff  included  compensation  for  the  expense  of  attending  as  a 
■witness,  that  part  of  the  charge  which  covered  this  expense  was  not  allowed. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Campbell,  76  Tex.  174. 
(338) 


§  230.  REASON   OF   THE   RULE.  339 

So  in  an  action  of  asumpsit,'  the  Supreme  Court  of 
Massachusetts  said,  that  "  the  expenditure  for  counsel 
fees  is  an  item  ordinarily  to  be  borne  by  the  suitor,  ex- 
cept so  far  as  it  may  be  remunerated  by  the  taxable  costs 
for  the  travel  and  attendance  of  the  party,  and  the  allow- 
ance of  an  attorney's  fee."  "  In  actions  of  debt,  cove- 
nant, and  assumpsit,  the  plaintiff  can  recover  but  legal 
costs  as  compensation  for  his  expenditure  in  the  suit, 
and  as  punishment  to  the  defendant  for  his  unjust  deten- 
tion of  the  debt."' 

And  so  far  is  the  principle  carried  in  Massachusetts, 
that  a  trustee  (or  garnishee),  in  whose  hands  the  funds 
of  the  debtor  are  found,  can  retain  nothing  to  meet  the 
expenses  of  litigation.' 

This  rule  of  the  common  law  is  in  some  jurisdictions 
changed  by  statute.  Thus  in  Georgia  (*)  counsel  fees 
are  included  in  the  damages  where  the  defendant  acted 
in  bad  faith,  or  was  stubbornly  litigious,  whether  the 
action  is  contract  or  tort. 

§  230.  Reason  of  the  rule.— It  has  been  intimated  (") 
that  the  reason  of  this  rule  disallowing  counsel  fees  is 
that  they  are  a  remote  loss.  But  this  would  be  very 
difficult  to  maintain.  The  expenses  of  a  litigation  to  ob- 
tain compensation  would  seem  to  be,  though  not  a  direct, 
certainly  a  natural  and  proximate  consequence  of  the 
injury,  and  hence  to  belong  to  that  class  of  consequential 
losses  which  can  be  recovered.  The  true  foundation  of 
the  rule  we  take  to  be  that  the  common  law  has  arbi- 
trarily fixed  taxable  costs  as  the  limit  of  remuneration 
for  expenses  of  litigation.     That  counsel  fees  are  not 

'  Guild  V.  Guild,  2  Met.  229.  ^  Adams  v.  Cordis,  8  Pick.  260. 

^Stimpson  v.  Railroads,  i  Wall,  jr., 
364,  169,  per  Grier,  J. 

.(»).Code.of  1883,  §2942. 

Q)  Pacific  Ins.  Co.  v.  Conard,  i  Bald.  138. 


340  EXPENSES    OF    LITIGATION.  §§  23 1,   232. 

regarded  as  in  themselves  a  remote  loss,  is  shown  in  that 
class  of  cases  where  the  expenses  of  a  former  suit  are 
recovered. 

§  231.  Civil  and  old  common  law.— *  We  have  already  had 
occasion  to  notice  that  legal  relief  is  at  best  but  partial. 
Under  the  Roman  law  the  successful  party  was  not  re- 
stricted to  a  suit  for  malicious  prosecution,  and  the  party 
justly  chargeable  with  making  a  totally  ungrounded 
claim  or  defence,  was  punished  with  a  pecuniary  mulct. 
And  this,  at  one  time,  seems  to  have  been  adopted  into 
the  jurisprudence  of  modern  Europe.  Francis  the  First, 
by  his  ordinance  of  1539,  Art.  88,  authorized  the  judge 
to  inflict  damages  proportioned  to  the  "  temerity  "  of  the 
losing  party.'  And  so,  too,  in  England,  originally  it 
seems  that  the  plaintiff,  in  all  cases  of  unsuccessful  liti- 
gation, might  be  amerced  pro  falso  clamore,  and  the 
amerciament  [a  merci,  Fr.]  was  affeered  \affier,  ,Fr.J,  or 
assessed,  by  the  court  or  its  officers. 

§  232.  Rule  in  actions  of  contract. — This  power,  how- 
ever, no  longer  exists,  and  in  cases  of  contract  no  redress 
is  given  beyond  the  taxable  costs.  Even  in  cases  the 
most  frivolous  and  vexatious,  in  no  case  is  any  independ- 
ent redress  given,  i.  e.,  by  a  recriminatory  action,  unless 
the  first  suit  or  proceeding  be  malicious.  This  principle 
is  rigorously  applied  to  counsel  fees  in  all  cases  of  con- 
tract, and,  without  discrimination,  to  both  parties  to  the 
litigation.**  So  in  an  action  on  an  attachment  or  in- 
junction bond,  the  expenses  of  prosecuting  the  suit  on 
the  bond  cannot  be  recovered.  (") 

We  are  now  speaking  of  counsel  fees  in  the  principal 

'  Merlin;  Repertoire,  in  voc.  Dommages-IntSr^ts. 

(»)  Goodbar  v.  Lindsley,  51  Ark.  380;  Vorse  v.  Phillips,  37  la.  428;  Offutt  »► 
Edwards,  9  Rob.  (La.)  90. 


§  233-  GENERAL    RULE    IN    ACTIONS   OF   TORT.  34I 

suit,  for,  as  we  shall  presently  see,  counsel  fees  in  former 
suits  are  sometimes  allowed. 

§  233.  General  rule  in  actions  of  tort. — In  cases  of  tort 
there  has  been  some  tendency  on  the  part  of  the  courts 
to  allow  the  plaintiff  his  counsel  fees.  Thus,  in  an  action 
on  the  case  for  flowing  back  the  water  of  a  river  in 
Maine,  on  the  plaintiff's  lands,  although  no  malice  was 
proved,  Judge  Story  told  the  jury,  that  for  the  purpose 
of  giving  a  full  indemnity,  they  might  take  into  consider- 
ation such  expenses  of  fees  to  counsel,  and  such  other 
necessary  expenses  as  they  might  think  were  properly 
and  fairly  incurred ;  and  on  a  motion  made  for  a  new 
trial,  on  the  ground  that  the  damages  were  excessive, 
the  court  refused  to  interfere.' 

Such  seems  to  be  the  rule  still  in  Connecticut  and 
Ohio,(')  but  it  is  firmly  established  elsewhere  that  coun- 
sel fees  cannot  be  included  in  compensatory  damages,('*) 
even  though  the  suit  was  brought  merely  to  vex  the 
prevailing  party.  (") 

In  Massachusetts,  the  Supreme  Court  refused  to  allow 
counsel  fees  in  an  action  on  the  case  for  setting  a  fire  on 
the  defendant's  own  land,  whereby  the  plaintiff's  wood 
was  consumed,  holding  that  it  was  immaterial  with  ref- 
erence to  the  damages,  whether  the  accident  resulted 
from  gross  negligence,  or  merely  the  want  of  ordinary 
care.""     "  It  is  now  well  settled,"  said  the   court,  "  that 

>  Whipple  V.  Cumberland  M.  Co.,  2        «  Barnard  v.  Poor,  21  Pick.  378. 
Story,  661.  , 

(»)  Piatt  V.  Brown,  30  Corn.  336;  Welch  v.  Durand,  36  Conn.  182;  Finney 
V.  Smith,  31  Oh.  St.  529.  To  the  same  effect  are  Armstrong  v.  Pierson, 
8  la.  29 ;  Rose  v.  Belyea,  i  Han.  109. 

(")  Flanders  z/.  Tweed,  15  Wall.  450;  Winstead  v.  Hulme,  32  Kas.  568; 
Kelly  V.  Rogers,  21  Minn.  146;  Winkler  v.  Reader,  23  Neb.  706;  Atkins  v. 
Gladwish,  25  Neb.  390;  Hicks  v.  Foster,  13  Barb.  663;  Welch  v.  Northeastern 
R.R.  Co.,  12  Rich.  290;  Landa  v.  Obert,  45  Tex.  539. 

C)  Salado  College  v.  Davis,  47  Tex.  131. 


342  EXPENSES    OF    LITIGATION.  §  233. 

even  in  an  action  of  trespass  or  other  action  sounding  in 
damages,  the  counsel  fees  and  other  expenses  of  prosecut- 
ing the  suit,  not  included  in  the  taxed  costs,  cannot  be 
taken  into  consideration  in  assessing  damages."  And 
the  Supreme  Court  of  New  York  have  laid  down  the 
same  rule  in  an  action  on  the  case  for  negligence,  against 
a  railroad,  for  injuries  to  the  person,  which  we  have 
already  noticed.' 

In  an  action  of  trespass  against  the  marshal  of  the 
United  States,  for  making  an  illegal  levy  on  certain  teas, 
no  circumstances  of  aggravation  being  shown,  Mr.  Justice 
Baldwin  held  that  the  jury  could  not  allow  the  plaintiff 
his  counsel  fees  by  way  of  damages.     He  said  : 

"  It  may  be  thought  a  hardship  that  the  plaintiffs  shall  not  be 
allowed  their  actual  disbursements  in  recovering  this  property ; 
but  the  hardship  is  equally  great  in  a  suit  for  money  lent,  or  to 
recover  possession  of  land  ;  they  are  deemed  in  law  losses  with- 
out injury,  for  which  no  legal  remedy  is  afforded.  I  am,  there- 
fore, of  opinion  that  you  cannot,  in  assessing  damages  in  .this 
case,  allow  any  of  the  items  claimed  by  the  plaintiffs  for  dis- 
bursements, they  being  consequent  losses  only,  and  not  the  ac- 
tual or  direct  injury  to  their  property  which  they  have  sustained 
by  its  seizure  and  detention,  for  which  alone  they  are  entitled  to 
recover' damages  in  this  case,  it  not  being  attended  with  any 
circumstances  of  aggravation  on  the  part  of  the  defendant. 
Had  there  been  any  such,  a  very  different  rule  would  have  been 
applied,  by  reimbursing  the  plaintiffs  to  the  full  extent  of  all 
their  expenses  and  consequential  losses." ' 

In  Oelrichs  v.  Spain  (*)  Swayne,  J.,  said  :  "  In  actions 
of  trespass,  where  there  are  no  circumstances  of  aggrava- 
tion, only  compensatory  damages  can  be  recovered,  and 
they  do  not  include  the  fees  of  counsel.     The  plaintiff  is 

'  Lincoln  v.  Saratoga  &  S.  R.R.  Co.        '  Pacific  Ins.  Co.  v.  Conard,  I  Bald. 
23  Wend.  425.  138,  146. 


(»)  IS  Wall.  211,  230. 


§  234*  IN   CASES   OF   AGGRAVATION.  343 

no  more  entitled  to  them,  if  he  succeed,  than  is  the  de- 
fendant if  the  plaintiff  be  defeated." 

Counsel  fees  cannot  be  recovered  in  actions  of  re- 
plevin. (") 

§  234.  In  cases  of  aggravation — Exemplary  damages. — 
In  some  States  it  is  held  that  facts  which  justify  the 
infliction  of  exemplary  damages  will  also  justify  the  jury 
in  adding  the  amount  of  the  counsel  fees  to  the  verdict, 
not  as  part  of  the  exemplary  damages,  but  as  compensa- 
tory damages. 

In  an  action  on  the  case  brought  in  Connecticut,  after 
stating  the  rule  allowing  vindictive  or  exemplary  dam- 
ages, the  court  proceeded  to  use  this  language  : 

"  The  argument  in  opposition  to  the  doctrine  of  the  charge  is 
substantially  founded  upon  the  assumed  principle,  that  the  de- 
fendant cannot  be  subjected  to  a  greater  sum  in  damages  than 
the  plaintiff  has  actually  sustained.  But  every  case  in  which  the 
recovery  of  vindictive  damages  has  been  justified,  stands  opposed 
to  this  argument.  And  we  cannot  comprehend  the  force  of  the 
reasoning  which  will  admit  the  right  of  a  plaintiff  to  recover  as 
vindictive  damages,  beyond  the  amount  of  injury  confessedly 
incurred,  and  in  case  of  an  act  and  injury  equally  wanton  and 
wilfully  committed  or  permitted,  will  deny  to  him  a  right  to  re- 
cover an  actual  indemnity  for  the  expense  to  which  the  defend- 
ant's misconduct  has  subjected  him.  In  the  cases  to  which  we 
have  been  referred  in  other  States,  as  deciding  a  different  prin- 
ciple, the  courts  seem  to  have  assumed  that  the  taxable  costs  of 
the  plaintiff  are  his  only  legitimate  compensation  for  the  expense 
incurred.  If  taxable  costs  are  presumed  to  be  equivalent  to 
actual  necessary  charges  as  a  matter  of  law,  every  client  knows 
as  a  matter  of  fact  they  are  not.  And  legal  fictions  should  never 
be  permitted  to  work  injustice."  ' 

In  Bennett  v.  Gibbons  (")  Loomis,  J.,  said  :  "  It  is  not 

'  Linsley  v.  Bushnell,  15  Conn.  225. 

(•)  Cowden  v.  Lockridge,  60  Miss.  385  ;  Taylor  v.  Morton,  61  Miss.  24 ; 
Davis  V.  Gushing,  5  All.  (N.  B.)  383. 
(b)  55  Conn.  45°.  452. 


344  EXPENSES   OF    LITIGATION.  §  234. 

usual  to  introduce  evidence  to  show  specifically  the 
amount  of  such  expenses,  yet,  inasmuch  as  it  is  a  legiti- 
mate element  of  damage,  we  do  not  see  why  relevant 
evidence  is  not  as  proper  as  in  relation  to  any  other  item 
of  damage,  it  being  understood  of  course  that  it  is  dis- 
cretionary with  the  jury  to  include  this  or  not ;  but  it 
seems  to  us  that  it  cannot  be  erroneous  to  furnish  the 
jury  with  some  sure  basis  for  such  an  addition,  instead 
of  leaving  the  whole  matter  to  guesswork."  And  it  is 
well  settled  in  Connecticut  that  in  such  actions  counsel 
fees  may  be  allowed.  (") 

In  a  still  stronger  case  in  Connecticut,  in  an  action  of 
assault  and  battery,  where,  in  consequence  of  the  death 
of  a  juror,  a  second  trial  became  necessary,  it  was  held 
that  the  jury,  in  estimating  the  damages,  might  take  into 
consideration  the  expenses  of  the  first  trial.'  The 
same  rule  seems  to  prevail  in  Ohio.(^)  The  Supreme 
Court  of  that  State  use  the  following  language  :  "The 
authorities  are  not  uniform;  but  the  better  opinion  now 
seems  to  be  that  in  actions  ex  contractu  and  in  cases  nomi- 
nally in  tort,  but  where  no  wrong  in  the  moral  sense  of  the 
term  is  complained  of,  the  fees  of  counsel  ought  not  to 
be  included;  but  in  cases  where  the  act  complained  of  is 
tainted  by  fraud,  or  involves  an  ingredient  of  malice  or 
insult,  the  jury  which  has  power  to  punish  has  neces- 
sarily the  right  to  include  the  consideration  of  proper 
and  reasonable  counsel  fees   in  their  estimate  of  dam- 

'  Noyes  v.  Ward,  19  Conn.  250. 


(')  Ace.  Huntley  v.  Bacon,  1 5  Conn.  267  ;  Ives  v.  Carter,  24  Conn.  392  ; 
Beecher.w.  Derby  Bridge  Co.,  24  Conn.  491  ;  St.  Peter's  Church  v.  Beach,  26 
Conn.  355  ;  Dibble  v.  Morris,  26  Conn.  416  ;  Piatt  v.  Brown,  30  Conn.  336  ; 
Welch  V.  Durand,  36  Conn.  182 ;  Dalton  v.  Beers,  38  Conn.  529 ;  Mason  v. 
Hawes,  52  Conn.  12  ;  Wynne  v.  Parsons,  57  Conn.  73. 

C)  Finney  z/.  Smith,  31  Oh.  St.  529;  Stevenson  v.  Morris,  37  Oh.  St.  10; 
Peckham  Iron  Co.  v.  Harper,  41  Oh.  St.  100. 


§  234-  IN    CASES   OF   AGGRAVATION.  345 

ages."  (*)  And  in  Nevada,  where  a  libel  had  been  pub- 
lished, and  a  libel  suit  was  necessary  to  vindicate  the 
plaintiff's  character,  it  was  held  that  the  plaintiff  might 
recover  the  expense  of  litigation.  ('') 

This  doctrine  does  not  prevail  generally,  but  in  many 
States  it  has  been  held  that  the  jury  in  assessing  exem- 
plary damages  have  a  right  to  know  and  consider  the  ex- 
pense of  litigation.C)  Thus  in  Alabama,  in  an  action 
for  malicious  prosecution,  the  Supreme  Court  has  said, 
while  recognizing  the  conflict  of  authority,  "  We  can 
readily  perceive  the  justice  and  good  sense  of  the  rule 
which  requires  a  party  who  wantonly  and  maliciously 
abuses  the  process  of  the  court,  or  sues  out  an  attach- 
ment for  the  purpose  of  worrying  and  harassing  the  de- 
fendant, without  probable  cause,  to  make  good  his  losses, 
and  to  furnish  complete  reparation  and  indemnity  for 
the  injury  his  malice  has  occasioned ";  and  the  de- 
fendant's counsel  fees  for  defending  the  original  suit 
were  allowed  to  be  "proven  and  taken  into  consideration 
by  the  jury."  ' 

But  it  is  difficult  to  see  why  such  expenses  should  be 
allowed  under  the  head  of  exemplary  damages.  The 
plaintiff's  counsel  fees  are  an  expense  incurred  by  him, 
and  their  reimbursement  to  him  brings  the  measure  of 
damages  back  toward  the  standard  of  compensation.     It 

'  Marshall  v.  Betner,  17  Ala.  832. 


(»)  Roberts  v.  Mason,  10  Oh.  St.  277. 

C)  Thompsons.  Powning,  isNev.  195. 

(»)  Patton  V.  Garrett,  37  Ark.  605  {semble);  Titus  v.  Corkins,  2i  Kas.  722  ; 
Winstead  v.  Hulme,  32  Kas.  568  ;  Eatman  v.  New  Orleans  P.  Ry.  Co.,  35  La. 
Ann.  1018 ;  New  Orleans,  J.  &  G.  N.  R.R.  Co.  v.  AUbritton,  38  Miss.  242  ; 
Cowden  v.  Lockridge,  60  Miss.  385  ;  Taylor  v.  Morton,  61  Miss.  24  ;  Landa 
V.  Obert,  45  Tex.  539,  and  by  the  codes  of  California  and  Georgia  ;  Beckman 
V.  Skaggs,  6l  Gal.  362  ;  Savannah  v.  Waldner,  49  Ga.  316  ;  Guernsey  v. 
Shellman,  9  Ga.  797 ;  Mosely  v.  Sanders,  76  Ga.  293. 


346  EXPENSES   OF    LITIGATION.  §  234.. 

is  an  item  of  compensation,  indeed,  not  usually  allowed; 
but,  nevertheless,  it  is  really  compensation.  There  is- 
nothing  especially  punitory  as  regards  the  defendant  in 
the  fact  that  the  sum  in  which  he  is  mulcted  happens,  in 
whole  or  in  part,  to  represent  the  counsel  fees  paid  or  in- 
curred by  his  injured  adversary.  His  payment  to  the 
plaintiff  of  a  considerable  sum  is  equally  a  punishment, 
whether  the  plaintiff  have  paid  a  like  or  less  sum  as 
counsel  fees  or  not.  Indeed,  when  the  jury  are  per- 
mitted to  break  beyond  the  bounds  which  the  law,  hav- 
ing compensation  only  in  view,  prescribes,  it  will  be 
found,  on  analysis,  we  think,  that  every  attempt  to  in- 
troduce other  standards  for  their  guidance  will  be  futile. 
And  accordingly  by  the  better  opinion,  no  inquiry  into 
counsel  fees  should  be  allowed,  even  in  those  actions  of 
tort  in  which  the  jury  may  give  exemplary  damages. (*) 
Swayne,  J.,  in  Oelrichs  v.  Spain,  supra,  in  reference  to 
counsel  fees  in  such  cases,  cites  with  approval  the  re- 
marks of  the  court  in  Day  z/.  Wood  worth  iC")  "The  pun- 
ishment of  the  defendant's  delinquency  cannot  be  meas- 
ured by  the  expenses  of  the  plaintiff  in  prosecuting  his 
suit.  It  is  true  that  damages  assessed  by  way  of  example 
may  thus  indirectly  compensate  the  plaintiff  for  money 
expended  in  counsel  fees,  but  the  amount  of  these  fees 
cannot  be  taken  as  the  measure  of  punishment,  or  a 
necessary  element  in  its  infliction."  To  the  same  effect 
see  Fairbanks  v.  Witter.^)  where  the  court  said  that 
counsel  fees  could  no  more  be  allowed  in  actions  where 


(")  Howell  V.  Scoggins,  48  Cal.  355  ;  Falk  v.  Waterman,  49  Cal.  224;  Kelly 
V.  Rogers,  21  Minn.  146;  Halstead  v.  Nelson,  24  Hun  395  ;  Welch  v.  South- 
eastern R.R.  Co.,  12  Rich.  290;  Hoadley  w.  Watson,  45  Vt.  289;  Earl  v. 
Tupper,  45  Vt.  275. 

C)  13  How.  363,  371 

(«)  18  Wis.  287,  290. 


§  235-  PATENT   AND    ADiMIRALTY   CASES,  347 

punitory  damages  can  be  given  than  in  others,  and  that 
if  they  could  be  assessed  by  the  jury,  it  must  be  on  the 
principle  "  that  they  are  conequential  damages,  and  relate 
to  the  amount  of  compensation,  rather  than  refer  to- 
damages  which  may  be  inflicted  by  way  of  penalty  or 
punishment  for  aggravated  misconduct."  So  in  an  action, 
of  assault  and  battery,  it  has  been  held  that,  although 
that  was  a  case  in  which  exemplary  damages  were  allow- 
able, a  jury  could  not  take  into  consideration  counsel! 
fees  and  expenses,  for  the  legislature  has  fixed  the  tax- 
able costs  as  full  indemnity.  And  in  New  York  it  has 
been  held  error  for  the  judge,  in  an  action  of  slander,  to 
charge  the  jury  that,  in  awarding  the  damages,  they 
might  take  into  consideration  the  expenses  to  Which  the 
plaintiff  had  been  put,  by  being  compelled  to  come  into- 
court  to  vindicate  her  character.  (") 

§  235.  Patent  and  admiralty  cases. — In  an  early  case^ 
in  the  Supreme  Court  of  the  United  States,  of  a  libel 
filed  by  the  Spanish  consul,  for  restitution  of  a  Spanish 
vessel  captured  by  a  French  vessel,  it  appeared  that 
a  charge  of  sixteen  hundred  dollars  for  counsel  fees  in 
the  courts  below  had  been  admitted ;  and  the  court 
said :  "  We  do  not  think  that  this  charge  ought  to  be 
allowed.  The  general  practice  of  the  United  States 
is  in  opposition  to  it."  The  authority  of  this  case  was  for 
a  time  shaken  by  later  decisions  ;  (^)  but  in  the  case  of  The 
Margaret  v.  The  Connestoga,(°)  Grier,  J.,  while  apparently 
admitting  the  discretionary  power  of  the  Admiralty  Court 
to  allow  counsel  fees,  expressed  his  strong  repugnance  to 

'  Arcambel  v.  Wiseman,  3  Dall.  306. 


(»)  Hicks  V.  Foster,  13  Barb.  663. 

0")  The  Apollon,  9  Wheat.  362  ;  Canter  v.  American  &  O.  I.  Co.,  3  Pet. 

307- 

(«)  2  Wall.  jr.  116, 


^48  EXPENSES   or    LITIGATION.  §  236. 

its  exercise,  saying  that  the  principle  seemed  to  belong 
rather  to  the  Hall  of  the  Cadi  than  the  judgment-seat  of 
the  court ;  and  counsel  fees  are  no  longer  allowed  in 
Admiralty.  (")  The  history  of  counsel  fees  in  patent  suits 
has  been  similar.  It  was  a  favorite  doctrine  of  Mr. 
Justice  Story  that  counsel  fees  should  be  allowed  in  patent 
suits ;  C")  though  at  first,  he  denied  recovery  (°)  on  the 
authority  of  Arcambel  v,.  Wiseman. 

But  it  was  now  well  established  that  counsel  fees  can- 
not be  recovered  as  "  actual  damages  "  in  patent  suits.(*) 

§  236.  Expenses  of  a  prior  litigation. — Where  the  plaintiff 
lias  defended  an  action  for  the  benefit  or  on  account  of  the 
"wrongful  act  of  the  defendant,  two  questions  arise  :  first, 
-whether  the  costs  of  defending  the  first  action  are  recovera- 
ble ;  secondly,  whether,  if  recoverable,  counsel  fees  can  be 
included.  Some  decisions  seem  to  be  to  the  effect  that 
■counsel  fees  are  never  recoverable.  They  are  apparently 
founded  on  a  fiction  of  law,  that  the  costs  are  a  full  in- 
demnity for  all  expenses  incurred  in  the  defense  of  a 
suit.(*)  But  it  is  very  doubtful  whether  that  ever  applies 
except  as  between  the  parties  to  the  suit,  for  the  reason 
seems  to  be,  that  it  is  a  fixed  sum  awarded  by  law  to  be 
paid  by  the  prevailing  to  the  losing  party.  Where  a 
plaintiff  has  become  involved  in  another  suit  by  the  de- 
fendant's acts,  he  should  recover  the  amount  of  the 
reasonable  expenses  in  which  he  has  become  involved. 


(»)  The  Baltimore,  8  Wall.  377 ;  Swayne,  J.,  in  Oelrichs  v.  Spain,  15  Wall. 
230. 

C")  Boston  M.  Co.  v.  Fiske,  2  Mason  119;  Pierson  v.  Eagle  Screw  Co.,  3 
Story,  402  ;  and  so,  too,  held  by  Judge  Woodbury,  in  the  same  circuit,  Allen 
-V.  Blunt,  2  Woodb.  &  M.  121. 

(")  Whittemore  v.  Cutter,  i  Gall.  429. 
■  (■•)  Blanchard's  G.  T.  F.  v.  Warner,  I  Blatchf.  258  ;  Stimpson  v.  The  Rail- 
Toads,  I  Wall.  jr.  164. 

(')  Leffingwell  v.  Elliott,  10  Pick.  204 ;  Reggio  z'.  Braggiotti,  7  Cush.  i65. 


§  236.  EXPENSES   OF   A    PRIOR   LITIGATION. 


349 


and  there  seems  to  be  no  reason  for  the  existence  of  the 
fiction  in  such  a  case.  A  distinction  has  sometimes  been 
made  to  the  effect  that  if  the  plaintiff  is  successful  in  the 
prior  litigation,  he  cannot  recover  counsel  fees,  for  he  has 
been  fully  indemnified  by  receiving  the  taxed  costs,  though 
the  rule  is  otherwise  if  he  is  not  successful. 

Where  the  prior  litigation  was  unnecessary,  the  plaintiff 
can  recover  neither  the  costs  nor  the  counsel  fees.C) 
So  an  indorser  cannot  recover  against  the  maker  the 
costs  of  the  action  against  him,  for  he  should  have 
paid  the  note.  Very  frequently  the  plaintiff  is  allowed 
to  recover  costs  and  not  counsel  fees,  where  a  defense  of 
the  prior  suit  was  not  proper,  for  it  may  have  been  neces- 
sary for  him  to  allow  judgment  to  be  entered. 

Where,  however,  the  prior  litigation  is  a  natural  conse- 
quence of  the  wrong,  and  is  necessary  to  determine  the 
amount  of  damages,  or  the  plaintiff  has  reasonable  grounds 
to  suppose  that  it  is  for  the  interest  of  the  defendant  that 
he  should  contest  the  claim,  and  he  does  so  for  the  de- 
fendant's benefit,  the  costs  and  counsel  fees  are,  by  the 
better  opinion,  recoverable. C")  In  New  York  the  "ex- 
penses" are  recoverable  if  the  litigation  is  necessary  in 
order  to  determine  the  amount  of  damages.('')  In  Hughes 
V.  Graeme,(^)  an  action  for  the  defendant's  misrepresen- 
tation of  his  authority  as  agent,  Blackburn,  J.,  stated  one 
of  the  grounds  on  which  such  expenses  are  recoverable, 
as  follows :  "  That  if  a  person  takes  a  particular  course, 
reasonably,  naturally,  and  bona  fide,  resulting  from  the 
assertion  of  the  authority,  then  the  results  of  that  course 
would   be  a  reasonable  and  natural  consequence  of  the 


(»)  Lunt  V.  Wrenn,  113  III.  168. 

C)  Baxendale  v.  London  C.  &  D.  Ry.  Co.,  L.  R.  10  Ex.  35. 

(=)  Dubois  V.  Hermance,  56  N.  Y.  673. 

C)  33  L-  J-  Q-  B.  335- 


350  EXPENSES    OF    LITIGATION.  §  237. 

warranty,  and  the  costs  of  it  would  be  part  of  the  reason- 
able and  natural  damages." 

There  has  been  some  question  whether  counsel  fees  can 
be  recovered  if  they  have  not  been  actually  paid.  The 
better  opinion  is  that  liability  to  pay  them  is  enough.  (') 
The  fee  must  have  been  a  reasonable  one  ;  and  the  reason- 
ableness is  a  question  for  the  jury.('')  Notice  of  the 
prior  litigation  should  have  been  given  to  the  defendant, 
and  if  it  was  given  the  burden  of  proving  the  litigation  un- 
reasonable is  thrown  on  the  defendant ;  (")  but  it  would 
seem  not  to  be  necessary  to  prove  such  notice  in  order  to 
maintain  the  action. 

§  237.  Expense  of  dissolving  injunction  or  discharging 
attachment. — On  a  bond  given  to  indemnify  the  plaintiff 
for  any  expense  caused  by  the  wrongfulness  of  judicial 
proceedings  (such  as  an  injunction  or  attachment  bond), 
the  counsel  fefes  expended  in  obtaining  a  dissolution  of 
the  injunction,  or  discharge  of  the  attachment,  are  re- 
coverable if  they  can  be  separated  from  those  which 
would  have  been  incurred  in  any  event  in  the  defense  of 
the  action. ('^)     In  some  States  the  counsel  fees  incurred 


(')  Garrett  v.  Logan,  19  Ala.  344  ;  Miller  v.  Garrett,  35  Ala.  96 ;  Wittich 
■V.  O'Neal,  22  Fla.  592;  Lytton  i".  Baird,  95  Ind.  349;  McRae  v.  Brown,  12 
La.  Ann.  181  ;  Noble  v.  Arnold,  23  Oh.  St.  264 ;  Bonesteel  v.  Bonesteel,  30 
Wis.  511.  But  see  contra:  Willson  v.  McEvoy,  25  Cal.  169 ;  Prader  v. 
Grimm,  28  Cal.  11.  An  allegation  of  payment  is,  of  course,  not  sustained 
by  proof  of  a  debt  having  been  incurred.  Pritchet  v.  Boevey,  i  C.  &  M.  775  ; 
Jones  V.  Lewis,  9  Dowl.  P.  C.  143  ;  Ward  v.  Haws,  5  Minn.  440. 

C)  Spring  V.  Olney,  78  111.  loi  ;  Tyler  v.  Saflford,  31  Kas.  608. 

(')  Ryerson  v.  Chapman,  66  Me.  557. 

(■•)  Holmes  v.  Weaver,  52  Ala.  516  ;  Boiling  v.  Tate,  65  Ala.  417  ;  Graves 
■V.  Moore,  58  Cal.  435  ;  Wittich  v.  O'Neal,  22  Fla.  592 ;  Cummings  v.  Burle- 
son, 78  111.  281  ;  Morris  v.  Price,  2  Blackf.  457  ;  Raupman  v.  Evansville,  44 
Ind.  392  ;  Swan  v.  Timmons,  81  Ind.  243 ;  Sanford  v.  Willets,  29  Kas.  647  ; 
Tyler  v.  Safford,  31  Kas.  608  ;  Trapnall  v.  McAfee,  3  Met.  (Ky.)  34  ;,  Little- 
jobn  V.  Wilcox,  2  La.  Ann.  620;  White  v.  Givens,  29  La.  Ann.  571 ;  Adam 


■§  23 /•       EXPENSE  OF  DISSOLVING  INJUNCTION,  ETC.  35  I 

in  the  reference  to  ascertain  the  damages  suffered  by  the 
injunction  are  also  allowed.  (")  But  no  recovery  can  be 
had  for  the  general  expense  of  litigating  the  principal 
:suit,('')  even  though  the  attachment  for  which  the  bond 
was  given  alone  gave  the  court  jurisdiction,  and  it  was 
found  to  be  wrongful.  (") 

Thus  in  an  action  on  an  injunction  bond,  the  plaintiff 
has  been  allowed  to  recover  counsel  fees  in  obtaining  a 
dissolution  of  the  injunction,  the  court,  however,  saying 
it  would  be  otherwise  if  the  counsel  fees  were  paid  in 
•defending  the  action,  and  the  dissolution  of  the  injunc- 
tion was  only  incidental  to  a  successful  defense.  (*)  So, 
on  such  a  bond,  counsel  fees  were  not  allowed,  it  appear- 
ing that  the  services  had  been  rendered  in  defending  the 
action,  and  not  merely  in  obtaining  a  dissolution  of  the 
injunction,  although  that  was  the  result  of  the  decree.(') 
It  has  been  held,  where  the  action  and  injunction  or  at- 

•V.  Gomila,  37  La.  Ann.  479 ;  Aiken  v.  Leathers,  40  La.  Ann.  23  ;  Swift  v. 
Plessner,  39  Mich.  178  ;  Miles  v.  Edwards,  6  Mont.  180  ;  Raymond  v.  Green, 
12  Neb.  215  ;  Brown  v.  Jones,  5  Nev.  374;  Corcoran  v.  Judson,  24  N.  Y. 
106 ;  .\ndrews  v.  Glenville  Woolen  Co.,  50  N.  Y.  282  ;  Rose  v.  Post,  56  N. 
Y.  603  ;  Lyon  v.  Hersey,  32  Hun  253  ;  Crounse  v.  Syracuse,  C.  &  N.  Y.  R.R. 
€0.,  33  Hun  497 ;  Alexander  v.  Jacoby,  23  Oh.  St.  358  ;  Lillie  v.  Lillie,  55 
Vt.  470.  But  contra,  Oliphint  v.  Mansfield,  36  Ark.  191 ;  Patton  v.  Garrett, 
:i7  Ark.'  605  ;  Wallace  v.  York,  45  la.  81  ;  Lowenstein  v.  Monroe,  55  la.  82. 

(")  Disbrow  v.  Garcia,  52  N.  Y.  654 ;  but  not  where  no  damages  were 
shown  :  Randall  v.  Carpenter,  88  N.  Y.  293. 

0)  Jacobus  V.  Monongahela  Nat.  Bank,  35  Fed.  Rep.  395  ;  Copeland  v. 
Cunningham,  63  Ala.  394;  Bustamente  v.  Stewart,  55  Cal.  115  ;  Vorse  z/. 
Phillips,  37  la.  428  ;  Cretin  v.  Levy,  37  La.  Ann.  182  ;  Adam  v.  Gomila,  37 
La.  Ann.  479 ;  Brinker  v.  LeinkaufF,  64  Miss,  236  (but  contra  of  an  injunc- 
tion bond  in  Mississippi :  Baggett  v.  Beard,  43  Miss.  120)  ;  Parker  v.  Bond, 
5  Mont.  I  ;  Randall  v.  Carpenter,  88  N.  Y.  293  ;  Northampton  Nat.  Bank  v. 
Wylie,  52  Hun  146  ;  Alexander  v.  Jacoby,  23  Oh.  St,  358  ;  Lillie  v.  Lillie,  55 
Vt.  470. 

(')  Frost  V.  Jordan,  37  Minn.  544. 

(^)  Noble  V.  Arnold,  23  Oh.  St.  264 ;  Livingston  v.  Exum,  19  S.  C.  223. 
■    (")  Oelrichs  w,  Spain,  15  Wall.  211  ;  Blair  v.  Reading,  99  111.  600;  Cretin 
w.  Levy,  37  La.  Ann.  182. 


352  EXPENSES    OF   LITIGATION.  §  237. 

tachment  were  both  defeated,  that  no  distinction  could 
be  made  between  them,  and  a  reasonable  attorney's  fee 
for  defending  both  was  allowed.  (")  But  in  other  States 
it  has  been  held  that  where  there  is  nothing  to  show  that 
the  expense  of  the  defense  was  increased  by  the  fact  that 
an  injunction  was  granted,  the  cost  of  defending  the 
action  could  not  be  recovered. C") 

This  distinction  is  often  taken  ;  if  the  injunction  is  an- 
cillary to  the  principal  relief,  counsel  fees  may  be  recov- 
ered ;  but  if  it  is  the  principal  relief  sought,  no  counsel 
fees  can  generally  be  recovered  on  the  bond,  for  they 
were  only  such  fees  as  would  have  been  incurred  in  the 
case  if  no  temporary  injunction  had  been  granted. (°) 
But  if  extra  expense  in  the  way  of  counsel  was  required 
by  a  temporary  injunction,  that  may  be  recovered. ('') 

The  expense  of  preparing  a  motion  to  dissolve  an  in- 
junction, although  the  motion  was  not  actually  made, 
has  been  allowed  where  the  preparation  was  made  in 
good  faith.(*)  A  reasonable  solicitor's  fee,  in  opposing 
the  granting  of  the  injunction,  is  allowed  in  Illinois.(') 
In  a  case  where  the  injunction  must  be  dissolved  at  once 
or  great  damage  would  ensue,  and  in  order  to  obtain  a 


(■)  Dothard  v.  Sheid,  69  Ala.  135  ;  Wilson  v.  Root,  43  Ind.  486;  Trent- 
man  V.  Wiley,  85  Ind.  33 ;  Hammerslough  v.  Kansas  City  B.  L.  &  S. 
Assoc,  79  Mo.  80 ;  Solomon  v.  Chesley,  59  N.  H.  24.  But  not  a  fee  paid 
for  defending  the  garnishee,  when  the  attachment  was  a  foreign  one: 
Flournoy  v.  Lyon,  70  Ala.  308. 

C)  Patton  V.  Garrett,  37  Ark.  605  ;  Bustamente  v.  Stewart,  55  Cal.  115  ; 
Mitchell  V.  Hawley,  79  Cal.  301  ;  Hovey  v.  Rubber  T.  P.  Co.,  50  N.  Y.  335  ; 
Disbrow  v.  Garcia,  52  N.  Y.  654 ;  Allen  v.  Brown,  5  Lans.  511  ;  McDonald 
V.  James,  38  N.  Y.  Super.  Ct.  76 ;  Noble  v.  Arnold,  23  Oh.  St.  264. 

(■=)  New  National  Turnpike  Co.  v.  Dulaney,  86  Ky.  516 ;  Thurston  v.  Has- 
kell, 81  Me.  303 ;  Olds  v.  Carey,  13  Ore.  362. 

C)  Olds  V.  Carey,  1 3  Ore.  362. 

(")  Wallace  v.  York,  45  la.  81. 

(')  Cummings  v.  Burleson,  78  111.  281  ;  but  contra,  Randall  v.  Carpenter, 
88  N.  y.  293  ;  Newton  v.  Russell,  24  Hun  40. 


§  238.       COVENANTS  AND  CONTRACTS  OF  WARRANTY.       353 

dissolution  it  was  necessary  to  procure  a  special  train  for 
the  place  where  the  court  was  in  session,  it  was  held  that 
the  expense  of  the  train  as  well  as  the  counsel  fee  might 
be  recovered  in  an  action  on  the  injunction  bond.('') 

If  the  injunction  is  dissolved  only  in  part,  while  the 
motion  was  to  dissolve  it  entirely,  all  the  counsel  fees 
paid  out  cannot  be  recovered, C") 

These  expenses  can  be  recovered  only  where  a  bond 
has  been  given.  The  expenses  of  obtaining  a  dissolu- 
tion of  an  injunction  cannot  be  recovered  in  the  injunc- 
tion suit.C) 

§  238.  Covenants  and  contracts  of  warranty  or  indemnity. 
— In  an  action  for  breach  of  the  covenants  of  seizin  or  of 
warranty,  the  costs  and,  if  reasonably  defended,  the  coun- 
sel fees  in  the  eviction  suit  are  recoverable.  (*) 

The  plaintiff  in  this  action  must,  however,  have  been 
the  one  on  whom  the  defence  necessarily  fell.  If  the  liti- 
gation was  in  any  degree  voluntary  on  his  part  he  cannot 
recover  counsel  fees.  Thus,  where  a  suit  in  equity  to 
try  the  title  was  brought  against  a  remote  grantor,  and 
the  plaintiff,  not  being  a  party,  undertook  the  defence  at 
the  request  of  his  grantee,  he  cannot,  in  an  action  on  the 
covenant  of  warranty,  recover  from  his  own  grantor  the 
counsel  fees  in  that  suit.(°) 

(•)  Crounse  v.  Syracuse,  C.  &  N.  Y.  R.R.  Co.,  32  Hun  497. 

("•)  Ford  V.  Loomis,  62  la.  586. 

(«)  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Ware,  74  Tex.  47  ;  Davis  v.  Rosedale 
S.  Ry.  Co.,  75  Tex.  381. 

(^)  Williams  v.  Burrell,  I  C.  B.  402 ;  Rolph  v.  Crouch,  L.  R.  3  Ex.  44 ; 
Levitzkyw.  Canning,  33  Cal.  299;  Harding  v.  Larkin,  41  111.  413 ;  Robert- 
son V.  Lemon,  2  Bush  301  ;  Ryerson  v.  Chapman,  66  Me.  557;  AUis  v. 
Nininger,  25  Minn.  525  ;  Dalton  v.  Bowker,  8  Nev.  190 ;  Kennison  v.  Taylor, 
18  N.  H.  220;  Keeler  v.  Wood,  30  Vt.  242;  Smith  v.  Sprague,  40  Vt.  43. 
Contra,  Jeter  v.  Glenn,  9  Rich.  374  ;  Clark  v.  Mumford,  62  Tex.  531.  In 
Massachusetts  the  costs  but  not  the  counsel  fees  may  be  recovered :  LeflSng- 
well  V.  Elliott,  10  Pick.  204;  Reggio  v.  Braggiotti,  7  Cush.  166. 

(')  Harding  v.  Larkin,  41  111.  413. 
Vol.  I. — 23 


354  EXPENSES    OF    LITIGATION.  §  238. 

The  warrantor  is  entitled  to  notice  of  the  prior  suit, 
and  an  opportunity  to  defend  it ;  he  should  not  be  sub- 
jected against  his  will  to  the  expense  of  two  suits.  Con- 
sequently counsel  fees  and  expenses  of  the  prior  litigation 
cannot  be  recovered  unless  the  defendant  was  notified  of 
the  existence  of  that  suit  and  given  an  opportunity  to 
come  in  and  defend  it.('')  And  if  the  warrantor  after 
such  notice  came  in  to  defend,  the  plaintiff  cannot  re- 
cover expenses  of  the  former  suit  incurred  thereafter. C") 

In  an  action  for  the  breach  of  covenant  of  quiet  en- 
joyment, the  plaintiff  may  recover  the  expenses  of  a  suit 
for  ejectment  which  he  defended  against  the  owner  of  the 
paramount  titlCjC)  or  even  of  an  unfounded  suit  brought 
by  the  lessor  himself  to  recover  possession.  (*) 

Where  the  defendant  sold  the  plaintiff  goods  to  be  re- 
sold by  him,  and  warranted  them  of  a  certain  quality,  it 
was  held  that  the  plaintiff  might  recover  the  costs  of  an 
action  brought  against  him  by  a  purchaser  on  account  of 
the  inferior  quality  of  the  goods,  which  could  be  discov- 
ered only  by  use,(') 

Where  a  defendant,  pretending  to  be  the  agent  of  the 
plaintiff,  sold  land  of  the  plaintiff,  and  the  plaintiff  conse- 
quently had  to  defend  a  suit  for  specific  performance,  it 
was  held,  in  Illinois,  that  he  could  recover  damages  for 
the  expense  and  trouble  in  the  defence  of  that  suit.C) 
If  the  defendant   has  misrepresented  his  authority,  the 


(")  Yokum  V.  Thomas,  15  la.  67 ;  Point  St.  I.  W.  v.  Turner,  14  R.  I.  122. 

(f)  Kennison  v.  Taylor,  18  N.  H.  220.  But  notice  to  the  defendant  is  only 
to  cast  on  the  defendant  the  burden  of  proving  the  litigation  unreasonable: 
Lunt  V.  Wrenn,  113  III.  168 ;  Ryerson  v.  Chapman,  66  Me.  557. 

(»)  McAlpin  w.  Woodruff,  11  Oh.  St.  120. 

(•i)  Levitzky  v.  Canning,  33  Cal.  299. 

(°)  Hammond  v.  Bussey,  20  Q.  B.  Div.  79;  Lewis  v.  Peake,  7  Taunt.  153; 
Pennell  v.  Woodburn,  7  C.  &  P.  117. 

O  Philpot  V.  Taylor,  75  111.  309. 


§   238.       COVENANTS  AND  CONTRACTS  OF  WARRANTY.         355 

plaintiff  can  recover  against  him  the  costs  of  an  action 
against  the  supposed  principalC) 

Where  the  agent  of  an  undisclosed  principal  is  sued 
and  defends  the  action,  he  may  recover  his  litigation  ex- 
penses from  his  principal.C')  j 

Where  the  plaintiff  had  delivered  to  the  defendant  a 
quantity  of  stone  on  the  false  and  fraudulent  representa- 
tion of  the  latter  that  it  was  ordered  by  A.,  and  had  failed 
in  an  action  against  A.  for  the  price,  it  was  held  that  the 
plaintiff  was  entitled  to  recover  from  the  defendant,  not 
only  the  value  of  the  stone,  but  also  the  costs  incurred  in 
the  former  action.(°) 

The  same  rule  that  applies  in  actions  upon  covenants 
and  contracts  of  warranty  applies  in  actions  upon  cove- 
nants of  indemnity.  Thus  on  a  bond  of  indemnity 
against  the  consequences  of  an  act  done  by  the  plaintiff 
at  the  direction  of  the  defendant,  the  plaintiff  may  re- 
cover counsel  fees  and  other  expenses  of  defending  an 
action  brought  against  him  for  the  act.('^)  In  an  action 
on  an  indemnity  bond  against  liens,  to  defend  suits  and 
pay  the  judgments,  the  owner  recovers  expenses,  attor- 
ney's fees,  and  costs,  on  account  of  the  sale  and  in  the 
proceedings  to  redeem, (*)  In  an  action  on  an  indemnity 
bond  given  to  the  sheriff  on  his  delivery  of  certain  chat- 
tels which  various  persons  claimed,  he  can  recover  coun- 
sel fees  paid  in  defending  the  actions  by  other  claim- 
ants. (')  

(•)  Godwin  v.  Francis,  L.  R.  5  C.  P.  295 ;  ace.  Collen  v.  Wright,  7  E.  &  B. 
yo\,fier  Wighfman,  J. ;  Hughes  v.  Graeme,  33  L.  J.  Q.  B.  335. 

C")  Legare  v.  Frazer,  3  Strob.  377.         (°)  Randell  v.  Trimen,  18  C.  B.  786. 

C)  Hadsell  v.  Hancock,  3  Gray  526.  But  if  the  plaintiff  had  a  right  to 
demand  a  bond  of  indemnity  and  failed  to  do  so,  he  cannot  recover  the  costs 
and  expenses.    Russell  v.  Walker,  150  Mass.  531. 

(•)  Kansas  City  H.  Co.  v.  Sauer,  65  Mo.  279 ;  but  contra,  McDaniel  v. 
Crabtree,  21  Ark.  431. 

(0  Graves  v.  Moore,  58  Gal.  435. 


356  EXPENSES    OF   LITIGATION.  §  239, 

§  239.  Expenses  must  be  reasonable. — In  every  case, 
however,  the  expense  for  which  it  is  sought  to  charge 
the  defendant  must  appear  to  have  been  reasonably  in- 
curred.('')  The  question  whether  one  who  makes  a  false 
representation,  or  who  makes  and  breaks  a  warranty,  is 
liable  for  the  costs  of  a  litigation  which  another  en- 
gaged in,  relying  on  such  warranty  or  representation, 
will  usually  be  determined  by  the  fact  whether  the  liti- 
gation was  or  was  not  the  legitimate  consequence  of  the 
false  statement.  Notwithstanding  that  if  the  statement 
had  been  true,  the  latter  would  not  have  brought,  or 
would  have  successfully  defended  a  suit  which  he  in  fact, 
relying  on  the  truth  of  the  statement,  brought  or  de- 
fended unsuccessfully,  yet  if  his  doing  so  was  not  a 
necessary  or  judicious  proceeding,  he  cannot  impose  the 
expense  thus  incurred  on  the  maker  of  the  representa- 
tion or  warranty. 

Thus,  where  the  defendant  falsely  represented  that  he 
was  informed  by  the  keeper  of  a  public-house  that  it  pro- 
duced certain  average  daily  returns,  and  the  plaintiff, 
after  having  bought  the  good-will  of  the  house,  on  the 
faith  of  such  representation,  discovered  that  its  value 
was  much  less  than  was  thus  pretended,  and  without 
further  inquiry  sued  the  vendor  for  false  representations, 
and  failed  in  the  action,  because,  as  it  proved,  no  such 
representation  had  been  made  by  him,  it  was  held,  in  an 
action  by  the  purchaser  against  the  defendant  for  his 
false  representation  as  to  what  the  vendor  had  said,  that 
the  plaintiff  could  not  recover  the  costs  of  the  action 
against  the  innkeeper,  as  they  were  not  the  natural  or 
proximate  consequence  of  the  representation. C") 


(")  Pow  V.  Davis,  i  B.  &  S.  220. 

(")  Richardson  v.  Dunn,  8  C.  B.  (N.  S.)  655;  Merritt  v.  Nevin,  20  Up. 
Can.  Q.  B.  540. 


§  240.  PLAINTIFF   SUBJECTED   TO   SUIT,  ETC.  357 

§  240.  Plaintiff  subjected  to  suit  through  defendant's 
breach  of  contract.— Where  the  plaintiff  is  forced,  by 
reason  of  the  defendant's  breach  of  contract,  to  main- 
tain or  defend  a  suit,  he  may  recover,  in  an  action  on  the 
contract,  the  reasonable  expenses  of  the  former  suit,(*) 
and  this  is  so  held  in  Massachusetts,  though  generally,  in 
that  State,  the  counsel  fees  in  a  former  suit  are  not  re- 
coverable. In  New  Haven  &  N.  Co.  v.  Hayden,('')  the 
action  was  for  breach  of  contract  to  secure  the  plaintiffs 
a  right  of  way.  The  plaintiffs  subsequently  acquired 
the  right  of  way  by  the  customary  statutory  proceedings. 
The  plaintiff  v^as  allowed  to  recover  the  costs  and  ex- 
penses of  settling  the  damages  for  taking  the  land,  which 
included  not  only  the  ordinary  legal  costs  and  witness 
fees,  but  also  attorney  and  counsel  fees,  in  procuring  the 
settlement.  The  cases  of  Leffingwell  v.  Elliott  and  Reg- 
gio  V.  Braggiotti.C)  were  distinguished  on  the  ground 
that  in  those  cases  the  employment  of  counsel  was  not 
"  a  direct  and  necessary  consequence  of  the  breach  of  con- 
tract by  the  defendants,"  while  here  the  proceedings  were 
necessary  in  order  to  ascertain  the  damages.  In  an 
action  for  breach  of  contract  to  withdraw  another  suit, 
the  costs  of  the  defendant  in  that  suit  may  be  recov- 
ered. (*)  Pond  V.  Harris  (*)  was  for  breach  of  contract 
to  submit  the  plaintiff's  claims  to  arbitrators.  Although 
the  plaintiff  in  fact  had  no  claims,  he  was  allowed  to  re- 
cover substantial  damages,  which  included  "  the  expenses 
to  which  he  has  been  subjected  by  reason  of  his  neces- 
sary preparation  for  a  trial  before  the  arbitrators,  on  ac- 

(•)  Dubois  V.  Hermance,  56  N.  Y.  673. 

C)  117  Mass.  433. 

(')  Supra,  §  238. 

(")  Hagan  v.  Riley,  13  Gray  515  {semble). 

(f)  113  Mass.  114. 


358  EXPENSES    OF    LITIGATION.  §  24O. 

count  of  his  own  loss  of  time  and  trouble,  and  of  employ- 
ing counsel,  taking  depositions,"  etc.,  so  far  only,  how- 
ever, as  these  things  were  not  available  for  the  trial  of 
his  cause  before  the  ordinary  tribunals.  The  counsel 
fees  were  recoverable,  it  was  said,  for  they  were  suitable 
and  therefore  properly  incurred,  and  the  plaintiff  was 
deprived  of  the  benefit  of  them  by  the  wrongful  act  of 
the  defendant. (*)  In  an  action  on  a  contract  to  deliver 
up  possession,  the  costs  of  dispossessing  an  under-tenant 
of  the  defendant  are  recoverable. C')  In  Proprietors  of 
Locks  and  Canals  v.  Lowell  H.  R.R.  Co.,('')  the  defend- 
ant neglected  to  repair  a  bridge  which  he  was  bound  to 
repair.  The  plaintiffs,  however,  were  also  bound,  as 
against  the  city,  to  repair  the  bridge.  The  plaintiffs 
were  allowed  to  recover  against  the  defendant  the  amount 
of  damages  recovered  by  the  city  against  them,  but  not 
the  costs,  in  the  absence  of  evidence  that  it  was  defended 
at  the  request  of  the  defendants,  or  for  their  benefit, 
after  notice  and  refusal  on  their  part  to  come  in  and  de- 
fend. In  Iowa  the  costs  of  such  a  suit  are  recoverable 
where  the  party  liable  over  aided  in  the  defense  of  the 
suit,  but  not  the  costs  of  an  appeal  taken  without  his 
request.  C^) 

The  suit  in  which  the  expense  was  incurred  must  have 
been  the  proximate  result  of  the  defendant's  act.  Where 
the  mayor  and  council  of  Macon,  Ga.,  under  discretion- 
ary power  given  in  their  charter,  removed  the  marshal 
from  office,  which  removal  was  subsequently  found  to  be 
improper,  they  were  bound  to  pay  his  salary  for  the 
whole  year ;  but  not  the  money  expended  by  him  in  de- 

(")  Ace.  Call  V.  Hagar,  69  Me.  521. 

C)  Henderson  v.  Squire,  L.  R.  4  Q.  B.  170.     But  contra,  Morrison  v.  Dar- 
ling, 47  Vt.  67. 
(°)  109  Mass.  221. 
('')  Ottumwa  V.  Parks,  43  la.  119. 


§  240.  PLAINTIFF   SUBJECTED   TO   SUIT,  ETC.  359 

fending  the  charges  preferred.  His  damages  were  de- 
fined to  be  such  as  necessarily  resulted  from  his  amotion 
from  office.  (")  So  where  the  plaintiff  had  agreed  with 
the  owner  of  a  threshing-machine  to  repair  it  before  har- 
vest time,  and  employed  and  paid  the  defendant  to  make 
a  fire-box  needed  for  the  repairs,  which  the  defendant 
agreed  to  have  done  in  about  a  fortnight,  but  failed  to 
do,  and  the  plaintiff  had  to  procure  one  elsewhere 
(which  he  might  have  done  in  time  to  fulfil  his  contract 
with  the  owner,  but  did  not) ;  and  having  been  sued  by 
the  owner,  paid  /^20  to  settle  the  suit,  it  was  held  that 
he  could  recover  the  amount  he  had  paid  the  defendant 
for  the  fire-box  and  his  additional  expense  in  procuring 
another,  but  not  the  amount  paid  in  settlement  of  the 
suit.C) 

In  Baxendale  v.  London,  C.  &  D.  Ry.  Co.^)  the 
plaintiff  agreed  to  deliver  certain  pictures  to  one  H.  at 
Paris  ;  the  plaintiff  contracted  with  the  defendant  as  to 
part  of  the  journey.  They  were  lost  through  the  defend- 
ant's negligence.  It  was  held,  reversing  the  judgment 
of  the  Common  Pleas,  that  the  plaintiff  could  not  recover 
either  the  costs  incurred  by  him,  or  the  costs  taxed 
against  him  in  defending  an  action  brought  by  H.  against 
him,  Lord  Coleridge,  C.  J.,  saying:  "It  seems  to  me 
that  the  whole  of  the  costs  were  incurred  for  the  plain- 
tiff's own  benefit,  and  were  not  in  any  sense  the  natural 
and  proximate  result  of  the  defendant's  breach  of  duty"; 
Keating,  J.,  also  putting  the  decision  on  the  ground  that 
they  were  "  not  the  proximate  consequence  of  the  de- 
fendant's breach  of   duty."     All  the  judges  expressed 


(")  Shaw  V.  Macon,  19  Ga.  468. 

O)  Portman  v.  Middleton,  4  C.  B.  (N.  S.)  322.    Ace.  Henderson  v.  Sevey, 
2  Me.  139. 

(=)  L.  R.  10  Ex.  35. 


360  EXPENSES   OF   LITIGATION,  §  24 1. 

their  disapproval  of  Mors-le-Blanch  v.  Wilson, (*)  except 
Lusii,  J.,  who  distinguished  it  on  the  ground  that,  in 
that  case,  the  defense  was  reasonable,  while  in  the  case 
at  bar  it  was  not.  This  decision  was  followed  with  re- 
luctance in  Fisher  v.  Val  de  Travers  Asphalte  Co.C") 
The  plaintiff,  Fisher,  had  contracted  with  a  certain  T.  to 
construct  a  tramway  for  him  on  a  public  road.  The 
plaintiff  then  made  a  sub-contract  with  the  defendant, 
who  agreed  to  construct  it  and  keep  it  in  repair.  A 
party  who  had  been  injured  brought  an  action  against  T., 
which  the  plaintiff  compromised  for  ^'jo,  paying,  in  ad- 
dition, to  the  attorney  of  that  party,  ^^40  and  £\%  costs 
of  action.  The  jury  found  that  it  was  reasonable  to 
compromise.  The  plaintiff  in  this  action,  brought  for 
the  defendant's  failure  to  construct  properly  and  keep  in 
repair,  was  allowed  to  recover  the  £']o,  for  the  payment 
was  a  natural  consequence  of  the  failure  to  perform,  but 
not  the  other  items,  Brett,  J.,  however,  sayi-ng :  "  But 
for  the  case  referred  to  (Baxendale  v.  L.,  C.  &  D.  Ry. 
Co.),  I  must  confess  I  should  have  been  unable  to  see 
any  distinction  between  the  damages  and  the  reasonable 
costs  of  ascertaining  their  proper  amount." 

§  241.  Plaintiff  subjected  to  suit  through  defendant's  tort. — 
And  in  the  same  way  where  the  plaintiff  is  liable  to  the 
injured  party  for  a  tort  actually  committed  by  the  de- 
fendant, he  may  recover  from  the  defendant  the  expense 
of  a  suit  brought  against  him  by  the  injured  partJ^ 
Westfield  v.  Mayo  (°)  was  an  action  brought  against  the 
plaintiff  at  bar  (a  town)  for  an  injury,  by  an  obstruction 
to  a  highway  created  by  the  negligence  of  the  defendant. 


(»)  L.  R.  8  C.  P.  227,  where  upon  similar  facts  counsel  fees  had  been 
allowed.. 

C)iC.  P.  D.  511. 
(«)  122  Mass.  100. 


§  241.       SUBJECTED  THROUGH  DEFENDANT'S  TORT.  361 

It  was  held  that  if  the  town  had  properly  notified  the 
defendant  of  the  action,  and  had  requested  him  to  defend 
it,  it  could  recover  reasonable  expenses  incurred  in  de- 
fending, including  counsel  fees.  Lord,  J.,  said  :  "As  a 
general  rule,  when  a  party  is  called  upon  to  defend  a  suit 
founded  upon  a  wrong,  for  which  he  is  held  responsible 
in  law,  without  misfeasance  on  his  part,  but  because  of 
the  wrongful  act  of  another,  against  whom  he  has  a  rem- 
edy over,  counsel  fees  are  the  natural  and  reasonably 
necessary  consequence  of  the  wrongful  act  of  the  other, 
if  he  has  notified  the  other  to  appear  and  defend  the 
suit."  The  learned  judge  then  proceeded  to  distinguish 
Reggio  V.  Braggiotti,^)  Baxendale  v.  London,  C.  &  D. 
Ry.  Co.,(*)  and  Fisher  v.  Val  de  Travers  Asphalte 
Co.,(°)  as  follows  :  "  When,  however,  the  claim  against 
him  is  upon  his  own  contract,  or  for  his  own  misfeasance, 
though  he  may  have  a  remedy  against  another,  and  the 
damages  recoverable  may  be  the  same  as  the  amount  of 
the  judgment  recovered  against  himself,  counsel  fees 
paid  in  defense  of  the  suit  against  himself  are  not  recov- 
erable." As  to  the  cases  above  cited  he  said  :  "  In  each 
of  these  cases  it  will  be  observed  that  the  counsel  fees 
were  paid  in  defending  a  suit  upon  the  party's  own  con- 
tract. In  the  present  case  the  plaintiff  was  not  com- 
pelled to  incur  the  counsel  fees  by  reason  of  any  mis- 
feasance or  of  any  contract  of  its  own,  but  was  made 
immediately  liable  by  reason  of  the  wrong-doing  of  the 
defendant."  He  stated  the  principle  to  be  (p.  109) :  "  If 
a  party  is  obliged  to  defend  against  the  act  of  another, 
against  whom  he  has  a  remedy  over,  and  defends  solely 
and  exclusively  the  act  of  such  other  party,  and  is  com- 
pelled to  defend  no  misfeasance  of  his  own,  he  may  no- 
tify such  party  of  the  pendency  of  the  suit,  and  may  call 

C)  7  Cush.  166.  C)  L-  R-  10  Ex.  3S.  C)  I  C.  P.  D.  511. 


362  EXPENSES    OF    LITIGATION.  §  24 1. 

upon  him  to  defend  it ;  if  he  fails  to  defend,  then,  if  lia- 
ble over,  he  is  liable  not  only  for  the  amount  of  damages 
recovered,  but  for  all  reasonable  and  necessary  expenses 
incurred  in  such  defense,"  (")  It  is  to  be  noticed  that, 
in  Reggio  v.  Braggiotti,  the  amount  of  the  taxable  costs 
were  allowed,  but  not  counsel  fees.  In  cases  where  it 
is  criticised  it  seems  to .  be  looked  upon  merely  as  a  de- 
cision to  the  effect  that  counsel  fees  cannot  be  allowed. 

The  party  in  fault  must,  however,  have  had  notice  of 
the  former  suit.(*)  The  defendant,  a  city  clerk,  failed  to 
note  in  his  index  the  record  of  a  chattel  mortgage ;  the 
plaintiff  having  examined  the  index  and  supposing  the 
property  to  be  unincumbered,  loaned  money  upon  it.  He 
afterwards  learned  of  the  prior  mortgage,  and  still  later 
the  prior  mortgagee  brought  suit  to  recover  the  chattels. 
The  plaintiff  now  sought  to  recover  his  expenses  in  de- 
fending that  suit ;  but  it  was  held  that  the  defendant, 
not  having  been  notified  of  the  suit,  could  not  now  be 
charged.  C") 

For  refusal  to  place  a  judgment  on  the  tax  list,  a  plain- 
tiff can  recover  expenses  incurred  in  the  employment  of 
counsel.(*)  So  where  the  defendant  wrongfully  sold  a 
promissory  note  made  by  the  plaintiff  and  given  to  the 
defendant  to  use  in  a  certain  way,  the  plaintiff's  expense 
of  defending  an  action  on  the  note  in  the  bona  fide  belief 
that  the  holder  had  notice  of  the  fraud,  and  the  expense 
of  effecting  a  settlement,  may  be  recovered  from  the  de- 
fendant.(^)  So  where  a  sheriff  has  been  sued  for  the 
escape  of  a  prisoner  he  may  recover  his  costs  from  the 

(°)  Ace.  Ottumwa  v.  Parks,  43  la.  119  ;  Chesapeake  v.  O.  C.  Co.  v.  Alle- 
gany County,  57  Md.  201. 

C)  Lowell  V.  Boston  &  L.  R.R.  Co.,  23  Pick.  24. 

(")  Chase  v.  Bennett,  59  N.  H.  394. 

('')  Newark  S.  L  v.  Panhorst,  7  Biss.  99. 

(f)  Osborne  v.  Ehrhard,  37  Kas.  413  ;  Hynes  v.  Patterson,  95  N.  Y.  I. 


§  241.        SUBJECTED  THROUGH  DEFENDANT'S  TORT.  363 

debtor ;  though  in  Massachusetts,  according  to  the  doc- 
trine held  in  that  State,  he  was  not  allowed  his  counsel 
fees.('') 

In  an  action  for  malicious  prosecution  or  other  mali- 
cious suit  the  plaintiff  may  recover  the  costs  and  counsel 
fees  in  defending  the  suit  against  him ;  (")  and  in  an  ac- 
tion for  false  imprisonment  the  expenses  incurred  in  pro- 
curing a  discharge  from  imprisonment  are  recoverable.  (°) 
But  as  in  all  cases,  the  plaintiff's  conduct  must  appear 
to  have  been  reasonable  throughout.  A  vessel  bound  to 
Valparaiso,  with  liberty  to  touch  at  the  Falkland  Islands, 
had  on  board  goods  consigned  to  those  islands  and  sev- 
eral hundred  barrels  of  gunpowder  for  Valparaiso.  At 
the  islands,  it  having  been  necessary  for' her  to  unload  the 
gunpowder  before  entering  the  harbor,  the  defendants 
furnished  a  vessel  on  which  the  powder  was  stowed,  but 
afterward  removed  the  powder  to  another  vessel  unfit  for 
the  purpose,  which  went  down  with  it.  The  captain, 
after  his  arrival  at  Valparaiso,  having  been  sued  by  the 
consignees,  defended  the  action  unsuccessfully.  It  was 
held  that  the  defendants,  although  liable-  for  the  value  of 
the  gunpowder,  were  not  liable  for  the  costs  of  defending 
the  action  at  Valparaiso,  it  not  appearing  that  the  conduct 
of  the  captain  was  prudent  in  so  doing.  ('^) 

(")  Griffin  v.  Brown,  2  Pick.  304. 

C")  Lawrence  v.  Hagerman,  56  111.  68  ;  Krug  v.  Ward,  77  Ilh  603 ;  Ziegler 
V.  Powell,  54  Ind.  173;  McCardle  2'.  McGinley,  86  Ind.  538  ;  Lyttonw.  Baird, 
95  Ind.  349 ;  Gregory  v.  Chambers,  78  Mo.  294 ;  Magmer  v.  Renk,  65  Wis. 
364.  But  in  Georgia,  in  an  action  for  malicious  distress  proceedings,  the 
tenant  cannot  recover  expenses  incurred  in  procuring  his  stock  to  be  declared 
exempt  under  Georgia  laws.     Sturgis  v.  Frost,  56  Ga.  188. 

(°)  Pritchett  v.  Boevey,  I  Cr.  &  M.  775  ;  Foxall  v.  Barnett,  2  E.  &  B.  928 ; 
Blythe  v.  Tompkins,  2  Abb.  Pr.  468  ;  Parsons  v.  Harper,  16  Gratt.  64 ;  Bone- 
steel  V.  Bonesteel,  30  Wis.  511.     '&\i\.  contra,  Bradlaugh  v.  Edwards,  11  C.  B. 

(N.S.)377. 

C)  Ronneberg  v.  Falkland  I.  Co.,  17  C.  B.  (N.  S.)  i.  Erie,  C.  J.,  also  ex- 
pressed the  opinion  that  these  damages  were  too  remote. 


CHAPTER  VIII. 


THE   MEASURE   AND    ELEMENTS   OF   VALUE. 


Value  in  general. 

Fundamental  rule  of  value. 

Market  value. 

Market  value,  how  determined. 

Value  in  the  nearest  market. 

Cost  of  transportation — Allow- 
ance of  profit. 
248.  Property  in  process  of  manu- 
facture. 

Market    value    artificially  en- 
hanced. 

No  market  value. 


I  242, 

243 
244, 
245, 
246, 
247. 


249. 


350. 
251 


Peculiar  value — Pretium  affec- 
tionis. 


252.  Value  for  a  particular  use. 


§  253.  Possible  future  use. 

254.  Value  of  good-will. 

255.  Time  and  services. 

256.  Choses  in  action  —  Bills  and 

notes. 

257.  Bonds  and  shares  of  stock. 

258.  Other  securities  for  the  pay- 

ment of  money. 

259.  Policies  of  insurance. 

260.  Other  sealed  instruments. 
361.  Documents. 

262.  Title  deeds. 

263.  Life. 

264.  Money. 

265.  Illegal  and  noxious  property. 


§  242.  Value  in  general. — In  almost  all  cases  in  which 
damages  are  recoverable,  the  measure  of  compensation 
involves  an  inquiry  into  the  question  of  value.  The 
plaintiff  is  to  be  compensated  for  some  article  of  property- 
lost,  appropriated,  destroyed,  or  injured,  for  the  breach  of 
some  contract  to  be  measured  in  terms  of  the  value  of 
property,  or  for  some  tort  affecting  the  value  of  prop- 
erty. When  his  damages  involve  the  consideration  of 
time,  labor,  or  services,  it  is  the  pecuniary  value  of  these 
which  must  be  analyzed  ;  and  even  when  the  recovery  is 
based  on  personal  injury,  a  part  of  the  damages  at  least 
must  be  made  up  of  the  pecuniary  elements,  such  as  the 
value  of  his  time  and  labor  lost,  the  value  of  the  time 
and  labor  expended  in  surgical  aid,  the  value  of  the  med- 
icine administered,  etc.,  etc.  It  is  in  fact  only  when 
(364) 


§  243-  FUNDAMENTAL   RULE    OF   VALUE.  365 

we  attempt  to  estimate  the  damages  for  pain  and  suffer- 
ing or  to  assess  what  are  called  exemplary  damages  that 
we  pass  beyond  the  region  of  value  in  its  true  pecuniary 
sense.  It  will  accordingly  be  found  that  one  of  the 
questions  with  which  the  courts  are  most  constantly  occu- 
pied in  cases  involving  the  measure  of  damages  is  how  to 
arrive  at  and  measure  the  value  involved.  For  example, 
in  the  ordinary  case  of  the  value  of  property,  is  it  the 
market  value  or  the  cost  of  production  ?  Is  it  the  value 
at  the  nearest  market,  or  may  other  and  distant  markets 
be  also  consulted  ?  Is  it  the  peculiar  value  to  the  owner, 
or  the  value  for  some  particular  purpose  ?  It  is  proposed 
to  consider  these  questions  here,  and  so  far  as  possible 
to  state  the  rules  by  which  the  courts  determine  the 
elements  and  measure  of  value  in  particular  cases. 

§  243.  Fundamental  rule  of  value.— One  fundamental 
principle  may  be  stated  at  the  outset,  and  we  shall  find 
frequent  examples  of  it  as  we  proceed  with  our  examin- 
ation ;  and  that  is,  that  wherever  the  measure  of  damages 
involves  the  question  of  value,  however  much  the  market 
may  be  resorted  to  to  determine  what  the  value  is,  this 
resort  is  had,  not  as  a  conclusive  test,  but  to  aid  in  getting 
at  that  real  value  to  which  the  plaintiff  is  entitled.  What 
he  is  entitled  to  recover  is  the  real  value  of  the  article  of 
property,  the  time,  the  labor,  or  the  services,  as  they 
would  be  if  unaffected  by  the  defendant's  tort  or  if  the 
defendant's  contract  had  been  performed.  If  these  things 
are  bought  and  sold  in  the  market,  the  market  price 
shows  what  it  would  cost  the  plaintiff  to  be  put  in  as 
good  a  position  as  if  the  tort  has  not  been  committed  or 
as  if  the  contract  had  been  performed.  To  take  the  most 
familiar  of  all  illustrations,  in  the  case  of  failure  to 
deliver  an  ordinary  article  of  commerce  sold,  the  vendee 
can  replace  himself  by  buying  the  article  in  the  market. 


366  THE    MEASURE   AND    ELEMENTS    OF   VALUE.       §  244. 

Hence  his  measure  of  damages  is  invariably  said  to  be 
the  market  value.  But  as  the  cases  now  to  be  examined 
will  show,  the  rule,  more  exactly  stated,  would  be  that 
his  measure  of  damages  is  the  value  of  the  article.  The 
market  price  is  merely  one  of  the  commonest  tests  by 
which  to  ascertain  this  value.  It  is  by  no  means  the 
only  one. 

§  244.  Market  value. — As  just  stated,  where  one  is  en- 
titled, in  any  form  of  action,  to  compensation  based  on 
the  value  of  an  article  of  property,  the  measure  of  recov- 
ery, where  such  property  can  be  procured  in  the  market, 
is  the  value  of  it  in  the  market  and  not  the  cost ;  (*)  for 
the  owner  of  property  is  fully  compensated  for  it  by  a 
sum  of  money  which  will  enable  him  to  replace  it.  The 
market  value  must  be  ascertained  by  a  money  standard 
based  on  evidence.  It  cannot  be  assessed  on  conjec- 
ture.C")  It  is  the  actual  cash  market  value,  not  what  the 
property  would  sell  for  under  special  or  extraordinary  cir- 
cumstances. (°)  Proof  of  a  single  sale  is  not  enough  to 
establish  a  market  value.('^)  The  "  market  value  "  of  an 
article  requires  the  investigation  of  the  actual  condition 
of  the  market,  and  does  not  warrant  the  consideration  of 
the  conjectural  consequences  of  a  state  of  things  which 
did  not  exist,  e.  g.,  a  probable  fall  in  the  price  of  the  arti- 
cle in  question,  which  would  have  resulted  had  the  de- 
fendant delivered  the  quantity  specified  in  the  contract  to 
the  plaintiff,  and  had  the  plaintiff  offered  it  for  sale  in  the 
market.     The  principle  on  which  the  rule  rests  is  the  in- 


(")  New  Orleans,  J.  &  G.  N.  R.R.  Co.  v.  Moore,  40  Miss.  39 ;  Gunn  v. 
Burghart,  47  N.  Y.  Super.  Ct.  370. 

(>>)  Fraloffi/.  New  YorkC.  &  H.  R.  R.R.  Co.,  10  Blatch.  l6. 

(")  Brown  v.  Calumet  R.  Ry.  Co.,  125  111.  600  ;  McCuaig  v.  Quaker  City 
Ins.  Co.,  18  Up.  Can.  Q.  B.  130. 

(■*)  Graham  v.  Maitland,  i  Sweeny  149. 


§   245-      MARKET  VALUE,  HOW  DETERMINED.        367 

demnification  of  the  injured  party  for  the  injury  which  he 
has  sustained.  A  complete  indemnity  requires  that  the 
vendee  should  receive  the  sum  which,  with  the  price  he 
had  agreed  to  pay,  would  enable  him  to  buy  the  article 
which  the  vendor  had  failed  to  deliver.  The  value  in  the 
market  on  the  day  forms  the  readiest  and  most  direct 
method  of  ascertaining  the  measure  of  this  indemnity  in 
both  cases  ;  and  accordingly,  where  a  market  value  for  the 
article  exists,  the  law  has  adopted  that  standard. 

§  245.  Market  value,  how  determined. — In  a  case  on  the 
Pennsylvania  Circuit,'  where  suit  was  brought  on  a  con- 
tract to  deliver  coffee,  not  paid  for,  the  rule  was  declared 
to  be  the  market  price  on  the  day  fixed  for  performance  ; 
but  it  also  became  necessary  carefully  to  determine  what 
was  the  market  price.  A  motion  was  made  to  set  aside 
the  verdict. on  the  ground  of  excessive  damages,  which 
was  granted,  and  in  delivering  his  opinion,  Hopkinson, 
J.,  said : 

"  It  is  the  price,  the  market  price  of  the  article  that  is  to  fur- 
nish the  measure  of  damages.  Now,  what  is  the  price  of  a  thing, 
particularly  the  market  price  ?  We  consider  it  to  be  the  value, 
the  rate  at  which  the  thing  is  sold.  To  make  a  market  there 
must  be  buying  and  selling,  purchase  and  sale.  If  the  owner  of 
an  article  holds  it  at  a  price  which  nobody  will  give  for  it,  can 
that  be  said  to  be  its  market  value  ?  Men  sometimes  put  fantas- 
tical prices  upon  their  property.  For  reasons  personal  and  pe- 
culiar, they  may  rate  it  much  above  what  any  one  would  give  for 
it.  Is  that  its  value  ?  Further,  the  holders  of  an  article,  as  flour, 
for  instance,  under  a  false  rumor,  which,  if  true,  would  augment 
its  value,  may  suspend  their  sales,  or  put  a  price  upon  it,  not 
according  to  its  value  in  the  actual  state  of  the  market  or  the 
actual  circumstances  which  affect  the  market,  but  according  to 
what,  in  their  opinion,  will  be  its  market  price  or  value  pro- 
vided the  rumor  shall  prove  tc  be  true.  In  such  a  case  it  is  clear 
that   the   asking  price  is   not  the  worth  of  the  thing  on  the 

'  Blydenburgh  v.  Welsh,  i  Baldwin  331,  340. 


368         THE    MEASURE   AND    ELEMENTS    OF    VALUE.       §  246. 

given  day,  but  what  it  is  supposed  it  will  be  worth  at  a  future 
day,  if  the  contingency  shall  happen  which  is  to  give  it  this  ad- 
ditional value.  To  take  such  a  price  as  a  rule  of  damages  is  to 
make  a  defendant  pay  what  never  in  truth  was  the  value  of  the 
article,  and  to  give  the  plaintiff  a  profit  by  a  breach  of  the  con- 
tract, which  he  never  could  have  made  by  its  performance. 

"  The  law  does  not  intend  this  ;  it  will  give  a  full  and  liberal 
indemnity  for  the  loss  sustained  by  the  injured  party,  and  means 
to  impose  no  higher  penalty  than  this  on  the  defaulter." 

§  246.  Value  in  the  nearest  market. — If  there  is  no 
market  for  the  article  at  the  place  where  the  plaintiff 
would  be  entitled  to  compensation,  the  value  at  the 
nearest  market  governs.  In  addition  to  this,  the  cost  of 
transportation  of  the  property  to  the  place  of  compensa- 
tion is  usually  to  be  added,  (")  and  in  some  cases  an  allow- 
ance for  profit.  C") 

Grand  Tower  Co.  v.  Phillips  (°)  was  an  action  for 
breach  of  contract  to  deliver  coal  at  Grand  Tower.  The 
defendant  company  had  the  monopoly  of  the  coal  market 
at  Grand  Tower.  It  was  held  error  to  charge  the  jury 
that  the  measure  of  damages  was  the  cash  value  of  the 
kind  of  coal  mentioned  at  Cairo  or  points  below  on  the 
Mississippi  River,  after  deducting  the  contract  price  of 
the  coal  and  the  cost  and  expenses  of  transporting  it 
thither.  Bradley,  J.,  said,  that  although  the  defendant 
probably  would  have  got  those  prices,  yet  the  rule  was 
the  difference  between  the  contract  price  and  the  price  at 
the  nearest  available  market  (to  Grand  Tower)  where  it 


(•)  O'Hanlan  v.  Great  W.  Ry.  Co.,  6  B.  &  S.  484  ;  34  L.  J.  (N.  S.)  Q.  B. 
154;  Bullard  v.  Stone,  67  Cal.  477  ;  Sellar  v.  Clelland,  2  Col.  532  ;  Furlong 
V.  PoUeys,  30  Me.  491 ;  Berry  v.  Dwinel,  44  Me.  255  ;  Rice  v.  Manley,  66  N. 
Y.  82  ;  Wemple  v.  Stewart,  22  Barb.  154.  In  the  latter  case  it  appears  that 
the  value  in  near  and  distant  markets  was  shown.  The  cost  at  the  nearest 
available  market,  it  seems,  should  be  the  only  criterion. 

C)  O'Hanlan  v.  Great  W.  Ry.  Co.,  6  B.  &  S.  484  ;  34  L.  J.  (N.  S.)  Q.  B.  1 54. 

(=)  23  Wall.  471. 


§   246.      VALUE  IN  THE  NEAREST  MARKET.        369 

could  have  been  obtained,  with  the  addition  of  the  in- 
creased expense  of  transportation  and  hauling. 

It  may,  however,  be  that  the  cost  of  transportation  is 
to  be  subtracted  from  the  value  at  the  nearest  market  in- 
stead of  added  to  it.  That  depends  on  whether  the 
nearest  market  is  resorted  to  by  persons  from  the  place 
where  the  plaintiff  is  entitled  to  the  property  for  purchase 
or  for  sale ;  that  is,  whether  the  value  in  that  market  is 
less  or  greater  than  the  value  where  the  property  should 
be.  This  is  a  question  of  fact  which  will  never  prove  to 
be  difficult  of  proof  ;  the  facts  of  the  case  will  determine 
it.  So  where  goods  are  purchased  with  a  view  to  send- 
ing them  for  sale  to  a  neighboring  market,  and  there  is 
no  market  price  at  the  place  of  delivery,  the  market 
price  at  the  place  to  which  they  were  to  be  sent„ 
less  the  cost  of  transportation,  is  the  measure  of  their 
value  at  the  place  of  delivery ;(")  and  knowledge  on 
the  part  of  the  vendor  of  the  destination  is  not  neces- 
sary. C")  If,  however,  it  is  not  proved  that  the  market  is 
in  fact  the  nearest,  such  knowledge  would  seem  to  be 
necessary.  C)  So  in  an  action  on  the  defendant's  promise 
to  pay  for  logs  which  he  had  converted  on  their  way 
down  the  river  to  the  plaintiff's  mill,  evidence  is  admis- 
sible of  their  market  price  at  the  mill,  and  of  the  cost 
of  their  transportation  from  the  place  of  conversion 
thither.(^)  In  Harris  v.  Panama  R.R.  Co.('')  the  ques- 
tion was  much  considered.  The  plaintiff's  race-horse  was 
injured  while  being  transported  across  the  isthmus  of 


(»)  Johnson  v.  Allen,  78  Ala.  387. 

C)  McDonald  v.  Unaka  T.  Co.,  88  Tenn.  38  ;  Hendrie  v.  Neelon,  12  Ont. 
App.  41. 
(°)-Cockburn  w.  Ashland  Lumber  Co.,  54  Wis.  619. 
(^)  Saunders  i).  Clark,  io6  Mass.  331 
e)  S8N.Y.  660. 

Vol.  L — 24 


370         THE    MEASURE    AND    ELEMENTS    OF   VALUE.       §  246. 

Panama  The  evidence  showed  that  the  horse  could 
have  been  sold  at  the  isthmus  for  some  price,  but  properly- 
speaking  there  was  no  market  price.  The  place  of  des- 
tination was  San  Francisco.  Evidence  of  the  value  of 
the  horse  at  San  Francisco  was  admitted,  "  to  enable  the 
jury  to  estimate  the  value  at  the  time  and  place  of  injury." 
The  court  said  that  the  market  value  at  the  time  and 
place  is  the  proper  evidence  of  value,  but  that  it  is  reli- 
able only  where  "  it  appears  that  similar  articles  have 
been  bought  and  sold,  in  the  way  of  trade,  in  sufficient 
quantity  or  often  enough  to  show  a  market  value."  It 
was  further  said  that  in  the  absence  of  such  proof,  the 
market  value  in  some  other  place  is  evidence,  and  the 
best  evidence  is  the  value  at  the  place  of  destination,  but 
that  a  great  deduction  should  be  made  for  the  risk  and 
expense  of  further  transportation.  It  is  said  by  the 
Supreme  Court  of  Georgia  to  be  the  legal  presumption, 
in  the  absence  of  positive  evidence,  that  a  commodity  is 
worth  as  much  at  the  place  of  destination  as  at  that  of 
shipment ;  and  in  an  action  against  a  carrier  for  the  loss 
of  cotton,  where  the  plaintiff,  instead  of  proving  the 
former  of  these  values,  proved  the  latter  only,  it  was 
held  by  that  court  that  the  defendant,  not  having  con- 
tradicted this  evidence,  could  not  justly  complain. (*) 

Where  the  value  of  a  stranded  vessel  was  to  be  deter- 
mined, the  Supreme  Court  of  Massachusetts  held  that  her 
value  at  a  neighboring  port  should  be  taken  as  a  basis, 
and  that  reasonable  allowance  should  be  made  for  the 
probable  cost  ofg-etting  her  off,  repairing  her,  and  getting 
her  to  market,  and  for  the  risks  and  chanbes  of  getting 
her  afloat  arid  to  market ;  and  also  a  reasonable  allowance 


(•)  Rome  R.R.  Co.  v.  Sloan,  39  Ga.  636  ;  ace.  South  &  N.  A.  R.R.  Co.  v. 
Wood,  72  Ala.  451  ;  Echols  f.  Louisville  &  N.  R.R.  Co.,  7  So.  Rep.  655 
(Ala.)  ;  Richmond  v.  Bronson,  5  Denio  55. 


§§247-249-    MARKET  VALUE  ARTIFICIALLY  ENHANCED.    37 1 

for  her  diminution  in  value  on  account  of  her  having  been 
ashore.('') 

§  247.  Cost  of  transportation — Allowance  for  profit. — It 
will  be  seen  from  the  foregoing  cases  that  there  is  no  ab- 
solute rule  fixing  the  value  in  the  nearest  market  as  the 
measure  of  recovery  when  there  is  no  market  value  at  the 
place  of  compensation.  In  some  cases  the  cost  of  transpor- 
tation (including,  of  course,  all  expenses  such  as  freight  and 
insurance)  is  added,  while  in  others  an  allowance  for  a 
profit  which  it  is  presumed  would  have  been  made  had 
the  breach  of  contract  or  tort  never  occurred  is  given,  the  ob- 
ject of  these  allowances  being  to  reach  an  estimate  of  what 
the  real  market  value  at  the  place  of  compensation  would 
have  been,  had  there  been  one.  In  other  cases  again, 
where  it  appears  that  the  nearest  market  value  is  swollen 
by  some  item  of  cost  which  could  not  in  the  nature  of 
things  enter  into  the  market  value  at  the  place  of  com- 
pensation had  there  been  one,  this  is  subtracted.  In  other 
words,  the  object  of  the  court  being  to  get  at  what  ought 
to  be  considered  the  real  market  value  at  the  place  of  com- 
pensation, it  takes  in  the  absence  of  any  such  market  the 
nearest  market  value  as  a  part  of  the  proof  going  to  es- 
tablish this. 

§  248.  Property  in  process  of  manufacture. — Very  sim- 
ilar to  the  foregoing  are  a  class  of  cases  where  the  value  ol 
goods  in  process  of  manufacture  is  to  be  obtained  ;  here  the 
measure  is  the  value  of  the  completed  goods,  less  the  cost 
of  completing  the  manufacture.  (*•) 

§  249.  Market  value  artificially  enhanced. — A  question  in 
regard  to  the  "  market  value,"  not  yet,  so  far  as  we  are 
aware,  directly  decided,  but  which  the  operations  of  stock 
speculators  are  likely  sooner  or  later  to  bring  before  the 

(")  Glaspy  ni.  Cabot,  135  Mass.  .435. 

(^)  Emmons  v.  Westfield  Bank,  97  Mass.  230. 


372  THE   MEASURE    AND    ELEMENTS   OF   VALUE.       §  249. 

courts,  is  this,  namely :  Whether  the  rule  which  makes  the 
"  market  value  "  the  measure  of  damages  in  ordinary  cases 
of  breach  of  contract  for  the  delivery  of  goods,  is  applica- 
ble to  certain  cases  of  contract  for  the  delivery  of 
stocks,  where  their  value  in  the  market  is  neither  de- 
termined by  their  intrinsic  value  nor  regulated  by  the 
natural  laws  of  demand  and  supply,  but  is  artificially 
inflated  by  the  seller  for  the  purpose  of  increasing  his 
profit.  It  is  not  unfrequently  the  case  that  certain  capital- 
ists combine  secretly  to  buy  up  the  stock  of  a  particular 
railroad  or  other  corporation,  and  in  this  way  get  the 
whole,  or  nearly  the  whole,  of  it  into  their  possession  or 
control,  so  that  substantially  it  can  only  be  purchased 
from  them,  or  by  their  permission.  Having  done  this, 
they  induce  other  parties  to  agree  to  sell  them  stipulated 
amounts  of  the  stock  "  short,"  as  it  is  called  in  the  techni- 
cal jargon  of  stock  operators — that  is,  to  sell  them  at  an 
agreed  price,  deliverable  on  or  before  a  certain  day,  stock 
not  owned  or  possessed  by  the  seller  at  the  time  of  mak- 
ing the  agreement  of  sale.  This  agreement  is  made  by 
the  seller  in  the  hope  or  expectation  of  purchasing  the 
stock  before  the  stipulated  day  at  a  lower  price  than  that 
at  which  he  has  contracted  to  sell.  Before  that  day  comes, 
however,  as  the  stock  is  wholly  in  the  buyer's  control,  or 
so  far  in  his  control  that  it  is  impossible  to  procure  in  the 
general  market  an  amount  of  it  sufficient  to  satisfy  the 
contract,  the  seller  finds  himself  obliged  to  procure  it  from 
the  buyer  himself,  or  on  the  buyer's  own  terms,  and  at  a 
price  immensely  beyond  its  actual  value,  and  sometimes 
exceeding  by  one  or  more  hundred  per  cent,  what  its 
market  value  was  immediately  before  the  transaction,  and, 
of  course,  exceeding  in  a  similar  ratio  the  price  at  which 
he  had  agreed  to  deliver  it.  Perhaps  the  courts  would  be 
disposed  to  disregard,  in  such  a  case,  the  quotations  in  the 


§  250.  NO    MARKET   VALUE,  373 

market.  In  the  cases  to  which  we  refer,  the  buyer  cannot 
fairly  be  said  to  have  lost  anything  more  than  the  actual 
value  of  the  stock  by  its  non-delivery,  and  the  so-called 
"  market  value,"  which  is  the  result  of  his  own  secret  ma- 
chinations, furnishes  no  measure  of  actual  damage.  "  A 
mere  speculative  price,"  observed  Nelson,  J.,  "got  up 
through  the  contrivance  of  a  few  interested  dealers,  with  a 
view  to  control  the  market  for  their  own  private  ends,  is 
not  the  true  test."  (")  In  Kountz  v.  Kirkpatrick  Q)  the 
Supreme  Court  of  Pennsylvania  said :  "  The  market  price 
of  an  article  is  only  a  means  of  arriving  at  compensation ; 
it  is  not  itself  the  value  of  the  article,  but  is  the  evidence 
of  value.  The  law  adopts  it  as  a  natural  inference  of  fact, 
but  not  as  a  conclusive  legal  presumption.  It  stands  as  a 
criterion  of  value  because  it  is  a  common  test  of  the  ability 

to  purchase  the  thing What  is  called  the  market 

price,  or  the  quotations  of  the  articles  for  a  given  day,  is  not 
always  the  only  evidence  of  actual  value,  but  the  true 
value  may  be  drawn  from  other  sources,  when  it  is 
shown  that  the  price  for  the  particular  day  had  been  un- 
naturally inflated." 

§  250.  No  market  value. — If  an  article  has  no  market 
value,  the  real  value  of  it  must  be  determined  in  some  other 
way  from  such  elements  of  value  as  are  attainable.  (")  "  If 
at  any  particular  time  there  be  no  market  demand  for  an 
article,  it  is  not  on  that  account  of  no  value.  What  a 
thing  will  bring  in  the  market  at  a  given  time  is  perhaps 
the  measure  of  its  value  then,  but  not  the  only  one."^) 
"The  market  price,  in  the  ordinary  sense,  is  generally,  but 
not  always,  the  test  of  value.  For  such  a  tort  as  a  conver- 


(»)  Smith  V.  Griffith,  3  Hill  333. 

(^)  72  Pa.  376,  387,  i<p,per  Agnew,  J. 

(")  Murray  v.  Stanton,  99  Mass.  345. 

C)  Strong,  J.,  in  Trout  v.  Kennedy,  47  Pa.  387,  393. 


374         THE    MEASURE    AND    ELEMENTS    OF   VALUE.       §  25 1. 

sion  of  goods  a  plaintiff  may  be  entitled  to  large  damages, 
though  unable  to  sell  the  goods  at  any  price.  He  may 
be  greatly  injured  by  the  loss  of  goods  which  he  cannot 
sell,  but  which  would  be  productive  of  great  benefit,  and 
therefore  would  be  of  great  value,  without  a  sale."('')  In 
Brown  z',  St.  Paul  M,  &  M.  Ry.  Cb.,(*')  it  was  held  that 
the  value  of  an  annual  pass  over  a  railroad  was  so  difficult 
of  measurement  that  it  could  not  be  allowed  as  damages. 
It  would  seem,  however,  that  mere  difficulty  in  comput- 
ing value  should  not  prevent  the  recovery  of  it.  In 
Pennsylvania  the  value  of  a  pass  for  life  over  a  railroad 
for  an  entire  family  has  been  allowed.  (")  The  court 
said  :  "  It  is  true  it  is  difficult  to  estimate  its  value 
because  of  two  uncertainties — one  the  length  of  life  and 
the  other  the  number  of  passages  he  and  his  family  would 
probably  demand.  Still  this  uncertainty,  like  many 
others,  must  be  made  to  approximate  certainty  as  closely 
as  the  nature  of  the  case  will  admit  of.  The  burthen  of 
proof  lay  on  the  plaintiff,  who  knew  the  number  of  his 
family,  and  the  customary  number  of  trips  made  by  him- 
self and  them." 

§  251.  Peculiar  value — Pretium  affectionis. — It  may  hap- 
pen that  the  property  is  of  such  a  nature  that  it  cannot 
be  replaced  at  all,  or  only  with  difficulty;  for  example, 
a  family  portrait.  In  that  case  "  the  just  rule  of  damages 
is  the  actual  value  to  him  who  owns  it,  taking  into 
account  its  cost,  the  practicability  and  expense  of  replac- 
ing it,  and  such  other  considerations  as  in  the  particular 
case  affect  its  value  to  the  owner."("*)     But  this  "actual 

(»)  Doe,  J.,  in  Hovey  v.  Grant,  52  N.  H.  569,  581. 
O")  36  Minn.  236. 

(=)  Erie  &  P.  R.R.  Co.  v.  Douthct,  88  Pa.  243,  246. 

(■')  Morton,  J.,  in  Greene/.  Boston  &  L.  R.R.  Co.,  128  Mass.  221,  226; 
ace.  Houston  &  T.  C.  R.R.  Qo.v.  Burke,  55  Tex.  323. 


§251.  PECULIAR   VALUE.  375 

value  to  the  owner "  means  its  value  as  a  painting,  not 
the  satisfaction  and  pleasure  which  the  possession  of  it 
gives.  That  feeling,  like  the  satisfaction  which  comes 
from  having  a  contract  respected  and  performed,  is  of  a 
nature  which  the  law  does  not  recognize  as  a  subject  for 
compensation.  In  other  words,  ?Lpretium  affecHonis  can 
never  be  recovered.  (*) 

Other  considerations  than  market  value  may  govern 
the  measure  of  compensation  for  household  goods, 
wearing  apparel,  and  such  things  as  have  a  peculiar  value 
to  the  owner.  In  an  action  against  a  carrier  for  the  loss 
of  second-hand  clothing,  books,  and  table  furniture  the 
Supreme  Court  of  Texas  said  :  (")  "He  could  hardly 
have  supplied  himself  in  the  market  with  goods  in  the 
same  condition  and  so  exactly  suited  to  his  purposes  as 
were  those  of  which  he  had  been  deprived.  As  compen- 
sation for  the  actual  loss  is  the  fundamental  principle  upon 
which  this  measure  of  damages  rests,  it  would  seem  that 
-the  value  of  such  goods  to  their  owner  would  form  the 
proper  rule  on  which  he  should  recover.  Not  any 
fanciful  price  that  he  might  for  special  reasons  place 
upon  them,  nor,  on  the  other  hand,  the  amount  for  which 
he  could  sell  them  to  others,  but  the  actual  loss  in  money 
he  would  sustain  by  being  deprived  of  articles  so  specially 
adapted  to  the  use  of  himself  and  his  family."  In  a 
similar  case  in  the  Supreme  Court  of  Colorado,  Stone, 
J.,  said:  CO 

"  As  to  certain  other  goods,  such  as  wearing  apparel  in  use, 
and  certain  articles  of  household  goods  and  furniture,  kept  for 


(»)  Moseley  v.  Anderson,  40  Miss.  49. 

0")  International  &  G.  N.  Ry.  Co.  v.  Nicholson,  61  Tex.  550,  553,  per 
Willie,  C.  J. 

0  Denver,  S.  P.  &  P.  R.R.  Co.  v.  Frame,  6  Col.  382,  385  ;  ace.  Fairfax 
V.  New  York  C.  &  H.  R.  R.R.  Co.,  73  N.  Y.  167. 


2,'j6         THE    MEASURE   AND    ELEMENTS    OF   VALUE.       §  252. 

personal  use  and  not  for  sale,  while  they  have  a  real  intrinsic 
value  to  the  owner,  they  may  have  little  or  no  market  value 
whatever  at  the  point  of  destination  ;  they  are  not  shipped  as 
marketable  goods.  The  market  value  of  many  such  articles 
depends  on  style  and  fashion,  irrespective  of  actual  value  for 
use.  In  some  cases  the  owner  may  not  be  able  to  replace  them 
in  any  market.  In  such  cases  the  value  is  to  be  properly  fixed 
by  considerations  of  cost  and  of  actual  worth  at  the  time  of  the 
loss,  without  reference  to  what  they  could  be  sold  for  in  a  par- 
ticular market  or  hawked  off  for  by  a  second-hand  dealer  where 
they  happen  to  be  unladed." 

The  mere  fact  that  the  goods  are  second-hand  goods 
does  not  bring  them  within  this  rule  :  the  reason  of  it  is, 
that  the  goods  have  a  certain  adaptability  to  the  purpose 
for  which  they  are  used,  which  no  other  goods  could 
have.  If  other  goods  can  be  bought  at  second-hand 
stores  in  the  neighborhood  which  are  equally  suited  to 
the  purpose,  the  market  price  of  such  second-hand  goods 
is  the  measure  of  compensation.  (*) 

§  252.  Value  for  a  particular  use. — The  value  of  property 
is  to  be  estimated  with  reference  to  the  most  remunera- 
tive use  for  which  it  is  adapted.  Thus  where  a  building 
was  equipped  with  power  and  fitted  for  a  machine-shop, 
but  was  used  by  the  defendant  merely  for  storage,  the 
owner,  in  an  action  for  use  and  occupation,  was  allowed 
to  recover  the  value  of  the  premises  as  a  machine-shop, 
not  merely  their  value  for  storage.  (")  So  in  New  Jersey, 
where  the  value  of  a  horse  was  in  question,  Whelpley,  C.  J., 
saidiC)  "They  were  entitled  to  have  the  value  of  the 
horse  as  a  horse  to  be  used  in  their  business,  and  fitted  for 
that  use.  Perhaps  he  would  not  have  been  worth  any- 
thing as  a  fast  trotter  or  as  a  gentleman's  carriage  horse, 


(•)  Her  V.  Baker,  46  N.  W.  Rep.  377  (Mich.). 

0")  Horton  »>.  Cooley,  135  Mass.  589.. 

(«)  Parrel  v.  Colwell,  30  N.  J.  L.  123,  127. 


§253-  POSSIBLE    FUTURE   USE.  377 

because  not  adapted  to  the  work ;  but  that  would  not 
depreciate  his  value  as  a  cart  horse,  for  which  purpose  he 
was  to  be  used/'C)  In  Collard  v.  Southeastern  Ry.  Co^C) 
some  hops,  consigned  to  a  purchaser,  were  injured  in 
transit  by  the  rain.  They  were  dried,  and  after  this  pro- 
cess they  were  as  valuable  for  use  as  before  the  wetting, 
but  not  as  valuable  for  sale;  The  consignor  was  allowed 
to  recover  from  the  carrier  their  depreciation  in  value  for 
sale.  In  a  case  in  Massachusetts,  the  defendant  ordered 
goods  for  a  certain  purpose  ;  goods  were  furnished  which 
were  not  adapted  for  the  purpose,  and  were  retained  by 
the  defendant  with  knowledge  of  that  fact.  The  plaintiff 
was  allowed  to  recover  the  value  of  the  goods  in  general 
(that  is,  for  the  most  remunerative  use  for  which  they 
were  clearly  adapted),  and  not  their  value  for  the  special 
use  for  which  they  were  ordered  but  were  not  adapted. (") 
§  253.  Possible  future  use. — The  present  value  of  prop- 
erty may  be  enhanced  by  the  possibility  of  making  a  more- 
remunerative  use  of  the  property  than  the  present  use. 
Such  possible  future  use  is  to  be  considered. Q  In  Mon- 
tana Ry.  Co.  V.  Warren, (°)  the  Supreme  Court  of  Mon- 
tana said :  "  The  respondent  was  allowed  to  prove  the 
value  of  the  land  for  town-lot  purposes.  He  had  the  right 
to  do  so,  whether  he  had  built  upon  it  or  not.  As  we 
have  seen,  the  question  is  not  to  what  use  the  land  had 
been  put.  The  owner  has  a  right  to  obtain  the  market 
value  of  the  land,  based  upon  its  availability  for  the  most 
valuable  purposes  for  which  it  can  be  used,  whether  or  not 

(»)  Ace.  Central  B.  U.  P.  R.R.  Co.  v.  Nichols,  24  Kas.  242. 

C)  7  H.  &  N.  79. 

(")  Bouton  V.  Reed,  13  Gray  530. 

(■•)  Moore  v.  Hall,  3  Q.  B.  D.  178;  Holland  v.  Worley,  26  Ch.  D.  578; 
Ellington  v.  Bennett,  59  Ga.  286;  Reed  v.  Ohio  &  M.  Ry.  Co.,  126  111.  48; 
Shenango  &  A.  R.R.  Co.  v.  Braham,  79  Pa.  447. 

(»)  6  Mont.  27s,  284,  per  Bach,  J. 


378  THE    MEASURE    AND    ELEMENTS    OF    VALUE.      §  253. 

he  so  used  it."  In  Mississippi  &  R.R.  Boom  Co.  v.  Pat- 
terson, (")  the  plaintifif  in  error  had  taken  land  of  the  de- 
fendant in  error  by  the  right  of  eminent  domain,  and 
compensation  was  sought  in  this  action.  The  jury  found 
that  the  land  was  worth  but  $300  for  any  other  than  boom 
purposes,  but  a  very  much  larger  sum  for  such  purposes : 
and  the  Supreme  Court  of  the  United  States  held  that 
the  larger  sum  should  be  awarded.     Field,  J.,  said : 

"  In  determining  the  value  of  land  appropriated  for  public 
purposes,  the  same  considerations  are  to  be  regarded  as  in  a  sale 
of  property  between  private  parties.  The  inquiry  in  such  cases 
must  be  what  is  the  property  worth  in  the  market,  viewed  not 
merely  with  reference  to  the  uses  to  which  it  is  at  the  time  ap- 
plied, but  with  reference  to  the  uses  to  which  it  is  plainly  adapt- 
ed ;  that  is  to  say,  what  is  it  worth  from  its  availability  for 
valuable  uses  ?  Property  is  not  to  be  deemed  worthless  because 
the  owner  allows  it  to  go  to  waste,  or  to  be  regarded  as  value- 
less because  he  is  unable  to  put  it  to  any  use.  Others  may  be 
able  to  use  it,  and  make  it  subserve  the  necessities  or  conven- 
iences of  life.  Its  capability  of  being  made  thus  available  gives 
it  a  market  value  which  can  be  readily  estimated.  So  many  and 
varied  are  the  circumstances  to  be  taken  into  account  in  deter- 
mining the  value  of  property  condemned  for  public  purposes, 
that  it  is,  perhaps,  impossible  to  formulate  a  rule  to  govern  its 
appraisement  in  all  cases.  Exceptional  circumstances  will 
modify  the  most  carefully  guarded  rule  ;  but  as  a  general  thing, 
we  should  say  that  the  compensation  to  the  owner  is  to  be  es- 
timated by  reference  to  the  uses  for  which  the  property  is 
suitable,  having  regard  to  the  existing  business  or  wants  of  the 
community,  or  such  as  may  be  reasonably  expected  in  the  im- 
mediate future." 

This  question  usually  arises  in  cases  of  condemnation 
of  land  for  public  purposes,  under  the  .statutes  of  eminent 
domain,  and  will  be  examined  more  in  detail  hereafter. 
Of  course  it  is  not  intended  to  imply  that  any  speculative 
possibility  can  be  considered,  but  only  such  possible  fut- 

(»)  98  U.  S.  403, 407. 


§  254-  VALUE   OF   GOOD-WILL.  379 

ure  use  as  will  be  considered  to  enter  into  and  affect  the 
present  market  value. 

§  254,  Value  of  good-will. — The  good-will  of  a  business 
has  an  established  value,  which  in  the  proper  case  may  be 
estimated  by  a  jury.(*)  A  basis  for  such  an  estimate 
is  proof  of  the  past  profits  ;  but  an  amount  based  on  such 
an  estimate  may  be  reduced  by  showing  such  depression 
in  trade  or  other  circumstances  as  would  make  the  busi- 
ness less  valuablcC") 

In  Llewellyn  v.  Rutherford  (")  the  method  of  deter- 
mining the  value  of  the  good-will  of  premises  is  discussed. 
The  plaintiff  had  had  possession  of  the  premises  under  a 
lease  in  which  there  was  a  proviso  that  at  the  expiration 
the  defendant  should  pay  the  best  he  could  get  for  the 
good-will  of  the  business.  On  regaining  possession,  the 
lessor  relet  the  premises  to  a  third  party  for  the  same  use 
to  which  the  plaintiff  had  put  them.  Coleridge,  C.  J.,  said, 
that  as  the  defendant  had  not  sold  the  good-will,  the 
amount  of  recovery  should  be  such  a  sum  as  persons 
who  are  in  the  habit  of  estimating  such  things  would  fix 
as  the  value  of  the  good-will  of  the  premises  under  ordi- 
nary circumstances,  ft  was  held  that  in  estimating  the 
amount,  the  improved  value  of  the  neighboring  property 
could  be  taken  into  consideration  as  increasing  the  value. 
What  is  called  in  this  case  the  good-will  of  premises  re- 
sembles very  closely  the  good- will  of  a  business  :  indeed, 
it  could  probably  be  resolved  into  two  simpler  elements — 
the  value  of  the  lease,  and  the  good-will  of  the  business 
carried  on.  The  rule  laid  down  by  Coleridge,  C.  J.,  indi- 
cates another  method  of  placing  before  the  jury  a  basis 
upon  which  to  estimate  the  value  of  good-will. 


(»)  §  182.  C)  Chapman  v.  Kirby,  49  111.  211. 

(«)  L.  R.  10  C.  P.  456- 


380  THE    MEASURE   AND    ELEMENTS    OF    VALUE.       §  255. 

§  255.  Time  and  services. — When  the  value  of  the  time 
of  a  man,  or  of  his  personal  services,  is  to  be  found,  the 
jury  must  determine,  in  the  light  of  all  the  circumstances 
proved,  what  the  value  of  such  a  man's  labor  is  worth. 
In  the  case  of  a  common  laborer  the  matter  is  simple  : 
the  value  of  his  time  or  services  is  governed  by  the  cur- 
rent rate  of  wages.  Where,  however,  the  value  of  the 
services  is  enhanced  by  the  skill  or  education  of  the  man 
whose  time  is  to  be  paid  for,  the  case  is  one  of  more  dif- 
ficulty. Where  compensation  is  sought  for  services,  the 
value  of  the  services  is  not  governed  by  the  benefit  actu- 
ally received  from  them  ;  (")  nor  is  the  value  of  time 
necessarily  measured  by  the  compensation  which  it  was 
bringing  in  at  the  time  of  the  injury. C")  The  value  of 
time  and  services,  where  there  is  no  current  rate  applica- 
ble to  the  case,  must  be  fixed  by  the  jury ;  and  the  past 
earnings  of  the  party  may  be  shown,  not  as  fixing  the 
value  in  themselves,  but  as  evidence  to  assist  the  jury  in 
fixing  it.(°) 

§  256.  Choses  in  action — Bills  and  notes. — The  value  of 
a  bill  or  note  '\s  prima  facie  the  amount  due  on  the  secu- 
rity,(*)  the  defendant  being  at  liberty  to  reduce  that  valu- 
ation by  evidence  showing  payment,  the  insolvency  of  the 
maker,  or  any  fact  tending  to  invalidate  the  security. (°) 

(")  Stowe^'.  Buttrick,  125  Mass.  449. 

C)  Fisher  v.  Jansen,  128  111.  549.  (=)  See  cases  cited,  §  180. 

C)  Evans  v.  Kymer,  i  B.  &  A.  528;  St.  John  v.  O'Connel,  7  Port.  466; 
Ray  V.  Light,  34  Ark.  421  ;  American  Ex.  Co.  v.  Parsons,  44  III.  312;  Buck 
V.  Leach,  69  Me.  484 ;  Hersey  v.  Walsh,  38  Minn.  521  ;  Menkens  v.  Men- 
kens, 23  Mo.  252  ;  Bredow  v.  Mutual  S.  I.,  28  Mo.  181  ;  Decker  v.  Mathews, 
12  N.  Y.  313  ;  Metropolitan  E.  Ry.  Co.  v.  Kneel'and,  120  N.  Y.  134;  Ramsey 
r/.  Hurley,  72  Tex.  194;  Robbins  v.  Packard,  31  Vt.  570;  McDonald  v. 
Everitt,  3  Kerr  569. 

(")  Zeigler  v.  Wells,  23  Cal.  179 ;  American  Ex.  Qo.v.  Parsons,  44  111.  312  ; 
Latham  v.  Brown,  16  la.  u8 ;  O'Donoghue  v.  Corby,  22  Mo.  393  ;  Potter  v. 
Merchants'  Bank,  28  N.  Y.  641  ;  Cothran  v.  Hanover  Nat.  Bank,  40  N.  Y. 
Super.  Ct.,  401. 


§  256.  CHOSES    IN    ACTION.  38 1 

But  the  maker  himself  cannot  give  evidence  of  his  pecu- 
niary circumstances  to  reduce  the  damages.('') 

Lord  EUenborough  held '  that  the  damages  in  actions 
for  bills  of  exchange  were  to  be  estimated  at  the  amount 
of  the  principal  and  interest  due  on  the  bills  at  the  time  of 
the  demand  and  the  refusal ;  in  other  words,  at  the  time 
of  conversion.  No  doubt  seems  to  have  been  entertained 
that  the  face  of  the  bills  was  the  prima  facie  measure  of 
damages ;  and  the  same  point  was  ruled  in  New  York, 
with  no  limitation,  however,  as  to  the  time  to  which  in- 
terest was  to  be  computed.' 

Where  trover  was  brought  to  recover  a  bill  of  exchange 
for  ;^i,6oo,  which  the  bankrupt  had  deposited  with  the 
defendant,  and  on  which,  after  a  demand  had  been  made 
for  it  and  refused,  he  had  raised  the  sum  of  ;^8oo,  it  was 
insisted  that  the  damages  should  be  only  this  latter  sum  ; 
but  it  was  held  otherwise  at  the  trial ;  and  upon  argument 
for  a  new  trial,  Lord  Abinger,  C.  B.,  said:  "  If  the  de- 
fendant will  bring  ^800  into  court  and  deliver  up  the  bill, 
the  verdict  may  be  entered  for  a  nominal  sum ;  but  he 
converted  the  whole  bill,  and  the  plaintiffs  are  entitled  to 
recover  the  value  of  the  whole  at  the  time  of  the  conver- 
sion. The  defendant  cannot  be  less  liable  for  having  de- 
stroyed the  property  to  the  amount  of  one  half." ' 

In  an  action  of  trover  for  certain  billetes*  being  Peru- 
vian paper  money,  it  appeared  that  the  billetes  were  at 
a  great  discount ;  but  the  matter  being  referred  to  the 
prothonotary  for  adjustment,  the  plaintiffs  insisted,  on 

'  Mercer  v.  Jones;  3  Camp.  477.  "  that  it  viewed  with  great  jealousy  the 

'  Ingalls  V.  Lord,  i  Cowen  240.     It  conduct  of  officers  holding  executions 

should,  perhaps,  be  noticed,  that,   in  against  defendants." 

this  case,  the  defendant  was  a  consta-        *  Alsager  v.  Close,  10  M.  &  W.  576. 

ble,  who  had  illegally  levied  on  the        *  Delegal  v.  Naylor,  7  Bing.  460. 

note  in  question ;  and  the  court  said, 


(•)  Stephenson  v.  Thayer,  63  Me.  143;  Outhouse  v.  Outhouse,  13  Hun 
130;  Robbins  v.  Packard,  31  Vt.  570;  KalckhoffT/.  Zoehrlaut,  43  Wis.  373. 


382  THE    MEASURE    AND    ELEMENTS    OF   VALUE.       §  256. 

affidavit,  that  the  billetes  were  worth  to  them  the  value 
expressed  on  their  face,  and  claimed  a  recovery  to  that 
amount.  And  the  court  allowed  it.  This,  however, 
hardly  seems  in  analogy  to  other  cases ;  for  the  general 
rule  which  we  have  laid  down  is  to  be  taken  with  the 
qualification  that  the  note,  or  other  chose  in  action,  is 
still  an  available  security  for  the  amount  claimed. 

Where '  trover  was  brought  for  a  ;^300  check,  drawn 
by  the  bankrupt  on  his  bankers,  and  delivered  after  his 
bankruptcy  to  the  defendant,  a  creditor,  and  paid  by  the 
drawees,  the  jury  found  a  verdict  for  the  face  of  the  bill. 
On  a  motion  to  set  aside  the  verdict  and  enter  a  nonsuit, 
Chambre,  J.,  said  :  "  How  can  you  sue  for  a  piece  of 
paper  of  no  value?"  and  Mansfield,  C.  J.,  said:  "The 
plaintiffs  proceed  on  the  ground  that  the  check  is  worth 
nothing,  being  drawn  without  authority ;  how  can  they 
recover  on  it  the  sum  of  three  hundred  pounds?"  and  a 
nonsuit  was  entered.  In  Thayer  v.  Manley  (*)  the  de- 
fendant had  obtained  from  the  plaintiff  three  promissory 
notes  by  false  representations.  The  plaintiff,  on  discov- 
ering the  fraud,  and  before  the  maturity,  demanded  their 
return  ;  on  refusal,  brought  an  action  for  their  conver- 
sion. The  court  held,  that,  as  the  defendant  might,  by 
transfer  to  a  bona  fide  purchaser,  render  the  plaintiff 
liable  to  pay  the  notes,  the  measure  of  damages  was  their 
face  value,  and  this  was  not  changed  by  the  fact  that, 
after  the  commencement  of  the  action  and  before  the 
trial,  one  fell  due  and  had  not  been  transferred.  It  held, 
however,  that  the  defendant  might  have. the  option  of 
satisfying  the  judgment ,  by  delivering  up  and  cancelling 
the  notes.  Where  the  defendants. converted  a  note,  by 
transferring  it  to  a  bona  fide  purchaser,  and  a  recovery 

'  Mathew  v.  Sherwell,  2  Taunt.  439. 

. (»)  73  N.  Y,  305.  ,,.  .,      ~. 


§  256.  CHOSES   IN    ACTION.  383 

Was  had  against  the  plaintiff,  it  was  held  he  could  recover 
the  amount  paid  to  satisfy  the  judgment. (*) 

As  we  have  seen,  a  defendant,  in  trover  for  a  note, 
can  show  the  insolvency  of  the  maker,  and  any  evidence 
will  be  admitted  which  tends  to  show  such  insolvency. 
A  mere  probability  that  a  note  would  not  have  been 
paid,  is  perhaps  not  enough  ;  C*)  but  evidence  is  admis- 
sible to  show  that  the  plaintiff  took  the  necessary  steps 
to  present  the  note  for  payment,  and  that  the  makers  re- 
sided at  the  place  in  which  the  bank  was  situated  and  at 
which  the  note  was  payable.  (°) 

Since  a  material  alteration  releases  the  parties  to  a 
note  from  liability,  only  nominal  damages  can  usually  be 
recovered  for  the  conversion  of  an  altered  note.  But  a 
qualification  of  this  general  rule  was  made  in  the  case  of 
Booth  V.  Powers.  C^)  The  evidence  show?fd  that  a  note 
made  payable  to  "  A  or  order  "  had  been  changed  so  as 
to  read  to  "  A  or  bearer."  It  was  held  that  that  material 
alteration  invalidated  the  note,  and  therefore  reduced  its 
value  and  the  damages  for  its  conversion.  Folger,  J., 
said  that  the  alteration  must  be  one  that  would  vitiate 
the  instrument.  He  pointed  out  that  if  the  alteration 
was  not  fraudulent,  the  payee  might  resort  to  the  orig- 
inal indebtedness,  but  in  that  case  he  must  have  the  note, 
and  the  note  would,  therefore  be  worth  the  amount  of 
the  original  indebtedness.  He  further  said,  that  the 
plaintiffs  could  also  show  a  readiness  by  the  makers  to 
waive  or  ratify  the  alteration.  So  if  in  any  case  the  note 
was  available  to  the  plaintiff  to  its  full  amount,  that 
amount  will  remain  the  measure  of  damages.(*) 

(')  Comstock  V.  Hier,  73  N.  Y.  269. 

C)  Knapp  V.  U.  S.  &  C.  Ex.  Co.,  55  N.  H.  348. 

(")  Brown  v.  Montgomery,  20  N.  Y.  287. 

C)  56  N.  Y.  22. 

(')  Rose  V.  Lewis,  10  Mich.  483. 


384  THE    MEASURE   AND    ELESIENTS    OF   VALUE.       §  257. 

§  257.  Bonds  and  shares  of  stock. — In  the  case  of  bonds 
of  a  municipal  or  other  corporation  having  a  market 
value,  such  value  is  the  measure  of  compensation.  (*)  So 
in  an  action  for  the  conversion  of  some  San  Francisco 
Waterworks  Company's  bonds,  the  plaintiff  was  held  not 
to  be  confined  in  his  recovery  to  the  face  value  of  the 
bonds,  on  the  assumption  that  the  Waterworks  would 
pay  them  in  legal  tender,  as  allowed  by  the  United  States 
statutes.  The  jury  could,  it  was  said,  take  into  consid- 
eration the  fact  that  the  company  received  all  its  dues  in 
gold,  that  gold  was  practically  the  currency  of  California, 
and  any  other  facts  from  which  the  probability  that  they 
would  be  paid  in  gold  could  be  estimated.  Johnson,  C, 
said  :  "  These  considerations  go  to  fix  the  market  value 
where  there  is  one.  In  the  absence  of  an  actual  market 
value,  I  know  no  reason  why  they  may  not  be  considered 
by  any  tribunal."  (^) 

In  the  same  way  the  value  of  a  certificate  of  stock  in 
a  corporation  is  the  market  value  of  the  shares,  if  they 
have  a  market  value.  (°)  Where  there  is  no  market 
value,  the  value  of  shares  must  be  found  by  an  examina- 
tion of  the  affairs  of  the  company.(^)  Here,  as  else- 
where, the  market  value  is  not  an  absolute  standard. 
The  market  is  only  taken  as  usually  the  best  indication 
of  value.  This  it  may  not  be  at  all.  So  where  in  an  action 


(•)  Hayes  v.  Massachusetts  L.  I.  Co.,  125  111.  626  {semble) ;  First  National 
Bank  v.  Strang,  28  III.  App.  325  ;  Callanan  v.  Brown,  31  la.  333  ;  Griffith  v. 
Burden,  35  la.  138  ;  Wintermute  v.  Cooke,  73  N.  Y.  107  {semble);  Roberts 
V.  Berdell,  61  Barb.  37. 

("■)  Simpkins  v.  Low,  54  N.  Y.  179. 

(")  Deck  V.  Feld,  38  Mo.  App.  674. ;  Ormsby  v.  Vermont  C.  M.  Co.,  56  N. 
Y.  623  (semble)  ;  Delany  v.  Hill,  i  Pittsburgh  28 ;  Connor  v.  Hillier,  1 1 
Rich.  193. 

(•i)  Deck  V.  Feld,  38  Mo.  App.  674 ;  ace.  Huse  &  Loomis  Ice  Co.  v.  Heinze, 
14  S.  W.  Rep.  756  (Mo.),  where  the  value  of  stock  in  &  projected  cor^oraXion 
was  to  be  found. 


§  257"  BONDS   AND    SHARES   OF   STOCK,  385 

for  damages  by  the  vendee,  of  stock  purchased  in  conse- 
quence of  the  vendor's  false  representations  as  to  its  in- 
trinsic value,  it  appears  that  the  stock  was  actually 
worthless,  the  price  at  which  it  sold  in  the  market  is  en- 
titled to  no  weight  on  the  question  of  value.(*)  In  a 
case  of  this  sort  in  the  English  Court  of  Appeal, ('') 
Cotton,  L.  J,,  said  :  "  It  must  not  be  taken  that  the  value 
of  the  shares  must  be  what  they  would  have  sold  for  in 
the  market,  because  that  might  not  show  the  real  value 
at  all.  I  do  not  know  whether  there  was  any  market  in 
this  case,  but  the  market  might  have  been  affected  by 
the  representations  which  were  made  by  the  defendants, 
which  induced  the  plaintiff  to  act  and  which  might  have 
induced  others  to  act."  And  Sir  J,  Hannen  added  that 
the  value  was  "  not  what  the  shares  might  have  sold  for, 
because  he  was  not  bound  to  sell  them,  and  subsequent 
events  may  show  that  what  the  shares  might  have  sold 
for  was  not  their  true  value,  but  a  mistaken  estimate  of 
their  value." 

In  Redding  v.  Godwin, (°)  a  case  of  the  same  nature, 
Dickinson,  J.,  said : 

"  If  such  property  has  a  definite  market  value,  for  which  it  can 
be  readily  sold,  that  isi  to  be  taken  as  its  value,  as  in  the  case  of 
other  kinds  of  property.  The  market  value  and  the  intrinsic 
value  are  not  necessarily  the  same.  It  is  contended  that,  in  the 
absence  of  proof  of  the  market  value  of  the  stock,  or  that  it  had 
no  market  value,  a  recovery  cannot  be  predicated  upon  proof  of 
its  intrinsic  value.  If  it  were  shown  that  the  stock  was  of  no 
intrinsic  value,  it  would  be  inferable  that  it  had  no  market 
value.C)  And  while  it  may  be  possible  that  the  stock  of  an  in- 
solvent private  corporation,  a  corporation  which  is  unable  to 


(')  Hubbell  V.  Meigs,  50  N.  Y.  480. 
C)  Peek  V.  Derry,  37  Ch.  Div.  541,  591. 
C)  46  N.  W.  Rep.  563  (Minn.). 
(^)  Miller  7/.  Barber,  66  N.  Y.  558,  568. 
Vol.  1.-25 


386  THE    MEASURE   AND    ELEMENTS    OF   VALUE.      §  258, 

discharge  its  liabilities  in  the  usual  course  of  business,  may  have 
some  definite  market  value  different  from  its  intrinsic  value,  this 
is  not  to  be  presumed  ;  and  in  such  a  case  the  intrinsic  value,  as- 
certained from  the  value  of  the  corporate  assets,  and  the  amount 
of  its  liabilities,  may  be  taken  as  the  basis  for  the  assessment  of 
damages.  If  in  fact  such  stock  had  a  definite  market  value  dif- 
ferent from  its  intrinsic  worth,  that  may  be  shown  by  the  adverse 
party." 

§  258.  Other  securities  for  the  payment  of  money. — So 
the  value  of  a  savings-bank  book  is  prima  facie  the 
amount  of  the  deposits ;  (")  the  value  of  an  account  is 
prima  facie  the  face  value. C")  For  failure  to  give  secu- 
rity for  a  purchase,  the  value  of  the  security  is  the  measure 
of  damages,  and  that  is  prima  facie  the  amount  of  the 
sum  to  be  secured.  (°) 

§  259.  Policies  of  insurance. — The  value  of  a  policy  of  in- 
surance was  involved  in  an  action  to  recover  damages  for 
the  fraud  of  an  agent,  who  had  represented  to  his  principal 
that  he  had  effected  an  insurance,  when  in  fact  he  had  not. 
In  trover  for  the  policy,  Lord  Mansfield  would  not  permit 
the  defendant  to  contradict  his  own  representation,  and 
laid  down  the  rule  of  damages  as  being  the  same  as  if  the 
policy  had  been  actually  effected.  "  I  shall  consider,"  he 
said,  "  the  defendant  as  the  actual  insurer,  and  therefore 
the  plaintiff  must  prove  his  interest  and  loss." '  So,  on 
the  Pennsylvania  circuit,^  in  an  action  of  trover  for  a  pol- 
icy of  insurance,  by  consent  of  parties,  the  rule  of  dam- 
ages was  considered  the  same  as  if  the  suit  had  been  on 

'  Harding  v.  Carter,  Park  on  Insur-  '  Kohne  v.  The  Insurance  Co.  of 
ance,  4.  North  America,  i  Wash.  C.  C.  93. 


(»)  Wagner  v.  Second  W.  S.  Bank,  76  Wis.  242. 

0  Sadler  v.  Bean,  37  la.  439. 

(")  Barron  v.  MuUin,  21  Minn.  374. 


§  26o.        OTHER  SEALED  INSTRUMENTS.  387 

the  policy. (*)  In  Wheeler  v.  Pereles,(^)  it  was  held,  in 
an  action  for  the  conversion  of  a  life  insurance  policy  by 
the  pledgee,  that  the  measure  of  damages  was  the  value 
of  the  policy  less  the  amount  of  the  notes  for  which  it 
was  pledged.  But  where  an  action  of  trover  was 
brought '  for  a  policy  which  it  appeared  was  cancelled,  a 
verdict  was  recovered  and  sustained  for  2d.,  the  value  of 
the  parchment  only. 

§  260.  Other  sealed  instruments. — Where  the  defendant' 
agreed  to  purchase  of  the  plaintiff,  for  £'J2,  igj'.,  the  unex- 
pired term  of  a  lease  of  twenty  years,  and  the  plaintiff  de- 
livered to  him  the  indenture  of  lease  for  the  purpose  of 
having  an  assignment  made  out,  the  defendant  subse- 
quently made  an  agreement  with  the  original  landlord, 
and  broke  off  the  bargain  with  the  plaintiff,  and  declined 
to  accept  an  assignment.  The  plaintiff  demanded  the 
lease  (but  not  the  purchase-money),  which,  being  refused, 
he  brought  trover.  The  jury  found  a  verdict  for  £^2)  1 9^., 
the  price  agreed  on  as  the  value  of  the  lease,  deducting 
the  amount  of  some  fixtures  which  the  plaintiff's  under- 
tenant had  removed,  and  no  question  was  made  but  the 
measure  of  damages  was  correct.  So,  where '  the  defend- 
ant had  executed  a  bond  to  one  H.  Clowes,  which  was  as- 
signed to  the  plaintiff,  in  the  penalty  of  $1,000,  condi- 
tioned to  convey  a  lot  of  land.  Trover  was  brought  for 
this  instrument,  and  the  conversion  proved.  The  plain- 
tiff having  been  nonsuited  at  the  trial,  on  the  ground  that 

'  Wills  V,  Wells,  8  Taunt.  264.  '  Clowes  v.  Hawley,  12  Johns.  484. 

=  Parry  v.  Frame,  2  B.  &  P.45I. 

(»)  Ace.  Hayes  v.  Massachusetts  L.  I.  Co.,  125  111.  626,  where  for  conver- 
sion of  the  policy  after  the  death  of  the  assured  the  face  value  of  the  policy 
was  given. 

C)  43  Wis.  332,  citing  Halliday  v.  Holgate,  L.  R.  3  Ex.  299 ;  Fisher  v. 
Brown,  104  Mass.  259. 


388  THE    MEASURE   AND    ELEMENTS    OF   VALUE.       §  261. 

none  but  nominal  damages  could  be  given,  the  court  set 
the  nonsuit  aside,  saying  that  the  plaintiff,  as  the  assignee 
of  the  obligee,  having  been  entitled  to  the  performance 
of  the  condition,  the  damages  sustained  would  be  the 
value  of  the  land.  From  this  amount  must  be  subtracted 
the  cost  of  performing  a  condition  attached  to  the  con- 
veyance. (")  Where  a  bond  to  secure  the  faithful  per- 
formance of  a  clerk's  duties  was  converted  by  the  obligor 
tearing  off  the  seal,  the  measure  of  damages  was  held  to 
be  the  penalty  of  the  bond-C") 

§  261.  Documents. — The  value  of  a  receipted  account 
in  the  absence  of  special  circumstances  is  nominal  only.C) 
The  value  of  abstracts  of  title  and  searches  is  the  cost  of 
procuring  other  similar  searches.  C^)  The  value  of  a  solic- 
itor's docket  and  papers,  containing  evidences  of  bills  of 
costs  against  certain  parties,  is  the  value  of  the  docu- 
ments to  the  owner ;  (°)  and  the  same  is  true  of  a  set  of 
vouchers,  accompanied  by  an  affidavit  of  their  correct- 
ness. Q 

§  262.  Title-deeds. — The  rule  of  damages  in  trover  for 
title-deeds  has  not  been  much  discussed  in  the  reports. 
Regarding  the  value  of  the  deed  as  the  consideration  ex- 
pressed in  it,  or  the  value  of  the  land  conveyed  by  it, 
there  can  be  little  doubt  that,  in  this  country,  the  ordi- 
nary rule  of  damages  in  trover  would  not  apply,  both 
because  the  judgment  would  not,  as  in  actions  for  the 
conversion  of  goods,  effect  a  transfer  of  the  title  to  the 
defendant,  and  because  the  title  of  the  plaintiff,  if  re- 


(•)  Rogers  v.  Crombie,  4  Me.  274. 

C)  Bank  of  Upper  Canada  v.  Widmer,  2  Up.  Can.  Q.  B.  (O.  S.)  222. 

(")  Moody  V.  Drown,  58  N.  H.  45. 

('')  Watson  V.  Cowdrey,  23  Hun  169. 

(«)  Doyle  V.  Eccles,  17  Up.  Can.  C.  P.  644. 

O  Drake  v.  Auerbach,  37  Minn.  505. 


§  263.  LIFE.  389 

corded,  as  is  generally  the  case,  would  be  unaffected  by 
the  conversion,  and  if  not  recorded,  the  deed  would  still 
be  unavailable  to  the  defendant,  and  the  plaintiff  can 
usually  have  redress  in  equity.  Dixon,  C.  J.,  in  deliver- 
ing the  opinion  of  the  Supreme  Court  of  Wisconsin, 
said  :  (") 

"  No  case  can  be  found,  I  think,  where  the  recovery  and  satis- 
faction of  a  judgment,  in  an  action  for  the  conversion  of  them 
(title-deeds),  have  been  adjudged  to  pass  the  legal  title.  I  should 
think  that  in  those  cases  where  the  title  is  unaffected,  and  the 
conduct  of  the  defendant  has  not  been  fraudulent  or  oppressive, 
but  where  the  deed  or  other  written  instrument  was  lost  or 
destroyed  through  his  mistake,  negligence,  or  slight  omission, 
the  more  just  rule  of  damages  would  be  such  sum  as  would 
recompense  the  plaintiff  for  any  actual  loss  he  may  have  sus- 
tained, and  for  his  trouble  and  expenses  in  going  into  a  court  of 
equity,  or  elsewhere,  to  establish  and  perpetuate  the  evidence  of 
his  title,  with  the  costs  of  the  action."  (") 

In  England  the  case  is  different,  since,  owing  to  the 
absence  of  a  registry  system,  the  title-deeds  are  the  only 
evidence  of  title.  The  whole  value  of  the  land  is  there- 
fore allowed  to  be  recovered,  but  satisfaction  of  the  judg- 
ment is  entered  on  the  roll,  on  the  defendant  delivering 
up  the  deeds  and  paying  costs,  as  between  attorney  and 
client,  and  otherwise  placing  the  plaintiff  in  as  good  a 
situation  as  before  the  cause  of  action  arose. (") 

§  263.  Life. — It  was  a  rule  of  the  common  law  that  no 
action  would  lie  for  the  death  of  a  human  being.     But 


(»)  Mowry  v.  Wood,  12  Wis.  413,  421.  In  Towle  v.  Lovet,  6  Mass.  394, 
trover  was  brought  for  title-deeds,  but  the  quantum  of  damages  was  settled 
by  consent. 

C")  Ace.  Edwards  v.  Dickinson,  102  N.  C.  519.  In  an  action  of  replevin 
for  half-breed  land  scrip,  the  owner  was  allowed  to  recover  the  value  of  the 
land  to  him,  though  the  patent  could  be  issued  only  to  him.  Bradley  v. 
Gammelle,  7  Minn.  331.     This  seems  opposed  to  the  cases  upon  title-deeds. 

C)  Coombe  v.  Sansom,  1  D.  &  R.  201  ;  Loosemore  v.  Radford,  9  M.  &  W. 
657  {semble). 


390  THE    MEASURE   AND    ELEMENTS    OF   VALUE.       §  264. 

since  the  modern  statutes  extending  a  remedy  for  the 
wrongful  taking  of  human  life,  no  greater  difficulty  has 
been  found  in  estimating  the  value  of  a  life  than  in  de- 
termining many  other  questions  of  a  like  nature  which 
are  constantly  presented  to  juries.  The  rules  for  esti- 
mating the  value  of  a  life,  however,  concern  so  exclu- 
sively the  actions  which  are  brought  upon  the  statutes 
just  referred  to  that  they  will  be  discussed  in  connection 
with  those  actions. (") 

§  264.  Money. — The  value  of  money,  and  of  the  use  of 
it,  come  frequently  before  the  courts  for  determination. 
The  rules  governing  the  value  of  money  are,  however,  of 
such  a  peculiar  nature  as  to  require  separate  treatment. 
The  subject  will  be  discussed  in  the  chapters  immediately 
following. 

§  265.  Illegal  and  noxious  property. — *  The  character  of 
the  property  may  be  such  that  the  law  will  not  give  it 
any  protection  at  all,  or  at  best  a  partial  one.  In  an  ac- 
tion for  trespass  for  cutting  and  destroying  a  picture,  it 
appeared  that  it  was  a  valuable  painting,  but  it  also  ap- 
peared that  it  was  a  gross  libel  on  the  defendant's  sister  ; 
and  Lord  Ellenborough  told  the  jury  that  they  must  only 
award  the  value  of  the  canvas  and  paint  which  formed 
its  component  parts.'  **  So  in  an  action  for  the  conver- 
sion of  irreligious  and  illegal  pamphlets,  it  was  held  that 
the  value  as  pamphlets  could  not  be  recovered  ;  the 
plaintiff  was  restricted  to  the  value  of  the  materials.  (^) 
So,  where  trespass  was  brought  against  officers  of  the 
customs  for  taking  a  portfolio  and  drawings,  it  has  been 
held  by  the  King's  Bench,  that  the  defendant  may  justify 

'  Du  Bost  V.  Beresford,  2  Camp.  511.    See,  also,  Davis  v.  Nest,  6  Car.  &  P.  167. 


(")  Chapter  xviii. 

(*■)  Boucher  v.  Shewan,  14  Up.  Can.  C.  P.  419. 


§  265.  ILLEGAL   AND    NOXIOUS   PROPERTY.  39 1 

by  showing  that  the  portfolio  contained  drawings  liable 
to  seizure  for  non-payment  of  duty,  which  the  plaintiff 
was  in  the  act  of  carrying  ashore  out  of  a  foreign  packet. 
The  jury  found  one  farthing  damages.  On  this  the 
plaintiffs  were  nonsuited,  and  the  court  refused  liberty 
to  enter  a  verdict  for  the  amount  found.*  So  in  Iowa, 
in  an  action  of  trespass  for  breaking  into  the  plaintiff's 
close  and  taking  certain  liquors,  which  had  been  ad- 
judged to  be  forfeited  in  a  judicial  proceeding,  to  which 
the  plaintiff  was  a  party,  it  was  held,  that  he  could  not 
recover  the  value  of  the  liquors,  and,  if  the  defendants 
acted  in  good  faith,  he  could  recover  nominal  damages 
only.C)  In  Pennsylvania,  in  an  action  for  pulling  down 
a  building,  evidence  that  the  building  was  peaceably 
taken  down,  and  its  materials  preserved,  in  conformity 
with  the  directions  of  the  commissioners  of  the  township,, 
during  a  period  of  great  public  excitement  and  disorder,^ 
with  a  view  of  saving  the  neighborhood  from  threatened 
violence,  is  admissible  in  mitigation  of  damages.  But,  in 
such  action,  evidence  that  the  commissioners  had  by  law 
the  power  to  abate  and  remove  nuisances,  and  that  a 
grand  jury,  after  instructions  by  a  competent  court,  pre- 
sented the  building  as  a  public  nuisance,  and  recom- 
mended its  abatement,  is  not  admissible  in  mitigation  of 
damages." 

In  order,  however,  to  be  considered  upon  the  question 
of  value  the  illegality  must  be  connected  with  the  owner 
of  the  property.  Ganson  v.  Tifft  C")  was  an  action  for 
breach  of  covenant  by  a  lessor  to  rebuild.  The  plaintiff's 
testator  had  leased  premises  of  the  defendant,  and  sublet 
them  at  an  increased  rent.     The  buildings,  consisting  of 

>  De  Goudonin  v.  Lewis,  10  A.  &  E.         *  Reed  v.  Bias,  8  W.  &  S.  189. 
"7-  . 

(»)  Plummer  v.  Harbut,  5  la.  308.  0")  7i  N.  Y.  48. 


392  THE    MEASURE    AND    ELEMENTS    OF   VALUE.       §  265. 

an  elevator  and  warehouse,  were  burnt  down,  and  the 
sublessees  terminated  their  lease  under  the  statute.  It 
was  held  that,  in  determining  the  amount  of  damages,  the 
rent  reserved  in  the  sublease  should  be  taken  into  con- 
sideration. It  appeared  that  there  was  an  association  of 
elevator  owners,  formed  mainly  for  the  purpose  of  regu- 
lating prices,  to  which,  at  times,  the  elevators  were  all 
leased.  It  was  held  that  the  future  profits  or  continued 
value  of  the  lease  which  might  arise  from  this  cause, 
could  not  be  excluded  from  the  consideration  of  the  jury, 
either  on  the  ground  of  remoteness  or  speculativeness, 
or  because  such  associations  are  illegal.  On  the  ques- 
tion of  illegality,  the  court  says: 

"  A  party  who  has  a  contract  for  the  sale  of  an  article  of 
property  at  the  market  value,  cannot  be  prevented  from  recover- 
ing the  actual  value,  because  the  price  has  been  raised  by  a 
combination  and  conspiracy  of  strangers,  to  which  he  is  not  a 
party.  He  is  entitled  to  the  real  value,  without  regard  to  any 
such  consideration;  and  the  alleged  conspiracy  or  combination 
is  too  remote  to  affect  such  right,  so  long  as  he  has  no  associa- 
tion or  connection  with  the  conspirators.  It  is  no  defense  to  an 
action  brought  to  recover  the  price  of  property  sold,  that  the 
vendor  knew  it  was  bought  for  an  illegal  purpose,  provided 
that  it  is  not  made  a  part  of  the  contract  that  it  shall  be  used 
for  that  purpose,  and  that  the  vendor  has  done  nothing  in  aid  or 
furtherance  of  the  unlawful  design. (»)  Within  this  rule,  the 
plaintiff  was  not  guilty  of  an  act  which  prevented  a  recovery  of 
the  value  of  the  lease;  and  the  real  question  was,  what  was  the 
unexpired  term  worth,  under  all  the  circumstances,  and  for  what 
amount  could  the  premises  be  sublet  ?  " 


(•)  Tracy  v.  Talmage,  14  N.  Y.  162, 176. 


CHAPTER  IX. 


MEDIUM    OF    PAYMENT. 


i  266.  Primitive  substitutes  for  money 

267.  Medium  in  which  a  payment 

may  be  made. 

268.  Adoption  of  a  new  standard  of 

value. 

269.  Adoption  of  a  new  legal  tender 

— Double  standard. 

270.  Contract  payable  in  gold. 

271.  Form  of  judgment  on  a  con- 

tract payable  in  gold. 

272.  Actions  of  tort  for  the  loss  o' 

gold. 

273.  Contract    payable    in    foreign 

currency. 


§  274.  Contract  payable  in  a  foreign 
country  in  currency  of  that 
country. 

275.  Exchange. 

276.  Contract  payable  in  mercantile 

securities. 

277.  Alternative  medium. 

278.  Confederate  money — Time  of 

estimating  value. 

279.  Agreements  to  pay  in  a  medi- 

um other  than  money. 

280.  Cases  allowing  recovery  of  the 

stipulated  amount  in  money. 

281.  Cases  allowing  recovery  of  the 

value  of  the  commodity. 


§  266.  Primitive  substitutes  for  money. — The  ordinary 
medium  of  payment  is,  and  in  modern  times  has  almost 
universally  been,  money.  In  primitive  societies,  before 
the  introduction  of  money,  one  of  the  commonest  meas- 
ures of  value  appears  to  have  been  cattle.  In  Greece, 
as  appears  from  the  Homeric  poems, (*)  oxen  were  the 
measure  of  value.  So  in  the  early  ages  of  Rome,  certain 
fines  were  payable  in  sheep  and  oxen  ;  but  in  the  fourth 
century  of  the  city  money  was  substituted.  C")  The 
same  was  true  in  the  early  Celtic  and  Saxon  times, (°) 
and  even  as  late  as  the  seventeenth  century,  the  colonies 
in  this  country  were  forced  by  the  scarcity  of  specie  to 

(»)  Iliad,  bk.  23,  vs.  1815. 

0")  Aul.  Gell.  xi.  I ;  see  also  Cic.  de  Rep.  II.  36;  i  Niebuhr,  Hist,  of  Rome, 
p.  223. 

(=)  See  §  10. 

(393) 


394  MEDIUM    OF   PAYMENT.  §  267. 

adopt  other  standards  of  value.  So  in  Massachusetts,  on 
Dec.  18,  163 1,  it  was  ordered  "that  corne  shall  pass 
for  payment  of  all  debts  at  the  usuall  rate  it  is  solde  for 
except  money  or  beaver  be  expressly  named. "(")  And 
on  March  4,  1634,  "ordered  that  muskett  bullets  of  a 
full  bore  shall  pass  currently  for  a  farthing  apeece  pro- 
vided that  noe  man  be  compelled  to  take  above  xiid  at  a 
tyme  in  them."(*)  In  Virginia  while  a  colony,  tobacco 
was  at  one  time  a  measure  of  value.  "  Virginia  was 
then  not  only  throughout  a  slave-holding,  but  a  tobacco- 
planting  Commonwealth.  You  can't  open  the  Statute 
Book — I  mean  one  of  the  old  Statute  Books — not  those 
that  have  been  defaced  by  the  finger  of  Reform — and 
not  see  that  tobacco  was  in  fact  the  currency  as  well 
as  the  staple  of  the  State.  We  paid  our  Clerks'  fees  in 
tobacco  ;  verdicts  were  given  in  tobacco  and  bonds  were 
executed  payable  in  tobacco." (°) 

At  the  present  day,  payment  is  to  be  made  in  money 
unless  some  other  medium  is  stipulated  in  the  contract. 
That  this  is  still  sometimes  the  case  will  be  seen  in  this 
chapter.  But  all  verdicts  must  now  be  given  in  money, 
all  damages  are  pecuniary,  and  a  study  of  the  medium 
of  payment  becomes  practically  a  study  of  the  value  of 
money. 

§  267.  Medium  in  which  a  payment  may  be  made. — In 
case  of  a  contract  to  pay  a  specified  sum  of  money  there 
is  usually  no  difficulty  in  estimating  the  amount  to  be 
paid.  The  monetary  system  of  a  country  may,  however, 
between  the  time  of  contract  and  the  date  of  payment, 
be  disturbed  and  altered  in  one  of  two  ways :  the  cur- 


(')  I  Col.  Rec.  92. 
C)  I  Col.  Rec.  137. 

(")  Mr.  Randolph  in  the  Virginia  Convention,  Nov.  14,  1829.  Proceedings 
of  the  Virginia  State  Convention,  p.  375. 


§  268.      ADOPTION  OF  A  NEW  STANDARD  OF  VALUE.  395 

rency  may  become  depreciated,  or  a  new  standard  may 
be  adopted.  In  such  cases  the  contract  will  be  dis- 
charged by  a  due  payment  in  any  coin  which  by  law 
is  made  of  equivalent  value  at  the  time  of  payment.' 

§  268.  Adoption  of  a  new  standard  of  value. — Where  an 
entirely  new  standard  of  value  is  adopted  by  the  govern- 
ment, the  amount  to  be  paid  is  found  by  giving  such  a 
sum  in  the  new  currency  as  shall  be  declared  by  law 
equal  in  value  to  the  amount  due  in  the  old  currency. 
A  notable  instance  occurred  in  the  change  in  this  coun- 
try to  the  decimal  system  of  coinage,  when  an  arbitrary 
ratio  between  the  old  and  the  new  standards  was  adopted 
in  each  State. 

A  new  standard  may  be  adopted  more  indirectly  by 
the  issue  of  a  paper  currency,  nominally  but  seldom  act- 
ually equal  to  the  gold  standard.  If  the  government 
does  only  this,  without  making  the  new  money  legal 
tender  for  the  payment  of  existing  debts,  it  would  seem 
that  the  creditor  should  be  able  to  enforce  payment  on 
the  earlier  standard ;  for  it  is  really  a  case  of  adoption  of 
a  new  standard  of  value. 

Where  rent  was  reserved  in  "  current  money  of  Vir- 
ginia," and  the  legislature  of  Virginia  debased  the  cur- 
rency in  the  way  just  described,  it  was  held  that  the  value 
of  the  rent  reserved  at  the  time  of  the  lease  should  be 
found  in  gold  or  other  stable  medium,  and  judgment  be 
given  for  that  amount.  (") 

'  Story  on  Notes,  §  390,  where  the  Story  on   Con.   of  Laws,   §  312  ;   on 

opinion  of  the  continental  jurists  will  Bills,  §  163  ;  Searight  v.  Calbraith,  4 

be  found.     Case  of  Mixed  Moneys,  Sir  Dall.  325  ;  Thompson  0.  Riprgs,  5  Wall. 

John  Davies'  Reports,  18,  s.  c.  2  Bligh  663 ;  Bartsh  ».  Atwater,  i  Conn.  409 ; 

98  ;   Pilkington   v.    Commissioner  for  Warder  v.    Arell,    2  Wash.   Va.  282  ; 

Claims  on   France,   2   Knapp   7,   18  ;  Taliaferro  v.  Minor,  i  Call.  524. 
Cockerell  v.  Barber,  16  Ves.  461,  465  : 


(')  Faw  V.  Marsteller,  2  Cranch  10. 


396  MEDIUM    OF    PAYMENT.  §  269. 

§  269.  Adoption  of  a  new  legal  tender — Double  standard. — 
The  most  important  question,  however,  because  the  case 
is  the  commonest,  arises  when  the  government  not  only 
issues  a  new  sort  of  money,  but  makes  it  a  legal  tender 
for  the  payment  of  debts.  This  question  was  presented 
during  the  civil  war  by  the  passage  of  the  Legal  Tender 
Acts. 

Congress,  early  in  the  war,  passed  a  law  declaring  cer- 
tain Treasury  notes,  to  be  issued  by  virtue  of  the  law,  a 
legal  tender  in  payment  of  debts,('')  the  principle  of 
which  was  again  repeatedly  acted  on  by  Congress.  C") 
Until  this  legislation,  gold  and  silver  coin  had  been  the 
only  legal  tender  known  to  the  law,  and  had  been  not 
only  understood  by  the  profession  and  the  public,  but 
also  assumed  by  high  authority  to  be  the  only  one  sanc- 
tioned by  the  Constitution  of  the  United  States.(°)  In- 
deed, subject  to  the  constitutional  restriction  against  im- 
pairing the  obligation  of  contracts,  the  rights  under  them 
and  the  remedies  upon  them  had  been  always  regarded 
as  matters  exclusively  for  State  regulation  and  control. 
But  the  exigencies  of  the  civil  war  led  to  the  expedient 
of  giving  to  the  notes  of  the  government  the  same  legal 
efificacy  with  gold  and  silver  coin  in  the  discharge  of 
debts  ;  and  after  a  sharp  and  general  controversy  in  the 
State  courts,  which,  with  rare  exceptions,  upheld  the 
constitutionality  of  these  laws,  they  were  at  last  sustained 
by  the  highest  tribunal  in  the  land.^)  These  decisions, 
however,  so  far  as  they  applied  to  contracts  made  before 
the  passage  of  the  acts,  overruled  one  made  shortly  be- 

(»)  Act  of  February  25,  1862,  ch.  33  ;  12  U.  S.  Stat,  at  Large,  345. 

Q)  12  Stat,  at  Large,  709  (Act  of  March  3,  1863)  ;  13  Stat,  at  Large,  218 
(Act  of  June  30,  1864). 

{')  See  Gwin  v.  Breedlove,  2  How.  29. 

{•^)  Knox  v.  Lee,  Parker  v.  Davis  (Legal  Tender  Cases),  12  Wall.  457  ; 
Dooley  7'.  Smith,  13  Wall.  604. 


§  269.         ADOPTION    OF   A   NEW   LEGAL   TENDER.  397 

fore  by  the  same  court,  in  which,  by  a  majority  of  five 
to  three,  the  law  had  been  declared  unconstitutional  as 
to  such  contracts.  (*)  They  were  brought  about,  more- 
over, not  by  an  alteration  in  the  opinions  of  the  original 
majority,  but  by  a  change  in  the  members  of  the  court. 
One  of  the  justices  (Mr.  Justice  Grier),  who  had  con- 
curred with  the  majority,  having  resigned,  and  the  num- 
ber of  judges  in  the  court  having,  by  an  act  of  Congress, 
which  took  effect  on  the  first  Monday  of  December, 
1869,  been  increased  from  eight  to  nine,  the  two  vacan- 
cies thus  created  were  supplied  by  judges  who  united 
with  the  previous  minority  of  the  court  in  overruling,  by 
a  vote  of  five  to  four,  the  principle  of  the  former  deci- 
sion. Nevertheless,  the  later  decision  was  again  affirmed, 
and  the  constitutionality  of  the  act  finally  settled,  by  the 
case  of  Juilliard  v.  Greenman.C") 

The  result  of  making  paper  money  a  legal  tender  was 
to  establish  two  standards  of  money.  Money  of  either 
sort  was  held  to  pay  a  debt,  and  money  of  neither  sort  to 
overpay.  In  the  ordinary  case  the  debtor  being  anxious 
to  pay  the  debt  as  cheaply  as  possible  tendered  the  less 
valuable  sort  of  money.  Cases  arose,  however,  where  the 
more  valuable  was  tendered. 

In  Hancock  v.  Franklin  Ins.  Co.('')  a  pledgee  held  a 
gold  bond  as  security  for  a  debt  not  specifically  payable 
in  gold.  Having  collected  the  bond,  he  applied  a  certain 
proportion  to  his  debt,  as  though  the  debt  were  payable 
in  gold  (gold  was  at  1 74, — i.  e.,  74  per  cent,  premium). 
He  was  required  to  account  to  the  debtor,  in  an  action 
for  money  had  and  received,  only  for  the  surplus  after 
paying  the  debt  in  gold,  the  court  saying  that  gold  was 
still  legal  tender,  and  did  not  overpay  a  debt  though 

(•)  Hepburn  v.  Griswold,  8  Wall.  603.  C)  noU.  S.  421. 

(°)  114  Mass.  155. 


398  MEDIUM   OF    PAYMENT.  §  269. 

worth  more  than  paper  currency.  So  where  an  ac- 
counting party  collected  debts  in  gold  it  was  held  that 
he  might  set  it  off  by  credits,  though  they  were  not  pay- 
able in  gold-C) 

In  the  converse  case,  if  a  creditor  having  the  right  to 
demand  payment  in  gold  chose  to  demand  payment  out 
of  a  fund  of  paper  money,  it  was  held  that  he  must  take 
it  dollar  for  dollar.  C")  The  effect  of  the  legal  tender  act 
then  was  to  create  another  legal  standard  of  payment, 
and  in  the  ordinary  case  the  debtor  had  the  option  of  pay- 
ing the  debt  in  the  less  valuable  medium. 

Thus  where  a  general  deposit  was  made  in  a  bank,  it 
was  held  that  the  bank  might  pay  it  in  paper,  though  the 
paper  was  less  valuable  than  the  medium  in  which  the 
deposit  was  made ;  (")  and  so,  though  the  legal  tender 
became  more  valuable  in  comparison  with  the  money 
deposited.  C^)  So  where  gold  was  brought  into  court 
and  was  deposited  by  the  prothonotary  in  a  bank  before 
the  legal  tender  act,  it  was  held  that  on  an  order  for  the 
payment  of  the  money  to  the  claimant  after  the  act  when 
gold  was  at  a  premium  payment  might  be  made  in 
paper.  0) 

Paper  was  held  good  payment  for  a  judgment  rendered 
in  1858, Q  for  a  debt  created  by  a  loan  of  gold,(^)  or  for 
any  other  debt  contracted  while  gold  was  the  only 
standard  of  value.  C")     So  where  a  seaman  had  shipped 

(»)  Stan  wood  v.  Flagg,  98  Mass.  124. 

0  Stark  V.  Coffin,  105  Mass.  328. 

(f)  Thompson  v.  Riggs,  5  Wall.  663. 

(^)  Marine  Bank  v.  Fulton  Bank,  2  Wall.  252. 

(')  Aurentz  v.  Porter,  56  Pa.  115. 

{')  Bowen  v.  Clark,  46  Ind.  405. 

(s)  Mclnhill  v.  Odell,  62  III.  169,  overruling  Morrow  v.  Rainey,  58  111.  357. 

(•■)  Legal  Tender  Cases,  12  Wall.  457,  overruling  Hepburn  v.  Griswold,  8 
Wall.  603  ;  Belloc  v.  Davis,  38  Cal.  242  ;  Longworth  v.  Mitchell,  26  Oh. 
St.  334- 


§  270.        CONTRACT  PAYABLE  IN'  GOLD.  399 

at  St.  John,  New  Brunswick,  on  board  an  American 
ship  for  a  voyage  to  London  and  back,  he  was  held  enti- 
tled to  recover  in  the  United  States  double  the  stipulated 
wages,  gold  having  been  at  a  premium  of  one  hundred 
per  cent.  But  on  appeal  the  judgment  was  modified  by 
the  Circuit  Court  of  the  United  States  for  the  first 
circuit,  which  held  that  the  libellant  could  recover  no 
more  than  the  amount  in  dollars  and  cents  specified  in 
the  contract.  (*) 

§  270.  Contract  payable  in  gold.— There  is  nothing  in 
the  letter  or  the  spirit  of  the  legal  tender  acts  to  prevent 
a  special  contract  for  payment  oigold  money;  and  a  con- 
tract for  the  payment  of  coin  must  therefore  be  paid  in 
coin.  The  earlier  cases  did  not  recognize  this  rule.  They 
held  that  the  spirit  of  the  Legal  Tender  Act  required  all 
debts  to  be  payable  in  legal  tender  paper,  and  that  this 
could  not  be  waived  by  parties  to  a  contract ;  and  there- 
fore that  every  debt,  though  expressly  payable  in  coin, 
could  be  discharged  by  tender  of  paper. (*)  But  these 
cases  were  overruled  by  the  Supreme  Court  of  the 
United  States.  By  the  terms  of  a  mortgage,  executed 
in  1851,  the  mortgagor  agreed  "to  pay  the  sum  of  one 
thousand  five  hundred  dollars  in  gold  or  silver  coin,  law- 
ful money  of  the  United  States."  The  obligation  had 
been  held  by  the  Court  of  Appeals  of  New  York  to  be 
satisfied  by  the  tender  of  the  amount  due  in  legal  tender 
notes,  at  their  nominal  value;(°)  but  this  judgment  was 
reversed  by  the  Supreme  Court  of  the  United  States  (*) 

(»)  Trecartin  v.  The  Rochambeau,  2  Cliff.  465. 

(")  Munter  v.  Rogers,  50  Ala.  283  ;  Humphrey  v.  Clement,  44  111.  299 ; 
Brown  v.  Welch,  26  Ind.  116  ;  Troutman  v.  Cowing,  16  la.  415;  Galliano  v. 
Pierre,  18  La.  Ann.  10;  Wright  w.  Jacobs,  61  Mo.  19;  Murrayz/.  Gale,  52 
Barb.  427  ;  ShoUenberger  v.  Brinton,  52  Pa.  9 ;  Gist  v.  Alexander,  1 5  Rich.  50. 

(")  Rodes  V.  Bronson,  34  N.  Y.  649. 

C)  Bronson  v.  Rodes,  7  Wall.  229. 


400  MEDIUM    OF   PAYMENT.  §  270. 

in  a  decision  based  on  two  grounds  :  first,  that  by  the 
various  acts  of  Congress  regulating  the  currency,  a  con- 
tract, payable  in  gold  and  silver  coin,  lawful  money  of 
the  United  States,  was  equivalent  to  one  to  deliver  an 
equal  weight  of  bullion  of  the  same  fineness  as  required 
by  law  for  the  coin  ;  second,  that  as  there  were  two  kinds 
of  money  at  the  time  the  tender  was  made,  both  of  which 
were  by  law  a  legal  tender,  but  which  were,  in  actual 
value,  far  from  equivalent  to  each  other,  a  contract  stip- 
ulating for  payment  in  the  most  valuable  kind,  namely, 
gold  and  silver,  could  only  be  satisfied  by  such  a  pay- 
ment. (")  The  same  principle  was  subsequently  applied 
by  the  same  court  to  the  case  of  a  breach  of  covenant 
for  the  payment  of  rent,  contained  in  a  lease  of  certain 
premises,  in  the  city  of  Baltimore.  The  lease  was  for 
ninety-nine  years,  renewable  forever,  upon  an  "annual 
rent  of  fifteen  pounds  current  money  of  Maryland,  pay- 
able in  English  golden  guineas,  weighing  five  penny- 
weights and  six  grains,  at  thirty-five  shillings  each,  and 
other  gold  and  silver,  at  their  present  weights  and  rates 
established  by  act  of  Assembly."('')  In  the  opinion  of 
the  majority  of  the  court,  delivered  by  Chase,  C.  J.,  in 
this  case,  the  rule  as  to  the  assessment  of  damages  for  the 
breach  of  such  agreements  is  thus  declared:  "When, 
therefore,  it  appears  to  be  the  clear  intent  of  a  contract 
that  payment  or  satisfaction  shall  be  made  in  gold  and 
silver,  damages  should  be  assessed  and  judgment  ren- 
dered accordingly.  It  follows  that,  in  the  case  before  us, 
the  judgment  was  erroneously  entered.  The  damages 
should  have  been  assessed  at  the  sum  agreed  to  be  due, 

C)  Trebilcock  w.  Wilson,  12  Wall.  687;  McGoon  w.  Shirk,  54  III.  408; 
Poindexter  z/.  King,  21  La.  Ann.  697;  Governor,  Opinion  of  Court  in  Re- 
sponse to,  49  Mo.  216;  Cooke  v.  Davis,  53  N.  Y.  318;  Smith  -v.  McKinney, 
22  Oh.  St.  200 ;  Turpin  v.  Sledd,  23  Gratt.  238. 

(^)  Butler  V.  Horwitz,  7  Wall.  258. 


§  271.    FORM  OF  JUDGMENT  PAYABLE  IN  GOLD.      40I 

with  interest,  in  gold  and  silver  coin,  and  judgment 
should  have  been  entered  in  coin  for  that  amount." 

Again,  when  a  yearly  rent  of  a  specified  number  of 
ounces,  pennyweights,  and  grains  of  pure  gold,  in  coined 
money,  was  reserved  in  a  lease,  it  was  held,  by  the  same 
court,  that  judgment  for  the  breach  of  the  covenant 
should  be  "  entered  for  coined  dollars  and  parts  of  dol- 
lars instead  of  treasury  notes,  equivalent  in  market  value 
to  the  value  in  coined  money  of  the  stipulated  weight  of 
pure  gold."  (")  So  it  was  held  that  the  legal  tender  acts 
did  not  prevent  a  State  from  collecting  its  taxes  in  gold 
and  silver  coin.C*) 

In  California  and  Nevada,  accordingly,  a  law,  known 
as  the  Specific  Money  Act,  requiring  judgments  to  be 
paid  in  the  coin  or  currency  stipulated  in  the  contract, 
Avas  held  to  be  valid,  and  not  in  conflict  with  the  legal 
tender  acts.('')  Where,  however,  there  was  no  contract 
to  pay  in  coin,  but  the  defendants  had  wrongfully  sold 
to  a  third  party,  real  estate  which,  although  not  held  by 
them  as  the  court  considered  in  a  fiduciary  capacity,  yet 
equitably  belonged  to  the  plaintiff,  and  which  was  valued 
at  $5,200  gold,  it  was  held  by  the  Supreme  Court  of 
California  that  the  specific  money  act  did  not  apply.  ("*) 

§  271.  Form  of  judgment  on  a  contract  payable  in  gold. — 
A  difficulty  arose  when  the  courts  attempted  to  enforce 
payment  in  gold.  A  judgment  for  the  value  of  the  gold 
in  currency  was  objectionable  in  two  respects.     In  prac- 


(')  Dewing  v.  Sears,  1 1  Wall.  379. 

(')  Lane  County  v.  Oregon,  7  Wall.  71. 

C)  Carpentier  v.  Atherton,  25  Cal.  564 ;  Harding  w.  Cowing,  28  Cal.  212 ; 
Spencer  v.  Prindle,  28  Cal.  276;  McComb  v.  Reed,  28  Cal.  281  ;  Reese  v. 
Steams,  29  Cal.  273;  Tarpyw.  Shepherd,  30  Cal.  180;  Poett  v.  Stearns,  31 
Cal.  78 ;  Linn  v.  Minor,  4  Nev.  462 ;  Clark  v.  Nevada  L.  &  M.  Co.,  6  Nev. 
203,  overruling  Milliken  v.  Sloat,  i  Nev.  573. 

('')  Price  V.  Reeves,  38  Cal.  457. 
Vol.  1—26 


402  MEDIUM    OF    PAYMENT.  §  27  I. 

tice  it  did  not  do  justice,  for  the  value  of  paper  fluctu- 
ated to  such  an  extent  that  a  judgment  which  represented 
the  true  value  of  the  gold  at  one  time  would  not  repre- 
sent it  at  another ;  in  principle  such  a  judgment  would 
be  equally  objectionable,  since  it  allowed  the  courts  them- 
selves to  make  a  distinction  between  two  sorts  of  cur- 
rency declared  to  be  equal  by  statute-C)  This  principle 
was  neglected  in  a  few  States ;  gold  was  treated  like  any 
merchandise,  and  damages  assessed  for  failure  to  have  it 
at  the  time  appointed.  The  value  of  the  gold  at  the 
time  of  performance  of  the  contract  was  assessed  in 
paper,  and  judgment  was  given  for  that  amount. C")  The 
difficulty  was  met  elsewhere  in  another  way.  Judgment 
was  given  for  the  amount  due,  in  gold,  a  new  writ  being 
framed  for  the  purpose,  and  this  judgment  could  be  satis- 
fied only  by  payment  in  gold.(°) 

This  form  of  writ  was  used  in  California  for  the  pur- 
pose of  wholly  frustrating  the  intent  of  the  law.  In  that 
State,  owing  to  the  universal  opposition  of  the  commu- 
nity and  its  determination  not  to  abandon  a  gold  stand- 
ard, the  Legal  Tender  Act  was  never  enforced  ;  and  not- 
withstanding its  provisions,  and  the  decisions  of  the 
courts  elsewhere,  the  State  courts  allowed  damages  in 


(")  Kellogg  z/.  Sweeney,  46  N.  Y.  291. 

0=)  Baker's  Appeal,  59  Pa.  313 ;  Frank  v.  Colhoun,  59  Pa.  381  ;  ace.  Dunn 
V.  Barnes,  73  N.  C.  273 ;  Wills  v.  Allison,  4  Heisk.  385  ;  Bond  v.  Greenwald, 
4  Heisk.  453. 

(^)  The  Emily  Souder,  17  Wall.  666 ;  Chisholm  v.  Arrington,  43  Ala.  610 ; 
Bowen  v.  Darby,  14  Fla.  202  ;  Stringer  v.  Coombs,  62  Me.  160 ;  Chesapeake 
Bank  v.  Swain,  29  Md.  483 ;  Independent  Ins.  Co.  v.  Thomas,  104  Mass. 
192;  Warren  v.  Franklin  Ins.  Co.,  104  Mass.  518;  Stark  z/.  Coffin,  105  Mass. 
328 ;  Currier  v.  Davis,  iii  Mass.  480;  Whitney  v.  Thacher,  117  Mass.  523  ; 
Chrysler  v.  Renois,  43  N.  Y.  209 ;  Phillips  v.  Speyers,  49  N.  Y.  653;  Stephens 
V.  Howe,  34  N.  Y.  Super.  Ct.  133 ;  Quinn  v.  Lloyd,  i  Sweeney  253 ;  Phillips 
V.  Dugan,  21  Oh.  St.  466;  Bridges  v.  Reynolds,  40  Tex.  204;  Johnson  v. 
Stallcup,  41  Tex.  529. 


§  272.  ACTIONS  OF  TORT  FOR  THE  LOSS  OF  GOLD.  403 

ordinary  actions  to  be  computed  in  gold,  and  judgment, 
to  issue  for  gold.  The  Federal  courts,  though  not  up- 
holding the  practice,  refused  to  reverse  such  judgments 
merely  on  that  ground.  (*) 

§  272.  Actions  of  tort  for  the  loss  of  gold. — Analogous  to 
actions  upon  contracts  payable  in  gold  were  actions  of 
tort  for  the  loss  of  gold.  In  an  action  against  com- 
mon carriers  for  the  value  of  ninety  double  eagles  of  U. 
S.  coinage,  intrusted  to  them  as  common  carriers,  to 
carry  from  Acapulco  to  Newburyport,  the  measure  of 
damages  was  the  value  in  legal  tender  notes  of  the  coin 
as  a  commodity,  at  the  time  when  and  place  where  it 
should  have  been  delivered,  with  interest  on  the  amount 
from  the  date  of  the  demand. C")  But  in  an  action 
against  a  hotel-keeper  for  the  loss  of  a  bag  of  gold  coin, 
it  was  held  by  the  Court  of  Appeals  of  New  York,  mod- 
ifying the  judgment  below,(°)  that  the  judgment  should 
be  entered  in  coin,  and  not  in  its  equivalent  in  currency.C^) 

§  273.  Contract  payable  in  foreign  currency. — Where  a 
contract  is  expressly  payable  in  the  currency  of  a  foreign 
country,  since  judgment  must  be  given  in  the  currency 
of  the  forum,  the  court  does  not  estimate  the  damages  in 
the  foreign  currency ;  but  that  currency  is  treated  like 


(»)  Edmondson  v.  Hyde,  2  Sawy.  205. 

0)  Gushing  v.  Wells,  98  Mass.  550. 

(")  I  Lans.  397. 

('').  Kellogg  V.  Sweeney,  46  N.  Y.  291.  It  may  be  remarked  that  in  this 
case,  Peckham,  J.,  delivering  the  opinion  of  the  court,  observes  that  he  sees 
no  reason  for  calling  the  gold  coin  "  merchandise."  It  is,  however,  held  by 
the  Supreme  Court  of  the  United  States,  that  gold  coin,  during  the  rebellion, 
was  "an  article  of  merchandise,"  within  the  meaning  of  the  acts  of  July  13, 
1861,  and  May  20,  1862  (12  Stat,  at  Large,  255  404),  prohibiting  the  taking 
of  "  goods,  wares,  and  merchandise  to  an  insurrectionary  district,"  Gay's 
Gold,  13  Wall.  358. 


404  MEDIUM    OF   PAYMENT.  §  273. 

any  other  commodity  and  judgment  is  given  for  its  value 
at  the  time  of  performance.  (") 

In  one  or  two  cases  it  has  been  said  that  the  value  of 
the  foreign  currency  should  be  estimated  at  the  date  of 
trial,  not  at  the  date  of  performance.  C")  So  in  an  action 
on  a  note  made  by  the  defendant  in  Canada,  payable  in 
Canadian  currency,  which  at  and  continually  subsequent 
to  the  date  of  the  note  was  at  a  premium  over  the  Uni- 
ted States  currency,  it  was  held  by  the  Supreme  Court  of 
Wisconsin  that  the  premium  might  be  recovered,  and 
should  be  calculated  at  the  rate  current  at  the  date  of  the 
judgment,  which  should  be  for  a  sum  that  would  pur- 
chase Canadian  funds  to  the  amount  found  due  on  the 
note.  Any  payment  previously  made  on  the  note  should 
be  credited  at  the  rate  of  premium  current  at  the  time  of 
such  payment. (°)  But  this  theory  overlooks  the  fact 
that  the  foreign  currency  is  only  a  commodity.  The  con- 
tract is  to  deliver  this  commodity ;  if  after  breach  the 
defendant  had  tendered  the  debt  and  interest  in  foreign 
currency,  it  would  not  have  been  a  good  tender.  The 
plaintiff's  claim  has  become  one  for  damages  for  breach 
of  contract,  and  the  damages,  of  course,  are  estimated  in 
the  money  of  the  forum. 

That  the  foreign  currency  is  only  a  commodity  is 
strikingly  shown  by  a  case  in  Nova  Scotia,  where  the 
Supreme  Court  of  that  Province  held  that  United  States 
treasury  notes  were  not  a  legal  tender  for  rent  there  pay- 
able in  dollars  and  cents  of  United  States  currency. C^) 
If  the  payment  were  to  be  in  money  of  the  United  States 

(•)  Pollock  V.  Colglazure,  Sneed  (Ky.)  2  ;  Sheehan  v.  Dalrymple,  19  Mich. 
239 ;  Fabbri  v.  Kalbfleisch,  52  N.  Y.  28  ;  Colton  v.  Dunham,  2  Paige  267 ; 
Mather  v.  Kinike,  51  Pa.  425  ;  Christ  Church  Hospitals.  Fuechsel,  54  Pa.  71. 

0")  Robinson  v.  Hall,  28  How.  Pr.  342. 

(=)  Hawes  v.  Woolcock,  26  Wis.  629. 

C)  Nova  Scotia  T.  Co.  v.  American  T.  Co.,  4  Am.  Law  Reg.  (N.  S.)  365. 


§  2  74-   CONTRACT  PAYABLE  IN  A  FOREIGN  COUNTRY.   405 

the  Legal  Tender  Act  would  apply  and  the  tender  be  a 
good  one. 

§  274.  Contract  payable  in  a  foreign  country  in  currency 
of  that  country. — Where  suit  is  brought  in  one  country 
upon  a  contract  payable  in  a  foreign  country,  the  plain- 
tiff must  of  course  recover  damages  in  the  currency  of 
the  forum  litis  ;  and  he  should  recover  such  amount  as 
will  compensate  him  for  his  failure  to  get  the  foreign 
money  at  the  time  and  place  of  payment.  This,  gener- 
ally speaking,  is  the  value  of  the  foreign  money  in  do- 
mestic money,  estimated  at  time  of  payment. (") 

A  difficulty  arose  in  connection  with  the  Legal  Ten- 
der Act.  It  was  urged  on  the  one  hand  that  as  the  legal 
tender  currency  was  without  intrinsic  value,  no  equiva- 
lent in  that  currency  to  foreign  coin  could  be  furnished. 
The  value  of  the  foreign  debt,  therefore,  could  not  be 
directly  estimated  in  paper  currency,  but  must  necessarily 
be  estimated  in  gold  or  silver  dollars  or  units  of  value. 
After  being  thus  ascertained  in  dollars,  the  acts  of  Con- 
gress which  make  all  debts  payable  in  certain  paper  cur- 
rency would  become  applicable.  And  the  foreign  cred- 
itor having  an  ascertained  claim  of  a  certain  number  of 
dollars,  would  necessarily  be  compelled,  like  any  other 
creditor,  to  accept  payment  of  the  amount  in  notes  which 
are  made  by  law  a  legal  tender  for  all  debts.  This  rea- 
soning was  adopted  by  the  courts  of  Massachusetts  and 
New  York,  which  accordingly  gave  judgment  for  so  many 
dollars  as  in  gold  would  be  equal  to  the  amount  of  foreign 
money  due,  and  refused  to  add  the  premium  of  gold-C") 

(")  Marburg  v.  Marburg,  26  Md.  8 ;  Burgess  v.  Alliance  Ins.  Co.,  10  All. 
221;  Nickerson  z/.  Soesman,  98  Mass.  364;  Comstock  v.  Smith,  20  Mich. 
338 ;  Benners  v.  Clemens,  58  Pa.  24 ;  Campbell  v.  Wilson,  Berton  (N.  B.) 
265. 

O  Bush  V.  Baldrey,  1 1  All.  367  ;  Cary  v.  Courtenay,  103  Mass.  316;  Swan- 
son  V.  Cooke,  4S  Barb.  574 ;  Rice  v.  Ontario  Steamboat  Co.,  56  Barb.  384, 


4o6  MEDIUM    OF   PAYMENT.  §  274. 

This  view,  however,  does  not  conform  to  the  principle 
of  compensation.  There  never  was  a  contract  to  pay  the 
number  of  dollars  allowed  by  the  judgment.  The  suit  is 
brought  on  a  claim  for  damages  which  accrued  at  the 
breach  of  the  contract,  and  which  was  equal  to  the 
amount  which  the  plaintiff  would  have  obtained  at  the 
time  and  place  of  performance.  The  Legal  Tender  Act 
has  no  application  to  the  measure  of  damages.  As  in  an 
action  for  the  conversion  of  property,  the  judgment  must 
be  for  the  value  of  the  property  which  the  plaintiff  should 
have  had,  measured  in  the  common  money  standard. 
The  cases  first  cited  are  therefore  correct  in  principle, 
and  the  Massachusetts  and  New  York  decisions  are  er- 
roneous. 

So  where  suit  was  brought  in  Canada  to  recover  a  debt 
due  in  the  Qnited  States  before  the  Legal  Tender  Act, 
the  plaintiff  should  recover  such  amount  of  Canada 
money  as  would  be  equivalent  to  the  amount  of  the  debt 
in  gold,  that  is,  to  its  amount  at  the  time  and  place  of 
payment, C)  but  in  a  suit  on  such  a  debt  payable  after  the 
Legal  Tender  Acts  the  plaintiff  should  recover  an 
amount  equal  only  to  the  value  of  the  specified  amount 
of  paper  money  at  the  time  of  payment.^) 

It  has  been  held  that  where  a  contract  is  payable  in 
foreign  gold,  the  judgment  should  be  for  the  proper 
amount  of  gold,  as  in  the  case  of  a  contract  to  pay  gold 
in  the  United  States ;  (°)  but  the  weight  of  authority  is 
the  other  way,^)  and  it  seems  rightly.     The  common 


(■)  Massachusetts  Hospital  v.  Prov.  L.  Ins.  Co.,  25  U.  C.  Q.  B.  613 ;  Jud- 
son  V.  Griffin,  13  U.  C.  C.  P.  350;  White  v.  Baker,  15  U.  C.  C.  P.  292. 

C)  Hooker  v.  Leslie,  27  U.  C.  Q.  B.  295  ;  Crawford  v.  Beard,  14  U.  C.  C. 
P.  87. 

(f)  Stringer  v.  Coombs,  62  Me.  160. 

(0)  Marburg  v.  Marburg.  26  Md.  8 ;  Ladd  v.  Arkell.  40  N.  Y.  Super.  Ct. 
150;  Benners  v.  Clemens,  58  Pa.  24. 


§  275-  EXCHANGE.  407 

Standard  is  paper  money,  and  damages  are  estimated  in 
that  standard  unless  there  is  something  to  prevent  it. 
The  express  agreement  of  the  parties  must  be  respected, 
and  consequently  in  contracts  to  pay  gold  dollars  judg- 
ment is  given  for  the  gold.  In  the  case  under  consider- 
ation, hovi^ever,  there  is  no  contract  for  gold  dollars,  and 
no  more  reason  for  a  judgment  in  gold  than  there  w^ould 
be  in  an  action  for  the  conversion  of  a  gold  cup. 

§  275.  Exchange. — The  value  of  foreign  money  is  often 
arbitrarily  regulated  by  statute. (")     If   there  is  such  a 

(")  The  former  rule  as  to  damages  on  a  bill  of  exchange  drawn  in  this 
country  and  payable  in  England  in  pounds  sterling,  was  to  estimate  the 
pound  at  $4.44  (which  was  originally  the  valuation  for  revenue  purposes,  Act 
March  2,  1799,  ch.  22,  §  61,  i  Stat,  at  Large,  673),  adding  what  was  known 
as  the  "  rate  of  exchange  "  between  this  country  and  England  at  the  time  of 
the  trial,  with  interest.  By  an  act  of  Congress,  however,  passed  July  14, 
1832,  (4  Stat,  at  Large,  583),  the  value  of  the  pound  sterling,  in  calculating 
the  rates  of  duties,  was  fixed  at  $4.80,  and  subsequently,  for  the  purpose  of 
payments  into  the  United  States  treasury,  and  the  appraisement  of  imported 
merchandise,  it  was  made  equal  to  $4.84  (Act  July  7,  1842,  5  Stat,  at  Large, 
496).  And  by  the  second  section  of  a  statute,  entitled  "An  act  to  establish 
the  custom  house  value  of  the  sovereign  or  pound  sterling  of  Great  Britain, 
and  to  fix  the  par  of  exchange,"  approved  March  3,  1873  (17  Stat,  at  Large,. 
602),  it  is  provided  as  follows  :  That  in  all  payments  by  or  to  the  treasury, 
whether  made  here  or  in  foreign  countries,  where  it  becomes  necessary  to 
compute  the  value  of  the  sovereign  or  pound  sterling,  it  shall  be  deemed  equal 
to  four  dollars  eighty-six  cents  and  six  and  one-half  mills,  and  the  same 
rule  shall  be  applied  in  appraising  merchandise  imported,  where  the  value 
is,  by  the  invoice,  in  sovereigns  or  pounds  sterling,  and  in  the  construction 
of  contracts  payable  in  sovereigns  or  pounds  sterling ;  and  this  valuation  shall 
be  the  par  of  exchange  between  Great  Britain  and  the  United  States ;  and 
all  contracts  made  after  the  first  day  of  January,  eighteen  hundred  and 
seventy-four,  based  on  an  assumed  par  of  exchange  with  Great  Britain  of  fifty- 
four  pence  to  the  dollar,  or  four  dollars  forty-four  and  four-ninths  cents  to  the 
sovereign  or  pound  sterling,  shall  be  null  and  void.  At  the  time  of  the  pass- 
age of  this  act  (which,  it  will  be  observed,  is  much  broader  in  its  scope  than 
its  predecessors),  the  English  sovereign,  owing  to  the  changes  in  the  value 
of  the  precious  metals,  had  come  to  be  worth  a  little  over  $4.86  in  gold  coin. 
To  correct  the  error  caused  in  our  accounts  with  Great  Britain,  by  the  differ- 
ence between  the  actual  value  and  the  legal  value  of  $4.44,  about  nine  and  a 
half  per  cent.,  under  the  name  of  "  exchange,"  was  added  to  the  legal  value. 
By  the  act  in  question,  this  element  of  confusion  is  eliminated. 


408  MEDIUM    OF   PAYMENT.  §  276. 

Statute,  however,  it  gives  the  value  of  the  foreign  money 
not  in  the  foreign  country,  but  in  the  domestic  forum. 
And  proof  of  the  actual  value  of  the  foreign  money, 
based  on  comparative  weight  of  the  standards  of  value, 
also  gives  the  value  of  the  foreign  currency  in  the  do- 
mestic forum.  But  recovery  should  be  had  for  the  value 
of  the  foreign  currency  at  the  place  of  payment.  This 
value  is  obtained  by  adding  to  or  subtracting  from  the 
real  or  statutory  value,  as  the  case  may  be,  the  rate  of 
exchange.  On  this  question  authorities  differ.  The 
better  opinion  is  that  the  rate  of  exchange  should  be  in- 
cluded in  the  recovery.(*)  In  New  York  and  Massa- 
chusetts, however,  it  has  been  distinctly  held  that  the 
debt  is  to  be  paid  according  to  the  par  and  not  the  rate 
of  exchange,  and  that  the  creditor  is  not  entitled  to  any 
allowance  on  account  of  the  difference  of  exchange 
between  the  country  where  the  suit  is  brought  and  the 
country  where  the  debt  was  payable  ;(**)  and  that  in  an 
action  here  on  a  contract  to  pay  money  in  another  country 
(not  a  bill  of  exchange),  no  exchange  can  be  recovered, 
although  there  were  no  tribunals  in  that  country  in 
which  the  plaintiff  could  sue.('') 

§  276.  Contract  payable  in  mercantile  securities. — Where 
payment  is  to  be  made  in  notes  which  are  not  money, 
the  notes  are  mere  commodities ;  the  contract  becomes 


(»)  Story,  Confl.  Laws,  §§  308,  312;  Story,  Notes,  §  396;  3  Kent  Com. 
116  n.;  Ekins  v.  East  India  Co.,  i  P.  Wms.  395;  Cash  v.  Kennion,' 
II  Ves.  314;  Scott  V.  Bevan,  2  B.  &  A.  78;  Delegal  v.  Naylor,  7  Bing.  460; 
Lanusse  v.  Barker,  3  Wheat.  loi,  147  ;  WoodhuU  v.  Wagner,  i  Bald.  296, 
302;  Grant  v.  Healey,  3  Sumner  523;  Smith  v.  Shaw,  2  Wash.  C.  C.  167, 
168 ;  Cropper  v.  Nelson,  3  Wash.  C.  C.  125  ;  Jelison  v.  Lee,  3  W.  &  M.  368 ; 
Hargrave  v.  Creighton,  i  Woods  489 ;  Lee  v.  Wilcocks,  5  S.  &  R.  48. 

C")  Adams  v.  Cordis,  8  Pick.  260;  Gary  z/.  Courtenay,  103  Mass.  316;  Mar- 
tin V.  Franklin,  4  Johns.  124;  Scofield  f.  Day,  20  Johns.  102;  Guiteman  z'. 
Davis,  45  Barb.  576  n. ;  Ladd  v.  Arkell,  40  N.  Y.  Super.  Ct.  1 50. 

O  Lodge  V.  Spooner,  8  Gray  166 ;  Hussey  v.  Farlow,  9  All.  263. 


§  276.  CONTRACT  PAYABLE  IN  MERCANTILE  SECURITIES.  409 

one  for  the  delivery  of  chattels,  and  upon  breach  of  it 
the  measure  of  damages  is  the  value  of  the  notes  at  the 
time  of  the  breach.  So  where  a  contract  was  payable  in 
"  solvent  notes  and  accounts  of  other  men,"  the  measure 
of  damages  was  not  the  amount  to  be  paid,  but  the  value 
in  money  of  that  amount  of  "  solvent  notes  of  other 
men-''^)  Where  a  note  was  payable  in  railroad  stock, 
the  measure  of  damages  was  the  market  value  of  the 
stock  at  the  time  of  paymentC*)  Under  a  written  con- 
tract, by  which  the  defendant  undertook  to  deliver  the 
plaintiff  two  notes  "on"  certain  named  persons,  or  if  he 
failed  to  do  so,  "  to  make  satisfaction"  within  four  weeks, 
it  was  held  that  the  measure  of  damages  was  the  value  of 
the  designated  notes,  and  that  the  burden  of  proof  of 
their  value  was  on  the  plaintiif,  as  an  essential  ingredient 
in  his  case.(°)  So  in  Kentucky,  the  measure  of  damages 
for  breach  of  an  obligation  to  pay  in  cash  notes  is  the 
value  of  the  notes.(*)  In  a  suit  in  Indiana,  for  non- 
delivery of  notes  under  an  agreement  to  pay  $900  in 
cash  notes  on  "  good  solvent "  men,  it  was  held  that  the 
measure  of  damages  was  not  the  sum  named,  but  the 
value  of  the  notes  to  be  found  by  a  jury.(®)  The  rule 
adopted,  we  think,  was  right,  and  not  the  less  so  that 
what  is  called  "  solvency"  in  Indiana,  as  it  certainly  often 
is  elsewhere,  would  seem,  in  the  judicial  apprehension,  to 
have  been  a  thing  of  uncertain  value.  So,  in  the  same 
State,  in  a  suit  on  a  note  payable  in  "good  judgments 
on  good  men,"  the  value  of  the  judgments  is  held  the 
measure  of  damages.  (') 

(»)  Williams  v.  Sims,  22  Ala.  512. 

O")  Parks  V.  Marshall,  lo  Ind.  20  ;  Jdnesz/.  Chamberlain,  30  Vt.  196. 

(■=)  Moore  v.  Fleming,  34  Ala.  491. 

(0)  Marr  v.  Prather,  3  Met.  (Ky.)  196. 

(»^  Williams  v.  Jones,  12  Ind.  561. 

(f)  Pierce  v.  Spader,  13  Ind.  458. 


4IO  MEDIUM    OF   PAYMENT.  §  277. 

If,  however,  the  payment  stipulated  for  is  a  note  or 
other  obligation  of  the  defendant  himself,  it  is  to  be 
estimated  at  par  and  not  at  its  actual  value. (*)  Thus  in 
an  action  brought  by  a  railroad  company  on  a  note,  the 
defendant  pleaded  in  set-off  an  obligation  of  the  plaintiff 
company  to  deliver  him  a  certain  amount  in  its  bonds. 
It  was  held  that  the  set-off  should  be  allowed  for  the 
par  value  of  the  bonds,  though  at  the  time  of  payment 
their  market  value  was  less.  C*)  This  must  be  rested  on 
grounds  of  estoppel. 

§  277.  Alternative  medium. — The  rule  of  the  least  bene- 
ficial alternative  which  we  consider  elsewhere,  is  also 
found  here.  Thus  in  Tennessee,'  it  has  been  decided 
that  the  measure  of  damages  for  breach  of  a  covenant  to 
pay  a  given  sum  in  a  particular  species  of  paper,  as 
Tennessee,  Alabama,  or  Mississippi  bank  notes,  is  the 
specie  value  of  such  notes,  according  as  it  would  be  for 
the  interest  of  the  covenantor  to  discharge  the  obliga- 
tion ;  the  court  saying  : 

"  Manifestly,  on  the  day  the  payment  was  to  be  made,  the 
covenantor  might  have  discharged  himself  by  the  payment  of 
one  hundred  dollars,  in  paper  of  either  description  mentioned  in 
the  covenant ;  of  course  he  might  have  selected  the  least  valuable 
bank  notes  mentioned.  If  he  failed  to  pay,  and  broke  his 
covenant,  what  injury  did  the  covenantee  sustain  thereby  ? 
Certainly,  only  the  value  in  money  of  the  article  in  which  pay- 
ment might  have  been  made.  As  the  measure  of  damages  in 
covenant  consists  in  the  value  to  the  covenantee  of  the  thing 
agreed  to  be  performed  at  the  time  of  the  breach,  the  damages 
in  this  case  must  be  the  specie  value  of  such  notes,  in  which 
payment  might  have  been  made,  and  in  which  it  would  have 
been  most  to  the  interest  of  the  covenantor  to  have  paid." 
'  Hixon  w.  Hixon,  7  Humph.  33. 

(»)  Savannah  &  C.  R.R.  Co.  v.  Callahan,  56  Ga.  331  ;  Dunsworth  v. 
Wood  M.  Co.,  29  111.  App.  23;  Worthy  7/.  Jones,  11  Gray  168;  Texas  W. 
Ry.  Co.  V.  Gentry,  69  Tex.  625. 

0)  Memphis  &  L.  R.  R.R.  Co.  v.  Walker,  2  Head.  467. 


§  278.  CONFEDERATE    MONEY.  4 1  I 

§  278.  Confederate  money.— It  seems  that  the  cases  in- 
volving payment  of  Confederate  money  must  be  rested 
on  the  same  principle  with  those  involving  payment  in 
mercantile  securities.  That  money  consists  simply  of 
the  notes  of  an  illegal  but  de  facto  corporation;  contracts 
to  pay  such  currency  were  not  invalid, (")  and  payments 
received  in  such  notes  by  an  agent  were  good,  and  bound 
the  principal.  (")  Confederate  notes,  then,  were  recog- 
nized for  this  purpose  as  the  notes  of  a  de  facto  corpora- 
tion. It  would  therefore  seem  on  principle  that  the  meas- 
ure of  damages  for  a  failure  to  pay  such  notes  would  be 
the  value  of  the  notes  at  the  time  of  payment ;  to  be  ob- 
tained by  estimating  the  value  in  gold  (the  common 
standard),  and  then  reducing  the  gold  to  legal  tender 
paper.  (°) 

There  is  a  seeming  hardship  in  this  case,  for  the  notes 
came  finally  to  be  valueless ;  and  plaintiffs  might  there- 
fore be  utterly  without  remedy,  This  on  reflection  will 
appear  to  be  a  risk  taken  by  the  plaintiff,  who  made  a 
contract  to  receive  such  notes  in  the  future  with  full 


(»)  Thorington  v.  Smith,  8  Wall,  i ;  Confederate  Note  Case,  19  Wall.  548. 
But  see  Hanauer  v.  Woodruff,  15  Wall.  439;  Leach  v.  Smith,  25  Arl:.  246. 
In  Green  v.  Sizer,  40  Miss.  530,  the  doctrine  is  adhered  to  in  that  State,  and 
applied  to  the  case  of  a  deposit  with  a  banker  during  the  late  civil  war,  of 
Confederate  treasury  notes,  Mississippi  cotton  notes,  and  Mississippi  military 
treasury  notes  ;  the  validity  of  which  obligations,  although  issued  by  author- 
ity of  the  insurgent  government,  is  maintained  on  the  ground  that  this  gov- 
ernment existed  de  facto  before  the  notes  were  issued,  and  that  at  the  time  of 
the  deposit  they  passed  from  hand  to  hand  as  representatives  of  value. 

C")  Robinson  v.  International  L.  I.  Soc,  52  Barb.  450;  Baird  v.  Hall,  67  N. 
C.  230;  Rodgers  v.  Bass,  46  Tex.  505.  But  contra,  Mangum  »>.  Ball,  43 
Miss.  288.  A  mere  promise  to  pay  money,  if  made  in  those  States  during 
the  existence  of  the  Confederacy,  would  usually  be  found  to  have  been  in- 
tended as  a  promise  to  pay  such  currency,  but  not  always.  See  Confederate 
Note  Case,  19  Wall.  548. 

(»)  Keppel  V.  Petersburg  R.R.  Co.,  Chase's  Dec.  167 ;  Powe  v.  Powe,  42 
Ala.  113  ;  Bowers  v.  Thomas,  6  Heisk.  553  ;  Moore  v.  Gooch,  6  Heisk.  104. 


412  MEDIUM    OF    PAYMENT.  §  278. 

knowledge  that  their  value  depended  on  the  success  of 
the  Confederacy.  But  the  apparent  hardship  of  the  case 
has  so  forcibly  appealed  to  the  courts  that  they  have 
modified  what  seems  to  be  the  true  principle.  Thus  in 
some  cases  the  value  of  the  consideration  was  held  to  be 
the  measure  of  damages.  (")  The  prevailing  view,  how- 
ever, which  was  finally  adopted  by  the  Supreme  Court 
of  the  United  States,  is  that  the  measure  of  damages  is 
the  value  of  the  currency  at  the  time  of  entering  into  the 
contract.  (") 

There  was  much  dispute  as  to  whether  the  value  of  the 
Confederate  currency  should  be  estimated  by  the  value  of 
the  currency  in  United  States  notes,  in  gold  or  by  its 
purchasing  power.  The  legislatures  of  many  of  the 
Southern  States  passed  scaling  acts,  as  they  are  called, 
by  which  the  currency  received  an  arbitrary  valuation, 
and  those  acts  must  be  examined.  There  is  a  qucere  as 
to  their  constitutionality  in  The  Confederate  Note 
Case.(°)  In  Thorington  v.  Smith  C)  the  value  was  taken 
in  lawful  money  of  the  United  States.  In  Wilmington 
&  W.  R.R.  Co.  V.  King  (°)  this  question  would  appear 
to  have  been  finally  settled.  The  defendants  had  con- 
tracted to  pay  for  wood  at  a  dollar  per  cord,  in  Confeder- 


(»)  Whitley  v.  Moseley,  46  Ala.  480 ;  Wharton  v.  Cunningham,  46  Ala. 
590 ;  Thompson  v.  Bohannon,  38  Tex.  241  ;  Shearon  v.  Henderson,  38  Tex. 
245  ;  Moore  v.  Harnsberger,  26  Gratt.  667. 

(")  Thorington  v.  Smith,  8  Wall,  i ;  Stewart  v.  Salamon,  94  U.  S.  434 ; 
Effinger  v.  Kenney,  115  U.  8.  566;  Kirtland  v.  Molton,  41  Ala.  548;  Toulmin 
V.  Sager,  42  Ala.  127  ;  Marshall  v.  Marshall,  42  Ala.  149;  Herbert  v.  Easton, 
43  Ala.  547  ;  Whitfield  v.  Riddle,  52  Ala.  467  ;  Barclay  v.  Russ,  HFla.  372; 
Fleming?/.  Robertson,  3  S.  C.  118;  Short  v.  Abernathy,  42  Tex.  94;  Fultzz/. 
Davis,  26  Gratt.  903  ;  Brightwell  v.  Hoover,  7  W.  Va.  342  ;  Bieme  v.  Brown, 
10  W.  Va.  748. 

(«)  19  Wall.  548. 

C)  8  Wall.  I. 

C)  91  U.  S.  3. 


§  2  79>      TO  PAY  IN  A  MEDIUM  OTHER  THAN  MONEY.  413 

ate  currency.  It  was  held  that  the  purchasing  power  of 
specie,  which  that  currency  had,  was  the  amount  to  be 
recovered,  and  that  it  was  not  proper  to  instruct  the  jury 
that  the  plaintiff  could  recover  the  value  of  the  wood 
without  reference  to  the  value  of  the  currency.  It  was 
further  held  that  an  act  of  North  Carolina,  which  allowed 
the  jury  to  look  to  the  consideration  of  the  contract  in 
such  cases,  was  unconstitutional.  Bradley,  J.,  dissented, 
on  the  ground  that  specie  was  not  a  proper  standard,  for 
there  was  no  specie  in  the  country ;  that  the  proper 
standard  was  the  purchasing  power  of  the  currency,  and 
that  the  value  of  the  wood  was  good  evidence  of  the 
purchasing  power. 

A  special  deposit  of  Confederate  notes  could  be  dis- 
charged by  the  same  notes,  though  they  had  at  the  time 
of  demand  little  or  no  value  ;(*)  and  so  in  case  of  refusal 
to  return  such  a  deposit  the  measure  of  damages  was 
held  to  be,  not  the  value  of  the  notes  at  the  time  they 
were  given,  but  the  value  at  the  time  of  the  demand-^") 

§  279.  Agreements  to  pay  in  a  medium  other  than 
money. — Agreements  are  frequently  made  to  pay  the 
amount  of  a  claim  in  articles  other  than  currency.  Pay- 
ment in  this  medium  may  become  more  profitable  to  the 
debtor;  sometimes  it  may  become  more  onerous.  Ques- 
tions arise  similar  to  those  already  referred  to,  the  debtor 
desiring  to  pay  in  the  less  valuable  medium,  the  creditor 
demanding  payment  in  that  which  is  more  valuable. 
Two  different  rules  have  been  adopted  by  the  various 
courts.  On  principle,  it  would  seem  that  ordinarily  the 
creditor  should  recover  compensation  by  the  failure  of 
the  debtor  to  pay  in  the  specified  medium  at  the  time 
appointed  ;  that  is,  he  should  recover  the  market  value 

(»)  Turner  7/.  Beall,  22  La.  Ann.  490;  Richardson  v.  Futrell,  42  Miss.  525. 
C)  Planters'  Bank  v.  Union  Bank,  16  Wall.  483. 


414  MEDIUM    OF   PAYMENT.  §  280. 

of  the  articles  he  would  have  received,  whether  that 
value  turn  out  to  be  a  loss  or  a  gain  to  him.  This  is  the 
rule  generally  followed.  On  the  other  hand,  it  is  said 
that  such  a  contract  merely  gives  the  debtor  an  election 
to  pay  in  the  specified  medium,  instead  of  in  currency, 
and  if  he  neglects  to  avail  himself  of  the  option  at  the 
time  appointed,  he  must  pay  the  sum  of  the  claim  in 
current  money.  While  this  rule  may  in  some  cases  be 
consistent  with  the  terras  of  the  so-called  note  or  other 
contract,  it  certainly  imports  into  the  usual  agreement  an 
option  which  the  terras  do  not  justify  ;  and  it  fails  to  ob- 
serve the  principle  of  corapensation  in  not  giving  to  the 
creditor  compensation  for  the  precise  loss  which  he 
suffered  by  not  receiving  the  promised  articles  on  the 
day  set  for  payment. 

§  280.  Cases  allowing  recovery  of  the  stipulated  amount 
in  money. — The  second  rule  was  at  first  adopted  in  New 
York.  In  an  early  case  notes  were  given  in  this  form : 
"  I  promise  to  pay  seventy-nine  dollars  and  fifty  cents, 
on  the  first  day  of  January,  in  salt,  at  fourteen  shillings 
per  barrel."  The  Supreme  Court  held  this  to  be  a 
contract  for  the  delivery  of  salt,  and  that  the  value  of  the 
salt  was  the  true  measure  of  damages ;  thus,  45  barrels 
and  3-7th  of  a  barrel  would  have  discharged  the  note,  at 
14  shillings  a  barrel;  and  so,  if  salt  had  been  only  a 
dollar  per  barrel,  at  the  time  specified  for  payment  or  de- 
livery, the  same  quantity  would  discharge  the  note  ;  the 
value,  then,  of  45  barrels  and  3-7ths  of  a  barrel  was  the 
rule  of  damages.  The  Court  of  Errors,  however,  held 
the  instrument  not  to  be  a  contract  for  the  delivery  of 
salt  at  all  events,  but  intended  to  give  the  party  his  elec- 
tion to  pay  the  sum  expressed  in  money,  or  in  salt ;  and 
that  as  the  defendant  had  neglected  to  avail  himself  of 
the  privilege  of  paying  the  specific  article,  the  payment 


§   28o.        CASES    ALLOWING    RECOVERY    IN    MONEY,  4I5 

of  the  principal  debt  and  interest  must  give  the  true 
measure  of  damages ;  and  the  judgment  of  the  court  was 
reversed.'  So  in  Connecticut,  in  a  suit  on  a  promissory 
note  to  pay  "  two  hundred  and  fifty  dollars  in  brown  cot- 
ton shirting  at  the  rate  of  thirty  cents  a  yard,"  the  de- 
fendant offered  to  prove  that  the  shirting  at  the  time  and 
place  fixed  for  payment,  was  worth  only  twenty  cents  a 
yard.  But  the  evidence  was  excluded  ;  the  court  holding 
that  the  instrument  was  an  acknowledgment  of  a  debt 
for  the  sum  named,  with  an  option  to  pay  it  in  a  certain 
way,  which  option  the  defendant  had  failed  to  take  ad- 
vantage of;  and  that  consequently  the  promise  was  to  be 
regarded  as  a  naked  agreement  to  pay  the  money.' 

In  Vermont,  it  has  been  said,  "that  in  that  State,  by 
an  uninterrupted  series  of  decisions,  notes  payable  in 
specific  articles  of  property,  after  the  time  of  payment 
has  elapsed,  seem  to  stand  much  in  the  same  condition 
as  notes  payable  in  money,  except  in  their  lack  of  nego- 
tiability"; and  the  plaintiff  was  held  entitled  to  recover 
under  the  money  counts.'  So  in  Ohio,  the  measure  of 
damages  for  the  violation  of  an  agreement  to  pay  $1,500 
in  wool,  at  20  cents  per  pound,  is  fifteen  hundred  dol- 
lars, and  not  the  market  value  of  the  wool.(^)  And  the 
same  rule  has  been  adopted  in  Texas  (")  and  Califor- 
nia.C) 

Where  one  agreed  to  pay  forty  dollars  (a  year's  rent) 
in  specific  articles,  at  prices  and  in  quantities  specified,  it 
was  held,  that  if  the  tenant  tendered  the  articles  when 
due,  the  landlord  must  receive  them,  not  at  their  cash 
value,  but  the  stipulated  price ;  and  if  he  did  not  tender 

>  Gleason   v.    Pinney,  5  Cow.  152  ;        '  Brooks  v.  Hubbard,  3  Conn.  58. 
5  Wend.  393  ;  Clark  v.  Pinney,  7  Cow.         *  Perry  v.  Smith,  22  Vt.  301. 
681. 

(»)  Trowbridge  v.  Holcomb,  4  Oh.  St.  38. 

C)  Short  V.  Abernathy,  42  Tex.  94. 

(=)  Cummings  v.  Dudley,  60  Cal.  383. 


4l6  MEDIUM    OF    PAYMENT.  §281. 

them,  the  landlord  could  not  recover  them,  but  must 
take  the  forty  dollars  which  was  held  to  be  liquidated 
damages  on  the  tenant's  failure  to  perform.  (") 

§  281.  Cases  allowing  recovery  of  the  value  of  the  com- 
modity.— In  South  Carolina  the  true  rule  has  been  fol- 
lowed from  the  beginning.  Thus,  a  note  "  to  deliver  to 
the  plaintiff  or  order,  such  number  of  barrels  of  new  rice 
as  will  amount  to  the  sum  of  two  hundred  dollars,  value 
received  this  day,  at  one  dollar  per  cwt.,"  was  held  to  be 
clearly  a  contract  for  the  delivery  of  rice ;  and  the  meas- 
ure of  damages  was  held  to  be  the  value  of  the  rice  at 
the  time  it  was  to  be  delivered,  which  exceeded  consid- 
erably the  value  fixed  by  the  note.'  In  New  Hamp- 
shire, too,  the  doctrine  is  maintained  in  relation  to  notes 
payable  in  specific  articles,  that  after  the  time  of  pay- 
ment has  elapsed,  the  obligation  of  the  maker  is  not  a 
mere  duty  to  pay  money,  but  a  liability  in  damages  for 
the  non-fulfilment  of  his  contract.'  In  Tennessee,  on  an 
agreement  to  pay  $125  in  potash  at  $5  per  hundred  in 
ninety  days,  the  measure  of  damages  was  held  to  be  the 
value  of  the  potash  at  the  time  and  place  of  payment.  (*) 
In  Massachusetts,  on  a  contract  to  pay  $1,000  in  paper- 
hangings  at  the  "regular  trade  price,"  the  measure  of 
damages  was  held  to  be  the  market  value,  at  the  time 
and  place  of  payment,  of  the  amount  of  paper-hang- 
ings of  which  the  regular  trade  price  at  that  time  was 
$  1,000.  (°)  The  same  rule  is  generally  followed  else- 
where. (*) 

'  Price  V.  Justrobe,  Harper  ill.  -  Wilson  v.  George,  lo  N.  H.  445. 

(*)  Haywood  -v.  Heywood,  42  Me.  229. 

0")  McDonald  v.  Hodge,  5  Hayw.  (Tenn.)  85. 

(")  Meserve  v.  Ammidon,  109  Mass.  415. 

(■*)  Rose  V.  Bozeman,  41  Ala.  678 ;  Davenport  v.  Wells,  I  la.  598 ;  Cole 
V.  Ross,  9  B.  Mon.  393  ;  Lyles  v.  Lyles,  6  H.  &  J.  273  ;  Noonan  v.  Ilsley,  17 
Wis.  314. 


CHAPTER  X. 


INTEREST. 


282.  What  interest  is. 

283.  Origin  of  the  allowance  of  in- 

terest. 

284.  English  law — Rule  laid  down 

by  Lord  Mansfield. 

285.  Time  of  payment  indefinite. 

286.  Fraud. 

287.  Mercantile  securities. 

288.  Contract  express  or  implied. 

289.  Interest    by    statute — Discre- 

tionary power  of  jury. 

290.  By  way  of  damages  for  deten- 

tion of  money. 

291.  Result  of  English  cases. 

292.  Difference     between    English 

and  American  law. 

293.  Interest     as    damages  —  Fre- 

quently regulated  by  statute. 

294.  Money  vexatiously  withheld — 

Statutory  rule. 

295.  Allowance  and  amount  of  in- 

terest formerly  matter  for  the 
jury. 

296.  Now  usually  a  question  of  law. 

297.  Gradual  extension  of  principles 

allowing  interest  as  matter 
of  law. 

298.  Interest  by  custom. 

299.  Liquidated    and    unliquidated 

demands. 

300.  Unsatisfactory  character  of  the 

test. 

301.  Liquidated  deinands — General 

rule. 

302.  Time  for  which  interest  runs. 

303.  Money  illegally    acquired    or 

used. 

304.  Money  paid  out  for  the  defend- 

ant. 

Vol.  I. — 27 


305.  Money  had  and  received  by  the 

defendant. 

306.  Money  received  or  retained  by 

mutual  mistake. 

307.  Rent — Distraint. 

308.  Price  of  property  or  work  fixed 

— Sales — Action  for  price. 

309.  Demand  prevented  by  defend- 

ant's act. 

310.  Simple  running  account. 

311.  Balance  of  a  mutual  account. 

312.  Unliquidated  demands. 

313.  New  York  rule. 

314.  Abatement  of  claim — Recoup- 

ment. 

315.  General  conclusion. 

316.  Value  of  property  destroyed  or 

converted. 

317.  Property  destroyed   by  negli- 

gence. 

318.  Property  taken  by  eminent  do- 

main. 

319.  Failure  to  deliver  goods. 

320.  Interest  in  actions  of  tort. 

321.  Discretion  of  jury  still  exists  in 

some  cases. 

322.  The  rule  in  Pennsylvania. 

323.  In  Massachusetts. 

324..  In  the  Supreme  Court  of  the 
United  States. 

325.  Interest  on    overdue   paper — 

contract  and  statute  rate. 

326.  Conflict  of  authority. 

327.  General  conclusions. 

328.  Expressed    intention    always 

governs. 

329.  Rules  in  the  Supreme  Court  of 

the  United  States. 

(417) 


4i8 


INTEREST. 


§   282. 


330.  Conflict  of  decision  in  Indiana. 

331.  Stipulation   for  a   higher  rate 

after  maturity. 

332.  Interest  on  taxes. 

333.  On  fines  and  penalties. 

334.  On  judgments. 

335.  Between  verdict  and  judgment. 

336.  In  error. 

337.  Municipal    corporations — The 

State. 

338.  Interest  after  payment  of  the 

principal. 


§  339.  Rate  of  interest. 

340.  What  will  relieve  a  defendant 

from  interest. 

341.  Interest  not  affected  by  intent. 

342.  Conflict  of  laws. 

343.  Compound  interest  not  origi- 

nally allowed. 

344.  Except  by  mercantile  custom, 

or  for  fraud. 

345.  Interest  on  arrears  of  stipulated 

interest. 

346.  Interest  in  admiralty. 


§  282.  What  interest  is. — Interest  is  the  value  of  the 
use  of  money  :  the  amount  of  compensation  for  with- 
holding money. (*)  It  bears  the  same  relation  to  money 
that  rent  does  to  land,  wages  to  labor,  and  hire  to  a  chat- 
tel. It  may  be  secured  by  an  agreement,  or  it  may  be 
allowed  as  damages :  in  the  former  case  the  rate  is  usu- 
ally stipulated  in  the  agreement,  in  the  latter  it  is  usually 
fixed  by  legislation.  It  is  not  necessary,  however,  that 
the  amount  should  be  fixed  by  statute  :  for  in  the  ab- 
sence of  a  statute  rate,  the  court  will  admit  proof  of  the 
current  rate,  and  will  allow  interest  as  damages  at  that 
rate.C) 

Where  interest  is  secured  by  an  agreement  it  is  given 
by  the  court,  not  by  way  of  damages,  but  as  a  substantive 
part  of  the  debt ;  (°)  the  consideration  of  this  branch  of 
the  subject,  therefore,  does  not  come  within  the  scope  of 
this  treatise.  But  in  all  cases  where  damages  are  claimed 
for  the  wrongful  detention  of  money  the  allowance  of 
interest  is  governed  by  the  law  of  compensation,  and, 
therefore,  will  be  treated  her?  :  for  a  full  understanding 
of  the  rules  which  govern  the  allowance  of  interest  as 


(•)  Loudon  V.  Taxing  District,  104  U.  S.  771  ;  Minard  v.  Beans,  64  Pa. 


411. 


0")  Davis  V.  Greely,  i  Cal.  422 ;  Perry  v.  Taylor,  I  Utah  63. 
(=)  Hummel  v.  Brown,  24  Pa.  310. 


^§  283,  284.  ENGLISH    LAW.  419 

damages,  however,  it  will  be  necessary  also  to  consider 
some  cases  where  interest  is  allowed  on  a  contract  to  pay- 
it.  The  English  courts  are  less  liberal  in  the  allowance 
of  interest  than  the  American ;  and  it  would  be  confus- 
ing to  consider  the  English  and  American  cases  together. 
The  English  law  will  therefore  first  be  considered. 

§  283.  Origin  of  the  allowance  of  interest. — *Interest  was 
originally  introduced  into  English  jurisprudence  by  stat- 
utory provision.  "  Before  the  statute  of  Henry  VIII.,"' 
says  Lord  Mansfield,'  "  all  interest  on  money  lent  was 
prohibited  by  the  common'  law,  as  it  is  now  in  Roman 
Catholic  countries."'  This  statute  provided  that  none 
should  take  for  any  loan  or  commodity  above  the  rate 
of  ten  pounds  for  one  hundred  pounds  for  one  whole 
year,  which  rate  was  reduced'  to  five  per  cent,  by  a  sub- 
sequent act.'  ** 

§  284.  English  law — Rule  laid  down  by  Lord  Mansfield. — 
"^Where  a  principal  sum  is  to  be  paid  at  a  specific  time, 
the  English  law  was  held  by  Lord  Mansfield  to  imply 
an  agreement  to  make  good  the  loss  arising  from  a  de- 
fault, by  the  payment  of  interest.  Thus  he  expressly 
said,'  in  an  early  case  : 

"  'Where  money  is  made  payable  by  an  agreement  between 
parties,  and  a  time  given  for  the  payment  of  it,  this  is  a  contract 
to  pay  the  money  at  the  given  time,  and  to  pay  interest  for  it  from  the 
given  day  in  case  of  failure  of  payment  at  that  day.  So  that  the  ac- 
tion is,  in  effect,  brought  to  obtain  a  specific  performance  of  this 
contract.  For  pecuniary  damages  upon  a  contract  for  the 
payment  of  money,  are,  from  the  nature  of  the  thing,  a  specific 
performance,  and  the  relief  is  defective  so  far  as  all  the  money 
is  not  paid." 

'  37  Hen.  VIII.,  c.  9.  senting    opinion    in   the  Rens.    Glass 

'  In  Lowe  :v.  Waller,  Douglass,  736,  Factory  v.    Reid,  5  Cowen,  587,  604, 

740.  hereafter  cited. 

'  This  conclusion,  notwithstanding  a  *  12  Anne,  stat.  2,  c.  i6. 

contrary  dictum  of  Lord  Hale  (Anon.  '  Robinson  v.  Bland,  2  Burr.  1077, 

Hard.   Rep.  420),  is  arrived  at  by  Mr.  1086  (1760). 

Senator  Spencer,  in  his  very  able  dis- 


420  INTEREST.  §§  285,   286. 

And  Lord  Thurlow  said,'  "All  contracts  to  pay  un- 
doubtedly give  a  right  to  interest  from  the  time  when 
the  principal  ought  to  be  paid."  This  language  has  been 
cited  with  approbation  in  this  country,"  though,  as  we 
shall  see,  it  has  not  been  followed  in  England.** 

§  285.  Time  of  payment  indefinite.— *On  the  other  hand, 
where  money  is  due,  without  any  definite  time  of  pay- 
ment, and  there  is  no  contract,  express  or  implied,  that 
interest  shall  be  paid,  the  English  rule,  independent 
of  statute,  has  always  been,  that  it  cannot  be  claimed. 
In  the  Common  Pleas,"  it  was  early  said,  that  in  an  ac- 
tion for  money  had  and  received,  the  plaintiff  could  re- 
cover nothing  but  the  net  sum  without  interest.  In  the 
King's  Bench,*  Lord  EUenborough  said  :  "  Lord  Mans- 
field sat  here  for  upwards  of  thirty  years.  Lord  Kenyon 
for  above  thirteen  years,  and  I  have  now  sat  here  for 
more  than  nine  years ;  and  during  this  long  course  of 
time,  no  case  has  occurred,  where,  upon  a  mere  simple 
contract  of  lending,  without  an  agreement  for  payment 
of  the  principal  at  a  certain  time,  or  for  interest  to  run 
immediately,  or  under  special  circumstances  from  whence 
a  contract  for  interest  was  to  be  inferred,  interest  has 
ever  been  given."  The  interest  here  claimed  was  on 
money  lent."  ** 

§  286.  English  law— Fraud. — *The  rule  here  laid  down 
has  been,  as  we  shall  see,  a  good  deal  modified  in  this 
country ;  but  the  English  courts  have  adhered  to  the 
doctrine  with  considerable  rigor.  Thus  they  have  re- 
fused interest  where  property  has  been  unjustly  detained, 
or  payment  improperly  refused,  even  in  cases  of  fraud  ; 

'  Boddam  v.  Riley,  2  Bro.  C.  C.  2.  ■*  Calton  v.  Bragg,  15  East  223. 

'  Williams  v.  Sherman,  7  Wend.  log.  '  Ace.   Arnott   v.    Redfem,   3    Bing. 

'  Walker  v.   Constable,  i  B.   &   P.  353  ;  but  contra,  Trelawney  v.  Thomas, 

307  ;  Tappenden  v.  Randall,  2  B.  &  P.  i  H.  Bl.  303. 
467. 


§  287.  MERCANTILE    SECURITIES.  42 1 

Lord  EUenborough '  saying,  that  the  fraud  did  not  take 
this  case  out  of  the  rule  which  he  had  previously  laid 
down,'  that  there  must  be  an  agreement,  express  or  im- 
plied ;  and  the  same  principle  was  afterwards  adhered 
to.'  ** 

§  287.  Mercantile  securities. — Where  a  note  is  not  paid 
when  due,  it  was  said  in  the  old  cases  that  interest  was 
not  recoverable  as  matter  of  law,  nor  as  part  of  the  debt, 
but  that  the  jury  could  give  damages  for  the  non-pay- 
ment, and  could  give  as  damages  interest  on  the  amount, 
but  that  doing  60  was  in  their  discretion.  The  law  is 
settled  that,  if  it  is  not  payable  by  the  terms  of  the  note, 
it  is  only  recoverable  as  damages. (*)  In  Cameron  v. 
Smith, (^)  Bayley,  J.,  said:  "Although  by  the  usage  of 
trade,  interest  is  allowed  on  a  bill,  yet  it  constitutes  no 
part  of  the  debt,  but  is  in  the  nature  of  damages  which 
must  go  to  the  jury,  in  order  that  they  may  find  the 
amount."  He  proceeded  to  say,  that  the  jury  could  al- 
low what  interest  they  pleased,  according  to  the  damage  ; 
and  that,  if  the  non-payment  was  due  to  the  default  of 
the  holder,  they  need  not  allow  any.*  So,  in  Dent  v. 
Dunn(°)  it  was  held  that  interest  stopped  from  the  time 
an  oifer  to  pay  was  made,  for  there  was  no  wrong  after 
that,  and  therefore  no  damages  were  recoverable.  Lord 
EUenborough,  referring  to  interest  on  promissory  notes, 
said  :  "  It  is  more  frequently  recovered  in  the  shape  of 
damages,  for  money  improperly  retained  by  the  debtor 

'  Crockford  v.  Winter,  i  Camp.  124,        *  So  it  was  refused  where  a  promis- 

I2g.  sory    note   had    been    overdue   thirty 

'  De    Havilland    v.    Bowerbank,    i  years  ;  .and  the  court  on  motion,  would 

Camp.  50.  not  increase  the  verdict  by  giving  it. 

^  De   Bernales   v.    Fuller,  2   Camp.  Du  Belloix  v.  Lord  Waterparlc,  i  Dow. 

426.  &  Ry.  16. 


(")  See,  for  a  full  discussion,  the  arguments  in  In  re  Burgess,  2  Moore  745 ; 
2  Parsons'  Notes  &  Bills,  chap.xi,  p.  391. 

C)  2  B.  &  Aid.  305.  (»)  3  Camp.  296. 


422  INTEREST.  '  §  288. 

contrary  to  the  request  of  the  creditor." '  The  jury  has, 
accordingly,  been  ajlowed  to  give  much  more  than  the 
usual  rate  of  interest.  So  in  Keene  v.  Keene  (*)  the 
court  refused  to  disturb  an  assessment  of  damages  where 
the  plaintiff  had  recovered  interest  at  the  rate  of  ten  per 
cent.,  the  rate  of  the  note,  although  the  usual  rate  was 
much  less.  Willes,  J.,  saying :  "  Until  the  maturity  of 
the  bill,  the  interest  is  a  debt  ;  after  its  maturity,  the 
interest  is  given  as  damages,  at  the  discretion  of  the 
jury."  In  ex  parte  Charman,('')  an  appeal  from  the 
Bankruptcy  Court,  the  nature  of  interest  on  overdue 
paper  was  considered.  Lord  Esher,  M.  R.,  said  that 
interest  could  not  be  claimed  on  a  bill  of  exchange  or  a 
promissory  note  as  part  of  the  contract,  unless  there  was 
an  express  agreement  to  pay  interest.  Interest  could 
only  be  given  by  way  of  damages.  In  an  action  on  the 
bill,  the  jury  could  give  interest  as  damages,  but  they 
were  at  liberty  to  refuse  to  do  so.  The  interest  was  no 
part  of  the  debt.  Now  that  actions  could  be  tried  by  a 
judge  without  a  jury,  the  judge  could  give  or  refuse  to 
give  interest.  If  under  any  circumstances  a  Court  of 
Equity  gave  interest  on  a  bill,  it  must  have  been  given 
as  a  species  of  equitable  damages.  According  to  the  or- 
dinary meaning  of  the  word  "  debt,"  interest,  which  could 
only  be  given  by  way  of  damages,  was  not  a  "debt." 

§  288.  Contract,  express  or  implied. — Even  where  money 
was  payable  at  a  definite  time,  it  was  early  settled,  in 

'  Chitty  on  Bills,  nth  ed.,  p.  433;  De  Higgins  w.  Sargent,  2  B.  &  C.   348; 

Havilland  v.  Bowerbank,  i  Camp.  50 ;  Page  v.  Newman,  9   B.  &  C.  378  ;  4. 

De  Bernales  v.  Fuller,  2  Camp.  426  ;  Man.  &  Ry.  305.     On  the  other  hand, 

Walker  v.  Constable,  i  B.  &  P.  306;  in  Blaney  v.  Hendricks,  2  W.  Black. 

Du  Belloix  V.  Lord  Waterpark,  i  Dow.  761  ;  Lowndes  v.  Collins,   17  Ves.  28  ; 

&  Ry.  16  ;  Bann  v.  Dalzell,  Mood.  &  Parker  v.   Hutchinson,  3  Ves.   134,  it 

M.  228  ;  Arnott  ji.   Redfern,   3   Bing.  was  said  that  interest  should  be  allowed 

353  :  Calton   V.    Bragg,    15  East,    223;  as  matter  of  law. 


C)  3  C.  B.  N.  S.  144,  e)  W.  N.  (1887),  184. 


§  288.  CONTRACT,  EXPRESS  OR  IMPLIED.  423 

England,  that  interest,  as  matter  of  law,  could  not  be 
given  except  on  mercantile  securities,  or  where  there  was 
a  contract  express  or  implied  to  pay  it.  In  Higgins  v. 
Sargent  (")  the  plaintiff  brought  covenant  on  a  policy 
of  life  insurance  for  ^4,000,  payable  six  months  after 
proof  of  death.  The  jury  having  found  a  general  ver- 
dict for  the  plaintiff  without  any  question  being  raised  as 
to  the  allowance  of  interest,  it  was  then  for  the  first  time 
claimed  that  interest  should  be  added  from  the  time  the 
sum  became  due.     Abbott,  C.  J.,  said  : 

"  It  is  now  established  as  a  general  principle,  that  interest  is 
allowed  by  law  only  upon  mercantile  securities,  or  in  those  cases 
where  there  has  been  an  express  promise  to  pay  interest,  or 
where  such  promise  is  to  be  implied  from  the  usage  of  trade  or 

other  circumstances The  only  question  upon  the  present 

rule  is  whether  the  jury  ought  to  have  been  told  that  they  were 
bound  by  law  to  give  the  plaintiff  interest  from  that  time.  .... 
Inasmuch  as  the  money  recovered  in  this  cause  was  not  due  by 
virtue  of  a  mercantile  instrument,  and  as  there  was  no  contract, 
expressed  or  implied,  on  the  part  of  the  defendant  to  pay  inter- 
est, I  cannot  say  that  the  jury  ought  to  have  been  told  that  they 
were  bound  to  give  interest." 

In  Shaw  v.  Picton  C")  the  plaintiff  sued  for  work  and 
labor,  and  money  lent,  and  on  an  account  stated.  Ab- 
bott, C.  J.,  said  : 

"  We  are  all  of  opinion  that  the  plaintiff  cannot  substantiate 
any  claim  for  interest.  The  general  rule  is,  that  interest  is  not 
dueby  law  for  money  lent,  unless  from  the  usage  of  trade  or 
the  dealings  between  the  parties,  a  contract  for  interest  is  to  be 
implied.  Here  no  such  contract  is  to  be  implied,  for  there  is  no 
usage  of  trade  ;  and  it  does  not  appear  by  the  case  that  any  in- 
terest had  ever  been  brought  into  the  account  on  either  side." 

In  Page  v.  Newman  (°)  the  plaintiff  sued  on  the  fol- 
lowing instrument :  "  GuerSt,  April  i8th,  1814.     In  one 


(•)  2  B.  &  C.  348.  C)  4  B.  &  C.  71 5,  723.  0  9  B.  &  C.  378. 


424  INTEREST.  §  289. 

month  after  my  arrival  in  England,  I  promise  to  pay 
Captain  W.  E.  Page,  or  order,  the  sum  of  ;i^i35,  as  ster- 
ling for  value  received.  C.  Newman."  Lord  Tenter- 
den,  C.  J.,  said  :  "  It  is  a  rule  sanctioned  by  the  practice 
of  more  than  half  a  century,  that  money  lent  does  not 
carry  interest."  After  citing  Higgins  v.  Sargent,  supra, 
he  said  : 

"  If  we  were  to  adopt  as  a  general  rule  that  which  some  of  the 
expressions  attributed  to  the  Lord  Chief  Justice  of  the  Common 
Pleas  in  Arnott  v.  Redfern  (»)  would  seem  to  warrant,  viz.,  that 
interest  is  due  wherever  the  debt  has  been  wrongfully  withheld 
after  the  plaintiff  has  endeavored  to  obtain  payment  of  it,  it 
might  frequently  be  made  a  question  at  Nisi  Prius  whether 
proper  means  had  been  used  to  obtain  payment  of  the  debt,  and 
such  as  the  party  ought  to  have  used.  That  would  be  produc- 
tive of  great  inconvenience.  I  think  that  we  ought  not  to  de- 
part from  the  long  established  rule,  that  interest  is  not  due  on 
money  secured  by  a  written  instrument,  unless  it  appears  on  the 
face  of  the  instrument  that  interest  was  intended  to  be  paid,  or 
unless  it  be  implied  from  the  usage  of  trade,  as  in  the  case  of 
mercantile  instruments.  Here  the  language  of  the  instrument 
is  such  as  to  lead  to  the  conclusion  that  the  parties  did  not  in- 
tend that  interest  should  be  payable." 

§  289.  Interest  by  statute — Discretionary  power  of  jury. — 
In  many  cases  the  allowance  of  interest  is  governed  by 
the  statute  3  &  4  W.  IV,  c.  42,  §§  28,  29,  which  declares 
"  that  upon  all  debts  or  sums  certain,  payable  at  a  certain 
time,  or  otherwise,  the  jury  on  the  trial  of  any  issue,  or 
on  any  inquisition  of  damages,  may,  if  they  shall  think 
fit,  allow  interest  to  the  creditor,  at  a  rate  not  exceeding 
the  current  rate  of  interest,  from  the  time  when  said 
debts  or  sums  were  payable,  if  such  debts  or  sums  be 
payable  by  virtue  of  some  written  instrument  at  a  certain 
time,;  or  if  payable  otherwise,  then  from  the  time  when 


(')  3  Bing.  353. 


§  289.  INTEREST  BY  STATUTE.  425 

demand  of  payment  shall  have  been  made  in  writing,  so 
as  such  demand  shall  give  notice  to  the  debtor  that  inter- 
est will  be  claimed  from  the  date  of  such  demand  until 
the  time  of  payment,  provided  that  interest  shall  be  pay- 
able in  all  cases  in  which  it  is  now  payable  in  law."  The 
act  also  allows  interest,  in  the  discretion  of  the  jury,  in 
actions  of  trover,  trespass  de  bonis  asportatis,  and  on  pol- 
icies of  insurance,  and  expressly  provides  for  the  allow- 
ance of  interest  wherever  it  was  previously  allowed. 
This  statutory  regulation  recognizes  the  hardship  of  the 
old  rule,  but  leaves  the  matter  in  great  uncertainty,  the 
whole  thing  being  given  to  the  discretion  of  a  jury  in  the 
particular  case. 

In  an  action  of  debt  for  goods  sold  and  delivered, (*) 
it  was  found  that  the  defendant  had  agreed,  at  the  time 
of  the  contract,  to  give  a  bill  or  note  for  the  price.  The 
jury  gave  interest,  and  it  was  held  right. 

In  Hill&.  South  Staffordshire  Ry.  Co.C")  the  question  of 
the  allowance  of  interest,  both  at  common  law  and  under 
the  statute,  was  considered.  The  plaintiff  agreed  to  build  a 
road  for  the  defendant,  payments  to  be  made  monthly  as 
the  work  proceeded,  on  the  engineer's  certificate.  There 
was  no  provision  about  interest.  The  plaintiff  made  a 
demand  for  a  sum  as  the  balance  due  him,  with  interest. 
His  accounts  were  disputed,  and,  on  a  bill  filed,  he  was 
proved  to  be  entitled  to  about  one-half  his  claim.  Sir 
Charles  Hall,  V.  C,  in  his  opinion,  said:  "According  to 
the  contract,  if  it  went  on  that,  apart  from  the  statute, 
there  must  be  an  express  contract  for  the  payment  of  in- 
terest except  in  the  case  of  mercantile  contracts, — bills 
of  exchange  and  promissory  notes,  and  some  cases  which 
are  subject  to  special  usage  in  trade.     It  must  be  in  the 

(•)  Davis  V.  Smyth,  8  M.  &  W.  399. 
C)  L.  R.  18  Eq.  154,  167,  170. 


426  INTEREST.  §  290. 

contract  itself,  and  no  case  has  been  made  out  for  interest 
in  that  view."  After  stating  that  the  bill  must  be  con- 
sidered as  a  claim  for  damages  for  not  making  out  the 
certificate  and  for  the  detention  of  money,  he  referred  to 
the  case  of  Higgins  v.  Sargent,  supra,  as  settling  the  lia- 
bility to  pay  interest,  irrespective  of  the  contract  and  the 
statute,  "  that  in  the  absence  of  any  express  provision  in 
the  contract  to  pay  interest,  there  was  no  liability  to  do 
so."  (*)  With  reference  to  the  statute,  he  held  that  the 
amount  could  not  be  considered  a  sum  certain,  as  it  was 
only  ascertained  after  examination  of  a  long  account, 
and  therefore  could  not  be  considered  within  its  pro- 
visions.    He  also  said : 

"Even  supposing  that  I  could  treat  the  present  as  a  case 
within  the  28th  section,  that  section  is  not  imperative  ;  it  merely 
empowers  a  jury,  if  'they  shall  think  fit,'  to  allow  interest  at  a 
rate  not  exceeding  a  certain  amount.  These  words  give  a  dis- 
cretion to  the  jury  to  say  whether  it  be,  under  all  the  circum- 
stances of  it,  a  case  in  which  interest  ought  to  be  allowed  or  not. 
A  new  trial  would  not,  I  think,  be  granted,  because  the  jury  had 
not  allowed  interest  under  that  section  in  a  case  like  the  present. 
I  do  not  believe  that  any  twelve  men  dealing  with  and  consider- 
ing all  the  circumstances  of  this  case,  would  say  that  interest 
ought  to  be  allowed  ;  and  acting  as  a  jury  in  this  case  it  appears 
to  me  that  I  cannot  allow  interest.'' 

§  290.  By  way  of  damages  for  detention  of  money. — 
Interest  is,  however,  sometimes  allowed  by  way  of  dam- 
ages for  the  detention  of  money  where  it  is  laid  as  special 
damage  in  the  declaration.  In  Watkins  v.  Morgan  C") 
the  plaintiff  brought  an  action  of  debt  on  an  indenture 
dated  June  15,  by  which  the  defendant  covenanted  to 
pay  ^270,  with  lawful  interest  for  the  same  on  the  15th 

(")  The  Vice-Chancellor  then  reviewed  two  cases,  Mildmay  v.  Methuen,  3 
Drew.  91,  and  Mackintosh  v.  Great  W.  Ry.  Co.,  4  Giff.  683,  which  seemed  to 
be  opposed  to  this  view,  holding  them  to  be  poorly  considered  cases. 

(»)  6  C.  &  P.  661. 


§  290.  DAMAGES    FOR   DETENTION   OF    MONEY.  427 

of  December  next  following.  The  declaration  alleged 
that  there  was  due  the  plaintiff  on  account  of  the  said 
sum  and  interest,  the  sum  of  ;^3oo.  It  concluded  to  the 
plaintiff's  damage  of  ;^io.  The  plea  was  non  est  factum. 
Littledale,  J.,  said  he  could  not  allow  a  verdict  for  ^300, 
as  the  contract  was  to  pay  ^270  with  six  months'  inter- 
est, which  would  be  ^276  15^-.,  and  all  the  rest  was 
damages  for  the  detention  ;  and  the  plaintiff  having  only 
laid  these  at  ^lo,  could  recover  no  more.  In  Price  v. 
Great  W.  Ry.  Co.C)  the  plaintiff  sued  on  an  agreement 
to  pay  a  certain  sum  on  January  15th,  1844,  and  interest 
till  that  date.  The  principal  was  not  paid,  and  a  special 
case  was  made  for  the  court  on  the  question  whether 
interest  after  January  15th,  1844,  could  be  recovered. 
It  was  stipulated  that  the  court  should  have  the  same 
powers  as  a  jury.  Parke,  B.,  said  :  "This  is  substantially 
a  mortgage.  The  constant  and  invariable  practice  is  to 
give  interest  by  way  of  damages  in  such  cases." 

In  a  case  in  the  House  of  Lords  ('')  the  plaintiff  had 
received  from  one  Bevan  a  warrant  of  attorney,  dated 
May  2d,  to  secure  payment  of  money  on  June  2d,  with 
interest  till  that  time  at  5  per  cent,  per  month.  Bevan 
died  before  June  2d,  and  no  payment  was  made,  but  the 
plaintiff  did  not  enter  judgment.  Bevan's  executors  did 
not  know  of  the  warrant  of  attorney.  By  various  means 
the  plaintiff,  after  the  executors  knew  he  had  a  claim, 
kept  the  nature  of  it  concealed  for  a  long  time.  When 
obliged  to  make  it  known  he  claimed  interest  at  5  per 
cent,  per  month,  but  Vice-Chancellor  Stuart  allowed  it 
at  this  rate  for  one  month  only,  and  at  4  per  cent,  per 
annum  for  the  rest  of  the  time.  The  Lord  Chancellor, 
Lord  Cairns,  after  saying  that  this  might  be  considered 


(»)  16  M.  &  W.  244.  C)  Cook  V.  Fowler,  L.  R.  7  H.  L.  27,  32. 


428  INTEREST.  §  290, 

as  a  judgment  entered  on  June  2d,  and  which  would 
then  bear  4  per  cent,  interest,  said  (p.  32): 

"  If  this  is  not  merely  a  judgment  for  the  principal  sum  and 
the  amount  of  interest  and  costs  up  to  the  2d  of  June,  which  judg- 
ment is  thenceforward  to  bear  interest  at  the  rate  of  4  per  cent., 
it  is  at  all  events  a  warrant  of  attorney  and  defeasance  which  is 
given  to  secure  a  debt  of  ;£i,33o,  with  interest  up  to  a  certain 
day,  and  without  any  mention  of  subsequent  interest  upon  the 
face  of  the  instrument.  If  so,  according  to  the  well-known  prin- 
ciple which  has  been  referred  to  in  many  cases,  and  which  may 
be  taken  most  conveniently  from  a  note  to  the  case  of  Mounson 
V.  Redshaw,('')  any  claim,  in  the  nature  of  a  claim  for  interest 
after  the  day  up  to  which  interest  was  stipulated  for,  would  be  a 
claim,  really,  not  for  a  stipulated  sum  and  interest,  but  for  dam- 
ages, and  then  it  would  be  for  the  tribunal  before  which  that 
claim  was  asserted  to  consider  the  position  of  the  claimant,  and 
the  sum  which  properly,  and  under  all  the  circumstances,  should 
be  awarded  for  damages.  No  donht,  prima  facte,  the  rate  of  in- 
terest stipulated  for  up  to  the  time  certain  might  be  taken,  and 
generally  would  be  taken,  as  the  measure  of  interest,  but  that 
would  not  be  conclusive.  It  would  be  for  the  tribunal  to  look 
at  all  the  circumstances  of  the  case,  and  to  decide  what  was  the 
proper  sum  to  be  awarded  by  way  of  damages." 

After  stating  the  facts  of  the  case,  he  said  (p.  34): 

"  Now,  my  Lords,  if  this  is  to  be  judged  of  (and  it  is  the  most 
favorable  view  of  the  case  that  can  be  taken  on  behalf  of  the 
appellant  that  it  should  be  so  judged  of),  as  a  case  in  which 
Cook  is  coming  and  claiming  damages  for  the  non-payment  of  a 
debt  due  to  him  on  the  2d  of  June,  1864,  it  appears  to  me  to  be 
clear  that  any  tribunal  judging  of  that  claim  for  damages  would 
be  bound  to  take  into  account  the  circumstances  to  which  I  have 
referred — circumstances  which  show  that  Cook  was  endeavoring 
to  prevent  the  character  of  this  defeasance  from  transpiring  ; 
that  he  was  endeavoring  to  keep  back  his  security,  and  thereby 
to  become  entitled  to  claim  this  high  rate  of  interest,  whereas  it 
is  obvious  that,  if  he  had  at  the  first  disclosed  the  nature  of  the 
claim  in  respect  of  interest,  which  he  was  prepared  to  allege, 
steps  would  have  been  taken  to  pay  off  the  principal  sum  that 

(»)  I  Wms.  Saund.  201  n. 


§  291.  RESULT   OF   ENGLISH   CASES.  429 

was  due  to  him.  Therefore,  whether  your  Lordships  take  it  as 
a  judgment  for  a  specific  sum,  bearing  no  interest  beyond  the 
statutable  interest  of  4  per  cent.,  or  whether  you  take  it  as  a 
claim  for  damages  for  the  detention  of  a  debt,  in  either  case  it 
appears  to  me  to  be  out  of  the  question  that  the  rate  of  60  per 
cent,  could  be  allowed.  It  appears  to  me  that,  in  the  first  view, 
4  per  cent,  is  the  rate  absolutely  assigned  by  statute  upon  the 
payment  of  judgment  debts  ;  and,  in  the  second  case,  it  is  for  the 
tribunal  to  fix  the  rate  of  damages.  It  is  possible  that  the  rate 
of  5  per  cent,  might  be  given  by  a  jury  or  by  a  judge  who  was 
performing  the  functions  of  a  jury;  but  the  primary  judge  hav- 
ing in  this  case  only  given  the  usual  rate  assigned  in  the  Court 
of  Chancery,  namely,  4  per  cent.,  I  certainly  do  not  propose  to 
advise  your  Lordships  to  disagree  with  that  opinion  at  which  he 
has  arrived,  but,  on  the  contrary,  I  advise  and  move  your  Lord- 
ships that  this  appeal  should  be  dismissed,  with  costs." 

Lord  Hatherly  said  :  "  The  cases  which  were  cited 
with  reference  to  mortgages,  show  clearly  that  the  in- 
terest, after  a  given  day,  upon  which  day  the  principal 
and  interest  secured  by  the  mortgage  were  made  payable, 
can  only  be  given  in  the  nature  of  damages."  He  then 
cited  the  case  of  Cameron  v.  Smith,('')  and  the  language 
of  Mr.  Justice  Bayley  in  that  case,  to  the  effect  that  in- 
terest on  a  bill  is  given  in  the  nature  of  damages,  which 
must  go  to  the  jury  that  they  may  find  the  amount;  and 
that  it  is  in  their  discretion  to  allow  any  or  no  interest, 
as  may  seem  proper  to  them. 

§  291.  Result  of  the  English  cases.— The  result  to  be 
obtained  from  these  cases  is  as  follows :  Interest  is  allowed 
in  England  as  a  matter  of  law :  First,  on  commercial 
paper;  Second,  on  contracts  expressly  providing  for  it; 
Third,  where  an  agreement  to  pay  it  is  implied  from 
usage,  or  the  dealing  of  the  parties.  It  is  allowable  in  the 
discretion  of  the  jury  :  First,  in  cases  provided  for  by  the 


(»)  2  B.  &  Aid.  305. 


430  INTEREST.  §§  292,, 293. 

Statute,  supra  ;  Second,  as  special  damages  for  the  deten- 
tion of  money. 

§  292.  Difference  between  English  and  American  law. — 
In  the  American  courts  interest  is  allowed  as  damages  more 
liberally  than  in  England.  The  leading  difference  seems 
to  grow  out  of  a  different  consideration  of  the  nature  of 
money.  The  American  cases  look  upon  the  interest  as 
the  necessary  incident,  the  natural  growth  of  the  money, 
and  therefore  incline  to  give  it  with  the  principal,  while 
the  English  courts  treat  it  as  something  distinct  and  in- 
dependent, and  only  to  be  had  by  virtue  of  some  positive 
agreement  or  statute.' 

§  293.  Interest  as  damages — Frequently  regulated  by 
statute. — It  is  almost  universally  held  in  this  country  that 
interest  is  in  the  proper  case  given  as  damages  by  the 
common  law.  A  large  part  of  the  subject  is,  however, 
covered  by  statute  in  every  State,  and  the  rate  of  interest 
is  probably  everywhere  regulated  by  the  legislature.  In 
some  States,  like  Georgia  and  California,  the  subject  is 
so  thoroughly  covered  by  statute  that  the  common  law 
is  practically  superseded. 

In  some  States  it  has  been  held  that  interest  is  never 
allowed  by  the  common  law  where  there  is  no  agreement 
for  the  payment  of  it ;  and  therefore  that  it  can  be 
allowed  in  no  case  except  on  express  agreement  or  un- 
less it  comes  within  the  language  of  the  statute  allowing 
it.(°)     And  in  other  States  it  is  held  that  in  statutory 

'  For  an   examination   of  the  early  money  was  improperly  withheld  after 

English  and  American   decisions,  see  demand.      See  the  subject  discussed, 

Wood  et  al.   v.  Robins,  11  Mass.  504,  and  the  cases   collected  and  cited  in 

and  Pope  v.   Barret,  i  Mason  117,  in  Alabama,  in  Boyd  v.  Gilchrist,  15  Ala. 

which  latter  case  it  was  held  by  Mr.  J.  849. 
Story,    that   interest    was   due    when 


(»)  Denver,  S.  P.  &  P.  R.R.  Co.  v.  Conway,  8  Col.  i ;  Sammis  v.  Clark, 
13  111.  544 ;  Hitt  v.  Allen,  13  III.  592  ;  Chicago  v.  AUcock,  86  III.  384 ;  Hamer 
V.  Kirkwood,  25  Miss.  95  ;  Warren  Co.  v.  Klein,  51  Miss.  807  ;  Kenney  v. 


§§  294.   295-       MONEY  VEXATIOUSLY  WITHHELD.  43 1 

actions  no  interest  can  be  recovered  unless  it  is  allowed 
by  statute.  (")  With  more  propriety  it  is  held  that  when 
a  statute  allows  double  damages  interest  cannot  be 
given.  C) 

§  294.  Money  vexatiously  withheld  —  Statutory  rule. — 
Many  States  by  statute  allow  interest  when  money  is 
vexatiously  withheld.  The  question  whether  it  has  been 
so  withheld  is  for  the  jury  ;  (")  if  it  has,  interest  is  then 
allowed,  not  from  the  time  the  delay  became  vexatious, 
but  from  the  time  payment  was  due.(*)  "  Wrongfully 
and  unreasonably  withheld,"  a  phrase  used  in  some 
States,  seems  to  add  nothing  to  the  common  law ;  it 
appears  to  mean,  withheld  after  payment  was  due.(*) 

§  295.  Allowance  and  amount  of  interest  formerly  matter 
for  the  jury. — It  was  formerly  held  in  this  country  that 
when  not  secured  by  contract,  that  is,  when  sought  as 
damages,  the  allowance  and  amount  of  interest  was  in 
the  discretion  of  the  jury.  This  was  especially  urged 
when  interest  was  asked  upon  the  value  of  property. 
"There  are  two  classes  of  cases,"  said  the  Supreme  Court 
of  New  Hampshire,  "in  which  interest  may  be  recovered. 
The  first  is  where  it  is  incident  to  the  debt,  founded  upon 
the  agreement  of  the  parties,  and  is  a  legal  claim,  which 
the  court  are  bound  to  allow.      The  other  class  is  where 


Hannibal  &  S.  J.  Ry.  Co.,  63  Mo.  99  ;  Marshall  v.  Schricker,  63  Mo.  308  ; 
Atkinson  v.  Atlantic  &  P.  R.R.  Co.,  63  Mo.  367  ;  De  Steiger  v.  Hannibal  & 
S.  J.  Ry.  Co.,  73  Mo.  33 ;  Kimes  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  85  Mo.  61 1  ; 
Randall  v.  Greenhood,  3  Mont.  506  ;  Flannery  v.  Anderson,  4  Nev.  437. 

(")  Atchison,  T.  &  S.  F.  R.R.  Co.  v.  Gabbert,  34  Kas.  132  ;  Atkinson 
V.  Atlantic  &  P.  R.R.  Co.,  63  Mo.  367 ;  W^eir  v.  Allegheny  County,  95  Pa. 
413 ;  but  contra,  Orr  v.  New  York,  64  Barb.  106. 

(»)  Brentner  v.  Chicago,  M.  &  S.  P.  Ry.  Co.,  68  la.  530. 

(=)  Devine  v.  Edwards,  loi  III.  138. 

('')  Chicago  V.  Tebbetts,  104  U.  S.  120.  Merely  appearing  and  defending 
the  suit  is  not  vexatious  delay:  Aldrich  v.  Dunham,  16  111. 403. 

0  Killian  v.  Eigenmann,  57  Ind.  480 ;  Hazzard  v.  Duke,  64  Ind.  220. 


432  INTEREST.  §   295. 

interest  may  be  allowed  by  a  jury  in  the  nature  of 
damages."'  Tiiis  was  generally  so  in  actions  of  tort,  as 
trover  or  trespass  for  taking  goods,  where  interest  was 
allowed  at  the  discretion  of  the  jury.  So,  in  an  action 
of  trespass,  the  Supreme  Court  of  New  York  said  : 
"The  plaintiff  ought  not  to  be  deprived  of  his  property 
for  years  without  compensation  for  the  loss  of  the  use  of 
it ;  and  the  jury  had  a  discretion  to  allow  interest  in  this 
case  as  damages.  It  has  been  allowed  in  actions  of 
trover,  and  the  same  rule  applies  in  trespass  when  brought 
for  the  recovery  of  property."'  So,  in  Kentucky,  in 
case  of  a  fraudulent  refusal  to  convey  land.'  And  so 
declared,  also,  in  North  Carolina,  in  cases  of  trover  and 
trespass.* 

The  discretionary  rule  was  applied  in  many  cases  of 
contract.  So,  in  an  action  on  an  agreement  to  deliver 
wheat,  the  value  of  the  wheat  with  interest  thereon  was 
given."  And  the  Supreme  Court,  on  the  argument  of 
the  case,  said:  "The  judge  who  tried  the  cause  did  not 
direct  the  jury  to  allow  the  interest  on  the  sum  which 
they  should  find  the  wheat  to  be  worth  after  the  demand ; 
but  in  ascertaining  the  plaintiff's  damages,  he  observed 
they  might  if  they  thought  proper,  from  the  nature  of 
the  transaction,  include  interest  as  an  item  in  making  up 
the  amount  of  damages.  There  was  not  in  this  remark 
any  direction  contrary  to  law."  "  Interest,"  said  Wash- 
ington, J.,  on  the  Pennsylvania  circuit,  "is  a  question 
generally  in  the  discretion  of  a  jury." " 

So,  in  two  actions  against  the  master  of  a  ship  for  the 

'  Mcllvaine  v.  Wilkins,  12  N.  H.  474.  negligence,  Thomas  w.  Weed,  14  Johns. 

"  Beals  V.  Guernsey,  8  Johns.  446.  So  255. 

in  trover,   Hyde    v.   Stone,    7   Wend.  ^  Handley    v.    Chambers,    i   Littell 

354  ;  Bissell  v.  Hopliins,  4  Cow.    53  ;  358. 

Kennedy  v.  Strong,  i4jolins.  128;  Hal-  ■*  Devereux  v.    Burgwin,    11  Iredell 

lett  V.  Novion,   14  Johns.  273,  and  16  490. 

Johns.  327.     And  in  replevin,  Rowley  ^  Dox  v.  Dey,  3  Wend.  356. 

V.  Gibbs,  14  Johns.  385.  So,  in  case  for  '  Gilpins  v.  Consequa,  Pet.  C.  C.  85. 


§  295-         INTEREST    FORMERLY    MATTER   FOR   JURY.  433 

non-delivery  of  goods,  it  was  held  in  New  York  that 
the  jury  might  give  damages  if  the  conduct  of  the  de- 
fendant was  improper,  i.  e.,  where  fraud  or  gross  miscon- 
duct could  be  imputed  to  him  ;  but  it  appearing  that  such 
was  not  the  fact,  it  was  not  allowed ;  and  the  court  in 
the  former  case  said :  "  Interest  is  not  in  every  case  and 
of  course  recoverable,  because  the  amount  of  the  loss  is 
unliquidated,  and  sounds  in  damages  to  be  assessed  by 
the  jury."^  In  a  case  in  which  a  man  covenanted  to  con- 
vey lands,  and  it  afterward  appeared  that  in  truth  he  had 
no  title  to  the  land,  but  there  was  no  fraud,  it  has  been 
held  in  Virginia,  that  whether  the  jury  should  allow  in- 
terest  on  the  value  of  the  land  from  the  date  of  the  con- 
tract must  depend  on  the  circumstances  of  the  case,  of 
which  they  are  the  proper  judges  ;  and  that  it  is  competent 
to  the  defendant  to  give  in  evidence  any  circumstances 
tending  to  show  that  interest  should  not  be  allowed."  i 
In  Dotterer  v.  Bennett  (")  the  plaintiff  sued  on  a 
quantum  meruit.  The  jury  found  a  verdict  for  $1,756, 
with  interest  from  the  time  the  right  of  action  accrued. 
This  was  held  to  be  error ;  but  the  jury  might,  if  they 
deemed  proper,  give  a  verdict  for  a  sum  which  would  in- 
clude interest  on  the  true  value.  So  generally  in  the 
earlier  and  in  some  of  the  later  cases  the  allowance  of  in- 
terest is  said  to  be  in  the  discretion  of  the  jury.C") 

'  Watkinson  w.  Laughton,  8  Johns.        °  Letcher  v.  Woodson,  i  Brock.  212. 
213 ;  Amory   v.  McGregor,  15  Johns. 
24-  

(»)  S  Rich.  L.  295. 

(>>)  Willings  V.  Consequa,  Pet.  C.  C.  172;  Oakesz/.  Richardson,  2  Low. 
173  ;  Crow  V.  State,  23  Ark.  684;  Brady  v.  Wilcoxsen,  44  Cal.  239;  Rogers 
V.  West,  9  Ind.  400 ;  Morford  v.  Ambrose,  3  J.  J.  Marsh  688 ;  Marshall 
V.  Dudley,  4  J.  J.  Marsh  244 ;  Bell  v.  Logan,  7  J.  J.  Marsh  593;  Stark  v. 
Price,  5  Dana  140 ;  Howcott  v.  Collins,  23  Miss.  398  ;  Richmond  v.  Bron- 
son,  5  Den.  55 ;  Hunt  v.  Jucks,  i  Ha3rw.  173 ;  Hogg  v.  Zanesville  Canal  and 
Manuf.  Co.,  5  Oh.  410;  Obermyer  v.  Nichols,  6  Binn.  159;  Close  v.  Fields, 
13  Tex.  623;  Heidenheimer  v.  Ellis,  67  Tex.  426. 
Vol.  I.— 28 


434  'INTEREST.  §  296. 

§  296.  Now  usually  a  question  of  law. — Language  is  no 
doubt  to  be  found  in  many  cases  which  seems  to  imply- 
that  the  court  has  the  same  discretion  that  the  jury  for- 
merly had,  and  to  place  the  allowance  of  interest  on 
grounds  of  general  equity.  In  Rensselaer  Glass  Factory 
V.  Reid.C)  Golden,  Senator,  said :  "  As  often  as  the 
question  of  interest  has  been  before  a  court,  the  judges 
seem  to  have  considered  it  as  depending  on  general 
equitable  principles ;  and,  in  most  instances,  to  have  de- 
cided each  case  in  reference  to  its  particular  circum- 
stances, without  attempting  to  give  any  rule  which  might 
be  generally  applicable."  But  it  is  now  perfectly  well 
settled  that  in  most  classes  of  cases  the  allowance  of  in- 
terest is  a  question  of  law.(*) 

In  Dana  v.  Fiedler, (°)  Johnson,  J.,  used  the  following 
language : 

"  In  all  cases,  unless  this  be  an  exception,  the  measure  of 
damages  in  an  action  upon  a  contract  relating  to  money  or  prop- 
erty is  a  question  of  law,  and  does  not  at  all  rest  in  the  discre- 
tion of  the  jury.  If  the  giving  or  refusing  interest  rests  in  dis- 
cretion, the  law,  to  be  consistent,  should  furnish  some  legitimate 
means  of  influencing  its  exercise  by  evidence,  as  by  showing 
that  the  party  in  fault  has  failed  to  perform,  either  wilfully  or 
by  mere  accident,  and  without  any  moral  misconduct.  All  such 
considerations  are  constantly  excluded  from  a  jury,  and  they  are 
properly  told  that  in  such  an  action  their  duty  is  to  inquire 
whether  a  breach  of  the  contract  has  happened,  not  what  mo- 
tives induced  the  breach The  right  to  interest,  in  actions 

upon  contract,  depends  not  upon   discretion,  but  upon  legal 
right." 


(•)  5  Cow.  587,  596. 

0  Broughton  v.  Mitchell,  64  Ala.  210 ;  Hamer  v.  Hathaway,  33  Cal.  117  ; 
Andrews  v.  Durant,  18  N.  Y.  496;  De  Lavallette  w.  Wendt,  75  N.  Y.  579  ; 
Robinson  v.  Corn  Exchange  Insurance  Co.,  I  Abb.  N.  S.  186 ;  Wehle  v. 
Butler,  43  How.  Pr.  5  ;  Rhemke  v.  Clinton,  2  Utah  230. 

(')  12  N.  Y.  40,  50. 


§§  297>  298.  INTEREST   BY    CUSTOM.  435 

§  297.  Gradual  extension  of  principles  allowing  interest  as 
matter  of  law. — The  gradual  extension  of  the  principles 
allowing  interest  as  damages  is  clear.  Beginning  with  a 
denial  of  interest  in  any  case  except  where  it  was  allowed 
by  contract,  the  law  first  gave  discretion  to  the  jury  to 
give  interest  as  damages,  and  then  allowed  it  as  a  mat- 
ter of  law  in  a  constantly  increasing  number  of  cases. 
This  has  led  the  Supreme  Court  of  North  Carolina  (") 
to  say : 

"  Although  it  (")  has  not  in  cases  like  this  yet  been  defined  by 
clearly  cut  rules,  and  has  therefore  usually  been  left  to  the  dis- 
cretion of  a  jury,  yet  in  the  progress  of  the  law  as  a  science  it 
must  and  will  be  so  defined ;  and  the  question  in  what  cases  in- 
terest shall  be  allowed,  and  in  what  not,  will  be  recognized  as 
properly  coming  within  the  duty  of  judicial  instruction,  just  as 
the  question  of  the  measure  of  damages  now  is,  although  until 
recently  questions  of  that  sort  were  considered  too  versatile  and 
various  to  admit  of  being  governed  by  certain  principles,  and 
were  left,  necessarily  as  was  supposed,  to  the  discretion  of  a 
jury." 

§  298.  Interest  by  custom. — Where  by  custom  known 
to  the  defendant  interest  is  charged,  a  contract  will  be 
implied  to  pay  the  interest,  and  the  defendant  will  be 
held  to  pay  it.  Thus,  in  New  York,'  interest  has  been 
allowed  on  the  account  of  a  forwarding  merchant,  on 
the  ground  of  a  universal  custom  to  charge  interest  on 
such  accounts,  the  custom  being  known  to  the  defend- 
ant ;  and  Savage,  C.  J.,  said  :  "  Interest  is  always  prop- 
erly chargeable  when  there  is  either  an  express  or  an 
implied  agreement  to  pay  it."  (")     A  custom  not  proved 

'  Meech  v.  Smith,  7  Wend.  315. 


(»)  Rodman,  J.,  in  Lewis  v.  Rountree,  79  N.  C.  122,  128. 

C)  That  is,  the  allowance  of  interest. 

C)  Ayers  v.  Metcalf,  39  III.  307  ;  Veiths  v.  Hagge,  8  la.  163 ;  Reab  v. 
M'AUister,  4  Wend.  483  ;  8  Wend.  109.  But  under  a  statute  which  forbids 
the  recovery  of  interest  at  more  than  a  certain  rate  unless  expressly  stipu- 


436  INTEREST.  §  299. 

to  be  known  to  the  debtor  at  the  time  of  contracting  the 
debt  will  not  be  sufficient  to  charge  him  with  interest.  (") 
But  a  general  custom  is  presumed  to  be  known,  and 
upon  such  a  custom  the  debtor  may  be  charged  with  in- 
terest. (')  Thus  the  general  custom  of  Philadelphia  mer- 
chants to  charge  their  country  customers  interest  on  each 
item  after  six  months  seems  to  have  become  part  of  the 
law ;  no  knowledge  need  be  shown  on  the  part  of  the 
debtor.(°)  And  the  same  is  true  of  a  custom  in  Ver- 
mont, to  charge  interest  on  each  item  of  an  account  a 
year  after  it  is  entered.  (*) 

§  299.  Liquidated  and  unliquidated  demands. — Having 
now  examined  this  subject  of  interest  in  its  historical  as- 
pect, and  shown  how,  beginning  with  a  general  disallow- 
ance of  it,  the  law  has  now  come  to  admit  principles  the 
establishment  of  which  render  its  allowance  necessary  in 
certain  classes  of  cases,  we  proceed  to  inquire  into  the 
particular  rules  governing  this  allowance.  And  here  we 
shall  find  that  the  determination  of  the  question  whether 
interest  can  or  cannot  be  allowed,  is  by  no  means  free 
from  difficulty.  The  most  general  classification  of  causes 
of  action  with  reference  to  interest  is  into  liquidated  and 
unliquidated  demands.  And  it  was  formerly  attempted 
to  lay  down  the  rule  that  interest  could  be  recovered 
only  on  liquidated  demands.  But  it  will  be  perceived 
that  not  only  is  the  distinction  itself  not  by  any  means 
easy  to  keep  in  view,  but  besides  this  there  is  no  reason 


lated,  no  more  than  that  rate  can  be  recovered  though  the  custom  allows  a 
higher  rate :  Turner  v.  Dawson,  50  111.  85. 

(')  Rayburn  v.  Day,  27  111.  46 ;  Dickson  v.  Surginer,  3  Brev.  417. 

O")  Fisher  v.  Sargent,  10  Cush.  250. 

(')  Knox  V.  Jones,  2  Dall.  193;  Bispham  v.  Pollock,  i  McLean  417; 
Koons  V.  Miller,  3  W.  &  S.  271  ;  Watt  v.  Hoch,  25  Pa.  411  ;  Adams  v. 
Palmer,  30  Pa.  346. 

(^;  Wood  V.  Smith,  23  Vt.  706  ;  Davis  v.  Smith,  48  Vt.  52. 


§  299-       LIQUIDATED  AND  UNLIQUIDATED  DEMANDS.         437 

in  the  nature  of  things  why  the  fact  of  a  demand  being 
unliquidated  should  debar  the  plaintiff  from  receiving  or 
exempt  the  defendant  from  paying  interest.  And  finally, 
we  do  not  find  as  a  matter  of  fact  that  the  line  between 
cases  in  which  interest  is  allowed,  and  cases  in  which  it 
is  refused,  corresponds  with  the  line  between  liquidated 
and  unliquidated  demands.  That  there  is  a  broad,  gen- 
eral distinction  between  a  claim  sounding  in  damages 
and  entirely  unliquidated,  and  what  is  called  a  liquidated 
demand,  is  not  to  be  denied.  For  an  example,  we  may 
take  the  case  of  a  claim  for  damages  for  personal  injury 
arising  from  assault  and  battery,  or  a  case  of  seduction, 
or  libel.  There  the  elements  from  which  to  ascertain 
the  amount  of  the  demand  are  wholly  at  large.  The  de- 
fendant has  no  means  of  knowing  in  advance  of  proof 
what  the  precise  pecuniary  damage  has  been,  still  less 
what  should  be  allowed  for  pain  and  suffering.  Even 
the  plaintiff,  short  of  an  assessment  of  damages  by  a 
jury,  cannot  give  him  the  necessary  information.  Down 
to  the  time  of  verdict  the  claim  is  entirely  unliquidated. 
On  the  other  hand,  the  commonest  example  of  a  liqui- 
dated demand  is  an  action  of  debt,  where  there  is  an  ex- 
press contract  to  pay  a  sum  certain  at  a  fixed  time. 
Here  all  the  conditions  are  reversed.  The  claim  is 
wholly  liquidated ;  both  parties  know  exactly  what  it  is 
and  when  it  is  to  be  paid.  Interest  in  such  a  case 
represents  the  exact  value  of  the  use  of  an  ascertained 
sum  of  money  for  a  fixed  period  during  which  the  plain- 
tiff is  deprived  of  it.  Between  these  two  extreme  cases 
the  whole  body  of  the  law  lies,  and  it  will  be  found  that 
in  this  middle  ground  the  demands  approach  or  depart 
from  the  type  of  a  liquidated  demand  in  every  variety  of 
degree.  Thus  in  the  ordinary  case  of  conversion  of 
property,  if  the  property  be  money,  or  mercantile  securi- 


438  INTEREST.  ^  300. 

ties,  the  case  closely  resembles,  in  its  relation  to  interest, 
one  of  debt ;  if  it  be  property  of  a  fluctuating  or  peculiar 
value,  the  resemblance  is  not  nearly  so  close.  So  in  the 
case  of  trespass  to  lands,  the  claim  is  generally  of  the 
kind  which  cannot  be  liquidated  short  of  a  verdict. 

§  300.  Unsatisfactory  character  of  the  test. — But  the  ob- 
jection to  this  classification  lies  not  only  in  its  difficulty 
of  application,  which  might  perhaps  be  surmounted  ; 
but  in  the  fact  of  its  unfairness.  There  is  no  reason 
why  a  person  injured  should  have  a  smaller  measure  of 
recovery  in  one  case  than  the  other.  There  is  no  reason 
why  the  damages  to  be  paid  by  the  defendant  should  be 
mitigated  or  reduced  by  the  circumstance  that  his  tort 
or  breach  of  contract  was  of  such  an  aggravated  or  cun- 
ningly perfidious  character  as  to  make  a  liquidation  of 
the  claim  against  him  difficult.  On  general  principles, 
once  admit  that  interest  is  the  natural  fruit  of  money,  it 
would  seem  that  wherever  a  verdict  liquidates  a  claim 
and  fixes  it  as  of  a  prior  date,  interest  should  follow 
from  that  date.  We  shall  now  examine  the  rules  laid 
down  by  the  courts  more  in  detail.  As  we  proceed  in 
this  inquiry  we  shall  find  that  there  are  two  tests  which 
are  constantly  applied  by  the  courts,  having  been  found 
by  them  more  useful  than  the  attempted  division  into 
liquidated  and  unliquidated  demands.  Of  these  the  first 
is  whether  the  demand  is  of  such  a  nature  that  its  exact 
pecuniary  amount  was  either  ascertained,  or  ascertainable 
by  simple  computation,  or  by  reference  to  generally  rec- 
ognized standards  such  as  market  price;  second,  whether 
the  time  from  which  interest,  if  allowed,  must  run, — that 
is,  a  time  of  definite  default  or  tort-feasance, — can  be  ascer- 
tained. This  point  of  time  is  a  fundamental  part  of  the 
question  in  every  case  ;  and  generally  speaking,  where  in- 
terest is  not  allowed,  as  in  actions  of  assault  and  battery, 


§  2,Ol.  LIQUIDATED    DEMANDS.  439 

seduction,  libel,  and  false  imprisonment,  the  reason  is 
connected  with  this. 

§  301.  Liquidated  demands — General  rule. — Two  rules 
for  the  allowance  of  interest  on  liquidated  demands  are 
to  be  deduced  from  the  cases,  ist.  Wherever  there  has 
been  a  contract  to  pay  money  at  a  given  time,  interest  is 
to  be  allowed  from  the  time  the  money  should  have  been 
paid.  2d.  Where  money  has  been  wrongfully  acquired 
or  detained,  interest  is  to  be  computed  from  the  time  of 
the  wrongful  acquisition,  or  detention.  Both  cases  de- 
pend upon  the  principle  that  the  defendant  has  been 
guilty  of  a  legal  default  in  not  paying  over  money  to 
which  he  had  no  right. 

When  a  debtor  makes  default  in  the  payment  of  a 
liquidated  sum  of  money,  the  creditor  recovers  interest 
by  way  of  compensation  from  the  time  the  money  should 
have  been  paid.(*)  "Whenever  the  debtor  knows  what 
he  is  to  pay,  and  when  he  is  to  pay  it,  he  shall  be  charged 
with  interest  if  he  neglects  to  pay."  (^)  "  By  the  law  as 
settled  in  this  commonwealth,  interest  is  to  be  allowed 
in  all  cases,  where  either  by  express  contract  or  by  impli- 
cation, it  is  the  duty  of  a  party  to  pay  over  money  due 
without  any  previous  demand  by  the  creditor.     When  a 


(')  Curtis  V.  Innerarity,  6  How.  146;  Whitworth  v.  Hart,  22  Ala.  343  ; 
Cheek  v.  Waldrum,  25  Ala.  152  ;  Flinn  v.  Barber,  64  Ala.  193  ;  Broughton  2/. 
Mitchell,  64  Ala.  210 ;  Caldwell  v.  Dunklin,  65  Ala.  461;  Talladega  Ins.  Co.  v. 
Peacock,  67  Ala.  253 ;  Park  v.  Wiley,  67  Ala.  310  ;  Peoria  M.  &  F.  I.  Co.  v. 
Lewis,  18  111.  553  ;  Clark  z/.  Dutton,  69  III.  521  ;  Harper  v.  Ely,  70  111.  581 ; 
Dobbins  v.  Higgins,  78  111.  440 ;  Knickerbocker  Ins.  Co.  v.  Gould,  80  III. 
388  ;  Stem  v.  People,  102  111.  540  ;  Hall  v.  Huckins,  41  Me.  574 ;  Newson 
V.  Douglass,  7  H.  &  J.  417  ;  Judd  v.  Dike,  30  Minn.  380 ;  Buzzell  v.  Snell, 
25  N.  H.  474 ;  Stuart  v.  Binsse,  10  Bosw.  436 ;  Gutta  Percha  &  R.  M.  Co.,  v. 
Benedict,  37  N.  Y.  Super.  Ct.  430  ;  Spencer  v.  Pierce,  5  R.  I.  63 ;  Hauxhurst 
V.  Hovey,  26  Vt.  544  ;  Sampson  v.  Warner,  48  Vt.  247  ;  Butler  v.  Kirby,  53 
Wis.  188. 

(")  People  7'.  New  York,  5  Cow.  331. 


440  INTEREST.  §  301- 

definite  time  is  fixed  for  the  payment  of  a  sum  of  money, 
the  law  raises  a  promise  to  pay  damages,  by  way  of  in- 
terest at  the  legal  rate  for  the  detention  of  the  money 
after  the  breach  of  the  contract  for  its  payment."(0 
"  Whenever  it  is  ascertained  that  at  a  particular  time 
money  ought  to  have  been  paid,  whether  in  satisfaction 
of  a  debt,  or  as  compensation  for  a  breach  of  duty,  or 
for  the  failure  to  keep  a  contract,  interest  attaches  as  an 
incident. "C')  Thus  in  an  action  of  debt,  interest  is  assessed 
as  damages  for  detention  of  the  debt.C)  In  an  action  on  a 
promissory  note  interest  is  allowed  after  maturity  though 
the  note  does  not  in  terms  bear  interest.  ('^)  So  where 
the  note  provided  for  interest  at  an  usurious  rate,  and  by 
statute  such  interest  was  forfeited,  interest  at  the  legal 
rate  was  allowed  after  maturity.  (')  Where  a  certain  sum 
is  due  as  liquidated  damages  on  a  contract,  interest  may 
be  recovered  upon  it  from  the  breach  of  the  contract.  (') 
So  interest  is  allowed  on  a  pecuniary  legacy  from  the 
time  it  should  be  paid  over ;  which  in  most  States  is  a 
year  after  the  death  of  the  testator ;  (^)  and  interest  is 
allowed  on  the  amount  due  on  an  insurance  policy  from 
the  time  it  was  payable. C") 

C)  Bigelow,  C.  J.,  in  Foote  v.  Blanchard,  6  All.  221. 

C)  Brickell,  J.,  in  Alabama  v.  Lott,  69  Ala.  147,  155 

(°)  I  Wms.  Saund.  201  n ;  Osbourne  v.  Hosier,  6  Mod.  167 ;  Wilmans  v. 
Bank  of  Illinois,  6  111.  667 ;  North  R.  M.  Co.  v.  Christ  Church,  22  N.  J.  L. 
425  ;  Sayre  v.  Austin,  3  Wend.  496 ;  Sumner  7/.  Beebe,  37  Vt.  562. 

C)  Gibbs  V.  Fremont,  9  Ex.  25  ;  Kitchen  i/.  Branch  Bank  at  Mobile,  14  Ala. 
233 ;  Swett  V.  Hooper,  62  Me.  54. 

if)  Fisher  v.  Bidwell,  27  Conn.  363. 

0  Mead  v.  Wheeler,  13  N.  H.  351 ;  Littler.  Banks,  85  N.  Y.  258 ;  Winch  v. 
Mutual  B.  I.  Co.  86  N.  Y.  618.  In  Texas,  from  the  filing  of  the  suit :  Yellow 
Pine  L.  Co.  v.  Carroll,  76  Tex.  135. 

(s)  Custis  V.  Adkins,  i  Houst.  382  ;  Rice  v.  Boston,  P.  &  S.  A.  Soc,  56  N. 
H.  191  ;  Hennion  v.  Jacobus,  27  N.  J.  Eq.  28;  Devlin's  Estate,  Tucker  (N.  Y.) 
460 ;  German  v.  German,  7  Coldw.  180 ;  Vermont  S.  B.  C.  v.  Ladd,  58  Vt.  95. 

C)  Field  V.  Insurance  Co.  of  N.  A.,  6  Biss.  121;  Swamscot  M.  Co.  v. 
Partridge,  25  N.  H.  369,  380. 


§  302.  TIME   FROM    WHICH   INTEREST   RUNS.  441 

Interest  is  not  allowable  on  the  recovery  of  the  whole 
amount  of  a  premium  note  for  the  non-payment  of  an 
assessment,  because  it  is  a  penalty  and  in  no  sense  money 
due.C)  But  where  the  suit  on  the  note  is  only  for  the 
amount  of  the  assessments  for  losses  actually  incurred, 
interest  is  chargeable  from  the  date  when  the  assessments 
were  payable.  C")  Where  one  partner  fails  to  advance  his 
share  of  capital,  according  to  agreement,  the  measure  of 
damages  is  interest  on  the  amount  that  should  have  been 
furnished.^) 

§  302.  Time  from  which  interest  runs. — In  each  case  all 
the  circumstances  of  the  transaction  must  be  considered 
in  order  to  determine  when  the  defendant  was  in  default. 
Where  the  money  is  payable  at  a  fixed  time,  interest  is 
allowed  from  that  time.  When  it  is  payable  on  demand, 
interest  runs  only  from  the  time  of  demand.  So  where 
a  bank  has  stopped  payment,  interest  is  not  allowed  in 
England  upon  its  notes  payable  on  demand  until  they 
have  been  presented  for  payment.  C^)  Where,  however, 
a  bond  is  given,  conditioned  for  the  payment  of  money, 
and  it  is  not  made  payable  either  upon  demand  or  at  a 
fixed  time,  it  is  held  that  interest  runs  from  the  date  of 
the  bond.(^)  Where  payment  is  postponed  to  some 
future  day,  or  till  the  happening  of  some  event,  interest 
should  be  allowed  from  that  day,  or  from  the  happening 
of  that  event.  Thus  where  labor  was  to  be  paid  for  in 
mortgages  and  promissory  notes,  it  was  held  that  interest 
could  only  be  allowed  from  the  time  the  notes  would 
have  fallen  duc^)     Where  money  is  payable  on  demand, 

(»)  Bangs  V.  Mcintosh,  23  Barb.  591 ;  Bangs  v.  Bailey,  37  Barb.  630. 

C)  Hyatt  V.  Wait,  37  Barb.  29. 

(")  Krapp  V.  Aderholt,  42  Kas.  247. 

f)  In  re  Herefordshire  Banking  Co.,  L.  R.  4  Eq.  250. 

(")  Purdy  V.  Philips,  11  N.  Y.  406;  Kent  v.  Kent,  28  Gratt.  840. 

(0  Tiernan  v.  Granger,  65  111.  351. 


442  INTEREST.  §  3O3. 

and  no  demand  is  made  prior  to  the  commencement  of  the 
action,  interest  from  that  time  can  be  recovered.  The 
commencement  of  the  action  is  a  demand. (")  Where 
a  lunatic  transferred  stock,  and  afterward  sued  the  cor- 
poration to  recover  dividends,  interest  w^as  held  recov- 
erable on  the  dividends  from  the  time  the  lunacy  was 
judicially  established,  to  the  knowledge  of  the  corpora- 
tion.(^)  In  Hastings  v.  Westchester  Fire  Ins.  Co.jC)  a 
fire  insurance  policy  made  the  loss  payable  sixty  days 
after  notice  and  proof  of  loss.  It  was  held  that  interest 
was  to  be  allowed  from  the  expiration  of  the  sixty  days, 
and  not  from  the  adjustment  of  the  loss. 

§  303.  Money  illegally  acquired  or  used. — Where  a  party 
knowingly  keeps  money  w^hich  he  has  no  right  to,  he  is 
chargeable  with  interest  from  the  time  he  should  have 
paid  it  over.  Thus  where  a  defendant  is  sued  for  money 
fraudulently  obtained,  he  is  chargeable  with  interest  from 
the  time  of  receiving  the  money.  (*)  So  he  is  charge- 
able with  interest  on  money  illegally  exacted  and  paid 
under  protest.  (^)  When  money  is  received  by  a  party 
who  improperly  converts  it  to  his  own  use,  he  must  pay 
interest  from  the  time  of  such  conversion.  (^)     So  when 

(")  Gammell  v.  Skinner,  2  Gall.  45  ;  Hunter  v.  Wood,  54  Ala.  71 ;  Hall 
V.  Farmers'  &  C.  S.  B.  55  la.  612;  House  v.  McKenney,  46  Me.  94;  Hunt  v. 
Nevers,  15  Pick.  500;  Harrison  v.  Conlan,  10  All.  85;  Thwing  z/.  Great 
Western  I.  Co.,  in  Mass.  93 ;  Rawson  v.  Grow,  4  E.  D.  Smith  18. 

0")  Chew  V.  Bank  of  Baltimore,  14  Md.  299. 

C)  73  N.  Y.  141. 

(■>)  Woodw.  Robbins,  11  Mass.  504;  Atlantic  N.  'Q.v.  Harris,  118  Mass. 
147;  Manufacturers'  N.  B.  v.  Perry,  144  Mass.  313;  Silver  V.  M.  Co.  t/. 
Baltimore  G.  &  S.  M.  &  S.  Co.,  99  N.  C.  445. 

C)  Stewart  v.  Schell,  31  Fed.  Rep.  65;  Graham  v.  Chicago  M.  &  S.  P. 
Ry.  Co.,  53  Wis.  473. 

O  London  Bank  v.  White,  L.  R.  4  App.  Cas.  413 ;  Kirkman  v.  Vanlier,  7 
Ala.  217;  Lewis  v.  Bradford,  8  Ala.  632;  White  v.  Lyons,  42  Cal.  279; 
Robbins  v.  Laswell,  58  111.  203;  Stern  v.  People,  102  111.  540;  Cassady  w. 
Trustees  of  Schools,  105  III.  560 ;  Taylor  v.  Knox,  l  Dana  391  ;  Andrews  v. 


§  303.         MONEY   ILLEGALLY   ACQUIRED   OR   USED.  443 

money  has  been  improperly  withheld  by  a  public  officer, 
or  where  a  sheriff  retains  money  after  the  return  day  of 
the  execution,  he  is  liable  for  interest.' C)  So,  in  an 
action  on  a  constable's  bond,  for  not  paying  over  money 
collected  by  him  under  an  execution,  it  was  held  that 
interest  should  be  allowed.C') 

Where  a  person  holding  a  fiduciary  relation  to  another 
retains  money  after  being  required  to  pay  it  over,  interest 
runs  from  the  time  when  it  should  have  been  paid  over ;  (°) 
and  where  a  trustee  mingles  the  trust  funds  with  his  own, 
he  must  pay  interest  on  the  amount.(*)  In  Jefferson 
City  Savings  Association  v.  Morrison, (")  the  plaintiff,  as 
assignee,  brought  an  action  for  money  had  and  received. 
The  action  was  based  on  a  receipt  stating  that  part  of 

'  Slingerland  v.  Swart,  13  Johns.  255  ;  Crane  v.  Dyg^rt,  4  Wend.  675. 


Clark,  20  Atl.  Rep.  429  (Md.);  Hubbard  v.  Charlestown  B.  R.R.  Co.,  11 
Met.  124;  Goff  V.  Rehoboth,  2  Cush.  475;  Hill  v.  Hunt,  9  Gray  66;  Dunlap 
V.  Watson,  124  Mass.  305  ;  Crabtree  v.  Randall,  133  Mass.  552  ;  Tarpley  v. 
Wilson,  33  Miss.  467 ;  Hudson  v.  Tenney,  6  N.  H.  456 ;  Lynch  v.  DeViar, 
3  Johns.  Cas.  303 ;  People  v.  Gasherie,  9  Johns.  71  ;  Greenly  v.  Hopkins,  10 
Wend.  96;  White  v.  Smith,  54  N.  Y.  522  ;  Griggs  v.  Griggs,  56  N.  Y.  504; 
Com.  V.  Crevor,  3  Binn.  121;  Crane  v.  Thayer,  18  Vt.  162;  School  Dist.  v. 
Dreutzer,  51  Wis.  153. 

(')  Paige  V.  Willet,  38  N.  Y.  28  ;  Thompson  v.  Sweet,  73  N.  Y.  622. 

C")  Magner  v.  Knowles,  67  111.  325. 

(■=)  Rapelie  v.  Emory,  i  Dall.  349 ;  Shipman  v.  Miller,  2  Root  405  ;  Sanders 
V.  Scott,  68  Ind.  130;  White  v.  Ditson,  140  Mass.  351;  Pickering  v.  De 
Rochemont,  60  N.  H.  179;  Slingerland  v.  Swart,  13  Johns.  255;  Lyons  z/. 
Chamberlin,  25  Hun  49;  Monroe  County  z/.  Clarke,  25  Hun  282;  Neal  v. 
Freeman,  85  N.  C.  441 ;  McRae  v.  Malloy,  87  N.  C.  196 ;  Simpson  v.  Feltz, 
I  McC.  Eq.  213. 

(■•)  Aldridge  v.  McClelland,  36  N.  J.  Eq.  288 ;  Manning  v.  Manning,  i 
Johns.  Ch.  527  ;  Duffy  v.  Duncan,  35  N.  Y.  187  ;  Hess'  Estate,  68  Pa.  454  ; 
Norris'  Appeal,  71  Pa.  106,  123  ;  Perkins  v.  HoUister,  59  Vt.  348.  If  profits 
were  made,  the  plaintiff  has  the  option  to  recover  the  profits  or  interest. 
Kyle  V.  Bamett,  17  Ala.  306;  Whitney  w.  Peddicord,  63  111.  249.  For  the 
recovery  of  compound  interest,  see  §  342  ff. 

(»)  48  Mo.  273. 


444  INTEREST.  §  304. 

the  money  was  to  be  placed  to  the  account  of  the  as- 
signor of  the  chose  in  action  on  an  obligation  of  his  to 
a  third  party.  The  defendant  having  failed  to  place  it  to 
his  account,  interest  on  the  amount  was  given.  In  de- 
livering the  decision  the  following  language  was  used  by 
the  court :  "  Where  money  is  received  by  a  party  who 
applies  it  to  his  own  use,  or  otherwise  detains  it,  it  is  but 
just  that  he  should  pay  interest  upon  the  money  so  used 
or  detained,  and  the  courts  of  this  country  hold  him  to 
that  liability.  If,  therefore,  the  defendant  in  this  cause 
applied  the  funds  intrusted  to  him  to  his  own  use,  or 
otherwise  improperly  detained  them,  he  should  be  held 
liable  for  the  interest."  An  agent  with  whom  money  is 
deposited  for  a  definite  owner  is  chargeable  with  the  in- 
terest which  he  receives  for  the  use  of  such  money.  (") 

§  304.  Money  paid  out  for  the  defendant.  —  Where 
money  is  advanced  to  a  party  at  his  request,  or  by  one 
who  is  entitled  to  make  such  advances  (as  an  agent  or 
trustee),  the  money  advanced  bears  interest  from  the 
time  it  is  paid  out.C*)  So  where  the  plaintiff  has  been 
compelled  to  pay  money  for  which,  in  equity,  he  must 
be  reimbursed  by  the  defendant  (as  when  he  was  surety 
for  the  defendant),  he  may  recover  interest  from    the 


(")  Bassett  v.  Kinney,  24  Conn.  267. 

f)  Craven  z/.  Tickell,  i  Ves.  jr.  60;  Howard  v.  Behn,  27  Ga.  174;  Under- 
hill  V.  Gaff,  48  III.  198  ;  Cease  v.  Cockle,  76  111.  484;  Goodnow  v.  Litch- 
field, 63  la.  275  ;  Goodnow  v.  Plumbe,  64  la.  672  ;  Taylor  v.  Knox,  i  Dana 
391;  Winthrop  v.  Carleton,  12  Mass.  4 ;  Weeks  v.  Hasty,  13  Mass.  218; 
Gibbs  V.  Bryant,  i  Pick.  118;  Isley  v.  Jewett,  2  Met.  168  ;  French  v.  French, 
126  Mass.  360;  Chamberlain  v.  Smith,  i  Mo.  718;  Ashuelot  R.R.  Co. 
V.  Elliot,  57  N.  H.  397;  Gillel  v.  Van  Rensselaer,  15  N.Y.  397;  Milne  v. 
Rempublicam,  3  Yeates  102  ;  Hodges  v,  Hodges,  9  R.  I.  32  ;  Cheesborough 
r*.  Hunter,  i  Hill  (S.  C.)  400;  SoUee  v.  Meugy,  i  Bail.  620;  Walters  v. 
McGirt,  8  Rich.  287  ;  Barr  v.  Haseldon,  10  Rich.  Eq.  53 ;  Grimes  v.  Hagood, 
19  Tex.  246  ;  Fisk  v.  Brunette,  30  Wis.  102. 


§  305.       MONEY  HAD  AND  RECEIVED  BY  DEFENDANT.         445 

time  of  payment.  (")  This  is  recovered  as  damages, 
and  should  be  at  the  legal  rate,  no  matter  what  was  the 
rate  due  on  the  obligation  discharged  by  the  surety.  (^) 

In  a  suit  for  contribution  between  co-sureties,  the 
plaintiff  may  recover  interest.^)  So  in  a  suit  against  a 
co-tenant  for  recovery  of  the  plaintiff's  share  of  the 
profits.  ('')  Where  two  parties  are  to  advance  money 
equally  for  a  common  undertaking,  one  who  advances 
more  than  his  share  is  entitled  to  interest  on  the  ex- 
cess. (°)  In  the  case  of  a  trading  partnership,  however, 
it  is  generally  held  that  one  partner  who  makes  advances 
to  the  firm,  or  puts  in  more  than  his  share  of  capital, 
cannot,  in  absence  of  agreement  or  custom,  recover  in- 
terest, Q  though  in  some  States  he  is  allowed  to  do 
so.(^)  It  is  usually  held  that  money  lent  by  the  plaintiff 
to  the  defendant  in  the  absence  of  agreement  bears  in- 
terest from  the  time  of  the  loan.C") 

§  305.  Money  had  and  received  by  the  defendant. — 
Where  a  defendant,  as  for  instance  a  mere  depositary  or 

(*)  Petre  v.  Buncombe,  15  Jur.  86;  20  L.  J.  Q.  B.  242;  Smith  v. 
Johnson,  23  Cal.  63 ;  Miles  v.  Bacon,  4  J.  J.  Marsh  457  ;  Hastie  v.  De 
Peyster,  3  Cai.  190 ;  Thompson  v.  Stevens,  2  N.  &  McC.  493 ;  Sims  v. 
Goudelock,  7  Rich.  23. 

C")  Smith  V.  Johnson,  23  Cal.  63.  It  has  been  held  in  Georgia,  how- 
ever, that  the  surety,  being  substituted  for  the  principal  creditor,  could  re- 
cover interest  only  if  it  was  due  on  the  principal  obligation,  and  at  the  rate 
there  stipulated.     Knight  v.  Mantz,  i  Ga.  Dec.  22. 

(»)  Breckinridge  v.  Taylor,  5  Dana  110;  Aikin  v.  Peay,  5  Strobh.  15. 

('')  Scott  V.  Guernsey,  60  Barb.  163,  180;  Early  v.  Friend,  16  Gratt.  21  ; 
Vance  v.  Evans,  1 1  W.  Va.  342. 

(")  Buckmaster  v.  Grundy,  8  111.  626. 

C)  Prentice  v.  Elliott,  72  Ga.  154;  Lee  v.  Lashbrooke,  8  Dana  214; 
Sweeney  v.  Neely,  53  Mich.  421 ;  Clark  v.  Warden,  10  Neb.  87  ;  Morris  v. 
Allen,  14  N.  J.  Eq.  44  (semiU);  Jones  v.  Jones,  I  Ired.  Eq.  332 ;  Holden  v. 
Peace,  4  Ired.  Eq.  223. 

(e)  Reynolds  v.  Mardis,  17  Ala.  32 ;  Hodges  v.  Parker,  17  Vt.  242. 

(^)  Trelawney  v.  Thomas,  i  H.  Bl.  303  ;  Butler  v.  Butler,  10  R.  I.  501. 
But  contra,  Hubbard  v.  Charlestown  B.  R.R.  Co.,  11  Met.  124. 


446  INTEREST.  §  305. 

disbursing  agent,  rightfully  held  money  belonging  to  the 
plaintiff,  he  is  liable  for  interest  only  after  a  demand  for 
payment.  C)  So  where  an  agent  receives  money  for  his 
principal  and  is  under  no  obligation,  by  contract  or 
otherwise,  immediately  to  pay  it  over,  the  principal  can 
recover  interest  only  after  demand.(^)  So  where  the  de- 
fendant received  payment  for  services  rendered  jointly 
by  himself  and  the  plaintiff,  the  plaintiff  could  not  re- 
cover interest  on  his  share  without  demand.(°)  But 
where  it  is  the  duty  of  the  party  into  whose  hands  money 
of  another  comes  to  pay  it  over  in  a  reasonable  time,  or 
at  least  to  inform  the  owner  of  its  receipt,  interest  is 
allowed  after  the  lapse  of  a  reasonable  time.(*) 

In  Stacy  v.  Graham  (")  the  defendant  was  instructed 
by  a  third  party  to  remit  some  money  he  held  to  one 
Adams.  The  money  was  for  the  use  of  the  plaintiff, 
although  this  was  not  known  to  the  defendant.  On 
failing  to  remit  it,  it  was  held  that  he  must  be  charged 
with  interest.  Ruckman  v.  Pitcher  C)  was  an  action 
against  a  stakeholder  who,  under  plaintiff's  direction,  had 
paid  over  the  money  to  the  winner  of  a  wager.  It  was 
held  that  the  plaintiff  could  recover  interest  from  the 

(»)  U.  S.  V.  Curtis,  100  U.  S.  119;  U.  S.  v.  Denvir,  106  U.  S.  536  ;  Inger- 
soU  V.  Campbell,  46  Ala.  282 ;  Jones  v.  Mallory,  22  Conn.  386  ;  Myers  v. 
Walker,  24  111.  133  ;  Jessoy  v.  Horn,  64  111.  379;  Talbot  v.  Com.  N.  Bank,  129 
Mass.  67;  Black  v.  Goodman,  i  Bail.  201;  Close  z*.  Fields,  13  Tex.  623; 
Haswell  v.  Farmers'  &  M.  B.,  26  Vt.  too. 

C)  Pope  V.  Barret,  i  Mason  117  ;  Wlieeler  t/.  Haskins,  41  Me.  432  ;  EUery 
V.  Cunningham,  i  Met.  112;  Beardslee  v.  Horton,  3  Mich.  560;  Williams  v. 
Storrs,  6  Johns.  Ch.  353 ;  Neal  v.  Freeman,  85  N.  C.  441;  Porter  z;.  Grimsley, 
98  N.  C.  550  ;  Hauxhurst  v.  Hovey,  26  Vt.  544. 

C)  Neal  V.  Keel,  4  T.  B.  Mon.  162. 

(>•)  Chapman  v.  Burt,  77  111.  337  ;  Clark  v.  Moody,  17  Mass.  145,  149 ; 
Dodge  V.  Perkins,  9  Pick.  368 ;  Board  of  Justices  v.  Fennimore,  i  N.  J.  L. 
342- 

(•)  14  N.  Y.  492. 

O  20  N.  Y.  9. 


§  2,06.      MONEY  RECEIVED  OR  RETAINED  BY  MISTAKE.       447 

time  of  a  demand,  on  the  ground  that  he  had  never  lost 
his  right  to  the  money  and  was  entitled  to  its  return  when 
demanded.  In  Dodge  v.  Perkins  (")  the  defendant,  an 
agent,  had  collected  money  for  his  principal,  but  had 
neglected  to  pay  it  over,  or  to  notify  his  principal  that 
he  had  received  it.  In  an  action  for  money  had  and  re- 
ceived, it  was  held  that  the  agent  should  have  notified 
his  principal  of  the  receipt  of  the  money  after  a  reason- 
able time,  and  having  failed  to  do  so  interest  should  be 
allowed.  The  court,  after  reviewing  many  of  the  cases 
on  the  subject,  said :  "  Upon  the  principles  of  the  com- 
mon law  we  think  it  clear  that  interest  is  to  be  allowed 
where  the  law  by  implication  makes  it  the  duty  of  the 
party  to  pay  over  the  money  to  the  owner  without  any 
previous  demand  on  his  part.  Thus,  where  it  was  ob- 
tained and  held  by  fraud,  interest  should  be  calculated 
from  the  time  when  it  was  received.  So  where  there  has 
been  a  default  of  payment  according  to  agreement,  express 
or  implied,  to  pay  on  a  day  certain,  or  after  demand  or 
after  reasonable  time."  (")  In  Thompson  v.  Stewart  (") 
the  court  used  the  following  language :  "  Had  it  become 
the  duty  of  the  defendant  to  pay  the  money  to  his  prin- 
cipal, if  through  wrong  or  neglect  he  had  detained  it,  it 
would  be  reasonable  that  interest  for  the  detention  should 
be  allowed." 

§  306.  Money  received  or  retained  by  mutual  mistake. — 
Where  the  defendant  has  money  of  the  plaintiff  through 
mutual  mistake,  there  can  be  no  interest  till  demand.C^) 

(»)  9  Pick.  368,  388. 

(•>)  See  ace.  Chapman  v.  Burt,  ^^  111.  337  ;  Close  v.  Fields,  13  Tex.  623. 

(0  3  Conn.  171. 

(■*)  Northrop  v.  Graves,  19  Conn.  548  ;  Haven  v.  Foster,  9  Pick.  112  ;  Sib- 
ley V.  Pine  County,  31  Minn.  201;  Ashhurst  v.  Field,  28  N.J.  Eq.  315; 
Jacobs  V.  Adams,  i  Dall.  52 ;  Simons  v.  Walter,  i  McC.  97.  But  in  Illinois 
interest  is  payable  (by  statute)  only  where  there  is  an  unreasonable  or  vexa- 
tious delay  after  demand:  Devine  v.  Edwards,  loi  111.  138. 


448  INTEREST.  §§  307,   308. 

So  where  an  account  is  underpaid  by  mutual  mistake, 
there  can  be  no  interest  on  the  balance  till  demand.  (") 

§  307.  Rent— Distraint. — Where  rent  due  by  an  agree- 
ment is  not  paid,  interest  may  be  recovered  on  the 
amount  from  the  day  on  which  it  should  have  been 
paid.C*)  So  in  an  action  for  use  and  occupation,  or  for 
mesne  profits,  where  the  recovery  is  of  a  sum  in  the 
nature  of  rent,  interest  is  allowed  on  each  annual  sura 
from  the  end  of  the  year ;  (°)  or  where  rent  was  payable 
quarterly,  from  the  quarter  day.C^)  And  so  on  breach  of 
a  contract  to  hire  rooms  at  a  certain  price  the  defendant 
was  held  to  pay  interest  from  the  end  of  the  term  on  the 
difference  between  the  contract  price  and  that  obtained 
on  reletting  the  rooms.  (')  But  where  the  landlord  dis- 
trains, it  must  be  only  for  the  amount  of  the  rent,  with- 
out interest ;  that  remedy  is  to  recover  the  rent,  not 
damages  for  delay  in  paying  it.(') 

§  308.  Price  of  property  or  work  fixed— Sales— Action  for 
price. — There  can  be  no  doubt  (though  it  has  not  always 
been  so  held)  that  where  goods  are  sold  or  work  done  at 

(»)  Second  &  Third  St.  Pass.  Ry.  Co.i'.  Philadelphia,  51  Pa.  465  ;  Brainerd 
V.  Champlain  Transp.  Co.,  29  Vt.  1 54. 

C)  Stockton  V.  Guthrie,  5  Harr.  204;  Walker  v.  Hadduck,  14  111.  399; 
West  Chicago  Alcohol  Works  v.  Sheer,  8  Bradw.  367 ;  Honore  v.  Murray, 
3  Dana  31  ;  Elkin  v.  Moore,  6  B.  Mon.  462;  Burnham  v.  Best,  10  B.  Mon. 
227 ;  Dennison  v.  Lee,  6  G.  &  J.  383 ;  Howcott  v.  Collins,  23  Miss.  398 ; 
Clark  V.  Barlow,  4  Johns.  183  ;  Van  Rensselaer  v.  Jones,  2  Barb.  643  ;  Ten 
Eyck  V.  Houghtaling,  12  How.  Pr.  523  ;  Albright  v.  Pickle,  4  Yeates  264; 
Obermyer  v.  Nichols,  6  Binn.  159 ;  Buck  v.  Fisher,  4  Whart.  516 ;  Naglee  v. 
Ingersoll,  7  Pa.  St.  185  ;  Newman  v.  Keffer,  33  Pa.  442.  Contra :  Cooke  v. 
Wise,  3  H.  &  M.  463;  but  by  a  statute  immediately  passed  interest  is  al- 
lowed on  arrears  of  rent.  Brooks  v.  Wilcox,  11  Gratt.  411,  419. 

(0  Cooke  V.  Farinholt,  3  Ala.  384 ;  Worrall  v.  Munn,  38  N.  Y.  137 ;  Early 
V.  Friend,  16  Gratt.  21  ;   Boiling  v.  Lersner,  26  Gratt.  36. 

C)  Hodgkins  v.  Price,  141  Mass.  162  ;  Jackson  v.  Wood,  24  Wend.  443; 
Vandevoort  v.  Gould,  36  N.  Y.  639. 

(«)  De  Lavalette  v.  Wendt,  75  N.  Y.  579. 

Q  Lansing  v.  Rattoone,  6  Johns.  43. 


§  308.  PRICE   OF   PROPERTY  OR   WORK   FIXED.  449 

a  fixed  price,  the  demand  is  a  liquidated  one,  and  interest 
may  be  recovered  on  tiie  amount  from  the  time  payment 
is  due.  So  where  goods  are  sold  for  cash,  interest  may 
be  recovered  on  the  price  from  the  time  of  sale  ;  (")  and 
if  no  time  of  credit  is  given,  it  will  be  held  a  cash  sale, 
and  interest  will  be  given  from  the  time  of  the  salc^*) 
Where  goods  are  sold  on  credit,  interest  may  be  recov- 
ered from  the  expiration  of  the  credit.('')  If  no  time  is 
fixed  for  payment,  interest  may  be  recovered  from  the 
time  of  demand.C^)  or  from  the  date  of  the  writ  if  there 
has  been  no  demand.  (') 

In  accordance  with  these  cases,  where  a  purchaser 
refused  to  accept  goods  he  had  bought  at  auction,  he  was 
held  to  pay  interest  on  the  difference  between  the  price 
he  bid  and  that  obtained  on  a  resale  (')  (which  was  in 
effect  the  balance  of  the  purchase-money).  So  where  the 
purchaser  of  land  took  possession  of  it,  but  the  time  for 
conveyance  was  delayed,  though  without  his  fault,  he  was 
required  to  pay  interest  on  the  purchase-money. (^)  If 
the  price  is  fixed  by  the  contract,  the  fact  that  there  is 
a  dispute  about  the  quantity  or  quality  of  the  goods 


(*)  Waring  v.  Henry,  30  Ala.  721 ;  Maltman  v,  Williamson,  69  III.  423  ; 
Wyandotte  &  K.  C.  G.  Co.  v.  Schliefer,  22  Kas.  468 ;  Henderson  C.  M.  Co. 
V.  Lowell  Machine  Shops,  86  Ky.  668  ;  Smith  v.  Shaffer,  50  Md.  132  ;  Foote 
V.  Blanchard,  6  All.  221 ;   Pollock  v.  Ehle,  2  E.  D.  Smith  541. 

('')  Atlantic  P.  Co.  v.  Grafflin,  114  U.  S.  492  ;  Shields  v.  Henry,  31  Ala. 
53 ;  Roberts  v.  Wilcoxson,  36  Ark.  355  ;  Sturges  v.  Green,  27  Kas.  235  ;  Pol- 
lock V.  Ehle,  2  E.  D.  Smith  541. 

C^)  Milton  V.  Blackshear,  8  Fla.  161  ;  Wiltburger  v.  Randolph,  Walker 
(Miss.)  20 ;  National  Lancers  v.  Lovering,  30  N.  H.  511  ;  Blakeley  v.  Jacob- 
son,  9  Bosw.  140 ;  Raj-mond  v.  Isham,  8  Vt.  258  ;  Porter  v.  Hunger,  22  Vt. 
191.     But  contra,  Ganimage  v.  Alexander,  14  Tex.  414. 

i^)  Milton  V.  Blackshear,  8  Fla.  161  ;  Livermore  v.  Rand,  26  N.  H.  85. 

(«)  Mcllvaine  v.  Wilkins,  12  N.  H.  474. 

O  Blackwood  z/.  Leman,  Harp.  219;  Wolfe  i*.  Sharp,  10  Rich.  60. 

(e)  Ballard  v.  Shutt,  15  Ch.  D.  122 ;  Sohier  v.  Williams,  2  Curt.  C.  C.  195  ; 
Fasholt  V.  Reed,  16  S.  &  R.  266. 
Vol.  I. — 29 


450  INTEREST.  §  308. 

delivered  does  not  relieve  the  defendant  from  the  pay- 
ment of  interest  on  the  sum  due.(") 

It  has  been  held  in  some  jurisdictions  that  interest  may 
be  recovered  after  a  reasonable  time  for  payment  has 
expired.  Thus  in  Beers  v.  Reynolds  (**)  the  plaintiff  sold 
some  goods  to  the  defendant  for  a  fixed  price.  Gardiner, 
J.,  said:  "  No  precise  time  of  credit  was  given.  When, 
therefore,  after  a  reasonable  time  had  elapsed,  and  the 
account  was  presented,  and  impliedly  admitted,  the  de- 
fendants were  in  default  for  withholding  payment,  and 
interest  was  properly  chargeable  from  the  time  of  the 
demand." 

The  same  is  true  in  actions  to  recover  for  work  done 
at  an  agreed  price.  Where  the  price  was  to  be  paid  on 
a  .fixed  day,  interest  runs  from  that  time.(°)  Where  no 
time  is  fixed  for  payment,  interest  runs  from  demand  ;  C^) 
or  if  there  has  been  no  demand,  from  the  date  of  the 
writ.(*)  And  where  payment  has  been  long  delayed  it 
has  been  held  that  the  jury  may  give  interest  from  the 
expiration  of  a  reasonable  time  ;  the  allowance  of  interest 
being  said  to  rest  in  the  discretion  of  the  jury  in  the 
sense  that  they  can  fix  the  time  for  it  to  begin  running. (') 


(•)West  Republic  Mining  Co.  v.  Jones,  108  Pa.  55  ;  Vaughanz'.  Howe,  20 
Wis.  497. 

(•>)  II  N.  Y.  97. 

(")  Moore  v.  Patton,  2  Port.  451 ;  Parker  v.  Parker,  33  Ala.  459 ;  Mix  v. 
Miller,  57  Cal.  356 ;  Ruckman  v.  Bergholz,  37  N.  J.  L.  437  ;  Kennedy  v. 
Barnwell,  7  Rich.  1 24. 

if)  Gammell  v.  Skinner,  2  Gall.  45  ;  Amee  v.  Wilson,  22  Me.  116;  Barnard 
V.  Bartholomew,  22  Pick.  291  ;  Pierce  v.  Charter  Oak  Life  Ins.  Co.,  138  Mass. 
151  ;  Ruckman  v.  Bergholz,  37  N.  J.  L.  437  ;  Robbins  v.  Carll,  93  N.  Y.  656; 
Chase  v.  Union  .Stone  Co.,  1 1  Daly  107. 

(«)  Moore  v.  Patton,  2  Port.  451  ;  McFadden  v.  Crawford,  39  Cal.  662  ; 
Feeter  v.  Heath,  11  Wend.  477  ;  McCollum  v.  Seward,  62  N.  Y.  316  ;  Case 
■V.  Osborn,  60  How.  Pr.  187. 

0  Black  V.  Reybold,  3  Harr.  528;  Young  v.  Dickey,  63  Ind.  31  ;  Rend  v. 
J?oord,  75  Ind.  307  ;  Wills  v.  Brown,  3N.  J.  L.  411. 


§§  309'  3IO-        SIMPLE    RUNNING   ACCOUNT.  45 1 

§  309.  Demand  prevented  by  defendant's  act. — Where  the 
defendant,  by  his  acts,  makes  a  demand  impossible  or 
useless,  interest  may  be  recovered  from  the  date  of  such 
act.  In  Chemical  Nat.  Bank  v.  Bailey  (*)  the  plaintiff 
had  been  a  depositor  in  a  bank  of  which  the  defend- 
ant was  the  receiver.  On  winding  up  the  affairs  of  the 
bank,  there  proved  to  be  sufficient  assets  to  pay  the 
depositors  in  full  and  leave  a  surplus.  The  question 
arose,  whether  the  depositors  should  be  allowed  interest 
before  dividing  the  surplus.  Wallace,  J.,  after  saying 
that  interest  was  allowed  as  a  matter  of  right  where  there 
vi^as  a  wrongful  detention  of  a  debt,  said  :  "  Ordinarily, 
an  action  cannot  he  maintained  by  a  depositor  against  a 
bank,  until  a  formal  demand  has  been  made  ;  and,  of 
course,  no  interest  can  be  recovered  except  that  arising 

after  the  demand But  if  the  bank,  by  words  or 

conduct,  denies  the  depositor's  right  to  his  balance,  it 
becomes  presently  liable  to  an  action,  without  formal 
demand,  and  interest  would  be  recoverable  as  damages." 
In  this  case  it  was  held  that  putting  its  assets  in  the 
hands  of  a  receiver  was  a  wrongful  act  as  regards  the 
depositors,  and  they  were,  therefore,  entitled  to  inter- 
est. C")  In  a  case  where  the  defendant  absented  himself 
from  the  State,  so  that  a  demand  could  not  be  made  upon 
him,  it  was  held  that  interest  might  be  recovered  from 
the  time  the  services  were  rendered. (°) 

§  310.  Simple  running  account. — It  has  often  been  said 
that  a  running  account  does  not  bear  interest,  without 
an  agreement  or  custom  that  it  shall.('^)     Where  there  is 

(»)  12  Blatch.  4S0. 

O  See  also  Jenkins  v.  Armour,  6Biss.  312. 

(«)  Graham  v.  Chrystal,  2  Keyes  21  ;  S.  C.  2  Abb.  App.  263. 

('')  Selleck  i*.  French,  I  Conn.  32  ;  Dayw.  Lockwood,  24  Conn.  185  ;  Crosby 
V.  Mason,  32  Conn.  482  ;  Harrison  v.  Handley,  i  Bibb  443  ;  Hunt  v.  Nevers, 
IS  Pick.  500;  Goffz'.  Rehoboth,  2  Gush.  475  ;  Flanneryj/.  Anderson,  4  Nev, 


452  INTEREST.  §310- 

an  open  running  account— for  example,  an  account  for 
domestic  supplies — it  is  reasonable  to  suppose  that  it  was 
the  intention  to  allow  credit ;  the  fact  of  a  charge  being 
in  an  account,  in  other  words,  shows  that  an  indefinite 
credit  was  allowed.  No  interest  should  therefore  be 
given,  generally,  until  demand  for  payment ;  or  if  there 
is  no  demand,  until  the  date  of  the  writ.  This  is  in  fact 
the  rule  now  recognized.  The  courts  no  longer  inquire 
whether  the  plaintiff's  demand  is  in  form  an  account ; 
many  of  the  cases  already  cited  allowing  interest  were 
claims  brought  on  a  simple  account.  (*) 

Interest  is  sometimes  allowed  from  the  time  the  ac- 
count is  closed,  that  is,  from  the  date  of  the  last  item.C") 
In  Vermont,  interest  is  allowed  at  the  expiration  of  a 
year ;  (")  but  if  the  defendant  was  ignorant  of  an  item  of 
charge,  interest  does  not  run  till  demand.(*)  In  Missis- 
sippi, by  statute,  the  jury  may  allow  interest  on  open  ac- 
counts. (")     And  interest  is  often  allowed  upon  accounts 


437  (by  statute)  ;  Doyle  w.  St.  James'  Church,  ^  Wend.  178;  Kane  v.  Smith, 
12  Johns.  156  ;  Van  Beuren  v.  Van  Gaasbeck,  4  Cow.  496  ;  Tucker  v.  Ives, 
6  Cow.  193 ;  Newell  v.  Griswold,  6  Johns.  45 ;  Trotter  v.  Grant,  2  Wend. 
413;  Wood  V.  Hickok,  2  Wend.  501  ;  Esterly  v.  Cole,  3  N.  Y.  502; 
Henry  v.  Risk,  i  Dall.  265;  Williams  v.  Craig,  i  Dall.  313;  Graham  v. 
Wiliams,  16  S.  &  R.  257;  Knight  v.  Mitchell,  3  Brev.  506  ;  Goddardz/.  Bulow. 
I  N.  &  McC.  45  ;  Conyers  v.  Magrath,  4  McC.  392  ;  Farrand  v.  Bouchell, 
Harp.  83 ;  Cloud  v.  Smith,  i  Tex.  102 ;  Marsh  v.  Fraser,  37  Wis.  149 ; 
Shipmanz/.  State,  44  Wis.  458;  Martin  f.  State,  Ji  Wis.  407.  But  contra, 
Houghton  V.  Hagar,  Brayt.  (Vt.)  133. 

(")  £.£-.  Moore  v.  Patton,  2  Port.  451  ;  Young  v.  Dickey,  63  Ind.  31  ; 
Rend  v.  Boord,  75  Ind.  307 ;  Barnard  v.  Bartholomew,  22  Pick.  291 ; 
Wiltburger  v.  Randolph,  Walk.  (Miss.)  20 ;  Blakely 7/.  Jacobson,  9  Bosw.  140 ; 
Chase  v.  Union  Stone  Co.,  1 1  Daly  107. 

C)  Leyde  v.  Martin,  16  Minn.  38  ;  Dickenson  v.  Gould,  2  Tyler  32. 
(")  Wood  V.  Smith,  23  Vt.  706  ;  Davis  v.  Smith,  48  Vt.  52. 
{^)  Langdon  v.  Castleton,  30  Vt.  285. 

(•)  Houston  V.  Crutcher,  31  Miss.  51 ;  Thompson  v.  Matthews,  56  Miss. 
368. 


§  311-  BALANCE   OF   A   MUTUAL   ACCOUNT.  453 

by  statute,  from  a  certain  date,  as  from  the  date  of  the 
last  item,^)  or  six  months  after  such  date.(^) 

§  311.  Balance  of  a  mutual  account. — Where  there  is  a 
mutual  account,  a  different  principle  governs.  Until  the 
account  is  gone  over  and  balanced,  there  is  usually  no 
means  of  telling  which  party  is  the  debtor  and  what 
the  amount  of  the  debt  is.  Cogsequently,  as  a  general 
rule  no  interest  can  be  recovered  upon  a  mutual  account 
until  it  is  balanced, (")  and  on  this  principle  interest  is 
generally  disallowed  as  between  partners,  in  accounts  of 
the  partnership. C)  It  would  seem  that  no  interest 
should  be  recovered  until  the  verdict,  unless  the  defend- 
ant was  in  fault  for  not  having  the  account  sooner  liqui- 
dated. It  is,  however,  held  in  Massachusetts  that  interest 
may  be  recovered  from  the  commencement  of  legal  pro- 
ceedings.(')  If,  however,  it  became  the  defendant's  duty 
to  have  the  account  adjusted  on  a  certain  day,  and  he 
failed  to  do  so,  interest  on  the  balance  found  due  will  be 
allowed  from  that  time.  So  where  the  defendant  agreed 
that  the  account  should  be  adjusted  on  a  certain  day  ;  {') 
and  where  the  plaintiff,  after  a  reasonable  time  made  a 
demand  for  an  accounting.  So  in  Gleason  v.  Briggs  (^) 
there  had  been  mutual  charges  and  credits.  At  one  time 
the  parties  met  to  make  a  settlement,  but  none  was  ef- 
fected.    Redfield,  C,  J.,  said  (p.  140)  : 

"  The  interest  seems  to  have  been  cast  upon  what  the  auditors 


(»)  Col.  Gen.  St.  §  1707  ;  Bergundthal  v.  Bailey,  25  Pac.  Rep.  86  (Col.). 

C)  Neb.  Comp.  St.  f.  44,  §4  ;  W^estonw.  Brown,  46  N.  W.  Rep.  826  (Neb.). 

(=)  Clark  V.  Ciark,  46  Conn.  586  ;  Davis  v.  Walker,  18  Mich.  25  ;  Ray- 
mond V.  [sham,  8  Vt.  258. 

(•■)  Dexter  7/.  Arnold,  3  Mas.  284;  Gage  i-.  Parmelee,  87  111.  329;  Gilman 
V.  Vaughan,  44  Wis.  646. 

(•)  Stimpson  v.  Greene,  13  All.  326  ;  Freeman  v.  Freeman,  142  Mass.  98. 

0  Scroggs  V.  Cunningham,  8i  III.  1 10. 

(B)  28  Vt.  135,  140. 


454  INTEREST.  §  312. 

found  to  be  due  to  the  plaintiff  in  1836,  at  the  time  they  met  and 
attempted  to  settle,  and  which  was  fairly  enough,  perhaps,  re- 
garded as  a  demand  or  claim  of  payment  upon  both  sides,  for 
what  should  happen  to  be  due.  And  if  it  had  turrel  out  that 
the  plaintiff  owed  the  defendant  at  that  time  a  balance,  it  would 
seem  just  to  give  him  interest,  and  that  is  what  the  auditors  did 
for  the  plaintiff.  The  law  will  always  imply  a  contract  to  pay 
interest  upon  a  debt  payable  upon  demand,  after  demand  made, 
by  way  of  damages  for  the  delay.  The  cases  upon  this  subject 
may  not  all  be  reconcilable,  but  this  is  almost  the  universal 
rule." 

Where  the  account  has  been  stated  by  the  parties  and 
a  balance  struck,  it  is  payable  at  once,  and  interest 
runs  from  the  accounting ;  (")  and  where  an  account  was 
rendered  by  the  plaintiff  showing  a  balance  due,  and  was 
received  and  kept  by  the  defendant  without  objection  so 
long  that  it  is  found  to  have  been  acquiesced  in,  inter- 
est runs  from  the  time  the  account  was  rendered.  (*") 
The  cases  on  the  subject  of  account  seem  to  show  that 
the  question  of  whether  interest  is  to  be  allowed,  and  the 
date  from  which  it  is  to  run,  must  be  determined  by  all 
the  circumstances  of  the  case,  including  the  usual  course 
of  dealing  between  the  parties,  and  any  custom  applica- 
ble. There  may  be,  for  example,  as  in  some  stock 
brokers'  accounts,  a  custom  to  charge  or  credit  each  entry 
on  both  sides  of  the  account  with  interest. 

§  312.  Unliquidated  demands. — The  classes  of  cases  al- 
ready examined  are  of  a  simple  character.  We  have 
now  to  examine  those  in  which  the  demand  is  unliqui- 
dated, and  in  which  other  tests  hav^e  to  be  applied  ;  finally 
ending  our  examination  with  torts,  some  of  which,  as  al- 

(»)  Blaney  v.  Hendricks,  2  W.  Bl.  761  ;  Young  v.  Godbe,  15  Wall.  562  ; 
Underbill  T/.  Gaff,  48  111.  198;  Haight  v.  McVeagh,  69  111.  624;  Crosby  v. 
Otis,  32  Me.  256  ;  Walden  v.  Sherburne,  1 5  Johns.  409. 

C)  Bainbridge  v.  Wilcocks,  Bald.  536;  Case  v.  Hotchkiss,  3  Keyes  334; 
Porter  v.  Patterson,  1 5  Pa.  229. 


§  313-  NEW    YORK    RULE,  455 

ready  explained,  are  of  such  a  nature  that  interest  is,  by 
the  nature  of  the  case,  excluded. 

Where  no  price  has  been  agreed  upon  for  goods  or 
services,  and  the  plaintiff  recovers  on  a  quantum  meruit 
or  quantum  valebant,  we  have  an  unliquidated  demand  ; 
yet  on  the  principle  that  has  been  stated  this  fact  alone 
does  not  prevent  the  recovery  of  interest.  Interest  is 
g\wen  from^  the  time  when  the  defendant  should  have  paid 
the  amount  due,  and  this  explains  the  frequent  disallow- 
ance of  interest  in  cases  of  this  kind,  for  it  is  not  gener- 
ally the  duty  of  a  party  to  pay  money  until  the  amount 
to  be  paid  is  ascertained.  Consequently  unless  the 
amount  due  is  or  should  be  ascertained,  the  defendant  is 
not  in  default.  But  there  must  be  some  time  within 
which  the  account  ought  to  be  liquidated  ;  otherwise  the 
creditor  must  in  every  case  sue,  a  result  which  the  courts 
would  not  look  on  with  favor. 

§  313.  New  York  rule. — A  rule  has  been  established  by 
the  Court  of  Appeals  of  New  York  in  the  leading  case 
of  Van  Rensselaer  v.  Jewett.C)  which  covers  a  large 
class  of  cases ;  namely,  those  cases  where  the  amount 
can  be  ascertained  by  computation,  together  with  a  refer- 
ence to  well-established  market  values.  In  such  cases 
interest  will  be  allowed.  This  rule  was  commented  upon 
in  the  case  of  McMahon  v.  New  York  &  E.  R.R.  Co.C') 
The  action  was  for  work,  labor,  and  services  under  a  con- 
tract for  building  part  of  the  defendants' road.  The  con- 
tract provided  for  three  classes  of  work,  and  at  certain 
periods  the  engineer  of  the  company  was  to  make  esti- 
mates of  the  amount  of  each  class  of  work  done,  and 
these  estimates  were  to  form  the  basis  of  payment.  The 
engineer  did  not  make  the  estimates,  and  the  plaintiff 
brought  suit  on  the  contract.  The  referee  allowed  in- 
C)  2  N.  Y.  135]  C)  20  N.  Y.  463,  469- 


456  INTEREST.  §  313- 

terest  on  the  amount  found  due  by  him,  and  to  this  an 
exception  was  taken.  Selden,  J.,  delivered  the  opinion 
of  the  court  on  this  point,  as  follows  : 

"  The  old  common-law  rule  which  required  that  a  demand 
should  be  liquidated,  or  its  amount  in,  some  way  ascertained, 
before  interest  could  be  allowed,  has  been  modified  by  general 
consent,  so  far  as  to  hold  that  if  the  amount  is  capable  of  being  as- 
certained by  mere  computation,  then  it  shall  carry  interest ;  and 
this  court,  in  the  case  of  Van  Rensselaer  v.  Jewett,  went  a 
step  further,  and  allowed  interest  upon  an  unliquidated  demand, 
the  amount  of  which  could  be  ascertained  by  computation,  to- 
gether with  a  reference  to  well-established  market  values  ;  be- 
cause such  values,  in  many  cases,  are  so  nearly  certain,  that  it 
would  be  possible  for  the  debtor  to  obtain  some  proximate 
knowledge  of  how  much  he  was  to  pay.  That  case  went,  I 
think,  as  far  as  it  is  reasonable  and  proper  to  go  in  that  direc- 
tion. So  long  as  the  courts  adhere  even  to  the  principles  of  that 
case,  they  are  not  without  a  rule  which  it  is  possible  to  apply. 
The  rule  itself  is  definite,  and  the  only  uncertainty  which  it  in- 
troduces is  that  which  necessarily  attends  the  settling  of  market 
rates  and  prices.  In  the  present  case,  the  plaintiff's  demand  was 
neither  liquidated,  nor  capable  of  being  ascertained  by  compu- 
tation merely  ;  nor  could  its  amount  be  determined  by  any  ref- 
erence to  ordinary  market  rates,  and  hence  interest  could  not 
be  recovered  here,  upon  the  principle  adopted  in  the  case  of  Van 
Rensselaer  v^  Jewett."(°) 

In  Sipperly  v.  Stewart  Q)  the  plaintiff  sued  to  recover 
the  value  of  the  use  of  a  canal-boat.  Mjller,  J.,  held 
that,  on  the  principle  of  McMahon  v.  N.  Y.  &  E.  R.R. 
Co.,  interest  should  be  allowed,  as  the  value  of  the  use 
could  be  ascertained  by  reference  to  market  rates.  It 
seems,  however,  that  the  rule  cannot  be  extended  to 
cover  cases  of  mutual  accounts.  In  Smith  v.  Velie  (°) 
the  plaintiff  sued  for  services  rendered  as  housekeeper. 
There  had  been  payments  on  account,  and  Grover,  J., 

(»)  Ace.  Mansfield  v.  New  York  C.  &  H.  R.  R.R.  Co.,  114  N.  Y.  331. 
C)  50  Barb.  62.  (')  60  N.  Y.  106. 


§314-  TIME   FROM    WHICH   INTEREST    RUNS.  457 

held  that  interest  on  the  balance  could  not  be  allowed, 
as  the  case  showed  that  the  accounts  were  open  and  un- 
liquidated. He  then  said  that  McMahon  v.  N.  Y.  &  E. 
R.R.  Co.  was  a  direct  authority  against  the  allowance  of 
interest.  "  There  was  no  time  fixed  for  payment.  The 
case  shows  that  there  was  no  fixed  market  value  by 
which  the  rate  of  wages  could  be  determined.  There 
was  no  default  in  the  intestate  or  appellant  in  determin- 
ing the  balance  due  the  claimant.  Under  such  a  state, 
the  learned  judge  says,  in  the  case  cited,  interest  cannot 
be  allowed."  These  last  two  cases  are,  we  think,  only 
distinguishable  by  the  fact  that  the  account  in  the  latter 
was  mutual,  and  not  in  the  former.  It  is  true  that 
Grover,  J.,  says,  in  the  latter,  that  there  was  no  market 
value  for  the  services,  and  nothing  is  said  on  that  point 
in  the  former.  But  the  decision  in  the  latter  case  was 
based  on  the  ground  that  there  was  an  open  account  be- 
tween the  parties,  and  the  judge  cites,  in  support  of  his 
decision,  two  cases — Holmes  v.  Rankin  (*)  and  Mc- 
Knight  V.  Dunlop  (") — both  of  which  were  cases  of 
mutual  accounts.  Interest  was  disallowed  in  them  on 
this  ground,  and  in  one  of  them,  at  least,  the  articles  had 
a  market  value. 

§  314.  Time  from  which  interest  runs — Demand. — In 
some  cases  it -has  been  held  that  interest  runs  from  the 
time  the  plaintiff  demanded  a  settlement,  i.  e.,  when  the 
demand  is  reasonable  and  puts  the  defendant  in  default. 
Thus  in  Pennsylvania,  in  Gray  v.  Van  Amringe,(°)  the 
court  held  a  demand  sufficient  to  entitle  the  plaintiff  to 
interest.  The  action  was  for  services  rendered.  An  ac- 
count had  been  presented,  but  payment  had  been  re- 
fused, on  the  ground  that  the  charges  were  excessive. 
The  plaintiff  recovered  the  full  amount  demanded.     In 

(»)  i-  Barb.  454.  (•>)  4  Barb.  36.  C)  2  W.  &  S.  128. 


458  INTEREST.  §  314- 

delivering  the  opinion  of  the  court,  Kennedy,  J.,  said : 
"In  a  case,  therefore,  where  the  plaintiff  has  performed 
work,  labor,  and  services  of  any  kind,  no  matter  what,  at 
the  special  instance  and  request  of  the  defendant,  with- 
out any  express  agreement  between  them,  fixing  the 
prices  or  sums  of  money  that  shall  be  paid  therefor,  and 
after  having  performed  the  same,  demands  of  the  de- 
fendant what  shall  be  deemed  afterwards,  by  a  court  and 
jury,  a  reasonable  compensation,  which  the  latter  refuses 
to  pay,  it  would  seem  to  be  just  that  the  plaintiff  should 
recover  interest  on  the  amount  so  demanded,  from  the 
time  of  the  demand." 

A  demand,  not  for  an  accounting  and  agreement  on 
the  amount  due,  but  for  a  sum  assumed  by  the  plaintiff 
to  be  due,  is  sometimes  said  to  be  enough  to  put  the  de- 
fendant in  default  if  the  sum  is  a  reasonable  one.  So 
where  an  attorney  presents  a  bill  for  his  services,  the 
charges  being  found  to  have  been  reasonable,  interest  is 
allowed  from  the  presentment  of  the  bill.('')  This  may 
be  supported,  upon  the  ground  that  it  is  really  a  proper 
demand  for  a  settlement.  A  demand  for  the  payment 
of  an  unreasonably  large  sum  of  money  will  certainly  not 
put  the  defendant  in  default,  so  as  to  subject  him  to  the 
payment  of  interest. (*) 

In  other  cases,  it  has  been  held  that  interest  is  recover- 
able from  the  beginning  of  the  suit ;  (")  while  still  others 
hold  that  interest  can  be  allowed  neither  from  demand 
nor  from  the  beginning  of  the  suit,  but  only  from  the 


(")  Adams  v.  Fort  Plain  Bank,  36  N.  Y.  255  ;  Mygatt  v.  Wilcox,  45  N.  Y. 
306 ;  Hand  11.  Church,  39  Hun  303.  But  contra,  People  v.  Supervisors,  9 
Abb.  N.  S.  408. 

0  Goff  z/.  Rehobolh,  2  Cush.  475  ;  Shipman  v.  State,  44  Wis.  458. 

(')  Goddard  v.  Foster,  17  Wall.  123  ;  Mercer  v.  Vose,  67  N.  Y.  56  ;  Hand 
V.  Church,  39  Hun  303  ;  Gammon  v.  Abrams,  53  Wis.  323 ;  Tucker  v. 
Grover,  60  Wis.  240. 


§  314'  TIME    FROM    WHICH    INTEREST    RUNS.  459 

verdict,  since  the  defendant  did  not  know  before  that 
how  much  he  must  pay.(*)  It  is  well  said  in  New  York 
that  if  a  demand  will  not  set  interest  running,  the  bring- 
ing of  a  suit  should  notC") 

Where  by  the  contract  it  was  the  defendant's  duty  at 
a  certain  time  to  liquidate  the  debt,  and  he  fails  to  do  so, 
interest  can  without  doubt  be  recovered  on  the  balance 
found  due  from  that  time.(°)  Such  a  consideration  seems 
to  have  governed  the  court  in  Robinson  v.  Stewart. ('') 
The  action  was  to  set  aside  certain  conveyances  made  to 
the  defendant  by  his  father,  in  fraud  of  the  latter's  cred- 
itors. The  father  had  been  indebted  to  the  defendant 
on  an  account  for  services  rendered,  and  conveyed  the 
property  to  him  nominally  in  payment.  The  property, 
however,  greatly  exceeded  the  services  in  value.  The 
defendant  claimed,  as  set-off,  the  value  of  his  services, 
with  interest.  Denio,  J.,  said:  "The  demand  being 
wholly  unliquidated,  interest  should  not  have  been 
allowed  prior  to  the  conveyances.  The  deceased  at- 
tempted to  pay  this  debt  by  the  conveyances,  by  means 
of  the  property  conveyed  on  the  15th  of  January,  1842. 
From  that  time,  I  think,  the  defendant  was  entitled  to 
interest."  But  if  no  demand  is  made  for  settlement  or 
claim  presented  by  the  plaintiff,  the  defendant  is  not  in 
default,  and  interest  cannot  be  recovered.(^)  In  Newel 
V.  Keith,(0  an  action  against  an  administrator  for  ser- 

(»)  Cox  V.  McLaughlin,  76  Cal.  60 ;  Murray  v.  Ware,  i  Bibb  325  ;  Mc- 
Knight  V.  Dunlop,  4  Barb.  36  ;  Pursell  v.  Fry,  19  Hun  595  ;  Day  v.  N.  Y.  C. 
R.R.  Co.,  22  Hun  412  ;  Martin  v.  State,  51  Wis.  407. 

C)  White  V.  Miller,  78  N.  Y.  393  ;  McMaster  v.  State,  108  N.  Y.  542. 

O  Moore  v.  Patton,  2  Port.  451  ;  McMahon  v.  New  York  &  E.  R.R.  Co., 
20  N.  Y.  463  ;  Ansley  v.  Peters,  i  All.  (N.  B.)  339. 

C)  to  N.  Y.  189,  197. 

(«)  Adams  Exp.  Co.  v.  Milton,  11  Bush.  49  ;  Gallup  v.  Perue,  10  Hun  525; 
People  V.  Supervisors,  9  Abb.  N.  S.  408  ;  Marsh  v.  Eraser,  37  Wis.  149. 

0  II  Vt.  214. 


460  INTEREST.  §  315- 

vices  rendered  the  intestate,  it  was  said  :  "  Inasmuch  as, 
from  aught  that  appears,  the  delay  of  payment  in  the 
lifetime  of  Mrs.  Keith  proceeded  from  the  voluntary  act 
of  the  plaintiff,  and  the  claim  was  permitted  to  lie  dor- 
mant for  such  a  length  of  time,  we  think  it  unreasonable 
that  interest  should  be  added  to  this  amount  so  long  as 
the  delay  was  the  fault  of  the  plaintiff." 

Where  the  defendant  claims  and  succeeds  in  reducing 
the  amount  of  damages  by  recoupment,  or  other  abate- 
ment, we  have  a  case  of  quantum  meruit  on  both  sides, 
analogous  to  a  mutual  account  out  of  court.  The  cases 
generally  allow  no  interest  before  verdict. (")  It  would 
seem,  however,  that  it  may  in  such  cases  be  a  question  of 
the  time  when  the  balance  is  payable  ;  and  that  the  court 
should  allow  interest  from  that  time.  Nor  is  it  easy  to 
see  how  it  can  be  held  that  the  balance  is  not  payable  at 
least  as  early  as  the  beginning  of  the  suit.C") 

§  315.  General  conclusion. —  The  subject  is  without 
doubt  a  difficult  one,  and  the  decisions,  as  have  been  seen, 
are  not  harmonious.  But  by  keeping  in  mind  the  funda- 
mental principle  much  of  the  difficulty  may  be  avoided. 
As  soon  as  it  is  the  legal  duty  of  the  defendant  to  pay, 
he  is  liable  for  interest.  As  the  defendant  must  have 
been  in  default  before  the  action  is  brought,  if  the  plain- 
tiff recovers,  and  as  his  default  consisted  in  withholding 
money  due,  he  should,  it  seems,  get  interest  at  least  from 
the  date  of  the  writ.  There  seems  to  be  good  reason  for 
going  further,  and  holding  him  to  be  in  default  from  a 
demand  by  the  plaintiff  for  an  accounting  (made  after  a 
reasonable  time)  and  a  refusal  to  account.     From  that 


(•)  The  Isaac  Newton,  i  Abb.  Adm.  588;  Brady  v.  Wilcoxson,  44  Cal.  239; 
StiU  V.  Hall,  20  Wend.  51  ;  McMasterw.  State,  108  N.  Y.  542. 

0")  In  Massachusetts,  interest  is  allowed  on  the  balance  recovered  from  the 
date  of  the  writ.    Palmer  v.  Stock  well,  9  Gray  237. 


§  3l6.    VALUE  OF  PROPERTY  DESTROYED,  ETC.      46 1 

time  the  defendant  cannot  claim  any  right  to  withhold 
whatever  balance  was  in  fact  due,  and  would  have  been 
found  due  if  he  had  acceded  to  the  plaintiff's  demand ; 
before  that,  the  plaintiff  cannot  claim  any  right  to  pay- 
ment. Where  interest  is  refused  in  actions  of  contract  on 
the  ground  that  the  claim  is  unliquidated,  it  is  in  fact 
usually  allowed  from  the  date  of  the  writ.C) 

§  316.  Value  of  property  destroyed  or  converted. — Where 
property  is  destroyed,  or  is  converted,  so  that  the  title 
either  is,  or  is  regarded  as,  out  of  the  former  owner,  dam- 
ages are  the  pecuniary  representative  of  the  property, 
and  take  its  place.  The  plaintiff  has  lost  or  abandoned 
his  claim  to  the  property;  his  claim  against  the  defendant 
is  for  an  equivalent  sum  of  money.  In  this  point  of 
view,  a  conversion  very  nearly  resembles  a  sale.  In  this 
case,  compensation  for  being  kept  from  what  rightfully 
belongs  to  the  plaintiff  is  not  compensation  for  being 
kept  out  of  the  use  of  property  (the  value  of  its  use),  but 
for  being  kept  out  of  the  use  of  money  (interest).  In 
actions  of  trover,  therefore,  the  plaintiff  recovers  the 
value  of  the  property,  with  interest  from  the  time  of 
conversion  ;  C')  which  in  a  case  of  conversion  by  demand 


(")  McCollum  V.  Seward,  62  N.  Y.  316;  Mercer  z/.  Vose,  67  N.  Y.  56;  Tucker 
V.  Grover,  60  Wis.  240 ;  Hewitt  v.  John  Week  Lumber  Co  ,  46  N.  W.  Rep. 
822  (Wis.). 

C)  Ekins  V.  East  India  Co.,  i  P.  Wms.  395  ;  Hamer  v.  Hathaway,  33  Cal. 
117;  Clark  V.  Whitaker,  19  Conn.  320;  Tuller  v.  Carter,  59  Ga.  395; 
Sanders  v.  Vance,  7  T.  B.  Mon.  209;  New  Orleans  D.  Co.  v.  De  Lizardi, 
2  La.  Ann.  281 ;  Hayden  v.  Bartlett,  35  Me.  203  ;  Moody  v.  Whitney,  38  Me. 
174;  Robinson  v.  Barrows,  48  Me.  186;  Hepburn  v.  Sewell,  5  H.  &  J.  211  ; 
Thomas  z/.  Stemheimer,  29  Md.  268  ;  Maury  ?7.  Coyle,  34  Md.  235  ;  Kennedy 
V.  Whitwell,  4  Pick.  466 ;  Negus  v.  Simpson,  99  Mass.  388 ;  Winchester  v. 
Craig-,  33  Mich.  205  ;  Chauncey  v.  Yeaton,  I  N.  H.  151  ;  Hyde  v.  Stone,  7 
Wend.  354 ;  Baker  v.  Wheeler,  8  Wend.  505 ;  Stevens  v.  Low,  2  Hill 
132;  Andrews  v.  Durant,  18  N.  Y.  496;  McDonald  v.  North,  47  Barb. 
530;  Pease  v.  Smith,  5  Lans.  519 ;  Wehle  v.  Butler,  43  How.  Pr.  5 ;  Com- 
mercial Bank  v.  Jones,  18  Tex.  811 ;  Gillies  v.  Wofford,  26  Tex.  76;  Willis 


462  INTEREST.  §  316, 

and  refusal  is  of  course  the  time  of  demand.C)  And 
in  any  action  for  destroying  or  carrying  off  property,  the 
plaintiff  recovers  interest  from  the  time  of  the  wrongful 
act.C*)  So  in  an  action  against  a  common  carrier  for  the  loss 
of  goods,  interest  is  allowed  on  their  value  ;  (°)  and  in  an 
action  of  trespass  for  removing  material  from  land,  the 
owner  may  recover  interest  on  the  value  of  the  material 
removed.  ("^^ 

In  Parrott  v.  The  Knickerbocker  Ice  Co.(°)  the 
plaintiff's  boat  had  been  lost  by  collision  with  the  de- 
fendant's boat.  Rapallo,  J.,  said :  "  In  cases  of  trover, 
replevin,  and  trespass,  interest  on  the  value  of  property 
unlawfully  taken  or  converted  is  allowed  by  way  of 
damages,  for  the  purpose  of  complete  indemnity  of  the 


V.  McNatt,  75  Tex.  69 ;  Rhemke  v.  Clinton,  2  Utah,  230 ;  Grant  v.  King, 
14  Vt.  367  ;  Thrall  v.  Lathrop,  30  Vt.  307  ;  Shepherd  v.  McQuilkin,  2  W. 
Va.  90;  Bigelow  v.  Doolittle,  36  Wis.  115.  Contra,  Palmer  v.  Murray,  8 
Mont.  312.  Interest  in  discretion  of  the  jury:  Stephens  t/.  Koonce,  103  N. 
C.  266. 

(')  Garrard  v.  Dawson,  49  Ga.  434 ;  Northern  T.  Co.  v.  Sellick,  52  III. 
249;  Johnson  v.  Sumner,  i  Met.  172  ;  Schwerin  v.  McKie,  51  N.  Y.  180. 

C")  Fail  V.  Presley,  50  Ala.  342 ;  Oviatt  v.  Pond,  29  Conn.  479 ;  Brown  v. 
Southwestern  R.R.  Co.,  36  Ga.  377;  Bradley  7/.  Geiselman,  22  111.  494; 
Johnsons.  Chicago  &  N.  W.  Ry.  Co.,  77  la.  666 ;  Buffalo  &  H.  T.Co.  v.  Buffalo, 
58  N.Y.  639 ;  Mairs  v.  Manhattan  R.  E.  Assoc,  89  N.  Y.  498 ;  Allegheny  v. 
Campbell,  107  Pa.  530 ;  Texas  &  P.  Ry.  Co.  v.  Tankersley,  63  Tex.  57.  But 
contra.  Green  v.  Garcia,  3  La.  Ann.  702,  on  the  ground  that  the  amount  is 
unliquidated. 

C)  Woodward  v.  Illinois  C.  R.R.  Co.,  1  Biss.  403 ;  Fraloff  v.  New  York 
C.  &  H.  R.  R.R.  Co.,  ID  Blatch.  16;  The  Gold  Hunter,  i  Blatch.  &  H.  300; 
Parrott  v.  Housatonic  R.R.  Co.,  47  Conn.  575  ;  Mote  v.  Chicago  &  N.  W. 
R.R.  Co.,  27  la.  22  ;  Robinson  v.  Merchants'  D.  T.  Co.,  45  la.  470 ;  Cowley  v. 
Davidson,  13  Minn.  92;  McCormick  v.  Pennsylvania  C.  R.R.  Co.,  49  N.  Y. 
303;  Duryea  v.  Mayor,  26  Hun  120;  Erie  Ry.  Co.  v.  Lockwood,  28  Oh.  St. 
358 ;  Newell  v.  Smith,  49  Vt.  255  ;  Whitney  v.  Chicago  &  N.  W.  Ry.  Co.,  27 
Wis.  327.  But  contra,  De  Steiger  v.  Hannibal  &  St.  J.  Ry.  Co.,  73  Mo.  33  ; 
Fowler  w.  Davenport,  21  Tex.  626. 

C)  Pittsburgh,  F.  W.  &  C.  Ry.  Co.  v.  Swinney,  97  Ind.  586. 

C)  46  N.  Y.  361,  369. 


§3^7-        PROPERTY  DESTROYED  BY  NEGLIGENCE.      463 

party  injured,  and  it  is  difficult  to  see  why,  on  the  same 
principle,  interest  on  the  value  of  property  lost  or  de- 
stroyed by  the  wrongful  or  negligent  act  of  another,  may 
not  be  included  in  the  damages." 

In  an  action  brought  against  a  municipality  on  a 
statute,  for  destruction  of  the  plaintiff's  property  by  a  mob, 
it  is  held  in  New  York  that  interest  maybe  recovered, C) 
at  least  in  the  discretion  of  the  jury;  (^)  in  Pennsyl- 
vania, that  interest  may  not  be  recovered.(°)  In  an 
action  of  replevin,  where  the  prevailing  party  does  not 
succeed  in  securing  the  property,  but  recovers  its  value, 
he  may  also  recover  interest  from  the  time  it  was  taken 
from  him.(*)  But  both  damages  for  detention  and  in- 
terest on  the  value  cannot  be  recovered.  (^) 

§  317.  Property  destroyed  by  negligence. — There  seems 
to  be  no  reason  why  any  difference  should  exist  in  the 
rules  governing  the  allowance  of  interest,  on  the  value 
of  property  destroyed,  whether  the  destruction  was  caused 
by  the  misfeasance  or  by  the  negligence  of  the  defend- 
ant,(')  that  is,  whether  the  suit  is  such  that  at  common 
law  an  action  would  have  lain,  on  the  one  hand  of  trover, 
trespass,  replevin,  or  detinue ;  on  the  other,  of  trespass 
on  the  case.  In  some  jurisdictions  interest  is  in  fact 
allowed  in  cases  of  negligence  ;  (^)  but  in  others  interest 


C)  Greer  v.  Mayor,  3  Robt.  406. 

C")  Orr  V.  Mayor,  64  Barb.  106. 

(0  Weir  V.  Allegheny,  95  Pa.  413. 

('*)  Yelton  V.  Slinkard,  85  Ind.  190;  Blackie  v.  Cooney,  8  Nev.  41 ;  Brizsee 
i-.  Maybee,  21  Wend.  144;  McDonald  z/.  Scaife,  ii  Pa.  381 ;  Bigelow  v.  Doo- 
little,  36  Wis.  115. 

(')  McCarty  v.  Quimby,  12  Kas.  494. 

(')  Parrott  v.  Knickerbocker  Ice  Co.,  46  N.  Y.  561,  per  Rapallo,  J. 

(e)  Alabama  G.  S.  R.R.  Co.  v.  McAlpine,  75  Ala.  113  ;  Arthur  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  61  la.  648  ;  Varco  v.  Chicago,  M.  &  S.  P.  Ry.  Co.,  30 
Minn.  18  ;  Chapman  v.  Chicago  &  N.  W.  Ry.  Co.,  26  Wis.  295  ;  Dean  v. 
Chicago  &  N.  W.  Ry.  Co.,  43  Wis'.  305. 


464  INTEREST.  §  318. 

in   such  cases  is  held  to  be  in  the  discretion   of   the 
jury.O 

§  318.  Property  taken  by  eminent  domain. — Where  land 
is  taken  by  right  of  eminent  domain,  the  owner  recovers 
interest  on  the  value  of  the  land  from  the  time  of  tak- 
ing.C)  In  Old  Colony  R.R.  Co.  v.  Miller  (")  the  plain- 
tiff brought  an  action  to  have  his  damages  assessed  for 
land  taken  by  the  company.  Colt,  J.,  said  :  "  If  not 
agreed  on,  the  damages  are  assessed  by  a  jury,  on  the 
application  of  either  party ;  but  they  are  assessed  as  of 
the  time  of  the  location,  and  the  jury  may  properly  allow 
interest  upon  the  amount  ascertained  as  damages,  for  the 
detention  of  the  money  from  the  time  of  taking."  He 
then  quotes  the  language  of  Chief-Justice  Shaw,  in  Parks 
V.  Boston, (*)  to  the  effect  that  taking  the  land  is  equiva- 
lent to  a  purchase,  and  the  delay  in  payment  must  be 
compensated  by  interest.    To  the  same  effect  is  Delaw^are, 

(»)  Western  &  A.  Ry.  Co.  v.  McCauley,  68  Ga.  818  {semble) ;  Chicago 
&  N.  W.  Ry.  Co.  V.  Shultz,  55  111.  421  ;  Frazer  v.  Bigelow  Carpet  Co.,  141 
Mass.  126  (semble)  ;  Home  Ins.  Co.  v.  Pennsylvania  R.R.  Co.,  11  Hun  182. 
In  Lucas  v.  Wattles,  49  Mich.  380,  it  was  said  to  be  in  the  discretion  of  the 
jury  in  such  a  case  to  allow  interest  from  the  date  of  the  writ.  A  few  deci- 
sions, which  cannot,  however,,  be  considered  of  more  than  local  authority, 
refuse  the  allowance  of  interest  even  in  the  discretion  of  the  jury,  either  ab- 
solutely, as  in  Houston  &  T.  C.  R.R.  Co.  v.  Muldrow,  54  Tex.  233,  or  in  the 
absence  of  circumstances  of  aggravation,  as  in  Toledo,  P.  &  W.  Ry.  Co.  v. 
Johnston,  74  111.  83. 

C*)  Hayes  v.  Chicago,  M.  &  S.  P.  Ry.  Co..  64  la.  753  ;  Hartshorn  v.  Bur- 
lington, C.  R.  &  N.  R.R.  Co.,  52  la.  613;  Cohen  v.  St.  Louis,  F.  S.  &  W. 
R.R.  Co.,  34  Kas.  158;  Bangor  &  P.  R.R.  Co.  v.  McComb,  60  Me.  290; 
Reed  v.  Hanover  B.  R.R.  Co.,  105  Mass.  303;  Kidder  v.  Oxford,  116 
Mass.  165  ;  Chandler  v.  Jamaica  P.  A.  Co.,  125  Mass.  544;  Sioux  C.  R.R. 
Co.  V.  Brown,  13  Neb.  317  ;  North  H.  C.  R.R.  Co.  v.  Booraem,  28  N.  J. 
Eq.  450;  Atlantic  and  G.  W.  Ry.  Co.  v.  Koblentz,  21  Oh.  St.  334  ;  Alloway 
V.  Nashville,  88  Tenn.  510;  Velte  v.  United  States,  76  Wis.  278.  But 
contra,  Himmelman  v.  Oliver,  34  Cal.  246  ;  Haskell  v.  Bartlett,  34  Cal.  281 
(statutory). 

(■=)  125  Mass.  I. 

O  IS  Pick.  198. 


§  3l8.        PROPERTY  TAKEN    BY   EMINENT   DOMAIN  465 

L.  &  W.  R.R.  Co.  V.  Burson.C)  where  Thompson,  C.  J., 
said  :    . 

"  Nor  was  there  error  in  charging  the  jury  to  allow  interest. 
If  the  plaintiff  was  entitled  to  compensation  by  reason  of  her 
property  being  taken  at  a  particular  time,  she  was  certainly  en- 
titled to  interest  as  a  compensation  for  its  wrongful  detention. 
The  company,  as  well  as  the  plaintiff,  could  have  had  the  dam- 
ages assessed  as  soon  as  they  pleased  after  locating  the  road, 
and  it  was  no  reason  for  withholding  compensation  that  its 
amount  was  unknown  or  unascertained.  As  the  company  was 
the  party  to  pay,  it  ought  to  have  had  the  amount  ascer- 
tained, and  paid  it  (8  Harris,  240)  ;  failing  to  do  so,  it  has  no 
right  to  complain  at  having  to  meet  an  incident  of  the  delay  in 
the  shape  of  interest." 

But  interest  runs  only  from  the  time  when  possession 
is  taken  ;  and  therefore  if  the  award  is  made  before  the 
land  is  actually  taken,  interest  cannot  be  included  in  the 
award.(^)  In  some  States  the  owner,  after  the  notice  of 
taking  has  been  filed,  has  a  right  to  give  up  his  land  and 
demand  compensation.  Where  such  a  rule  prevails,  in- 
terest may  be  recovered  from  the  time  of  the  demand.  (") 
Where  the  defendant,  a  corporation,  to  save  an  injunc- 
tion against  obstructing  the  plaintiff's  way,  paid  damages 
into  court  pendente  lite  and  continued  the  obstruction,  it 
was  held  it  must  pay  interest  from  the  time  the  damages 
were  paid  into  court  till  final  decree.(*)  In  New  Jersey, 
by  statute,  interest  runs  from  the  date  of  the  assess- 
ment. (') 

(')  61  Pa.  369,  380. 

(^)  Chicago  V.  Barbian,  80  111.  482  ;  South  Park  Comm'rs  v.  Dunlevy,  91 
111.  49 ;  Gay  v.  Gardiner,  54  Me.  477  ;  Fiske  v.  Chesterfield,  14  N.  H.  240 ; 
Metier  v.  Easton  &  A.  R.R.  Co.,  37  N.  J.  L.  223  ;  Stewart  v.  Philadelphia 
County,  2  Pa.  St.  340 ;  Second  St.,  Harrisburg,  66  Pa.  132. 

(=)  Clough  w.  Unity,  18  N.  H.  75  ;  People  v.  Canal  Comm'rs,  5  Denio  401. 

C)  Carpenter  v.  Easton  &  A.  R.R.  Co.,  28  N.  J.  Eq.  390. 

(•)  Beebe  v.  Newark,  24  N.  J.  L.  47.    The  same  rule  was  adopted  in 
Beveridge  v.  Park  Comm'rs,  100  111.  75. 
Vol.  I.— 30 


466  INTEREST.  §  319- 

§  319.  Failure  to  deliver  goods.— Where  property  is  paid 
for  in  advance  and  the  seller  fails  to  deliver  it,  the  pur- 
chaser recovers  interest  on  the  value  from  the  time  it 
should  have  been  delivered.  (')  And  so  in  case  of  any 
failure  to  deliver  property.  Thus  in  a  case  already  cited, 
where  the  rent  was  payable  in  wheat  and  services,  the 
Court  of  Appeals  of  New  York  held  this  language  :' 

"  Whenever  a  debtor  is  in  default  for  not  paying  money,  de- 
livering property,  or  rendering  services,  in  pursuance  of  his 
contract,  justice  requires  that  he  should  indemnify  the  creditor 
for  the  wrong  which  has  been  done  him  ;  and  a  just  indemnity, 
though  it  may  sometimes  be  more,  can  never  be  less  than  the 
specified  amount  of  money  or  the  value  of  the  property  or  ser- 
vices at  the  time  they  should  have  been  paid  or  rendered,  with 
interest  from  the  time  of  the  default  until  the  obligation  is  dis- 
charged. And  if  the  creditor  is  obliged  to  resort  to  the  court 
for  redress,  he  ought  in  all  such  cases  to  recover  interest,  in  ad- 
dition to  the  debt,  by  way  of  damages.  It  is  true  that  on  an 
agreement  like  the  one  under  consideration,  the  amount  of  the 
debt  can  only  be  ascertained  by  an  inquiry  concerning  the  value 
of  the  property  and  services  ;  but  the  value  can  be  ascertained, 
and  when  that  has  been  done,  the  creditor,  as  a  question  of  prin- 
ciple, is  just  as  plainly  entitled  to  interest  after  the  default  as 
he  would  be  if  the  like  sum  had  been  payable  in  money.  "C") 

So  in  McKenney  v.  Haines  (")  the  plaintiff  sued  for 
breach  of  contract  to  return  borrowed  stock  on  de- 
mand.   It  was  held  that  he  could  recover  interest  on  the 

'  Van  Rensselaer  v.  Jewett,  5  Denio  J.,  in  Van  Rensselaer  v.  Jones,  2  Barb. 

135  ;    2    N.   Y.    135,   overruling    Van  643,  where  the  whole  subject  is  exam- 

Rensselaer  v.   Plainer,   i  Johns.  276.  ined,  and  a  note  to  Lattin  v.  Davis, 

See,  also,  an  able  opinion  of  Willard,  Hill  and  Denio  Suppl.  9. 


(»)  Pujol  V.  McKinlay,  42  Cal.  559;  Bickell  v.  Colton,  41  Miss.  368;  Bicknall 
V.  Waterman,  5  R.  I.  43 ;  Merryman  v.  Criddle,  4  Munf.  542  ;  Enders  v. 
Board  of  Public  Works,  i  Gratt.  364,  390.  But  contra,  Dobenspeck  v.  Armel, 
II  Ind.  31.  In  Stark  v.  Price,  5  Dana  140,  interest  in  such  a  case  was  said 
to  be  in  the  discretion  of  the  jury. 

0")  Ace.  Livingston  v.  Miller,  11  N.  Y.  80. 

(")  63  Me.  74. 


§  320.  INTEREST   IN   ACTIONS   OF   TORT.  467 

value  at  the  time  of  demand. (")  So  in  Canton  v. 
SmithiC")  where  the  plaintiff  had  given  bonds  to  the 
defendant,  under  an  agreement  to  complete  a '  railroad 
or  return  the  bonds,  it  was  held  "  clearly  correct "  to 
charge  the  jury  that  interest  should  be  allowed  on  the 
value  of  the  bonds. 

When  property  sold  and  not  delivered  has  not  been 
paid  for,  interest  is  allowed  on  the  difference  between  the 
contract  and  market  price. (°)  In  Dana  v.  Fiedler, (*) 
Johnson,  J.,  said  : 

"  Interest  is  a  necessary  item  in  the  estimate  of  damages  in 
this  class  of  cases.  The  party  is  entitled,  on  the  day  of  perform- 
ance, to  the  property  agreed  to  be  delivered;  if  it  is  not  delivered 
the  law  gives  as  the  measure  of  compensation  then  due  the  differ- 
ence between  the  contract  and  market  prices.  If  he  is  not  also 
entitled  to  interest  from  that  time  as  matter  of  law,  this  contra- 
dictory result  follows,  that,  while  an  indemnity  is  professedly 
given,  the  law  adopts  such  a  mode  of  ascertaining  its  amount, 
that  the  longer  a  party  is  delayed  in  obtaining  it,  the  greater 
shall  its  inadequacy  become." 

§  320.  Interest  in  actions  of  tort. — It  sufficiently  appears 
from  what  has  been  already  said  that  there  is  ho  general 
principle  which  prevents  the  recovery  of  interest  in 
actions  of  tort.  The  fact  that  the  demand  is  unliqui- 
dated has  been  shown  to  be  insufficient  to  exclude  in- 
terest, and  there  is  nothing  in  the  mere  form  of  the 
action  which  renders  it  unreasonable  that  interest  should 
be  given.     Nevertheless  it  is  in  the  region  of  tort  that 


(»)  See  also  Savannah  &  C.  R.R.  Co.  v.  Callahan,  56  Ga.  331. 

C)  65  Me.  203. 

(« )  Cease  v.  Cockle,  76  111.  484 ;  Driggers  v.  Bell,  94  111.  223 ;  Thomas  v. 
Wells,  140  Mass.  517  ;  Clark  v.  Dales,  20  Barb.  42;  Hamilton  i/.  Ganyard,  34 
Barb.  204  ;  Fishell  v.  Winans,  38  Barb.  228 ;  Currie  v.  White,  6  Abb.  N.  S. 

3S2.  385- 
C)  12  N.  Y.  40. 


468  INTEREST.  §  320. 

we  find   the  clearest  cases  for  the  disallowance  of  in- 
terest. 

There  are  many  actions  of  tort  which  are  not  brought 
to  recover  a  sum  of  money  representing  a  property  loss 
of  the  plaintiff,  and  it  is  frequently  said  broadly  that  in- 
terest is  not  allowed  in  such  actions.  (")  It  is  certainly  not 
allowed  in  such  actions  as  assault  and  battery, C")  or  for 
personal  injury  by  negligence, (")  libel,  slander,  seduction, 
false  imprisonment.  But  where  the  tort  is  of  a  sort  to 
deprive  the  plaintiff  of  property,  though  not  (as  in  the 
case  of  conversion)  taking  away  his  title  to  any  specific 
thing,  interest  is  frequently,  and  perhaps  generally, 
allowed.  Thus,  where  the  value  of  property  is  diminished 
by  an  injury  wrongfully  inflicted,  it  has  been  held  that 
the  jury  may  give  interest  on  the  amount  by  which  the 
value  was  diminished  from  the  time  of  the  injury. (^) 
So  interest  has  been  allowed  on  the  money  spent  in  re- 
pairing property  injured, (')  or  in  repurchasing  property 
wrongfully  taken  and  sold  by  the  defendant.(^)  In  an 
action  against  a  carrier  for  delay  in  the  delivery  of  goods, 
interest  was  allowed  on  the  amount  found  due  at  the 
time  they  were  delivered.(^)  In  an  action  for  false  repre- 
sentations, by  which  the  defendant  obtained  money  from 
the  plaintiff,  interest  on  the  money  is  allowed. C")  So 
where  the  defendant,  by  his  refusal  to  perform  an  official 

(*)  Plymouth  z/.  Graver,  125  Pa.  24  ;  Emerson  v.  Schoonmaker,  135  Pa.  437. 

0  Ratteree  v.  Chapman,  79  Ga.  574  ;  Pittsburgh  S.  Ry.  Co.  v.  Taylor,  104 
Pa.  306. 

C)  V^estern  &  A.  R.R.  Co.  v.  Young,  81  Ga.  397. 

C)  Gillettt/.  Western  R.R.  Co.,  8  All.  560;  V^alrath  v.  Redfield,  18  N.  Y. 
457.  But  in  Black  v.  Camden  &  A.  R.R.  &  Tr.  Co.,  45  Barb.  40,  interest  in 
such  a  case  was  said  to  be  in  the  discretion  of  the  jury. 

(«)  W^hitehall  T.  Co.  v.  New  Jersey  S.  B.  Co.,  51  N.  Y.,  369. 

0  Dodson  V.  Cooper,  37  Kas.  346  ;  Mclnroy  v.  Dyer,  47  Pa.  118. 

(e)  Houston  &  T.  C.  Ry.  Co.  v.  Jackson,  62  Tex.  209 ;  Newell  v.  Smith, 
49  Vt.  255. 

C)  Arthur  v.  Wheeler  &  W.  M.  Co.,  12  Mo.  App.  335. 


§  320.  INTEREST   IN   ACTIONS   OF   TORT.  469 

duty,  prevented  the  plaintiff  from  recovering  money  due 
him,  the  plaintiff  was  entitled  to  interest  on  the  money 
from  the  time  he  should  have  had  it.('')  So  where  the 
principal's  property  is,  by  the  misconduct  or  negligence 
of  the  agent,  disposed  of  for  less  than  its  value,  the 
agent  is  liable  for  interest  on  the  balance  that  he  should 
have  procured  for  his  principal.(^)  In  an  action  for  waste, 
it  was  held  that  interest  could  be  recovered  from  the  date 
of  the  writ,  there  having  been  no  demand  for  payment. (") 
So,  in  actions  for  breach  of  warranty  of  an  article  sold, 
which  though  in  form  contract,  closely  resemble  actions 
for  false  representations,  interest  is  allowed  upon  the  dif- 
ference between  what  the  article  is  actually  worth,  and 
what  it  would  have  been  worth  had  it  been  as  repre- 
sented. ('^)  Stoudenmeier  v.  Williamson  (')  was  an  action 
for  breach  of  warranty  of  a  slave.  The  court  said : 
"  We  hold  that,  in  this  State,  whenever  one  party  has  a 
legal  right  to  recover  of  another  a  debt  or  damages  as  due 
at  a  particular  time,  he  is  also  entitled  to  interest  as  an 
incident,  from  the  maturity  of  the  demand  until  the 
trial."  In  an  action  for  breach  of  warranty  of  title  of  a 
slave,  where  the  seller  had  a  life  interest  only,  it  was  held 
that  interest  on  the  value  of  the  slave  could  be  recovered 
from  the  time  the  use  of  the  slave  was  lost ;  that  is,  from 
the  death  of  the  seller.  (')     So,  in  an  action  for  breach  of 

(•)  Clark  V.  Miller,  54  N.  Y.  528. 

C)  Greenfield  Savings  Bank  v.  Simons,  133  Mass.  415  ;  Milbank  w.Dennis- 
toun,  I  Bosw.  246. 

(=)  Dawes  v.  Winship,  5  Pick.  97  n. 

(f)  Kornegay  v.  White,  10  Ala.  255  ;  Marshall  v.  Wood,  16  Ala.  806 ; 
Rowland  v.  Shelton,  25  Ala!  217  ;  Buford  v.  Gould,  35  Ala.  265 ;  Tatum  v. 
Mohr,  21  Ark.  349;  McKay  v.  Lane,  5  Fla.  268  ;  Badgett  v.  Broughton,  i 
Ga.  591 ;  Pitsinowsky  v.  Beardsley,  37  la.  9 ;  BriggsT'.  Brushaber,  43  Mich. 
330;  Snow  V.  Nowlin,  43  Mich.  383 ;  Ancrum  v.  Slone,  2  Speer  (S.  C.)  594. 

{')  29  Ala.  558,  569. 

Q  Crittenden  v.  Posey,  i  Head  311. 


470  INTEREST,  §3^1. 

warranty  of  title  to  land,  the  plaintiff  may  recover  interest 
on  the  purchase-money  recovered.  (")  By  these  decisions 
earlier  cases  holding  that  interest  could  not  be  allowed  be 
cause  the  claims  were  unliquidated  are  overruled.  C") 

§  321.  Discretion  of  jury  still  exists  in  some  cases. — The 
jury  is  still  allowed  in  its  discretion  to  give  damages 
in  the  nature  of  interest  in  some  actions  of  tort,  where 
until  recently  interest  could  not  have  been  added  in  any 
case.Q  It  is  sometimes  said  that  though  the  jury  can- 
not award  interest  in  ordinary  cases  of  tort  eo  nomine, 
yet  it  may  consider  the  lapse  of  time  since  the  injury  in 
estimating  the  damages. (*)  Even  in  actions  of  contract 
for  delay  in  delivery  of  property,  it  has  been  held  that 
the  jury  may  adopt  an  amount  equal  to  interest  on  the 
value  of  the  property,  as  a  fair  compensation  for  loss  of 
use  of  the  property.  (°) 


(•)  Stark  V.  Olney,  3  Ore.  88. 

0")  Gilpins  V.  Consequa,  Pet.  C.  C.  85 ;  Philips  -u.  Williams,  5  Gratt.  259. 
But  in  White  v.  Miller,  71  N.  Y.  1 1 8,  the  decision  was  based  on  the  New 
York  rule  as  to  unliquidated  damages.  The  action  was  for  breach  of  war- 
ranty of  cabbage  seed.  The  measure  of  damages  was  held  to  be  the  differ- 
ence in  value  between  the  crop  produced  and  that  which  would  have  been 
produced  had  the  seed  been  of  the  quality  represented.  On  this  sum  the 
court  overruling  the  decision  of  the  referee,  refused  to  allow  interest,  on  the 
ground  that  the  damages  were  unliquidated  and  could  not  be  estimated  by 
computation  or  by  reference  to  market  values.  The  point  was  not  fully  con- 
sidered, as  there  was  another  ground  for  reversing  the  decision  ;  but  the  de- 
cision comes  within  the  reason  of  the  rule,  as  stated  in  McMahon  v.  N.  Y.  & 
Erie  R.R.  Co.  The  reason  there  stated  is,  that  the  debtor  can,  by  reference 
to  the  market  values,  ascertain  the  amount  due.  But  in  White  v.  Miller,  the 
crop  which  would  have  been  produced  would  first  have  to  be  ascertained, 
and  this  would  depend  upon  conditions  of  soil  and  weather,  about  which  the 
defendant  could  know  nothing. 

(')  Central  R.R.  Co.  v.  Sears,  66  Ga.  499  (action  for  death  of  husband) ; 
Duryee  v.  New  York,  96  N.  Y.  477;  Lawrence  R.R.  Co.  v.  Cobb,  35  Oh. 
St.  94  (trespass  on  real  estate) ;  Barez/.  Hoffman,  79  Pa.  71  (diverting  water). 

("i)  Clement  v.  Spear,  56  Vt.  401. 

(f)  Grosvenor  v.  Ellis,  44  Mich.  452;  Hinckley  v.  Beckwith,  13  Wis.  31. 


§  322.  THE    RULE   IN   PENNSYLVANIA.  47 1 

These  last  cases  seem  to  show  a  tendency  toward  the 
allowance  of  interest  as  compensation  for  delay  in  settling 
a  claim,  except  where  such  delay  is  paid  for  in  some 
other  way,  as  by  compensation  for  use :  in  other  words, 
a  rule  analogous  to  that  allowing  profits  in  proper  cases. 
Such  a  rule  would  clearly  bring  the  law  much  nearer  to 
completeness  of  compensation. 

§  322.  The  rule  in  Pennsylvania. — In  an  action  for  the 
destruction  of  property  by  the  defendant's  negligence, 
where  interest  was  claimed  on  the  value  of  the  property, 
the  Supreme  Court  of  Pennsylvania  has  recently  said  :(*) 

"  Interest  as  such  is  recoverable  only  where  there  is  a  failure 
to  pay  a  liquidated  sum  due  at  a  fixed  day,  and  the  debtor  is  in 
absolute  default.  It  cannot,  therefore,  be  recovered  in  actions 
of  tort,  or  in  actions  of  any  kind  where  the  damages  are  not  in 
their  nature  capable  of  exact  computation,  both  as  to  time  and 
amount.  In  such  cases  the  party  chargeable  cannot  pay  or 
make  tender  until  both  the  time  and  the  amount  have  been  as- 
certained, and  his  default  is  not,  therefore,  of  that  absolute  na- 
ture that  necessarily  involves  interest  for  the  delay.  But  there 
are  cases  sounding  in  tort,  and  cases  of  unliquidated  damages, 
where  not  only  the  principle  on  which  the  recovery  is  to  be  had 
is  compensation,  but  where  also  the  compensation  can  be  meas- 
ured by  market  value,  or  other  definite  standards.  Such  are 
cases  of  the  unintentional  conversion  or  destruction  of  property, 
etc.  Into  these  cases  the  element  of  time  may  enter  as  an  im- 
portant factor,  and  the  plaintiff  will  not  be  fully  compensated 
unless  he  receive,  not  only  the  value  of  his  property,  but  receive 
it,  as  nearly  as  may  be,  as  of  the  date  of  his  loss.  Hence  it  is 
that  the  jury  may  allow  additional  damages,  in  the  nature  of  in- 
terest, for  the  lapse  of  time.  It  is  never  interest  as  such,  nor  as 
a  matter  of  right,  but  compensation  for  the  delay,  of  which  the 

rate  of  interest  affords  the  fair  legal  measure Interest  is 

recoverable  as  of  right,  but  compensation  for  deferred  payment  in 
torts  depends  on  the  circumstances  of  each  case.  The  plaintiff 
may  have  set  his  damages  so  inordinately  high  as  to  have  justified 


(»)  Richards  v.  Citizens  N.  Gas  Co.,  130  Pa.  37,  ig,  per  Mitchell,  J. 


472  INTEREST.  §§  323,  324. 

the  defendant  in  refusing  to  pay,  or  in  other  ways  the  delay  may 
be  plaintiff's  fault ;  or,  the  liability  of  defendant  may  have  arisen 
without  fault."  (') 

§  323.  In  Massachusetts. — In  Massachusetts  interest 
upon  the  value  of  property  has  always  been  allowed  in 
actions  of  trover ;  but  the  allowance  of  such  interest  in 
other  actions  of  tort  was  first  discussed  by  the  court  in 
Frazer  v.  Bigelow  Carpet  Co.,(^)  where  the  trial  judge, 
sitting  in  place  of  a  jury,  had  allowed  interest.  The 
Supreme  Court  said : 

"  It  is  allowed  as  of  right  in  trover  and  other  like  actions  ; 
and  although  it  is  suggested  that,  in  such  cases,  the  defendant 
may  be  presumed  to  have  had  the  use  of  the  goods  since  the 
conversion,  this  is  not  necessarily  the  fact,  and,  if  it  were,  would 

have  no  bearing  on  the  indemnity  due  the  plaintiff We 

■will  assume  that  the  sum  ultimately  found  by  the  jury  cannot  be 
said  to  have  been  wrongfully  detained  before  the  finding,  in  such 
a  sense  that  interest  is  due  eo  nomi?tee.  But  we  have  heard  no 
reason  suggested  why,  if  a  plaintiff  has  been  prevented  from 
having  his  damages  ascertained,  and,  in  that  sense,  has  been 
kept  out  of  the  sum  that  would  have  made  him  whole  at  the 
time,  so  long  that  that  sum  is  no  longer  an  indemnity,  the  jury  in 
their  discretion,  and  as  incident  to  determining  the  amount  of  the 
original  loss,  may  not  consider  the  delay  caused  by  the  defend- 
ant. In  our  opinion  they  may  do  so  ;  and,  if  they  do,  we  do 
not  see  how  they  can  do  it  more  justly  than  by  taking  interest  on 
the  original  damage  as  a  measure." 

This  case  leaves  the  question  of  the  allowance  of  in- 
terest as  a  matter  of  right  in  this  class  of  cases  still  un- 
determined in  Massachusetts. 

§  324.  In  the  Supreme  Court  of  the  United  States. — In 
the  case  of  Lincoln  v.  Claflin,^)  an  action  to  recover  the 
value  of  goods  obtained  by  fraud,  the  appellant  contended 

(•)  Ace.  Plymouth  v.  Graver,  125  Pa.  24;  Emerson  v.  Schoonmaker,  135 
Pa.  437. 

(*)  141  Mass.  126,  per  Holmes,  J. 
C)  7  Wall.  132,  139. 


§  325'  INTEREST    ON    OVERDUE    PAPER.  473 

that  interest  upon  the  value  had  been  wrongly  allowed. 
The  Supreme  Court  of  the  United  States  held  that  the 
question  was  not  properly  brought  before  them,  and  re- 
fused to  reverse  the  judgment  below.  Field,  J.,  how- 
ever, said  :  "  Interest  is  not  allowable  as  a  matter  of  law, 
except  in  cases  of  contract,  or  the  unlawful  detention  of 
money.  In  cases  of  tort  its  allowance  as  damages  rests 
in  the  discretion  of  the  jury." (")  Nothwithstanding  this, 
the  court  has  held  that,  in  an  action  against  a  carrier  for 
failure  to  deliver  goods,  interest  may  be  recovered  upon 
the  value  of  the  goods.  C")  And  the  rule  in  the  United 
States  courts  seems  to  be  the  same  as  that  laid  down  in 
Massachusetts,  except  that  it  has  been  more  strongly  in- 
timated in  the  former  jurisdiction  that  interest  in  ordi- 
nary cases  of  tort  is  entirely  within  the  discretion  of  the 
jury. 

§  325.  Interest  on  overdue  paper — Contract  and  statute 
rate. — As  we  have  seen,  interest  is  always  recoverable 
on  mercantile  securities.  Where  interest  is  payable 
by  the  terms  of  such  a  contract,  it  is  recoverable, 
not  as  damages  for  detention  of  money,  but  under 
the  contract.  After  the  contract  matures,  if  the 
amount  secured  by  the  contract  is  unpaid  a  further 
question  arises,  on  which  there  is  great  conflict  of 
authority.  It  is  claimed  on  the  one  side  that  interest 
continues  to  accrue  by  the  terms  of  the  contract,  and  at 
the  stipulated  rate  ;  on  the  other  side  it  is  urged  that  the 
contract  calls  for  payment  at  maturity ;  if  it  is  broken 
then,  the  only  right  that  remains  is  a  claim  for  damages  ; 
and  any  further  interest  will  be  given,  not  in  accordance 
with,  but  as  damages  for  breach  of  the  contract,  and  at 
the  statutory  rate. 

(»)  Ace.  The  Scotland,  118  U.  S.  507. 

C)  Mobile  &  M.  Ry.  Co.  v.  Jurey,  1 1 1  U.  S.  584. 


474  INTEREST.  §  325. 

The  decision  must  rest  on  the  question,  whether  there 
is  in  such  cases  an  imphed  agreement  to  pay  the  contract 
rate  after  maturity,  or  whether  interest  after  maturity  is 
to  be  given  as  damages  for  the  delay.  In  First  Eccle- 
siastical Society  v.  Loomis,(")  the  action  was  on  a  note 
payable  three  years  from  date,  with  interest  at  73  per 
cent,  per  annum,  the  statutory  rate  being  6  per  cent. 
The  court  allowed  interest  after  maturity  at  6  per  cent, 
only.  In  Seymour  v.  Continental  Ins.  Co.C")  this  last 
case  was  referred  to  and  approved.  The  action  was  on  a 
demand  note,  with  interest  at  8  per  cent.,  payable  semi- 
annually. After  referring  to  Hubbard  v.  Callahan, (") 
where  the  note  had  provided  for  interest  at  15  per  cent, 
after  maturity,  and  the  court  had  allowed  this  rate,  and 
to  First  Ecclesiastical  Society  v.  Loomis,  Carpenter,  J., 
said  that  the  contract  must  be  enforced  according  to  the 
intention  of  the  parties.  That  the  note  was  due  imme- 
diately, but  it  was  manifest  from  all  the  circumstances 
of  the  transaction  that  the  parties  intended  to  make  a 
loan  for  a  term  of  years  and  have  the  note  stand  as  a 
continuing  security,  and  hence  the  stipulated  interest 
should  be  given.  In  Eaton  v.  Boissonnault  (*)  the  action 
was  on  a  promissory  note,  payable  one  year  from  date, 
with  interest  at  8  per  cent.,  payable  annually.  It  was 
held  that  after  maturity  the  note  only  bore  6  per  cent., 
the  statutory  rate.  This  case  was  affirmed  in  Paine  v. 
Caswell, (')  where  the  action  was  on  a  note  for  $500,  with 
10  per  cent,  interest.  No  time  for  payment  was  fixed. 
Peters,  J.,  said  that  it  was  the  intention  of  the  parties  to 
make  a  continuing  security,  and  interest  should  therefore 
run  at  the-  contract  rate.  In  the  course  of  his  opinion, 
however,  he  said  :  "  Where  a  note  is  payable  on  time 

(°)  42  Conn.  570.  C)  44  Conn.  300.  f)  42  Conn.  524. 

(■i)  67  Me.  S40.  «  68  Me.  80. 


§  325'  INTEREST   ON    OVERDUE   PAPER.  475 

with  interest  exceeding  six  per  cent.,  no  more  than  six 
per  cent,  is  recoverable  after  maturity,  there  being  no 
bargain  for  interest  after  that  time.  In  such  case  inter- 
est after  the  note  is  due  is  allowed  only  by  way  of 
damages."  The  same  general  rule  was  followed  in  Ken- 
tucky, in  Rilling  z/.  Thompson, (")  where  the  plaintiff  sued 
on  a  promissory  note  payable  one  year  after  date,  with 
interest  semi-annually  at  lo  per  cent.  Cofer,  J.,  said: 
"  If  the  right  to  interest  depended  alone  upon  the  con- 
tract, and  was  not  given  by  law,  the  appellee  would  not 
be  entitled  to  any  interest  after  the  maturity  of  the  note, 
and  could  only  recover,  if  at  all,  by  way  of  damages  for 
withholding  the  money  due."  So,  also,  in  Minnesota,  in 
Moreland  v.  Lawrence,(^)  where  Berry,  J.,  said:  "The 
notes  involved  in  this  action  drew  interest  from  date  at  5 
per  cent,  per  annum,  but  contained  no  stipulation  as  to  in- 
terest after  maturity.  Under  such  circumstances  it  was 
proper  to  allow  interest  by  way  of  damages,  at  the  rate  of 
7  per  cent.,  after  the  maturity  of  the  notes."  The  rule 
is  upheld  in  many  jurisdictions.(°) 

(')  12  Bush.  310.  '    C")  23  Minn.  84. 

(f)  The  following  list  will  show  that  courts  of  the  highest  authority  generally 
allow  the  statutory  rate :  England:  Cook  v.  Fowler,  L.  R.  7  H.  L.  27;  Good- 
chap  V.  Roberts,  14  Ch.  Div.  49 ;  contra,  Keene  v.  Keene,  3  C.  B.  (N.  S.)  144. 
Arkansas :  Gardner  v.  Barnett,  36  Ark.  476 ;  Pettigrew  v.  Summers,  32  Ark. 
571  ;  Newton  v.  Kennerly,  31  Ark.  626;  Woodruff  v.  Webb,  32  Ark.  612. 
California :  Kohler  v.  Smith,  2  Cal.  597  ;  Cummings  v.  Howard,  63  Cal.  503. 
Connecticut :  First  Ecclesiastical  Society  v.  Loomis,  42  Conn.  570,  explain- 
ing but  practically  overruling  Adams  v.  Way,  33  Conn.  419.  Florida :  Jef- 
ferson County  v.  Lewis,  20  Fla.  980.  /Kansas :  Robinson  v.  Kinney,  2  Kas. 
184;  Searle  v.  Adams,  3  Kas.  515.  Kentucky :  Rilling  v.  Thompson,  12 
Bush  310.  Maine:  Duran  v.  Ayer,  67  Me.  145;  Eaton  v.  Boissonnault,  67 
Me.  540.  Maryland:  Brown  v.  Hardcastle,  63  Md.  484.  Minnesota :  Tal- 
cott  V.  Marston,  3  Minn.  339;  Daniels  v.  Ward,  4  Minn.  168;  Chapin  v. 
Murphy,  5  Minn.  474 ;  Moreland  v.  Lawrence,  23  Minn.  84.  Nevada : 
McLane  T/.  Abrams,  2  Nev.  199.  New  Hampshire :  Ashuelot  R.R.  Co.  •z'. 
Elliott,  57  N.  H.  397.  New  York:  Macomber^'.  Dunham,  8  Wend.  550  ;  U. 
S.  Bank  v.  Chapin,  9  Wend.  471;  Hamilton  v.  Van  Rensselear,  43  N.  Y.  244; 


476  INTEREST.  §  326. 

§  326.  Conflict  of  authority.— But  a  number  of  courts  in- 
sist that  tiiere  is  an  implied  contract  to  pay  the  stipulated 
rate  after  maturity.(*)  In  Cecil  v.  Hicks  C")  the  ques- 
tion was  considered  at  some  length.  This  action  was  on 
a  promissory  note  payable  in  six  months  after  date,  with 
interest  at  12  per  cent,  per  annum  from  date.  The 
statute  rate  was  6  per  cent.  After  citing  several  decisions 
of  the  Virginia  courts,  that  interest  is  an  incident  of  the 
debt,  due  by  contract  in  the  absence  of  an  express 
stipulation  to  the  contrary,  Moncure,  P.,  said  (p.  6). 

"  We  think  their  contract  ought  to  be  construed  precisely  as 
if  the  words  '  till  paid  '  had  been  inserted  therein  after  the  words 
'  from  date,'  and  that  such  was  their  obvious  meaning.  They  no 
doubt  omitted  the  words  '  till  paid '  because  they  considered  it 
only  necessary  to  agree  on  some  legal  rate  of  interest  and  the 
date  from  which  it  should  commence,  believing  that  it  would,  of 


Southern  C.  R.R.  Co.  v.  Moravia,  6i  Barb.  i8o;  but  contra.  Miller  v.  Bur- 
roughs, 4  Johns.  Ch.  436;  Andrews  v.  Keeler,  19  Hun  87  ;  Genet  w.Kissam, 
53  N.  Y.  Super.  Ct.  43.  Penna.:  Ludwick  v.  Huntzinger,  5  W.  &  S.  51. 
Rhode  Island :  Pearce  v.  Hennessy,  10  R.  I.  223.  South  Carolina:  Lang- 
ston  V.  South  C.  R.R.  Co.,  2  S.  C.  248  ;  Briggs  v.  Winsmith,  10  S.  C.  133  ; 
Maner  v.  Wilson,  16  S.  C.  469;  Thatcher  v.  Massey,  20  S.  C.  542.  Utah: 
Perry  v.  Taylor,  i  Utah  63. 

(»)  Illinois :  Phinney  v.  Baldwin,  16  111.  108 ;  Etnyre  v.  McDaniel,  28  111. 
201.  Indiana  :  Shaw  v.  Rigby,  84  Ind.  375  ;  Kimmell  v.  Burns,  84  Ind. 
370;  Kerr  v.  Haverstick,  94  Ind.  178.  Iowa:  Hand  2/.  Armstrong  18  la. 
324 ;  Thompson  v.  Pickel,  20  la.  490.  Massachusetts :  Brannon  v.  Hursell, 
112  Mass.  63;  Union  Institution  v.  Boston,  129  Mass.  82;  Forster  2/.  Forster, 
129  Mass.  559  ;  Downerw.  Whittier,  144  Mass.  448.  Michigan:  Warneri'. 
Juif,  38  Mich,  662.  Mississippi :  Meaders  w.  Gray,  60  Miss.  400.  Missouri: 
Broadway  Sav.  Bank  v.  Forbes,  79  Mo.  226;  Borders  z/.  Barber,  81  Mo.  636; 
Macon  Co.  v.  Rodgers,  84  Mo.  66.  Nebraska:  Kellogg  v.  Lavender,  15  Neb. 
256.  Ohio  :  Monnett  v.  Sturges,  25  O.  S.  384  ;  Marietta  Iron  Works  v.  Lot- 
timer,  25  O.  S.  621  ;  Hydraulic  Co.  v.  Chatfield,  38  O.  S.  575.  Tennessee: 
Overton  v.  Bolton,  9  Heisk.  762;  Wade  v.  Pratt,  12  Heisk.  231.  Texas: 
Pridgen  v.  Andrews,  7  Tex.  461  ;  Hopkins  v.  Crittenden,  10  Tex.  189.  Vir- 
ginia :  Cecil  v.  Hicks,  29  Gratt.  1.  West  Virginia:  Shipman  v.  Bailey,  20 
W.  Va.  140;  Pickens  v.  McCoy,  24  W.  Va.  344.  Wisconsin:  Spencer  7/. 
Maxfield,  16  Wis.  178  ;  Pruyn  v.  Milwaukee,  18  Wis.  367. 

C")  29  Gratt.  I. 


§  326.  CONFLICT   OF   AUTHORITY.  477 

course,  continue  to  run  until  payment.  They  never  could  have 
intended  that  if  default  were  made  by  the  debtor  in  the  payment 
of  the  debt  at  maturity,  he  should  thereafter  pay  interest  at  only 
one-half  of  the  rate  he  had  agreed  to  pay  for  the  period  during 
which  he  had  a  right  under  the  contract  to  withhold  the  principal. 
....  At  the  date  of  the  contract  in  question,  the  parlies  were 
authorized  to  agree  upon  a  rate  not  exceeding  12  per  centum  per 
annum.  In  this  case  they  agreed  on  that  rate  ;  no  doubt  because 
the  money,  at  that  time  and  under  the  circumstances  which  then 
existed,  was  considered  to  be  worth  interest  at  that  rate,  both  to 
the  lender  and  the  borrower ;  and  they  stipulated  accordingly, 
agreeing  and  expecting,  no  doubt,  that  at  the  end  of  six  months 
the  principal  and  interest  would  be  paid  by  the  borrower  to  the 
lender,  to  be  used  by  the  latter  as  might  be  most  to  his  interest. 
....  There  is  no  evidence  of  the  extent  of  the  loss,  on  the  side 
of  the  lender,  or  gain  on  the  side  of  the  borrower,  which  has 
resulted  from  this  default.  Is  it  right  to  let  the  borrower,  who 
could  not  obtain  the  money  for  six  months  at  a  less  rate  than  1 2 
per  cent,  per  annum,  have  it  for  an  indefinite  period  thereafter 
at  half  that  rate,  against  the  will  of  the  lender  ? " 

The  question  was  considered,  and  many  of  the  author- 
ities on  the  subject  collected  in  Overton  v.  Bolton.f") 
and  the  court  came  to  the  conclusion  that  the  con- 
tract rate  should  be  allowed.  The  principle  was  not 
discussed  at  length,  the  court  merely  saying  that  they 
considered  that  the  decisions  in  favor  of  the  contract  rate 
rested  on  stronger  grounds  than  those  on  the  other  side. 
In  Brannon  v.  HurselljC")  the  Supreme  Court  of  Massa- 
chusetts adopted  the  same  rule,  Morton,  J.,  without 
discussing  the  question,  merely  saying  :  "  The  plaintiff 
recovers  interest,  both  before  and  after  the  note  matures, 
by  virtue  of  the  contract,  as  an  incident  or  part  of  the 
debt,  and  is  entitled  to  the  rate  fixed  by  the  contract." 
In  support  of  his  decision,  he  cited  four  cases.  The 
first,  Ayer  v.  Tilden,(")  was  an  action  on  a  note,  made  and 
payable  in  New  York,  and  which  contained  no  provision 

(»)  9  Heisk.  762.  (^)  112  Mass.  63.  (f)  1$  Gray  178. 


478  INTEREST.  §§  327,  328. 

about  interest.  Hoar,  J.,  held  that  the  contract  must  be 
governed  by  New  York  law,  but  that  interest  was  only 
given  as  damages,  and  must  therefore  be  given  at  the 
Massachusetts  rate.  Of  the  other  three  cases,  two  were 
English  decisions,  and  did  not  decide  the  point,  and  the 
third  case  was  an  old  New  York  one  which  is  at  vari- 
ance with  the  later  decisions  of  that  State. 

§  327.  Rules  in  the  Supreme  Court  of  the  United  States. 
— In  the  early  decisions  in  this  court  (")  the  statutory 
rate  was  adopted  as  the  true  rule  ;  but  in  a  later  case,('') 
which  was  an  action  on  an  Iowa  contract,  the  court  held 
that  it  was  bound  by  the  decisions  of  the  Iowa  courts,  as 
on  a  question  of  local  law.  In  a  still  later  case  (°)  the 
court  reaffirms  the  earlier  cases  as  expressing  its  own 
rule  of  decision,  when  unembarrassed  by  any  local  rule 
adopted  by  State  courts.  Hence  the  authority  of  the 
Supreme  Court  can  only  in  fairness  be  cited  in  favor  of 
the  statutory  rate. 

§  328.  Conflict  of  decisions  in  Indiana. — We  have  cited 
Indiana  as  one  of  the  States  in  which  the  contract  rate  is 
allowed  after  maturity.  This  result  was  reached  in  that 
State  by  a  process  of  reasoning  w^hich  seems  open  to 
criticism.  On  a  note  payable  on  demand,  or  in  one  day, 
it  has  been  decided,  as  we  have  just  seen  in  the  courts  of 
States  upholding  the  statute  rate,(*)  that  the  intention  is 
clearly  to  make  a  continuing  security  on  which  the  con- 
tract rate  runs  till  paid.  In  Indiana  after  some  conflict 
the  rule  in  favor  of  the  statute  rate  was  established.  (°) 


(*)  Brewster  v.  Wakefield,  22   How.  118  ;  Burnhisel  v.  Firman,  22  Wall. 
170. 
0  Cromwell  v.  County  of  Sac,  96  U.  S.  51. 
(")  Holden  v.  Trust  Co.  100  U.  S.  72. 
C)  See  §  330. 
if)  Burns  v.  Anderson,  68  Ind.  202  ;  Richards  w.  McPherson,  74  Ind.  158. 


§  329-  GENERAL   CONCLUSION.  479 

In  a  case,  however,  turning  on  a  note  payable  one  day 
from  date,  the  court  allowed  interest  at  the  stipulated 
rate,  but  considering  it  to  be  necessary  in  order  to  reach 
this  conclusion,  overruled  the  decisions  just  cited,  and 
now  the  rule  of  the  contract  rate  is  held  to  be  the  law  of 
Indiana.C)  The  Indiana  cases  cannot  be  regarded  as 
giving  much  substantial  support  to  the  authority  of  the 
rule  of  the  contract  rate. 

§  329.  General  conclusion. — The  arguments  on  which 
these  opinions  are  based  are  open  to  various  criticisms. 
In  the  first  place,  the  doctrine  that  interest  is  an  incident 
of  the  debt,  due  by  contract,  is  an  assumption  of  the  very 
question  to  be  decided.  In  the  next  place,  the  contract 
which  the  parties  have  made,  and  not  that  which  we 
think  they  intended  to  make,  is  the  one  to  be  enforced. 
It  seems  also  particularly  objectionable  to  assume  an  in- 
tention to  violate  the  contract.  The  decision  must,  of 
course,  in  each  case  depend  upon  the  language  used,  but 
variations  merely  in  the  rate  of  interest  can  make  no 
difference  in  the  decision  of  the  general  question.  Any 
valid  arguments,  therefore,  employed  to  prove  that  the 
contract  rate  governs,  will  be  equally  applicable,  whether 
the  contract  rate  is  above  or  below  the  statute  rate.  Apply 
this  test  to  the  case  of  Cecil  v.  Hicks,  and  it  is  apparent 
that  the  whole  argument  is  founded  upon  the  hardship  of 
compelling  the  creditor  to  take  6  per  cent,  after  maturity, 
when,  perhaps,  he  might  have  obtained  12  per  cent,  for 
his  money  if  the  debtor  had  kept  his  agreement.  To 
imply  a  promise  to  pay  the  stipulated  rate  after  maturity 
is,  we  think,  to  introduce  into  the  contract  a  provision 
which  the  language  does  not  cover,  and  to  violate  both 
the  principles  upon  which  interest  is  given,  and  the  rules 

(•)  Shaw  V.  Rigby,  84  Ind.  375  ;  Kimmell  v.  Bums,  84  Ind.  370 ;  Kerr  v. 
Haverstick,  94  Ind.  178. 


480  INTEREST.  §  330. 

governing  the  interpretation  of  written  instruments. 
With  great  deference  to  the  high  authority  for  the  other 
view,  the  above  review  of  the  case  seems  to  justify  the 
conclusion  that  the  decisions,  upholding  the  statutory 
rate  after  maturity,  are  based  upon  a  sounder  foundation 
of  reasoning. 

§  330.  Expressed  intention  always  governs. — In  every 
jurisdiction,  however,  the  clearly  expressed  intention  of 
the  parties  governs.  Thus  where  a  contract  bears  interest 
at  a  stipulated  rate  "  until  paid,"  interest  will  be  allowed 
at  that  rate  after  maturity. C)  And  so  in  South  Caro- 
lina, when  interest  was  to  be  paid  annually  at  a  certain 
rate  "  upon  the  whole  amount  unpaid,"  it  was  held  that 
interest  at  the  stipulated  rate  should  be  allowed  after 
maturity,  the  words  practically  meaning  "till  paid."(^) 
So  where  on  a  note  payable  in  one  year  interest  was 
payable  "  annually"  at  a  certain  rate,  that  rate  was 
allowed  after  maturity. (°)  So  where  the  intention  can 
be  clearly  implied  to  continue  the  stipulated  rate,  it  will 
be  given  as  on  a  note  payable  in  one  day  ("  practically  a 
demand  note"),(^)  or  on  demand.  (*)  But  on  the  other 
hand,  where  a  contract  bears  interest  at  the  stipulated 
rate  "  till  the  principal  sum  shall  be  payable,"  the  stipu- 
lated rate  cannot  be  recovered  after  maturity.(') 


(^)  Ex  parte  Fewings,  25  Ch.  Div.  338;  Latham  v.  Darling,  2  111.  203; 
Dudley  v.  Reynolds,  i  Kas.  285 ;  Small  v.  Douthitt,  I  Kas.  335  ;  Young  v. 
Thompson,  2  Kas.  83 ;  Broadway  S.  B.  v.  Forbes,  79  Mo.  226 ;  Hager  v. 
Blake,  16  Neb.  12;  Taylor  v.  Wing,  84  N.  Y.  471  ;  Lanahan  v.  Ward,  10 
R.  I.  299;  Mobley  v.  Davega,  16  S.  C.  73. 

(>>)  Miller  v.  Hall,  18  S.  C.  141 ;  Miller  v.  Edwards,  18  S.  C.  600. 

(')  Westfield  v.  Westfield,  19  S.  C.  85. 

('')  Casteel  v.  Walker,  40  Ark.  117;  Gray  v.  Briscoe,  6  Bush  687  ;  Sharpe 
V.  Lee,  14  S.  C.  341;  Piester  v.  Piester,  22  S.  C.  139. 

{')  Paine  v.  Caswell,  68  Me.  80. 

(0  Spaulding  v.  Lord,  19  Wis.  533. 


§§  33^>  332-  INTEREST   ON   TAXES.  481 

§  331.  Stipulation  for  a  higher  rate  after  maturity. — 
Where  a  higher  rate  of  interest  is  stipulated  to  be  paid 
after  maturity  than  before,  some  courts  have  refused  re- 
covery on  the  ground  that  interest  at  the  higher  rate  is  a 
penalty  ;(*)  but  it  is  generally  held  to  be  recoverable.('') 
The  question  should,  it  would  seem,  be  determined  upon 
the  principles  of  liquidated  damages,  for  the  higher  rate 
is  in  the  nature  of  a  liquidation  of  damages  for  delay  in 
performing  the  contract  to  pay  money;  and  if  the  rate  is 
grossly  excessive,  payment  should  not  be  enforced,  and 
so  it  was  held  in  an  early  case  in  Alabama.  (°)  The 
courts,  however,  have  not  generally  regarded  the  stipula- 
tion for  a  higher  rate  of  interest  after  maturity  in  this, 
light. 

§  332.  Interest  on  taxes. — Where  a  defendant  is  in  de- 
fault in  the  payment  of  taxes,  and  is  sued  to  recover  the.- 
amount  of  them,  he  is  not  liable,  in  the  absence  of  a 
statutory  provision,  for  interest.  (**)  This  principle  has 
been  held  to  extend  to  the  case  of  a  county  delinquent 

(")  Mason  v.  Callender,  2  Minn.  350 ;  Talcott  v.  Marston,  3  Minn.  339 ; 
Kent  V.  Bown,  3  Minn.  347  ;  Daniels  v.  Ward,  4  Minn.  168  ;  Newell  v. 
Houlton,  22  Minn.  19  ;  White  v.  litis,  24  Minn.  43;  Watts  v.  Watts,  11  Mo. 

547- 

C)  Herbert  v.  S.  &  Y.  Ry.  Co.,  L.  R.  2  Eq.  221  ;  Miller  v.  Kempner,  32 
Ark.  573 ;  Portis  v.  Merrill,  33  Ark.  416  ;  Browne  v.  Stack,  2  Col.  70;  Buck- 
ingham V.  Orr,  6  Col.  587;  Lawrence  v.  Cowles,  13  111.  577;  Smith  v. 
Whitaker,  23  111.  367 ;  Gould  v.  Bishop  Hill  Colony,  35  III.  324 ;  Davis  v. 
Rider,  53  111.  416  ;  Witherow  v.  Briggs,  67  111.  96 ;  Downey  v.  Beach,  78  111. 
53;  Funk  V.  Buck,  91  111.  575  ;  Reeves  v.  Stipp,  91  111.  609;  Wernwag  v. 
Mothershead,  3  Blackf.  401  ;  Gower  v.  Carter,  3  la.  244;  Capen  v.  Crowell, 
66  Me.  282;  Davis  v.  Hendrie,  1  Mont.  499;  Fisher  v.  Otis,  3  Chand.  (Wis.) 
83 ;  Young  7/.  Fluke,  15  U.  C.  C.  P;  360. 

(')  Henry  v.  Thompson,  Minor  209. 

(■>)  Perry  County  v.  S.  M.  &  M.  R.R.  Co.,  65  Ala.  391 ;  Perry  i/.  Wash- 
burn, 20  Cal.  318,  350  (semble);  Danforth  v.  Williams,  9  Mass.  324.  But  it 
was  held  in  Texas  that  where  one  wrongfully  enjoined  the  collection  of  taxes 
from  himself  he  should  pay  interest  on  the  taxes  by  way  of  damages.  Rosen- 
berg V.  Weekes,  67  Tex.  578. 
Vol.  I. — 31 


482  INTEREST.  §§  32>3'  334- 

in  paying  its  quota  of  taxes  to  the  State. (')  It  has,  how- 
ever, been  held  that  where  by  statute  the  expense  of  im- 
proving a  street  is  assessed  upon  the  abuttors,  interest 
may  be  recovered  from  a  delinquent  abutton^) 

§  333-  On  fines  and  penalties.—  No  interest  can  be  re- 
covered for  delay  in  paying  a  fine  imposed  in  a  criminal 
case.C)  And  similarly,  where  a  national  bank  for  taking 
usurious  interest,  is  liable  to  a  penalty,  in  favor  of  the 
debtor,  though  it  is  recovered  in  a  civil  action,  the  debtor 
cannot  have  interest  upon  it  before  judgment.(^)  This 
principle  would  prevent  the  recovery  of  interest  in  any 
fut  tarn  action.  So  where  by  statute  the  highest  market 
value  of  property  destroyed  between  the  time  of  destruc- 
tion and  of  trial  is  allowed,  this  statute  is  held  to  be  a 
penal  one,  and  interest  is  not  allowed.(*) 

§  334.  On  judgments. — The  allowance  of  interest  on 
judgments  generally  has  been  a  subject  of  much  discus- 
sion. In  England,  the  doubt  was  solved  by  a  statute, 
which  declared  that  every  judgment  debt  shall  carry 
interest  at  the  rate  of  four  per  centum  per  annum,  from 
the  time  of  entering  up  the  judgment,  or. from  the  time 
of  the  passage  of  the  act  in  cases  of  judgment  then  en- 
tered up  and  not  carrying  interest,  until  the  same  shall 
be  satisfied  ;  and  that  such  interest  might  be  levied  under 
a  writ  of  execution  on  such  judgment.' 

In  New  York,  it  has  been  decided  that  interest  is  re- 

'  I  &  2  Vict.  c.  no,  §  17.  See  Fisher  v.  Dudding,  3  M.  &  G.  238.   See,  also. 
Crafts  V.  Wilkinson,  4  Q.  B.  74. 


(*)  State  V.  Multnomah  County,  13  Ore.  287.  Contra,  State  v.  Van 
Winkle,  43  N.  J.  L.  125. 

O  Gest  V.  Cincinnati,  26  Oh.  St.  275. 

(")  State  V.  Steen,  14  Tex.  396. 

(^)  Highley  v.  First  Nat.  Bank,  26  Oh.  St.  75. 

(«)  Smith  V.  Morgan,  73  Wis.  375  ;  ace.  Central  R.R.  &  B.  Co.  v.  Atlantic 
A  G.  R.R.  Co.,  50  Ga.  444;  Ware  v.  Simmons,  55  Ga.  94. 


§  334-  ON   JUDGMENTS,  483 

coverable  in  an  action  of  debt  on  judgment,  whether  the 
original  demand  carried  interest  or  not.'  And  this  is  gen- 
erally followed,  either  by  statute  or  by  interpretation  of 
the  common  lavv.('')  It  is,  however,  generally  held  that 
interest  cannot  be  included  in  a  levy  on  the  judgment  or 
in  a  scire  facias.  (^) 

In  Vermont  it  is  held  that  all  claim  for  interest  rs 
waived  by  suing  out  a  scire  facias, -{^^  but  in  New  Hamp- 

'  Klock  V.  Robinson,  22  Wend  157,  where  the  English  cases  are  reviewed. 

(')  By  common  law:  Perkins  v.  Fourniquet,  14  How.  328,331;  Crawford  v. 
Simonton,  7  Port,  no;  Gwinn  v.  Whitaker,  i  H.  &  J.  754;  Hodgdon  v.  Hodg- 
don,  2  N.  H.  169;  Mahurin  v.  Bickford,  6  N.  H.  567;  Harrington  v.  Glenn,  i  Hill 
(S.  C.)  79;  Nelson  v.  Felder,  7  Rich.  Eq.  395  ;  Beall  v.  Silver,  2  Rand.  401; 
Mercer  v.  Beale,  4  Leigh  189;  Booth  v.  Ableman,  20  Wis.  602.  By  statute: 
Dougherty  v.  Miller,  38  Cal.  548  ;  Brigham  v.  Vanbuskirk,  6  B.  Mon.  197  ; 
Toddz/.  Botchford,  86  N.  Y.  517;  Coles  v.  Kelsey,  13  Tex.  75;  Hagood  v. 
Aikin,  57  Tex.  511.  Not  without  a  statute  :  Reece  v.  Knott,  3  Utah,  451. 
In  Kentucky,  in  an  action  of  covenant  on  an  agreement  to  pay  for  property, 
judgement  was  obtained.  Suit  was  brought  on  that  judgment,  and  the  jury 
were  told  that  they  were  bound  to  give  interest  on  the  jndgment.  The  original 
agreement  contained  no  stipulation  for  interest.  The  Court  of  Appeals  said: 
"  It  is  true,  according  to  the  ancient  course  of  the  common  law,  although  the 
value  of  the  thing  covenanted  to  be  performed  usually  regulated  the  amount 
of  damages,  the  jury  in  an  action  sounding  altogether  in  damages  did  in  some 
instances  exceed  that  measure  ;  but  they  did  not  so  because  the  law  sub- 
jected the  covenantor  to  the  payment  of  interest,  but  in  the  exercise  of  a 
sound  discretion  with  which  they  were  invested,  regulated  by  what,  under 
the  peculiar  circumstances  of  the  case,  they  might  think  just."  And  for  the 
reason  that  the  charge  controlled  the  discretion  of  the  jury,  the  judgment 
was  reversed.  Guthrie  v.  Wickliffs,  4  Bibb.  541  ;  S.  P.  Cogwell's  Heirs  z/. 
Lyons,  3  J.  J.  Marsh  38. 

(")  Perkins  v.  Fourniquet,  14  How.  328,  331 ;  Solen  v.  Virginia  &  T.  R.R. 
Co..  14  Nev.  405  ;  Barron  v.  Morrison,  44  N.  H.  226 ;  Watson  v.  Fuller,  6 
Johns.  283  ;  Mann  v.  Taylor,  i  McC.  171  ;  Williamson  v.  Broughton,  4  McC. 
212 ;  Hall  V.  Hall,  8  Vt.  1 56.  By  statute,  however,  interest  is  often  included  in 
the  execution.  So  in  New  York :  Sayre  v.  Austin,  3  Wend.  496;  Co.  Civ.  Proc, 
§  121 1.  On  all  judgments  in  civil  cases  in  the  United  States  District  or  Circuit 
Courts,  interest  is  allowed  wherever,  by  the  law  of  the  State  in  which  such 
Circuit  or  District  Court  is  held,  interest  may  be  levied  under  execution  on 
judgments  recovered  in  the  State  courts.  Laws  1842,  ch.  188,  §  8  (5  U.  S. 
Stat,  at  Large,  518). 

C)  Hall  T/.  Hall,  8  Vt.  156. 


484  INTEREST.  §  334. 

shire  it  is  held  that  if  any  part  of  the  principal  is  unsatis- 
fied, the  balance  of  the  principal  with  all  the  Accrued  in- 
terest may  be  recovered  by  action  on  the  judgment.  (") 
In  some  States  interest  is  allowed  only  on  the  principal 
sum  due;  C")  in  some,  on  the  principal  and  interest ;(")  in 
others  still  (perhaps  most),  on  the  whole  amount,  prin- 
cipal, interest,  and  costs.("^)  As  the  judgment  is  looked 
upon  as  a  debt,  there  is  no  reason  for  making  any  distinc- 
tion between  the  different  constituents  of  the  debt.  In 
Pennsylvania,  interest  is  allowed  on  such  costs  only  as 
have  actually  been  paid,  and  then  from  the  time  of  pay- 
ment. This  is  founded  on  the  local  custom  of  that  State 
as  to  costs. (®)  It  was  intimated  in  an  early  case  in  Penn- 
sylvania that  where  several  successive  suits  were  brought 
on  a  judgment,  interest  would  be  allowed  only  on  the 
amount  of  the  original  judgment  jQ  but  it  was  decided, 
later,  that  interest  would  in  each  case  be  allowed  on  the 
amount  of  the  preceding  judgment. (^) 

Since  interest  is  given  as  damages  for  the  detention  of 
the  judgment  debt,  the  rate  should  be  that  established 
by  statute.  C")  Some  States,  however,  provide  by  statute 
that  a  judgment  recovered  on  an  interest-bearing  obliga- 


(')  Hodgdon  v,  Hodgdon,  2  N.  H.  169. 

0")  Pinckney  v.  Singleton,  2  Hill  (S.  C.)  343. 

(")  Corcoran  v.  Doll,  32  Cal.  82. 

(■•)  Emmitt  v.  Brophy,  42  Oh.  St.  82 ;  Laidley  v.  Merrifield,  7  Leigh  346. 

(«)  Rogers  v.  Burns,  27  Pa.  525.  This  principle  is  carried  so  far  that  a 
sheriff  suing  to  recover  his  costs  is  not  allowed  interest  on  them  :  Galbraith 
V.  Walker,  95  Pa.  481. 

(')  Meason's  Estate,  4  Watts  341. 

(«)  Fries  v.  Watson,  5  S.  &  R.  220. 

(>■)  Ex  parte  Fewings,  25  Ch.  Div.  338;  Wayman  v.  Cochrane,  35  111.  152; 
Corgan  v.  Frew,  39  III.  31 ;  Wilson  v.  Marsh,  13  N.  J.  Eq.  289;  Taylor  v. 
Wing,  84  N.  Y.  471. 


§§  335>  33^-  IN  ERROR.  485 

tion  shall   continue   to  bear  interest  at  the  stipulated 
rate.C) 

§  335-  Between  verdict  and  judgment. — In  some  juris- 
dictions interest  is  not  recoverable  between  verdict  and 
judgment,(*)  although  it  is  sometimes  held  that  the  jury- 
has  the  power  to  find  a  verdict  for  a  certain  amount 
"  with  interest."(°)  In  other  jurisdictions,  interest  con- 
tinues to  accrue  on  an  interest-bearing  claim, ("*)  and  in 
others  still  on  any  claim,  of  whatever  nature, (°)  but  only 
on  the  principal  amount,  not  on  interest  which  may  be 
included  in  the  judgment-C)  And  it  would  seem  that 
in  those  States  where  points  of  law  are  carried  up,  not 
by  an  appeal  "from  a  judgment  or  by  a  writ  of  error  from 
it,  but  by  a  bill  of  exceptions,  interest  should  be  allowed 
on  the  verdict  as  it  would  on  a  judgment  appealed  from. 
The  matter  is  almost  everywhere  regulated  by  statute.  (^) 

§  336.  In  error. — *  Interest  is  sometimes  given  in  error, 
by  way  of  damages.  In  an  early  case,'  on  affirmance  of 
judgment  in  the  King's  Bench  on  error,  a  rule  was  ob- 

'  Zink  v.  Langton,  2  Douglass,  751,  in  notes. 


(')  Corcoran  v.  Doll,  32  Cal.  82  ;  Daniel  v.  Gibson,  72  Ga.  367  ;  Burrows 
■V.  Stryker,  47  la.  477  ;  Rogers  v.  Lee  County,  i  Dill.  529  (Mo.)  ;  Hydraulic 
Co.  V.  Chatfield,  38  Oh.  St.  575  ;  Hagood  v.  Aikin,  57  Tex.  511. 

C)  Hallum  V.  Dickinson,  14  S.  W.  Rep.  477  (Ark.) ;  Baltimore  C.  P.  Ry. 
Co.  V.  Sewell,  37  Md.  443 ;  Lord  v.  New  York,  3  Hill  426  ;  Henning  v.  Van 
Tyne,  19  Wend.  loi ;  Kelsey  v.  Murphy,  30  Pa.  340;  Norris  v.  Philadelphia, 
70  Pa.  332. 

{')  Irvin  V.  Hazleton,  37  Pa.  465. 

(•')  Dowell  V.  Griswold,  5  Sawy.  23  ;  Swails  v.  Cissna,  61  la.  693. 

(')  Gibson  v.  Cincinnati  Enquirer,  2  Flip.  88 ;  Com.  v.  Boston  &  M.  R.R. 
Co.,  3  Cush.  25  ;  Johnson  v.  Atlantic  &  S.  L.  R.R.  Co.,  43  N.  H.  410;  Mc- 
Limans  v.  Lancaster,  65  Wis.  240. 

(')  McKim  V.  Blake,  1 39  Mass.  593. 

(s)  Thus  in  New  York  by  the  act  of  May  7,  1844,  interest  is  to  be  taxed  on 
all  verdicts  and  reports  of  referees,  as  costs,  from  the  time  of  obtaining  them 
to  that  of  perfecting  the  judgment.     Co.  Civ.  Proc,  §  1235. 


486  INTEREST.  §  336. 

tained  to  show  cause  why  the  master  should  not  compute 
interest,  and  add  it  to  the  costs,  on  the  ground  of  an  old 
statute,'  which  enacted  on  a  writ  of  error  being  brought, 
and  judgment  affirmed,  the  person  against  whom  it  is 
sued  out  shall  recover  his  costs  and  damages.  And  it 
was  held  that  "  interest  ought  to  be  the  measure  of  dam- 
ages." 

The  principle  of  this  statute  has  been  fixed  in  Amer- 
ican legislation.  By  the  judiciary  act  of  the  United 
States,'  the  Supreme  Court  is  authorized,  in  case  of 
affirmance  of  any  judgment  or  decree,  to  award  to  the 
respondent  just  damages  for  his  delay.  And  by  the  rules 
of  the  same  court,'  in  cases  where  the  suit  is  defended 
for  mere  delay,  damages  are  to  be  awarded  at  the  rate  of 
ten  per  centum  per  annum  on  the  amount  of  the  judg- 
ment, to  the  time  of  the  affirmance  thereof.  Where  there 
is  a  real  controversy,  the  damages  are  to  be  at  the  rate  of 
six  per  cent,  per  annum  only.  And  in  both  cases,  the 
interest  is  to  be  computed  as  part  of  the  damages.  It  is, 
therefore,  entirely  for  the  decision  of  the  court,  whether 
any  damages,  or  interest  as  a  part  thereof,  are  to  be  al- 
lowed or  not,  in  cases  of  affirmance.'  (") 

The  same  principle  was  followed  in  New  York,(^) 
where  it  was  provided  by  statute,"  that  "If  upon  vi^rit  of 
error,  the  judgment  be  affirmed,  or  the  writ  be  discon- 

'  3  Hen.  VII,,  c.  10.  *  Boyce's   Executors    v.    Grundy,   9 

'  1789,  c.  20,  §  23.  Peters  275  ;  Himely  v.  Rose,  5  Cranch 

^  Made  in  February  Term,  1803,  and  313  ;  Santa  Maria,  10  Wheat.  431,442. 

February  Term,  1807.  *  2  R.  S.  618,  §  32. 


(»)  Hall  V.  Jordan,  19  Wall.  271 ;  West  W.  Ry.  Co.  v.  Foley,  94  U.  S.  100. 
But  where  both  parties  appeal,  interest  is  not  allowed  to  the  prevailing  party : 
The  Rebecca  Clyde,  I2  Blatch.  403  ;  nor  is  it  allowed  where  the  prevailing' 
party  appeals,  and  the  appeal  is  dismissed  :  Cook  v.  South  Park  Comm'rs, 
61  III.  115. 

C)  Ac.  Palmer  T/.  Murray,  8  Mont.  312  ;  McCausland  v.  Bell,  9  S.  &  R. 
388  ;  Smith  v.  Pike,  44  Vt.  61. 


§  337-  MUNICIPAL   CORPORATIONS.  487 

tinued  or  quashed,  or  the  plaintiff  in  error  be  nonsuited, 
the  defendant  in  error  shall  recover  costs,  and  also  dam- 
ages  for  the  delay  and  vexation,  to  be  assessed  in  the  dis- 
cretion of  the  court  before  whom  the  writ  was  returna- 
ble."('')  The  limit  of  discretion  under  this  statute  was 
legal  interest.  The  allowance  of  damages,  however,  in 
these  cases,  rests  entirely  in  discretion;  and  so,  where  the 
action  was  in  tort,  the  Court  of  Errors  refused  it.'  It  was 
allowed,  however,  in  another  case,  on  a  judgment  in 
trover.'  But  this  branch  of  the  subject  rather  belongs 
to  the  head  of  statutes  regulating  damages,  which  we 
shall  elsewhere  consider.** 

§  337-  Municipal  corporations — The  State. — It  is  a  con- 
troverted question  whether  municipal  corporations  are 
liable  for  interest  except  upon  express  contract  or  in  con- 
sequence of  a  statute.  It  seems  clear  that  municipal  cor- 
porations are  not  required  to  seek  their  creditors  ;  the 
creditor  must  seek  the  debtor  if  the  debtor  is  a  municipal 
body.  A  municipal  body  is  therefore  not  in  default  tilt 
payment  of  the  debt  is  demanded,  and  no  interest  can  be: 
recovered  until  that  time.C")  In  some  States  it  is  held 
that  municipal  corporations  are  not  liable  to  interest  at 
all.(°)    And  so  it  has  been  held  as  to  the  State. ("*)     Some 

■  Gelston  v.  Hoyt,  13  Johns.  561.  other  cases,  seems  in  some  respects  to 

^  Bissell  V.  Hopkins,  4  Cow.  53.     In  rest  rather  upon  arbitrary  discretion, 

the  same  State  it  has  been  said  that  practice,  or  precedent,  than  any  prin- 

' '  the  judicial  doctrine  of  allowing  and  ciple  wliich  conforms  to  our  general 

disallowing    interest    on    judgments,  notions  of  justice."     Klock  v.  Robin- 

whether  on  affirmance  in  error,  or  in  son,  22  Wend.  157,  160. 

(')  Superseded  by  the  Code  of  Civil  Procedure. 

(')  Paul  V.  New  York,  7  Daly  144  ;  Yellowly  v.  Pitt  County,  73  N.  C.  164. 

(')  Wheeler  v.  Newberry  County,  18  S.  C.  132;  Ashe  z/.  Harris  County, 
55  Tex.  49.  In  lUmois  and  Mississippi  by  interpretation  of  the  statutes: 
Pekin  v.  Reynolds,  31  111.  529  ;  Chicago  v.  People,  56  111.  327  ;  Warren 
County  V.  Klein,  51  Miss.  807;  Clay  County  v.  Chickasaw  County,  64  Miss. 
534.  In  Pennsylvania,  because  the  debts  are  payable  only  out  of  taxes,  and 
therefore  not  until  there  are  funds:  Allison  w.  Juniata  County,  50  Pa.  351. 

(")  Whitney  v.  State,  52  Miss.  732. 


488  INTEREST.  §§  338,  339. 

States,  however,  allow  interest  on  claims  against  municipal 
corporations  from  time  of  demand.  (")  Apart  from  stat- 
utory reasons,  there  seems  to  be  no  principle  of  law  which 
should  exempt  political  corporations  from  liability  for 
interest. 

§  338.  Interest  after  payment  of  the  principal. — *  Where 
interest  is  not  stipulated  for  in  the  contract,  but  is  recover- 
able merely  as  damages,  a  creditor  is  precluded  from 
sustaining  an  action  for  its  recovery  after  accepting  the 
principal ;  Q)  but  where  interest  is  stipulated  for  in 
the  contract,  suit  may  be'  brought  for  it,  although  the 
principal  has  been  paid.('')  So,  payment  of  the  amount 
of  principal  money  due  from  a  debtor  to  his  creditor,  will 
not  necessarily  prevent  an  action  for  the  amount  of 
interest.  If  made  generally,  it  applies  first  to  extinguish 
the  interest,  and  the  balance  may  be  sued  for  as  the 
principal.'  ** 

§  339-  Rate  of  interest. — Where  interest  is  recovered 
as  damages,  the  rate  is  that  established  by  statute.  This 
was  held  in  an  action  of  replevin  for  a  savings-bank  book  ; 
where  the  statutory  rate  of  interest  was  given  as  damages 
for  detention  of  the  book,  though  the  bank  paid  a  lower 
rate  on  deposits.  ('*)     Where  no  rate  is  fixed  by  statute, 

'  People  V.  New  York,  5  Cow.  331. 


(»)  Jacks  V.  Turner,  36  Ark.  89 ;  Robbins  v.  Lincoln  County,  3  Mo.  57  ; 
Risley  v.  Andrew  County,  46  Mo.  382  ;  Paul  v.  New  York,  7  Daly  144 ; 
Yellowly  v.  Pitt  County,  73  N.  C.  164. 

(•>)  Succession  of  Mann,  4  La.  Ann.  28  ;  Succession  of  Anderson,  12  La. 
Ann.  95 ;  American  Bible  Society  v.  Wells,  68  Me.  572  ;  Southern  C.  R.R. 
Co.  v.  Moravia,  6i  Barb.  180;  Tenth  Nat.  Bank  v.  New  York,  4  Hun  429. 

{')  Robbins  v.  Cheek,  32  Ind.  328  ;  Stone  v.  Bennett,  8  Mo.  41  ;  Fake  v. 
Eddy,  15  Wend.  76;  King  v.  Phillips,  95  N.  C.  245. 

('')  Weffner  v.  Second  Ward  Savings  Bank,  76  Wis.  242. 


§  340-    WHAT  RELIEVES  DEFENDANT  FROM  INTEREST,      489 

the  customary  rate  may  be  recovered. (*)  If  the  statutory 
rate  is  changed  after  the  right  of  action  accrues,  interest 
is  reckoned  at  the  old  rate  until  the  change,  then  at  the 
new  rate.C^)  Where  a  judgment  by  its  terms  bore  inter- 
est, it  was  held  that  the  rate  should  not  be  changed  with 
a  change  in  the  statutory  rate.(")  And  in  New  Jersey  it 
was  held  that  where  the  judgment  is  on  a  contract  to  pay 
money,  the  legal  rate  of  interest,  in  the  absence  of  a 
stipulated  rate,  became  part  of  the  contract ;  and  the  rate 
could  not  be  changed  by  statute,  even  after  judgment. (**) 
An  annuity  was  created  when  interest  was  at  the  rate  of 
five  per  cent.,  which  was  afterwards  changed  ;  it  was  held 
that  interest  on  the  arrears  of  the  annuity  should  continue 
to  be  allowed  at  the  rate  of  five  per  cent.(^)  The  case 
seems  in  conflict  with  the  current  of  authorities. 

§  340.  What  will  relieve  a  defendant  from  interest. — 
Since  interest  is  given  as  damages  for  delay  in  pay- 
ment, if  the  defendant  was  not  chargeable  with  the  delay, 
interest  will  not  run  against  him.  The  commonest  case 
in  which  the  defendant  is  not  charged  with  delay,  and  is 
therefore  relieved,  is  that  of  tender.  When  a  debtor 
makes  a  legal  tender  of  the  amount  of  the  debt,  he  is 
chargeable  no  longer  with  interest  or  any  other  damages. 
This  proposition  is  so  elementary  as  to  require  no 
authorities.  Upon  a  similar  principle,  when  in  an  action 
of  tort  it  appears  that  the  wrong-doer  before  trial  offered 
to  pay  an  amount  greater  than  that  found  due  by  the  jury, 

(»)  Davis  V.  Greely,  i  Cal.  422  ;  Perry  v.  Taylor,  I  Utah  63. 

(••)  White  V.  Lyons,  42  Cal.  279 ;  Woodward  v.  Woodward,  28  N.  J.  Eq. 
119  ;  Wilson  v.  Cobb,  31  N.  J.  Eq.  91  ;  In  re  Doremus,  33  N.  J.  Eq.  234; 
Jersey  City  v.  O'Callaghan,  41  N.  J.  L.  349 ;  Reese  v.  Rutherford,  90  N.  Y. 
644  ;  Sanders  v.  Lake  S.  &  M.  S.  Ry.  Co.,  94  N.  Y.  641 ;  O'Brien  v.  Young, 
95  N.  Y.  428  ;  Stark  v.  Olney,  3  Ore.  88. 

(0  Prouty  V.  Lake  S.  &  M.  S.  Ry.  Co.,  26  Hun  546. 

{^)  Cox  V.  Marlatt,  36  N.  J.  L.  389. 

(«)  Thorntons  v.  Fitzhugh,  4  Leigh  209. 


490  INTEREST.  §  34O. 

no  interest  will  be  allowed,  though  the  case  is  otherwise 
a  proper  one  for  its  recovery.  (*) 

Where  commercial  paper  is  payable  at  a  certain  place, 
and  at  maturity  the  payor  has  funds  there  to  pay  it,  he  is 
not  chargeable  with  interest  so  long  as  he  keeps  the 
funds  there. (^)  If  the  plaintiff  himself  is  chargeable 
with  the  delay,  he  cannot  recover  compensation  for  it. 
So  where  a  plaintiff  prosecuted  a  claim  to  recover  an 
overpayment  of  customs  with  such  unreasonable  delay 
as  to  amount  to  laches,  it  was  held  that  the  court  might 
refuse  him  interest.  (")  So  where  the  creditor  leaves  the 
jurisdiction  without  notice  to  the  debtor  and  cannot  be 
found,  the  debtor  is  not  chargeable  with  interest  till  de- 
mand. (*) 

In  Anderton  v.  Arrowsmith,(°)  the  plaintiff  sued  on 
an  indemnity  bond  to  recover  sums  of  money  he  had 
paid.  The  bond  was  conditioned  to  pay  all  claims,  de- 
mands, costs,  charges,  damages,  and  expenses.  A  special 
verdict  was  taken  for  the  amount  claimed,  with  interest, 
and  a  finding  that  the  plaintiff  had  been  negligent  in  not 
collecting  the  debt  from  the  sureties  on  the  bond;  and  it 
was  left  to  the  court  to  say  whether  the  plaintiff  could 
recover  the  interest.  Lord  Denman,  C.  J.,  said  :  "  But 
assuming  that  interest  might  be  recovered  under  the 
name  of  damages  on  a  bond  conditioned  like  this,  we 
think  that  the  negligence  found  by  the  jury  makes  all 
the  difference  in  this  question  ;  if  promptly  obtained  from 
the  surety  and  promptly  repaid  out  of  defendant's  estate, 


(»)  Thompson  v.  Boston  &  M.  R.R.  Co.,  58  N.  H.  524. 
C)  Miller  v.  Bank  of  Orleans,  5  Whart.  503. 

(=)  Redfield  v.  Ystalyfera  Iron  Co.,  no  U.  S.  174;  Bartells  v.  Redfield,  27 
Fed.  Rep.  286 ;  Stewart  v.  Schell,  31  Fed.  Rep.  65. 
C)  Laura  Jane  v.  Hagen,  10  Humph.  332. 
C)  2  P.  &  D.  408. 


§  340-     WHAT  RELIEVES  DEFENDANT  FROM  INTEREST.      49 1 

no  interest  might  have  become  due  at  all,  and  we  cannot 
say  that  that  would  not  have  been  the  most  gainful 
course  for  defendant We  cannot  see  that  the  in- 
terest now  claimed  has  been  lost  to  plaintiffs  by  defendant's 
default  rather  than  by  their  own  negligence."  Interest 
seems  to  have  been  refused  in  this  case  on  the  principle 
that  the  plaintiff  cannot  recover  damages  which  he  has 
himself  caused. 

So  where  the  debtor  is  forbidden  by  law  to  pay  the 
debt,  he  is  not  chargeable  with  interest  for  delay  in  pay- 
ing it.  This  happens  in  time  of  war,  when  a  debtor  is 
in  one  hostile  country  and  the  creditor  in  the  other ;  in- 
terest is  not  given  while  that  state  of  things  continues.(*) 
This  is  true  only  of  interest  given  as  damages,  not  of  in- 
terest accruing  on  a  contract.  So,  if  a  contract  does  not 
mature  until  after  the  war,  interest  may  be  recovered. (^) 
And  if  it  matures  during  the  war,  interest  runs  to  ma- 
turity.(°)  But  if  the  creditor  has  a  known  agent  in  the 
same  country  with  the  debtor  it  is  the  debtor's  duty  to  pay 
such  agent,  and  interest  therefore  does  not  cease-C)  And 
where  the  creditor  and  the  sureties  are  in  the  same  coun- 
try, interest  runs  against  the  sureties,  though  not  against 
the  debtor.(*) 

Where  a  foreign  attachment,  trustee  process,  or  in- 
junction is  laid  on  a  party  liable  to  pay  interest,  the  in- 
terest  ceases  running   till   the  legal  impediment  is  re- 


(»)  Hoare  v.  Allen,  2  Dall.  102  ;  Foxcroft  v.  Nagle,  2  Dall.  132 ;  Bigler  v. 
Waller,  Chase  Dec.  316  ;  Mayer  v.  Reed,  37  Ga.  482;  Selden  v.  Preston,  11 
Bush  191 ;  Bordley  v.  Eden,  3  H.  &  McH.  167 ;  Brewer  v.  Hastie,  3  Call 
22. 

(">)  Lash  V.  Lambert,  15  Minn.  416. 

(»)  Brown  v.  Hiatts,  15  Wall.  177. 

(■i)  Ward  V.  Smith,  7  Wall.  447  ;  Conn  v.  Penn.,  Pet.  C.  C.  496 ;  Denniston 
V.  Imbrie,  3  Wash.  C.  C.  396. 

(f)  Bean  v.  Chapman,  62  Ala.  58. 


492  INTEREST.  §  34O. 

moved.('')  So  where  a  fund  is  deposited  in  a  bank  (*) 
or  in  court  (°)  awaiting  an  order  of  tiie  court  for  its  pay- 
ment, it  does  not  bear  interest.  In  some  States  it  is  held 
that  a  garnishee  or  party  enjoined  can  relieve  himself 
from  the  payment  of  interest  only  by  bringing  the  money 
into  court. ('')  In  any  State,  if  the  garnishee  is  in  collu- 
sion with  either  party,  or  denies  his  indebtedness  and  liti- 
gates the  question,  he  is  chargeable  with  interest ;  (^) 
and  so  if  it  can  be  shown  that  he  used  the  money  during 
the  pendency  of  the  case  instead  of  keeping  it  on  hand 
to  pay  over  at  any  time.Q 

Where,  by  an  arrangement  with  a  banking  firm,  a  de- 
positor was  allowed  five  per  cent,  interest  on  his  current 
balance,  and  he  died  having  a  balance  in  their  hands,  and 
a  period  of  nearly  four  years  elapsed  between  his  death 
and  the  issue  of  letters  of  administration  on  his  estate, 
the  bankers  not  having  signified  their  election  not  to  use 


(")  Legrangew.  Hamilton,  4T.  R.  613  ;  Hamilton  2/.  Legrange,  2  H.  Black. 
144 ;  Osborn  v.  U.  S.  Bank,  9  Wheat.  738  ;  Bainbridge  v.  Wilcocks,  Bald. 
536;  Willings  V.  Consequa,  Pet.  C.  C.  172,  301;  Norris  v.  Hall,  18  Me. 
332 ;  Oriental  Bank  v.  Tremont  Ins.  Co.,  4  Met.  I  ;  Bickford  v.  Rich,  105 
Mass.  340;  Huntress  v.  Burbank,  11 1  Mass.  213;  Smith  v.  Flanders,'  129 
Mass.  322 ;  Le  Branthwait  v.  Halsey,  9  N.  J.  L.  3 ;  Kellogg  v.  Hickok,  i 
Wend.  521  ;  Stevens  v.  Barringer,  13  Wend.  639;  Fitzgerald  v.  Caldwell, 
2  Dall.  215;  I  Yeates  274;  Jackson  v.  Lloyd,  44  Pa.  82.  But  contra,  Wallis 
•V.  Dilley,  7  Md.  237. 

C)  Taylor  v.  Minor,  14  S.  W.  Rep.  544  (Ky). 

(°)  Bowman  v.  Wilson,  2  McCrary  394. 

('')  Kirkman  v.  Vanlier,  7  Ala.  217  ;  Godwin  v.  McGehee,  19  Ala.  468  ; 
Bullock  V.  Ferguson,  30  Ala.  227 ;  Curd  v.  Letcher,  3  J.  J.  Marsh.  443 ; 
Smith  V.  German  Bank,  60  Miss.  69 ;  Candee  v.  Webster,  9  Oh.  St.  452 ; 
Templeman  v.  Fauntleroy,  3  Rand.  434. 

(°)  Work  V.  Glaskins,  33  Miss.  539  ;  Stevens  v.  Gwathniey,  9  Mo.  628 ; 
Rushton  V.  Rowe,  64  Pa.  63 ;  Jones z/.  Manufacturers'  Nat.  Bank,  99  Pa.  317. 

0  Mattingly  v.  Boyd,  20  How.  128;  Norris  v.  Hall,  18  Me.  332.  In 
Greenish  v.  Standard  Sugar  Refinery,  2  Low.  553,  it  was  held  that  the  gar- 
nishee, having  had  the  use  of  the  money,  must  pay  interest  at  the  actual 
market  rate,  but  was  not  liable  for  the  statutory  rate. 


§§  34I>  342.  CONFLICT   OF   LAWS.  493 

the  amount  by  making  a  special  deposit  of  it  in  some 
bank,  or  by  keeping  a  fund  continually  reserved  to  the 
extent  of  the  balance,  were  held  liable  to  pay  the  ad- 
ministrator the  five  per  cent,  interest  during  the  period.  (") 

§  341.  Interest  not  affected  by  intent. — The  cases  all  de- 
pend upon  the  principle  that  w^here  one  party  commits 
a  wrongful  act,  he  is  liable  in  damages  to  the  party  in- 
jured. It  is  therefore  unnecessary  to  the  allowance  of 
interest  that  there  should  have  been  any  wrongful  intent. 
Thus,  in  Sumner  v.  Beebe  (^)  the  happening  of  the  event 
upon  which  the  debt  became  due  was  unknown  to  the 
defendant.  The  court  held,  however,  that  as  it  was  one  not 
within  the  special  knowledge  of  the  plaintiff,  the  defend- 
ant was  bound  to  know  when  the  event  happened,  and 
was  liable,  therefore,  for  interest. 

§  342.  Conflict  of  laws. — It  has  been  held  that  on  a 
foreign  judgment  interest  is  recoverable  at  the  rate  of 
the  forum,  though  it  does  not  appear  whether  the  judg- 
ment bore  interest  by  the  law  of  the  country  where  it 
was  rendered.  C)  But  the  contrary  opinion  is  often  held. 
In  some  States  it  is  said  that  if  the  foreign  rate  is  not 
proved  it  will  be  presumed  to  be  the  same  as  the  domes- 
tic rate.(^)  In  Virginia,  in  an  action  on  a  foreign  judg- 
ment, after  the  defendant's  demurrer  overruled,  the  court 
awarded  a  writ  of  inquiry  to  assess  damages ;  which 
would  be  necessary  only  if  interest  were  to  be  awarded 
at  the  foreign  rate.(^)     In  California  it  has  been  held 


(»)  Watts  V.  Garcia,  40  Barb.  656. 

C)  37  Vt.  562. 

(=)  Parker  v.  Thompson,  3  Pick.  429 ;  Barringer  v.  King,  5  Gray  9 ;  Hop- 
kins V.  Shepard,  129  Mass.  600 ;  Nelson  v.  Felder,  7  Rich.  Eq.  395. 

("I)  Crone  v.  Dawson,  19  Mo.  App.  214;  Pauska  v.  Daus,  31  Tex.  -67; 
Porter  v.  Munger,  22  Vt.  191. 

(«)  Clarke  v.  Day,  2  Leigh  172. 


494  INTEREST.  §  342. 

that  in  the  absence  of  evidence  a  foreign  judgment  will 
be  presumed  not  to  bear  interest.('') 

It  has  been  intimated  that  the  foreign  law  as  to  interest 
must  be  carried  out  in  order  to  give  "  full  effect  and 
credit"  to  the  judgment  of  another  StatcC")  But  in 
Massachusetts,  with  more  reason,  it  has  been  held  that  the 
rate  of  interest  is  not  part  of  the  judgment,  and  no 
effect  need  constitutionally  be  given  to  it ;  even  when 
the. judgment  by  its  terms  bears  interest,  this  is  not  an 
integral  part  of  the  judgment,  and  interest  is  allowed  at 
the  domestic  rate.(°) 

In  an  action  on  overdue  coupons,  it  was  held  that  in- 
terest should  be  recovered  on  them  at  the  rate  of  the 
forum. C^)  But  the  opposite  opinion  is  often  held  in  ac- 
tion of  contract.  It  is  held  that  the  interest  after  maturity 
shall  beallowedeitherat  the  rate  of  the  place  of  perform- 
ance, (*)  or  of  the  place  of  contracting.  (')  So  a  consignor 
is  entitled  to  interest  according  to  the  law  of  the  place  to 
which  the  goods  were  consigned  for  sale.(^)  Where  the 
plaintiff  performed  services  at  Valparaiso,  the  defendant 
lived  in  Boston,  and  the  action  was  brought  in  New 
York,  interest  has  been  allowed  from  the  commencement 
of  the  suit  at  the  rate  of  the  lex  fori,  the  court  saying, 
"  especially  as  no  rate  is  fixed  by  the  contract,  and  no 


(*)  Cavender  v.  Guild,  4  Cal.  250.  It  will  be  noted  that  interest  in  Califor- 
nia is  allowed  on  judgments  only  by  statute,  not  by  the  common  law. 

0")  Schell  V.  Stetson,  12  Phila.  187. 

(")  Clark  V.  Child,  136  Mass.  344. 

('')  Fauntleroy  v.  Hannibal,  5  Dill.  219. 

(')  Pana  v.  Bowler,  107  U.  S.  529 ;  Sutro  Tunnel  Co.  v.  Segregated  B.  M. 
Co.,  19  Nev.  121.  So  in  actions  for  non-payment  of  mercantile  paper  ;  see 
chapter  on  Bills  and  Notes. 

O  Gibbs  V.  Fremont,  9  Ex.  25  ;  Courtois  v.  Carpentier,  i  Wash.  C.  C.  376 ; 
French  57.  French,  126  Mass.  360;  Pauska  w.  Daus,  31  Tex.  67;Porterz'. 
Munger,  22  Vt.  191. 

(e)  Fanning  z/.  Consequa,  17  Johns.  511. 


§  343-  COMPOUND  INTEREST  NOT  ORIGINALLY  ALLOWED.  495 

place  designated  for  its  performance."  (")  Where  prop- 
erty is  converted  or  destroyed  by  a  tort,  it  has  been 
held  that  interest  on  the  value  should  be  allowed  at  the 
rate  of  the  place  where  the  cause  of  action  accrued. C") 

§  343.  Compound  interest  not  originally  allowed. — *In  re- 
gard to  compound  interest,  or  interest  on  interest,  there 
has  existed  much  doubt  and  difference  of  opinion.  It  was 
rigorously  prohibited  by  the  Roman  law  :  Nullo  modo 
usurcB  usurarum  a  debitoribus  exigantur.^  The  Eng- 
lish law  followed  in  the  same  track.  So,  in  an  early 
case  in  chancery.  Lord  Cowper  held  a  clause  in  a  mort- 
gage, that  if  the  interest  was  behind  six  months,  then  it 
should  be  accounted  principal  and  compound  interest, 
was  "  void  and  of  no  use";  "  that  to  make  interest  prin- 
cipal, it  is  requisite  that  it  be  grown  due,  and  then  an 
agreement  concerning  it  may  make  it  principal." '  It  is 
not  regarded  as  within  the  statutory  prohibition  of  usury, 
but  as  leading  to  oppression  and  abuse.  So  Lord  Eldon 
has  said,  "  There  is  nothing  unfair  or  perhaps  illegal  in 
taking  a  covenant,  originally,  that  if  interest  is  not  paid 
at  the  end  of  the  year,  it  shall  be  converted  into  princi- 
pal. But  this  court  will  not  permit  that,  as  tending  to 
usury,  though  it  is  not  usury."' 

The  cases  were  reviewed  at  length  by  Chancellor  Kent, 
in  an  early  case  in  New  York  ;  and  it  was  said,  "The 
cases  and  language  in  the  books  are  clear  in  acknowl- 
edging the  rule  that  even  an  agreement,  made  at  the 
time  of  the  original  contract,  to  allow  interest  upon  in- 
terest as  it  should  become  due  is  not  to  be  supported";* 

'  Cod.  4,  32,  38.  '  Chambers  v.   Goldwin,  9  Ves.  254, 

'  Ossulston  V.  Yarmouth,  2  Salk.  449    271. 

\acc.  Daniell  v.  Sinclair,  L.  R.  6  App.        *  Connecticut  v.  Jackson,  i  Johns.  Ch. 

Cas.  181].  IS- 

C'") Goddard  v.  Foster,  17  Wall.  123. 
(^)  Ekins  V.  East  India  Co.,  i  P.  Wms.  395  ;  Holmes  v,  Barclay,  4  La.  Ann. 

64. 


496  INTEREST.  ^  344. 

and  he  placed  the  objection  to  the  provision  on  the 
ground  of  its  harsh  and  oppressive  character.  Again  in  a 
subsequent  case,  the  same  learned  judge  laid  down  the  rule 
that  "  compound  interest  cannot  be  demanded  and  taken, 
except  upon  a  special  agreement  made  after  the  interest 
has  become  due  ";  ^  and  the  general  principle  has  been 
again  and  still  more  recently  redeclared.C)  In  this  case 
it  was  said,  however,  that  if  compound  interest  be  volun- 
tarily paid,  it  cannot  be  recovered  back.'  So  in  ascer- 
taining the  amount  due  on  a  note  made  payable  with  in- 
terest annually,  simple  interest  only  is  to  be  computed  ; ' 
and  interest  on  the  interest  will  not  be  allowed.'  But  if 
a  new  note  is  given  for  the  interest,  it  is  thereby  con- 
verted into  capital,  and  it  may  be  given  with  interest.' 

§  344.  Except  by  mercantile  custom,  or  for  fraud. — An 
exception  was,  however,  recognized  as  introduced  by  the 
usages  of  modern  trade  to  .the  general  rule  which  denies 
compound  interest.  As  between  merchants  upon  their 
mutual  accounts,  it  is  the  custom  to  cast  interest  upon  the 
several  items,  and  to  strike  a  balance  at  the  end  of  the 
year  of  the  items  of  principal  and  those  of  interest,  and  to 
carry  the  footing  of  the  two  to  a  new  account,  as  forming 
the  first  item  of  principal  for  the  ensuing  year.     In  this 

'  Van   Benschooten    v.    Lawson,    6  be  added  to  the  principal  and  by  an- 

Johns.  Ch.  313.  other  contract  made  a  new  debt.     No 

^  See  also,  as  to  demand  of  compound  stipulation  to  that  effect  in  the  original 

interest,   Von  Hemert    v.    Porter,    11  contract  is  valid."  Art.  1939.  The  whole 

Met.  210.     In  Connecticut,  a  contract  subject  of  interest  is  codified  in  that 

for  the  payment  of  compound  interest,  State.     In  Indiana,  see  Niles  v.  Board 

made  before  interest  has  accrued,  is  to  of  Commis'rs,  8  Blackf.  158. 
that  extent  void,  and  will  not,  unless  in        ^  Hastings  v.  Wiswall,  8  Mass.  455  ; 

special  cases,  be  enforced  either  in  law  Dean  v.  Williams,  17  Mass.  417  ;  Von 

or  in  equity.    Camp  v.  Bates,  11  Conn.  Hemert  v.  Porter,    ii   Met.  210;  Doe 

487  ;  Rose  v.  Bridgeport,  17  Conn.  243.  v.  Warren,  7  Me.  48. 
In  Louisiana,  compound  interest  is  pro-        ■*  Ferry  v.  Ferry,  2  Cush.  92. 
hibited  by  the  Code :  "  Interest  upon        '  Wilcox  v.  Howland,  23  Pick.  167. 
interest  cannot  be  recovered,  unless  it 


(»)  Paulling  V.  Creagh,  54  Ala.  646 ;  Mason  v.  Callender,  2  Minn.  350 ; 
Hagerw.  Blake,  16  Neb.  12;  MowryT/.  Bishop,  5  Paige  98;  Averill  C.  &0. 
Co.  V.  Verner,  22  Oh.  St.  372 ;  Genin  v.  Ingersoli,  11  W.  Va.  549. 


§  344-         EXCEPT   BY    MERCANTILE   CUSTOM,    ETC.  49/ 

manner,  yearly  rests,  as  they  are  called,  have  for  a  long 
time  been  made  and  acquiesced  in  by  the  mercantile 
world. (")  But  after  the  mutual  trade  and  dealings  have 
ceased,  the  right  to  make  annual  rests  ceases  ;  and  in  the 
absence  of  any  specific  agreement,  the  creditor  is  allowed 
simple  interest  only  on  the  balance  of  his  account ;  the 
right  to  make  the  yearly  rests  growing  out  of  the  mutu- 
ality of  the  debts  and  credits ;  and  the  allowing  of  interest 
on  each  side.'  **  This  custom  does  not  extend  to  ac- 
counts between  mortgagor  and  mortgagee,  and  in  the 
absence  of  an  express  agreement  compound  interest  cannot 
be  recovered  on  a  mortgagcC") 

Another  exception  to  the  general  rule  denying  com- 
pound interest  grows  out  of  the  conduct  of  the  defendant ; 
where  that  is  grossly  delinquent  or  intentionally  contrary 
to  his  duty,  compound  interest  is  sometimes  inflicted  by 
way  of  punishment.'  Thus  a  trustee  using  the  trust  funds 
for  his  own  profit  is  often  held  Hable  to  pay  compound 
interest.(°)  Where  partial  payments  have  been  made  in 
cash,  or  by  rents  and  profits,  or  otherwise,  the  payments 
are  to  be  first  applied  to  the  satisfaction  of  the  interest 
then  due,('*)  and  the  balance  only  is  to  go  towards  the 
reduction  of  the  principal.' 

'  Denniston  v.  Imbrie,  3  Wash.  C.  (1818),  that  on  a  note  payable  with  in- 
C.  396  ;  Von  Hemert  v.  Porter,  n  Met.  terest  annually,  interest  at  the  rate  of 
210.  six  per  cent,  per  annum  should  be  cast 
'■'  Ackerman  v.  Emott,  4  Barb.  626.  on  the  principal,  and  interest  on  the 
'  Dean  v.  Williams,  17  Mass.  417;  annual  interest  in  the  nature  of  dam- 
Fay  V.  Bradley,  i  Pick.  194 ;  Reed  t.  ages  for  its  detention,  from  the  time 
Reed,  10  Pick.  398.  In  New  Hamp-  it  became  payable.  Peirce  v.  Rowe, 
shire,   it  was   said,   in   an   early  case  i  N.  H.  179. 

(»)  Eaton  V.  Bell,  5  B.  &  Aid.  34 ;  Barclay  v.  Kennedy,  3  Wash.  C.  C. 
350;  Von  Hemert  v.  Porter,  11  Met.  210;  Stoughton  v.  Lynch,  2  Johns.  Ch. 
209  ;  Reddington  v.  Oilman,  I  Bosw.  235 ;  Langdon  v.  Castleton,  30  Vt.  285  ; 
Davis  V.  Smith,  48  Vt.  52. 

C)  Young  V.  Hill,  67  N.  Y.  162. 

(")  Merrifield  v.  Longmire,  66  Cal.  180;  Connecticut  v.  Howarth,  48  Conn. 
207  ;  Jennison  v.  Hapgood,  10  Pick.  77,  104 ;  Schieffelin  v.  Stewart,  i 
Johns.  Ch.  620.  C)  Heartt  v.  Rhodes,  66  111.  351. 

Vol.  L — 32 


498  INTEREST.  §  345. 

§  345.  Interest  on  arrears  of  stipulated  interest. — The  old 
rule  still  prevails,  so  far  as  to  prevent  compound  interest 
when  recovered  as  damages.('')  But  where  interest  is  by 
the  terms  of  the  contract  payable  at  a  fixed  day,  interest 
may  be  recovered  as  damages  for  non-payment  of  it. 
Thus  where  on  a  note  or  other  agreement  for  the  payment 
of  money  it  is  stipulated  that  a  certain  amount  shall  be 
paid  as  interest  on  a  fixed  day,  upon  default  in  payment 
interest  on  the  stipulated  amount  may,  by  the  better 
opinion,  be  recovered  by  way  of  damages.^) 

Interest  is  usually  allowed  on  arrears  of  an  annuity,(°) 
though  it  is  in  form  an  obligation  for  the  payment  of  inter- 
est on  a  certain  sum.(*)     And  interest  is  almost  univers- 

(»)  Lewis  V.  Small,  75  Me.  323. 

O*)  Calhoun  v.  Marshall,  61  Ga.  275;  Tillman  w.  Morton,  65  Ga.  386; 
Wofford  V.  Wyly,  72  Ga.  863 ;  Mann  v.  Cross,  9  la.  327 ;  Hershey  v.  Her- 
shey,  18  la.  24;  Preston  v.  Walker,  26  la.  205;  Burrows  v.  Stryker,  47  la. 
477;  Tallialerro  v.  King,  9  Dana  331;  Peirce  v.  Rowe,  i  N.  H.  179; 
Bledsoe  v.  Nixon,  69  N.  C.  89  ;  Anketel  v.  Converse,  17  Oh.  St.  11 ;  Cramer 
V.  Lepper,  26  Oh.  St.  59;  Wheaton  v.  Pike,  9  R.  I.  132  ;  Lanahan  v.  Ward, 
10  R.  I.  299 ;  Henderson  v.  Laurens,  2  Dess.  (S.  C.)  170 ;  Singleton  v.  Lewis, 
2  Hill  (S.  C.)  408  ;  Gibbs  v.  Chisolm,  2  N.  &  McC.  38 ;  Doig  v.  Barkley,  3 
Rich.  125  ;  O'Neall  -v.  Bookman,  9  Rich.  80;  House  v.  Tennessee  F.  C,  7 
Heisk.  128  ;  Lewis  v.  Paschal,  37  Tex.  315  ;  Catlin  v.  Lyman,  16  Vt.  44. 

That  interest  may  not  be  recovered  on  arrears  of  interest :  Broughton  v. 
Mitchell,  64  Ala.  210 ;  Montgomery  v.  Tutt,  1 1  Cal.  307  ;  Doe  v.  Vallejo,  29 
Cal.  385  (by  statute)  ;  Denver  B.  &  M.  Co.  i/.  McAllister,  6  Col.  261  ;  Rose  v. 
Bridgeport,  17  Conn.  243  ;  Leonard  v.  Villars,  23  111.  377 ;  Niles  v.  Board,  8 
Blackf.  158;  Doe  v.  Warren,  7  Me.  48;  Banks  v.  McClellan,  24  Md.  62 
(contra,  Fitzhugh  v.  McPherson,  3  Gill.  408) ;  Hastings  v.  Wiswall,  8  Mass. 
455  ;  Henry  v.  Flagg,  13  Met.  64  ;  Van  Husan  v.  Kanouse,  13  Mich.  303; 
Dyar  v.  Slingerland,  24  Minn.  267  (reluctantly  following  Mason  v.  Cal- 
lender,  2  Minn.  350) ;  Corrigan  v.  Trenton  D.  F.  Co.,  5  N.  J.  Eq.  232,  245  ; 
Mowry  v.  Bishop,  5  Paige,  98  ;  Young  v.  Hill,  67  N.Y.  162  (contra,  Howard 
V.  Farley,  3  Robt.  308)  ;  Sparks  v.  Garrigues,  i  Binn.  1 52 ;  Stokely  v. 
Thompson,  34  Pa.  210;  Pindall  v.  Bank  of  Marietta,  10  Leigh,  481  ;  Genin 
V.  Ingersoll,  11  W.  Va.  549. 

(»)  Elliott  V.  Beeson,  i  Harr.  106  ;  Houston  v.  Jamison,  4  Harr.  330.  But 
contra,  Isenhart  v.  Brown,  2  Edw.  341  ;  Adams  v.  Adams,  10  Leigh  527. 

('')  Knettle  v,  Crouse,  6  Watts  123 ;  Addams  v.  Heffernan,  9  Watts  529. 


§  345-  INTEREST  ON  ARREARS  OF  STIPULATED  INTEREST.  499 

ally  allowed  on  the  overdue  coupons  of  a  coupon  bond, 
though  they  are  obligations  for  the  payment  of  interest.  (") 
It  was  thought  necessary  in  the  earlier  cases  to  prove  a 
demand  for  payment  and  refusal,  C*)  or  at  least  that  there 
was  no  money  at  the  place  of  payment  to  pay  the  cou- 
pons ;  (°)  but  it  is  now  held  that  interest  will  be  allowed, 
without  proof  of  presentment.  The  debtor  can  avoid  the 
payment  of  interest  only  by  proving  that  the  money  to 
pay  the  coupons  was  ready  at  the  time  and  place  of  pay- 
ment.C)  Where  a  coupon  bond  was  converted  by  the 
defendant,  it  was  held  that  interest  on  the  coupons  could 
be  recovered  by  the  owner  from  the  times  they  were  pay- 
able-C) 

Since  after  the  maturity  of  the  obligation,  interest, 
though  secured  by  the  obligation,  accrues  as  damages,  no 
interest  can  be  recovered  on  account  of  the  non-payment 

(■)  Gelpcke  v.  Dubuque,  i  Wall.  175;  Aurora  7/.  West,  7  Wall.  82;  Clark 7/. 
Iowa  City,  20  Wall.  583;  Genoa  v.  Woodruff,  92  U.  S.  502;  Amy  v.  Dubuque, 
98  U.  S.  470  ;  Koshkonong  v.  Burton,  104  U.  S.  668  ;  Pana  v.  Bowler,  107 
U.  S.  529  ;  Rich  v.  Seneca  Falls,  19  Blatch.  558  ;  Fauntleroy  v.  Hannibal,  5 
Dill.  219  ;  Hollingsworth  z/.  Detroit,  3  McLean  472  ;  -Huey  v.  Macon  County, 
35  F.  R.  481  ;  Harper  v.  Ely,  70  111.  581  ;  Humphreys  -u.  Morton,  100  111.  592  ; 
Jeffersonville  v.  Patterson,  26  Ind.  1 5  ;  Forstall  v.  Louisiana  Planters'  Assoc, 
34  La.  Ann.  770 ;  Virginia  v.  Ches.  &  Ohio  Canal  Co.,  32  Md.  501 ;  Welsh 
V.  First  Div.  of  St.  P.  &  P.  R.R.  Co.,  25  Minn.  314 ;  Conn.  Mut.  Life  Ins.  Co. 
V.  C.  C.  &  C.  R.R.  Co.,  41  Barb.  9 ;  Burroughs  v.  Richmond  County,  65  N. 
C.  234;  McLendon  v.  Anson  County,  71  N.  C.  38  ;  Dunlap  v.  Wiseman,  2 
Disney  398 ;  North  P.  Ry.  Co.  v.  Adams,  54  Pa.  94 ;  Langston  v.  S.  C.  Ry. 
Co.,  2  S.  C.  248  ;  Nashville  v.  First  Nat.  Bank,  i  Baxt.  402  ;  San  Antonio  v. 
Lane,  32  Tex.  405;  Arents  v.  Com.,  18  Gratt.  750,  776;  Gibert  v.  Washington 
C.  V.  M.  &  G.  S.  R.R.  Co.,  33  Gratt.  586,  598  ;  Mills  v.  Jefferson,  20  Wis. 
50.  But  contra.  Rose  v.  Bridgeport,  17  Conn.  243  ;  Force  v.  Elizabeth,  28 
N.  J.  Eq.  403. 

(")  Phelps  V.  Lewiston,  15  Blatch.  131 ;  Beaver  County  w.  Armstrong,  44 
Pa.  63  ;  Whitaker  v.  Hartford  P.  &  F.  R.R.  Co.,  8  R.  I.  47  ;  Nat.  Exchange 
Bank  v.  Hartford  P.  &  F.  R.R.  Co.,  8  R.  I.  375. 

(')  Nashville  v.  First  Nat.  Bank,  i  Baxt.  402. 

C)  Walnut  V.  Wade,  103  U.  S.  683  ;  Humphreys  v.  Morton,  100  111.  592. 

C)  Winona  v.  Minnesota  Ry.  C.  Co.,  29  Minn.  68. 


500  INTEREST.  §  346. 

of  Stipulated  interest  after  the  maturity  of  the  obligation, 
and  no  interest  can  be  recovered  for  delay  in  paying  in- 
terest on  the  overdue  instalments  of  interest.  Conse- 
quently at  the  maturity  of  the  obligation  interest  runs 
upon  the  amount  of  the  obligation  itself  with  the  interest 
secured  by  it  and  unpaid  ;  the  additional  amount  due  as 
damages  for  non-payment  of  the  stipulated  interest  does 
not  bear  interest,  even  after  maturity  of  the  obligation,  (") 
Even  if  the  obligation  provides  that  if  the  interest  is  not 
promptly  paid  it  shall  become  principal  and  bear  interest 
like  the  principal,  no  interest  can  be  recovered  on  arrears  of 
this  secondary  interest ;  Q)  for  it  is  interest  payable  after 
maturity,  and  by  way  of  damages.  In  short,  compound'm.- 
terest  is  never  allowed  by  way  of  damages  ;  but  interest  is 
allowed  upon  unpaid  interest  which  is  a  part  of  the  debt 

§  346.  Interest  in  admiralty. — In  admiralty  proceedings 
interest  is  in  the  discretion  of  the  court.  In  The 
Wanata  (")  it  was  held  the  libellants  could  recover  inter- 
est, on  the  costs  and  damages,  against  the  stipulators  for 
value,  by  way  of  damages  for  the  delay,  as  the  amount 
should  have  been  paid  before  the  appeal  was  taken. 


C)  Wheaton  v.  Pike,  9  R.  I.  132. 

C)  Vaughan  v.  Kennan,  38  Ark.  114;  Bledsoe  v.  Nixon,  69  N.  C.  89. 

(=)  95  U.  S.  600. 


CHAPTER  XL 


EXEMPLARY    DAMAGES. 


§  347.  Meaning  of  the  term. 

348.  Origin  of  the  doctrine  of  ex- 

emplary damages. 

349.  Original  position  of  the  jury  in 

the  assessment. 

350.  Evolution  of  the  doctrine. 

351.  History  of    the     doctrine    in 

America. 

352.  American  cases. 

353.  Objections  to  the  doctrine. 

354.  The  rule    established  by    au- 

thority and  convenience. 

355.  Exemplary  damages  in  other 

systems  of  law. 

356.  Exemplary  damages  and  dam- 

ages for  mental  suffering. 

357.  Exemplary  damages   in   addi- 

tion to  compensation. 

358.  In   some  jurisdictions,   exem- 

plary damages  not  awarded. 

359.  In   some  jurisdictions,   exem- 

plary damages,    so    called, 
are  compensatory. 

360.  In    most    jurisdictions    exem- 

plary damages  are  given  for 
punishment. 

361.  Exemplary  damages    not   al- 

lowed without  actual  loss. 

362.  Do  not  survive. 

363.  Are  allowed  only  for  wilful  in- 

jury. 

364.  Exemplary  damages  for  malice. 

365.  For  oppression,  brutality,or  in- 

sult. 

366.  For  wantonness  of  injury. 


5  367.  For  fraud. 

368.  For  gross  negligence. 

369.  Circumstances  preventing  the 

allowance  of  exemplary  dam- 
ages. 

370.  In    what    actions    exemplary 

damages  may  be  recovered. 

371.  Not  recoverable  in  equity. 

372.  In  actions  for  personal  injury. 

373.  For  injury  to  property. 

374.  In  actions  of  trover. 

375.  Of  replevin. 

376.  For  loss  of  service. 

377.  For  defamation. 

378.  Liability  of  a  principal  to  ex- 

emplary damages  for  acts  of 
his  agents  or  servants. 

379.  Of  a   corporation  for  acts  of 

agents. 

380.  For  acts  of  servants. 

381.  Of  an  officer. 

382.  Of  one  of  two  joint  defendants. 

383.  Mitigation    or    aggravation — 

Want  of  rnalice. 

384.  Provocation. 

385.  Pecuniary  condition  of  defend- 

ant. 

386.  Exemplary    damages    for    in- 

juries which  are  crimes. 

387.  Relations  of  court  and  jury  in 

awarding    exemplary    dam- 
ages. 

388.  Power  of  jury  over  amount  of 

exemplary  damages. 


§  347.  Meaning  of  the  term.— In  actions  of  tort,  when 
gross  fraud,  malice,  or  oppression  appears,  the  jury  are 
not  bound  to  adhere  to  the  stifct  line  of  compensation, 

(501) 


502  EXEMPLARY   DAMAGES.  §§  348,  349. 

but  may,  by  a  severer  verdict,  at  once  impose  a  punish- 
ment on  the  defendant,  and  hold  him  upas  an  example  to 
the  community.  It  might  be  said,  indeed,  that  the  ma- 
licious character  of  the  defendant's  intent  does,  in  fact, 
increase  the  injury,  and  the  doctrine  of  exemplary 
damages  might  thus  be  reconciled  with  the  strict  notion 
of  compensation  ;  but  it  will  appear  from  the  cases  we 
now  proceed  to  examine  that  the  idea  of  compensation 
is  abandoned,  and  that  of  punishment  introduced. 
Damages  assessed  upon  this  principle  are  called  "  ex- 
emplary" or  "vindictive"  damages. (") 

§  348.  Origin  of  the  doctrine  of  exemplary  damages. — The 

term  "  exemplary  damages "  seems  to  have  owed  its 
origin  to  Lord  Camden,  the  first  reported  case  in  which 
it  occurs  being  that  of  Huckle  v.  Money,('')  one  of  the 
general  warrant  cases.  It  can  hardly  be  said  that  the  de- 
cisions in  this  case  and  those  which  are  cited  as  following 
it  established  a  new  rule  of  damages.  They  were,  on  the 
contrary,  cases  where  the  court  held  to  old  precedent  in 
the  face  of  hard  pressure  to  establish  a  novel  doctrine. 
To  understand  this,  it  is  only  necessary  to  recall  the 
original  position  of  the  jury  in  -the  assessment  of  dam- 
ages. 

§  349.  Original  position  of  the  jury  in  the  assessment  of 
damages. — Until  comparatively  recent  times  juries  were 

(•)  Other  terms  sometimes  used  are  "punitory"  or  "  punitive  "  damages, 
and  "  smart  money."  These  terms  are  usually  employed  indifferently  in  de- 
scribing these  damages.  Hackett  v.  Smelsley,  ■]■]  III.  109;, Roth  v.  Eppy,  80 
111.  283;  Chiles  V.  Drake,  2  Met.  (Ky.)  146;  Louisville  &  P.  R.R.  Co.  v.  Smith, 
2  Duvall  556  ;  Stoneseifer  v.  Sheble,  31  Mo.  243;  Kennedy  z/.  North  Missouri 
R.R.  Co.,  36  Mo.  351 ;  Green  v.  Craig,  47  Mo.  90.  In  Freese  v.  Tripp,  70 
111.496;  Meidel  z/.  Anthis,  71  111.  241;  Freidenheit  z/.  Edmundson,  36  Mo. 
226  ;  McKeon  v.  Citizens'  R.R.  Co.,  42  Mo.  79,  it  was  attempted  to  make  a 
distinction  between  "exemplary  "  and  "punitory  "  damages  ;  but  the  cases 
were  soon  overruled. 

0  2  Wils.  205  ;  Sayer  on  Damages,  220. 


§  349-       POSITION    OF  THE   JURY  IN  THE  ASSESSMENT.       503 

as  arbitrary  judges  of  the  amount  of  damages  as  of  the 
facts.  The  court  could  review  the  finding  of  the  jury 
only  in  cases  of  mayhem,  and  then  it  must  be  super 
visum  vulnerzs.if)  The  parties,  by  putting  themselves 
upon  the  country,  had  agreed  to  abide  by  its  decision. 
Thus,  the  jury  having  awarded  enormous  damages  in  an 
action  of  scandalum  magnatum,  the  court  was  asked  for 
a  new  trial.  In  refusing  to  grant  this,  North,  C.  J.,  said  : 
"  In  civil  actions  the  plaintiff  is  to  recover  by  way  of 
compensation  for  the  damages  he  hath  sustained,  and  the 
jury  are  the  proper  judges  thereof."  C*)  This  principle 
applied  as  well  to  actions  of  contract  as  to  actions  of  tort. 
And  in  an  action  against  an  attorney  for  negligence,  "  the 
jury  were  told  they  might  find  what  damages  they 
pleased."  (°)  Even  as  late  as  the  time  of  Lord  Mansfield 
it  was  possible  for  counsel  to  state  the  law  to  be  that 
"  The  court  cannot  measure  the  ground  on  which  the 
jury  find  damages  that  may  be  thought  large ;  they  may 
find  upon  facts  within  their  own  knowledge.  And  in 
order  to  enable  them  to  do  this,  it  was  that  the  old  com- 
mon-law writ  appointed  them  to  be  de  vicenet.  Twelve 
jurors  are  not  to  be  supposed  to  give  a  verdict  contrary 
to  their  conscience,  and  both  parties  put  themselves  upon 
the  jury  to  abide  their  decision,  as  to  the  quantity  of  the 
damages,  as  well  as  whether  any  or  not."  (*)  At  the 
end  of  the  eighteenth  century,  however,  the  present  law 
regulating  the  measure  of  damages  was  settled  so  far  as 
it  concerned  actions  of  contract ;  and  in  actions  of  tort 
where  the  injury  was  to  property  only,  there  seems  to  have 
been  an  approach  to  fixed  principles  of  compensation.  But 

(»)  Hawkins  v.  Sciet,  Palm.  314;  Staneley's  Case,  Hetl.  93,  Lit.  150;  Delves 
V.  Wyer,  Brownl.  204. 

C")  Townsend  v.  Hughes,  2  Mod.  1 50. 
C)  Russel  V.  Palmer,  2  Wils.  325. 
(■*)  Gilbert  v.  Berkinshaw,  Lofft,  771. 


504  EXEMPLARY    DAMAGES.  §  350. 

where  personal  suffering  or  outraged  feelings  complicated 
the  estimate  of  damages,  the  court  still  held  itself  incom- 
petent to  review  the  verdict  of  the  jury.  The  doctrine 
of  exemplary  damages  is  thus  seen  to  have  originated  in 
a  survival  in  this  limited  class  of  cases  of  the  old-arbitrary 
power  of  the  jury. 

§  350.  Evolution  of  the  theory  of  exemplary  damages. — 
It  remains  to  consider  the  steps  by  which  the  rule  of 
exemplary  damages  acquired  its  present  form.  As  has 
already  been  said,  nothing  was  further  from  the  idea  of 
the  judges  than  that  they  were  establishing  a  new  doc- 
trine ;  they  founded  their  decision  entirely  on  existing 
precedents. 

The  case  generally  cited  as  establishing  the  rule  was,  as 
has  been  already  stated,  an  action  of  trespass,  assault  and 
imprisonment,  the  act  complained  of  being  an  arrest  of 
the  plaintiff  as  printer  of  the  "  North  Briton,"  under  a 
general  vi^arrant  issued  by  Lord  Halifax,  then  Secretary 
of  State,  no  actual  ill-treatment  being  alleged,  the  jury 
having  found  a  verdict  for  ;^300  ;  on  a  motion  for  a  new 
trial  on  the  ground  of  excessive  damages.  Lord  Chief 
Justice  Pratt,  afterwards  Lord  Camden,  said  : 

"  The  personal  injury  done  to  the  plaintiff  was  very  small ; 
so  that  if  the  jury  had  been  confined  by  their  oath  to  con- 
sider the  mere  personal  injury  only,  perhaps  ;^2o  damages 
would  have  been  thought  damages  sufficient ;  but  the  small  in- 
jury done  to  the  plaintifif,  or  the  inconsiderableness  of  his  station 
and  rank  in  life,  did  not  appear  to  the  jury  in  that  striking 
light  in  which  the  great  point  of  law,  touching  the  liberty  of  the 
subject,  appeared  to  them  at  the  trial  ;  they  saw  a  magistrate 
over  all  the  king's  subjects  exercising  arbitrary  power,  violating 
magna  charta,  and  attempting  to  destroy  the  liberty  of  the  king- 
dom, by  insisting  upon  the  legality  of  this  general  warrant  be- 
fore them  ;  they  heard  the  king's  counsel,  and  saw  the  solicitor 
of  the  treasury  endeavoring  to  support  and  maintain  the  legality 
of  the  warrant  in  a  tyrannical  and  severe  manner  ;  these  are  the 


§  3 SO-  EVOLUTION   OF   THE   DOCTRINE.  505 

ideas  which  struck  the  jury  on  the  trial  ;  and  I  think  they  have 
done  right  in  giving  exemplary  damages.  I  cannot  say  what 
damages  I  should  have  given  if  I  had  been  upon  the  jury  ;  but  I 
directed  and  told  them  they  were  not  bound  to  any  certain 
damages,  against  the  solicitor-general's  argument."  ' 

And.  the  motion  for  a  new  trial  was  denied.  The 
same  case,  as  reported  in  Saver  on  Damages,  (*)  contains 
a  further  extract  from  the  opinion  of  the  Chief  Justice  : 
"  Whenever  an  injury  is  done  under  the  color  of  author- 
ity, as  if  an  officer  empowered  to  press  exceed  the 
authority  given  him  by  the  press  warrant ;  or  if  a  master 
of  a  ship  abuse  the  power  by  law  vested  in  him  over  the 
sailors  under  his  command  ;  or  if,  as  in  the  present  case, 
a  person  is  arrested  upon  a  general  warrant,  the  jury  in 
assessing  damages  are  not  confined  to  the  damages  which 
have  been  actually  sustained,  but  ought  to  assess  exem- 
plary damages."  By  the  concurring  opinion  of  Bathurst, 
J.,  it  clearly  appears  that  in  his  opinion  the  decision  was 
only  a  refusal  to  restrict  the  jury  to  certain  damages. 

Beardmore  v.  Carrington  C")  was  an  action  also  grow- 
ing out  of  these  general  warrants,  where  a  verdict  was 
found  for  the  plaintiff  in  ;^i,ooo.  As  he  had  been  im- 
prisoned but  six  days  a  motion  was  made  for  a  new  trial, 
on  the  ground  of  the  excessiveness  of  the  damages.  But 
it  was  refused.  Lord  Campbell,  in  his  Lives  of  the  Chan- 
cellors, vol.  V,  p.  249,  reports  Lord  Chief  Justice  Pratt 
to  have  said  :  "  As  to  the  damages,  I  continue  of  opinion 
that  the  jury  are  not  limited  to  the  injury  received. 
Damages  are  designed  not  only  as  a  satisfaction  to  the 
injured  person,  but  likewise  as  a  punishment  to  the 
guilty,  and  as  a  proof  of  the  detestation  in  which  the 
wrongful  act  is  held  by  the  jury."    But  this  language  can- 

'  Huckle  V.  Money,  2  Wils.  205. 
(»)  At  p.  220.  C)  2  Wils.  244.  , 


506  EXEMPLARY    DAMAGES.  §  350. 

not  be  found  in  the  case  as  reported  by  Wilson.  On  the 
contrary,  it  is  clear  that  the  case  was  another  refusal  of  the 
court  to  set  aside  the  verdict  of  the  jury,  and  that  their 
reason  was  the  lack  of  the  court's  power  to  do  so.  They 
cited  Townsend  v.  Hughes  in  support  of  their  decision  ; 
and  said  :  "  We  desired  to  be  understood  that  this  court 
does  not  say,  or  lay  down  any  rule  that  there  can  never 
happen  a  case  of  such  excessive  damages  in  tort,  where 
the  court  may  not  grant  a  new  trial  ;  but  in  that  case  the 
damages  must  be  monstrous  and  enormous  indeed,  and 
such  as  all  mankind  must  be  ready  to  exclaim  against,  at 
first  blush.'X") 

In  a  later  case  the  plaintiff  brought  an  action  for  a  blow 
on  the  face  given  him  by  the  defendant.  Pratt,  C.  J., 
said  :  "As  a  challenge  and  death  may  be  the  consequence 
of  a  blow  given  by  one  gentleman  to  another,  I  think  the 
jury,  who  are  in  all  cases  the  proper  judges  of  damages, 
have  done  right  in  the  present  case  in  giving  exemplary 
damages."('') 

In  an  action  of  trespass  for  entering  the  plaintiff's 
house  and  debauching  his  daughter,  soon  after  decided, 
expressions  were  thrown  out  in  passing  which  might  give 
countenance  to  the  doctrine.  Thus  on  a  motion  for  a 
new  trial  on  the  ground  that  the  damages  were  excessive, 
Wilmot,  Lord  Chief  Justice,  said:  "Actions  of  this  sort 
are  brought  for  example's  sake ;  and  although  the  plain- 
tiff's loss  in  this  case  may  not  really  amount  to  the  value 
of  twenty  shillings,  yet  the  jury  have  done  right  in  giving 
liberal  damages." '  That  the  court,  however,  desired  as 
far  as  possible  to  reconcile  this  view  with  the  rule  of  com- 
pensation appears  from  the  opinion  of  Bathurst,  J.,  who 

'  TuUidge  v.  Wade,  3  Wils.  18. 


(»)  At  p.  250. 

0  Grey  v.  Grant,  C.  B.,  Trim.  4  Geo.  III. ;  Sayer  on  Damages,  227. 


§  350-  EVOLUTION    OF   THE    DOCTRINE.  507 

said:  "In  actions  of  this  nature,  and  of  assaults,  the  cir- 
cumstances of  time  and  place,  when  and  where  the  insult 
is  given,  require  different  damages,  as  it  is  a  greater  insult 
to  be  beaten  upon  the  Royal  Exchange  than  in  a  private 
room." 

*  In  an  action  in  the  English  Common  Pleas,  of  tres- 
pass quare  clausiim  fregit,  it  appeared  that  the  plaintiff, 
a  gentleman  of  fortune,  was  shooting  on  his  own  estate, 
when  the  defendant,  a  banker,  magistrate,  and  member  of 
parliament,  forced  himself  on  the  plaintiff's  land,  fired  at 
game  several  times,  and  used  very  intemperate  language. 
The  jury  found  a  verdict  for  ;^5oo;  and  on  a  motion  to 
set  it  aside  for  excess,  Gibbs,  C.  J.,  said  : 

"  I  wish  to  know,  in  a  case  where  a  man  disregards  every  prin- 
ciple which  actuates  the  conduct  of  gentlemen,  what  is  to  restrain 
him  except  large  damages  ?  To  be  sure,  one  can  hardly  con- 
ceive worse  conduct  than  this.  What  would  be  said  to  a  person 
in  a  low  station  of  life  who  should  behave  himself  in  this  man- 
ner ?  I  do  not  know  upon  what  principle  we  can  grant  a  rule  in 
this  case,  unless  we  were  to  lay  it  down  that  the  jury  are  not 
justified  in  giving  more  than  the  absolute  pecuniary  damage 
that  the  plaintiff  may  sustain.  Suppose  a  gentleman  has  a  paved 
walk  in  his  paddock,  before  his  window,  and  that  a  man  in- 
trudes, and  walks  up  and  down  before  the  Vvfindow  of  his  house, 
and  looks  in  while  the  owner  is  at  his  dinner  ;  is  the  trespasser 
to  be  permitted  to  say,  '  Here  is  a  half-penny  for  you,  which  is 
the  full  extent  of  all  the  mischief  I  have  done  '  ?  Would  that 
be  a  compensation  ?    I  cannot  say  that  it  would  be." 

And  Heath,  J.,  said  : 

"I  remember  a  case  where  the  jury  gave  ;^Soo  damages, 
for  merely  knocking  a  man's  hat  off;  and  the  court  refused  a 
new  trial.  There  was  not  one  country  gentleman  in  a  hundred 
who  would  have  behaved  with  the  laudable  and  dignified  cool- 
ness which  this  plaintiff  did.  It  goes  to  prevent  the  practice  of 
duelling,  if  juries  are  permitted  to  punish  insult  by  exemplary 
damages." ' 

'  Merest  v.  Harvey,  5  Taunt.  442. 


508  EXEMPLARY    DAMAGES.  §  351- 

In  a  case  in  the  King's  Bench,  which  was  trespass  for 
breaking  the  plaintiff's  close,  and  laying  poison  upon  it 
to  destroy  the  plaintiff's  poultry,  the  defendant  contended 
that  he  was  only  liable  for  the  value  of  the  fowls  de- 
stroyed ;  but  Abbott,  J.,  told  the  jury  that  they  might 
consider  not  only  the  mere  pecuniary  damage,  but  also 
the  intention,  whether  for  insult  or  injury,  and  the  verdict 
was  ;^5o/  So,  the  Court  of  Exchequer  has  said  : '  "In 
actions  for  malicious  injuries,  juries  have  been  allowed  to 
give  what  are  called  vindictive  damages,  and  to  take  all 
the  circumstances  into  consideration."  So,  in  the  Ex- 
chequer Chamber,  Lord  Denman  said,  that  the  actions  of 
trespass  of  real  and  personal  properly  were  an  extension 
of  that  protection  which  the  law  throws  around  the  per- 
son, and  that  substantial  damages  may  be  recovered  in 
respect  of  such  rights,  though  no  loss  or  diminution  in 
value  of  property  may  have  occurred.'  ** 

§  351.  History  of  the  doctrine  in  America. — The  rule  was 
very  early  established  in  several  jurisdictions  of  this  coun- 
try. Thus  in  New  Jersey,  in  an  action  for  breach  of 
promise  of  marriage  brought  at  the  end  of  the  last  century, 
the  jury  was  charged  "  that  they  were  not  to  estimate  the 
damages  by  any  particular  proof  of  suffering  or  actual  loss ; 
but  to  give  damages  for  examples  sake,  to  prevent  such 
offences  in  future."('')  So  in  New  York,  *  in  an  action 
for  libel,  it  was  urged  on  a  motion  for  a  new  trial,  that  the 
public  character  of  the  plaintiff  as  an  officer  of  government, 
and  the  evil  example  of  libels,  were  stated  by  the  judge  to 
the  jury,  as  considerations  with  them  for  increasing  the 
damages  ;  but  Kent,  C.  J.,  delivering  the  opinion  of  the 

'  Sears  v.  Lyons,  2  Stark.  317.  See,  also,  Williams  v.  Currie,  I  C.  B. 

'  Doe  V.  Filliter,  13  M.  &  W.  47.  841. 

'  Rogers  v.  Spence,  13  M.  &  W.  571. 


(*)  Coryell  *.  Colbaugh,  Coxe  ^^. 


§  ^^I.        HISTORY  OF  THE  DOCTRINE  IN  AMERICA.  509 

Supreme  Court  said  :  "  Surely  this  is  the  true  and  salutary 
doctrine.  The  actual  pecuniary  damages  in  actions  for 
defamation,  as  well  as  in  other  actions  for  torts,  can 
rarely  be  computed,  and  are  never  the  sole  rule  of  assess- 
ment." And  after  reviewing  the  English  cases,  the 
court  proceeded :  "  But  it  cannot  be  requisite  to  multi- 
ply instances  in  which  the  doctrine  contained  in  this 
part  of  the  charge  has  received  the  sanction  of  the  English 
and  of  the  American  courts  of  justice.  It  is  too  well  set- 
tled in  practice,  and  is  too  valuable  in  principle,  to  be  called 
in  question."  Spencer,  J.,  held  still  stronger  language  : 
"  In  vindictive  actions,"  he  said,  "  such  as  for  libels,  defa- 
mation, assault  and  battery,  false  imprisonment,  and  a 
variety  of  others,  it  is  always  given  in  charge  to  the  jury 
that  they  are  to  inflict  damages  for  example's  sake,  and  by 
way  of  punishing  the  defendant." ' 

So  again,  in  another  case,'  where  trespass  was  brought 
for  beating  a  horse  to  death,  the  judge  charged,  that  if 
they  found  for  the  plaintiff,  it  was  a  case  in  which,  from 
the  wantonness  and  cruelty  of  the  defendant's  conduct,  the 
jury  had  a  right  to  give  smart  money.  A  verdict  was 
found  for  $75.  A  motion  was  made  to  set  aside  the  ver- 
dict, for  misdirection  and  for  excessive  damages  ;  but  the 
Supreme  Court  of  New  York  said  :  "  Great  barbarity  was 
proved  on  the  part  of  the  plaintiff^ ;  we  think  the  charge 
of  the  judge  was  correct,  and  should  have  been  better 
satisfied  with  the  verdict  if  the  amount  of  damages  had 
been  greater  and  more  exemplary  ";  and  the  motion  was 
denied.  ** 

So  in  Pennsylvania  a  sheriff  was  held  liable  in  ex- 
emplary damages  for  the  act  of  his  deputy  ;(")  and  it  was 

'  Tillotson  V.  Cheetham,  3  Johns.  56,        "  Woert  v.  Jenkins,  14  Johns.  352. 
64  (1808).  

(»)  Hazard  v.  Israel,  l  Binn.  240  (1808). 


5IO  EXEMPLARY    DAMAGES.  §  352. 

afterwards  laid  down  as  a  general  rule  that  with  a  view 
to  promote  the  peace  and  quiet  of  society,  and  to  protect 
every  one  in  the  full  enjoyment  of  his  rights,  the  jury  are 
at  liberty  to  give  vindictive  or  exemplary  damages.' 

These  authorities  were  followed  by  such  a  multitude  of 
cases  that  the  principle  became  by  the  middle  of  the 
present  century,  as  fully  established  by  weight  of  authority 
as  any  doctrine  of  the  law.  In  the  first  edition  of  this 
treatise,  the  doctrine  was  recognized  as  so  establishec"  ; 
and  this  opinion,  in  the  face  of  the  ablest  and  most  persist- 
ent opposition,  has  prevailed. 

§  352.  American  cases. — *The  principle  was  recognized 
on  the  Massachusetts  circuit,  by  Mr.  Justice  Story,'  who 
said  : 

"  In  cases  of  marine  torts,  or  illegal  captures,  it  is  far  from 
being  uneommon  in  the  Admiealty  to  allow  costs  and  expenses, 
and  to  viulct  the  offending  parties,  even  in  exemplary  damages, 
when  the  nature  of  the  case  requires  it.  Courts  of  Admiralty- 
allow  such  items,  not  technically  as  costs,  but  on  the  same 
principle  as  they  are  often  allowed  damages  in  cases  of  torts  by 
courts  of  common  law,  as  a  recompense  for  injuries  sustained, 
as  exemplary  damages,  or  as  a  remuneration  for  expenses  incurred, 
or  losses  sustained,  by  the  misconduct  of  the  other  party." 

So,  again,  the  same  learned  judge,  on  the  Maine  cir- 
cuit, in  an  action  for  malicious  prosecution,  used  this  lan- 
guage :  "  If,  in  the  present  case,  there  was,  on  the  part 
of  the  defendant,  a  want  of  probable  cause ;  yet,  if  he 
acted  under  a  mistaken  sense  of  duty  and  without  any 
intention  of  oppression,  it  was,  at  most,  a  case  for  com- 
pensatory and  not  for  vindictive  damages."'  So  in  Con- 
necticut, in  an  action  on  the  case  for  gross  negligence,  it 
was  said  by  Church,  J.,  in  delivering   the  opinion  of  the 

'  Phillips  V.  Lawrence,  6  W.  &  S.  '  Boston  Manuf.  Co.  v.  Fiske,  a 
150.  Mason  iig. 

'  Wiggin  V.  Coffin,  3  Story  i,  11. 


§  352-  AMERICAN    CASES.  5II 

Supreme  Court  of  Errors:  "There  is  no  principle  better 
established  and  no  practice  more  universal  than  that  vin- 
dictive damages  or  smart  money  may  be  and  is  awarded 
by  the  verdict  of  juries,  and  whether  the  form  of  the  action 
be  trespass  or  case."'  So  in  Pennsylvania,  Gibson,  J., 
delivering  the  opinion  of  the  court,  said  :  "  In  cases  of 
personal  injury,  damages  are  given  not  to  compensate 
but  to  punish." ' 

So  in  a  case  of  marine  trespass,  brought  against  the 
owners  of  a  privateer  for  an  illegal  seizure,  the  Supreme 
Court  of  the  United  States  said  : 

"  This  is  a  case  of  gross  and  wanton  outrage.  The  honor  of 
the  country  and  the  duty  of  the  court  equally  require  that  a  just 
compensation  should  be  made  to  the  unoffending  neutrals,  for  all 
the  injuries  and  losses  actually  sustained  by  them.  And  if  this 
were  a  suit  against  the  original  wrong-doers,  it  might  be  proper 
to  go  yet  farther,  and  visit  upon  them,  in  the  shape  of  exem- 
plary damages,  the  proper  punishment  which  belongs  to  such 
lawless  misconduct.  But  it  is  to  be  considered  that  this  is  a 
suit  against  the  owners  of  the  privateer  ;  they  are  innocent  of 
the  demerit  of  the  transaction.  Under  such  circumstances,  we 
are  of  opinion  that  they  are  bound  to  repair  all  the  real  injuries 
and  personal  wrongs  sustained  by  the  libellants,  but  they  are  not 
bound  to  the  extent  of  vindictive  damages."  ° 

So  in  Connecticut,  it  has  been  said,  that  in  actions  for 
injuries  to  personal  property,  "  the  jury  are  not  restricted 
to  the  pecuniary  loss  of  the  plaintiff."* 

In  Alabama  it  has  been  said,  in  reference  to  the  action 
for  malicious  prosecution,  that  "  the  common  law  in 
such  case  allows  the  jury,  if  they  choose,  to  make  an 
example  of  the  defendant  when  sued  for  redress,  and  will 

'  Linsley  v.  Bushnell,  15  Conn.  225,  '  Story,  J.,  in   the  Amiable  Nancy,  3 

236;  Huntley  v.  Bacon,  15  Conn.  267.  Wheaton  546,  558. 

^  Pastorius  v.    Fisher,   i    Rawle  27  ;  *  Merrills   v.    Tariff   Man'g  Co.,  10 

but  it  is  to  be  noticed  that  the  remark  is  Conn.  384. 
obiter. 


512  EXEMPLARY   DAMAGES.  §  352. 

allow  them  to  go  beyond  the  actual  damage  the  party 
has  sustained.'" 

In  New  York  the  general  rule  has  been  repeatedly 
declared.  So,  in  an  action  for  libel,  it  was  said  by  the 
chancellor,  in  the  Court  of  Errors  :  "  The  jury  may  not 
only  give  such  damages  as  they  think  necessary  to  com- 
pensate the  plaintiff  for  his  actual  injury,  but  they  may 
also  give  damages  by  way  of  punishment  to  the  de- 
fendants. This  is  usually  denominated  exemplary  dam- 
ages, or  smart  money."'  The  subject  was  again  exam- 
ined in  the  same  State,  and  the  general  principle  very 
clearly  stated.  It  was  an  action  for  assault  and  battery, 
where  it  was  insisted  that  the  fact  that  the  defendant 
had  been  punished  criminally  for  the  offense  should  be 
received  in  evidence  to  mitigate  damages  in  the  civil 
suit.     The  court  held  otherwise,  saying : 

"  In  vindictive  actions,  and  this  is  agreed  to  come  within  that 
class,  jurors  are  always  authorized  to  give  exemplary  damages, 
where  the  injury  is  attended  with  circumstances  of  aggravation  ; 
and  the  rule  is  laid  down  without  the  qualification,  that  we  are 
to  regard  either  the  possible  or  the  actual  punishment  of  the  de- 
fendant by  indictment  and  conviction  at  the  suit  of  the  people. 
....  We  concede  that  smart  money  allowed  by  a  jury,  and  a  fine 
imposed  at  the  suit  of  the  people,  depend  on  the  same  principle. 
Both  are  penal,  and  intended  to  deter  others  from  the  commission 
of  the  like  crime.  The  former,  however,  becomes  incidentally 
compensatory  for  damages,  and  at  the  same  time  answers  the 
purposes  of  punishment."' 

And  again,  in  the  Court  of  Errors  of  the  same  State, 
Mr.  Senator  Strong  said :  "  In  aggravated  cases  of  this 
nature,  are  not  jurors  daily  charged  to  give  such  damages 
as  shall  not  only  remunerate  the  plaintiff,  but  operate  as 

'  Donnell  v.  Jones,  13  Ala.  490,  502.  v.  Ham,  i  Denio  495;  and   Brizsee   v. 

'  King  V.  Root,  4  Wend.  113,  139.  Maybee,  21  Wend.  144,  where  it  is  sug- 

'  Cook  V.  Ellis,  6  Hill  466;  see,  also,  gested  the  jury  may  give  smart  money 

Tifft  V.  Culver,  3  Hill   180;   Auchmuty  in  replevin. 


§  352.  AMERICAN    CASES. 


513 


a  punishment  to  the  defendant — as  shall  deter  him  and 
others  in  like  cases  offending,  from  the  perpetration  of 
similar  enormities  ?  "  ' 

In  an  exceedingly  well  reasoned  case  on  the  Pennsyl- 
vania circuit,  Mr.  Justice  Grier  said  : 

"  It  is  a  well-settled  doctrine  of  the  common  law,  though 
somewhat  disputed  of  late,  that  a  jury,  in  actions  of  trespass  or 
tort,  may  inflict  exemplary  or  vindictive  damages  upon  a  de- 
fendant, having  in  view  the  enormity  of  the  defendant's  conduct 
rather  than  compensation  to  the  plaintiff.  Indeed,  in  many 
actions,  such  as  slander,  libel,  seduction,  etc.,  there  is  no  measure 
of  damages  by  which  they  can  be  given  as  compensation  for  an 
injury,  but  are  inflicted  wholly  with  a  view  to  punish  and  make 
an  example  of  the  defendant."* 

So,  also,  it  has  been  said  in  Illinois :  "  In  vindictive 
actions  the  jury  are  always  permitted  to  give  damages 
for  the  double  purpose  of  setting  an  example  and  of  pun- 
ishing the  wrong-doer." '  So,  again,  in  an  action  of  tres- 
pass for  assault  and  battery,  it  was  said  :  "  In  this  class 
of  cases  the  jury  may  give  exemplary  damages,  not  only 
to  compensate  the  plaintiff,  but  to  punish  the  defend- 
ant."^** 

In  the  Supreme  Court  of  the  United  States,  Mr. 
Justice  Grier,  in  delivering  the  opinion  of  the  court,  laid 
down  the  following  rule  : 

"  It  is  a  well-established  principle  of  the  common  law,  that  in 
actions  of  trespass,  and  in  all  actions  on  the  case  for  torts,  a  jury 
may  inflict  what  are  called  exemplary,  punitive,  or  vindictive 
damages  upon  a  defendant,  having  in  view  the  enormity  of  his 
offense  rather  than  the  measure  of  compensation  to  the  plaintiff. 
We  are  aware  that  the  propriety  of  this  doctrine  has  been  ques- 
tioned by  some  writers  ;  but  if  repeated  judicial  decisions  for 

'  Burr  V.  Burr,  7  Hill  207,  217;  and  '  Stimpson  v.  The  Railroads,  i  Wal- 

see  the  rule  very  strongly  laid  down,  lace,  Jr.  164,  170. 

in  cases  of  slander  of  title,  in  Kendall  '  Grabe  v.  Margrave,  4  111.  373;  see, 

V.  Stone,  2  Sandf.  269.  also,  Johnson  v.  Weedman,  5  111.  495. 


Vol.  I.— 33 


*  McNamara  v.  King,  7  111.  432,  436. 


514  EXEMPLARY    DAMAGES.  §  352. 

more  than  a  century  are  to  be  received  as  the  best  exposition  of 
what  the  law  is,  the  question  will  not  admit  of  argument.  By 
the  common  as  well  as  by  statute  law,  men  are  often  punished 
for  aggravated  misconduct  or  lawless  acts  by  means  of  a  civil 
action,  and  the  damages,  inflicted  by  way  of  penalty  or  punish- 
ment, given  to  the  party  injured.  In  many  civil  actions,  such  as 
libel,  slander,  seduction,  etc.,  the  wrong  done  to  the  plaintiff  is 
incapable  of  being  measured  by  a  money  standard  ;  and  the 
damages  assessed  depend  on  the  circumstances  showing  the 
degree  of  moral  turpitude  or  atrocity  of  the  defendant's  con- 
duct, and  may  properly  be  termed  exemplary  or  vindictive  rather 
than  compensatory.  In  actions  of  trespass,  where  the  injury  has 
been  wanton  and  malicious,  or  gross  and  outrageous,  courts  per- 
mit juries  to  add  to  the  measured  compensation  of  the  plaintiff, 
which  he  would  have  been  entitled  to  recover  had  the  injury 
been  inflicted  without  design  or  intention,  something  farther  by 
way  of  punishment  or  example,  which  has  sometimes  been  called 
'  smart  money.'  This  has  been  always  left  to  the  discretion  of 
the  jury  ;  as  the  degree  of  punishment  to  be  thus  inflicted  must 
depend  on  the  peculiar  circumstances  of  each  case."  (") 

In  the  case  of  Voltz  v.  Blackmar,('')  the  plaintiff 
brought  an  action  for  false  imprisonment.  The  jury- 
were  told  that  they  might  "award  damages  to  any  ex- 
tent by  way  of  punishment  to  the  defendant,  and  as  a 
warning  to  others  against  committing  like  offenses." 
This  was  held  to  be  correct,  Andrews,  J.,  saying : 

"  In  vindictive  actions,  as  they  are  sometimes  termed,  such  as 
libel,  assault  and  battery,  and  false  imprisonment,  the  conduct 
and  motive  of  thp  defendant  is  op>en  to  inquiry,  with  a  view  to 
the  assessment  of  damages  ;  and  if  the  defendant,  in  committing 
the  wrong  complained  of,  acted  recklessly,  or  wilfully  and  mali- 
ciously, with  a  design  to  oppress  and  injure  the  plaintiff,  the 
jury,  in  fixing  the  damages,  may  disregard  the  rule  of  compen- 
sation, and  beyond  that  may,  as  a  punishment  to  the  defendant, 
and  as  a  protection  to  society  against  a  violation  of  personal 
rights  and  social  order,  award  such  additional  damages  as  in 
their  discretion  they  may  deem  proper.    The  same  rule  has  been 


(»)  Day  V.  Woodworth,  13  How.  363,  371.  C)  64  N.  Y.  440,  444. 


§  353-  OBJECTIONS   TO    THE    DOCTRINE.  515 

held  to  apply  in  the  case  of  a  wilful  injury  to  property,  and  in 
actions  of  tort  founded  upon  negligence,  amounting  to  miscon- 
duct and  recklessness." 

§  353-  Objections  to  the  doctrine. — The  foremost  place 
on  the  negative  side  of  the  discussion  was  taken  by  Pro- 
fessor Greenleaf  in  a  familiar  passage  in  his  treatise  on 
Evidence.('')  Later,  one  of  the  ablest  judges  of  the  Su- 
preme Court  of  New  Hampshire,  in  an  exhaustive  opin- 
ion overruling  former  decisions  of  that  court,  held  that 
exemplary  damages  could  not  be  recovered.C")  The  Su- 
preme Court  of  New  Jersey  has  characterized  the  doc- 
trine graphically  as  "  a  sort  of  hybrid  between  a  display 
of  ethical  indignation  and  the  imposition  of  a  criminal 
fine."  (°)  The  opponents  of  the  doctrine  have  maintained, 
what  is  perfectly  true,  that  it  is  an  exceptional  or  anoma- 
lous doctrine,  at  variance  with  the  general  rule  of  com- 
pensation ;  hence  that,  logically,  it  is  wrong. 

Again,  it  is  urged  that  the  practice  of  giving  damages 
in  order  to  punish  the  defendant  is  an  unjust  one.  The 
two  chief  reasons  given  are — first,  the  defendant  is  de- 
prived of  his  right  to  have  the  offense  proved  beyond  a 
reasonable  doubt,  as  should  be  done  if  he  is  to  be  pun- 
ished for  it ;  second,  the  amount  of  his  punishment  is 
left  entirely  to  the,  mercy  of  a  jury,  untrained  in  deter- 
mining the  amount  of  punishment,  who  may  assess,  and 
frequently  do  assess,  the*  damage  at  a  sum  far  greater 
than  the  fine  provided  by  law  as  a  proper  punishment 
for  the  act,  considered  as  a  criminal  offense.  Many 
jurisdictions  restrict  the  allowance  of  exemplary  dam- 
ages to  cases  where  the  defendant's  act  is  not  a  crime ; 
but  this  allows  the  jury  to  decide  that  to  be  worthy  of 


(•)  14th  ed.,  vol.  ii-.,  §  253  n. 

0")  Foster,  J.,  in  Fay  v.  Parker,  53  N.  H.  342. 

(")  Haines  v.  Schultz,  50  N.  J.  L.  481. 


5l6  EXEMPLARY    DAMAGES.  §  354- 

punishment  which  the  State  in  its  legislative  capacity 
has  not  deemed  it  best  to  punish.  Objections  such  as 
these  have  led  to  strong  attempts  to  give  the  doctrine  a 
quasi  criminal  basis ;  but  these  have  not  succeeded.  Thus 
it  has  been  held  that  the  circumstances  relied  on  to  au- 
thorize exemplary  damages  need  not  be  proved  beyond 
a  reasonable  doubt,  (*)  and  that  the  liability  to  exemplary 
damages  and  a  criminal  prosecution  is  not  double  jeop- 
ardy.C")  In  the  words  of  Ryan,  C.J.  :  "  Considered  as 
strictly  punitory,  the  damages  are  for  the  punishment  of 
the  private  tort,  not  of  the  public  crime."  (°) 

The  opponents  of  the  rule  have  attempted  to  explain 
away  the  authorities  in  its  favor  in  a  variety  of  ways,  but 
without  much  success.  It  may  be  admitted  that  in  many 
cases  damages  have  been  called  exemplary  which  might 
have  been  granted  as  compensatory  damages  for  mental 
suffering ;  but  the  fact  remains  that  damages  were  granted 
in  these  cases  inpoenam.  A  vast  body  of  decisions  exists, 
in  which  the  recovery  could  only  be  in  poenam  ;  and  the 
inquiry  is  always  made,  not  as  to  the  effect  of  the  defend- 
ant's malice,  but  as  to  its  motive.  As  the  Supreme  Court 
of  North  Carolina  has  well  said,  the  inquiry  is  as  to 
"  the  extent  of  the  injury  intended,  and  not  that  which 
Was  really  infiicted."('') 

§  354.  The  rule  established  by  authority  and  convenience. 
— Upon  the  whole,  the  doctrine  is  to  be  supported  (ex- 
cept in  those  few  jurisdictions  which  have  repudiated  it) 
mainly  upon  the  grounds  of  authority  and  convenience. 
The  historical  facts  already  referred  to  show  that  it  has 
its  roots  in  that  jealousy  of  the  exercise  of  arbitrary  and 


(")  St.  Ores  V.  McGlashen,  74  Cal.  148. 
C)  See  §  386. 

(»)  Brown  v.  Swineford,  44  Wis.  282. 
(^)  Gilreath  v.  Allen,  10  Ired.  67. 


§355-  DAMAGES  IN  OTHER  SYSTEMS  OF  LAW.  517 

malicious  power,  to  which  the  jury  in  our  system  of  law 
has  always  been  so  keenly  alive  ;  and  if  it  is  an  anomalous 
survival  of  a  part  of  the  old  rule  that  the  jury  were  judges 
of  the  damages,  it  must  be  inferred  that  it  has  survived  be- 
cause of  its  inherent  usefulness.  Many  anomalies  which 
have  far  less  authority  behind  them  must  be  supported 
on  this  ground,  and  no  anomaly  supported  by  both 
authority  and  convenience  can  be  eradicated  simply  by 
showing  it  to  be  illogical.  The  idea  that  it  is  unjust 
rests  upon  the  assumption  that  there  is  something  unfair 
in  allowing  the  plaintiff's  damages  to  be  enhanced  on 
account  of  the  defendant's  intent,  but  it  is  to  be  said  in 
reply  to  this  that  although  the  intent  cannot  make  a 
wrongful  act  more  wrongful,  it  may  make  the  conse- 
quences of  it  much  more  serious,  and  of  the  extent  of 
these  consequences  the  jury  is  the  judge  and  the  only 
possible  judge.  In  support  of  this  view  the  reasoning 
of  the  early  cases  seems  thus  far  to  have  been  convincing. 
It  should  be  observed  in  conclusion  that  even  in  jurisdic- 
tions which  discountenance  the  doctrine,  juries  are  al- 
lowed to  give,  under  the  title  of  damages  to  feelings,  ver- 
dicts quite  as  substantial  as  any  which  could  be  recovered 
under  the  head  of  exemplary  damages.  Hence  it  is  not 
open  to  the  opponents  of  exemplary  damages  to  contend 
that  the  practical  results  of  the  application  of  the  rule  work 
any  injustice,  or  that  the  rule  bears  more  heavily  upon  the 
wrong-doer  than  the  substitute  of  which  they  are  advo- 
cates. In  either  case  it  is  the  jury  and  not  the  court  which 
practically  decides  how  much  the  plaintiff  may  recover. 

§  355-  Exemplary  damages  in  other  systems  of  law. — *  I  n 
the  Roman  and  Civil  Law  exemplary  damages  seem  to 
have  been  unknown.  In  Scotland  the  principle  of  com- 
pensation seems  rigidly  adhered  to,  even  in  cases  of 
flagrant  wrong.     So,  in  an  action  of  damages  for  defa- 


5l8  EXEMPLARY   DAMAGES.  §  355- 

mation,  sending  a  challenge,  assault,  and  threatened  bat- 
tery, the  Lord  Chief  Commissioner  Adam,  one  of  the 
most  eminent  judges  of  the  present  century,  said  :  "  In 
all  cases  of  damage,  a  fair,  unprejudiced  discussion  {avoid- 
ing in  civil  cases  the  converting  compensation  for  a  civil 
injury  into  a  matter  of  punishment^  will  lead  to  a  ra- 
tional, conscientious,  and  fair  compromise  of  your  differ- 
ent opinions,  and  bring  you  to  fix  on  one  sum  ";  and  the 
reporter  adds  :  "  In  all  cases  of  this  sort,  his  lordship  has 
been  in  the  habit  of  repeating  this  doctrine." ' 

Again,  in  an  action  for  defamation,  the  Lord  Chief 
Commissioner  said  :  "  The  question  of  damages,  in  case  of 
an  attack  on  the  character  of  a  professional  man,  must 
always  include  both  a  question  of  loss  and  solatium.  You 
must  consider  it  as  a  question  of  reparation,  not  of  pun- 
ishment;  but  if  a  person  of  perfectly  pure  character  is  as- 
sailed in  this  manner,  you  will  consider  whether  a  rich 
man  ought  not  to  pay  a  little  more.""  The  same  rule 
was  laid  down  by  the  same  judge  in  actions  of  crim.  con. 
In  Baillie  v.  Bryson,'  an  action  of  this  class,  the  Lord 
Chief  Commissioner  said  :  "  I  cannot  help  thinking  that 
Lord  Kenyon  introduced  into  cases  of  this  sort  a  princi- 
ple, as  to  damages,  extremely  dangerous  in  its  conse- 
quences. He  considered  such  questions,  not  merely  as 
calculated  to  repair  the  injury  done  to  the  one  party, 
but  as  a  punishm-ent  of  the  other,  and  as  intended  to  cor- 
rect the  morals  of  the  country.  The  morals  of  the  coun- 
try have  not  been  improved,  and  I  am  afraid  its  feeling 
has  been  much  impaired.  A  civil  court  in  matters  of 
civil  injury  is  a  bad  corrector  of  morals ;  it  has  only  to 
do  with  the  rights  of  parties."  **(") 

'  Hyslop  V.  Staig,  i  Murr.  15,  24.               '  i  Murr.  317,  337. 
^  Christian  v.  Lord  Kennedy,  i  Murr. 
419,  428.  

(")  It  would  seem  that  the  introduction  of  Lord  Kenyon's  name  in  this 


§§  35^)  357-      IN    ADDITION    TO   COMPENSATION,  519 

§  356.  Exemplary  damages  and  damages  for  mental 
suffering. — It  will  at  once  appear  that  circumstances  of 
aggravation,  such  as  give  rise  to  exemplary  damages, 
are  frequently,  if  not  generally,  of  a  nature  to  cause  ad- 
ditional loss  to  the  plaintiff  of  an  intangible  sort,  such  as 
mental  suffering  or  loss  of  reputation.  As  Foster,  J., 
points  out  in  Fay  v.  Parker,(*)  the  earliest  cases  cited 
as  allowing  exemplary  damages  were  of  this  sort ;  the 
court  refused  to  set  aside  the  large  verdicts  found  by  the 
jury,  on  the  ground  of  the  impossibility  of  saying  that 
the  jury  had  estimated  this  element  of  loss  too  highly. 
But  the  doctrine  of  exemplary  damages  as  established 
has  no  relation  to  the  suffering  of  the  plaintiff. 

The  allowance  of  exemplary  damages  gave  rise  for  a 
time  to  the  notion  that  mental  suffering  is  not  a  subject 
for  compensatory  damages.  This  notion  has  been  gen- 
erally abandoned  ;  in  Massachusetts,  where  exemplary' 
damages  are  not  allowed,  the  right  to  recover  damages 
for  mental  suffering  has  always  been  recognized. 

§  357-  Exemplary  damages  in  addition  to  compensatory. 

— The  similarity  between  exemplary  damages  and  dam- 
ages for  wounded  feelings  has  been  noticed  by  the 
Supreme  Court  of  Wisconsin,  in  the  case  of  Brown  v. 
Swineford.C) 

"  The  distinction  between  compensatory  damages  for  wounded 
feeling,  sense  of  insult,  etc.,  and  punitory  damages  is  sometimes 
very  vague And  the  vagueness  of  this  distinction,  in  prac- 


connection  is  a  mistake.  In  the  only  reported  case  to  be  found  where  the 
subject  of  excessive  damages  was  discussed  by  him,  he  follows  the  language 
of  the  older  cases,  and  refuses  to  set  aside  a  verdict  on  the  ground  ihat  in 
actions  of  tort  the  court  cannot  control  the  jury.  There  is  not  in  his  opinion 
a  hint  of  the  right  to  punish  the  defendant.  Duberley  v.  Gunning,  4  T.  R. 
651.     Lord  Camden  is  probably  meant. 

(»)  53  N.  H.  342. 

C)  44  Wis.  2S2,  289, /^r  Ryan,  C.  J. 


520  EXEMPLARY    DAMAGES.  §  358. 

tice  as  well  as  in  theory,  is  illustrated  by  the  three  reports  of 
Bass  V.  Railway  Co.(°)  The  case  was  three  times  tried  in  different 
counties,  twice  upon  instructions  allowing  exemplary  damages, 
and  once  upon  instructions  disallowing  them.  And  yet  the  ver- 
dict on  each  trial  was  for  the  same  sum.  Apparently  what  was 
allowed  on  two  trials  for  exemplary  damages  was  allowed  on  the 
third  trial  for  compensatory  damages  for  wounded  feelings,  etc." 

In  spite  of  this  similarity,  however,  the  two  sorts  of 
damage  are  quite  distinct.  Damages  for  wounded  feel- 
ings are  compensatory  in  their  nature,  and  are  given,  as 
has  been  seen,  in  all  cases  where  the  allowance  is  proper. 
Exemplary  damages  are  given  because  of  the  motive  of 
the  defendant,  and  it  is  well  settled  that  when  they  are 
allowed  it  is  in  addition  to  compensatory  damages  for 
either  physical  or  mental  suffering.  C") 

§  358.  In  some  States  exemplary  damages  are  not  award- 
ed.— As  has  been  said,  the  doctrine  of  exemplary  damages 
has  never  been  recognized  in  Massachusetts. (")  In  that 
State  the  "  manner  and  manifest  motive  "  of  a  tort  may  be 
shown,  as  tending  to  prove  mental  suffering.  (*)  In 
Hawes  v.  Knowles.C)  Gray,  C.  J.,  said  :  "  In  an  action  of 
tort  for  a  wilful  injury  to  the  person,  the  manner  and  man- 
ifest motive  of  the  wrongful  act  may  be  given  in  evidence 
as  affecting  the  question  of  damages ;  for  when  the  merely 
physical  injury  is  the  same,  it  may  be  more  aggravated  in 
its  effects  upon  the  mind  if  it  is  done  in  wanton  disre- 
gard of  the  rights  and  feelings  of  the  plaintiff,  than  if  it  is 


(«)  36  Wis.  450 ;  39  Wis.  636 ;  42  Wis.  654. 

C)  Harrison  v.  Ely,  120  111.  83  ;  Parkhurst  v.  Masteller,  57  la.  474 ;  Root 
V.  Sturdivant,  70  la.  55  ;  Haines  v.  Schultz,  50  N.  J.  L.  481  :  Hamilton  v. 
Third  Avenue  R.R.  Co.,  35  N.  Y.  Super.  Ct.  118;  Craker  v.  Chicago  & 
N.  W.  Ry.  Co.,  36  Wis.  657. 

if)  Spear  z/.  Hubbard,  4  Pick.  143,  145;  Sampson  v.  Henry,  11  Pick.  379, 
388 ;  Barnard  v.  Poor,  21  Pick.  378. 

C)  Smith  V.  Holcomb,  99  Mass.  552  ;  Hawes  v.  Knowles,  114  Mass.  518. 

C)  114  Mass.  518. 


§  359-      EXEMPLARY   DAMAGES   ARE   COMPENSATORY.        52 1 

the  result  of  mere  carelessness  ";  and  it  was  held  that  the 
wantonness  must  be  such  as  to  cause  additional  pain  to 
the  plaintiff  in  body  or  mind.  The  same  decision  deny- 
ing exemplary  damages  has  been  given  in  the  new  States 
of  Colorado  and  Nebraska,  where  the  court,  treating  the 
question  as  res  integra,  followed  the  Massachusetts  deci- 
sions on  principle.^)  In  New  Hampshire  the  same  result 
has  been  reached  by  overruling  earlier  cases  allowing  ex- 
emplary damages.  C") 

In  Wilson  v.  Bowen  (")  the  Supreme  Court  of  Michi- 
gan said  :  "  The  purpose  of  an  action  of  tort  is  to  recover 
the  damages  which  the  plaintiff  has  sustained  from  an  in- 
jury done  him  by  the  defendant ;  compensation  to  the 
plaintiff  is  the  purpose  in  view ;  and,  when  that  is  ac- 
corded, anything  beyond,  by  whatever  name  called,  is  un- 
authorized. It  is  not  the  province  of  the  jury,  after  full 
damages  have  been  found  for  the  plaintiff,  so  that  he  is 
fully  compensated  for  the  wrong  committed  by  the  defend- 
ant, to  mulct  the  defendant  in  an  additional  sum,  to  be 
handed  over  to  the  plaintiff  as  a  punishment  for  the 
wrong  he  has  done  to  the  plaintiff." 

§  359.  In  some  States  exemplary  damages,  so-called,  are 
in  fact  compensatory. — In  West  Virginia  exemplary  dam- 
ages so-called  are  allowed;  but  they  are  distinctly  held 
to  be  compensatory  damages,  "  indeterminate  "  damages, 
as  the  court  calls  them-C^)  The  court  divides  damages 
into  "  determinate  "  damages,  those  for  which  there  is  an 
easily  ascertained  pecuniary  measure,  and  "  indeterminate  " 


(■)  Murphy  v.  Hobbs,  7  Col.  541 ;  Greeley,  St.  L.  &  P.  Ry.  Co.  v.  Yeager, 
II  Col.  345  ;  Riewe  v.  McCormick,  11  Neb.  261. 

C)  Fay  V.  Parker,  53  N.  H.  342  ;  Bixby  v.  Dunlap,  56  N.  H.  456. 

(■=)  64  Mich.  133,  141,  per  Champlin,  J.;  following  Stilson  v.  Gibbs,  53 
Mich.  280. 

('')  Pegram  v.  Stortz,  31  W.  Va.  220;  Beck  v.  Thompson,  31  W.  Va.  459. 


52  2  EXEMPLARY    DAMAGES.  §  359- 

damages,  given  for  non-pecuniary  loss,  sucii  as  physical 
or  mental  pain  or  loss  of  reputation.  Both  classes  of 
damages  may  be  recovered,  the  court  held,  the  latter  under 
the  name  "  exemplary  "  damages :  but  no  damages  can  be 
recovered  in  pcenam.i^')  Consequently  though  by  the 
Civil  Damage  Act  a  wife  was  allowed  to  recover  exemplary 
damages  from  one  selling  liquor  to  her  husband,  this  was 
held  to  mean  compensation  for  mental  anguish.  ("") 

The  doctrine  of  the  West  Virginia  court  appears  to  be 
law  also  in  Nevada  (°)  and  Wyoming.C^)  In  Lower 
Canada,  a  State  deriving  its  jurisprudence  from  the  Civil 
Law,  the  rule  seems  to  be  the  same.(^)  Damages  have 
been  allowed,  called  "exemplary"  ("  dommages  exem- 
plaires  "  as  distinguished  from  "  dommages  r^els  ")  ;  but 
they  are  apparently  compensatory  damages  for  pain,(') 
mental  suffering,(^)  or  loss  of  reputation-C") 

In  Texas  a  peculiar  rule  obtains.  Exemplary  damages 
seem  to  be  regarded  as  compensatory,  but  as  an  award  of 
compensation  for  losses  which  in  ordinary  cases  are  not 
to  be  compensated.     The  ordinary  rules  restricting  com- 


(»)  The  court  followed  the  common  authorities  on  exemplary  damages,  and 
as  a  result  held  that  "  indeterminate  "  damages  are  allowed  only  in  case  of  an 
injury  inflicted  with  vicious  intention.  Such  losses  are  more  likely  to  result 
from  a  wilful  tort ;  but  they  may  also  result  from  a  well-intended  or  even  an 
involuntary  act,  and  they  are  then  to  be  compensated.  This  is  notably  true 
in  the  case  of  physical  suffering,  which  may  be  compensated  as  well  in  an  action 
for  negligence  as  in  an  action  for  wilful  trespass ;  but  it  is  equally  true  in 
some  cases  of  mental  suffering.  Chapman,  C.  J.,  in  Smith  v.  Holcomb,  99 
Mass.  552,  554. 

("")  Pegram  v.  Stortz,  31  W.  Va.  220. 

(°)  Quigley  v.  Central  P.  R.R.  Co.,  11  Nev.  350. 

(^)  Union  P.  R.R.  Co.  v.  Hause,  i  Wyo.  27. 

fS)  See,  however,  Guest  v.  Macpherson,  3  Leg.  News,  84,  where  damages 
are  divided  into  three  sorts  :  nominal,  compensatory,  and  punitive. 

(')  Falardeau  •;'.  Couture,  2  L.  C.  J.  96. 

(f)  Mathieu  v.  Laflamme,  4  R.  L.  371. 

f")  Brossoit  V.  Turcotte,  20  L.  C.  J.  141. 


§  360.    EXEMPLARY  DAMAGES  GIVEN  FOR  PUNISHMENT.    523 

pensation  to  proximate  and  natural  loss  are  relaxed,  and 
litigation  expenses  are  also  recovered.  Thus  where  the  in- 
jury was  wilful  and  malicious,  damages  (called  exemplary) 
are  allowed  for  mental  anguish,  for  counsel  fees,  and  for 
loss  of  credit  in  an  action  for  the  destruction  of  prop- 
erty (")  or  for  a  wrongful  attachment.  C")  But  it  is  doubt- 
ful if  in  any  case  the  damages  can  exceed  compensation 
for  the  plaintiffs  actual  loss.  (") 

In  some  States  the  jury  is  allowed  to  consider  the  ex- 
penses of  litigation  in  assessing  exemplary  damages. (°) 
This  doctrine  is  similai^to  that  held  in  Texas,  though  it 
does  not  go  so  far.  Such  damages  are  plainly  compen- 
satory, and  have  no  proper  connection  with  damages 
given  for  punishment. 

§  360.  In  most  States  exemplary  damages  are  given  for 
punishment. — In  most  jurisdictions  it  is  settled  that  ex- 
emplary damages,  as  a  warning  to  other  wrong- doers  and 
as  a  punishment  to  the  defendant,  may  be  recovered  in 
addition  to  compensatory  damages.  ('')     The  authorities 

(»)  International  &  G.  N.  R.R.  Co.  v.  Telephone  &  Telegraph  Co.,  69  Tex. 
277. 

C")  Biering  v.  First  Nat.  Bank  of  Galveston,  69  Tex.  599. 

(")  Marshall  v.  Betner,  17  Ala.  833;  Patton  v.  Garrett,  37  Ark.  605  {sem- 
ble)  ;  Huntley  v.  Bacon,  15  Conn.  267  ;  Ives  v.  Carter,  24  Conn.  392 ;  Beecher 
V.  Derby  Bridge  Co.,  24  Conn.  491  ;  St.  Peter's  Church  v.  Beach,  26  Conn. 
355  ;  Dibble  v.  Morris,  26  Conn.  416  ;  Piatt  v.  Brown,  30  Conn.  336 ;  Welch 
t).  Durand,  36  Conn.  182  ;  Dalton  v.  Beers,  38  Conn.  529  ;  Mason?/.  Hawes, 
I  52  Conn.  12  ;  Bennett  v.  Gibbons,  55  Conn.  450 ;  Wynne  v.  Parsons,  57  Conn. 
73 ;  Titus  V.  Corkins,  21  Kas.  722  ;  Winstead  v.  Hulme,  32  Kas.  568 ;  Eat- 
man  v.  Newr  Orleans  P.  Ry.  Co.,  35  La.  Ann.  loi8;  Northern,  J.  &  G.  N. 
R.R.  Co.  V.  Allbritton,  38  Miss.  243;  Roberts  v.  Mason,  10  Oh.  St.  277; 
Finney  v.  Smith,  31  Oh.  St.  529 ;  Stevenson  v.  Morris,  37  Oh.  St.  10  ;  Peck- 
ham  Iron  Co.  V.  Harper,  41  Oh.  St.  loo.     See  §  234. 

('')  England :  Emblen  v.  Myers,  6  H.  &  N.  54;  Bell  v.  Midland  Ry.  Co., 
4  L.  T.  (N.  S.)  293.  United  States :  Day  v.  Woodworth,  13  How.  363; 
Milwaukee  &  St.  P.  Ry.  Co.  v.  Arms,  10  U.  S.  489 ;  Missouri  P.  Rj'. 
Co.  V.  Humes,  115  U.  S.  512;  Denver  &  R.  G.  Ry.  Co.  v.  Harris, 
122    U.   S.   597;  Brown  v.  Evans,   8   Sawy.  488;   U.    S.  v.  Taylor,  35 


524  EXEMPLARY   DAMAGES.  §  360. 

in  Oregon  leave  the  question  doubtful.     The   Supreme 
Court  of  that  State,  in  an  elaborate  opinion,  refused  to 


Fed.  Rep.  484.  Alabama  :  Jefferson  County  Sav.  Bank  v.  Eborn,  84  Ala. 
529.  Arkansas:  Clark  v.  Bales,  15  Ark.  452 ;  Ward  v.  Blackwood,  41  Ark. 
295:  (semble) ;  Citizens'  St.  Ry.  Co.  v.  Steen,  42  Ark.  321.  California  (by 
Code) :  St.  Ores  v.  McGlashen,  74  Cal.  148  ;  Waters  v.  Dumas,  75  Cal.  563 ; 
Bundy  v.  Maginess,  76  Cal.  532.  Connecticut :  Linsley  v.  Bushnell,  1 5  Conn. 
225  ;  Dibble  v.  Morris,  26  Conn.  416 ;  Dalton  v.  Beers,  38  Conn.  529.  Da- 
iota  :  Bates  V.  Callender,  3  Dak.  256  (semble).  Delaware  :  Rohinsoxi  v. 
Burton,  5  Harr.  335.  District  of  Columbia  :  Redwood  f.  M.  R.R.  Co.,  6  D. 
C.  302;  Florida:  Smith  v.  Bagwell,  19  Fla.  117  (semble).  Georgia  (by 
Code)  :  Coleman  v.  Allen,  79  Ga.  637.  Illinois :  Harrison  v.  Ely,  120  111. 
83.  Indiana:  Binford  t/.  Young,  115  Ind.  174.  Iowa:  Parkhurst  z/.  Mas- 
teller,  57  la.  474 ;  Root  v.  Sturdivant,  70  la.  55  ;  Redfield  v.  Redfield,  75  la. 
435  ;  Thill  V.  Pohlman,  76  la.  638.  Kansas :  Wheeler  &  Wilson  Manuf. 
Co.  V.  Boyce,  36  Kas.  350.  Kentucky :  Louisville  &  N.  R.R.  Co.  v.  Ballard 
85  Ky.  307.  Louisiana  :  Daly  v.  Van  Benthuysen,  3  La.  Ann.  69.  Maine : 
Pike  V.  Dilling,  48  Me.  539;  Webb  v.  Oilman,  80  Me.  177.  Maryland : 
Baltimore  &  Yorktown  Turnpike  v.  Boone,  45  Md.  344  ;  Philadelphia,  W.  & 
B.  R.R.  Co.  V.  Larkin,  47  Md.  155.  Michigan:  McPherson  v.  Ryan,  59 
Mich.  33  ;  Ross  v.  Leggett,  61  Mich.  445  ;  Newman  v.  Stein,  75  Mich.  402  ; 
(but  see  another  line  of  decisions  contra,  Stilson  v.  Gibbs,  53  Mich.  280 : 
Wilson  V.  Bowen,  64  Mich.  133).  Minnesota:  McCarthy  v.  Niskem,  22 
Minn.  90;  Peck  v.  Small,  35  Minn.  465.  Mississippi :  Vicksburg  &  M. 
R.R.  Co.  V.  Scanlan,  63  Miss.  413  ;  Higgins  v.  L.  N.  O.  &  T.  R.R.  Co.,  64 
Miss.  80.  Missouri :  Buckley  v.  Knapp,  48  Mo.  1 52  ;  Joice  v.  Branson,  73 
Mo.  28.  Montana  :  Bohm  v.  Dunphy,  i  Mont.  333.  New  Jersey :  Magee 
V.  Holland,  27  N.  J.  L.  86  ;  Haines  v.  Schultz,  50  N.  J.  L.  481.  New 
York :  Bergmann  v.  Jones,  94  N.  Y.  51.  North  Carolina  :  Johnson  v.  Allen, 
100  N.  C.  131  ;  Bowden  v.  Bailes,  loi  N.  C.  612 ;  Knowles  v.  N.  S.  R.R.  Co., 
102  N.  C.  659.  Ohio :  Atlantic  &  G.  W.  Ry.  Co.  v.  Dunn,  19  St.  Oh.  162  ; 
Hayner  v.  Cowden,  27  Oh.  St.  292.  Pennsylvania  :  Lake  Shore  &  M.  S. 
Ry.  Co.  V.  Rosenzweig,  1 13  Pa.  529  ;  Phila.  Traction  Co.  v.  Orbann,  1 19  Pa. 
37.  Rhode  Island :  Hagan  v.  Providence  &  W.  R.R.  Co.,  3  R.  \.  88 
(semble)  ;  Von  Storch  v.  Winslow,  13  R.  L  23  (semble) ;  Kenyonf.  Cameron, 
17  R.  Li  16.  South  Carolina:  Quinn  v.  S.  C.  Ry.  Co.,  29  S.  C.  381. 
Tennessee :  Polk  v.  Fancher,  i  Head  336;  Jones  i/.  Turpin,  6  Heisk.  181  ; 
Cox  V.  Crumley,  5  Lea  529;  Louisville  N.  &  G.  S.  R.R.  Co.  v.  Guinan,  11 
Lea  98.  Vermont :  Rea  z/.  Harrington,  58  Vt.  18 1  ;  Camp  v.  Camp,  59  Vt. 
667.  Virginia:  Borland  v.  Barrett,  76  Va.  128;  Harman  v.  Cundiff,  82 
Va.  239.  Wisconsin  :  Mc Williams  v.  Bragg,  3  Wis.  424  ;  Spear  v.  Hiles,  67 
Wis.  350.  Canada:  Gingras  v.  Desilets,  Cass.  Can.  Dig.  116;  Clissold  v. 
Machell,  26  Up.  Can.  Q.  B.  422 ;  Silver  v.  Dom.  Tel.  Co.,  2  R.  &  G.  (N. 
Scot.)  17. 


§§361,  362.     EXEMPLARY  DAiMAGES  DO  NOT  SURVIVE.       525 

give  exemplaiy  damages  in  any  case  not  required  by  the 
authorities-C)  In  an  earlier  case  exemplary  damages 
were  allowed ;  but  the  defendant's  counsel  conceded  the 
point-C)  The  latest  case  recognizes  the  theory  as  law, 
but  refuses  to  allow  exemplary  damages  on  the  facts-C) 
In  Missouri  it  was  at  one  time  doubtful  whether  exem- 
plary damages,  so-called,  could  ever  go  beyond  a  "good 
round  compensation  ";  (**)  but  it  is  now  settled  that  true 
exemplary  damages  may  be  recovered, (*) 

§  361.  Exemplary  damages  not  allowed  without  actual 
loss. — If  the  plaintiff  has  suffered  no  actual  loss,  he  can- 
not maintain  an  action  merely  to  recover  exemplary 
damages.  Q  A  plaintiff  has  no  right,  the  courts  say,  to 
maintain  an  action  merely  to  inflict  punishment ;  exem- 
plary damages  are  in  no  case  a  right  of  the  plaintiff  and 
cannot,  therefore,  become  a  cause  of  action.  If,  however, 
a  right  of  action  exists,  though  the  loss  is  nominal,  ex- 
emplary damages  may  be  recovered  in  a  proper  case  ;  for 
the  plaintiff  had  a  right  to  maintain  his  action  apart  from 
the  privilege  of  recovering  exemplary  damages.(^)  So  in 
case  of  a  malicious  trespass  on  land,  though  the  actual 
damage  is  nominal,  exemplary  damages  may  be  recov- 
ered. O 

§  362.  Exemplary  damages  do  not  survive. — When  the 
W^rong-doer  dies  before  the  action  is  brought  to  trial,  and 


(»)  Sullivan  v.  Ore.  Ry.  &  Nav.  Co.,  12  Ore.  392. 

0")  Heneky  v.  Smith,  10  Ore.  349. 

(")  Day  V.  Holland,  ij  Ore.  464. 

(■■)  Freidenheit  v.  Edmundson,  36  Mo.  226 ;  McKeon  v.  C.  Ry.  Co.,  42 
Mo.  79. 

(«)  Buckley  v.  Knapp,  48  Mo.  152 ;  Joice  v.  Branson,  73  Mo.  28. 

(0  Meidel  v.  Anthis,  71  111.  241  ;  Schippel  v.  Norton,  38  Kas.  567  ;  Stacy 
V.  Portland  Pub.  Co.,  68  Me.  279  ;  Ganssly  v.  Perkins,  30  Mich.  492  ;  Robin- 
son V.  Goings,  63  Miss.  500;  Jones  v.  Matthews,  75  Tex.  i. 

(e)  Wilson  v.  Vaughn,  23  Fed.  Rep.  229. 

(■■)  Hefley  v.  Baker,  19  Kas.  9. 


526  EXEMPLARY  DAMAGES.  §  36 


O- 


the  action  is  brought  or  continued  against  his  executor  or 
administrator,  only  compensatory  damages  can  be  recov- 
ered :  the  liability  to  exemplary  damages  does  not  sur- 
vive.C) 

§  363.  Exemplary  damages  are  allowed  only  for  wilful  in- 
jury.— The  justification  of  exemplary  damages  lies  in  the 
evil  intent  of  the  defendant ;  and  the  allowance  of  such 
damages  is  therefore  restricted  to  cases  of  wanton  injury. 
There  must  be  some  wrong  motive  accompanying  the 
wrongful  act.('')  This  has  been  held  even  in  an  action 
on  a  Civil  Damage  Act  which  provided  expressly  that 
the  plaintiff  might  recover  exemplary  damages.('')  So 
where  a  sheriff  makes  a  levy  or  an  attachment  in  good 
faith  on  an  informal  process,  exemplary  damages  cannot 
be  recovered  against  him.('')  So  in  an  action  for  wrongful 
suing  out  of  attachment  to  entitle  plaintiff  to  recover  ex- 
emplary damages,  there  must  be  an  intent  to  injure  the 
debtor.  Lack  of  reasonable  grounds  for  believing  allega- 
tions made  to  procure  attachment  is  not  enough.  Q 

An  accidental  injury,  therefore,  though  it  may  give  an 
action,  does  not  give  grounds  for  exemplary  damages.C) 
as,  for  instance,  an  accidental  trespass  on  the  plaintiff's 


(")  Sheik  V.  Hobson,  64  la.  146 ;  Edwards  v.  Ricks,  30  La.  Ann.  926 ; 
Rippey  v.  Miller,  11  Ired.  L.  247  ;   Wright  v.  Donnell,  34  Tex.  291. 

C)  Reader?/.  Purdy,  48  111.  261  ;  Farwellw. Warren,  70  111.  28;  Toledo,  W. 
&W.  R.R.  Co.  V.  Roberts,  71  111.  540;  Miller  v.  Kirby,  74  111.  242;  Scott 
f .  Bryson,  74  111.  420;  Becker  v.  Dupree,  75  111.  167;  Moore  v.  Crose,  43 
Ind.  30;  Brown  v.  Allen,  35  la.  306  ;  Tyson  v.  Ewing,  3  J.  J.  Marsh  185  ; 
Elliott  V.  Herz,  29  Mich.  202. 

(")  Jockers  v.  Borgman,  29  Kas.  log. 

C)  Dow  V.  Julien,  32  Kas.  576;  Wanamaker  v.  Bowes,  36  Md.  42. 

(')  Nordhaus  v.  Peterson,  54  la.  68. 

O  Walker  v.  Fuller,  29  Ark.  448 ;  Tripp  v.  Grouner,  60  111.  474  ;  Waller  w. 
Waller,  76  la.  5 1 3  ;  Jackson  v.  Schmidt,  14  La.  Ann.  806 ;  Blodgett  v.  Brattle- 
boro,  30  Vt.  579. 


§§   ^64,  3^5-       PO^   OPPRESSION,    BRUTALITY,    ETC.  527 

land  by  the  defendant,  who  believes  it  to  be  his  own.C) 
And  an  idiot  or  person  incapable  of  forming  an  evil  in- 
tent cannot  be  subjected  to  exemplary  damages. (^)  And 
where  a  conversion  was  owing  to  a  mistake,  exemplary 
damages  were  refused. (")  The  mere  fact  that  the  defend- 
ant had  reason  to  believe  his  act  an  illegal  one  will  not 
necessarily  make  the  act  so  wilfully  wrong  as  to  justify 
the  infliction  of  exemplary  damages.('^) 

§  364.  Exemplary  damages  for  malice. — Actual  malice 
in  the  commission  of  a  wrongful  act  is  a  cause  for  exem- 
plary damages.  (*) 

§  365.  For  oppression,  brutality,  or  insult. — Oppression, 
brutality,  or  insult  in  the  infliction  of  a  wrong  is  a  cause 
for  the  allowance  of  exemplary  damages.(')  Such,  for 
instance,  is  abuse  of  process  (^)  or  wilful  refusal  to  perform 
an  official  duty.C")  Where  a  woman  in  delicate  health 
was  wrongfully  turned  out  of  her  house  at  night  in  a 


(»)  U.  S.  V.  Taylor,  35  Fed.  Rep.  484 ;  Walker  z/.  Fuller,  29  Ark.  448 ;  Ames 
V.  Hilton,  70  Me.  36  ;  Sapp  v.  N.  C.  Ry.  Co.,  51  Md.  115. 

(')  Mclntire  v.  Sholty,  121  111.  660. 

O  Tripp  7/.  Grouner,  60  111.  474. 

l^)  Inman  v.  Ball,  65  la.  543. 

{')  Ralston  v.  The  State  Rights,  Crabbe,  22 ;  Dibble  v.  Morris,  26  Conn. 
416 ;  Kilbourn  v.  Thompson,  i  McA.  &  M.  401 ;  Sherman  v.  Dutch,  16  111. 
283  ;  Moore  v.  Crose,  43  Ind.  30;  Louisville  &  N.  R.R.  Co.  v.  Ballard,  85 
Ky.  307;  Webb  v.  Gilman,  80  Me.  177;  Joice  v.  Branson,  73  Mo.  28; 
Sowers  v.  Sowers,  87  N.  C.  303  ;  Phila.  Traction  Co.  v.  Orbann,  119  Pa.  37  ; 
Pittsburgh  C.  &  S.  L.  Ry.  Co.  v.  Lyon,  123  Pa.  140. 

(0  Reeder  v.  Purdy,  48  111.  261 ;  Cutler  v.  Smith,  57  111.  252  ;  Smith  v. 
Wunderlich,  70  111.  426  ;  Drohn  v.  Brewer,  77  111.  280 ;  Moore  v.  Crose,  43 
Ind.  30 ;  Jennings  v.  Maddox,  8  B.  Mon.  430  ;  L.  &  N.  R.R.  Co.  v.  Ballard, 
85  Ky.  307;  Webb  v.  Gilman,  80  Me.  177  ;  Raynor  v.  Nims,  37  Mich.  34; 
Joice  V.  Branson,  73  Mo.  2S  ;  Bowden  v.  Bailes,  loi  N.  C.  612  ;  Phila.  Trac- 
tion Co.  V.  Orbann,  119  Pa.  37. 

(5)  Hucklez/.  Money,  2  Wils.  205  ;  Nightingale  v.  Scannell,  18  Cal.  315; 
Louder  v.  Hinson,  4  Jones  L.  369  ;  Rodgers  v.  Ferguson,  36  Tex.  544 ;  Shaw 
V.  Brown,  41  Tex.  446. 

('')  Wilson  V.  Vaughan,  23  Fed.  Rep.  229 ;  Elbin  v.  Wilson,  33  Md.  135. 


528  EXEMPLARY   DAMAGES.  §§  366-368. 

Storm,  she  may  recover  exemplary  damages.('')  So  where 
a  passenger  was  wrongfully  ejected  from  a  railroad  train 
with  rudeness  and  violence,  he  may  recover  exemplary 
damages ;  (^)  but  mere  indecorous  conduct  in  expelling 
a  passenger  is  held  not  to  be  sufficient  cause  for  their  in- 
fliction.C^) 

§  366.  For  wantonness  of  injury. — If  the  injury  was  wan- 
tonly inflicted,  exemplary  damages  may  be  recovered.  (^) 
By  wantonness  is  meant  reckless  disregard  of  the  rights  of 
others,  or  of  the  consequences  of  the  act.  Thus  in  Balti- 
more &  Yorktown  Turnpike  Road  v.  Boone,(*)  where 
the  company  exacted  illegal  fare  and  the  plaintiff,  on  his 
refusal  to  pay,  was  forcibly  ejected,  it  was  held  that  he 
could  recover  exemplary  damages  on  the  ground  that  the 
company  had  been  guilty  of  a  criminal  indifference  to  the 
obligations  of  public  duty,  which  amounted  to  malice. 

§  367.  For  fraud. — If  the  injury  was  inflicted  through 
fraud,  there  are  intimations  that  this  alone  would  afford 
ground  for  exemplary  damages  ;  (')  it  is  difficult  to  see  how 
a  fraudulent  tort  can  be  accomplished  without  a  malicious 
intent. 

§  368.  For  gross  negligence.— In  Wilson  v.  Brett,(^) 
Rolfe,  B.,  said  that  he  could  see  no  difference  between 


(')  Redfield  v.  Redfield,  75  la.  435. 

(")  P.  W.  &  B.  R.R.  Co.  V.  Larkin,  47  Md.  155;  Knowles  v.  N.  S.  R.R. 
Co.,  102  N.  C.  59. 

(■=)  L.  &  N.  R.R.  Co.  V.  Ballard,  85  Ky.  307. 

(^)  Dibble  v.  Morris,  26  Conn.  416 ;  Kilbourn  v.  Thompson,  i  McA.  &  M. 
401  ;  Sherman  v.  Dutch,  16  111.  283 ;  Louisville  &  N.  R.R.  Co.  v.  Ballard,  85 
Ky.  307 ;  Webbz/.  Oilman,  80  Me.  177  ;  Sapp  v.  North  C.  Ry.  Co.,  51  Mrl. 
115;  Goetz  V.  Ambs,  27  Mo.  28  ;  Green  -v.  Craig,  47  Mo.  90 ;  Phila.  Traction 
Co.  V.  Orbann,  1 19  Pa.  37 ;  Hoadley  v.  Watson,  45  Vt.  289 ;  Borland  v.  Bar- 
rett, 76  Va.  128. 

(»)  45  Md.  344. 

0  L.  &  N.  R.R.  Co.  V.  Ballard,  85  Ky.  307 ;  but  see  contra,  Singleton  v. 
Kennedy,  9  B.  Mon.  222. 

(B)  n  M.  &  W.  113. 


§  3^S.  FOR   GROSS   NEGLIGENCE.  529 

negligence  and  gross  negligence  ;  that  it  was  the  same 
thing  with  the  addition  of  a  vituperative  epithet,  and  this 
observation  has  been  quoted  with  approval  in  later  cases.  (^) 
In  Railroad  Co.  v.  LockwoodjC')  Mr.  Justice  Bradley, 
after  stating  the  distinctions  commonly  drawn  between 
slight,  ordinary  and  gross  negligence,  said  :  "In  each  case 
the  negligence,  whatever  epithet  we  give  it,  is  failure  to 
bestow  the  care  and  skill  which  the  situation  demands ; 
and  hence  it  is  more  strictly  accurate  perhaps  to  call  it 
simply  '  negligence.'  And  this  seems  to  be  the  tendency 
of  modern  authorities."  In  these  cases,  however,  the 
question  was  not  considered  with  reference  to  exemplary 
damages,  but  to  the  amount  of  care  due  from  the  defend- 
ants in  their  respective  situations.  Whether  little  or  great 
care  is  due,  a  dereliction  from  that  amount  is,  in  each  case, 
negligence,  and  creates  a  liability;  but  one  upon  whom  a 
duty  is  imposed  may  fall  a  little  or  far  below  the  line 
dividing  liability  from  impunity,  and  it  is  not  improper, 
when  the  latter  is  the  case,  to  apply  the  term  "  gross  "  to 
the  defendant's  dereliction,  having  reference,  however, 
merely  to  the  character  of  his  acts  and  not  to  his  liability. 
The  allowance  of  exemplary  damages  depends  upon  the 
bad  motive  of  the  wrong-doer  as  exhibited  by  his  acts. 
Where,  therefore,  the  acts  fall  short  of  wilful  misconduct, 
or  that  entire  want  of  care  which  would  raise  the  presump- 
tion of  a  conscious  indifference  to  consequences,  exemplary 
damages  should  not  be  given.  Gross  negligence,  so  far 
as  right  of  action  is  concerned,  is,  as  Rolfe,  B.,  said,  only 
negligence  with  a  vituperative  epithet ;  as  a  malicious 
wrong,  so  far  as  right  of  action  goes,  does  not  differ  from 


(»)  Grill  V.  General  I.  S.  C.  Co.,  12  Jur.  N.  S.  727 ;  McPheeters  v.  Hannibal 
&  St.  J.  R.R.  Co.,  45  Mo.  22 ;  Milwaukee  &  St.  Paul  Ry.  v.  Arms,  91  U.  S. 
489 ;  and  see  Steamboat  New  World  v.  King-,  16  How.  469. 

e)  17  Wall.  357,  383. 
Vol.  I.— 34 


530  EXEMPLARY   DAMAGES.  §  369. 

any  other  wrong.  But  as  malice,  though  not  making  the 
act  legally  more  wrongful,  may  be  a  ground  for  exemplary 
damages,  so  may  grossness  of  negligence  in  the  sense 
explained  above  ;  and  the  term  so  explained  is  open  to  no 
objection,  and  accords  with  its  use  in  common  speech. 

Gross  negligence,  then,  in  the  sense  of  culpable  in- 
difference to  consequences,  is  usually  held  to  be  a  good 
ground  for  the  allowance  of  exemplary  damages  ;(*)  in 
this  sense  it  is  therefore  such  negligence  as  evinces  a  con- 
scious indifference  to  consequences  ;(^)  as,  for  instance, 
where  the  owner  of  a  furious  dog  knowingly  allowed  it 
to  run  at  large.  (") 

§  369.  Circumstances  preventing  the  allowance  of  exem- 
plary damages. — As  the  ground  of  allowing  exemplary 
damages  is  the  evil  motive  of  the  defendant,  all  circum- 
stances showing  that  he  had  no  such  motive  may  be 

(")  Emhlen  v.  Myers,  6  H.  &  N.  54  ;  U.  S.  v.  Taylor,  35  Fed.  Rep.  484  ; 
Mobile  &  M.  R.R.  Co.  v.  Ashcraft,  48  Ala.  15  ;  Lienkauf  v.  Morris,  66  Ala. 
406  ;  C.  S.  Ry.  Co.  v.  Steen,  42  Ark.  321  ;  W.  U.  Tel.  Co.  v.  Eyser,  2  Col. 
141  ;  Linsley  v.  Bushnell,  15  Conn.  225;  Kilbourn!!'.  Thompson,  i  McA.  & 
M.  401  ;  Frink  v.  Coe,  4  Greene  (la.)  555  ;  Cochran  v.  Miller,  13  la.  128  ; 
Bowler  v.  Lane,  3  Mete.  (Ky.)  311  ;  Fleet  v.  HoUenkemp,  13  B.  Mon.  219  ; 
Kountz  V.  Brown,  16  B.  Mon.  577  ;  Wilkinson  v.  Drew,  75  Me.  360 ;  Vicks- 
bnrg&  J.  R.R.  Co.  v.  Patton,  31  Miss.  156;  Memphis  &  C.  R.R.  Co.  v. 
Whitfield,  44  Miss.  466  ;  Hopkins  v.  A.  &  St.  L.  R.R.  Co.,  36  N.  H.  9  ;  Tay- 
lor V.  G.  T.  Ry.  Co.,  48  N.  H.  304  ;  Caldwell  v.  N.  J.  S.  B.  Co.,  47  N.  Y.  282 ; 
Pittsburgh  C.  &  S.  L.  Ry.  Co.  v.  Lyon,  123  Pa.  140  ;  Byram  v.  McGuire,  3 
Head  530;  Kolb  w.  Bankhead,  18  Tex.  228.  Contra,  under  the  California 
code  :  Yerian  v.  Linkletter,  SoCal.  135. 

C)  M.  &  St.  P.  Ry.  Co.  V.  Arms,  91  U.  S.  489 ;  Lienkauf  v.  Morris,  66 
Ala.  406;  Moody  v.  McDonald,  4  Cal.  297;  Kolb  v.  O'Brien,  86  111.  210; 
Louisville  N.  A.  &  C.  Ry.  Co.  v.  Shanks,  94  Ind.  598 ;  Kansas  P.  Ry.  Co.  v. 
Little,  19  Kas.  267  ;  Kentucky  C.  R.R.  Co.  v.  Dills,  4  Bush  593;  Jacobs  v. 
L.  &  N.  R.R.  Co.,  10  Bush  263  ;  Bannon  v.  B.  &  O.  R.R.  Co.,  24  Md.  108 ; 
Chicago,  St.  L.  &  N.  O.  R.R.  Co.  v  Scurr,  59  Miss.  456 ;  Fisher  v.  Met.  El. 
Ry.  Co.,  34  Hun  433 ;  Cotton  Press  Co.  v.  Bradley,  52  Tex.  587  ;  Pickett  v. 
Crook,  20  Wis.  358. 

(=)  Von  Fragstein  v.  Windier,  2  Mo.  App.  598 ;  Meibus  v.  Dodge,  38  Wis. 

3CX3. 


§§  7iT^>-lT^-      IN  ACTIONS  FOR  PERSONAL  INJURY.  53 1 

proved,  to  prevent  the  allowance  of  such  damages :  if  they 
show  that  the  defendant's  malice  was  slight,  they  may  be 
proved  to  mitigate  exemplary  damages.  Proof  of  such 
circumstances  for  either  purpose  will  be  more  fully  dis- 
cussed later.  (*) 

§  370.  In  what  actions  exemplary  damages  may  be  re- 
covered.—Ordinarily  exemplary  damages  are  allowed  only 
in  actions  of  tort.  In  actions  of  contract,  exemplary 
damages  cannot  be  recovered,(^)  An  exception  is  the 
action  for  breach  of  promise  of  marriage.  In  that  action 
it  is  held  that  if  the  engagement  to  marry  was  broken 
with  circumstances  of  abruptness  and  humiliation,  ex- 
emplary damages  maybe  recovered. (°)  It  has  been  held 
in  some  cases  that  if  the  condition  of  a  bond  given  in 
pursuance  of  a  statute  is  broken  by  the  commission  of  a 
tort,  such  as  would  be  a  proper  cause  for  exemplary  dam- 
ages; such  damages  may  be  recovered  in  an  action  on  the 
bond.C)  This  is  contrary,  however,  to  the  current  of 
authority,  which  is  to  the  effect  that  only  compensatory 
damages  can  be  recovered  in  an  action  on  a  statutory 
bond.O 

§  371.  Not  recoverable  in  equity. — Where  a  court  of 
equity  has  power  to  award  damages,  it  cannot  go  beyond 
compensation ;  by  applying  to  such  a  court,  the  com- 
plainant waives  all  claim  to  exemplary  damages. (^) 

§  372.  In  actions  for  personal  injury.— Exemplary  dam- 
ages may  be  recovered,  in  the  proper  case,  in  an  action 

C)  §§  383-386. 

C)  Guildford  v.  Anglo-French  S.S.  Co.,  9  Can.  303. 

(«)  McPherson  v.  Ryan,  59  Mich.  33  ;  Johnson  v.  Jenkins,  24  N.  Y.  252  ; 
Thorn  V.  Knapp,  42  N.  Y.  474. 

C)  Floyd  V.  Hamilton,  33  Ala.  235  ;  Richmond  v.  Shickler,  57  la.  486 ; 
Renkert  v.  Elliott,  1 1  Lea  235. 

(•)  Cobb  V.  People,  84  111.  511 ;  McClendonw.  Wells,  20  S.  C.  514. 

O  Bird  V.  W.  &  M.  R  R.  Co.,  8  Rich.  Eq.  46. 


532  EXEMPLARY   DAMAGES.  §  373- 

of  assault  and  battery,(")  false  imprisonment, (")  malicious 
prosecution, (°)  or  otiier  injury  to  the  person,  as  where 
the  plaintiff  was  wrongfully  and  wantonly  ejected  from  a 
railroad  train.("*)  In  Mississippi  it  has  been  held  that 
where  a  passenger  is  wilfully  carried  beyond  his  station 
he  may  recover  exemplary  damages.  (") 

§373-  Por  injury  to  property. —  Exemplary  damages 
may  in  a  proper  case  be  recovered  for  a  wilful  injury 
to  land,   as  for  a  malicious  trespass  (')   or  flowing  of 

(*)  Bundy  v.  Maginness,  76  Cal.  532  ;  Smith  v.  Bagwell,  19  Fla.  117  ;  Mc- 
Namara  v.  King,  7  111.  432 ;  Reeder  v.  Purdy,  48  111.  261  ;  Drohn  v. 
Brewer,  77  111.  280;  Harresonf.  Ely,  120  111.  83;  Root  v.  Sturdivant,  70  la. 
55  ;  Titus  V.  Corkins,  21  Kas.  722 ;  Slater  v.  Sherman,  5  Bush  206  ;  Pike  v. 
Dilling,  48  Me.  539;  Webb  v.  Gilman,  80  Me.  177  ;  Baltimore  &  Yorktown 
Turnpike  v.  Boone,  45  Md.  344 ;  Elliott  v.  Van  Buren,  33  Mich.  49 ; 
Green  v.  Craig,  47  Mo.  90  ;  Cook  v.  Ellis,  6  Hill  466 ;  Louder  v.  Hinson, 
4  Jones  L.  369  ;  Porter  7/.  Seller,  23  Pa.  424 ;  Newell  v.  Whitcher,  53  Vt. 
589 ;  Borland  v.  Barrett,  76  Va.  128 ;  Shay  v.  Thompson,  59  Wis.  540. 

(•■)  Huckle  V.  Money,  2  Wils.  205  ;  Bradley  v.  Morris,  Busbee  395  ;  Mc- 
Carthy V.  De  Armit,  99  Pa.  63  ;  Gingras  v.  Desilets,  Cass.  Can.  Dig.  116; 
Clissold  f.  Machell,  26  Up.  Can.  Q.  B.  422. 

(")  Donnell  v.  Jones,  13  Ala.  490  ;  Coleman  v.  Allen,  79  Ga.  637  (by  code) ; 
Parkhurst  v.  Masteller,  57  la.  474 ;  McWilliams  v.  Hoban,  42  Md.  56 ;  Peck 
V.  Small,  35  Minn.  465  ;  Winn  v.  Peckham,  42  Wis.  493  ;  Spear  v.  Hiles,  67 
Wis.  350. 

(^)  Dalton  V.  Beers,  38  Conn.  529;  Georgia  R.R.  Co.  v.  Olds,  77  Ga.  673 
(by  code);  JefFersonville  R.R.  Co.  v.  Rogers,  38  Ind.  116;  P.  W.  &  B. 
R.R.  Co.  V.  Larkin,  47  Md.  155 ;  Knowles  v.  N.  S.  R.R.  Co.,  102  N.  C.  59. 

(•)  Higgins  V.  L.  N.  O.  &  T.  R.R.  Co.,  64  Miss.  80 ;  Dorrah  v.  I.  C.  R.R. 
Co.,  65  Miss.  14. 

(0  Brewer  v.  Dew,  11  M.  &  W.  625  ;  U.  S.  v.  Taylor,  35  Fed.  Rep.  484 ; 
Devaughn  v.  Heath,  37  Ala.  595  ;  Clark  v.  Bales,  1 5  Ark.  452  ;  Waters  v. 
Dumas,  75  Cal.  563  (by  code) ;  Curtiss  v.  Hoyt,  19  Conn.  154;  Shores  v. 
Brooks,  81  Ga.  468  ;  Cutler  ■v.  Smith,  57  111.  252  ;  Chicago  &  I.  R.R.  Co.  v. 
Baker,  73  111.  316  ;  Keirnan  v.  Heaton,  69  la.  136  ;  Hefley  v.  Baker,  19  Kas. 
9 ;  Jennings  v.  Maddox,  8  B.  Mon.  430  ;  Ames  v.  Hilton,  70  Me.  36  ;  Briggs  v. 
Milbum,  40  Mich.  512  ;  Craig  v.  Cook,  28  Minn.  232  ;  Parker  v.  Shackelford, 
61  Mo.  68  ;  Newman  v.  St.  L.  &  I.  M.  R.R.  Co.,  2  Mo.  App.  402  ;  Perkins 
V.  Towle,  43  N.  H.  220  ;  Winter  v.  Peterson,  24  N.  J.  L.  524 ;  AUaback  v. 
Utt,  51  N.  Y.  651;  Day  v.  Holland,  15  Ore.  464  {semble);  Windham  v. 
Rhame,  1 1  Rich.  L.  283  ;  Jefcoat  v.  Knotts,  1 1  Rich.  L.  649  ;  Greenville  & 


§  373-  FOR   INJURY   TO    PROPERTY.  533 

land.C)  Such  damages  were  allowed  for  maliciously  set- 
ting fire  to  the  plaintiff's  house  ;  (^)  in  an  action  for  dam- 
age to  hedges  ;  (")  in  an  action  for  defacing  the  walls  and 
breaking  the  windows  of  the  plaintiff's  house  ;  (^)  and  in 
an  action  for  cutting  and  carrying  away  timber  and  hauling 
away  sand.(*)  So  also  in  an  action  of  forcible  entry. (^) 
Exemplary  damages  may  also  be  recovered  in  the  proper 
case  for  an  injury  to  personal  property.  So  exemplary 
damages  have  been  allowed  for  a  wrongful  levy  or  attach- 
ment of  personal  property,(^)  for  wrongfully  suing  out 
an  attachment  writ.C)  or  for  a  wrongful  distraint ;  C') 
for  the  vexatious  or  oppressive  detention  of  personal 
property, (')  as  for  instance  the  wanton  refusal  of  a  car- 
rier to  deliver  goods  seasonably ;  (")  for  the  malicious 
taking  of  personal  property  or  injury  to  it,(°)  as  for  the 
killing  of  a  slave  (")  or  domestic  animal,  (p) 


C.  R.R.  Co.  V.  Partlow,  14  Rich.  L.  237  ;  Cox  v.  Crumley,  5  Lea  529  ;  Cook 
•V.  Garza,  9  Tex.  358  ;  Ellsworth  v.  Potter,  41  Vt.  685  ;  Burnham  v.  Jen- 
ness,  54  Vt.  272  ;  Camp  v.  Camp,  59  Vt.  667 ;  Koenigs  v.  Jung,  73  Wis.  178. 

(»)  Hughes  V.  Anderson,  68  Ala.  280 ;  Martin  v.  Riddle,  26  Pa.  415  n. 

C)  Smalley  v.  Smalley,  81  111.  70. 

C)  Parker  v.  Shackelford,  61  Mo.  68. 

(■*)  Weston  V.  Gravlin,  49  Vt.  507.  (')  Rosser  v.  Bunn,  66  Ala.  89. 

(0  Mosseller  v.  Deaver,  106  N.  C.  494. 

(s>  Jefferson  County  Savings  Bank  v.  Eborn,  84  Ala.  529 ;  Bates  v.  Cal- 
lender,  3  Dak.  256;  Sherman  v.  Dutch,  16  111.  283  ;  Nagle  v.  MuUison,  34 
Pa.  48. 

C)  Floyd  V.  Hamilton,  33  Ala.  235  ;  Lawrence  v.  Hagerman,  56  111.  68 ; 
Morris  v.  Shew,  29  Kas.  661. 

(^)  Clevenger  v.  Dunaway,  84  111.  367  ;  Briscoe  v.  McElween,  43  Miss.  556. 

(')  Taylor  v.  Morgan,  3  Watts  333.  (■")  Silver  v.  Kent,  60  Miss.  124. 

(")  Dibble  v.  Morris,  26  Conn.  416;  Bull  v.  Griswold,  19  111.  631 ;  Johnson 
V.  Camp,  51  111.  219 ;  Kountz  v.  Brown,  16  B.  Mon.  577 ;  Schindel  v.  Schin- 
del,  12  Md.  108;  Snively  I/.  Fahnestock,  18  Md.  391 ;  Young  v.  Mertens,  27 
Md.  114. 

(»)  Polk  V.  Fancher,  i  Head  336. 

(p)  Parker  v.  Mise,  27  Ala.  480;  Dean  v.  Blackwell,  18  111.  336;  Woert  v. 
Jenkins,  14  Johns.  352  ;  Cole  v.  Tucker,  6  Tex.  266 ;  Champion  v.  Vincent, 
20  Tex.  811. 


534  EXEMPLARY    DAMAGES.  §§  Zl\~'il^- 

§  374.  In  actions  of  trover. — In  actions  of  trover  the  jury 
may  go  beyond  the  value  and  give  exemplary  damages 
when  there  has  been  outrage  in  the  taking,  or  vexation 
or  oppression  in  the  detention.'  (") 

§  375-  Of  replevin. — In  New  York  and  Pennsylvania,  it 
has  been  declared  that  if  the  writ  of  replevin  be  sued  out 
fraudulently,  vexatiously,  or  maliciously,  or  the  defend- 
ant's proceedings  be  of  the  same  character,  the  jury  may 
give  exemplary  damages  against  either  plaintiff  or  defend- 
ant, as  in  cases  of  wilful  trespass.'  (*)  And  the  same  rule 
should  apply  in  actions  of  detinue.C) 

§  376.  For  loss  of  service. — Exemplary  damages  have 
been  allowed  in  actions  for  loss  of  service  either  through 
enticement  ("*)  or  seduction;(^)  and  in  actions  for  criminal 

'  Dennis  v.  Barber,  6  S.  &  R.  420  ;  '  Cable  v.  Dakin,  20  Wend.  172  ; 
Harger  v.  McMains,  4  Watts  418;  McDonaldz'.  Scaife,  11  Pa.  38i;Brizsee 
Taylor  v.  Morgan,  3  Watts  333.  v.  Maybee,  2i  Wend.  144. 


(")  The  cases  in  which  exemplary  damages  have  been  allowed  in  actions  of 
trover  seem  to  have  been  infrequent ;  but  there  can  be  no  doubt  that  such 
damages  may  be  allowed.  Contra,  that  exemplary  damages  cannot  be  given 
in  trover,  Peterson  z/.  Gresham,  25  Ark.  380;  Berry  7/.  Vantries,  12  S.  &  R. 
89.  In  Jones  v.  Rahilly,  16  Minn.  320,  it  was  said  that  exemplary  damages 
cannot  be  given  for  a  wilful  withholding  of  property  that  came  rightfully  into 
the  defendant's  possession ;  but  they  were  allowed  in  such  a  case  in  Silver  v. 
Kent,  60  Miss.  124 ;  Taylor  v.  Morgan,  3  Watts  333. 

(")  Holt  V.  Van  Eps,  i  Dak.  206  ;  Whitfield  v.  Whitfield,  40  Miss.  352 
(semble) ;  McCabe  v.  Morehead,  i  W.  &  S.  513 ;  Schofield  v.  Ferrers,  46  Pa. 
438.  It  is  otherwise  in  this  action  in  Illinois  and  Indiana.  Butler  v.  Mehr- 
ling,'  15  III.  488;  Hotchkiss  v.  Jones,  4  Ind.  260.  And  the  mere  fact  that  the 
wrong-doer  acted  wilfully  does  not  justify  such  damages.  There  must  be 
circumstances  of  fraud,  malice,  or  wanton  injury  to  entitle  the  plaintiff  to  re- 
cover them.     Single  w.  Schneider,  30  Wis.  570. 

(")  Whitfield  V.  Whitfield,  40  Miss.  352  {semble) ;  but  contra,  McDonald 
V.  Norton,  72  la.  652. 

(■')  Smith  v.  Goodman,  75  Ga.  198 ;  Tyson  v.  Ewing,  3  J.  J.  Marsh  185  ; 
Bixby  V.  Dunlap,  56  N.  H.  456  ;  Magee  v.  Holland,  27  N.  J  L.  86. 

(")  Robinson  v.  Burton,  5  Harr.  335;  Grable  v.  Margrave,  4  HI.  372; 
Stevenson  w.  Belknap,  6  la.  97;  Fox  z/.  Stevens,  13  Minn.  272;  Lavery  r/. 
Crooke,  52  Wis.  612. 


§§377-378.  FOR  DEFAMATION.  535 

conversation  (")  and  for  harboring  the  plaintiff's  wife.('') 
It  has  been  held  that  exemplary  damages  cannot  be  re- 
covered in  an  action  for  loss  of  service  caused  by  physical 
injury  to  a  child  or  servant.  They  are  only  given  if  the 
injured  child  or  servant  brings  the  action  in  his  own 
name.(°) 

§  377.  Exemplary  damages  for  defamation. — In  actions 
for  libel  or  slander  exemplary  damages  may  be  given  in 
the  proper  case.C')  The  evil  intent  that  justifies  exem- 
plary damages  in  these  cases  is  usually  express  malice,(^) 
of  which  the  falsity  of  the  defamation  is  evidence  ;  Q) 
but  it  is  enough  if  the  defamation  was  uttered  with  wil- 
ful indiiference  to  the  consequences,  that  is,  in  mere 
wantonness. (^)  The  bad  character  of  the  plaintiff  may 
be  shown  in  mitigation  of  exemplary  as  well  as  of  com- 
pensatory damage.  C") 

§  378.  Liability  of  a  principal  to  exemplary  damages  for 
the  act  of  his  agent  or  servant. — It  is  the  better  opinion 
that   no  recovery  of   exemplary  damages   can  be   had 


(")  Johnston  v.  Disbrow,  47  Mich.  59. 

C")  Johnson  v.  Allen,  100  N.  C.  131. 

(")  Black  V.  C.  R.R.  Co.,  10  La.  Ann.  33  ;  Hyatt  v.  Adams,  16  Mich.  180 
(semble) ;  Whitney  v.  Hitchcock,  4  Den.  461  ;  but  contra,  Klingman  v. 
Holmes,  54  Mo.  304. 

C)  Philadelphia,  W.  &  B.  R.R.  Co.  v.  Quigley,  21  How.  202  ;  Binford  v. 
Young,  IIS  I"d.  174;  Daly  w.  Van  Benthuysen,  3  La.  Ann.  69;  Buckley  v. 
Knapp,  48  Mo.  152;  King  v.  Root,  4  Wend.  113;  Bergmann  v.  Jones, 
94  N.  Y.  51  ;  Sowers  v.  Sowers,  87  N.  C.  303  ;  Barr  v.  Moore,  87  Pa.  385 ; 
Rea  V.  Harrington,  58  Vt.  181  ;  Harman  v.  Cundiff,  82  Va.  239;  Klewin  v. 
Bauman,  53  Wis.  244;  Guest  v.  Macpherson,  3  Leg.  News  (Quebec)  84; 
Silver  v.  Dom.  Tel.  Co.,  2  R.  &  G.  (N.  Scot.)  17. 

(«)  Philadelphia,  W.  &  B.  R.R.  Co.  v.  Quigley,  21  How.  202. 

(0  Bergmann  v.  Jones,  94  N.  Y.  51. 

(s)  Bowden  v.  Bailes,  loi  N.  C.  612. 

(■i)  Maxwell  v.  Kennedy,  50  Wis.  645. 


536  EXEMPLARY   DAMAGES.  §  378. 

against  a  principal  for  the  tort  of  an  agent  or  servant, (*) 
unless  the  defendant  expressly  authorized  the  act  as  it 
was  performed  or  approved  itjC")  or  was  grossly  negli- 
gent in  hiring  the  agent  or  servant,(°)  or  in  not  prevent- 
ing him  from  committing  the  act.(*)  The  burden  of 
showing  authorization  or  approval  by  the  principal  is  on 
the  plaintiff.Q  In  Cleghorn  v.  N.  Y,  Cent.  &  H.  R. 
R.R.  Co.,0  Church,  C.  J.,  said  : 

"  For  injuries  by  negligence  of  the  servant,  however  gross  or 
culpable,  he  (the  master)  is  not  liable  to  be  punished  in  punitive 
damages,  unless  he  is  also  chargeable  with  gross  misconduct. 
Such  misconduct  may  be  established  by  showing  that  the  act  of 
the  servant  was  authorized  or  ratified,  or  that  the  master  em- 
ployed or  retained  the  servant  knowing  that  he  was  incompetent 
or,  from  bad  habits,  unfit  for  the  position  he  occupied.  Some- 
thing more  than  ordinary  negligence  is  requisite ;  it  must  be 
reckless  and  of  a  criminal  nature,  and  clearly  established.  If  a 
railroad  company  knowingly  and  wantonly  employs  a  drunken  en- 
gineer or  switchman,  or  retains  one  after  knowledge  of  his  habits 
is  clearly  brought  home  to  the  company,  or  to  a  superintending 
agent  authorized  to  employ  and  discharge  him,  and  injury  oc- 
curs by  reason  of  such  habits,  the  company  may  and  ought  to 
be  amenable  to  the  severest  rule  of  damages  ;  but  I  am  not 
aware  of  any  principle  which  permits  a  jury  to  award  exemplary- 
damages  in  a  case  which  does  not  come  up  to  this  standard, 
or  to  graduate  the  amount  of  such  damages  by  their  views  of 
the  propriety  of  the  conduct  of  the  defendant,  unless  such  con- 
duct is  of  the  character  above  specified." 

(")  The  Amiable  Nancy,  3  Wheat.  546  ;  Pollock  v.  Gantt,  69  Ala.  373 ; 
Burns  v.  Campbell,  71  Ala.  271  ;  Wardrobe  v.  Stage  Co.,  7  Cal.  118  ;  Men- 
delsohn V.  Anaheim  Lighter  Co.,  40  Cal.  657,  overruling  Wade  v.  Thayer, 
Ibid.  578  ;  Grund  v.  Van  VIeck,  69  111.  478  ;  Keene  v.  Lizardi,  8  La.  26  ; 
Boulard  v.  Calhoun,  13  La.  Ann.  445  ;  Texas  T.  Ry.  Co.  v.  Johnson,  75 
Tex.  158. 

O  Lienkauf  v.  Morris,  66  Ala.  406 ;  Becker  v.  Dupree,  75  111.  167';  Evis- 
ton  V.  Cramer,  57  Wis.  570. 

(f)  Burns  v.  Campbell,  71  Ala.  271  ;  Sawyer  v.  Sauer,  10  Kas.  466. 

C)  Freese  v.  Tripp,  70  111.  496  ;  Kehrig  v.  Peters,  41  Mich.  475. 

(«)  Haines  v.  Schultz,  50  N.  J.  L.  481. 

(0  56  N.  Y.  44- 


{ 

§  379.  3^0-         FOR  ACTS   OF   SERVANTS.  537 


i  The  Chief  Justice  also  said  :  "  It  is  the  exception  and 
[not  the  rule  that,  in  this  class  of  cases,  exemplary  dam- 
(ages  are  allowable." 

i      In  some  jurisdictions,  however,  the  principal,  if  liable 

[for  compensatory  damages,  is  liable  also  for  exemplary 

!  damages  as  the  agent  or  servant  would  he.(^)     Where 

one  partner  in  the  course  of  the  partnership  business 

commits  a  tort  subjecting  him  to  exemplary  damages, 

such  damages  may  be  recovered  from  the  firm.('') 

§  379-  Of  a  corporation  for  acts  of  agents. — A  corporation 
is  liable  for  exemplary  damages  for  its  own  act,  that  is,  for 
the  act  of  its  directors  or  other 'agents  whose  act  is  the 
act  of  the  corporation.  Thus  gross  negligence  in  hiring 
servants  will  subject  a  corporation  to  exemplary  dam- 
ages,^)  and  so  will  express  authorization  or  ratification  of 
the  servant's  acts.(*)  It  is  held,  however,  that  municipal 
corporations  are  not  liable  to  exemplary  damages.  (^) 

§  380.  For  acts  of  servants. — It  is  held  in  many,  perhaps  in 
most,  jurisdictions  that  a  corporation  is  liable  to  exemplary 
damages,  if  to  any,  for  an  act  of  its  servant  which  would 


(")  Hazard  v.  Israel,  I  Binn.  240 ;  Southern  Express  Co.  v.  Brown,  67 
Miss.  260. 

C)  Robinson  v.  Goings,  63  Miss.  500. 

(')  Hermingv.  Western  U.  T.  Co.,  41  Fed.  Rep.  864  ;  S.  &  N.  A.  R.R.  Co. 
V.  McLendon,  63  Ala.  266 ;  Murphy  v.  N.  Y.  &  N.  H.  R.R.  Co.,  29  Conn. 
496 ;  I.  C.  R.R.  Co.  V.  Hammer,  72  111.  347  ;  Cleghorn  v.  N.  Y.  C.  &  H.  R. 
R.R.  Co  ,  56  N.  Y.  44 ;  Sullivan  v.  Ore.  Ry.  &  Nav.  Co.,  12  Ore.  392  ;  Nash- 
ville &  C.  R.R.  Co.  V.  Starnes,  9  Heisk.  52. 

(^)  Illinois  C.  R.R.  Co.  v.  Hammer,  72  111.  347 ;  Malecek  v.  Tower  G.  &  L. 
Ry.  Co.,  57  Mo.  17  ;  Doss  v.  Missouri,  K.  &  T.  R.R.  Co.,  59  Mo.  27  ;  Travers 
V.  Kansas  P.  Ry.  Co.,  63  Mo.  421  ;  Murphy  v.  Central  Park,  N.  &  E.  R.R. 
Co.,  48  N.  Y.  Super.  Ct.  96 ;  Nashville  &  C.  R.R.  Co.  v.  Starnes,  9  Heisk.  52  ; 
Milwaukee  &  M.  R.R.  Co.  v.  Finney,  10  Wis.  388 ;  Craker  v.  Chicago  &  N. 
W.  Ry.  Co.,  36  Wis.  657  ;  Bass  v.  Chicago  &  N.  W.  Ry.  Co.,  42  Wis.  654. 

{")  Larson  v.  Grand  Forks,  3  Dak.  307 ;  Chicago  v.  Langlass,  52  111.  256  ; 
Chicago  V.  Jones,  66  111.  349  ;  Chicago  v.  Kelly,  69  111.  475 ;  Wilson  v.  Wheel- 
ing, 19  W.  Va.  323. 


538  EXEMPLARY   DAMAGES.  §380., 

i 

subject  the  servant  to  exemplary  damages.(^)     It  is  argued  j 
that  since  a  corporation  can  act  only  by  its  agents  or] 
servants  it  would  altogether  escape  liability  to  exemplary  1 
damages  unless  it  were  subjected  to  them  for  its  agents'  or  i 
servants'  acts.     The  corporation  is  therefore  held  liable  j 
although  in  most  of  these  jurisdictions  an  individual  prin- 
cipal would  not  be.     In  South  Carolina  this  has  been  car- 
ried so  far  that  a  corporation  is  held  liable  in  exemplary 
damages  for  the  act  of  another  corporation  which  was 
operating  its  railroad  as  lessee.  C")     But  it  is  more  in  the 
nature  of  exemplary  damages,  as  punishment,  to  allow 
a  recovery  of  them  only  against  a  defendant  who  has  been 
personally  in  fault ;  the  better  opinion,  therefore,  seems  to 
be  that  exemplary  damages  should  be  allowed  against  a 
corporation  for  the  act  of  its  servant  only  if  it  expressly 
authorized  the  act   as  it   was  performed,  or  afterwards 


(»)  Arkansas :  C.  S.  Ry.  Co.  v.  Steen,  42  Ark.  321.  Colorado :  (before 
exemplary  damages  were  disallowed)  :  W.  U.  Tel.  Co.  v.  Eyser,  2  Col.  141. 
District  of  Columbia  :  Flannery  ?/.  B.  &  O.  R.R.  Co.,  4  Mack.  in.  Georgia  : 
Gasway  7/.  A.  &  W^.  P.  R.R.  Co.,  58  Ga.  216  ;  G.  R.R.  Co.  v.  Olds,  77  Ga.  673 
(by  code).  Illinois :  I.  C.  R.R.  Co.  v.  Hammer,  72  111.  353;  Singer  Manuf.Co.,  v. 
Holdfodt,  86 111.  455  ;  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Rector,io4  111.  296.  Indi- 
ana :  J.  R.R.  Co.  V.  Rogers,  38  Ind.  116.  Kansas:  Wheeler  &  Wilson  Manuf. 
Co.  V.  Boyce,  36  Kas.  350.  Kentucky  :  Bowler  v.  Lane,  3  Met.  (Ky.)  311  : 
Jacobs  V.  L.  N.  &  R.R.  Co.,  10  Bush  263  ;  L.  &  N.  R.R.  tj.  Ballard,  85  Ky. 
307.  Maine :  Goddard  v.  G.  T.  Ry.  Co.,  57  Me.  202 ;  Hanson  v.  E.  &  N.  A. 
R.R.  Co.,  62  Me.  84.  Miryland:  B.  &  O.  R.R.  Co.  v.  Blocher,  27  Md.  277  ; 
Baltimore  &  Yorktown  Turnpike  v.  Boone,  45  Md.  344 ;  Phila.,  W.  &'  B. 
R.  R.  Co.  V.  Larkin,  47  Md.  155.  Mississippi :  V.  &  J.  R.R.  Co.  v.  Patton, 
31  Miss.  156.  Missouri:  Perkins  v.  M.  K.  &  T.  R.R.  Co.,  55  Mo'.  201  ; 
Travers  v.  K.  P.  Ry.  Co.,  63  Mo.  421  ;  (overruling  McKeon  v.  C.  Ry.  Co., 
42  Mo.  79).  New  Hampshire  (before  exemplary  damages  were  disallowed)  : 
Belknap  v.  E.  &  M.  R.R.  Co.,  49  N.  H.  358.  Ohio :  A.  &  G.  W.  Ry.  Co.  v- 
Dunn,  19  Oh.  St.  162.  Pennsylvania:  L.  S.  &  M.  S.  Ry.  Co.  v.  Rosenzweig,  1 13 
Pa.  519;  Phila.  Traction  Co.  v.  Orbann,  119  Pa.  37.  South  Carolina: 
Quinni/.  S.  C.  Ry.  Co.,  29  S.  C.  381.  Tennessee:  L.  &  N.  R.R.  Co.  v. 
Garrett,  8  Lea  438  (explaining  N.  &  C.  R.R.  Co.  v.  Starnes,  9  Heisk.  32). 

C)  Hart  V.  Charlotte,  C.  &  A.  R.R.  Co.,  12  S.  E.  Rep.  9  (S.  C). 


§§381,  382.      OF  ONE  OF  TWO  JOINT  DEFENDANTS.  539 

ratified  it,  or  was  negligent  in  hiring  the  servant  or  retain- 
ing him  in  its  employ.  And  such  is  the  law  in  many  juris- 
dictions. (*) 

§  381.  Of  an  officer. — A  ministerial  officer  acting  in  good 
faith  is  not  liable  to  exemplary  damages ;  but  such  an  officer 
is  liable  to  exemplary  damages  if  he  acts  maliciously.  C') 

§  382.  Of  one  of  two  joint  defendants. — When  only  one 
of  two  or  more  joint  wrong-doers  acted  in  such  a  way  as 
to  render  himself  liable  to  exemplary  damages,  the  plain- 
tiff may  have  judgment  against  him  for  exemplary  dam- 
ages and  against  the  others  for  compensatory  damages.  (°) 
When,  however,  a  husband  and  wife  are  sued  jointly  for 
the  tort  of  the  wife,  a  judgment  for  exemplary  damages 
may  be  recovered  against  them  jointly  ;  for  the  husband 
is  not  really  a  joint  defendant,  but  only  a  formal  party.  C^) 

(f)  Alabama :  City  National  Bank  v.  Jeffries,  73  Ala.  183.  California: 
Turner  -v.  N.  B.  &  M.  R.R.  Co.,  34  Cal.  594  ;  Mendelsohn  v.  Anaheim  Lighter 
Co.,  40  Cal.  657.  Delaware :  McCoy  v.  P.  W^.  &  B.  R.R.  Co.,  5  Houst.  599. 
Louisiana  :  Hill  v.  N.  O.  O.  &  G.  W.  R.R.  Co.,  1 1  La.  Ann.  292.  Michigan  : 
Great  W.  Ry.  Co.  v.  Miller,  19  Mich.  305.  New  Jersey :  Ackerson  v.  Erie  Ry. 
Co.,  32  N.  J.  L.  254.  New  York :  Murphy  v.  Central  Park,  N.  &  E.  R.  R.R. 
Co.,  48  N.  Y.  Super.  Ct.  96.  Oregon:  Sullivan  v.  Ore.  Ry.  &  Nav.  Co.,  12 
Ore.  392.  Pennsylvania:  Keil  v.  Chartiers  V.  C.  Co.,  131  Pa.  466  (but 
see  Lake  S.  R.R.  Co.  v.  Rosenrweig',  113  Pa.  519;  Philadelphia  T.  Co. 
V.  Orbann,  119  Pa.  37).  Rhode  Island:  Hagan  v.  P.  &  W.  R.R.  Co.,  3R.  L 
88.  Texas :  Hays  v.  H.  G.  N.  R.R..  Co.,  46  Tex.  272  ;  G.  H.  &  S.  A.  Ry. 
Co.  V.  Donahoe,  56  Tex.  162  ;  International  &  G.  N.  R.R.  Co.  v.  Garcia,  70 
Tex.  207.  West  Virginia :  Ricketts  v.  Chesapeake  &  O.  Ry.  Co.,  lo  S.  E. 
Rep.  801.  Wisconsin :  M.  &  M.  R.R.Co.  v.  Finney,  10  Wis.  388  ;  Bass  v.  C.  & 
N.  W.  Ry.  Co.,  36  Wis.  450  ;  39  Wis.  636  ;  Craker  v.  C.  &  N.  W.  Ry.  Co., 
36  Wis.  657  ;  Eviston  v.  Cramer,  57  Wis.  570. 

0")  Nightingale  v.  Scannell,  18  Cal.  315  ;  Pratt  v.  Pond,  42  Conn.  318; 
Plummer  v.  Harbut,  5  la.  308 ;  Pierce  v.  Getchell,  76  Me.  216. 

(")  Clark  V.  Newsam,  l  Ex.  131 ;  Clissold  v.  Machell,  26  Up.  Can.  Q.  B. 
422.  But  in  McCarthy  v.  De  Armit,  99  Pa.  63,  it  was  held  that  if  one  of  the 
defendants  was  not  liable  to  exemplary  damages,  none  could  be  given.  If 
all  were  liable,  the  jury  should  assess  damages  as  against  the  least  culpable 
defendant. 

('')  Munter  v.  Bande,  i  Mo.  App.  484;  Lombard  v.  Batchelder,  58  Vt.  558. 


540  EXEMPLARY    DAMAGES.  §  383. 

§  383.  Mitigation  or  aggravation — Want  of  malice. — Since 
the  cause  for  inflicting  exemplary  damages  is  a  malicious  in- 
tent on  the  part  of  the  defendant,  and  the  amount  is  regu- 
lated according  to  the  degree  of  wrong,  all  circumstances 
bearing  on  the  defendant's  intent  may  be  shown  to  the 
jury,  to  be  considered  by  them.  All  circumstances  which 
negative  the  existence  of  malice,  or  show  the  malice  to 
have  been  little,  may  be  shown  to  mitigate  the  damages : 
such  circumstances  are  good  faith,  the  advice  of  counsel, 
and  belief  of  right.  The  existence  of  one  of  these  will 
not,  however,  protect  the  defendant  if,  in  spite  of  it,  he 
acted  in  a  cruel  and  abusive  manner ;  (")  thus,  though  the 
defendant  honestly  believed  the  slander  he  published  to 
be  true, yet  if  he  published  it  in  a  wanton  and  reckless  man- 
ner, or  maHciously,  the  plaintiff  may  recover  exemplary 
damages.(^)  With  this  qualification,  any  circumstance  of 
the  sort  mentioned  will  protect  the  defendant  from  exem- 
plary damages.  So  where  the  cause  of  offence  was  dis- 
continued by  the  defendant  with  reasonable  promptness, 
that  will  rebut  the  presumption  of  malice,  and  prevent 
the  recovery  of  exemplary  damages. (°)  In  short,  as  ex- 
emplary damages  are  recoverable  only  upon  a  full  view  of 
the  motive  of  the  act,  in  the  light  of  all  the  attendant  cir- 
cumstances, so  too  all  circumstances  going  to  show  that 
the  motive  of  the  act  was  innocent  must  be  taken  into 
account  also.('^) 

If  the  defendant  acted  in  good  faith,  he  cannot  be 
made  liable  to  exemplary  damages,(°)     So  in  an  action 

(")  Dalton  V.  Beers,  38  Conn.  529;  Johnson  v.  Camp,  51  111.  219;  Bauer 
V.  Gottmanhausen,  65  111.  499  ;  Jasper  v.  Pumell,  67  III.  358  ;  Raynor  v. 
Nims,  37  Mich.  34. 

(^)  Hayner  v.  Cowden,  27  Oh.  St.  292. 

C)  Oursler  v.  Baltimore  &  O.  R.R.  Co.,  60  Md.  358. 

{'')  Millard  v.  Brown,  35  N.  Y.  297. 

(°)  St.  Peter's  Church  v.  Beach,  26  Conn.  355. 


§  ;iS^.  MITIGATION    OR   AGGRAVATION.  54 1 

of  libel,  good  faith  may  be  shown  to  prevent  exemplary- 
damages.  (")  And  where  a  collector  of  customs  while 
carrying  out  in  good  faith  the  orders  of  his  superior 
officer  committed  a  tort,  it  was  held  that  he  was  not  lia- 
ble to  exemplary  damages ;  (^)  nor  is  any  ministerial 
officer  acting  in  good  faith.  (")  So  where  a  railway  con- 
ductor acted  honestly  in  ejecting  the  plaintiflf  from  a  car, 
exemplary  damages  cannot  be  recovered. (**)  If  the  de- 
fendant acted  under  the  advice  of  counsel,  the  plaintiflf 
cannot  recover  exemplary  damages  ;  (*)  and  the  same  is 
true  where  he  acted  upon  the  advice  of  one  he  supposed 
to  be  a  lawyer,  who  in  fact  was  not.Q  But  the  advice 
of  a  layman  who  made  no  pretence  to  being  a  lawyer 
will  not  relieve  the  defendant  from  liability  to  exemplary 
damages. (^)  And  the  advice  of  counsel  will  be  no  pro- 
tection if  it  is  not  exactly  followed  ;  so  where  the  defend- 
ant's lawyer  advised  him  that  he  could  enter  certain 
premises  if  the  plaintiflf's  family  were  away,  and  in  fact 
he  entered  them  when  they  were  not  away,  the  advice 
could  not  protect  him  from  exemplary  damages. C")  Nor 
will  the  defendant  be  protected  unless  he  shows  that  the 
advice  was  based  upon  a  knowledge  of  all  the  facts  of  the 
case.O)     If  the  defendant  honestly  believed  himself  in 

(»)  Bennett  v.  Smith,  23  Hun  50. 

C")  Tracy  v.  Swartwout,  10  Pet.  80. 

(«)  Plummer  v.  Harbut,  5  la.  308 ;  Pierce  v.  Getchell,  76  Me.  216. 

(*)  Fitzgerald  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  50  la.  79;  Philadelphia,  W. 
&  B.  R.R.  Co.  V.  Hoeflich,  62  Md.  300  ;  Logan  v.  Hannibal  &  S.  J.  R.R.  Co., 
77  Mo^3 ";  Hamilton  v.  Third  Ave.  R.R.  Co.,  53  N.  Y.  25  ;  Yates  v.  New 
York  C.  &  H.  R.  R."^.  Co.,  67  N.  Y.  100;  Tomlinson  v.  Wilmington  &  S.  C. 
R.R.  Co.,  12  S.  E.  Rep.  138  (N.  C). 

(«)  City  Nat.  Bank  v.  Jeffries,  73  Ala.  183 ;  Cochrane  v.  Tuttle,  75  111.  361 ; 
Bonesteel  v.  Bonesteel,  30  Wis.  511. 

O  Murphy  v.  Larson,  77  111.  172. 

(K)  Livingston  v.  Burroughs,  33  Mich.  511. 

(*)  Carpenter  v.  Barber,  44  Vt.  441. 

C)  Shores  v.  Brooks,  81  Ga.  468. 


542  EXEMPLARY    DAMAGES.  §  384. 

the  right,  this  may  be  shown  to  prevent  or  mitigate  the 
allowance  of  exemplary  damages  ;  (")  and  therefore  a 
trespass  committed  through  a  mistake  as  to  the  rights  of 
the  parties  will  not  give  a  right  to  exemplary  damages.  (*") 
And  of  course  the  fact  that  the  suit  is  an  amicable  suit 
will  prevent  such  allowance. (") 

§  384.  Provocation. — The  existence  of  provocation, 
though  it  may  not  be  a  defense,  will  prevent  the  allow- 
ance of  exemplary  damages-C*)  Thus  in  an  action  of 
false  imprisonment  it  appeared  that  the  plaintiff  had  been 
arrested  for  contempt  of  court  in  not  complying  with  an 
order  to  pay  a  claim  against  an  estate  of  which  he  was 
administrator.  The  order  turned  out  to  be  void.  It 
was  held  that  the  defendant  might  show;  in  mitigation 
of  exemplary  damages,  fraud  on  the  part  of  the  plaintiff 
in  getting  possession  of  the  estate  and  the  making  false 
claims  against  it  in  order  to  escape  payment  of  the  legal 
claims. (°)  So  in  an  action  of  assault  and  battery  the  fact 
that  the  injury  was  inflicted  during  a  mutual  fight  will 
prevent  the. allowance  of  exemplary  damages. Q  So  in 
an  action  of  trespass  g^uare  clausum  it  has  been  held  that 
it  could  be  shown,  in  mitigation  of  exemplary  damages, 
that  the  parties  had  had  a  difficulty  in  the  morning,  for, 
per  curiam,  "  otherwise  there  would  have  been  nothing 
to  indicate  to  the  jury  but  that  the  house  was  entered 
for  the  purpose  of  robbery  and  plunder,  or  something  of 
the  kind.  The  fact  of  a  previous  affray  might  have  some 
weight  upon  the  question  of  the  amount  of  damages  re- 

(»)  Wilkinson  v.  Searcy,  76  Ala.  176 ;  Farwell  v.  Warren,  70  111.  28 ;  Alli- 
son V.  Chandler,  11  Mich.  542. 
C)  Brown  v.  Allen,  35  la.  306. 
C)  Amer  v.  Longstreth,  10  Pa.  145. 
('')  Ward  v.  Blackwood,  41  Ark.  295. 
(«)  Johnson  v.  Von  Kettler,  66  111.  63. 
O  Shay  V.  Thompson,  59  Wis.  540. 


§  384-  PROVOCATION.  543 

coverable,  and  might  legitimately  be  regarded  as  a  part 
of  the  transaction  to  be  investigated  in  this  suit."  (") 

In  a  case  where  the  plaintiff  was  the  aggressor,  but 
the  defendant  in  his  defense  used  excessive  force^  the 
Court  of  Appeals  of  New  York,  refused  to  allow  exem- 
plary damages.C")  In  the  course  of  the  opinion  Dan- 
forth,  J.,  said  : 

"  If  the  injury  of  which  he  complains  came  in  part  from  his 
own  act,  there  is  less  reparation  demanded  from  the  defendant, 
for  the  law  seeks  to  do  justice  between  the  parties,  and  will  not 
require  one  to  atone  for  the  other's  error.  If  satisfaction  is  to 
be  made  for  the  breach  of  public  order,  it  is  not  due  to  him,  for 
his  own  wrong  is  the  consideration  upon  which  it  stands,  and 
for  that  he  cannot  be  allowed  to  profit.  Otherwise  he  would 
receive  compensation  for  damages  occasioned  by  himself.  Yet 
we  have  this  spectacle  before  us.  A  fine  laid  upon  the  defend- 
ant that  the  rights  of  others  may  be  respected,  and  its  payment 
ordered,  not  into  the  public  treasury,  but  the  hand  of  the  first 
aggressor.  The  law  is  careful  and  exact  in  its  dealings.  It 
denies  compensation  to  him  who,  by  his  own  negligence,  con- 
tributed to  injuries  from  which  he  suffers.  Much  less  will  it 
allow  one  who  excites  public  disorder  to  profit  by  punishment 
imposed  upon  his  adversary  for  the  protection  of  the  community. 
In  offending,  the  plaintiff  came  first.  If  he  had  kept  the  peace 
there  would  have  been  no  second.  It  would  very  much  impair 
that  sense  of  security  which  grows  out  of  the  legal  right  to  hold 
and  enjoy  property,  and  defend  by  reasonable  force  its  posses- 
sion, if  the  owner,  when  his  rights  are  invaded,  was  required  to 
answer  not  only  for  a  failure  to  measure  with  precision  the  de- 
gree of  strength  applicable  to  the  aggressor,  but  respond  to  him 
in  a  civil  action  according  to  the  estimate  which  a  jury  influ- 
enced by  the  impassioned  appeals  of  private  counsel  might  place 
upon  the  value  of  public  order." 

A  provocation  offered  some  time  previously  cannot  be 
shown  in  mitigation.     It  must  have  been  so  recent  that 

(")  Currier  v.  Swan,  63  Me.  323. 

C")  Kiff  7/.  Youmans,  86  N.  Y.  324,  331. 


544  EXEMPLARY    DAMAGES.  §§  385,   386. 

the  act  can  be  said  to  have  been  committed  under  the 
immediate  influence  of  the  feelings  excited. (*) 

§  385.  Exemplary  damages  as  affected  by  the  pecuniary 
condition  of  the  defendant. — The  plaintiff  may  show  the 
defendant's  wealth,  that  the  jury  may  judge  what  will  be 
a  sufficient  punishment ;  Q")  and  in  rebuttal  the  defend- 
ant may  show  his  own  poverty.^)  In  Maine  it  is  held 
that  the  defendant  may  show  his  poverty,  even  though 
the  plaintiff  has  introduced  no  evidence  on  the  point.('^) 
It  was  suggested  in  one  case  that  the  plaintiff  might 
show  his  own  poverty  to  enhance  exemplary  damages.  (') 
This,  however,  has  usually  nothing  to  do  with  the  proper 
punishment  of  the  defendant. 

§  386.  Exemplary  damages  for  injuries  which  are  also 
crimes. — In  some  jurisdictions  it  is  held  that  the  doctrine 
of  exemplary  damages  does  not  apply  to  actions  for 
wrongs  which  are  also  criminal  offenses,  on  the  ground 
that  the  defendant  should  not  be  twice  punished  for  the 
same   offense.C)     In   North  Carolina  and  Texas,   evi- 

(")  Huftalin  v.  Misner,  70  111.  55. 

C")  Brown  v.  Evans,  8  Sawy.  488 ;  Grable  v.  Margrave,  4  111.  372  ;  Jacobs 
V.  L.  &  N.  R.R.  Co.,  10  Bush  263  ;  Sloan  v.  Edwards,  61  Md.  89 ;  M'Carthy 
V.  Niskern,  22  Minn.  90 ;  Peck  v.  Small,  35  Minn.  465 ;  Whitfield  v.  West- 
brook,  40  Miss.  311  ;  Buckley  v.  Knapp,  48  Mo.  152  ;  Belknap  v.  B.  &  M. 
R.R.  Co.,  49  N.  H.  358 ;  Johnson  v.  Allen,  100  N.  C.  131 ;  Hayner  v.  Cowden, 
27  Oh.  St.  292 ;  McBride  v.  McLaughlin,  5  Watts  375  ;  Dush  v.  Fitzhugh,  2 
Lea  307 ;  Rea  v.  Harrington,  58  Vt.  181  ;  Harman  v.  Cundiff,  82  Va.  239 ; 
Birchard  v.  Booth,  4  Wis.  67 ;  Meibus  v.  Dodge,  38  Wis.  300 ;  Winn  v. 
Peckham,  42  Wis.  493 ;  Brown  v.  Swineford,  44  Wis.  282 ;  Lavery  v.  Crooke, 
52  Wis.  612 ;  Hare  v.  Marsh,  61  Wis.  435  ;  Spear  v.  Hiles,  67  Wis.  350 ;  but 
contra,  Guengerech  v.  Smith,  34  la.  348. 

(«)  MuUin  V.  Spangenberg,  112  111.  140;  Rea  t/.  Harrington,  58  Vt.  181. 

C)  Johnson  v.  Smith,  64  Me.  553.  (•)  Grable  v.  Margrave,  4  111.  372. 

0  Murphy  v.  Hobbs,  7  Col.  541 ;  Huber  v.  Teuber,  3  McA.  484  ;  Cherry 
V.  McCall,  23  Ga.  193 ;  Taber  v.  Hutson,  5  Ind.  322  ;  Butler  v.  Mercer,  14 
Ind.  479 ;  Nossaman  v.  Rickert,  18  Ind.  350 ;  Humphries  v.  Johnson,  20  Ind. 
190 ;  Meyer  v.  Bohlfing,  44  Ind.  238 ;  Ziegler  v.  Powell,  54  Ind.  173 ;  Stew- 
art V.  Maddox,  63  Ind.  51  ;  Farman  v.  Lauman,  73  Ind.  568;  Austin  v.  Wil- 
son, 4  Cush.  273 ;  Fay  v.  Parker,  53  N.  H.  342, 


§  386.  FOR   INJURIES    WHICH    ARE   CRIMES.  545 

dence  of  a  conviction  and  fine  paid  may  be  given  for 
the  purpose  of  mitigating  exemplary  damages,  but  does 
not  bar  the  claim  altogether  as  a  matter  of  law ;  (*)  in 
Quebec  it  is  an  absolute  bar  to  exemplary  damages.  ('') 
Everywhere  else  it  is  held  that  the  fact  that  the  defendant 
is  liable  to  a  criminal  prosecution  or  has  actually  paid  a 
fine  to  the  State  can  neither  bar  nor  mitigate  exemplary 
damages.  (°) 

In  the  case  of  Fry  v.  Bennett,('*)  which  was  an  action 
of  libel,  Mr.  Justice  Hoffman  maintained,  with  much 
force,  that  there  was  a  clear  difference  between  the  partic- 
ular injury  to  the  plaintiff  (independently  of  his  pecuniary 
damage)  by  the  defendant's  wrongful  act,  and  the  injury 
caused  by  the  same  act  to  society  at  large,  contending 
that  penalties  for  each,  although  both  pecuniary,  might  be 
inflicted  without  injustice  to  the  defendant. 

In  Illinois  an  attempt  was  made  at  one  time  to  distin- 
guish between  exemplary  and  punitive  damages,  and  to 
hold  that  the  former  can,  but  the  latter  cannot,  be  given 
where  the  act  is  punishable  as  a  crime.  (")     The  attempted 

(■)  Smithwick  v.  Ward,  7  Jones  L.  64 ;  Johnston  v.  Crawford,  62  N.  C. 
(Phillips)  342 ;  Sowers  v.  Sowers,  87  N.  C.  303 ;  Flanagan  v.  Womack,  54 
Tex.  45 ;  Shook  v.  Peters,  59  Tex.  393. 

0")  Guest  V.  Macpherson,  3  Leg.  News  84. 

(■=)  Brown  v.  Evans,  8  Sawy.  488  ;  Phillips  v.  Kelly,  29  Ala.  628  ;  Wilson  v. 
Middleton,  2  Cal.  54  ;  Bundy  v.  Maginess,  76  Cal.  532  ;  Jefferson  v.  Adams, 
4  Harr.  321  ;  Smith  v.  Bagwell,  19  Fla.  117 ;  Hendrickson  v.  Kingsbury,  21 
la.  379 ;  Garland  v.  Wholeham,  26  la.  185  ;  Guengerich  v.  Smith,  36  la.  587 ; 
Reddin  v.  Gates,  52  la.  210;  Chiles  v.  Drake,  2  Met.  (Ky.)  146;  Slater  7/. 
Sherman,  5  Bush  206;  Johnson  v.  Smith,  64  Me.  553  ;  Elliott  v.  Van  Buren, 
33  Mich.  49;  Boetcher  v.  Staples,  27  Minn.  308;  Wheatley  v.  Thorn,  23 
Miss.  62  ;  Corwin  v.  Walton,  18  Mo.  71  ;  Cook  v.  Ellis,  6  Hill  466;  Sowers 
V.  Sowers,  87  N.  C.  303 ;  Roberts  v.  Mason,  10  Oh.  St.  277 ;  Barr  v.  Moore, 
87  Pa.  385  ;  Wolff  V.  Cohen,  8  Rich.  L.  144;  Cole  v.  Tucker,  6  Tex.  266; 
Edwards  v.  Leavitt,  46  Vt.  126  ;  Klopfer  v.  Bromme,  26  Wis.  372  ;  Brown  v. 
Swineford,  44  Wis.  282  ;  Corcoran  v.  Harran,  55  Wis.  120. 

(f)  4  Duer  247. 

(«)  Freese  v.  Tripp,  70  111.  496;  Meidel  v.  Anthis,  71  111.  241. 
Vol.  I.— 35 


54^  EXEMPLARY    DAMAGES.  §  387. 

distinction  was,  however,  as  will  _be  seen  from  cases  al- 
ready cited,  immediately  abandoned  by  the  court. 

§  387.  Relations  of  court  and  jury  in  awarding  exemplary 
damages. — Whether  there  is  any  evidence  to  justify  the 
assessment  of  exemplary  damages  is  a  question  for  the 
court,  and  if  there  is  none,  it  is  error  to  submit  the  ques- 
tion of  exemplary  damages  to  the  jury.('')  Where  there 
is  evidence  of  circumstances  sufficient  to  uphold  a  verdict 
for  exemplary  damages,  the  question  whether  they  shall 
be  given  or  not  is  one  for  the  jury ;  (^)  and  it  is  error  to 
instruct  the  jury  to  give  exemplary  damages,  for  the  plain- 
tiff can  never  claim  them  as  a  matter  of  law.C)  So  it  is 
error,  when  the  facts  are  in  dispute,  to  instruct  the  jury 
that  "  this  is  one  of  the  cases  where  they  may  give  exem- 
plary damages."(*)  It  is,  however,  held  in  Iowa  that  the 
Civil  Damage  Act  gives  the  plaintiff  a  right  to  exemplary 
damages,  and  the  court  should  therefore,  in  a  proper  case, 
instruct  the  jury  to  give  them.(^) 

In  Wisconsin,  in  a  case  of  assault  and  battery,  an  in- 
struction to  the  jury  that  "  if  the  assault  was  committed 
in  an  insulting  manner,  wilfuly  and  maliciously,  with  an 

(•)  Selden  v.  Cashman,  20  Cal.  56 ;  Chicago,  S.  L.  &  N.  O.  R.R.  Co.  v. 
Scurr,  59  Miss.  456 ;  Rose  v.  Story,  i  Pa.  St.  190  ;  Amer  v.  Longstreth,  10 
Pa.  St.  145  ;  Pittsburgh  S.  Ry.  Co.  v.  Taylor,  104  Pa.  306  ;  Phila.  Trac- 
tion Co.  V.  Orbann,  119  Pa.  37  ;  Bradshaw  v.  Buchanan,  50  Tex.  492. 

C")  Pratt  V.  Pond,  42  Conn.  318  ;  Dye  v.  Denham,  54  Ga.  224;  Johnson  v. 
Smith,  64  Me.  553  ;  Smith  z/.  Thompson,  55  Md.  5  ;  Chicago,  S.  L.  &  N.  O. 
R.R.  Co.  V.  Scurr,  59  Miss.  456  ;  Graham  v.  Pacific  R.R.  Co.,  66  Mo.  536  ; 
Nagle  V.  Mullison,  34  Pa.  48. 

C)  Hawk  V.  Ridgway,  33  111.  473 ;  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Rector. 
104  111.  296;  Louisville  &  N.  R.R.  Co.  v.  Brooks,  83  Ky.  129;  Southern 
R.R.  Co.  V.  Kendrick,  40  Miss.  374 ;  N.  O.,  St.  L.  &  C.  R.R.  Co.  v.  Burke, 
S3  Miss.  200  ;  Jerome  v.  Smith,  48  Vt.  230 ;  Boardman  v.  Goldsmith,  48  Vt. 
403  ;  Snow  V.  Carpenter,  49  Vt.  426.     But  contra,  Mayer  v.  Duke,  72  Tex. 

445- 

('')  Pickett  V.  Crook,  20  Wis.  358. 

(»)  Fox  V.  Wunderlich,  64  la.  187  ;  Thill  v.  Pohlman,  76  la.  638. 


§  388.     POWER  OF  JURY  OVER  AMOUNT  OF.        547 

intent  to  injure  the  plaintiff's  feelings,  and  disgrace  him 
in  the  estimation  of  the  public,"  they  ought  to  give  puni- 
tory damages,  was  held  not  to  be  error. (")  On  the  other 
hand,  the  jury  must  not  be  restricted  by  a  direction  not 
to  give  exemplary  damages,  if  they  believe  from  the  evi- 
dence that  the  defendant's  trespass  was  malicious. C") 

§  388.  Power  of  the  jury  over  the  amount  of  exemplary 
damages— Power  of  the  court. — The  amount  of  exemplary 
damages  is  entirely  within  the  discretion  of  the  jury.(°) 
But  where  the  highest  value  of  a  house  torn  down  and 
removed  by  the  defendant,  testified  to  by  any  witness, 
was  $250,  and  the  court  instructed  the  jury  that,  if  they 
found  it  a  case  for  exemplary  damages,  they  might  find 
a  verdict  for  any  amount  not  exceeding  the  sum  laid 
in  the  declaration,  which  was  $2,000,  and  the  jury  found 
a  verdict  for  $567,  it  was  set  aside  on  the  ground  that 
this  instruction  might  have  wrongly  influenced  them  as 
to  the  amount  of  damages,  as  a  verdict  for  the  amount 
laid  in  the  declaration  would  have  warranted  the  infer- 
ence of  prejudice,  partiality,  or  corruption  on  their 
part.(*)  An  instruction  that  they  might  give  such  dam- 
ages as  would  satisfy  the  highly  excited  feelings  of  the 
plaintiff  was  held  erroneous.  (*) 

The  verdict  can  be  set  aside  by  the  court  only  when 
it  is  grossly  excessive,  or  evidently  actuated  by  passion, 
prejudice,   or   undue    influence. (^)     The   case   of  New 


(")  Hooker  v.  Newton,  24  Wis.  292. 

(>>)  Devaughn  v.  Heath,  37  Ala.  595. 

C)  C.  R.R.  Qo.v.  Scurr,  59  Miss.  456;  Borland  v.  Barrett,  76  Va.  128. 

(■>)  Br>-an  v.  Acee,  27  Ga.  87  ;  Willis  v.  McNeill,  57  Tex.  465. 

(«)  Jones  V.  Turpin,  6  Heisk.  181. 

(0  Flannery  7/.  B.  &  O.  R.R.  Co.,  4  Mack,  in  ;  Cutler  v.  Smith,  57  111.  252; 
Farwell  v.  Warren,  70  111.  28 ;  Collins  v.  Council  Bluffs,  35  la.  432 ;  Goetz 
V.  Amjjs,  27  Mo.  28  ;  Borland  v.  Barrett,  76  Va.  128  ;  Rogers  v.  Henry,  32 
Wis.  3^7. 


548  EXEMPLARY   DAMAGES.  ^  388. 

Orleans,  J.  &  G.  N,  R.R.  Co.  v.  Hurst  (")  would  seem 
to  carry  the  principle  of  exemplary  damages  to  its  ex- 
treme limit.  The  jury  having,  in  that  case,  found  a  ver- 
dict of  $4,500  against  a  railroad  company  for  the  miscon- 
duct of  a  conductor  in  carrying  the  plaintiff  four  hundred 
yards  beyond  the  station,  and  refusing  to  return,  so  that,  to 
avoid  being  taken  to  the  next  station,  he  had  to  walk  back, 
carrying  his  valise,  the  court,  while  regretting  the  rigor  of 
the  jury,  refused  to  set  aside  the  verdict,  saying  that  the  law 
in  such  cases  furnished  "no  legal  measurement  save  their 
•discretion."  In  this  case,  we  think,  with  deference,  that 
the  verdict  might  with  great  propriety  have  been  set  aside. 
The  amount  warranted  the  presumption  of  undue  bias. 

In  Louisiana,  in  cases  proper  for  exemplary  damages, 
the  jury  are  still  under  the  control  of  the  court  in  re- 
gard to  the  extent  to  which  they  may  go,  and,  in  an 
action  for  malicious  arrest  and  imprisonment,  the  court 
said  :  "  Exemplary  damages  should  nevertheless  be  com- 
mensurate to  the  nature  of  the  offense,  and  when  extrav- 
agant damages  are  allowed,  they  will  be  reduced  to  their 
proper  standard."(^) 

The  power  of  the  court  to  set  aside  a  verdict  for  ex- 
emplary damages  is  the  same  power,  and  is  exercised 
upon  the  same  principle,  as  in  any  case  of  excessive  ver- 
dict.(°)  Its  effect  upon  the  allowance  of  exemplary  dam- 
ages is  to  prevent  the  severe  and  arbitrary  consequences 
that  might  otherwise  result  from  the  doctrine,  and  so  to 
meet  the  principal  objection  to  the  allowance  of  exem- 
plary damages:  namely,  that  it  gives  the  jury  an  arbitrary 
and  unrestricted  power  over  the  property  of  defendants. 


(»)  36  Miss.  660. 

C)  Burkett  v.  Lanata,  15  La.  Ann.  337;  ace.  Fitzgerald  ».  Boulat,  13  La. 
Ann.  116. 

(•)  See  chapter  upon  Powers  of  Court  and  Jury. 


CHAPTER  XII. 


LIQUIDATED   DAMAGES. 


§389- 

390- 
391- 
392- 
393. 


394- 

395- 
396. 
397- 
398. 

399- 
400. 
401. 
402. 

403- 
404. 
405. 
406. 
407. 

408. 

409. 
410, 


Amount  of  damages  stipulated 
by  the  parties. 

Debt  on  bond. 

Damages  within  the  penalty. 

Assignment  of  breaches. 

Only  the  plaintiff's  actual  loss 
recoverable  under  the  pen- 
alty. 

Liquidated  damages  and  pen- 
alty. 

Classification  of  the  subject. 

General  observations. 

Early  English  cases. 

Leading  cases — Astley  v.  Wel- 
don, 

Kemble  v.  Farren. 

Early  New  York  cases. 

Dakin  v.  Williams. 

Tayloe  v.  Sandilbrd. 

Streeper  v.  Williams. 

Bagley  v.  Peddie. 

General  rule. 

Intent  of  the  parties. 

The  liquidation  must  be  rea- 
sonable. 

Language  not  conclusive — 
Rule  in  case  of  doubt. 

Rules  of  interpretation. 

Penal  sum  collateral  to.  object 
of  contract. 


§411.  Stipulated    sum  for  non-pay- 
ment of  smaller  sum. 

412.  Stipulated    sum    not    propor- 

tioned to  injury. 

413.  One  sum  stipulated  for  breach 

of  contract  securing  several 
things. 

414.  Deposit  to  be  forfeited  on  de- 

fault. 

41 5.  Contracts  performed  in  part. 

416.  Stipulated  sum   in  liquidation 

of  uncertain  damage. 

417.  Breach  of  contract  of  sale. 

418.  Of  agreement  not  to  carry  on 

business. 

419.  For  delay  in  completing  per- 

formance. 

420.  Stipulations  to  evade  the  usury 

laws. 

421.  Alternative  contracts — Rule  of 

beneficial  alternative. 

422.  Deverell  v.  Bumell. 

423.  Ordinary  rule. 

424.  General  conclusions  as  to  al- 

ternative contracts. 

425.  Stipulation  of  damages  strictly 

construed. 

426.  Consequences    of    liquidating 

damages. 

427.  Civil  law. 


§  389.  Amount  of  damages  stipulated  by  the  parties. — 
We  now  come  to  a  class  of  cases  where  the  contracting 
parties  fix  or  liquidate  the  amount  that  shall  furnish  the 
measure  of  compensation  in  case  of  non-fulfilment  of 
the  agreement,  either  in  the  shape  of  a  penalty  or  of 

(549) 


550  LIQUIDATED   DAMAGES.  §  390. 

Stipulated  damages.  *  The  questions  arising  under  this 
branch  of  our  subject  were  formerly  generally  presented 
in  one  of  the  two  common-law  actions  known  as  debt 
and  covenant ;  but  we  shall  endeavor  to  consider  the 
matter  at  large,  without  confining  ourselves  strictly  to 
either  of  these  technical  forms. 

At  the  same  time,  it  is  impossible  altogether  to  dis- 
miss them  from  view.  The  common-law  action  of  debt 
was  applicable  in  all  cases  where  a  sum  certain  was  due, 
whether  the  contract  was  by  parol,  under  seal,  or  of  rec- 
ord ;  while  covenant  was  the  remedy  for  breaches  of  all 
contracts  under  seal,  whether  for  sums  certain  or  uncer- 
tain. And  owing  to  this  arbitrary  division  of  actions, 
the  rules  of  damages  still  conform  in  many  cases  rather 
to  the  remedy  than  the  right ;  we  must,  therefore,  not 
lose  sight  of  this  technical  distinction. 

§  390.  Debt  on  bond. — Of  all  forms  of  debt,  that  of 
debt  on  bond  was  the  most  frequent.  In  the  early 
periods  of  our  jurisprudence  debt  was  the  common  ac- 
tion for  goods  sold  and  delivered,  and  for  work  and 
labor  done ;  but  it  was  subsequently  to  a  great  extent 
superseded  by  the  proceeding  in  assumpsit.' 

It  is  true,  as  a  general  rule,  that  in  the  action  of  debt, 
which  was  brought  for  the  recovery  of  a  sum  certain,  no 
damages  could  be  claimed  on  account  of  the  debt  itself, 
this  being  recoverable  in  numero ;  but  damages  were 
given  on  account  of  the  detention  of  the  debt.  In  an 
action  of  debt  on  bond,  therefore,  only  nominal  damages 
were  assessed,  nor  was  it  in  general  necessary  to  have 
them  assessed  to  the  amount  even  of  what  was  due  for 
interest,  because,  as  under  the  verdict,  the  plaintiff  was 
entitled  to  the  whole  penalty ;  this,  which  is  double  the 

'  Rudder  v.  Price,  i  H.  Bl.  547. 


§  390'  DEBT    ON    BOND.  55 1 

sum  mentioned  in  the  condition,  was  usually  sufficient  to 
cover  what  was  due  for  interest. 

The  form  of  the  obligation  or  bond  of  the  English  law 
is  technical  and  peculiar.  The  obligor  binds,  or  obliges 
himself  to  pay  a  certain  sum  of  money,  at  a  certain  time, 
to  the  obligee.  This,  if  under  seal,  would  be  a  single 
bond,  or  simplex  obligatio ;  and  would  only  differ  from 
a  note,  in  being  under  seal,  and  not  negotiable.  But  in 
the  bond  we  find  a  clause  appended,  declaring  that  the 
previous  obligation  shall  be  void  on  the  payment  of 
some  lesser  sum  of  money,  or  the  performance  of  some 
particular  act.  The  latter  part,  or  condition,  of  the  bond, 
is  that  which  discloses  the  real  nature  of  the  contract, 
and  contains  its  essence  ;  the  former  part  is  the  penalty} 
Penal  obligations  are  well  known  to  other  systems  of  law 
besides  our  own  ;*  but  the  precise  form  of  contract  by 
which  an  absolute  obligation  is  at  first  declared,  and  this 
converted  into  a  mere  penalty  by  the  addition  of  a  sub- 
sequent condition,  is  entirely  peculiar  to  the  English  law. 

From  this  form  of  obligation  or  contract,  various  re- 
sults, flowing  from  the  technical  rules  of  the  common 
law,  were  deduced  by  the  founders  of  our  jurisprudence. 
If  the  condition  was  not  strictly  complied  with,  as  in 
regard  to  the  payment  of  money  on  a  day  certain,  the 
moment  the  day  was  passed  the  penalty  became  the  debt, 
and  was  at  law  recoverable ;  and  neither  payment  nor 
tender  after  the  day  would  avail,  because  a  condition 
once  broken  was  gone  forever.  If  the  condition  were  to 
do  anything  other  than  pay  money,  and  were  not  ful- 
filled, the  penalty  again  became  the  debt,  and  was  recov- 
erable without  any  reference  whatever  to  the  actual 
damages  incurred.    Hence  many  difficulties  arose.    Lord 

'  Black.  Com.  ii,  ch.  20,  p.  340.  '  Pothier,    Traitfe    des    Obligations, 

part  ii,  ch.  v,  des  Obligation  Pgnales. 


552.  LIQUIDATED    DAMAGES.  §  39 1. 

Kaimes  says,'  that  the  bond  was  introduced  originally  to 
evade  the  common  law  of  England,  which  prohibited 
the  taking  interest  for  money.  Whatever  reason  led  to 
its  introduction,  certain  it  is,  that  its  peculiar  form  has 
occasioned  infinite  doubt  and  contradiction.** 

§  391.  Damages  within  the  penalty. — *  The  action  of 
debt,  as  has  been  said,  was  the  usual  remedy  provided  by 
the  common  law  for  the  recovery  of  a  sum  certain.  And 
in  an  action  of  debt  for  condition  broken,  the  amount  of 
the  plaintiffs  recovery  was  originally,  as  has  also  been 
said,  the  penalty ;  nor  could  the  action  be  relieved 
against,  either  by  payment  or  tender :  no  defense  would 
avail  but  a  release  under  seal.  And  this  severe  rule  of 
the  common  law  was  only  mitigated  by  the  practice  of 
the  courts  of  chancery,  which  interposed,  and  would  not 
allow  a  man  to  take  more  than  in  conscience  he  ought." 
It  became  early  settled  in  equity,  that  the  condition  of 
the  bond  was  the  agreement  of  the  parties,  and  as  such 
the  obligor  was  relieved  from  the  penalty."  Lord  Somers 
said,*  "  that  where  the  party  might  be  put  in  as  good  a 
plight  as  where  the  condition  itself  was  literally  per- 
formed, there  the  Court  of  Chancery  would  relieve, 
though  the  letter  of  it  were  not  strictly  performed,  as 
payment  of  money,  etc.  But  where  the  condition  was 
collateral  and  in  recompense,  and  no  value  could  be  put 
on  the  breach  of  it,  then  no  relief  could  be  had  for  the 
breach  of  it."  This  practice  was  followed  by  the  com- 
mon-law tribunals,  which  ordered  the  proceedings  to  be 

'  Prin.  of  Equity,  book  iii,  ch.  ii,  p.  kyns   v.  Watkyns,  2  Atk.  96  ;  Bishop 

279-  V.  Church,  3  Atk.  691  ;  Parks  v.  Wil- 

'■'  Black.  Com.  book  ii,  ch.  20,  p.  341.  son,  10  Mod.  515  ;  Hobson  v.  Trevor, 

For  cases  of  this  description  in  chancery,  2  P.  Wms.  191  ;  Chilliner  v.  Chilliner, 

see  Hale  v.  Thomas,  i  Vern.  349,  and  2  Ves.   528  ;  Collins  v.  Collins,  2  Burr. 

Stewart  v.  Rumball,  2  Vern.  509 ;  also,  820.     See  Pothier,  by  Evans,  on   Pe- 

Duvall  V.  Price,  Show.   Par.  Cas.  15;  nal   Obligations,  appendix,  and    Fon- 

Bond  and  Penalty,  Abr.  Eq.  91,  92.  blanque's  Treatise  on  Equity. 

'  Acton  V.  Peirce,  2  Vern.  480  :  Can-        *  Prec.  in  Ch.  487. 
nel   V.    Buckle,  2  P.  Wms.  243  ;  Wat- 


§  391'  DAMAGES    WITHIN    THE   PENALTY.  553 

Stayed  upon  bringing  into  court  the  principal  debt, 
interest,  and  costs.'  Finally,  this  discretionary  power 
was  confirmed  by  a  statutory  regulation,  which  provided 
that  in  actions  on  bonds  with  penalties,  the  defendant 
might  bring  in  the  principal  debt,  interest,  and  costs, 
and  be  discharged.' 

This  legislation  was  followed  in  this  country.  In  New 
York,'  it  was  declared  that,  in  actipns  on  penalty  bonds, 
the  plaintiff  might  plead  payment  of  the  debt  made  be- 
fore suit  brought,  though  not  according  to  the  condi- 
tion ;  and  that  after  suit  brought,  the  defendant  might 
bring  debt,  principal,  and  costs  into  court,  and  that 
thereupon  the  action  should  be  discontinued.  Speaking 
of  the  English  original  of  this  statute.  Lord  Mansfield 
said  : ' 

"That  it  was  made  to  remove  the  absurdity  which  Sir  Thomas 
More  unsucessfully  attempted  to  persuade  the  judges  to  remedy 
in  the  reign  of  Hen.  VII.;  for  he  summoned  them  to  a  conference 
concerning  the  granting  relief  at  law,  after  the  forfeiture  of 
bonds,  upon  payment  of  principal,  interest,  and  costs,  and  when 
they  said  they  could  not  relieve  against  the  penalty,  he  swore  by 
the  body  of  God  he  would  grant  an  injunction." 

And  in  another  case,'  he  said  : 

"  It  was  extraordinary  that  after  it  was  settled  in  equity  that 
the  forfeiture  might  be  saved  by  the  performing  the  intent,  and 
that  this  was  the  nature  of  a  bond,  the  courts  of  law  did  not 
follow  equity,  but  still  continued  to  do  injustice  as  of  course,  and 
put  the  parties  to  the  delay  and  expense  of  setting  it  right  else- 
where as  of  course." « 

'  Gregg's  Case,  2  Salk.  596;  Anon.  6  13,  superseded  by  the  provisions  of  the 

Mod.    11  ;    Butler   v.  Rolfe,  Ibid.  25;  Code  Civ.  Proc,  §  1915. 

Anon.  Ibid.  29  ;  Burridge  v.  Fortescue,  *  Wylliez/.  Wilkes,  2  Doug.  519. 

Ibid.  60,  and  Ireland's  Case,  Ibid.  loi.  '  Bonafous  v.   Rybot,  3  Burr.  1370, 

In   Burridge    v.   Fortescue,  the   court  1374. 

said:  "  It  is  an  equitable  motion,  to  be  "In  this  last  case  it  was  held  that 

relieved  against  the  penalty."  bonds    conditioned    for    payment    of 

^  4  and  5  Anne,  ch.  16,  §§  12  and  13.  money  by  instalments  were  within  the 

'  Rev.  Stat.  vol.  ii,  p.  353,  §§  12  and  act  of  4  Anne. 


554  LIQUIDATED    DAMAGES.  §392- 

§  392.  Assignment  of  breaches. — Notwithstanding  this 
statute,  however,  it  is  apparent  that  great  injustice  might  be 
committed,  because  the  plaintiff  was  entitled  to  judgment 
for  the  whole  amount  of  the  penalty,  and  the  defendant 
could  only  be  discharged  by  addressing  himself  to  the 
equitable  consideration  of  the  court.  Hence  was  imposed 
the  obligation  to  assign  breaches.  By  a  statute  enacted 
at  nearly  the  same  time,'  it  was  declared  "  that  in  all  ac- 
tions, etc.,  upon  any  bond  or  bonds,  or  on  any  penal  sum 
for  non-performance  of  any  covenants  or  agreements  in 
any  indenture,  deed,  or  writing  certain,  the  plaintiff  or 
plaintiffs  may  assign  as  many  breaches  as  he  or  they  shall 
think  fit ;  and  the  jtiry,  upon  trial  of  such  action  or  ac- 
tions, shall  and  may  assess,  not  only  such  damages  and 
costs  of  suit  as  have  heretofore  been  usually  done  in  such 
cases,  but  also  damages  for  such  of  said  breaches  so  to  be 
assigned  as  the  plaintiff  on  the  trial  of  the  same  shall 
prove  to  have  been  broken."  The  language  here  is,  that 
the  plaintiff  may  assign  breaches ;  but  it  was  settled  that 
the  statute  was  compulsory,'  and  that  a  judgment  obtained 
under  the  former  practice  of  the  common  law  was  bad  in 
error.  In  the  case  last  cited,  Lord  Kenyon  and  Mr.  J. 
Duller  said : 

"It  is  apparent  to  us  that  the  law  was  made  in  favor  of  defend- 
ants, and  is  highly  remedial,  calculated  to  give  plaintiffs  relief 
up  to  the  extent  of  the  damage  sustained,  and  to  protect  defend- 
ants against  the  payment  of  further  sums  than  what  is  in  con- 
science due  ;  and  also  to  take  away  the  necessity  of  proceedings 
in  equity  to  obtain  relief  against  an  unconscientious  demand  of 
the  whole  penalty  in  cases  where  small  damages  only  had 
accrued." 

And  it  was  accordingly  held,  that  the  plaintiff  must 

'  8  and  9  Will.  III.  ch.  xi,  g  8.  '  Roles  v.  Rosewell,  5  T.  R.  538,  and 

Hardy  v.  Bern,  Ibid.  636. 


§  393-  ONLY  plaintiff's  actual  loss  recoverable.    555 

assign  breaches,  and  that  the  jury  must  assess  the  dam- 
ages. 

The  principles  of  this  act  were  engrafted  upon  the  legis- 
lation of  this  country.     In  New  York  it  was  provided  : ' 

"  When  an  action  shall  be  prosecuted  in  any  court  of  law,  upon 
any  bond,  for  the  breach  of  any  condition  other  than  for  the  pay- 
ment of  money,  or  shall  be  prosecuted  for  any  penal  sum  for  the 
non-performance  of  any  covenant  or  written  agreement,  the 
plaintiff  in  his-  declaration  shall  assign  the  specific  breaches  for 
which  the  action  is  brought. 

"Upon  the  trial  of  such  action  if  the  jury  find  that  any  assign- 
ment of  such  breaches  is  true,  and  that  the  plaintiff  should  re- 
coyer  damages  therefor,  they  shall  assess  such  damages,  and 
shall  specify  the  amount  thereof  in  thetr  verdict,  in  addition  to 
their  finding  upon  any  other  question  of  fact  submitted  to  them. 

"  In  every  such  action,  if  the  plaintiff  recover,  the  verdict  of 
the  jury  assessing  the  plaintiff's  damages  shall  be  entered  on  the 
record,  and  judgment  shall  be  rendered  for  the  penalty  of  the 
bond,  or  for  the  penal  sum  forfeited  as  in  other  actions  of  debt, 
together  with  costs  of  suit  ;  and  with  a  further  judgment  that 
the  plaintiff  have  execution  to  collect  the  amount  of  the  damages 
so  assessed  by  the  jury,  which  damages  shall  be  specified  in  such 
judgment." 

§  393-  Only  the  plaintiffs  actual  loss  recoverable  under 
the  penalty.— These  two  statutes  together  produced  this 
reasonable  and  equitable  result,  that  in  the  case  of  an 
agreement  to  do  or  refrain  from  doing  any  particular  act 
secured  by  a  penalty,  the  amount  of  the  penalty  was  in 
no  sense  the  measure  of  compensation  ;  and  the  plaintiff 
must  show  the  particular  injury  of  which  he  complains, 
and  have  his  damages  assessed  by  the  jury.  It,  there- 
fore, became  a  settled  rule  that  no  other  sum  can  be  re- 
covered under  a  penalty,  than  that  which  shall  compen- 
sate the  plaintiff  for  his  actual  loss.(*) 

'  Revision  of  1813  (R.  Laws,  vol.  i,     seded  in  New  York  by  the  provisions 
p.  518),  and  Revised  Statutes,  vol.  ii,  p.     of  tlie  Code  Civ.  Proc,  §  1915. 
300,  2d  ed.  ;  378,  ist  ed.     Now  super- 

(»)  Consequently  where  ajudgment  has  been  recovered  in  one  State  for  the 


556  LIQUIDATED    DAMAGES,  §394- 

In  the  action  of  debt  on  bond,  however,  judgment  still 
goes  for  the  penalty,  owing  to  the  technical  rule,  that  in 
this  action  the  entire  sum  is  demanded,  and  the  penalty- 
is  the  debt,  according  to  the  express  terms  of  the  instru- 
ment ;  this,  however,  is  corrected  by  the  practice  which 
forbids  the  execution  to  issue  for  more  than  the  sum 
really  due.** 

§  394.  Liquidated  damages  and  penalty.— In  speaking 
of  the  subject  of  damages  with  regard  to  the  action  of 
debt  on  bond,  we  have  stated  that  the  peculiar  form  of 
that  instrument  fixes  a  penalty  subject  to  a  certain  con- 
dition. We  have  now  to  consider  the  same  matter  in 
another  sense. 

*  It  is  competent  for  parties  entering  upon  an  agree- 
ment to  avoid  all  future  questions  as  to  the  amount  of 
damages  which  may  result  from  the  violation  of  the  con- 
tract, and  to  agree  upon  a  definite  sum,  as  that  which 
shall  be  paid  to  the  party  who  alleges  and  establishes  the 
violation  of  the  agreement.'  In  this  case  the  damages  so 
fixed  are  termed  liquidated,  stipulated,  or  stated  dam- 
ages. ^  But  even  where  this  course  has  been  adopted,  and 
a  sum  certain  named  in  the  contract,  difficulty  has.  arisen 
as  to  whether  it  should  be  considered  as  such  liquidated 

'  A  provision  of  this  nature  has  and  is  familiarly  known  as  demur- 
been    engrafted    on    charter  -  parties,     rage. 


amount  of  the  penalty  of  a  bond,  a  plaintiff  suing  on  such  judgment  in  an- 
other State  can  recover  the  amount  of  damages  only  for  which  execution  was 
awarded  in  the  original  suit.  Battey  t/.  Holbrook,  11  Gray  212.  In  an  ac- 
tion of  debt  on  bond,  conditioned  for  the  support  of  the  plaintiff  and  her  hus- 
band during  their  lives,  it  was  held  that  damages  must  be  assessed  so  as  to 
cover  not  only  present  but  prospective  loss.  The  decision  being  based  on 
the  ground  that  as  the  bond  contained  no  covenant  and  there  could  be  but 
one  breach,  the  plaintiff  was  entitled  to  have  all  her  damages  assessed  on 
the  trial.     Philbrook  v.  Burgess,  52  Me.  271. 


§  395-  CLASSIFICATION    OF   THE    SUBJECT.  557 

damages,  or  only  as  a  penalty.'  It  being  settled  by  the 
courts,  both  of  equity  and  law,  that  a  penalty  was  only 
intended  as  a  security  for  the  principal  sum  due,  or  the 
actual  damages  sustained,  it  became  doubtful,  even  when 
a  definite  sum  was  named,  whether  the  parties  intended 
it  for  that  purpose,  or  whether  it  was  meant  as  liquidated 
damages,  behind  which  the  courts  could  not  go  ;  and  on 
this  subject  various  cases  have  been  decided. 

§  395-  Classificationofthesubject.— It  is  proper,  however, 
before  we  examine  these  cases,  to  notice  a  distinction  as 
to  the  way  in  which  the  question  presents  itself,  growing 
out  of  the  form  of  the  contract,  from  want  of  a  constant 
attention  to  which  part  of  the  confusion  has  arisen. 

First.  The  agreement  may,  in  the  first  place,  be  to  do 
or  refrain  from  doing  some  particular  act,  or  in  default 
thereof,  to  pay  a  given  sum  of  money  ;  and  this  was  well 
known  to  the  Roman  law.  So  the  imperial  legislator  ad- 
vises his  subjects  in  making  contracts  for  the  doing  of 
anything,  to  fix  the  amount  of  damages  by  inserting  a 
precise  stipulation  to' that  effect:  Non  solum  res  in  stip- 
ulationem  deduci  possunt,  sed  etiam  facta  :  ut  si  stipule- 
mur  aliquid  fieri  vel  non  fieri.  Et  in  hujusmodi 
stipulationibus  optimum  erit  poenam  subjicere,  ne  quan- 
titas  stipulationis  in  incerto  sit,  ac  necesse  sit  actori  pro- 
bare  quid  ejus  inter  sit.  Itaque  si  quis,  ut  fiat  aliquid, 
stipuletur  ita  adjici  poena  debet :  si  ita  factum  non  erit, 
tunc  posncz  nomine  decent  aureos  dare  spondes?  This,  as 
Lord  Kaims  clearly  points  out,'  is  properly  an  alternative 

'  The  word  penalty  is  in  this  contra-  section  7.    Vinnius,  in  his  commentar)' 

distinction   not  very  correct  or  signi-  on  this  section,  discusses  the  subject  of 

ficant ;  the  word  designates  a  sum  absj-  the  measure  of  damages,  and  its  neces- 

lutely  due  in  case  of  the  non-perform-  sary  uncertainty  in  many  cases  :  Est 

ance  of  an  agreement,  quite  as  clearly  vera  id  quod  interest  incertum   duflici 

as  the  phrase  liquidated  damages.     But  ratione,  ab  eventu  ipsius  rei,  et  a  proba- 

the  term  has  now  acquired   a  fixed  and  tione.     Vinn.  Comm.  p.  606. 

well-settled  technical  meaning.  "  Kaims'  Equity,  book  iii,  ch.  ii,  p. 

^  Inst.  lib.  iii,  tit.  xv,  de  Verb.  Oblig.  277. 


558  LIQUIDATED    DAMAGES.  §39^. 

obligation,  and  the  sum  stated  cannot  be  correctly  termed 
a  penalty. 

Secondly,  \\i&  agreement  may  assume  the  technical  form 
of  the  bond,  containing  a  declaration  of  an  absolute  in- 
debtedness in  a  given  sum,  conditioned  to  become  void 
on  the  payment  of  a  less  sum,  or  the  performance  of  some 
particular  act.  Here  there  is  no  express  promise  or 
undertaking  to  do  anything.  The  indebtedness  declared 
in  the  prior  part  of  the  instrument  is  not  intended  to  be 
binding.  The  promise  relied  on  is  contained  in  or  implied 
from  the  condition,  and  that  is  sanctioned  by  the  penalty. 
Thirdly,  the  agreement  may  bind  the  party  absolutely 
to  do,  or  refrain  from  doing,  the  particular  act,  and  then 
proceed  to  declare  that  if  the  promise  is  not  performed, 
the  party  stipulating  shall  pay  a  given  sum  of  money  as 
a  penalty. 

And  lastly,  the  agreement  may  in  all  respects  resemble 
the  last,  except  that  the  fixed  sum  may  be  declared  pay- 
able as  liquidated  or  stated  damages,  or  as  a  forfeiture. 

§  396.  General  observations. — Before  proceeding  to  ex- 
amine the  cases,  some  few  general  observations  may  be 
of  use  to  serve  by  way  of  introduction  and  illustration. 
Whenever  questions  of  the  nature  we  are  now  considering 
present  themselves,  the  attention  of  the  courts  is  mainly 
fixed  on  three  different  points :  First,  the  language  em- 
ployed ;  second,  the  subject-matter  of  the  contract ;  and 
third,  the  intention  of  the  parties.  These  are,  indeed,  the 
great  elements  of  interpretation  of  all  contracts.  But  in 
the  case  we  are  now  examining,  the  courts,  especially  in 
this  country,  have  generally  shown  a  marked  desire  to 
lean  toward  that  construction  which  excludes  the  idea  of 
liquidated  damages,  and  permits  the  party  to  recover 
only  the  damage  which  he  has  actually  sustained.  The 
language  of  the  contract  is  not  controlling. 


§  397-  EARLY    ENGLISH   CASES.  559 

And  such,  it  seems,  was  the  disposition  of  the  civil  law 
in  the  somewhat  analogous  case  of  the  stipulatio  duplex: 
Qua  scrupulositates  et  differentice  procedimt  propter  odi- 
ositatem  strictamque  naturam  stipulationis  duplce,  quce 
stricti  juris  est,  contra  quam  etiam  in  dzibio  fit  interpre- 
tatio.  Contra,  vera,  actio  ex  empto  bonce  fidei  est,  et 
etiam  favorabilis,  cum  non  competat  ad  veram  posnam, 
sed  subsistere  et  probari  oportet,  verum  et  jus  turn  inter- 
esse,  merito  in  ea  plenior fit  interpretation 

The  subject-matter  of  the  contract,  and  the  intention 
of  the  parties  are  the  controlling  guides.  If,  from  the 
nature  of  the  agreement,  it  is  clear  that  any  attempt  to 
get  at  the  actual  damage  would  be  difficult,  if  not  vain, 
then  the  courts  will  incline  to  give  the  relief  which  the 
parties  have  agreed  on.  But  if,  on  the  other  hand,  the 
contract  is  such  that  the  strict  construction  of  the  phrase- 
ology would  work  absurdity  or  oppression,  the  use  of  the 
term  liquidated  damages  will  not  prevent  the  courts  from 
inquiring  into  the  actual  injury  sustained,  and  doing  jus- 
tice between  the  parties.  (") 

§  397.  Early  English  cases. — The  earliest  notice  of  the 
general  subject  appears  to  be  in  Sir  Baptiste  Hixts'  case,' 
which  is  as  follows  : 

"  In  aa  action  of  covenant,  if  the  plaintiff  counts  that  in  an 
agreement  for  certain  lands  between  plaintiff  and  defendant,  the 
defendant  covenanted  that  if,  on  measurement,  there  was  not 
found  as  many  acres  as  the  defendant  had  stated  to  the  plaintiff 
at  the  time  of  sale,  he  would  repay  for  each  acre  wanting  _;^ii 

'  Dumoulin,  de  Eo  quod  Int.  §  123.      «  2  RoUe  Abr.  703,  tit.  Trial. 


(»)  It  is  to  be  observed  that  the  plaintiff,  as  well  as  the  defendant,  has  the 
right  to  show  that  the  stipulated  sum  is  a  penalty,  and  to  prove  the  actual 
damages,  though  they  are  greater  than  the  penalty.  In  other  words,  when 
the  performance  of  a  contract  is  secured  by  a  penalty  the  amount  of  damages 
upon  breach  is  not  limited  to  the  penalty.    Noyes  v.  Phillips,  60  N.  Y.  4p8. 


560  LIQUIDATED    DAMAGES.  §  397. 

per  acre,  and  avers  that,  on  measurement,  as  many  acres  were 
wanting  as  would,  at  ;^ii  per  acre,  amount  to  jQ^oo  ;  and  issue 
being  joined  whether  they  were  wanting,  and  the  jury  find  for 
the  plaintiff,  and  give  ^^400  damages,  this  issue  is  well  found  for 
the  plaintiff ;  for  although  it  were  found  that  all  the  acres  were 
wanting,  still  they  are  chancellors,  and  may  give  such  damages  as 
the  case  requires  in  equity,  inasmuch  as  the  whole  consists  in 
giving  damages." 

To  this  decision  we  have  already  referred,  as  being  strik- 
ingly illustrative  of  the  laxity  of  all  the  early  cases  on 
the  subject  of  compensation.' 

In  the  next  case  in  which  the  subject  was  discussed," 
the  plaintiff  had  executed  a  bond  in  ;^ioo  penalty  to  the 
Duke  of  Beaufort,  that  his  son  should  not  poach  on  the 
duke's  grounds  without  leave  from  the  gamekeeper,  or 
unless  in  company  with  a  qualified  person.  The  son 
afterward  fished ;  the  bond  was  put  in  suit,  the  penalty 
of  ;^ioo  recovered,  and  paid  by  the  plaintiff,  with  ^40 
costs  of  suit.  This  bill  was  filed  for  relief.  It  was  in- 
sisted that  the  bond  was  only  given  as  a  security  that  the 
son  should  not  poach  ;  but  Lord  Chancellor  Hardwicke 
said  :  "  It  is  most  absurd  to  think  that  bonds  of  this  kind 
were  intended  merely  as  a  security,"  and  asked :  "  In 
what  respect  is  the  gentleman  who  has  such  a  bond  in  a 
better  condition  than  he  was  before,  if  after  obtaining 
judgment  at  law,  a  court  of  equity  will  give  him  no  other 
satisfaction  than  the  bare  value  of  the  price  of  the  game 
that  is  killed  ? " 

'  In  a  subsequent  case,  Lowe  v.  writ  of  error.  How  could  the  quantum 
Peers,  4  Burr.  2225,  2229,  Lord  Mans-  of  damages  found  by  the  Jury  be  the 
field  said:  "As  to  the  case  mentioned  subject  of  a  writ  of  error?" 
by  Mr.  Mansfield,  from  RoUes  Abr.,  '  Roy  v.  The  Duke  of  Beaufort,  2 
it  is  impossible  to  support  it ;  for  Atk.  igo,  decided  in  1741.  But  on  the 
it  cannot  be  that  a  man  should  be  ground  tliat  an  ill  use  had  been  made 
obliged  to  take  less  than  the  liquidated  of  the  bond,  the  chancellor  relieved  the 
sum.  And  the  writ  of  error  in  that  plaintiff  against  the  verdict,  and  de- 
case  was  plainly  brought  by  the  de-  creed  the  duke  to  refund  the  ;^ioo  and 
fendant.  Besides,  the  damages  could  ;^4o  damages, 
never  be  taken  advantage  of  upon  a 


§  397-  EARLY   ENGLISH    CASES.  56 1 

In  a  case  before  the  same  great  judge,'  Aylet  had 
charged  certain  lands  by  his  will  with  an  amount  of  ten 
pounds  for  the  maintenance  of  a  school- master,  to  be 
paid  half-yearly ;  and  if  in  arrear  forty-two  days  after 
due,  5J.  per  week  were  allotted,  by  way  of  nomine  poencs. 
A  commission  of  charitable  uses  issued  from  chancery 
summoned  the  owner  of  the  land,  who  was  in  default, 
and  awarded  the  arrears  and  the  nomine  poence.  Excep- 
tion was  taken  that,  in  a  court  of  equity,  the  nomine 
pcerns  would  be  relieved  against  on  payment  of  the  actual 
arrears.  Lord  Chancellor  Hardwicke  said  that  the 
nomine  paence  should  stand,  according  to  the  intention 
of  the  parties,  as  a  security  for  the  legal  interest.  But 
he  went  on  to  say,  that  where  there  is  a  nom,ine  poence 
in  a  lease  to  prevent  the  tenant  from  breaking  up  pasture 
ground,  it  is  otherwise  ;  for  the  intention  there  is  to  give 
the  landlord  a  compensation  for  the  damage  sustained^ 
and  in  such  case  the  whole  nom.ine poena  shall  be  paid. 

And  so  in  a  subsequent  case,"  where  an  increased  rent 
was  declared  payable,  provided  land  should  be  plowed 
up,  the  agreement  was  held  conclusive  on  the  quantum 
of  damages." 

Again,*  where  a  bond  had  been  given  by  the  plaintiff 
Benson,  to  the  defendant,  a  hair  merchant,  as  a  security 
for  his  services ;in  Flanders  as  an  agent  to  buy  hair,  the 
plaintiff  was  to  stay  abroad  a  certain  time ;  and  as  se- 
curity for  his  performance  he  deposited  ;^ioo  with  the 
defendant.  The  plaintiff  bought  but  five  pounds'  worth 
of  hair,  and  returned  to  England  before  the  time  agreed 

■  Aylet  V.  Dodd,  2  Atk.  1%%,  decided  Lord  EUenborough,  at  Nisi  Prius,  said: 

in  the  same  year.  "  The   legal   construction  of  such  an 

'  Farrant  ■u.  Olmius,  3  B.  &  Aid.  692.  agreement  is  this  :  beyond  the  penalty 

'  But  in  Wilbeara  v.  Ashton,  I  Camp,  you  shall  not  go  ;  within  it,  you  are  to 

78,  where  assumpsit  was  brought  on  an  give  the  party  any  compensation  which 

agreement  to  serve  the  plaintiff  as  a  he  can  prove  himself  entitled  to." 

leather  dresser,  under  a  penalty  of  ;f  50,  *  Benson  v.  Gibson,  3  Atk.  395  (1647). 

Vol.  I.— 36 


562  LIQUIDATED    DAMAGES.  §  397* 

on.  The  bill  was  filed  for  ;^5o  per  annum,  agreed  to  be 
paid  by  the  defendant  to  the  plaintiff,  and  also  to  recover 
back  the  deposit.  It  was  insisted  that  the  plaintiff  had 
committed  a  breach,  that  the  ;^]Oo  was  stated  damages  ; 
and  the  previous  cases,  of  the  nomine  pcence  in  leases  and 
the  poaching  bond,  were  cited ;  but  Lord  Hardwicke 
said  that  this  was  a  bond  for  services  only,  and  refused 
to  decree  the  penalty,  but  directed  an  issue  of  quantum 
damnificatus. 

In  a  subsequent  case,'  the  plaintiff  demised  certain 
lands  in  Ireland,  for  three  lives,  at  the  yearly  rent  of 
£125,  with  a  condition,  that  if  the  tenant  should  not 
live  on  the  premises,  the  rent  should  be  raised  to  ;^i50. 
The  tenant  violated  the  condition  by  non-residence. 
The  landlord  distrained  ;  the  tenant  replevied  ;  the  land- 
lord avowed ;  and  while  the  proceedings  at  law  were 
going  on,  the  tenant  filed  his  bill  for  a  perpetual  injunc- 
tion. The  Irish  court  granted  an  injunction.  An  appeal 
was  taken  to  the  House  of  Lords,  where  it  was  insisted 
that  the  covenant  was  only  inserted  for  the  sake  of  im- 
provement, and  that  it  was  admitted  by  the  pleadings 
that  the  lands  had  been  kept  well  stocked,  and  that  the 
agreement  had  been  substantially  performed.  But  the 
bill  was  dismissed.  No  reason  being  assigned,  the  case 
is  altogether  unsatisfactory;  and  if  it  was  intended  to 
decide  that  the  covenant  should  be  considered  as  one  for 
stipulated  damages,  it  would  seem  incorrect. 

Again,'  where  the  appellant  Rolfe  demised  certain 
lands,  with  a  covenant  on  the  part  of  the  lessee,  that  if 
he,  during  the  term,  should  convert  into  tillage  any  part 
of  the  ancient  meadow  ground  that  had  not  been  in 
tillage  within  twenty  years,  or  if  he  should  plow  or  sow 

'  Ponsonby  v.  Adams,  2  Bro.  P.  C.        '  Rolfe  v.  Peterson,  2  Bro.  P.  C.  436, 
431,  case  35  (anno  1770).  case  42  (anno  1772). 


§  397-  EARLY    ENGLISH    CASES.  563 

out  of  course  any  of  the  arable  lands,  then  for  such  lands 
converted  or  sown  out  of  course  a  further  rent  of  ;^5 
should  be  paid.  There  were  other  covenants  against 
cutting  trees,  etc.  The  tenant  converted  certain  furze 
land,  which  had  not  been  tilled  within  twenty  years,  into 
tillage,  and  committed  breaches  of  the  other  covenants ; 
upon  which  the  landlord  brought  an  action  of  covenant, 
and,  default  being  made,  on  a  writ  of  inquiry  recovered 
;^300.  The  respondent  (the  tenant)  filed  a  bill  for  re- 
lief against  the  judgment ;  and  Lord  Chancellor  Camden 
directed  an  issue  of  quantum  damnificatus,  holding  that 
the  plaintiff  was  entitled  to  relief  against  the  judgment, 
on  making  a  just  and  adequate  satisfaction  for  the  dam- 
ages sustained  by  breach  of  the  covenant.  On  appeal  to 
the  House  of  Lords,  the  main  question  was  whether,  on 
an  action  of  covenant  by  landlord  against  lessee,  and 
damages  assessed  by  a  jury,  a  court  of  equity  has  juris- 
diction to  direct  an  issue  for  reassessing  those  damages. 
It  was  insisted  that  the  estate  had  been  really  benefited 
by  the  conversion  of  the  furze  land  into  tillage,  and  that 
the  £100  verdict  was  outrageous ;  but  the  Lords  re- 
versed the  decree,  and  dismissed  the  bill,  no  reason,  how- 
ever, being  assigned.  The  decision  plainly  turned  on 
the  jurisdiction  of  chancery,  and  so  far  seems  evidently 
right.  The  true  construction  of  the  contract,  whether  to 
be  regarded  as  a  penalty  or  liquidated  damages,  was  not 
passed  upon. 

Again,'  where  the  plaintiff  and  defendant  were  part- 
ners, and  the  plaintiff  had  given  the  defendant  a  bond  in 
a  penalty  of  ;^5oo  that  he,  the  defendant,  should  have 
the  use  of  a  particular  room,  the  use  of  it  being  refused, 
the  defendant  brought  suit  on  the  bond.  This  bill  was 
thereupon  filed,  praying  an  injunction,  and  an  issue  of 

'  Slomanw.  Walter,  I  Brown  Ch.  418. 


564  LIQUIDATED    DAMAGES.  §  397. 

quantum  damnificatus;  and  the  only  question,  on  a  mo- 
tion to  dissolve  the  injunction  before  hearing,  was 
whether  the  penalty  was  merely  intended  as  a  security 
for  the  use  of  the  room,  or  in  the  nature  of  assessed  dam- 
ages. Lord  Chancellor  Thurlow  held  that  it  belonged 
to  the  former  class,  and  the  injunction  was  retained.^ 

In  a  case  already  referred  to,'  the  defendant  had  made 
a  contract,  under  seal,  not  to  marry  any  person  besides 
the  plaintiff;  and  if  he  did,  to  pay  her  ;^i,ooo  within 
three  months  thereafter.  The  defendant  married  another 
woman,  and  this  suit  was  brought.  Under  the  direction 
of  Lord  Mansfield,  the  jury  found  a  verdict  for  the 
;^i,ooo.  On  a  motion  for  a  new  trial,  the  question  was 
raised,  whether  the  jury  could  give  more  or  less  damages 
than  the  ;^i,ooo;  and  it  was  insisted  for  the  defendant 
that  they  might,  if  they  saw  fit,  give  less.  But  Lord 
Mansfield  remarked  on  the  difference  between  covenants 
in  general,  and  covenants  secured  by  a  penalty  or  forfeit- 
ure, and  said  :"  In  the  latter  case  the  obligee  has  his 
election.  He  may  either  bring  an  action  of  debt  for  the 
penalty,  and  recover  the  penalty,  after  which  recovery  of 
the  penalty  he  cannot  resort  to  the  covenant,  because  the 
penalty  is  to  be  a  satisfaction  for  the  whole  ;  or  if  he  does 
not  choose  to  go  for  the  penalty,  he  may  proceed  upon  the 
covenant,  and  recover  more  or  less  than  the  penalty,  toties 
quoties;  and  upon  this  distinction  they  proceed  in  courts  of 
equity."  That,  in  the  former,  to  which  this  case  be- 
longed, even  equity  would  not  interfere.  *'  The  ;^i,ooois 
the  particular  Hquidateid  sum  fixed  and  agreed  upon  be- 
tweeri  the  parties,  and  is  therefore  the  proper  quantum  of 

'  In  the  case  of   Hardy  v.  Martin,  P.  346,   this   latter  case  was  referred 

cited  in  notes  to  this  case,  the  same  to  by  Chambre,  J.,  who.  said  that  he 

course  was  pursued  in  regard  to  a  bond  was   concerned   in   it,    and   that   Lord 

'given  by  one  partner,  on  the  dissolution  Mansfield,  at  the  trial  at' law,  inclined 

of  a  partnership,  not  to  trade  ;  and  very  to  think  it  a  case  of  stipulated  damages, 

rightly.     In  Astley  z;.' Weldon,  2  B.  &  "  Lowe  v.  Peers,  4  Burr.  2225  (1768). 


§397-  EARLVENGLISH    CASES.  565 

the  damages."  But  the  judgment  was  arrested  on  account 
of  the  invalidity  and  illegality  of  the  instrument.  The 
doctrine  of  this  decision  has  been  recognized  in  the  Eng- 
lish Court  of  Exchequer,  in  an  action  oh  a  covenant  not 
to  lop  trees,  under  a  given  penalty  for  each  tree.'  The 
case  seems,  however,  rather  that  of  an  agreement  to  pay 
a  certain  sum  on  a  contingency,  which  contingency  is 
itself  dependent  on  the  choice  of  the  party  himself,  and 
belongs  more  properly  to  a  class  of  alternative  obliga- 
tions of  which  we  shall  have  occasion  to  speak  later. 

Where '  a  bond  had  been  given  by  the  plaintiff  to  the 
defendant  in  ;^236,  conditioned  that  certain  iron-work 
should  be  done  by  himself  and  another  party  for  ^ii8 
18s.  within  six  weeks,  and  if  not,  they  would  "forfeit 
and  pay"'  £\o  for  every  week,  till  it  was  finished,  the 
plaintiff  brought  an  action  for  work  and  labor  against  the 
defendant ;  and  the  latter  pleaded  the  bond  in  question, 
averred  that  the  work  had  not  been  performed  within  the 
time  limited,  nor  until  four  weeks  thereafter,  and  insisted 
on  a  set-oif  of  £,/^o.  Upon  demurrer,  it  was  contended 
that  the  ^^lo  was  a  mere  penalty,  and  could  not  be  set  off. 
But  the  court  said  that  the  sums  offered  to  be  set  off  were 
liquidated  damages,  which  a  court  of  equity  could  not 
relieve  against ;  and  BuUer,  J.,  said,  "  It  is  as  strongly  a 
case  of  liquidated  damages  as  can  possibly  exist,  and  is 
like  the  case  of  demurrage" ;  and  the  demurrer  was  over- 

•  Hurst  V.  Hurst,  4  Ex.  571.  hereafter  cited,  but  was  rather  stronger ; 

'  Fletcher  z;.  Dyche,  2  T.  R.  32(1787).  "as   the   word    'forfeited'   was   used, 

^  In  Tayloe  v.    Sandiford,  7  Wheat,  which  points  to  a  penalty."    And  in 

13,  Marshall,  C.  J.,  commented  on  these  Cheddick  v.  Marsh,  21  N.  J.  L.  463, 

words,    and    said,  they  were    not  so  the  S.  C.  of  New  Jersey  said  :  "  When 

strongly  indicative  of  a  penalty  as  the  a    contracting    party  stipulates   upon 

word  "  ^raa/^)/ "  itself .     But  in  Horner  a   given   event   to  forfeit   and  pay  a 

■V.  Flintoff,  9  M.  &  W.  678,  where  an  specified  sum,  the   natural  and   plain 

agreement  was  entered  into  binding  import  of  the  language  is,  that  upon  the 

the  parties  in  the  sum  of  ;^ioo  "  as  liq-  happening  of  the  contingency  he  will 

uidated  and    settled   damages,   to    be  pay  that  precise  sum,  not  that  it  shall 

paid  and  forfeited,"  the  Court  of  Ex-  stand  by  way  of  penalty  or  security  for 

chequer  [Parke,  B.]  said  that  the  case  damages  incurred." 
came  within  that  of  Kemble  v.  Farren, 


566  LIQUIDATED    DAMAGES.  §  398. 

ruled.  It  seems,  however,  to  be  rather  like  the  case  last 
cited,  a  conditional  agreement,  where  the  party  had  his 
election  to  do  the  act  or  pay  the  money,  and  not  having 
done  the  act,  he  is  to  be  held  as  having  made  his  election 
to  pay  the  money.** 

§  398.  Leading  cases — Astley  v.  Weldon. — The  case 
which  is  looked  upon  as  settling  the  doctrine  of  liquidated 
damages  in  England  is  Astley  v.  Weldon,'  *  where  an 
agreement  was  entered  into  by  the  defendant  to  perform 
for  the  plaintiff  at  a  theatre,  and  attend  all  rehearsals,  or 
pay  the  established  fines  for  all  forfeitures  of  any  kind 
whatsoever,  with  a  clause  that  either  6f  the  parties  neg- 
lecting to  perform  the  agreement  should  pay  the  other 
;^2oo.  The  declaration  averred  a  refusal  to  perform ;  plea, 
non-assumpsit.  On  trial,  a  verdict  was  had  for  ;^20,  with 
leave  to  the  plaintiff  to  enter  a  verdict  for  ^200,  if  the 
court  should  consider  the  agreement  one  in  the  nature  of 
liquidated  damages.  Here  it  will  be  noticed  that  the 
phrase  liquidated  damages  was  not  used,  and  that  if  the 
sum  of  ;i^200  was  not  construed  as  a  penalty  merely,  the 
non-payment  of  any  one  of  the  fines  would  have  forfeited 
the  whole  amount.  Lord  Eldon,  then  Lord  Chief  Justice 
of  the  Common  Pleas,  in  delivering  the  judgment  of  the 
court,  said  that  he  had  felt  much  embarrassment  in  ascer- 
taining the  principle  of  the  decisions,  and  that  "  this  ap- 
peared to  him  the  clearest  principle,  that  where  a  doubt 
is  stated,  whether  the  sum  inserted  be  intended  as  a  pen- 
alty or  not,  if  a  certain  damage,  less  than  that  sum,  is 
made  payable  upon  the  face  of  the  same  instrum.ent  in  case 
■  the  act  intended  to  be  prohibited  be  done,  that  sum  shall  be 
construed  to  be  a  penalty";  though  the  mere  fact  of  the 
sum  being  apparently  enormous  and  excessive,  would  not 
prevent  it  from  being  considered  as  liquidated  damages. 

'  2  B.  &  p.  346. 


§  399-  KEMBLE   V.    FARREN.  567 

He  went  on  to  say  :  "Prima  facie,  this  certainly  is  con- 
tract, and  not  penalty,  but  we  must  look  to  the  whole  in- 
strument ";  and  it  was  held  a  penalty. 

This  case  of  Astley  v.  Weldon  was  subsequently  cited 
with  approbation  ; '  and  there  is  no  doubt,  according  to 
the  suggestion  of  Lord  Eldon,  that  the  form  of  the  instru- 
ment may  make  some  difference  ;  as,  if  it  be  a  bond,  the 
presumption  will  be  that  the  greater  sum  is  intended 
merely  as  a  penalty.  This  is  not,  however,  the  necessary 
construction  of  such  an  instrument. 

§  399.  Kemble  v.  Farren. — The  doctrine  laid  down  in 
Astley  V.  Weldon  was  applied  in  a  subsequent  case,"  to 
a  very  similar  state  of  facts.  The  defendant  had  agreed 
with  the  plaintiff  to  act  as  principal  comedian  at  Covent 
Garden,  and  to  conform  to  its  rules;  the  plaintiff  was  lo  pay 
£2}  6j.  Zd.  every  night  that  the  theatre  should  be  open  ; 
and  the  agreement  contained  a  clause,  that  if  either  party 
failed  to  fulfil  his  agreement,  or  any  part  thereof,  or  any 
stipulation  therein  contained,  such  party  to  pay  the  sum 
of  ;^i,ooo  ;  to  which  sum  it  was  agreed  that  the  damages 
should  amount,  and  which  sum  was  declared  by  the 
parties  to  be  liquidated  and  ascertained  damages,  and  not 
a  penalty  or  penal  sum-,  or  in  the  nature  thereof.  The 
breach  alleged,  was  a  refusal  to  act  during  the  second 
season,  and  the  jury  gave  a  verdict  for  £750.  A  motion 
was  made  to  increase  this  verdict  to  ^1,000,  on  the 
ground  that  that  sum  \Vas  the  amount  liquidated  by  the 
parties  ;  but  it  was  denied,  and  Tindal,  C.  J.,  said  : 

"  It  is  undoubtedly  difficult  to  suppose  any  words  more  precise 
or  explicit  than  those  used  in  the  agreement ;  the  same  declaring 
not  only  affirmatively  that  the  sum  of  _^i,ooo  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 

'  Street  v.  Rigby,  6  Ves.  815.  '  Kemble  v.  Farren  6  Bing.  141,  147. 


568  LIQUIDATED    DAMAGES.  §  399. 

clause  had  been  limited  to  breaches  which  were  of  an  uncertain 
nature  and  amount,  we  should  have  thought  it  would  have  had, 
the  effect  of  ascertaining  the  damages  upon  any  such  breach  at 
_;^i,ooo.  For  we  see  nothing  illegal  or  unreasonable  in  the 
parties,  by  their  mutual  agreement  settling  the  amount  of  dam- 
ages, uncertain  in  their  nature,  at  any  sum  upOn  which  they  may 
agree.  In  many  cases  such  an  agreement  fixes  that  which  is 
almost  impossible  to  be  accurately  ascertained,  and  in  all  cases 
it  saves  the  expense  and  difficulty  of  bringing  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  j^^  6s.  Sd.  per  day,  or  on  the  other  hand,  the 
defendant  had  refused  to  conform  to  any  usual  regulation  of 
the  theatre,  however  minute  or  unimportant,  it  must  have  been 
contended  that  the  clause  in  question,  in  either  case,  would  have 
given  the  stipulated  damages  of  ;^i,ooo.  But  that  a  very  large 
sum  should  become  immediately  payable  in  consfequence  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  in 
terms  ;  the  case  being  precisely  that  in  which  courts  of  equity 
have  always  relieved,  and  against  which  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. 
It  has  been  argued  at  the  bar,  that  the  liquidated  damages 
apply  to  those  breaches  of  the  agreement  only,  which  are  in 
their  nature  uncertain,  leaving  those  which  are  certain  to  a  dis- 
tinct remedy,  by  the  verdict  of  a  jury  ;  but  we  can  only  say,  if 
such  is  the  intention  of  the  parties,  they  have  not  expressed  it, 
but  have  made  the  clause  relate,  by  express  and  positive  terms, 
to  all  breaches  of  every  kind.  We  cannot,  therefore,  distinguish 
this  case  in  principle  from  that  of  Asiley  v.  Weldon,  in  which  it 
was  stipulated  that  either  of  the  parties  neglecting  to  perform 
the  agreement  should  pay  to  the  other  of  them  the  full  sum  of 
;^2oo,  to  be  recovered  in  his  Majesty's  courts  at  Westminster." 

The  authority  of  this  case  has  been  repeatedly  recog- 
nized. So  in  a  case  in  the  Court  of  Exchequer,  where 
the  sum  named  was  held  a  penalty  only,  Parke,  B.,  said  : 

"  When  parties  say  that  the  same  ascertained  sum  shall  be  paid 


§  40C>.  EARLY   NEW    YORK   CASES.  569 

for  the  breach  of  any  article  of  an  agreement,  how.ever  minute 
and  unimportant,  they  must  be  considered  as  not  meaning  ex- 
actly v/hat  they  say,  and  a  contrary  intention  may  be  collected 
from  the  other  parts  of  the  agreement.  The  rule  laid  down 
in  Kemble  v.  Farren,  was,  that  when  an  agreement  contains 
several  stipulations  of  various  degrees  of  importance  and  value, 
a  sum  agreed  to  be  paid  by  way  of  damages  for  the  breach  of 
any  of  them,  shall  be  construed  as  a  penalty,  and  not  as  liqui- 
dated damages,  even  though  the  parties  have  in  express  terms 
stated  the  contrary.'"** 

§  400.  Early  New  York  cases.—*  The  decisions  in  this 
country  are  now  to  be  examined.  Our  courts  will  be 
found  generally  to  be  inclined  to  treat  a  fixed  sum  as 
a  penalty,  and  to  hold  that  the  real  damages  are  to  be 
inquired  into.  Thus,'  where  the  plaintiff  had  agreed  to 
convey  to  the  defendant  seven  hundred  acres  of  land  in 
exchange  for  a  farm,  valued  at  $3,750,  with  a  further 
covenant  that  in  case  of  failing,  the  party  not  fulfilling 
the  covenant  "  should  pay  to  the  other  party  the  sum  of 
$2,000  damages,"  the  Supreme  Court  of  New  York  held 
this  to  be  a  penalty  ;  and  stress  was  laid  on  the  great 
discrepancy  between  the  value  of  the  property  to  be  ex- 
changed, and  the  damages  for  not  fulfilling  the  contract. 

Where  an  agreement  had  been  made '  by  which  the  de- 
fendant covenanted,  on  the  first  of  January  then  next, 
to  convey  certain  lands,  and  the  plaintiff  agreed  to  pay 
the  price,  $1,250,  on  the  delivery  of  the  deed,  and  in 
case  of  failure,  they  bound  themselves  each  to  the  other 
in  the  sum  of  $500,  which  they  consented  to  fix  and 
liquidate  as  the  amount  of  damages  to  be  paid  by  the 
failing  party  ;  in  this  case  it  was  held  to  be  too  clear  for 

'  Horner  v.  Flintoff,  g  M.  &  W.  678.  '  Dennis  v.  Cummins,  3  Johns   Cas. 

See,  also,  Boys  v.  Ancell,  5  Bing.  N.  297. 

C.  3go  ;  Beckham  v.  Drake,  8  M.  &  '  Hasbrouck  v.  Tappen,   15   Johns. 

W.  846 ;  reversed  on  another  ground,  200. 
ir  M.  &  W.  315  ;  Edwards  p.  Williams, 
5  Taunt,  247. 


570  LIQUIDATED    DAMAGES.  §  4OO. 

question  ;  and  the  sum  of  $500  was  to  be  regarded  as 
liquidated  damages.  The  plaintiff  having  by  parol  en- 
larged the  time  for  the  delivery  of  the  deeds  (although 
to  no  fixed  day),  it  was  insisted  that  such  extension  was 
a  waiver  of  the  liquidated  damages,  and  that  the  plaintiff 
could  only  recover  his  actual  loss;  but  the  court  held 
otherwise,  and  that  the  stated  sum  was  still  to  be  the 
measure  of  compensation. 

In  all  cases  where  a  party  relies  on  the  payment  of 
liquidated  damages  as  a  discharge,  it  must  clearly  appear 
from  the  contract  that  they  were  to  be  paid  and  received 
absolutely  in  lieu  of  performance ;  and  it  is  also  settled 
here,  as  we  shall  see,  in  England,'  that  a  covenant  on  a 
certain  contingency  to  pay  to  another  person  a  sum  of 
money,  with  a  provision  that  if  he  fails,  then  to  pay  a 
larger  sum  as  liquidated  damages,  might  be  wholly  in- 
compatible with  our  laws  in  restraint  of  usury. 

Both  these  points  were  ruled  in  a  case'  already  re- 
ferred to,  where  the  plaintiff  had  made  a  bond  and  mort- 
gage to  a  third  party  in  the  sum  of  $5,000,  which  had 
been  assigned  to  the  defendant,  and  a  covenant  was  then 
entered  into  between  them,  that  three  several  farms  be- 
longing to  the  plaintiff  and  covered  by  the  mortgage, 
should  be  appraised  by  arbitration  ;  that  if  their  value 
fell  short  of  the  defendant's  claim  he  should  have  them 
(z.  e.,  the  three  farms);  if  they  exceeded  his  demands,  he 
should  pay  the  balance,  with  a  stipulation  that  either 
party  failing  should  forfeit  to  the  other  $500  as  liqui- 
dated damages.  The  farms  were  assessed,  a  balance 
found  in  favor  of  the  plaintiff,  and  the  defendant  refused 
to  pay.  The  sum  of  $500  was  claimed  ;  and  the  de- 
fendant admitted  that  he  was  bound  to  pay  that  sum  as 

'In   Orr   z/.  Churchill,  I   H.   Black.        '  Gray  z/.  Crosby,  iS  Johns.  219. 
227. 


§  400-  EARLY  NEW  YORK  CASES.  571 

liquidated  damages,  but  insisted  tiiat  on  such  payment, 
the  whole  agreement  was  to  be  rescinded  ;  and  as  his 
$5,000  bond  remained  due,  he  offered  to  offset  the  $500 
against  the  $5,000  due  on  the  bond,  and  asked  that  the 
balance  should  be  certified  in  his  favor.  But  the  jury, 
under  the  charge  of  the  court,  found  a  verdict  for  the 
plaintiff  for  the  balance  fixed  by  the  appraisers  ;  and  on 
a  motion  for  a  new  trial,  this  was  held  right.  It  was 
held,  so  far  as  the  defendant  was  concerned,  that  the 
stipulated  damages  were  not  intended  "in  lieu  of  a  per- 
formance of  anything  to  be  done,  nor  as  an  extinguish- 
ment of  the  appraisement  itself  ;  and  that  as  to  the 
plaintiff,  he  could  only  recover  the  exact  balance  due 
him. 

In  the  same  State,'  a  contract  to  pay  three  hundred 
and  sixty  dollars  for  twelve  cows  and  twelve  calves,  in 
four  years,  was  held  to  be  in  the  nature  of  a  penalty 
merely,  and  that  the  plaintiff  could  only  recover  the  value 
of  the  cows  and  calves.  And  this  on  the  same  grounds 
as  in  the  last  two  cases." 

In  a  subsequent  case,'  the  following  facts  were  pre- 
sented :  By  articles  of  dissolution  between  the  plaintiff's 
intestate  and  the  defendant,  the  defendant  agreed  to  pay 
$3,000  in  various  instalments,  of  which  the  last  was  one 
of  $750,  on  the  ist  of  December,  1812.  The  articles 
then  recited,  that  the  object  was  for  the  intestate  entirely 
to  quit  the  business,  and  for  the  defendant  to  continue  it, 
and  that  such  intention  was  the  basis  of  allowing  the 
$3,000,  and  then  declared,  that  in  case  the  intestate 
should  be  concerned  in  or  carry  on  the  same  kind  of 
business  within  twenty  miles  from  the  present  stand,  the 
last  instalment  should  not  be  paid.     The  action  was  for 

'  Spencer  v.  Tilden,  5  Cowe  n  44.         this  decision  was  said  to  go  on  the  op- 
'  In  Nobles  v.  Bates,  7  Cowen  307,     pressiveness  of  the  contract. 

^  Nobles  V.  Bates,  7  Cowen  307. 


572  LIQUIDATED    DAMAGES.     .  §  400. 

the  last  instalment;  in  answer  to  which  the  defendant 
proved  that  the  plaintiff's  intestate  had  recommenced  the 
partnership  business  within  four  miles.  It  was  insisted 
that  the  contract  was  in  the  nature  of  a  penalty  ;  but  the 
court  said:  "A  more  suitable  case  for  the  liquidation 
of  damages  by  the  parties  themselves  can  scarcely  be 
imagined";  and  the  nonsuit  which  was  directed  at  the 
trial  was  sustained. 

The  rule  laid  down  in  Astley  v.  Weldon,  and  already 
stated,  that  when  the  agreement  contains  formal  distinct 
covenants  on  which  there  may  be  divers  breaches,  some 
of  an  uncertain  nature,  and  others  certain,  with  one  entire 
sum  specified  to  be  paid  on  breach  of  performance,  then 
the  contract  will  be  treated  as  one  for  a  penalty  and  not 
liquidated  damages,  was  approved  in  New  York,'  where 
a  bond  was  given  in  the  penal  sum  of  $10,000,  condi- 
tioned that  the  defendant  would  not  practice  as  a  physi- 
cian, and  if  he  did,  that  he  should  pay  $500  for  every 
month  that  he  so  practiced.  Here  the  $10,000  was  held 
to  be  penalty,  and  the  $500  stipulated  damages.  And 
the  same  rule  has  been  laid  down  in  New  Jersey.' 

In  a  case*  where  the  plaintiff  had  entered  into  an 
agreement  with  the  defendants  to  sell  them  two  lots  of 
ground  on  certain  terms,  upon  compliance  with  which 
the  plaintiff  was  to  give  a  deed,  and  to  this  a  clause  was 
added,  "  that  if  the  parties  of  the  second  part  should  fail  to 
perform  this  contract,  or  any  part  therein  specified,  they 
will  pay  the  said  party  of  the  first  part  $25,  as  liquidated 
damages,  and  give  immediate  possession  to  the  said  party 
of  the  first  part,"  the  plaintiff  brought  an  action  of  cove- 
nant for  breach  of  the  condition.  The  defendant  pleaded 
tender  of  $25,    But  the  Supreme  Court  of  New  York 

'  Smith  V.  Smith,  4  Wend.  468.     See        '  Cbeddick  v.    Marsh,    21   N.  J.  L. 
also  Spear  v.  Smith,  1  Denio  464.  463. 

^  Ayres  v.  Pease,  12  Wend.  393. 


§  40I-  DAKIN    V.    WILLIAMS.  573 

Said  :  "  There  is  nothing  in  this  case  which  authorizes  us 
to  say  that  it  was  in  the  contemplation  of  the  parties  that 
the  defendants  might  relieve  themselves  from  their  cove- 
nant to  pay  the  price  of  the  land  by  paying  the  sum 
agreed  upon  as  stipulated  damages,  and  surrendering  pos- 
session"; and  the  plea  was,  for  this  as  well  as  for  other 
reasons,  held  bad. 

Again,'  where  the  defendant  covenanted  to  assign  to 
the  plaintiff  a  lease,  and  to  deliver  possession  thereof,  with 
the  following  provision  :  "And  I  further  covenant  that, 
in  case  of  non-performance  of  any  or  either  of  the 
above  covenants,  I  will  forfeit  the  sum  of  five  hundred 
dollars,  as  the  liquidated  damages  to  the  said  Knapp," 
the  same  court  said  :  "  It  is  a  clear  case  of  liquidated 
damages,  if  it  is  in  the  power  of  parties  to  liquidate 
them." 

§  401.  Dakin  v.  Williams.— The  subject  was  much  con- 
sidered in  a  subsequent  case:"  the  defendant  Williams, 
for  $3,000,  sold  to  the  plaintiff  a  newspaper  establish- 
ment, called  the  "  Utica  Sentinel,"  and  all  his  interest  in 
the  subscription,  good-will,  and  patronage  of  the  paper, 
together  with  the  types,  etc.,  for  $500.  In  consideration 
of  this  the  plaintiffs  on  their  part  covenanted  to  pay  to 
Williams  $3,500,  namely,  $3,000  for  the  patronage  and 
good-will,  etc.,  and  $500  for  the  types,  etc.  And  then 
followed  a  covenant  by  which  the  defendants  agreed  that 
they  would,  not  establish  any  paper  in  the  city  of  Utida, 
nor  suffer  any  paper  to  be  established  in  any  building 
owned  by  them,  nor  aid  nor  assist  in  such  publication; 
and  to  this  was  added  a  clause  binding  the  defendants  to 
the  strict  and  faithful  performance  of  this  covenant,  and 
every  part  thereof,  in  the  sum  of  $3,000 ;  and  declaring 

'  Knapp  V.  Maltby,  13  Wend.  587.  "  Dakin  v.  Williams,  17  Wend.  447 ; 

■  and  s.  c.  in  Error,  22  Wend.  2Qi. 


574  LIQUIDATED    DAMAGES.  §40 1. 

that  the  said  sum  of  $3,000  should  be,  and  was  thereby 
fixed  and  settled  as  liquidated  damages,  and  not  as  a 
penal  sum  for  any  violation  of  the  preceding  covenant, 
or  any  of  its  terms  or  conditions.  The  breach  alleged 
was  the  publication  of  another  paper.  The  cases  which 
we  have  been  considering  were  reviewed,  and  the  $3,000 
was  held  to  be  liquidated  damages,  both  by  the  Supreme 
Court  and  Court  of  Errors.  The  Supreme  Court  held 
that :  It  was  only  the  province  of  the  court  to  inquire  into 
the  intent  of  the  parties,  and  that  whether  the  bargain 
was  wise  or  foolish  was  not  for  them  to  decide ;  and  went 
on  to  say  : 

"  In  the  case  of  Astley  v.  Weldon,  Lord  Eldon  repudiates  the 
idea  that  had  been  thrown  out  in  some  of  the  previous  cases,  that 
if  the  sum  would  be  enormous  and  excessive,  considered  as  liqui- 
dated damages,  it  should  then  be  taken  as  a  penalty  ;  and  main- 
tains the  ability  of  the  party  to  make  a  contract  for  himself  in 
fixing  the  amount  of  damages,  as  well  as  in  respect  to  any  other 
matter.  All  the  judges  adopt  the  position  that  the  question 
must  be  determined  upon  the  meaning  and  intent  of  the  par- 
ties. A  principle  is  stated  in  that  caSe  which  has  since  been  fre- 
quently applied,  and  upon  which  the  case  was  finally  disposed 
of,  namely,  that  where  a  doubt  appears  whether  the  sum  in- 
serted be  intended  as  a  penalty  or  not,  if  a  certain  damage,  less 
than  this  sum,  be  made  payable  upon  the  face  of  the  instrument 
in  case  the  breach  occurs,  then  the  same  shall  be  construed  to  be 
a  penalty.  It  then  partakes  of  the  character  of  a  common  money 
bond,  where  the  payment  of  a  small  sum  is  secured  by  the  for- 
feiture of  a  large  one  in  case  of  default.  In  that  case  there  were 
several  stipulations  in  the  articles  of  agreement ;  and  then,  on 
either  neglecting  to  perform  on  his  part,  '  the  sum  of  ;^2oo,  to 
be  recovered  in  any  of  his  Majesty's  courts  of  record,'  was  to  be 
paid.  Some  of  the  breaches  were  in  their  nature  uncertain, 
while  others  were  certain  ;  and  as  the  £,'ioo  were  given  to  se- 
cure the  fulfilment  of  all  of  them,  upon  the  principle  above 
stated,  the  court  concluded  it  was  to  be  deemed  in  the  light  of 
a  penalty.  Chambre,  J.,  observed,  '  That  there  was  one  case  in 
which  the  sum  agreed  for  must  always  be  considered  as  a  pen- 


§  4.01.  DAKIN  V.  WILLIAMS.  575 

alty  :  and  that  is  where  the  payment  of  a  smaller  sum  is  se- 
cured by  a  larger';  and  he  held  that  the  court  could  not  garble 
the  covenants,  and  hold  that  in  respect  to  those  certain  t"he  larger 
sum  was  to  be  deemed  a  penalty,  but  damages  liquidated  as  to 
those  uncertain,  as  the  concluding  clause  applied  equally  to  all 
of  them.  The  decision  of  the  case  of  Kemble  v.  Farren,  the 
strongest  one  in  the  books  for  the  defendants,  was  put  upon  this 
principle  by  Chief-Justice  Tindal.  There,  some  of  the  strongest 
stipulations  were  certain,  such  as  the  one  in  which  the  plaintiff 
had  agreed  to  pay  the  defendant  jQ'^  (>s.  Zd.  every  night  in  which 
the  theatre  would  be  open  during  the  season  ;  others  were  un- 
certain. The  language  of  the  parties  in  fixing  the  sum  in  case 
of  neglect  to  fulfil  the  agreement  or  any  of  the  stipulations  was 
as  particular  and  specific  as  in  the  case  under  consideration, 
using  affirmative  and  negative  terms  to  exclude  the  idea  of  a 
penalty  ;  but  as  it  extended  to  the  breach  of  every  stipulation, 
those  certain  as  well  as  those  uncertain,  the  case  was  supposed 
to  be  brought  directly  within  the  principle  of  Astley  v.  Weldon. 
The  chief-justice  concedes  that  it  was  difficult  to  suppose  words 
more  precise  or  explicit,  and  admitted  that  if  the  clause  had 
been  limited  to  breaches  which  were  of  an  uncertain' nature  and 
amount,  the  court  would  have  considered  it  as  having  the  effect 
of  ascertaining  the  damages  of  any  such  breach  at  the  ;^i,ooo  ; 
and  he  adds  :  '  For  we  see  nothing  illegal  or  unreasonable  in  the 
parties,  by  their  mutual  agreement,  settling  the  amount  of  dam- 
ages uncertain  in  their  nature  at  any  sum  upon  which  they  may 
agree.'  The  case  under  consideration  falls  directly  within  the 
above  distinction  ;  for  the  concluding  clause  here,  securing  the 
fulfilment  of  the  preceding  covenant,  applies  to  stipulations 
wholly  uncertain  ;  and  it  may  be  added  that,  from  the  nature  of 
the  case,  it  would  be  impossible  for  a  court  and  jury  to  ascertain 
with  any  degree  of  accuracy  the  amount  of  damages  actually 
arising  out  of  the  breach  of  them  to  the  prejudiced  party  ;  and 
was,  therefore,  a  very  fit  and  proper  case  for  the  liquidation  of 
the  amount  by  the  parties  themselves.  They  have  adopted  the 
precise  sum  which  the  plaintiffs  were  to  receive  for  the  good-will 
and  patronage  of  the  press — the  very  benefit  which  this  clause 
was  intended  more  effectually  to  secure  to  the  purchasers." ' 

And  in  the  Court  of  Errors,  the  chancellor,  in  pro- 

'  See  the  doctrine  of  this  case  again  adopted  by  Mr.  Ch.  Walworth,  in  Shiell 
V.  M'Nitt,  9  Paige  loi. 


5/6  LIQUIDATED    DAMAGES.  §  402. 

nouncing  his  opinion,'  laid  stress  on  the  fact  that,  with- 
out the  stipulation,  the  damages  were  wholly  uncertain, 
and  incapable  of  estimation  otherwise  than  by  conjec- 
ture. In  a  case  in  the  same  State,'  the  preference  of  the 
law  to  construe  the  stated  sum  as  a  penalty,  was  very 
strongly  declared : 

"  I  do  not  think  that  penalties  like  this  (for  they  are  seldom  any- 
thing other  than  penalties)  should  be  favored.  I  yielded  my  assent 
to  the  opinion,  in  Dakin  v.  Williams,  for  the  reason  which  there 
governed  the  chief-justice,  namely,  because,  on  the  whole  contract, 
we  could  not  doubt  the  parties  intended  that  the  damages  should 
be  paid  for  violating  the  stipulation  in  question  ;  and  because  it 
was  difficult,  not  to  say  impossible,  from  its  nature,  that  the 
damages  for  a  breach  could  be  ascertained  by  a  jury.  The 
latter  may  be  said  of  failing  to  give  the  five  days'  notice  ;  but 
we  want  the  clear  intent  of  the  parties,  that  such  an  omission 
was  to  be  punished  by  such  a  disproportionate  fine.  It  is  evi- 
dently upon  that  clear  intent  that  Dakin  v.  Williams  went,  and 
that  could  the  chief-justice  have  brought  himself  to  doubt,  he 
would  never  have  consented  to  apply  the  penalty.  It  is  com- 
monly hard  enough  in  such  cases  that  we  should  be  bound  by 
the  letter,  though  such  is  the  result  of  the  cases  where  liquida- 
tion is  impossible.  The  creditor  is  a  very  apt  apprentice  in  the 
art  of  enlarging  any  opening  which  the  law  leaves  him  for  en- 
croachment, while  the  debtor,  especially  if  he  be  poor  or  em- 
barrassed, is  most  complying  ;  and,  could  he  have  his  way, 
would  prove  his  own  worst  enemy.  Hence  our  usury  laws,  and 
the  system  of  equitable  relief  against  penalties.  To  allow  the 
use  of  penalties  as  damages,  at  the  unlimited  discretion  of  the 
parties,  would  lead  to  the  most  terrible  oppression  in  pecuniary 
dealings.  The  fair  and  just  rights  of  the  creditor  are  worthy 
of  all  protection,  but  no  more  than  the  debtor's  right  to  exemp- 
tion from  what  is  beyond  an  honest  compensation  to  his  cred- 
itor." 

§  402.  Tayloe  v.  Sandiford. —  The  subject  has  been 
considered  by  the  Supreme  Court  of  the  United  States.' 

'  22  Wendell,  210.  »  Tayloe  v.  Sandiford,  7  Wheaton  13, 

"  Hoag  'v.  M'Ginnis,  22  Wend.  163,     17. 
165,/^^  Cowen,  J. 


§403'  STREEPER  V.  WILLIAMS.  577 

A  written  contract  was  entered  into,  by  which  the  de- 
fendants in  error,  T.  &  S.  Sandiford,  agreed  to  build  for 
the  plaintiff  three  houses  on  Pennsylvania  Avenue,  in 
Washington.  A  subsequent  contract,  under  seal,  was 
entered  into  between  the  same  parties,  for  the  building  of 
three  additional  houses,  "  the  said  houses  to  be  completely 
finished  on  or  before  the  24th  day  of  December  next, 
under  a  penalty  of  one  thousand  dollars,  in  case  of  fail- 
ure." The  three  houses  were  not  finished  at  the  day. 
The  plaintiff  in  error  retained  the  sum  of  $i,ooo,  as 
stipulated  damages,  out  of  the  money  due  the  defend- 
ants in  error.  This  suit  was  brought ;  and  on  the  trial 
the  plaintiff  in  error  (the  defendant  below)  offered  to 
set  off  the  $1,000  as  stipulated  damages,  which  was  not 
allowed  ;  and  the  Supreme  Court  held  the  charge  on 
this  point  right,  though  a  new  trial  was  ordered  on  other 
grounds.     Marshall,  C.  J.,  said: 

"  In  general,  a  sum  of  money  in  gross  to  be  paid  for  the  non- 
performance of  an  agreement,  is  considered  as  a  penalty.  It  will 
not,  of  course,  be  considered  as  liquidated  damages.  Much 
stronger  is  the  inference  in  favor  of  its  being  a  penalty,  when  it 
is  expressly  reserved  as  one.  The  parties  themselves  denominate 
it  a  penalty,  and  it  would  require  very  strong  evidence  to 
authorize  the  court  to  say  that  their  own  words  do  not  express 
their  own  intention."  '  ** 

§  403.  Streeper  v.  Williams.— In  the  case  of  Streeper  v. 
Williams  (*)  the  owner  of  a  hotel  had  agreed  to  sell  it  for 
$14,000,  of  which  $3,000  were  to  be  paid  on  a  specified 
day,  when  the  deed  was  to  be  signed.  Possession  of  the 
bar-room  was  to  be  given  immediately.  The  parties 
mutually  agreed  to  "  forfeit "  $500  in  case  of  failure  to 

'  And  the  court  referred  to  Smith  v.  Dickenson,  3  B.  &  P.  630;  and  Fletcher 
V.  Dyche,  2  T.  R.  32. 


(*)  48  Pa.  450,  454. 
Vol.  L— 37 


57^  LIQUIDATED   DAMAGES.  §  404. 

keep  the  agreement.  The  $500  was  held  to  be  liquidated 
damages,  and  not  a  penalty.  The  court,  per  Agnew,  J., 
in  reference  to  the  question  under  consideration,  say : 

"  Upon  no  question  have  courts  doubted  and  differed  more. 
It  is  unnecessary  to  examine  the  numerous  authorities  in  detail, 
for  they  are  neither  uniform  nor  consistent.  No  definite  rule  to 
determine  the  question  is  furnished  by  them,  each  being  deter- 
mined more  in  reference  to  its  own  facts  than  to  any  general 
rule.  In  the  earlier  cases  the  courts  gave  more  weight  to  the 
language  of  the  clause  designating  the  sum  as  a  penalty  or  as 
liquidated  damages.  The  modern  authorities  attach  greater  im- 
portance to  the  meaning  and  intention  of  the  parties  ;  yet  the 
intention  is  not  all-controlling,  for  in  some  cases  the  subject- 
matter  and  surroundings  of  the  contract  will  control  the  inten- 
tion where  equity  absolutely  demands  it.  A  sum  expressly 
stipulated  as  liquidated  damages  will  be  relieved  from,  if  it  is 
obviously  to  secure  payment  of  another  sum  capable  of  being 
compensated  by  interest.  On  the  other  hand,  a  sum  denomi- 
nated a  penalty  or  forfeiture  will  be  considered  liquidated  dam- 
ages, where  it  is  fixed  upon  by  the  parties  as  the  measure  of  the 
damages  because  the  nature  of  the  case,  the  uncertainty  of  the 
proof,  or  the  difficulty  of  reaching  the  damages  by  proof,  have 
induced  them  to  make  the  damages  a  subject  of  previous  adjust- 
ment. In  some  cases,  the  magnitude  of  the  sum,  and  its  propor- 
tion to  the  probable  consequence  of  a  breach,  will  cause  it  to  be 
looked  upon  as  minatory  only.  Upon  the  whole,  the  only  gen- 
eral observation  we  can  make  is,  that  in  each  case  we  must  look 
at  the  language  of  the  contract,  the  intention  of  the  parties  as 
gathered  from  all  its  provisions,  the  subject  of  the  contract  and 
its  surroundings,  the  ease  or  difficulty  of  measuring  the  breach 
in  damages,  and  the  sum  stipulated,  and  from  the  whole  gather 
the  view  which  good  conscience  and  equity  ought  to  take  of  the 
case.  Equity  lies  at  the  foundation  of  relief  in  the  case  of  for- 
feiture and  penalties,  and  hence  the  difficulty  of  reaching  any 
general  rule  to  govern  all  cases." 

§  404.  Bagley  v.   Peddle. — In    the   case   of   Bagley  v. 
PeddieC)   the  subject  was   very  thoroughly  discussed 

(')  5  Sand.  192,  194;  16  N.  Y.  4691 


§  404-  BAGLEY  V.  PEDDIE,  579 

both  by  the  court  below  and  on  appeal.  The  defendant 
in  that  case  had  entered  into  sealed  articles  of  agreement 
with  the  plaintiff,  by  which  he  covenanted  to  abide  with 
the  plaintiff  four  years,  and  serve  him  during  that  time 
according  to  his  best  ability,  keep  the  secrets  of  the 
business,  not  misappropriate  any  money  or  property  of 
the  plaintiff,  keep  just  accounts  of  the  business,  and 
render  such  accounts  when  required. 

The  Superior  Court,  in  their  opinion,  stated  the  follow- 
ing tests  for  distinguishing  between  liquidated  damages 
and  a  penalty : 

"  I.  Where  it  is  doubtful,  on  the  face  of  the  instrument, 
whether  the  sum  mentioned  was  intended  to  be  stipulated  dam- 
ages or  a  penalty  to  cover  actual  damages,  the  courts  hold  it  to 
be  the  latter. 

"  2.  On  the  contrary,  where  the  language  used  is  clear  and  ex- 
plicit to  that  effect,  the  amount  is  to  be  deemed  liquidated  dam- 
ages, however  extravagant  it  may  appear,  unless  the  instrument 
be  qualified  by  some  of  the  circumstances  hereafter  mentioned. 

"  3.  If  the  instrument  provide  that  a  larger  sum  shall  be  paid 
on  the  failure  of  the  party  to  pay  a  less  sum  in  the  manner  pre- 
scribed, the  larger  sum  is  a  penalty,  whatever  may  be  the  lan- 
guage used  in  describing  it. 

"  4.  When  the  covenant  is  for  the  performance  of  a  single  act 
or  several  acts,  or  the  abstaining  from  doing  some  particular  act 
or  acts  which  are  not  measurable  by  any  exact  pecuniary  stand- 
ard, and  it  is  agreed  that  the  party  covenanting,  shall  pay  a 
stipulated  sum  as  damages  for  a  violation  of  any  of  such  cove- 
nants, that  sum  is  to  be  deemed  liquidated  damages,  and  not  a 
penalty. 

"  5.  Where  the  agreement  secures  the  performance  or  omis- 
sion of  various  acts  of  the  kind  mentioned  in  the  last  proposition, 
together  with  one  or  more  acts  in  respect  of  which  the  damages 
on  a  breach  of  the  covenant  are  certain  or  readily  ascertainable 
by  a  jury,  and  there  is  a  sum  stipulated  as  damages  to  be  paid 
by  each  parly  to  the  other,  for  a  breach  of  any  one  of  the  cove- 
nants, such  sum  is  held  to  be  a  penalty  merely." 

And  the  court  below  considered  that  two  of  the  cove- 


580  LIQUIDATED    DAMAGES.  §  405, 

nants  in  the  agreement,  one  against  wrongfully  detaining 
plaintiff's  moneys  or  property,  and  one  requiring  the 
defendant  to  give  a  true  account  of  things  committed  to 
his  management,  were  clearly  certain  in  their  nature, 
and  that  damages  for  their  breach  might  be  readily  as- 
certained by  a  jury.  They  held,  therefore,  that  the  sum 
payable  by  the  agreement  was  a  penalty.  Without  ap- 
parently disapproving  the  principles  relied  on  by  the 
Superior  Court,  the  Court  of  Appeals  did  not  consider 
these  covenants  as  having  the  certainty  necessary  to  avoid 
the  stipulation  liquidating  the  damages,  but  held  that  the 
damages  to  result  from  a  breach  of  any  of  the  covenants 
were  "  uncertain  and  conjectural,"  and  therefore,  main- 
taining the  stipulation  as  to  the  damages,  reversed  the 
decision  because  of  the  erroneous  application  of  a  sound 
principle. 

§  405.  General  rule. — From  the  foregoing  we  derive  the 
following  as  a  general  rule  governing  the  whole  subject. 
Whenever  the  damages  were  evidently  the  subject  of 
calculation  and  adjustment  between  the  parties,  and  a 
certain  sum  was  agreed  upon  and  intended  as  compensa- 
tion, and  is  in  fact  reasonable  in  amount,  it  will  be 
allowed  by  the  court  as  liquidated  damages.  (")  This 
rule  will  be  found  to  be  applicable  to  all  contracts,  and 
really  involves  the  consideration  of  the  subject  in  the 
three  following  aspects — that  of  the  intent  of  the  parties; 
that  of  the  reasonableness  of  the  contract,  and  that  of 


(•)  Howes  V.  Axtell,  74  la.  4CX) ;  Wakefield  v.  Stedman,  12  Pick.  562; 
Manice  v.  Brady,  15  Abb.  Pr.  173  ;  Westerman  v.  Means,  12  Pa.  97  ;  Powell 
V.  Burroughs,  54  Pa.  329  ;  Williams  v.  Vance,  9  S.  C.  344  ;  Durst  v.  Swift, 
1 1  Tex.  273 ;  Eakin  v.  Scott,  70  Tex.  442.  It  may  be  observed  here  that  any 
liquidation  of  damages  must  have  all  the  essential  elements  of  a  contract. 
"  It  must  have  the  mutual  assent  of  both  parties,  and  be  supported  by  a  suffi- 
cient consideration;  and  if  conditional,  the  condition  must  be  shown  to  have 
been  performed."    Union  L.  &  E.  Co,  v.  Erie  Ry.  Co.,  37  N.  J.  L.  23,  27. 


§  40(i.  INTENT   OF   THE   PARTIES.  58 1 

the  weight  allowed  by  the  court  to  the  language  em- 
ployed. 

§  406.  Intent  of  the  parties. — The  courts  will  not  go 
outside  the  contract  to  ascertain  the  intention  of  the 
parties  in  entering  into  it.  To  do  this  would  often  be 
to  violate  the  elementary  maxim  that  parol  evidence  can- 
not be  introduced  to  vary  or  control  a  written  instru- 
ment, and,  accordingly,  it  is  well  settled  that  the  char- 
acter of  the  agreement  is  a  matter  of  law  to  be  decided 
by  the  court  upon  a  consideration  of  the  whole  instru- 
ment. (")  It  is  indeed  said,  in  a  work  of  great  author- 
ity,('')  that  the  "burden  of  proof"  will  be  upon  the  party 
who  contends  that  the  sum  named  in  the  contract  is 
stipulated  damages  "  to  show  that  it  was  intended  as  such 
by  the  parties,"  but  the  only  case  referred  to  in  support 
of  the  proposition  is  Tayloe  v.  Sandiford,(°)  where  the 
point  was  certainly  not  involved  or  adjudicated  upon. 
In  Moore  v.  Anderson, (")  Prof.  Greenleaf's  language  is 
cited  with  approval,  but  there  seems  to  have  been  no 
doubt  as  to  the  character  of  the  instrument  sued  upon. 
The  interpretation  of  a  written  contract  by  the  court  is, 
of  course,  a  matter  wholly  apart  from  the  question  of  the 
burden  of  proof.  It  may  be  that  the  phrase  "  burden  of 
proof"  was  used  by  Prof.  Greenleaf  to  indicate  that,  in 
case  of  doubt,  the  court  would  treat  the  sum  fixed  by  the 
parties  as  a  penalty  ;  (°)  but  such  a  rule  would  be  one  of 
interpretation,  not  of  evidence.  Since,  therefore,  the 
intention  of  the  parties  cannot  be  gone  into  as  a  matter 
of  fact  outside  the  contract,  it  remains  to  be  considered 
whether  that  intention,  as  expressed  m  the  contract,  is 
invariably  followed.     If  it  were,  there  would  be  no  dif- 

(»)  2  Taylor  Ev.,  8th  ed.,  p.  963,  §  1132  ;  Sainter  v.  Ferguson,  7  C.  B.  716. 

('•)  2  Greenl.  Ev.,  14th  ed.,  p.  267,  §  257. 

C)  7  Wheat.  13.  (")  30  Tex.  224.  (»)  §  408. 


582  LIQUIDATED    DAMAGES.  §  406. 

ference  between  the  law  applicable  to  these  contracts 
and  any  others.  But  it  is  clear,  from  the  cases  already 
considered,  that  the  intention  of  the  parties  is  not  neces- 
sarily the  guide.  In  Kemble  v.  Farren,  for  instance, 
where  a  sum  of  money  fixed  by  the  parties  as  "  liqui- 
dated and  ascertained  damages,  and  not  a  penalty  or 
penal  sum,  or  in  the  nature  thereof,"  was  held  by  the 
court  to  be  a  penalty,  it  seems  an  abuse  of  language  to 
say  that  this  was  in  accordance  with  the  parties'  inten- 
tion. The  only  method  of  reasoning,  by  which  such  a 
conclusion  could  be  justified,  would  be  that  the  parties 
cannot  intend  to  agree  upon  a  sum  as  stipulated  damages 
when  a  principle  of  law  makes  the  agreement  futile  ;  but 
this  really  begs  the  question.  Clearly,  therefore,  the  in- 
tention of  the  parties  does  not  govern  in  a  large  class  of 
cases,  and  it  will  be  necessary  to  find  some  other  guide 
to  decide  these  by.  To  ascertain  this,  we  must  refer  to 
the  original  equitable  doctrine  by  which  the  penalty  of 
a  bond  was  avoided.  This  rested  upon  the  duty  of 
equity  to  relieve  from  unjust,  unconscionable,  and  op- 
pressive agreements.  This  whole  equitable  jurisdiction, 
so  far  as  it  related  to  contracts  of  the  class  under  consid- 
eration, is  now  exercised  by  courts  of  law,  which,  under 
the  guise  of  interpreting  them,  actually  enforces  or  re- 
fuses to  enforce  them,  as  justice  requires. 

And  here  we  are  brought  back  by  a  somewhat  circuit- 
ous path  to  the  great  fundamental  principle  which  under- 
lies our  whole  system :  that  of  compensation.  The  great 
object  of  this  system  is  to  place  the  plaintiff  in  as  good  a 
position  as  he  would  have  had  if  his  contract  had  not 
been  broken  So  long  as  parties  themselves  keep  this 
principle  in  view,  they  will  be  allowed  to  agree  upon  such 
a  sum  as  will  probably  be  a  fair  equivalent  of  a  breach  of 
contract.     But  when  they  go  beyond  this,  and  undertake 


§  4.0y.        THE  LIQUIDATION  MUST  BE  REASONABLE.  583 

to  Stipulate,  not  for  compensation,  but  for  a  sum  out  of 
all  proportion  to  the  measure  of  liability  which  the  law 
regards  as  compensatory,  then  the  law  will  not  allow  the 
agreement  to  stand.  In  all  agreements,  therefore,  fixing 
upon  a  sum  in  advance  as  the  measure  or  limit  of  liability, 
the  final  question  is  whether  the  subject  of  the  contract  is 
such  that  it  violates  this  fundamental  rule  of  compensa- 
tion. If  it  does  so,  the  sum  fixed  is  necessarily  a  penalty. 
If  it  does  not  do  so,  the  question  arises,  as  in  any  other 
contract,  as  to  what  agreement  the  parties  have  actually 
made,  and  here,  as  in  all  other  cases,  their  intention,  as 
ascertained  from  the  language  employed,  is  a  guide.  It  is 
not,  however,  conclusive,  and  the  mere  use  of  the  word 
"  penalty,"  "  penal,"  "  forfeit,"  on  one  side,  or  "  stipulated 
damages  "  on  the  other,  will  not  decide  the  question.  As 
to  the  effect  of  the  use  of  these  words,  the  decisions  are 
often  confusing;  in  most  cases  where  the  first  class  of 
words  are  used,  the  agreement  will  be  found  to  be  of  that 
kind  in  which  the  law  determines  the  character  of  the  sum 
designated ;  but  where  the  intention  of  the  parties  is  al- 
lowed to  govern,  there  is  no  reason  why  the  use  of  a  par- 
ticular word  should  be  of  conclusive  force. 

In  Georgia,  it  has  been  provided  by  law  that  the  sum 
fixed  shall  be  treated  as  a  penalty  whenever  the  damages 
are  "  capable  of  computation."  Under  this  provision,  a 
contract  to  furnish  all  the  turpentine  made  on  a  plantation 
at  a  fixed  price,  and  that  "  either  party  failing  to  perform 
their  part  forfeits  to  the  other  the  sum  of  $  1,000,"  is  an 
agreement  for  a  penalty.('')  It  will  be  seen  that  this  statu- 
tory provision  is  based  on  the  principle  of  adhesion  to  the 
fixed  legal  standard  of  compensation,  wherever  that  is 
possible. 

§  407.  The  liquidation  must  be  reasonable. — The  parties, 

(»)  Lee  V.  Overstreet,  44  Ga.  507. 


584  LIQUIDATED    DAMAGES.  §  4O7, 

then,  must  not  only  intend  that  the  sum  named  shall  be 
paid  over  to  the  plaintiff  upon  the  breach ;  the  sum  must 
also  be  reasonable  in  itself. (")  In  other  words,  in  every 
case  vv^here  a  fixed  sum  is  stipulated  as  damages,  the  court 
will  look  to  see  whether  the  stipulated  compensation  is  a 
reasonable  one  ;  and  if  not,  they  will  require  damages  to 
be  assessed  as  if  no  stipulated  sum  were  named  in  the  con- 
tract. In  the  words  of  the  Supreme  Court  of  Michigan: 
"  Just  compensation  for  the  injury  sustained  is  the  princi- 
ple at  which  the  law  aims,  and  the  parties  will  not  be  per- 
mitted, by  express  stipulation,  to  set  this  principle 
aside."('')  So  firmly  is  this  principle  applied  that  the 
liquidation  provided  by  a  contract  may,  as  the  circum- 
stances show  to  be  equitable,  in  one  case  be  upheld,  and 
in  another  set  aside.  Thus  in  Hahn  v.  Horstman,(°J  a 
case  of  a  common  building  contract,  with  stipulated  dam- 
ages at  the  rate  of  twenty  dollars  a  day  for  delay  in  com- 
pleting the  contract,  the  defendant  left  the  work  unfin- 
ished ;  and  the  plaintiff",  more  than  a  year  after  the  time 
for  completion,  brought  suit,  claiming  damages  for  the 
whole  time  at  the  stipulated  rate.  If  the  work  had  been 
finished,  though  a  few  days  after  the  agreed  time,  it  is 
well  settled,  as  will  be  seen,  that  the  stipulated  sum  could 
be  recovered.  In  this  case,  however,  to  allow  recovery  at 
the  stipulated  rate  would  be  grossly  in  excess  of  compen- 
sation ;  and  the  court  refused  to  allow  damages  at  the 
stipulated  rate.(*) 

Some  courts  say  that  the  damages  must  not  be  "  grossly 


(")  People  V.  C.  P.  R.R.  Co.,  76  Cal.  29  ;  Perzell  v.  Shook,  53  N.  Y.  Super. 
Ct.  501  ;  Sleeman  v.  Waterous,  23  Up.  Can.  C.  P.  195. 
C)  Marston,  J.,  in  Myeri/.  Hart,  40  Mich.  517,  523. 
(=)  12  Bush  249. 

C)  Ace.  Greer  v.  Tweed,  13  Abb.  N.  S.  427  ;  Colwell  v.  Foulks,  36  How. 
Pr.  306. 


§  407-        THE  LIQUIDATION  MUST  BE  REASONABLE.  585 

excessive,"  (*)  some  that  they  must  not  be  "  unjust  and 
oppressive,"  Q)  "  unreasonable,"  (")  "  extravagant,"  (")  or 
"  disproportionate";  (*)  but  all  seem  to  agree  upon  the 
principle  that  the  stipulated  sum  will  not  be  allowed  as 
liquidated  damages  unless  it  may  fairly  be  allowed  as 
compensation  for  the  breach.  (')  Thus  where  a  contract 
of  hiring  provided  that,  on  the  servant  leaving  without 
notice,  whatever  was  then  due  to  him  should  be  consid- 
ered as  liquidated  damages  for  the  breach  of  his  contract, 
it  was  held  that  the  forfeiture  would  not  be  enforced  by 
the  courts.  Since  the  arrears  of  wages  might  be  large 
or  small,  the  principle  of  compensation  was  clearly  de- 
parted from  by  the  parties ;  (^)  but  the  forfeiture  of  a 
fixed  reasonable  sum  would  be  allowed. C") 

A  transaction  was  once  common  in  certain  parts  of 
the  country,  whereby  a  debtor  in  embarrassed  circum- 
stances obtained  an  extension  of  time  from  his  creditors 
by  means  of  an  agreement  by  them  not  to  sue  on  their 
demands  for  a  certain  length  of  time,  it  being  provided 
in  the  agreement  that  if  suit  were  brought  within  the 
time   limited,   the   debt   should   be  wholly   discharged. 


(»)  Parr  v.  Greenbush,  42  Hun  232. 

C")  Scofield  V.  Tompkins,  95  111.  190;  Mueller  v.  Kleine,  27  111.  App.  473  ; 
Higginson  v.  Weld,  14  Gray  165. 

(')  Hardee  v.  Howard,  33  Ga.  533  ;  Sutton  v.  Howard,  33  Ga.  536  ;  Max- 
well V.  Allen,  78  Me.  32  ;  Daly  v.  Maitland,  88  Pa.  384  ;  Williams  v.  Vance, 
9  S.  C.  344;  Schrimpf  v.  Tenn.  Manuf.  Co.,  86  Tenn.  219. 

('')  Gammon  v.  Howe,  14  Me.  250. 

(=)  Jaqua  v.  Headington,  1 14  Ind.  309  ;  Hamaker  v.  Schroers,  49  Mo.  406  ; 
Staples  V.  Parker,  41  Barb.  648. 

(0  Cases  cited  above,  also  Tholen  v.  Duffy,  7  Kas.  405  ;  Stearns  v.  Bar- 
rett, I  Pick.  443  ;  Gower  v.  Saltmarsh,  11  Mo.  271 ;  Dennis  v.  Cummins,  3 
Johns.  Cas.  297  ;  Burrage  v.  Crump,  3  Jones  L.  330;  Pennypacker  v.  Jones 
106  Pa.  237  ;  Jones  v.  Queen,  7  Can.  570.  ' 

(s)  Richardson  v.  Woehler,  26  Mich.  90 ;  Schrimpf  v.  Tenn.  Manuf.  Co., 
86  Tenn.  219  ;  ace.  Jones  v.  Queen,  7  Can.  570. 

(■■)  Richardson  v.  Woehler,  26  Mich.  90. 


586  LIQUIDATED    DAMAGES.  .  §  408. 

This  provision  was  enforced  by  the  Supreme  Court  of 
Massachusetts. C)  It  will  be  seen  that  breach  of  the 
agreement  by  one  creditor  might  defeat  the  whole  trans- 
action, and  therefore  that  the  stipulation  was  not  at  all 
unreasonable. 

§  408.  Language  not  conclusive — Rule  in  case  of  doubt. 
— It  follows  from  what  has  been  said  that  the  language  of 
the  contract  is  not  conclusive.  The  question  whether  a 
stipulated  sum  is  to  be  allowed  as  liquidated  damages  is 
a  question  of  laWjC*)  and  no  agreement  of  the  parties  to 
call  it  a  penalty  or  liquidated  damages  can  decide  the  ques- 
tion. It  is  expressly  said  in  a  well-considered  case  decided 
by  the  Supreme  Court  of  Michigan,  that  even  if  it  were 
admitted  as  a  fact  that  the  parties  intended  the  sum  to  be 
considered  as  liquidated  damages  and  not  as  a  penalty, 
the  admission  could  have  no  influence  upon  the  decision 
of  a  court  of  la\v.(°)  The  mere  use  of  the  word  "  pen- 
alty," "penal,"  or  "forfeit"  on  one  side,  or  "stipulated 
damages "  on  the  other,  will  therefore  not  decide  the 
question.C')  The  only  inquiry  as  to  intention  is  whether 
or  not  the  parties  intended  the  sum  to  be  accepted  as  com- 
pensation. That  is  a  question  involving  the  interpretation 
of  the  contract,  and  of  course  no  evidence  on  the  question 
can  be  received  dehors  the  instrument.  The  case  of 
Bigony  v.  Tyson  (^)  is  in  conflict  with  the   views  ex- 

(")  White  V.  Dingley,  4  Mass.  433. 

C)  Samter  v.  Ferguson,  7  C.  B.  716 ;  Reindel  v.  Schell,  4  C.  B.  (N.  S.)  97. 

C)  Jaquith  ■v.  Hudson,  5  Mich.  123,  136. 

{^)  Parfitt  V.  Chambre,  L.  R.  15  Eq.  36 ;  Fletcher  v.  Dyche,  2  T.  R.  32  ; 
Sainter  v.  Ferguson,  7  C.  B.  716  ;  Jones  v.  Green,  3  Y.  &  J.  298;  Bignall  v. 
Gould,  119  U.  S.  495  ;  Scofield  v.  Tompkins,  95  111.  190;  Duffy  v.  Shockey, 
II  Ind.  70;  Beard  z/.  Delaney,  35  la.  16;  Pierce  z/.  Fuller,  8  Mass.  223; 
Jaquith  v.  Hudson,  5  Mich.  123;  Nobles  v.  Bates,  7  Cow.  307;  Eakin  v. 
Scott,  70  Tex.  442 ;  Yenner  v.  Hammond,  36  Wis.  277  ;  Henderson  v. 
Nichols,  5  Up.  Can.  Q.  B.  398 ;  Chatterton  v.  Crothers,  9  Ont.  683. 

0  75  Pa.  157. 


§  40g.  RULES    OF   INTERPRETATION.  587 

pressed  here.  There  the  agreement  was  in  the  form  of  a 
common  bond,  binding  Bigony  not  to  practice  medicine 
within  a  certain  district.  The  court  beloW/charged  the 
jury  that  the  sum  named  in  the  bond  was  liquidated  dam- 
ages. This  the  court  above  decided  to  be  error,  but  sent 
the  case  down  for  a  new  trial,  on  the  ground  that  while 
there  was  nothing  in  the  instrument  itself  which  would 
enable  the  court  to  construe  it  as  anything  but  a  bond,  the 
plaintiff  was  entitled  to  have  the  jury  pass  upon  the  inten- 
tion of  the  parties  outside  the  contract.  The  court  even 
speaks  of  the  "  well  established  "  rule  that  "  the  intention 
of  the  parties,  gathered  £xira  the  written  instrument,  may 
control  the  technical  rule  as  found  upon  the  face  of  that 
instrument,  and  thus  fix  the  sum  therein  mentioned  as 
stipulated  damages";  and  adds,  "  it  is  obvious,  then,  that  this 
dispute,  involving,  as  it  does,  the  character  of  the  obliga- 
tion in  controversy,  can  be  settled  only  by  a  jury."  The 
court  refers,  however,  to  no  authorities,  and  the  decision 
cannot  be  supported  on  principle.  In  interpreting  the 
contract,  the  court  when  in  doubt  will  presume  the  par- 
ties not  to  have  rneant  the  stipulated  sum  to  be  compen- 
sation, or  in  other  words,  will  treat  the  sum  fixed  by  the 
parties  as  a  penalty.  (^) 

§409.  Rules  of  interpretation. — Having  now  stated  the 
general  rules  applicable  to  all  contracts,  we  proceed  to  ex- 
amine the  particular  canons  applicable  in  certain  well-de- 
fined classes  of  cases.  These,  however,  are  derived  from 
and  are  themselves  no  more  than  particular  applications 
of  the  general  rules.  It  should  be  observed,  also,  that 
they  are  really  artificial  canons  of  interpretation,  applied 


(')  Davies  v.  Penton,  6  B.  &  C.  216  ;  Crisdee  v.  Bolton,  3  C.  &  P.  240  ;  Peo- 
ple V.  C.  P.  R.R.  Co.,  76  Cal.  29  ;  Bearden  v.  Smith,  11  Rich.  L.  554  ;  Baird 
7/.  Tolliver,  6  Humph.  186 ;  Moore  v.  Anderson,  30  Tex.  224 ;  Smith  v. 
Wainwright,  24  Vt.  97,  103 ;  Henderson  v.  Nichols,  5  Up.  Can.  Q.  B.  B.  398. 


588  LIQUIDATED   DAMAGES.  $410. 

by  the  court  to  the  construction  of  the  contract,  and  are 
not  formulated  as  positive  rules  of  law  for  the  guidance 
of  the  jury.  They  only  express  the  experience  of  judges 
in  applying  a  variety  of  tests  to  the  contract  in  order  to 
determine  whether  it  conforms  to  a  certain  legal  standard, 
or  whether,  falling  short  of  this  standarfl,  it  must  be  set 
aside. 

§  410.  Penal  sum  collateral  to  object  of  contract. —  Where 
the  stipulated  sum  is  wholly  collateral  to  the  object  of  the 
contract,  being  evidently  inserted  merely  as  security  for 
performance,  it  will  not  be  allowed  as  liquidated  damages. 
In  a  contract  for  the  sale  of  land  for  $8,000,  payable, 
$5,000  on  the  ist  of  January  following,  and  the  rest  in 
three  annual  instalments,  a  clause  stating  that  "  in  further 
confirmation  of  the  said  agreement,  the  parties  bind 
themselves,  each  to  the  other,  in  the  penal  sum  of  $i,ooo," 
is  not  to  be  considered  as  liquidated  damages  for  the 
breach  of  this  agreement,  but  as  a  penalty  superadded.  (*) 

The  plaintiff  drew  up  and  delivered  to  the  defendant 
a  written  lease  of  land  of  the  plaintiff,  and  the  defendant 
agreed  to  return  the  lease  in  ninety  days  or  pay  $3,000 
on  failure  to  do  so.  It  was  held  that  this  sum  was  wholly 
collateral  to  the  loan  of  the  written  instrument,  and  was 
not  liquidated  damages.  (")  The  defendant  agreed  to 
allow  the  plaintiff  to  use  a  certain  building  while  it 
stood,  and  gave  him  a  note  payable  on  breach  of  the 
agreement.  This  note  was  held  not  to  be  enforceable, 
since  it  was  in  the  nature  of  a  penalty.('')  A  penal  bond 
comes  ordinarily  under  this  rule.  In  some  exceptional 
cases  the  penalty  in  a  bond,  as  will  be  seen,  is  regarded 


(»)  Robinson   v.  Cathcart,    2  Cranch  C.  C.  590 ;  ace.  Richards  v.  Edick, 
17  Barb.  260 ;  Law  v.  House,  3  Hill  (S.  C.)  268. 
(>>)  Burrage  v.  Crump,  3  Jones  L.  330. 
(«)  Merrill  v.  Merrill,  1 5  Mass.  488. 


§41 1-        SUM  FOR  NON-PAYMENT  OF  SMALLER  SUM.  589 

as  liquidated  damages ;  but  in  general  it  is  regarded  as  a 
penalty.  So  of  a  bond  to  submit  to  arbitration, (")  or  to 
convey  land.C")  The  rule  is  the  same  if  such  an  arrange- 
ment is  in  the  form  of  an  ordinary  contract.  If  an  agree- 
ment to  submit  to  arbitration  is  secured  by  a  promise  to 
pay  a  collateral  sum  of  money  on  breach  of  the  agree- 
ment, that  sum  is  held  to  be  a  penalty,  and  payment  of  it 
is  not  enforced  by  the  court. (")  And  though  the  use  of 
the  words  "  penalty,"  "  forfeiture,"  "  liquidated  damages  " 
is  not  conclusive,  it  will  be  considered  by  the  court 
as  indicating  the  intention  of  the  parties  as  to  whether 
the  sum  named  was  or  was  not  regarded  by  them 
as  compensatory.('')  In  fact,  there  has  been  a  disposi- 
tion to  regard  the  word  "penalty"  as  conclusive;  and 
though  this  is  not  an  absolute  rule,  yet  great  reluctance 
is  shown  in  construing  as  liquidated  damages  a  sum  ex- 
pressly called  a  penalty  by  the  parties. 

§  411.  Stipulated  sum  for  non-payment  of  smaller  sum. — 
Whenever  an  amount  stipulated  is  to  be  paid  on  the  non- 
payment of  a  less  amount  or  on  default  in  delivering  a 
thing  of  less  value,  the  sum-  will  generally  be  treated  as  a 
penalty. (^^    Thus  where  the  defendant,  as  surety,  bound 


(»)  Henry  v.  Davis,  123  Mass.  345. 

C*)  Brown  v.  Bellows,  4  Pick.  179  ;  Robeson  v.  Whitesides,  16  S.  &  R.  320 ; 
Burr  V.  Todd,  41  Pa.  206. 

(°)  Spear  v.  Smith,  i  Den.  464 ;  Henderson  v.  Cansler,  65  N.  C.  542. 

('')  Reilly  v.  Jones,  i  Bing.  302;  Van  Burenw.  Digges,  n  How.  461  ;  Big- 
nail  V.  Gould,  119  U.  S.  495  ;  Dyer  v.  Dorsey,  i  G.  &  J.  440;  Stearns  v.  Bar- 
rett, I  Pick.  443  ;  Salters  v.  Ralph,  1 5  Abb.  Pr.  273  ;  Colwell  v.  Foulks,  36 
How.  Pr.  306;  Williams  v.  Vance,  9  S.  C.  344;  Smith  v.  Wainwright,  24 
Vt.  97. 

(«)  White  V.  Arleth,  i  Bond  319 ;  Haldeman  v.  Jennings,  14  Ark.  329  ; 
Tiernan  v.  Hinman,  16  III.  400 ;  Peine  v.  Weber,  47  111.  41  ;  Kuhn  v.  Myers, 
37  la.  351  ;  Hahn  v.  Horstman,  12  Bush  249;  Kellogg  v.  Curtis,  9  Pick. 
534 ;  Fisk  V.  Gray,  11  All.  132;  Morse  v.  Rathburn,  42  Mo.  594;  Morris  v. 
McCoy,  7  Nev.  399;  Lindsay  v.  Anesley,  6  Ired.  186;  Thoroughgood  v. 
Walker,  2  Jones  L.  1 5  ;  Smith  v.  Wainwright,  24  Vt.  97  ;  Rutherford  v. 


590  LIQUIDATED    DAMAGES.  §411' 

himself  in  the  sum  of  $240,  for  the  performance  by  his  prin- 
cipal of  a  contract  to  deliver  two  boat-loads  of  coal,  the 
sum  to  be  recoverable  on  failure  to  deliver  either,  the  sum 
was  not  allowed  as  liquidated  damages.(")  But  the  larger 
sum  may  appear  to  be  a  fair  compensation  for  the  breach. 
Thus  where  the  larger  sum  is  a  debt  actually  due,  but 
the  debtor  may  discharge  the  debt  by  the  payment  before 
a  certain  time  of  a  less  sum,  the  payment  of  the  larger 
sum  may  be  enforced  after  that  date.C")  So  a  note  for  a 
sum  certain  at  a  future  day,  which  may  be  discharged  by 
the  payment  of  a  lesser  sum  on  any  earlier  day,  is  valid, 
and  the  larger  sum  is  not  a  penalty,  (°)  Damages  for  such 
delay  will  often  be  an  equivalent  for  interest.  So  a 
stipulation  that  in  case  of  non-payment  of  a  note  at 
maturity  a  certain  additional  sum  should  be  paid  as  liqui- 
dated damages  for  delay  was  held  reasonable,  and  the 
amount  was  allowed  as  liquidated  damages.(*)  On  the 
same  principle,  a  provision  in  a  note  that  it  shall  bear 
interest  at  a  certain  rate  from  its  date  if  the  principal  is 


Stovel,  12  Up.  Can.  C.  P.  9.  In  Gowen  v.  Gerrish,  15  Me.  273,  defendant 
entered  in  a  bond  with  plaintiff  for  $7,000,  conditioned  that  he  should  not 
become  surety  for  any  other  person  than  plaintiff,  until  he  should  have  paid 
him  a  debt  of  $6,000,  for  which  a  long  credit  had  been  given.  The  credit 
had  been  given  upon  a  contract  for  the  purchase  of  real  estate,  and  the  sum 
secured  by  the  bond  exceeded  by  one-sixth  the  price  agreed.  The  court  said 
that  this  must  have  been  intended  to  secure  the  accruing  interest,  and  held 
the  measure  of  damages  on  breach  to  be  the  original  price,  with  interest. 
This  case  is  cited  in  an  article  contributed  to  the  American  Law  Review  by 
the  late  Mr.  John  Proffatt  of  the  California  Bar  (12  Am.  L.  R.  286),  as  one  in 
which  the  damages  were  held  to  have  been  liquidated,  but  we  do  not  so  un- 
derstand the  language  of  the  court. 

(")  Curry  v.  Larer,  7  Pa.  470. 

C")  Thompson  v.  Hudson,  L.  R.  4H.  L.  i. 

(=)  Jordan  v.  Lewis,  2  Stew.  426 ;  Carter^'.  Corley,  23  Ala.  612  ;  Waggoner 
V.  Cox,  40  Oh.  St.  539;  Campbell  v.  Shields,  6  Leigh  517.  But  contra, 
Moore  v.  Hylton,  i  Dev.  Eq.  429. 

(f)  Sutton  V.  Howard,  33  Ga.  536  ;  Yetter  v.  Hudson,  57  Tex.  604.  But 
contra,  Taul  v.  Everet,  4  J.  J.  Marsh  10  ;  Brockway  v.  Clark,  6  Oh.  46. 


§412.  SUM    NOT   PROPORTIONED    TO    INJURY.  59I 

not  paid  at  maturity  is  valid,  and  the  arrears  of  interest 
is  liquidated  damages  for  non-payment  of  the  money. (*) 

§  412.  Stipulated  sum  not  proportioned  to  injury. —  When- 
ever the  stipulated  sunt  is  to  be  paid  on  breach  of  a  con- 
tract of  such  a  nature  that  the  loss  may  be  much  greater 
or  much  less  than  the  sum,  it  will  not  be  allowed  as  liqui- 
dated damages.  In  a  contract  providing  for  payment  in 
instalments  it  is  often  provided  that  a  certain  proportion 
of  the  contract  price  shall  be  retained  at  each  payment ; 
and  upon  breach  of  the  contract  the  whole  sum  so  re- 
tained shall  be  forfeited.  It  is  held  in  some  States,  and 
this  seems  to  be  the  correct  view,  that  this  sum  bears  no 
proportion  to  the  actual  damage,  since  the  earlier  (and 
presumably  the  more  injurious)  the  breach,  the  less  the 
stipulated  damages  are ;  and  in  these  States  the  amount 
is  therefore  not  allowed  as  liquidated  damages. (*")  In 
other  States,  however,  the  amount,  if  not  excessive,  is 
allowed.  (°) 

§  413.  One  sum  stipulated  for  breach  of  contract  secur- 
ing several  things. — A  sum  fixed  as  security  for  the  per- 
formance of  a  contract  containing  a  number  of  stipula- 
tions of  widely  different  importance,  breaches  of  some  of 
which  are  capable  of  accurate  valuation,  for  any  of  which 
the  stipulated  sum  is  an  excessive  compensation,  is  a 
penalty. i^')      The  rule  is  not  always  fully  stated  in  the 

(•)  Reeves  v.  Stipp,  91  Hi.  609 ;  Wilson  v.  Dean,  10  la.  432 ;  Rogers  v. 
Sample,  33  Miss.  310.     But  contra.  Waller  v.  Long,  6  Munf.  71. 

C")  Savannah  &  C.  R.R.  Co.  v.  Callahan,  56  Ga.  331  ;  Jemtnison  %>.  Gray, 
29  la.  537  ;  Potter  v.  McPherson,  61  Mo.  240  ;  Dullaghan  v.  Fitch,  42  Wis. 
679.  explaining  and  affirming  Jackson  v.  Cleveland,  19  Wis.  400. 

(")  Elizabethtown  &  P.  R.R.  Co.  v.  Geoghegan,  9  Bush.  56 ;  Geiger  v. 
W.  M.  R.R.  Co.,  41  Md.  4 ;  Easton  v.  P.  &  O.  Canal  Co.,  13  Oh.  79. 

('')  Ex  parte  Capper,  4  Ch.  D.  724;  Davies  v.  Penton,  6  B.  &  C.  216; 
Edwards  v.  Williams,  5  Taunt.  247  ;  Kemble  v.  Farren,  6  Bing.  141  ;  Boys 
V.  Ancell,  5  Bing.  N.  C.  390 ;  Magee  v.  Lavell,  L.  R.  9  C.  P.  107 ;  Beckham 
V    Drake.  8  M.  &  W.  846  ;  Horner  v.  Flintoff,  9  M.  &  W   678 ;  Betts  v. 


592  LIQUIDATED    DAMAGES.  §413' 

cases  ;  the  court  usually  states  only  that  part  of  the  rule 
which  is  forcibly  brought  out  by  the  facts  under  consider- 
ation. Thus  it  is  sometimes  laid  down  in  a  more  specific 
form,  that  where  the  agreement  binds  the  parties  to  the 
performance  of  several  matters  of  different  degrees  of 
importance,  and  one  of  the  stipulations  contemplates  the 
payment  of  a  sum  of  money  less  than  the  sum  fixed  as 
security,  the  latter  is  to  be  regarded  as  a  penalty  ;(*)  some- 
times that  where  the  agreement  binds  the  parties  to  the 
performance  of  several  matters  of  different  degrees  of  im- 
portance, in  a  sum  made  payable  for  the  non-performance 
of  any  or  either  of  them,  it  must  be  regarded  as  a  pen- 
alty. C*)  But  it  is  very  difficult  to  see  how  a  mere  differ- 
ence of  degree  in  the  importance  of  the  stipulations 
can  of  itself  affect  the  question,  provided  the  damages 
are  uncertain  or  difficult  of  computation,  unless  indeed 
the  difference  creates  that  glaring  sort  of  a  dispropor- 

Burch,  4  H.  &  N.  506;  Watts  v.  Camors,  lij  U.  S.  31:3;  Nash  7/.  Hermo- 
silla,  9  Cal.  584 ;  People  v.  C.  P.  R.R.  Co.,  76  Cal.  29  ;  Trower  v.  Elder,  77 
III.  452;  Carpenter  v.  Lockhart,  i  Ind.  434;  Foley  v.  McKeegan,  4  la.  i  ; 
Lord  V.  Gaddis,  9  la.  265  ;  Hallock  v.  Slater,  9  la.  599  ;  Heatwole  v.  Gorrell, 
35  Kas.  692  ;  Heard  v.  Bowers,  23  Pick.  455  ;  Higginson  v.  Weld,  14  Gray 
165  ;  Daily  v.  Litchfield,  10  Mich.  29 ;  First  Orthodox  Cong.  Church  v.  Wal- 
rath,  27  Mich.  232  ;  Carter  v.  Strom,  41  Minn.  522 ;  Bright  v.  Rowland,  3 
How.  (Miss.)  398 ;  Moore  v.  Platte  County,  8  Mo.  467  ;  Basye  v.  Ambrose,  28 
Mo.  39;  Hammer  V.  Breidenbach,  31  Mo.  49;  Long  v.  Towl,  42  Mo.  545; 
Morris  v.  McCoy,  7  Nev.  399 ;  Whitfield  v.  Levy,  35  N.  J.  L.  149 ;  State 
V.  Dodd,  45  N.  J.  L.  525  ;  Jackson  v.  Baker,  2  Edw.  Ch,  471 ;  Niver  v.  Ross- 
man,  18  Barb.  50;  Staples  v.  Parker,  41  Barb.  648  ;  Beale  v.  Hayes,  5  Sandf. 
640 ;  Thoroughgood  v.  Walker,  2  Jones  L.  15  ;  Berry  v.  Wisdom,  3  Oh.  St.  241; 
Shreve  v.  Brereton,  51  Pa.  175 ;  March  v.  AUabough,  103  Pa.  335  ;  Lyman 
V.  Babcock,  40  Wis.  503 ;  McLean  v.  Tinsley,  7  Up.  Can.  Q.  B.  40 ;  Brown 
V.  Taggart,  lo  Up.  Can.  Q.  B.  183;  Rutherford  v.  Stovel,  12  Up.  Can.  C. 
P.  9. 

(")  Cotheal  v.  Talmage,  9  N.  Y.  551  ;  Lampman  v.  Cochran,  16  N.  Y. 
27s  ;  Clement  v.  Cash,  21  N.  Y.  253.  A  substantially  identical  interpretation 
was  arrived  at  in  Brewster  v.  Edgerly,  13  N.  H.  275,  where,  however,  the 
court  refused  to  accede  to  the  rule. 

C)  Hahn  v.  Horstman,  12  Bush  249. 


§  4H'   DEPOSIT  TO  BE  FORFEITED  ON  DEFAULT.     593 

tion  between  the  injury  likely  to  arise  from  a  breach  and 
the  stipulated  remedy,  which  enables  the  court  to  say  at 
once  that  the  parties  could  not  have  intended  such  a 
result,  or  that  it  would  be  unjust  to  allow  this  expressed 
intention  of  the  parties  to  govern.  The  rule  in  its  gen- 
eral form  is  that  stated  above. 

The  rule  in  its  varying  forms  appears  to  be  based  upon 
the  principle  already  stated,  that  when  the  court  can  see 
that  the  fundamental  guide  of  compensation  has  been 
abandoned  by  the  parties,  and  an  arbitrary  and  unjust 
measure  applied,  they  will  not  allow  the  intention  of  the 
parties  to  take  effect.  That  this  must  frequently  be  the 
case  in  contracts  covering  a  variety  of  stipulations  differ- 
ing from  others  in  importance,  provided  the  stipulations, 
or  some  of  them,  are  such  that  the  actual  damages  can  be 
readily  calculated,  is  obvious.  Where  a  contract  consists 
of  several  important  stipulations,  and  damages  cannot  be 
adequately  assessed  for  a  breach  of  any  of  the  stipulations, 
the  court  (except,  no  doubt,  in  case  of  great  disproportion 
between  the  stipulated  sum  and  the  actual  loss)  will  en- 
force the  payment  of  the  stipulated  sum  as  liquidated  dam- 
ages.C) 

§  414.  Deposit  to  be  forfeited  on  default. —  Where  the  in- 
strument refers  to  a  sum  deposited  as  security  for  per- 
form.ance,  the  forfeiture,  if  reasonable  in  amount,  will 
be  enforced  as  liquidated  damages.Q'^  The  intention  is 
evident  here  that  the  money  shall  actually  be  paid  over 
upon  breach  of  the  contiract.     In  a  recent  case  in  New 


(•)  Wallis  V.  Smith,  21  Ch.  Div.  243 ;  Mercer  v.  Irving,  E.  B.  &  E.  563. 

Q')  Wallis  V.  Smith,  21  Ch.  Div.  243 ;  Reilly  v.  Jones,  i  Bing.  302;  Hinton 
V.  Sparkes,  L.  R.  3  C.  P.  161  ;  Lea  v.  Whitalter,  L.  R.  8  C.  P.  70  ;  Swift  v. 
Powell,  44  Ga.  123  ;  Perzell  v.  Shook,  53  N.  Y.  Super.  Ct.  501 ;  Mathews  v. 
Sharp,  99  Pa.  560 ;  Eakin  v.  Scott,  70  Tex.  442.  This  principle  is  the  true 
explanation  of  Stillwell  v.  Temple,  28  Mo.  156. 

VOL.  I.-38 


594  LIQUIDATED    DAMAGES.  §415- 

York,('')  however,  this  rule  was  held  to  apply  only  where 
the  deposit  was  made  in  part  performance  of  the  contract, 
not  where  it  was  a  mere  security.  In  that  case  $1,500 
were  deposited  by  a  lessee  to  secure  payment  of  the  rent 
of  $500  a  month.  Upon  default  in  the  payment  of  one 
month's  rent  it  was  held  that  the  whole  deposit  would  not 
be  forfeited.  It  will  be  noticed,  however,  that  the  deci- 
sion itself  is  not  in  conflict  with  the  rule  as  above  stated, 
since  the  deposit  was  greatly  in  excess  of  the  actual  dam- 
age ;  and  this  fact  was  noticed  by  the  court. 

§  415.  Contracts  performed  in  part. — If  the  contract  is 
one  in  which  the  measure  of  damages  for  part  perform,- 
ance  is  ascertainable  and  a  sum  is  stipulated  for  breach 
of  it,  this  sum,  will  not  be  allowed  as  liquidated  damages 
in  case  of  a  partial  breach  ;  for  what  would  be  reasonable 
compensation  in  case  of  a  total  breach  would  not  be  such 
in  case  of  a  partial  breach.C")  If  it  appears  affirmatively 
from  the  language  of  the  contract  that  the  sum  was 
meant  to  be  payable  only  in  case  of  total  breach,  the 
stipulated  sum  will  not  be  considered  at  all  in  an  action 
for  a  partial  breach. (°)  In  Louisiana,  by  statute,  if  the 
obligation  is  partly  executed  the  judge  may  modify  the 
penalty.  (*) 

The  contract  may  be  of  such  a  nature  that  the  per- 
formance, though  it  consists  of  various  acts  or  a  series  of 

(*)  Chaude  v.  Shepard,  122  N.  Y.  397. 

0")  Charrington  v.  Laing,  6  Bing.  242 ;  Ex  parte  Pollard,  2  Low.  41 1  ; 
Watts  V.  Sheppard,  2  Ala.  425  ;  Keeble  v.  Keeble,  85  Ala.  552  {semble) ; 
Heatwole  v.  Gorrell,  35  Kas.  692  ;  Shute  v.  Taylor,  5  Met.  61  ;  Gower  v. 
Saltmarsh,  II  Mo.  271 ;  Hamaker  v.  Schroers,  49  Mo.  406  ;  Wibaux  v.  Grin- 
nell  L.  S.  Co.,  9  Mont.  154;  Lampman  v.  Cochran,  16  N-  Y.  275;  Colwell 
V.  Lawrence,  38  Barb.  643 ;  Wheatland  v.  Taylor,  29  Hun  70 ;  Owens  v. 
Hodges,  I  McM.  106  ;  Fitzpatrick  v.  Cottingham,  14  Wis.  219 ;  Sleeman  v. 
Waterous,  23  Up.  Can.  C.  P.  195. 

(')  Cook  V.  Finch,  19  Minn.  407. 

,(■•)  Code,  §2127. 


§  4l6.     SUM  IN  LIQUIDATION  OF  UNCERTAIN  DAMAGE^       595 

acts,  is  yet  one  complex  affair,  and  a  failure  to  perform 
any  part  is  really  a  total  breach,  defeating  the  entire  ob- 
ject of  the  contract.  In  such  a  case  the  stipulated  sum, 
if  not  unreasonable,  may  be  recovered,  although  there 
has  been  a  breach  of  only  one  stipulation.  Thus  the  ob- 
ject of  a  contract  by  the  defendant  to  refrain  from  intox- 
icating liquors  during  a  term  of  service  in  the  plaintiff's 
employ  is  entirely  lost  by  a  single  breach,  and  the  stipu- 
lated sum  may  be  recovered. (")  The  same  decision  has 
been  reached  in  the  case  of  a  contract  to  marry  and  sup- 
port a  wroman  and  give  her  no  cause  of  divorce,('')  and 
of  a  contract  between  manufacturers  of  a  certain  article 
to  employ  no  union  men,  use  no  union  label,  or  buy  and 
sell  no  article  marked  with  a  union  label.  (°) 

§  416.  Stipulated  sum  in  liquidation  of  uncertain  damage. 
—  Where,  independently  of  the  stipulation,  the  damages 
would  be  wholly  uncertain,  and  incapable  or  very  diffi- 
cult of  being  ascertained,  except  by  mere  conjecture,  there 
the  damages  will  be  usually  considered  liquidated.  C^) 

(•)  Keeble  v.  Keeble,  85  Ala.  552. 

C")  Stanley  v.  Montgomery,  102  Ind.  102. 

(=)  Schrader  v.  Lillis,  10  Ont.  358. 

C)  Reynolds  v.  Bridge,  6  E.  &  B.  528  ;  Hurst  v.  Hurst,  4  Ex.  571 ;  Harris 
V.  Miller,  6  Sawy.  319  ;  Keeble  v.  Keeble,  85  Ala.  552  ;  Williams  v.  Green,  14 
Ark.  315  ;  Cal.  Steam  Nav.  Co.  v.  Wright,  6  Cal.  258;  Fisk  v.  Fowler,  10 
Cal.  512;  People  v.  Love,  19  Cal.  676;  Tingley  v.  Cutler,  7  Conn.  291; 
Goldsborough  v.  Baker,  3  Cranch  C.  C.  48  ;  Newman  v.  Wolfson,  66  Ga.  764 ; 
Hamilton  v.  Overton,  6  Blackf.  206;  Studabaker  z*.  White,  31  Ind.  211; 
Wolf  z/.  D.  M.  &  F.  D.  Ry.  Co.,  64  la.  380 ;  Dwinel  v.  Brown,  54  Me.  468  ; 
Leary  v.  Laflin,  loi  Mass.  334;  Williams  r*.  Dakin,  22  Wend.  201 ;  Holmes 
V.  Holmes,  12  Barb.  137  ;  Esmond  v.  Van  Benschoten,  12  Barb.  366;  Mundy 
V.  Culver,  18  Barb.  336 ;  De  Groff  z/.  Amer.  Linen  Thread  Co.,  24  Barb.  375; 
Brinkerhoff  z'.  Olp,  35  Barb.  27  ;  Parr  v.  Greenbush,  42  Hun  232  ;  Bingham 
V.  Richardson,  I  Winston  (N.  C.)  217;  Lange  z/.  Werk,  2  Oh.  St.  519; 
Powell  V.  Burroughs,  54  Pa.  329  ;  Wolf  Creek  Diamond  Coal  Co.  v.  Schultz, 
71  Pa.  180  ;  Williams  v.  Vance,  9  S.  C.  344 ;  Indianola  v.  G.  W.  T.  &  P.  Ry. 
Co.,  56  Tex.  594  ;  Pierce  -v.  Jung,  10  Wis.  30;  Ryan  v.  Martin,  16  Wis.  57 ; 
Ivinson  v.  Althrop,  i  Wyo.  71 ;  Craig  v.  Dillon,  6  Ont.  App.  176. 


596  LIQUIDATED    DAMAGES.  §416. 

The  uncertainty  contemplated  by  the  rule  is  an  un- 
certainty as  to  the  extent  and  amount,  and  not  as  to  the 
proper  measure  of  damages.  If  the  views  expressed 
above,  however,  are  correct,  the  mere  fact  that  the  pre- 
cise amount  of  damages  cannot  be  anticipated  will  not 
be  enough.  It  must  also  be  clear  that  there  will  not  be 
a  glaring  disproportion  between  the  sum  stipulated  and 
the  probable  legal  measure.  The  meaning  and  scope  of 
the  rule  can  best  be  learned  by  an  examination  of  the 
cases. 

The  plaintiff  and  other  landowners  subscribed  towards 
building  a  hotel  by  the  defendant  near  their  land  ;  the 
defendant  agreed,  in  case  he  failed  to  build  the  hotel,  to 
pay  $20,000  to  the  subscribers.  This  sum  was  allowed  as 
liquidated  damages.('')  The  plaintiff  and  defendant, 
manufacturers  of  cigars,  in  order  to  oppose  the  demands 
of  their  workmen,  mutually  agreed  to  employ  no  union 
workman,  use  no  union  label,  and  buy  or  sell  no  cigar 
marked  with  a  union  label.  On  any  breach  $500  were  to 
be  paid.  This  was  allowed  as  liquidated  damages. (^) 
In  an  agreement  to  extend  streets  through  land  sold  by 
the  defendants  to  the  plaintiff  the  sum  of  $250  was 
named  as  liquidated  damages  in  case  of  default.  It  was 
held  that  that  amount  might  be  recovered. (")  Where 
the  plaintiff  licensed  the  defendant  to  use  his  patent, 
with  an  agreement  that  the  plaintiff  might  at  any  time 
inspect  the  work  done  under  the  license  "  under  a  penalty 
of  $1,000  fixed  as  liquidated  damages,"  it  was  held  that 
the  amount  might  be  recovered.  (■*) 

The  contract  of  a  railway  company  with  its  conductors 


(')  Chaser/.  Allen,  13  Gray  42. 
C)  Schrader  v.  Lillis,  10  Ont.  358. 
(°)  Jaqua  v.  Headington,  114  Ind.  309. 
C)  Woosterz/.  Kisch,  26  Hun  61. 


§4l6.      SUM  IN  LIQUIDATION  OF  UNCERTAIN  DAMAGE.       597 

provided  that  any  conductor  who  took  a  fare  directly 
from  a  passenger  should  be  liable  to  a  fine  of  $15.  This 
was  held  to  be  a  reasonable  stipulation,  and  the  fine  was 
allowed  as  liquidated  damages. (*)  Where  an  assignor  of 
a  mortgage  agreed  with  his  assignee,  that  a  decree  fore- 
closing a  prior  mortgage  on  the  same  and  other  premises, 
should  provide  that  the  others  be  first  sold,  and  their 
proceeds  applied  to  the  prior  mortgage,  stipulating  in  the 
agreement  that  if  it  were  not  performed,  he  should  pay 
the  assignee  a  specific  sum  (equal  to  the  amount  of  the 
assigned  mortgage),  this  stipulation,  on  account  of  the 
uncertainty  of  the  damages,  was  held,  by  the  New  York 
Court  of  Appeals,' to  liquidate  them,  and  not  to  be  a 
penalty.  (**) 

In  Mclntire  v.  Cagley  (°)  the  parties  had  stipulated  for 
ten  per  cent,  of  the  amount  of  a  note  as  attorney's  fees, 
if  the  note  were  collected  by  suit.  It  was  held  that  the 
amount  was  to  be  considered  as  liquidated  damages,  on 
the  ground  of  the  impossibility  of  ascertaining  with  cer- 
tainty beforehand  the  pecuniary  measure  of  the  injury. 
But  where  a  mortgage  note  for  a  large  amount  stipulated 
that  in  case  legal  proceedings  were  necessary  the  mort- 
gagee should  be  entitled  to  five  per  cent,  of  the  note  as 
an  attorney's  fee,  the  stipulated  sum  was  held  excess- 
ive. (*)  In  Michigan  a  lump  sum  as  an  attorney's  fee 
was  held  a  penalty ;{")  but  in  Wisconsin,  where  it  was 
reasonable  in  amount,  it  was  allowed  as  liquidated  dam- 
ages. (')  Upon  breach  of  a  covenant  to  discharge  an 
incumbrance  the  amount  stipulated  may  be  recovered  as 

(»)  Birdsall  v.  Twenty-third  St.  Ry.  Co.,  8  Daly  419. 

O  Cowdrey  v.  Carpenter,  i  Abb.  App.  445. 

(•=)  37  la.  676  ;  ace.  Tholen  v.  Duffy,  7  Kas.  405. 

('•)  Daly  V.  Maitland,  88  Pa.  384,  overruling  earlier  cases. 

(•)  Myer  v.  Hart,  40  Mich.  517. 

(f)  Tallman  v.  Truesdale,  3  Wis.  443. 


598  LIQUIDATED    DAMAGES.  §417' 

liquidated  damages.(°).  In  Berrinkott  v.  Traphagen  (*)  a 
bond  had  been  given  in  tlie  penal  sum  of  $900,  condi- 
tioned to  pay  to  plaintiff  the  interest  on  $464  every  year, 
and  in  case  of  default,  that  the  principal  should  become 
due.  Held,  (Ryan,  C.  J.,  diss.')  that  the  real  value  of  the 
annuity  could  not  be  determined  by  reference  to  tables 
of  mortality;  that  the  damages  were  therefore  uncertain, 
and  that  the  sum  named  must  be  regarded  as  liquidated 
damages.  On  an  agreement  by  the  defendant  to  buy  all 
his  meat  of  the  plaintiff,  a  stipulated  sum  was  allowed  as 
liquidated  damages  for  the  breach.  (") 

§  417.  Breach  of  contract  oi  sa\e.— Upon  breach  of  a  con- 
tract for  the  sale  of  property  of  uncet^tain  value  the  stip- 
ulated sum  is  allowed  as  liquidated  damages.i^)  In 
Gobble  V.  Linder,(*)  plaintiff  and  defendant  had  agreed  to 
exchange  farms.  The  contract  contained  a  provision  that 
either  party  failing  to  make  the  deed  in  exchange,  should 
"  forfeit  and  pay  as  damages  "  the  sum  of  $  i  ,500.  Defend- 
ant failed  to  perform.  By  stipulation  in  the  case,  plaintiff 
argued  that  the  actual  damages  did  not  exceed  $50.  The 
sum  was  decided  to  be  liquidated  damages. 

In  New  York  it  is  held  that  in  ordinary  contracts  for 
the  sale  of  land  the  amount  of  loss  is  easily  ascertained, 
and  that  therefore  the  stipulated  sum  will  not  be  allowed 
as  liquidated  damages  unless  there  is  some  other  ground 
for  so  considering  it.     This  is  held  both  in  cases  of  ex- 

(•)  Fasler  v.  Beard,  39  Minn.  32. 

C")  39  Wis.  219  ;  ace.  Waggoner  v.  Cox,  40  Oh.  St.  539.  But  where  the 
interest  on  the  stipulated  sum  was  greater  than  the  annuity,  it  was  held  a 
penalty.     Cairnes  v.  Knight,  17  Oh.  St.  68. 

(')  Lightner  v.  Menzel,  35  Cal.  452. 

C)  Gammon  v.  Howe,  14  Me.  250;  Chamberlain  v.  Bagley.  11  N.  H.  234; 
Mead  7/.  Wheeler,  13  N.  H.  351;  Main  v.  King,  10  Barb.  59;  Streeper  v. 
Williams,  48  Pa.  450;  Durst  v.  Swift,  11  Tex.  273  ;  Yenner  v.  Hammond,  36 
Wis.  277. 

e)  76  111.  157. 


§4^8.       OF  AGREEMENT  NOT  TO  CARRY  ON   BUSINESS.       599 

change  (")  and  of  sale  (^)  of  land.  If  the  parties  clearly 
intended  the  sum  to  be  paid  as  compensation,  it  will  be 
allowed  as  liquidated  damages  if  it  is  reasonable  in 
amount,(°)  but  not  otherwise.(^)  In  Kentucky  an  agree- 
ment that  in  case  of  eviction  from  the  granted  premises 
the  grantor  should  refund  the  consideration  with  interest 
was  held  to  make  that  sum  liquidated  damages.('')  The 
same  general  rule  applies  in  case  of  a  contract  for  the  sale 
of  an  interest  in  a  partnership,  (')  or  of  personal  property 
of  uncertain  price.  (^) 

§  418.  Of  agreement  not  to  carry  on  business. —  Where 
a  party  binds  himself-  in  a  sum  named  not  to  carry  on 
any  particular  trade;  business,  or  profession,  within  cer- 
tain limits,  or  within  a  specified  period  of  time,  the 
sum,  mentioned  will  be  regarded  as  liquidated  damages 
and  not  a  penalty. (^^  It  is  sometimes  said  that  agree- 
ments of  this  sort  are  alternative  in  character  ;  but  in 


(»)  Noyes  v.  Phillips,  60  N.  Y.  408. 

('■)  Richards  v.  Edick,  17  Barb.  260;  Laurea  v.  Bernauer,  33  Hun  307. 

(')  Slosson  V.  Beadle,  7  Johns.  72 ;  Hasbrouck  v.  Tappen,  15  Johns.  200; 
Knapp  V.  Maltby,  13  Wend.  587. 

('')  Dennis  v.  Cummins,  3  Johns.  Cas.  297. 

(•)  Bradshaw  v.  Craycraft,  3  J.  J.  Marsh  77. 

(')  Maxwell  v.  Allen,  78  Me.  32 ;  Lynde  v.  Thompson,  2  All.  456. 

(e)  Knowlton  v.  Mackay,  29  Up.  Can.  C.  P.  601. 

(■■)  National  Provincial  Bank  of  England  v.  Marshall,  40  Ch.  Div.  112; 
Reynolds  v.  Bridge,  6  E.  &  B.  528;  Sainter  v.  Ferguson,  7  C.  B.  716; 
Leighton  v.  Wales,  3  M.  &  W.  545  ;  Crisdee  v.  Bolton,  3  C.  &  P.  240 ;  Gal. 
Steam  Nav.  Co.  v.  Wright,  6  Cal.  258  ;  Streeter  v.  Rush,  25  Cal.  67  ;  New- 
man V.  Wolfson,  69  Ga.  764  ;  Duffy  v.  Shockey,  1 1  Ind.  70 ;  Spicer  v.  Hoop, 
51  Ind.  365  ;  Johnson  v.  Gwinn,  100  Ind.  466  ;  Applegate  t/.  Jacoby,  9  Dana 
206;  Holbrook  v.  Tobey,  66  Me.  410  ;  Pierce  v.  Fuller,  8  Mass.  223  ;  Cush- 
ing  V.  Drew,  97  Mass.  445  ;  Jaquith  v.  Hudson,  5  Mich.  123 ;  Cheddick  v. 
Marsh,  21  N.  J.  L.  463 ;  Hoagland  v.  Segur,  38  N.  J.  L.  230  ;  Nobles  v. 
Bates,  7  Cow.  307  ;  Smith  v.  Smith,  4  Wend.  468  ;  Dakin  v.  Williams,  17 
Wend.  447 ;  22  Wend.  201  ;  Dunlop  v.  Gregory,  10  N.  Y.  241  ;  Mott  v.  Mott, 
II  Barb.  127  ;  Lange  v.  Werk,  2  Oh.  St.  519 ;  Grasselli  v.  Lowden,  1 1  Oh. 
St.  349 ;  Muse  v.  Swayne,  2  Lea  251 ;  Barry  v.  Harris,  49  Vt.  392.  Contra, 
Perkins  v.  Lyman,  1 1  Mass.  76 ;  Smith  v.  Wainwright,  24  Vt.  97,  overruled. 


600  LIQUIDATED    DAMAGES.  §418. 

Stewart  v.  Bedell(^)  the  Supreme  Court  of  Pennsylvania 
decided  that  this  is  not  the  case.  In  Sparrow  v.  Paris  C") 
the  defendant  had  guaranteed  the  plaintiff,  a  shipper, 
that  no  more  than  one  ship  should  sail  for  Havana  be- 
fore that  containing  his  goods,  under  penalty  of  forfeit- 
ing one-half  the  freight  of  the  goods.  Although  the 
word  "  penalty"  was  used,  this  was  held  to  be  liquidated 
damages,  on  the  ground  that  the  sum  was  to  be  paid  on 
one  event,  and  was  not  a  security  for  the  performance  of 
several  matters.  An  attempt  was  made  in  this  case  to 
argue  that  several  events  were  secured,  viz.,  that  the  ship 
should  not  be  the  second,  nor  third,  nor  fourth,  etc. 
But  the  court  (Bramwell,  B.)  said  :  "  If  this  argument 
availed,  it  would  equally  have  availed  in  those  cases  where 
liquidated  damages  have  been  held  recoverable  for  carry- 
ing on  trade  within  limited  distances." 

Where  the  defendant  on  retiring  from  business  had 
covenanted  that  he  would  not  reside  within  the  distance 
of  two  and  a  half  miles  from  his  then  residence,  and  that 
if  he  did,  he  would  pay  ^i,ooo,  as  liquidated  damages, 
and  not  as  penalty  ;  and  he  fixed  his  new  residence  a  few 
feet  within  the  distance,  it  was  held  that  the  whole  sum 
was  recoverable  ;  Parke,  B.,  saying  that  Kemble  v.  Far- 
ren  was  "  somewhat  stretched,"  and  that  "  if  a  party 
agrees  to  pay;i^T,ooo  on  several  events,  all  of  which  are 
capable  of  accurate  valuation,  the  sum  must  be  construed 
as  a  penalty,  and  not  as  liquidated  damages.  But  if  there 
be  a  contract  consisting  of  one  or  more  stipulations,  the 
breach  of  which  cannot  be  measured,  then  the  parties 
must  be  taken  to  have  meant  that  the  sum  agreed  on 
was  to  be  liquidated  damages  and  not  a  penalty." ' 

'  Atkyns  v.  Kinnier,  4  Ex.  776  ;  ace.  Galsworthy  v.  Strutt,  i  Ex.  659. 


(■)  79  Pa.  336.  C)  7  H.  &  N.  594. 


§  4l8.       OF  AGREEMENT  NOT  TO  CARRY  ON  BUSINESS.      6oi 

» 

So,  again,  where  the  defendant  had  contracted  not  to 
practice  as  a  performer  within  a  certain  district,  he 
bound  himself  to  the  plaintiff  in  the  sum  of  ;^5,ooo,  "as 
and  by  way  of  liquidated  damages,  and  not  of  penalty"; 
the  authority  of  Kemble  v.  Farren  was  invoked  for  the 
defendant ;  but  the  court  said: 

"  Where  the  deed  contains  several  stipulations  of  various 
degrees  of  importance,  as  to  some  of  which  the  damages  might 
be  considered  liquidated,  whilst  for  others,  they  might  be  deemed 
unliquidated,  and  a  sum  of  money  is  made  payable  upon  a  breach 
of  any  of  them,  the  courts  have  held  it  to  be  a  penalty  only,  and 
not  liquidated  damages.  But  where  the  damage  is  altogether 
uncertain,  and  yet  a  definite  sum  of  money  is  expressly  made 
payable  in  respect  of  it  by  way  of  liquidated  damages,  those 
words  must  be  read  in  the  ordinary  sense,  and  cannot  be  con- 
strued to  import  a  penalty.'" 

Where  suit  is  brought  on  an  agreement  made  between 
two  coach  proprietors,  that,  in  consideration  of  a  certain 
sum  of  money,  the  defendant  would  withdraw  his  stage- 
coach, and  not  concern  himself  in  driving  any  other 
coach  on  that  road,  and  the  agreement  contained  a 
clause  that  for  its  due  and  punctual  performance,  each  of 
the  parties  bound  himself  to  the  other  "  in  the  sum  of 
^500,  to  be  considered  and  taken  as  liquidated  damages, 
or  sum  of  money  forfeited  or  due  from  the  one  party  to 
the  other,  who  shall  neglect  or  refuse  to  perform  his  part 
of  the  agreement ";  it  was  held  not  a  penalty,  but  liqui- 
dated damages,  from  which  the  court  would  not  depart.' 
And  the  same  point  w^as  decided  in  a  very  analogous 
case  at  an  early  day,"  by  the  Supreme  Court  of  Massa- 
chusetts, where  the  opinion  was  delivered  by  Mr.  Justice 
Sedgwick. 

So,  where  one  having  sued  the  owner  of  a  laboratory 

'  Green  w.  Price,  13  M.  &  W.  695;  '  Barton  v.  Glover,  i  Holt,  N.  P.  43. 
Price  V.  Green,  16  M.  &  W.  346.  '  Pierce  v.  Fuller,  8  Mass.  223. 


602  LIQUIDATED    DAMAGES.  §  419- 

in  the  neighborhood  for  damages  to  his  real  estate  from 
the  operations  of  the  laboratory,  the  parties,  pending  the 
suit,  entered  into  an  agreement  by  which  the  plaintiff 
discontinued  it,  and  the  defendant  agreed  to  stop  the 
laboratory  business  within  five  years,  or  pay  $3,000  as 
liquidated  damages,  and  the  defendant  did  not  close  the 
business  within  the  time,  the  court  held  that  the  $3,000 
were  liquidated  damages,  refusing  to  consider  the  fact 
alleged  by  the  defendant  that  the  mode  of  conducting  the 
business  had  been  so  changed  that  it  was  thereby  ren- 
dered entirely  harmless  and  unobjectionable,  as  affecting 
the  question. (")  But  where  the  parties  mutually  bound 
themselves  in  the  sum  of  $300,  one  to  pay  $150  for  a 
certain  business,  and  the  other  to  refrain  from  competi- 
tion, it  was  held,  in  an  action  by  the  purchaser,  that  the 
sum  stipulated  would  be  regarded  as  a  penalty.C")  The 
court  was  influenced  by  the  fact  that  the  sum  secured 
the  plaintiff's  payment  of  a  less  sum  of  money;  and  there 
is  no  doubt  that  as  to  him  the  amount  is  a  penalty.  But 
there  seems  to  be  no  reason  why  a  stipulated  sum,  though 
a  penalty,  so  far  as  regards  one  of  the  parties,  should  not 
be  regarded  as  liquidated  damages  when  the  other  party 
is  defendant. 

§  419.  For  delay  in  completing  performance. — Parties 
may  usually  liquidate  damages  for  delay  in  the  perform,- 
ance  of  a  contract.  This  is  one  of  the  commonest  in- 
stances of  stipulated  damages.  When  it  is  provided  in  a 
building  contract  that  the  work  shall  be  completed  on  a 
certain  day,  and  that  the  builder  shall  "  forfeit "  or  "  allow  " 
a  stipulated  sum  for  every  day  or  week  the  completion  of 
the  work  is  delayed  beyond  that  time,  the  stipulated  sum, 
if  a  reasonable  one,  may  be  recovered  as  liquidated  dam- 

(•)  Grasselli  v.  Lowden,  1 1  Oh.  St.  349. 
C)  Moore  v.  Colt,  127  Pa.  289. 


§419-   FOR  DELAY  IN  COMPLETING  PERFORMANCE.     603 

ages  for  the  delay.  (")  But  if  the  work,  instead  of  being 
delayed,  is  abandoned  in  an  unfinished  state  by  the  de- 
fendant, it  is  evident  that  the  stipulated  sum  cannot  be 
recovered  for  an  indefinite  time  ;  (")  it  w^ould  be  grossly 
oppressive  to  make  the  plaintiff  "  a  pensioner  upon  the 
defendant  ad  infinitum"  Whether  the  courts  would 
allow  the  plaintiff  a  reasonable  time  to  complete  the  work 
himself,  or  whether  they  would  refuse  altogether  to  enforce 
the  stipulation,  has  not  been  decided.  In  the  former  case 
we  should  have  another  illustration  of  the  application  of  the 
rule  of  avoidable  consequences,  elsewhere  discussed,  and  a 
consequence  of  this  would  be  that  the  party  injured  would 
be  allowed  the  stipulated  damages  for  a  reasonable  period, 
after  which,  his  duty  to  cause  the  contract  to  be  performed 
himself  would  interrupt  further  recovery  of  them.  A 
large  sum  agreed  to  be  paid  at  once  if  performance  is  de- 
layed beyond  a  certain. date  is  not  allowed  as  liquidated 
damages.('')  And  if  the  stipulated  damages  for  delay, 
though  proportioned  to  the  time  of  delay,  are  greatly  out 


(»)  Fletcher  v.  Dyche,  2  T.  R.  32  ;  Legge  v.  Hariock,  12  Q.  B.  loi  5  ;  Crux 
V.  Aldred,  14  W.  R.  656 ;  Mueller  v.  Kleine,  27  111.  App.  473 ;  Curtis  v. 
Brewer,  17  Pick.  513  ;  Folsom  v.  McDonough,  6  Cush.  208  ;  Hall  v.  Crowley, 
5  All.  304;  Bridges  v.  Hyatt,  2  Abb.  Pr.  449;  O'Donnell  v.  Rosenberg,  14 
Abb.  N.  S.  59;  Farnham  v.  Ross,  2  Hall  167;  Weeks  v.  Little,  47  N.  Y; 
Super.  Ct.  I  ;  Worrell  v.  McClinaghan,  5  Strobh.  115;  Welch  v.  McDonald, 
85  Va.  500 ;  Jones  v.  Queen,  7  Can.  570 ;  Gilmour  v.  Hall,  10  Up.  Can. 
Q.  B.  309;  McPhee  v.  Wilson,  25  Up.  Can.  Q.  B.  169;  Scott  v.  Dent,  38 
Up.  Can.  Q.  B.  30;  Gaskin  v.  Wales,  9  Up.  Can.  C.  P.  314;  Chatterton  v. 
Crothers,  9  Ont.  683  ;  Horton  v.  Tobin,  20  N.  S.  169 ;  Lefurgy  v.  Mc- 
Gregor, I  Pr.  Ed.  Isl.  72.  Contra,  Wilcus  v.  Kling,  87  111.  107,  where  no 
actual  damage  was  shown  ;  Patent  Brick  Co.  v.  Moore,  75  Cal.  205,  accord- 
ing to  the  Code,  §  1671,  which  allows  liquidated  damages  only  when  it  would 
be  impracticable  or  extremely  difficult  to  fix  the  actual  damage  ;  Brennan  v. 
Clark,  45  N.  W.  Rep.  472  (Neb.). 

C)  Hahn  v.  Horstman,  12  Bush  249;  Greer  v.  Tweed,  13  Abb.  N.  S.  427 
Colwell  V.  Foulks,  36  How.  Pr.  306. 

C)  Tayloe  v.  Sandiford,  7  Wheat.  13;  S.  &  C.  R.R.  Co.  v.  Callahan,  56 
Ga.  331.    But  contra,  Allen  v.  Brazier,  2  Bail.  293. 


604  LIQUIDATED    DAMAGES.  §  42O. 

of  proportion  to  the  actual  damage,  they  are  not  allowed. 
Thus  where  damages  for  delay  in  finishing  a  house,  the 
rental  value  of  which  was  $25  a  month,  were  stipulated 
at  $  1 50  a  week,  this  was  not  allowed  as  liquidated  dam- 
ages.(^) 

In  accordance  with  the  general  principle,  where  in  case 
of  the  non-delivery  of  negroes  at  a  certain  time  damages 
were  to  be  paid  ^t  a  stipulated  rate  per  year,  they  were 
allowed  at  that  ratcC")  A  carrier  agreed  to  deliver 
goods  at  a  certain  time,  or  to  deduct  a  stipulated  amount 
from  the  freight  for  every  day's  delay.  This  deduction 
was  allowed. C)  It  was  provided  in  a  lease  that  the 
lessee,  on  failure  to  surrender  the  premises  at  the  end  of 
the  term,  should  pay  double  rent.  This  was  allowed  as 
liquidated  damages. C)  In  case  of  an  agreement  to  fur- 
nish goods  at  a  certain  time,  or  to  pay  a  stipulated 
amount  per  day  as  damages  for  failure,  the  stipulated 
amount  is  enforced  as  liquidated  damages. (')  Ordinary 
clauses  for  demurrage  in  charter-parties  are  governed  by 
the  same  general  rule. 

§  420.  Stipulations  to  evade  the  usury  laws. — *  If  the 
sum  be  evidently  fixed  to  evade  the  usury  laws  or  any 
other  statutory  provisions,  the  courts  will  relieve  by  treat- 
ing it  as  a  penalty. (^^     So,  in  a  case,'  where  a  bond  was 

'Orrj'.  Churchill,  i  H.  Black.  227,  232. 


(»)  Clements  v.  Schuylkill  R.  E.  S.  R.R.  Co.,  132  Pa.  445. 

C)  Tardeveau  v.  Smith,  Hardin  175. 

(")  Harmony  v.  Bingham,  12  N.  Y.  99. 

(J)  Walker  v.  Engler,  30  Mo.  130. 

(•)  Bergheim  v.  Blaenavon  Iron  &  Steel  Co.,  L.  R.  10  Q.  B.  319;  Young 
V.  White,  5  Watts  460. 

(0  Clark  V.  Kay,  26  Ga.  403  ;  Brown  v.  Maulsby,  17  Ind.  10;  Kurtz  v. 
Sponable,  6  Kas.  395  ;  Davis  v.  Freeman,  10  Mich.  188  ;  State  v.  Taylor,  10 
Oh.  378;  Shelton  •z/..  Gill,  11  Oh.  417.  In  Illinois,  an  agreement  in  a  promis- 
sory note  made  in  good  faith,  without  design  to  evade  the  usury  laws,  in  case 
the  note  is  not  paid  at  maturity,  to  pay  thereafter,  by  way  of  penalty,  a  rate 


§420.       STIPULATIONS   TO    EVADE   THE   USURY   LAWS.      605 

given  that  if  certain  bills  were  not  accepted,  the  obligors 
would  pay  the  amount  of  them,  with  interest  at  ten  per 
cent,  by  way  of  penalty,  it  was  insisted  that  the  damages 
were  liquidated.  But  Lord  Loughborough  said  :  "There 
can  only  be  an  agreement  for  liquidated  damages  where 
there  is  an  engagement  for  the  performance  of  certain 
acts  the  not  doing  of  which  would  be  injurious  to  one  of 
the  parties,  or  to  guard  against  the  performance  of  acts 
which  if  done  would  also  be  injurious.  But  in  cases  like 
the  present,  the  law^,  having  by  positive  rules  fixed  the 
rate  of  interest,  has  bounded  the  measure  of  damages." 
And  it  was  held  that  the  amount  of  the  bills,  with  legal 
interest  only,  could  be  recovered.  And,  in  a  similar 
case,  this  language  was  held  by  the  Supreme  Court  of 
New  York :  "  Such  facts  constitute  no  right  to  recover 
beyond  the  money  actually  due.  Liquidated  damages 
are  not  applicable  to  such  case.  If  they  were,  they 
•  might  afford  a  sure  protection  for  usury,  and  countenance 
oppression  under  the  form  of  law."'  ** 

Probably,  in  some  cases,  agreements  open  to  this  ob- 
jection would  be  wholly  void.  This  depends  upon  the 
local  statutes  with  regard  to  usury.  It  will  be  observed 
that  whenever  an  agreement  for  stipulated  damages  is 
treated  as  a  cover  for  usury,  and  therefore  converted  into 
a  penalty,  this  is  put  on  the  ground  of  the  violation  of 
the  statute  law.  The  intention  of  the  parties  in  cases  of 
this  sort  may  be,  either  to  liquidate  damages,  or  to  evade 
the  statute.     If  it  is  the  latter  case,  the  agreement  is  a 

'Gray   v.    Crosby,    18    Johns.    2iq,  certain  sum  on  the  non-performance  of 

226.     In  Galsworthy  v.  Strutt,  i  Exch.  a  covenant  to  pay  a  smaller  sum;  but 

659,   665,    Parke,    B.,   is   reported  to  they  must  do  so  in  express  terms;  and 

have  said,  with,  perhaps,  less  than  his  if  that  be  done,  I  do  not  see  how  the 

usual  care  and  discrimination:  "  I  take  courts  can  avoid  giving  effect  to  such  a 

it  that  it  would  be  competent  for  the  contract. " 
parties  to  make  a  stipulation  to  pay  a 


exceeding  the  legal  rate  until  paid,  is  not  usurious.    Lawrence  v.  Cowles,  13 
111.  577  ;  Gould  v.  The  Bishop  Hill  Colony,  35  III.  324. 


6o5  LIQUIDATED    DAMAGES.  §421- 

nullity,  as  contrary  to  express  law  ;  if  the  former,  inten- 
ion  is  not  allowed  to  prevail.  In  a  Kansas  case  of  the 
sort  under  consideration  it  was  held  that  it  must  affirma- 
tively appear  that  the  stipulation  was  not  an  evasion  of 
the  usury  law ;  and  in  case  of  doubt  the  stipulation  would 
not  be  allowed.  (") 

§  421.  Alternative  contracts — Rule  of  least  beneficial 
alternative. — In  dealing  with  such  contracts  as  provide 
for  performance  in  the  alternative,  as,  for  instance,  a  con- 
tract to  do  a  certain  act  or  pay  a  certain  sum  of  money, 
there  is  at  the  outset  an  important  question  of  interpre- 
tation. The  intention  of  the  parties  may  have  been  really 
to  give  an  option  to  the  defendant.  This  is  a  true  alter- 
native contract.  The  rule  in  that  case,  as  will  be  seen, 
is  that  the  plaintiff  recovers  compensation  for  the  less 
valuable  alternative,  on  the  supposition  that  had  the  de- 
fendant performed,  he  would  have  taken  upon  himself 
the  discharge  of  the  least  onerous  obligation. 

A  simple  case  will  show  the  complicated  character  of 
the  questions  that  may  arise.  J.  S.,  an  owner  of  horses, 
contracts  to  deliver,  after  a  race,  his  horse  A.  or  his  horse 
B.,  both  being  entered  for  the  race  ;  he  clearly  has  his 
election  to  deliver  either.  Looking  at  the  contract  at 
the  time  of  its  being  entered  into,  it  is  impossible  to  say 
which  is  the  least  beneficial  alternative.  After  the  race, 
if  A.  makes  better  time  than  B.,  it  will  probably  be  for 
the  owner's  interest  to  deliver  B. ;  and  on  a  breach,  the 
measure  of  damages  will  be  the  value  of  B.,  and  vice 
versa.  If  the  owner  enters  his  horse  A.,  and  the  contract 
be  to  deliver  A.  or  pay  a  sum  of  money,  the  rule  of  the 
least  beneficial  alternative,  in  the  event  of  A.'s  winning 
the  race,  may  make  the  measure  of  damages  the  loss 


(»)  Foote  V.  Sprague,  13  Kas.  155. 


§422.  DEVERILL  V.  BURNELL.  607 

arising  from  the  non-payment  of  the  money ;  or,  in  other 
words,  the  money  itself ;  but  if  A.  lost  the  race,  it  might 
very  likely  be  for  the  owner's  interest  to  deliver  him, 
rather  than  pay  the  money.  'If  the  rule  as  to  the  least 
beneficial  alternative  is  applicable  to  cases  of  this  kind, 
the  measure  of  damages  would,  in  such  a  case,  be  the 
value  of  A. 

§  422.  Deverill  v.  Burnell. — This  question  was  discussed 
by  the  English  Court  of  Common  Pleas  ;  (*)  and  though 
the  judges  differed  upon  the  interpretation  of  the  con- 
tract, they  seem  to  have  agreed  upon  the  distinction 
above  set  forth.  Plaintiff  gave  defendant  for  collection 
drafts  drawn  against  bills  of  lading,  on  an  agreement  that 
if  the  drafts  should  not  be  paid,  the  defendant  should 
either  return  them  or  pay  the  amount  of  them.  The 
jury  found  that  the  drafts  were  worthless.  It  was  held 
by  the  majority  of  the  judges  that  the  measure  of  dam- 
ages was  the  amount  of  the  bills.  Grove,  J.,  put  this  on 
the  ground  that  the  contract  was  "  not  in  the  strictest 
sense  an  alternative  promise,"  but  "  a  promise  that  the 
defendant  would  return  the  bills,('^)  and  if  he  did  not  re- 
turn them,  he  would  pay  the  amount  of  them  ";  and  Brett 
and  Keating,  JJ.,  seem  to  have  taken  the  same  view. 
Bovill,  C.  J.,  dissenting  from  this  interpretation,  said: 

"  The  question,  as  it  seems  to  me,  turns  entirely  on  the  con- 
struction of  the  lauguage  in  which  the  contract  is  alleged  in  the 
declaration.  If  the  contract  as  there  stated  is  simply  in  the 
alternative  to  do  one  of  two  things,  it  would  be  satisfied  by  the 
performance  of  either,  and  the  damages  would  be  the  loss 
occasioned  by  the  non-performance  of  that  alternative  which 
Tvould  be  least  beneficial  to  the  plaintiff.  If  the  true  construction 
be  that  of  the  two  things  to  be  done,  one  depended  upon  the 
non-performance  of  the  other ;  that  is,  if  the  defendant  did  not 

C)  Deverill  v.  Burnell,  L.  R.  8  C.  P.  47S. 
C")  /.  e..  Bills  of  exchange. 


6o8  LIQUIDATED    DAMAGES.  §  423. 

return  the  bills,  then  he  should  pay  the  amount  of  them,  the 
damages  would  be  the  non-payment  of  that  amount.  The  rule 
of  law  is  clear  that,  in  the  case  of  alternative  contracts,  the 
person  who  has  to  perform  the  contract  has  the  right  to  elect 
which  branch  of  the  alternative  he  will  perform.  On  the  other 
hand,  it  is  equally  clear,  if  the  contract  is  to  do  a  thing,  and  if 
not,  to  pay  a  sum  of  money,  then  the  damages  for  not  doing  the 
thing  are  the  sum  of  money." 

And  interpreting  the  contract  as  a  simple  alternative 
contract,  he  thought  the  measure  of  damages  should  be 
compensation  for  the  less  beneficial  alternative,  that  is,  for 
the  non-delivery  of  the  worthless  drafts. 

§  423.  Ordinary  rule.— Generally,  the  courts  have  laid  it 
down  as  a  rule  that  when  the  alternative  is  to  do  some 
particular  thing  or  pay  a  given  sum  of  money,  the  court 
will  hold  the  party  failing  to  have  had  his  election,  and 
compel  him  to  pay  the  money.  (")  So,  where,  in  consid- 
eration of  the  conveyance  of  certain  city  lots  for  $21,000 
only,  the  defendant  covenanted  that  he  would  erect,  on  or 
before  the  ist  of  May,  1836,  within  two  years,  two  brick 
houses  thereon,  or  in  default  thereof,  pay  $4,000  after  the 
I  St  of  May,  1836,  Bronson,  J.,  said  : ' 

"  This  does  not  belong  to  the  class  of  cases  in  which  the  ques- 
tion of  liquidated  damages  has  usually  arisen.  It  will  be  found 
in  most,  if  not  all  of  those  cases,  that  there  was  an  absolute 
agreement  to  do  or  not  to  do  a  particular  act,  followed  by  a 
stipulation  in  relation  to  the  amount  of  damages  in  case  of  a 
breach.  But  here  there  is  no  absolute  engagement  to  build  the 
houses.  It  was  optional  with  the  defendant  whether  he  would 
build  them  or  not." 

And  mainly  on  the  ground  that  the  defendant  had 
made   his  election   not   to  build,   but  to  pay,   and  that 

'  Bronson,  J.,  in  Pearson  v.  Williams,  24  Wend.  244  ;  s.  c.  in  error,  26 
Wend.  630.  

(»)  Pennsylvania  Ry.  Co.  v.  Reichert,  58  Md.  261  ;  Hodges  v.  King,  7  Met 
583 ;  Slosson  v.  Beadle,  7  Johns.  72  ;  Allen  v.  Brazier,  2  Bail.  293. 


§  424'  CONCLUSIONS  AS  TO  ALTERNATIVE  CONTRACTS.  .6o"9 

the  court  would  not  modify  or  reform  the  agreement  be- 
tween the  parties,  the  sum  of  $4,000  was  held  to  be  the 
measure  of  damages.'  That  this  rule,  however,  is  not  to 
be  applied  in  every  case,  but  depends  to  some  extent  upon 
the  circumstances,  is  shown  by  the  case  of  Kemp  v. 
Knickerbocker  Ice  Co.,('')  decided  by  the  New  York 
Court  of  Appeals.  The  defendant  contracted  to  deliver 
to  the  plaintiff  a  certain  amount  of  ice  at  a  fixed  price, 
and  in  case  of  breach  to  forfeit  one  dollar  a  ton.  The 
amount  to  be  furnished  was  disputed  by  the  defendant, 
who  delivered  a  less  amount  than  the  contract  called  for ; 
the  plaintiff  then  purchased  more  ice  of  the  defendant  at 
the  market  price,  which  exceeded  the  contract  price  by 
more  than  one  dollar  a  ton.  It  was  held  that  though  the 
stipulated  amount  would  ordinarily  be  allowed  as  liqui- 
dated damages,  yet  in  this  case  the  court  should  allow  the 
plaintiff  the  whole  excess  he  had  been  forced  to  pay  to 
the  defendant. 

§  424.  General  conclusions  as  to  alternative  contracts. — 
The  whole  subject  seems  to  be  involved  in  a  good  deal 
of  difficulty.  If  we  are  to  understand,  that  the  question  of 
hquidated  damages  is  not  involved  at  all,  the  cases  must 
turn  either  on  the  rule  of  the  least  beneficial  alternative  or 
the  still  simpler  rule  laid  down  in  Pearson  v.  Williams.  But 
frequently  a  contract  though  expressed  in  the  alternative 
must  be  designed  as  a  liquidation  of  damages,  and  if  the 
fundamental  principle  governing  the  whole  subject  is,  that 
the  court  will  only  follow  the  expressed  intention  of  the 

'  When  this  case  came  into  the  Court  half  built,  but  only  where  the  contract 

of  Errors,  Mr.  Senator  Ely  moved  to  must  be    wholly    performed,    or.   left 

reverse  the  judgment,  on  the  ground  wholly  unperformed.     It  is  plain  that 

that  the  doctrine  of  liquidated  damages  this  consideration  did  not  apply  to  this 

ought  never  to  apply  to  a  case  which  case.     But    there    may    be    instances 

admitted  of   partial    performance,   as  where  the  suggestion  will  be  found  not 

here  where  the  house  might  have  been  without  weight. 


(•)  69  N.  Y.  45- 
Vol.  I.— 39 


6lO  LIQUIDATED   DAMAGES.  §  424. 

parties  to  liquidate  the  damages,  when  this  intention  is 
not  calculated  to  work  injustice,  or  to  substitute  for  the 
compensation,  which  the  law  regards  as  proper,  an  arbi- 
trary and  oppressive  pecuniary  fine,  then  the  form  which 
the  agreement  takes  cannot  be  conclusive ;  and  an  alter- 
native contract  may  obviously  be  as  open  to  this  ob- 
jection as  any  other.  It  is  said  that  in  these  cases  the 
party  has  his  election,  and  the  law  will  hold  him  to  it ; 
but  so,  in  any  case,  it  may  be  said  that  a  party  has  his 
election  to  perform  his  contract  or  to  pay  the  sum  fixed 
upon  in  case  of  breach  ;  and  it  is  clear  that  in  every  case 
in  which  an  attempt  is  made  to  stipulate  damages,  the 
parties  contemplate  the  alternative  of  performance  or 
breach.  Besides  this,  if  the  canon  as  to  alternative 
contracts  be  invariable,  all  the  safeguards  contained  in  the 
other  rules  relating  to  liquidated  damages,  may  be  swept 
away  by  a  mere  change  in  the  phraseology  of  the  agreement, 
and  the  sum  fixed  as  security  for  the  performance  of  the 
same  covenant,  be  treated  as  a  penalty  if  it  is  found  in  a 
bond,  but  as  conclusive  if  found  in  an  alternative  contract. 
In  a  case  decided  by  the  Supreme  Court  of  North  Caro- 
lina, (*)  the  plaintiff  sued  on  a  contract  to  pay  $3,000  for 
a  lease  received  from  him,  or  return  the  lease  within 
ninety  days,  and  after  proving  its  execution,  rested.  The 
defendant  oflFered  to  prove  that  the  lease  was  of  little  or 
no  value,  insisting  that  the  sum  mentioned  in  the  instru- 
ment was  a  penalty.  The  evidence  was  rejected  by  the 
court,  and  the  plaintiff  recovered  judgment  for  $3,000, 
with  interest.  On  appeal  it  was  held  that  there  must  be 
a  new  trial,  on  the  ground  that,  "  to  consider  the  sum 
mentioned  in  the  contract  as  liquidated  damages,  would 
be  absurd  and  oppressive  on  the  defendant"  So,  too,  on 
a  promise  to  return  certain  bonds  or  pay  a  price  greatly 

C)  Bunage  v.  Crump,  3  Jones  L.  330. 


§425-  STIPULATION  OF  DAMAGES  STRICTLY  CONSTRUED.  6 II 

in  excess  of  their  value,  the  Supreme  Court  of  Tennessee 
held  the  sum  to  be  a  penalty.  (*)  Bell  &-,  Truit  C*)  was 
an  action  on  an  alternative  covenant  contained  in  a  lease 
of  lands  to  be  bored  for  oil,  to  commence  operations 
within  a  fixed  period  or  to  pay  to  the  lessor  $25  per 
annum  until  the  work  should  be  commenced.  On  breach 
by  lessee,  this  was  held  to  be  a  penalty,  and  the  plaintiff 
only  allowed  to  recover  nominal  damages. 

§  425.  Stipulation  of  damages  strictly  construed. — A  stip- 
ulation for  liquidated  damages  in  a  contract  is  to  be 
strictly  construed.  The  defendant  contracted  to  deliver 
coal  in  monthly  instalments,  with  an  agreement  to  pay 
twenty-five  cents  a  ton  liquidated  damages  in  case  of 
failure  to  deliver  the  agreed  amount ;  but  instead  thereof 
the  plaintiff  might  demand  the  instalment  deliverable  one 
month  at  the  next  succeeding  month.  The  defendant 
having  failed  to  deliver  the  coal,  the  plaintiff  demanded 
delivery  the  following  month ;  but  the  defendant  still 
failed  to  deliver  it.  It  was  held  that  the  stipulation  as  to 
damages  did  not  apply  in  case  of  the  latter  breach.  (') 

In  a  building  contract  the  damages  for  delay  were 
fixed  at  a  certain  sum  per  day.  Owing  to  the  fault  of  the 
owner  the  beginning  of  the  work  was  delayed,  and  the 
builder  therefore  absolved  from  completing  his  contract 
at  the  agreed  time ;  but  he  committed  a  breach  of  the 
contract  by  delaying  unreasonably  after  he  had  time  to 
complete  the  work.  The  court,  however,  refused  to 
allow  the  owner  damages  for  delay  at  the  stipulated  rate, 
and  damages  were  assessed  in  the  usual  way.(*) 

§  426.  Consequences  of  liquidating  damages. — The  con- 


(»)  Baird  v.  Tolliver,  6  Humph.  i86. , 

0")  9  Bush  257. 

(»)  Grand  Tower  Co.  v.  Phillips,  23  Wall.  471. 

(■*)  Hamilton  v.  Moore,  33  Up.  Can.  Q.  B.  520. 


6l2  LIQUIDATED    DAMAGES.  §426. 

sequences  resulting  from  the  construction  of  agreements, 
in  tiiis  point  of  view,  are  complex  and  curious.  On  one 
hand,  it  may  be  in  many  cases  desirable, to  get  rid  of  the 
stipulated  damages,  and  to  require  an  examination  into 
the  real  loss  sustained.  But,  on  the  other,  a  specific  per- 
formance may  be  desirable  ;  and  this,  it  was  formerly 
thought,  could  not  be  allowed  if  the  damages  were  stip- 
ulated. The  court  inquired  simply  whether  the  stipula- 
ted sum  was  clearly  meant  as  a  penalty.  So,'  where  arti- 
cles were  executed  for  the  purchase  of  an  estate,  with  a 
provision  that  if  either  should  break  the  agreement,  he 
should  pay  ;^ioo,  Lord  Hardwicke  treated  this  as  a  mere 
penalty,  and  decreed  a  specific  performance.'  (*) 

It  is  now  settled,  however,  that  specific  performance 
may  in  a  proper  case  be  decreed,  though  the  parties  have 
agreed  on  a  sum  that  a  court  of  law  would  award  as 
liquidated  damages,  if  the  plaintiff  brought  his  action  at 
law  (")  "  It  is  not  consistent  with  the  bond  or  with  the 
intention  of  the  parties  that  the  obligor  should  be  free  if 
he  paid  the  penalty  of  ;i^i,ooo.  He  could  not  acquire 
the  right  to  break  the  agreement  by  paying  the  penalty. 
The  plaintiffs  have  an  alternative  remedy  to  enforce  the 
agreement  if  they  do  not  bring  an  action. "(°) 

'  Howard  v.  Hopkyns,  2  Atkyns  371.  not  a  covenant  to  renew,  but  that  the 

« But,  on  the  other  hand,  where  de-  party  was  at  liberty  to  renew  or  pay 

fendant  had  underlet  a  church  lease  to  the  penalty.      Unless   the  agreement 

the  complainant,  with  a  covenant  to  re-  was   in  the  alternative,  the    decision 

new  under  a  penalty  of  £^o,  it  was  held  may  perhaps  be  questioned.     Magrane 

in  the  Irish  Exchequer,  and  on  appeal  v.  Archbold,  1  Dow  107. 
by  the  House  of  Lords,  that  this  was 


(")  The  rule  is  still  maintained  in  some  jurisdictions.  Hahn  v.  Concordia 
Society,  42  Md.  460 ;  Nessle  v.  Reese,  29  How.  Pr.  382. 

C)  Crane  v.  Peer,  43  N.  J.  Eq.  553. 

(')  Lindley,  L.  J.,  in  National  Provincial  Bank  of  England  v.  Marshall,  40 
Ch.  Div.  112,  118.  In  using  the  word  "  penalty,"  the  Lord  Justice  did  not 
mean  that  the  sum  was  not  recognized  as  liquidated  damages ;  all  the  judges 
agreed  that  the  plaintiff  might  have  recovered  the  stipulated  amount  if  he 
had  brought  his  action  at  law. 


§  427-  CIVIL   LAW.  613 

Another  consequence  flowing  from  the  distinction  be- 
tween stipulated  damages  and  a  penalty,  under  the  origi- 
nal English  law  of  arrest,  was  that  for  the  former  the 
defendant  might  be  held  to  bail,  but  not  for  the  latter  ; 
and  therefore  an  affidavit  to  hold  to  bail,  which  did  not 
show  what  the  agreement  was,  nor  in  what  respects  it  was 
broken,  but  merely  alleged  an  obligation  to  pay  ^50  in 
case  of  non-performance,  and  charged  such  non-perform- 
ance, was  held  insufficient,  and  the  defendant  was  re- 
leased from  custody.' 

§  427.  Civil  law. — *  The  French  Code,  like  our  law,  en- 
ables the  parties  to  liquidate  the  damages  for  the  non- 
performance of  the  contract ;  and  the  tribunal  cannot 
depart  from  the  sum  thus  fixed.'  ** 

'  Wildey  v.  Thornton,   2  East.  409  ;  damage  sustained,  but  gave  him    no 

Edwards  v.  Williams,  5  Taunt.  247.  power  to   augment  it  in  favor  of  the 

*  Lorsque    la  convention  porte    que  creditor,  although  it  might  be  far  short 

celui  qui  manquera  de  I'exfecuter  paiera  of  the  injury  suffered.     These  views 

une  certaine  somme,  k  litre  de  dom-  were,  however,  overruled.      Toullier, 

mages  int6rgts,  il  ne  peut  Stre  alloufe  k  vol.  vi,  812,  des  Obligations,  ou  Clauses 

I'autre  partie  une  somme  plus  forte  ni  P6nales  ;   see  Domat,  part  i,  book  3, 

moindre.     Code  Civil,  §  1152.  tit.  v,  sec.  2,  §  15. 

The    commissioners     charged    with        The  rejected  provision  is,  however, 

preparing  the  codes  proposed  to  retain  adopted  in  Louisiana.   There  the  judge 

the   former  jurisprudence  in  this  re-  may  modify  the  penalty  if  the  obliga- 

spect,   which   permitted  the  judge  to  tion  has  been  partly  performed.  Code, 

moderate  the  penalty  in  behalf  of  the  §  2127. 
debtor,   if  it  evidently  exceeded   the 


INDEX   TO  VOL.  I. 


INDEX    TO    VOL.    I. 


[References  are  to  sections.    The  letter  d.  signifies  damages;  the  letter  n., 

note.] 


ABSTRACT  OF  TITLE,  value  of,  261. 

ABUTTER,  -whether  liable  for  interest  on  street  assessment,  333. 

ACCESS,  interruption  of  easement  of,  230. 

ACCIDENTAL  INJURY  gives  no  ground  for  exemplary  d.,  363. 

ACCOUNT,  value  of,  258,  261. 
interest  on,  810. 

compound  interest  on,  by  custom,  344. 
mutual,  interest  on,  311. 

ACTION,  amicable,  no  vindictive  d.  in,  383. 

only  one  for  one  injury,  84. 

new,  for  renewed  injury,  88. 
ACTOR,  injury  to,  180. 

liquidated  d.  to  secure  performance  of  contract  by,  398,  399. 

ACTUAL  LOSS  must  be  sustained  to  create  a  claim  for  d.,  33. 
not  necessary  for  nominal  d.,  98. 
recoverable  under  penalty  of  bond,  393. 

ADMINISTRATOR  not  liable  in  exemplary  d.,  362. 

ADMIRALTY,  nominal  d.  in,  108  n. 
expenses  of  litigation  in,  235. 
interest  in,  346. 
exemplary  d.  in,  353. 

ADVANCES,  interest  on,  304. 

ADVICE  OP  COUNSEL,  mitigates  exemplary  d.,  383. 

AETHELBEBTI  LEGMS,  9. 

AFFECTIONS,  injury  to,  a  ground  for  d.,  47. 

AGENT,  liability  to  principal  for  expenses  of  litigation,  238. 
for  interest  on  money  received,  303,  305. 
on  d.  caused  by  tort,  330. 

(6i7) 


6l8  INDEX    TO    VOL.    I.  -"fStoJ" 

AQBTiiT— continued. 

recovery  of  expenses  of  litigation  from  principal,  338. 

recovery  by,  of  interest  on  advances,  304. 

liability  of  principal  in  exemplary  damages  for  act  of,  378. 

misrepresenting  authority,  liable  for  expenses  of  litigation,  238. 
AGGRAVATION,  matters  in,  51,  53. 

of  exemplary  d.,  383. 

by  wealth  of  defendant,  385. 

of  prior  injury,  113. 
AGREEMENTS.    Bee  Contkact. 

continuing,  87,  89. 

partnership,  193. 

to  withdraw  suit,  130,  240. 

to  pay  in  specific  articles,  279. 

not  to  marry,  397. 

to  act  on  the  stage,  398,  399. 

not  to  practice  business,  183,  400,  408,  418. 

to  furnish  freight,  213,  221. 

liquidating  damages.    See  Liquidated  Damagbs. 
ALFRED,  laws  of,  11. 
ALTERNATIVE  medium,  contract  payable  in,  277. 

contracts,  421  et  aeq. 

rule  of  least  beneficial,  421. 
to  do  something  or  pay  money,  423. 
election,  433. 

sum  to  be  paid  must  be  reasonable,  434. 
AMERCIAMENT,  231. 
AMICABLE  SUIT,  no  exemplary  d.  in,  388. 
AMOUNT  of  d.  a  question  for  the  jury,  19. 

of  exemplary  d.  in  discretion  of  jury,  388. 

of  d.  stipulated  by  the  parties,  389. 
ANGLO-SAXONS,  their  measure  of  d.,  7-11. 
ANIMALS,  warranty  of,  131. 

injuries  by,  131,  133. 

injuries  by,  when  due  to  defect  in  fence,  133. 

liability  for  contagious  disease  communicated  by,  131. 

avoidable  consequences,  314. 

exemplary  d.  for  killing,  373. 

ANNOYANCE,  not  a  subject  for  compensation,  42. 

ANNUITY,  interest  on  arrears  of,  345. 

liquidated  d.  for  failure  to  pay,  416. 

ANTICIPATE  WRONG,  plaintiff  need  not,  334. 

ANXIETY,  when  compensated,  47. 

APPRENTICESHIP,  liquidated  d.  for  breach  of  agreement  of,  404. 


^^Sr^!"  INDEX   TO    VOL.     I.  619 

ARBITRARY  assessment  of  d.  according  to  Roman  law,  24. 
modern  civil  law,  28. 
valuation  of  d.,  inherent  difficulties  sought  to  be  avoided  by,  894. 

ARBITRATION,  contract  to  submit  to,  expenses  of  arbitration  recoverable, 
240. 

ARCHITECT,  injury  to,  180. 

ARREARS  OF  INTEREST,  interest  on,  345. 

ARREST,  effect  of  liquidating  damages  on  right  of,  436. 

ASSAULT,  d.  for  mental  suffering  in  actions  of,  43. 
consequential  d.  for,  186. 
interest  not  allowed  in  actions  of,  320. 
exemplary  d.  in  actions  of,  350,  352,  872. 
mitigation  of  exemplary  d.  for,  384. 

ASSESSMENT  for  street  improvements,  interest  on,  333. 

ASSIGNMENT  of  breaches  in  action  on  bond,  392. 

ASSUMPSIT,  action  of,  supersedes  debt,  390. 

ATTACHMENT,  WRONGFUL,  loss  of  credit  remote,  127. 
loss  of  credit  included  in  exemplary  d.,  359. 
exemplary  d.  for,  873. 
expense  of  discharging,  237. 
deterioration  of  property  by,  135. 

ATTACHMENT,  bond  to  discharge,  no  recovery  on  account  of  litigation  on,  332. 
expenses  of  resisting  or  discharging  recoverable  on  bond,  237. 

ATTORNEY'S  FEE  as  liquidated  d.  on  note,  416. 

A  ULA  BEGI8,  18. 

AUTHORITY,  misrepresentation  of,  expenses  of  litigation  recoverable,  238. 

AVOIDABLE  CONSEQUENCES,  201  et  seq. 
no  recovery  for,  201. 
are  remote,  303. 

defendant  is  not  legally  chargeable  with,  203. 
rule  of,  different  from  rule  of  contributory  negligence,  204. 
general  rule  of  in  actions  of  contract,  305. 
for  personal  services,  206. 

duty  to  seek  employment,  206. 

employment  of  different  kind  or  grade,  207. 

duty  does  not  arise  on  all  contracts,  308. 
agreement  by  landlord  to  repair,  -309. 

by  tenant,  310. 

to  make  improvements,  311. 

to  furnish  freight,  313. 
offer  of  reparation  by  defendant,  313. 
in  actions  of  tort,  314. 


-  _        „ ,       ,  Befermcea  are 

620  INDEX    TO   VOL.    I.  totectitms. 

AVOIDABLE  CONSEQUENCES— con<m««(i. 

upon  taking  by  right  of  eminent  domain,  220. 
expense  of  avoiding  consequences  recoverable,  315. 

of  following  property,  216. 

of  repairing  or  reducing  injury,  217. 

must  be  reasonable,  218. 
rule  does  not  require  impossibilities,  219. 
rule  requires  only  ordinary  care,  221. 
other  limits  of  the  rule,  222. 
notice  to  plaintiff,  223. 
plaintiff  need  not  anticipate  wrong,  224. 

need  not  commit  a  wrong,  225. 
defendant  prevents  plaintiff  from  avoiding  loss,  226. 
burden  of  proof,  227. 
court  and  jury,  228. 

BAIL,  effect  of  liquidating  d.  on  right  to  hold  to,  436. 

BAILEE,  recovery  by,  76,  79.    Bee  Special  Owseb. 

BATTLE,  trial  by,  15. 

when  abolished  in  England,  15  n. 
in  France,  15  n. 

BELIEF  OF  RIGHT,  mitigates  exemplary  d.,  383. 

BENEFIT,  allowance  for,  63  et  seq. 

in  actions  for  flooding  lands,  64. 

enjoyed  in  common  with  others,  65. 

not  caused  directly  by  wrongful  act,  66. 

received  from  third  parties,  67. 

from  insurance  money,  67. 

from  charitable  aid,  67. 

nominal  d.  at  least  recoverable,  101. 

BILL  OR  NOTE,  interest  on  in  England,  387. 

value  of,  256. 

overdue,  interest  on,  801. 
in  England,  290. 

expressed  intention  governs  as  to  allowance  of  interest  on,  330. 

higher  rate  of  interest  after  maturity  of,  331. 
BLASTING,  injury  caused  by,  whether  a  cause  of  action,  33. 

compensation  for  injury  caused  by,  184. 
BOILER,  whether  bursting  of  is  a  cause  of  action,  33. 
BONJ).     See  Liquidated  Damageb. 

nominal  d.  in  action  on,  106. 

form  of,  390. 

debt  on,  390. 

reason  given  for  introduction  of,  390. 

assignment  of  breaches  in  action  on,  392. 


^fZ^^!"  INDEX   TO   VOL.    I.  621 

BOND — continued. 

only  actual  loss  recoverable  on,  393. 

failure  to  deliver,  interest  on  value,  319. 

municipal,  value  of,  357. 

individual,  value  of,  360. 

to  convey,  value  of,  360. 

to  discharge  attachment,  no  recovery  on  account  of  litigation  on,  333. 

expenses  of  resisting  or  discharging  attachment,  237. 
of  indemnity,  expenses  of  litigation  recoverable,  338.. 
to  dissolve  injunction,  no  recovery  on  account  of  litigation  on,  282. 

expenses  of  resisting  or  dissolving  injunction,  337. 
statutory,  exemplary  d.  for  breach  of,  370. 
between  partners,  liquidated  d.  for  breach  of,  397. 
to  support,  393. 
against  waste,  liquidated  d.  for  breach  of,  397. 

BREACH  OF  PROMISE  OF  MARRIAGE,  d.  not  reduced  by  subsequent 
offer  to  marry,  53. 
exemplary  d.  in  action  for,  351,  370. 

BREACHES  OF  BOND,  assignment  of,  393. 

BROKER  in  stocks,  interest  on  his  accounts  by  custom,  311. 

BRUTALITY,  exemplary  d.  for,  365. 

BUILDING,  agreement  to  erect  or  pay  money,  423. 

liquidated  d.  for  delay  in  completing,  397,  402,  407,  419. 

BULLETS,  early  substitute  for  money  in  Massachusetts,  266. 

BURDEN  OF  PROOF  to  establish  amount  of  loss,  170. 
of  avoidable  consequences,  237. 
to  establish  liquidation  of  d.,  406. 

BUSINESS,  agreement  not  to  engage  in,  liquidated  d.  for  breach  of,  183,  400, 
408,  418. 
established,  profits  of,  183,  185. 
profits  of  uncertain,  182. 
new,  profits  of,  183. 
premises,  loss  through  deprivation  of,  133. 

CAIRN'S,  SIR  HUGH,  act,  3. 

agreements  not  capable  of  specific  performance,  not  within,  3. 
compensation  under,  not  given  toties  gtiotieg,  3. 

CANONS  OF  INTERPRETATION  of  agreements  for  stipulated  damages, 
409. 

CAPITAL  not  advanced  by  partner,  interest  on,  801. 

CAPTURE,  illegal,  d.  for,  175. 
exemplary  d.  for,  352. 

CARGO,  failure  to  furnish,  d.  for,  231. 
avoidable  consequences,  212. 


622  INDEX   TO    VOL.    I.  ^t7S^:' 

CARRIER  OF  GOODS  must  compensate  direct  loss,  112. 
delay  of,  loss  when  remote,  135. 
non-delivery  by,  consequential  damages,  164,  166,  168,  200. 

recovery  for  includes  profits,  176. 

of  machinery,  144,  145,  153,  165,  178. 

of  money,  168. 

of  tools,  153. 

of  material  for  manufacture,  153,  166. 
avoidable  consequences,  205,  219. 
expenses  of  litigation  on  sub-contract,  240. 
interest,  316,  320,  324. 
exemplary  damages,  373. 
liquidated  damages,  419. 
failure  to  furnish  cargo  to,  221. 
avoidable  consequences,  212. 
CARRIER  OF  PASSENGERS,  not  liable  for  inconvenience  from  delay,  43. 
special  train,  whether  expense  of  is  recoverable,  218. 
setting  down  at  wrong  station,  consequential  d.,  150. 
inconvenience  of  walking  home,  42. 
carrying  beyond  station,  nominal  d.,  98. 

exemplary  d.,  388. 
expulsion  from  cars,  consequential  d.,  136. 

avoidable  consequences,  205,  224. 

exemplary  d.,  365,  372,  383. 
CATTLE.    See  Animals. 

primitive  substitute  for  money,  10  n.,  266. 
damage  caused  by,  131,  133. 
diseased,  d.  for  infection  by,  131. 
CAV8A  PBOXIMA  NON  BEMOTA  8PECTATVR,  114. 
CAUSE  OF  ACTION,  what  constitutes,  33. 
when  entire,  84  et  seq. 

CAUSE  OF  OFFENSE,  discontinuance  of  as  mitigation  of  exemplary  (J.,  383. 

CERTAINTY  OP  PROOF,  170  et  seg.    See  Profits. 

loss  must  be  proved  with  reasonable  certainty,  170. 

when  not  to  be  attained,  reasonable  probability  must  be  shown,  170. 

best  proof  possible  must  be  given,  171. 

of  prospective  loss,  172.    See  Prospective  Dauaoes. 

of  profits,  173  ei  seq.    See  Profits. 

of  loss  from  personal  injury,  180. 

of  loss  of  capacity  to  labor,  180. 

of  loss  of  time,  180. 

of  loss  of  professional  earnings,  180. 

of  loss  of  business  through  personal  injury,  181. 

of  loss  of  opportunity  to  compete  for  prize,  200. 

of  loss  of  speculation,  200. 

CESTUI  QUE  TRUST,  d.  recoverable  by  for  injury  to  land,  70. 


^fcTiT."  INDEX   TO   VOL.    I.  623 

CHANCE  OF  GAIN,  compensation  for  loss  of,  200. 

CHANCERY  interposes  to  prevent  forfeiture  of  penalty,  391. 

CHARITY,  d.  not  reduced  because  of  receipt  of,  67. 

CHARTER-PARTY,  demurrage  in,  394,  419. 

CHATTEL,  d.  for  loss  of  use  of,  195. 
payment  in,  279-281. 
value  of,  242  et  seg. 
limited  owner  of,  d.  recoverable  by,  76. 

posilssor,  76. 

in  replevin,  77. 

possessor  against  owner,  78. 

against  one  from  whom  owner  cannot  recover  full  value,  79. 

owner  out  of  possession,  80. 

mortgagor  or  mortgagee,  81,  82. 

part  owner,  83. 

CHECK,  value  of,  256. 

CHOSE  IN  ACTION,  value  of,  256. 

CIVIL  DAMAGE  ACT,  consequential  d.,  143. 
mental  anguish,  359. 
exemplary  d.,  387. 

CIVIL  LAW,  d.  in  discretionary,  25. 
consequential  d.  in,  117, 119. 
exemplary  d.  in,  355. 
liquidated  d.  in,  396. 

CLERGYMAN,  injury  to,  180. 

CLOTHING,  value  of,  251. 

COACH,  agreement  not  to  run,  liquidated  d.  for  breach  of,  418. 

CODE  NAPOLEON,  damages  under  the  system  in  France  previous  to,  35. 
profits  allowed  by,  118. 

COIN.    See  Payment,  Medium  of. 

foreign,  value  of  in  this  country,  278,  274. 
damages  against  carrier,  for  loss  of,  272. 
whether  merchandise,  272  n. 
agreements  to  pay  in,  specifically,  270. 

COLLATERAL  profits,  194. 

undertakings,  profits  of  excluded,  138. 
COLLECTOR  OF  CUSTOMS,  liability  of  to  exemplary  d.,  383. 
COLLISION,  loss  by,  when  remote,  133, 134. 

loss  of  profits  by,  175. 

d.  for,  196. 

expense  of  repairs,  217. 

interest,  316. 


;624  INDEX   TO    VOL.     I.  "^fSIT" 

COMMENCEMENT  OP  SUIT,  whether  damages  allowed  after,  84,  85.    Bee 
Pbospbctivb  Damages. 

COMMON  CARRIER.    See  Carribk. 

COMMON  LAW  gives  no  remedy  in  case  of  public  wrongs,  34. 
in  such  case  no  private  remedy,  34. 
unless  there  is  particular  private  damage,  35. 
differs  from  equity  as  to  d.,  4. 
from  civil  law,  119. 

COMPENSATION  the  method  of  redress  at  law,  29,  30.       • 

departed  from  in  actions  for  breach  of  promise  of  marriage,  30  n. 

in  allowance  of  exemplary  d.,  30  ».,  347. 

iu  admiralty,  80  n. 
consideration  immaterial,  80. 
analysis  of,  37. 
limitations  of,  88. 
injuries  compensated,  39. 
for  pecuniary  loss,  40. 
for  inconvenience,  43. 
for  physical  pain,  41. 
for  injury  to  feelings  or  mental  sufEering,  43,  47. 

in  libel  and  slander,  47. 

in  breach  of  promise,  45,  47. 
juridical  interpretation  of,  a  very  restricted  one,  38. 
legal  acceptation  of,  88. 
how  far  term  incorrectly  applied,  38. 
reduction  of  damages,  53  et  seq.    See  Damages. 
is  the  rule  in  tort,  30. 
for  loss  of  time,  180. 
amount  of,  is  a  question  of  law,  31. 

principle  of,  adhered  to  even  in  tort  where  no  aggravation,  30. 
recovery  beyond.    See  Exemplary  Damages. 
in  actions  on  contract,  30. 

prospective  profits.    See  Consequential  Damages. 
to  be  made  only  for  actual  loss  in  actions  on  bonds,  393. 
legal,  inadequate,  38. 

for  consequential  d.    See  CoNSEqTjENTLA.L  Damages. 
for  pain  of  mind,  whether  given  in  actions  on  contracts,  45. 

in  tort,  44-47.    See  Mental  Supfering. 
under  Sir  H.  Cairn's  act,  3. 
in  equity,  3. 

in  reference  to  profits.     See  Profits. 
rule  of  must  not  be  departed  from  in  liquidating  d.,  406. 

COMPETITION,  loss  of  opportunity  for,  200. 

COMPOSITION  OF  OFFENSES,  36. 

allowed  only  where  there  is  a  concurrent  civil  remedy,  36. 


^t'tST  INDEX   TO   VOL.    I.  625 

COMPOUND  INTEREST,  343  et  seq. 
not  originally  allowed,  343. 
by  custom,  344. 
for  fraud,  344. 
on  arrears  of  stipulated  interest,  345. 

of  annuity,  345. 
on  overdue  coupons,  345. 
never  allowed  by  way  of  damages,  345. 

COMPROMISE  of  public  offenses  illegal,  36. 
of  private  tort,  36. 

COMPURGATORS,  trial  by,  16. 

CONDITION  OP  BOND,  390. 

CONDUCTOR,  liquidated  d.  for  taking  fare  from  passenger,  416. 

CONFEDERATE  CURRENCY,  value  at  maturity  of  contract,  278. 

value  at  inception  of  contract,  378. 

value  of  consideration,  378. 

standard  of  value,  378. 
CONFLICT  OF  LAWS  as  to  rate  of  interest,  343. 

on  overdue  paper,  336. 

CONSEQUENCES  OF  ILLEGAL  ACT,  when  damages  given  for.     See 
Consequential  Damages. 

which  might  have  been  prevented.     See  Avoidable  Conbequbnces. 
CONSEQUENTIAL  DAMAGES,  110  ei  seq. 

not  synonymous  with  remote  damages,  110. 

includes  remote  damages,  110. 

all  consequences  not  compensated,  110. 

direct  consequences  always  compensated,  112.    See  Diebct  Conbk- 
quenceb. 

direct  and  consequential  loss.  111. 
direct  d.  distinguished  from  consequential,  111. 
pre-existing  disease,  112. 
proximate  cause,  114,  115. 
remote  consequences  not  compensated,  113. 
what  are  remote,  question  of  fact  for  court,  116. 
in  civil  law,  117. 
French  law,  118. 
Pothier  cited  as  to,  117. 
Touiller  cited,  119. 

difference  between  civil  and  common  law,  119. 
Scotch  law,  120. 
Louisiana  code,  121. 

general  principles  of  common-law  as  to,  122. 
only  proximate  and  natural  consequences  recoverable,  122. 
damages  contemplated  by  the  parties,  122. 
consequences  of  act  complex  in  nature,  123. 
avoidable  consequences  distinguished,  124. 
Vol.  I. — 40 


626  INDEX   TO    VOL.    I.  %"Z&^? 

CONSEQUENTIAL  DhMKGSS>— continued. 
instances  of,  125  ei  seq. 

abduction  of  slaves,  125. 

false  representations  in  sale  of  oil-well,  125. 

sale  of  defective  boiler,  125. 

defect  in  highway  or  bridge,  125. 

negligent  blast,  125. 

pulling  down  fences,  125. 

expulsion  from  labor  union,  125. 

from  railroad  train,  135,  136. 

injury  to  vehicle,  125. 

intervention  of  living  agency,  126. 

of  independent  will,  126. 
malicious  prosecution,  126,  130. 
failure  to  guard  convicts,  126. 
false  imprisonment,  126, 136. 
under  Civil  Damage  Act,  126. 
loss  of  credit  or  custom,  127. 
wrongful  attachment,  127,  135. 
loss  by  crowd  attracted,  128. 

by  mob,  128. 
general  principle  as  to  intervening  agency,  129. 
failure  to  honor  draft,  130. 
breach  of  contract  to  forbear,  130. 
to  pay  money,  130. 
forced  sale  of  property,  130. 
injury  to  animals,  131. 

by  infectious  disease,  131,  143. 

through  non-repair  of  fences  or  gates,  132. 

by  or  to  straying  animals,  132. 
deprivation  of  machinery,  133. 

of  business  premises,  133. 
coUision,  133,  184. 
deprivation  of  means  of  safety,  134. 
expulsion  from  sea-wall,  134. 
refusal  to  admit  to  dock,  134. 
breach  of  warranty  of  cable,  134. 
detention  of  property,  135. 
personal  injury  or  imprisonment,  136. 
loss  of  service,  137. 
wrongful  arrest  of  servant,  137. 
loss  of  sub-contract,  138. 
expense  of  preparations  for  performing  contract,  139. 

of  removal  to  place  of  employment,  139. 

incurred  oq  faith  of  contract,  140. 
stock  purchased  on  faith  of  lease  or  conveyance,  141. 
must  be  natural  consequences,  143. 
what  are  natural  in  actions  of  tort,  143. 


^iS'Z^^:'  INDEX   TO    VOL.    I.  627 

CONSEQUENTIAL  DAMAGES -coraforawc?. 

in  actions  of  contract;  rule  in  Hadlbt  «.  Baxbksalb,  144  et  seq.    See 

Hadley  v.  Baxendale. 
notice,  effect  of,  157  et  seq.    See  Notice. 

CONSIDERATION  not  measure  of  d.  for  breach  of  contract,  30. 

CONSIGNEE,  recovery  by,  76. 

C0N80BTIUM,  loss  of,  48. 

CONSTITUTIONALITY  of  legal  tender  notes,  369. 

CONSTRUCTION,  contract  for,  avoidable  consequences,  205. 
liquidated  d.  for  delay  in,  397,  402,  407,  419. 

CONTEMPLATION  of  parties  as  to  contracts,  144  et  seq. 

general  rule  on  subject  of.    See  Hadley  v.  Baxendaib. 
defendant  liable  fc-  direct  injury  not  contemplated,  113. 

CONTINUING  AGREEMENTS,  what  are,  87,  89. 
prospective  damages  for,  87. 
torts,  91. 

CONTRACT,  continuing,  prospective  d.  for  breach  of,  87,  89. 
where  breach  destroys,  90. 

nominal  d.  -without  actual  loss  for  breach  of,  98,  105,  106. 
recovery  of  profits  of,  192. 
for  profits  of  business,  193. 
of  partnership,  193. 

duty  to  seek  employment  does  not  arise  on  every,  308. 
no  redress  for  expenses  of  action  upon,  beyond  taxable  coats,  233. 
exemplary  d.  for  breach  of,  370. 
payable  in  gold,  370. 
for  interest,  288. 
payable  in  installments,  412. 
alternative,  431  et  seq. 
instances  of  actions  on;  contract  to  accept  draft,  127,  130. 

not  to  engage  in  business,  182,  400,  408, 418. 

not  to  run  coach,  418. 

to  repair,  155,  309,  210,  340. 

to  make  improvements,  311. 

to  furnish  freight,  213,  331. 

to  secure  right  of  way,  340. 

to  withdraw  suit,  130,  240. 

to  submit  to  arbitration,  240. 

to  establish  railroad  station,  194. 

to  enter  a  "pool,"  300. 

not  to  commit  waste,  397. 

to  support,  89,  90,  393  n.,  397,  415. 

to  exchange  or  convey  land,  397,  400,  410,  417. 

to  refrain  from  intoxicating  liquors,  415. 

not  to  use  union  label  or  employ  union  men,  415,  416. 


628  INDEX   TO   VOL.    I.  ""'tST 

CONTB,ACT— continued. 

to  build  street,  416. 

to  return  draft  or  pay  its  amount,  433. 

to  bore  oil-well  or  pay  money,  424. 

CONTRIBUTORY   NEGLIGENCE  distinguished   from   avoidable   conse- 
quences, 204. 

CONVERSION,  d.  for,  not  reduced  by  oifer  to  return,  53. 
bringing  property  into  court,  54. 
d.  for,  reduced  by  acceptance  of  property  from  defendant,  55. 

by  acceptance  from  a  third  party,  57. 

by  recovery  of  property,  58. 
duty  to  replace  property  converted,  314. 
expense  of  following  property  recoverable,  216. 
recovery  of  interest,  316. 
exemplary  d.  for,  374. 
of  money,  interest  as  d.  for,  303. 

CONVEYANCE  OF  LAND,  agreement  for,  d.  recoverable  to  date  of  writ,  89. 
liquidated  d.  400,  403,  410,  417. 

CORN,  early  substitute  for  money  in  Massachusetts,  366. 

"  CORNER."  effect  of  on  market  value,  349. 

CORPORATION,  value  of  stock  in,  357. 

liability  of  to  exemplary  d.,  379,  380. 

CORRUPTION,  ground  for  setting  aside  verdict  for  exemplary  d.,  388. 

COSTS,  awarded  to  successful  party,  339. 

fixed  as  limit  of  recovery  on  account  of  expenses,  330. 

importance  of  nominal  d.  arises  from  affecting,  108. 

nominal  d.  do  not  generally  carry,  108. 

unless  title  to  land  involved,  108. 

interest  on,  334. 

of  prior  suit,  236  et  seq.    See  Expbnses  of  Litigation. 

COUNSEL,  advice  of,  shown  in  mitigation  of  exemplary  d.,  383. 

COUNSEL  FEES.    See  Expenses  op  Litigation. 
not  now  allowed  as  d.,  329. 
supposed  to  be  included  in  costs,  280. 
not  usually  allowed  even  as  exemplary  d.,  233. 
sometimes  allowed  for  malicious  tort,  234. 

should  be  allowed  where  plaintiff  has  defended  a  suit  for  defendant's 
benefit,  336. 

and  so  held  where  such  prior  suit  was  advisable,  336. 

and  the  expenses  reasonable,  239. 

effect  of  notice  of  prior  suit,  836. 
in  action  for  breach  of  covenants  of  seizin  and  warranty,  238. 
in  actions  on  injunction  and  attachment  bonds,  237. 
liability  for,  is  enough  without  actual  payment,  236. 


^fcS^r"  INDEX    TO    VOL.    I.  629 

COUNSEL  'P^EEQ— continued. 

allowed  in  a  case  of  refusal  to  place  a  judgment  on  a  tax  list,  24L 
in  case  of  false  representation  or  warranty,  241. 

of  malicious  prosecution  or  false  imprisonment,  341. 
not  allowed  now  in  patent  cases,  335. 

nor  in  admiralty,  335. 
in  Massachusetts,  339. 

COUPON,  overdue,  interest  on,  345. 

COURT,  may  amend  record  by  allowing  nominal  (2.,  109. 
power  of,  as  to  avoidable  consequences,  338. 

as  to  exemplary  d.,  387. 
may  set  aside  verdict  if  excessive,  388. 

COURTS  of  Anglo-Saxons,  12. 
of  Equity,  3. 
modern,  18. 
Roman,  18. 

COVENANT,  action  of  at  common  law,  389. 

of  warranty,  expense  of  perfecting  title  recoverable  on  breach,  215. 
expense  of  litigation,  338. 

CREDIT,  sale  on,  recovery  of  interest,  308. 

CRIME,  composition  for  not  permitted,  36. 
exemplary  d.  for  act  which  is,  386. 

CRIMINAL  CONVERSATION,  exemplary  d.  for,  376. 

CROPS,  injury  to,  125. 
loss  of,  184,  191. 
avoidable  consequences,  201,  202,  331. 

CROWD,  loss  by,  138. 

CURE,  expense  of  attempted,  303. 
of  successful,  317 

CURRENCT,  depreciation  of,  368.    See  Payment,  Medium  op. 

foreign,  payment  in,  373,  374. 

Confederate,  agreements  payable  in,  378. 
CUSTOM,  interest  by,  398. 

compound  interest  by,  344. 
CUSTOMS,  liability  of  Collector  of  to  exemplary  d.,  383. 

DAMAGES,  law  of,  a  branch  of  the  law  of  redress,  1. 

pecuniary,  the  usual  remedy  awarded  by  a  court  of  law,  2. 

in  equity,  3. 

nature  of,  at  common  law,  4,  5. 

must  be  pecuniary,  4,  4  n. 

a  species  of  property,  5. 

right  to,  not  created  by  verdict,  5. 


6.-50  INDEX   TO   VOL.    I.  ^t7S^:' 


DAMAGES — continued. 

origin  of  term,  5  n. 

derivation  of  system  by  which  awarded,  7. 

eariy  linown  in  English  law,  17. 

vmder  Anglo-Saxon  law,  8-12. 

amount  of  compensation  carefully  defined,  9. 

how  paid,  in  money  or  goods,  10. 
under  Jewish  law,  30. 

Hindoo  law,  21. 

Eoman  law,  22-24. 

civil  law,  25-27. 

English  common  law,  13-18. 
amount  of,  for  jury,  19. 
to  be  commensurate  with  injury,  29. 
consist  in  compensation,  29,  30. 
amount  of,  determined  by  rules  of  law,  31. 
allowed  only  where  right  of  action  exists,  32. 

not  without  actual  or  implied  loss,  32. 
not  allowed  for  common  nuisance,  34. 

unless  particular  damage  results,  85. 
not  allowed  for  composition  of  crime,  36. 
must  be  recovered  in  one  action,  84. 
fresh,  will  not  give  fresh  action,  84. 
for  subsequently  accruing  loss,  84,  85. 
inferred  from  wrong  done,  97. 
nominal  where  no  loss  inflicted,  107. 
super  visum  milneris,  349. 

how  affected  by  special  ownership.    See  Special  Ownek. 
after  suit.     Bee  Prospbctivb  Bamages. 

amount  of  stipulated  by  the  parties.    See  Liquidated  Damaoeb. 
contemplated  by  the  parties.    See  Consequential  Damages. 
counsel  fees  as.    See  Counsel  Fees. 
costs  as.    See  Costs. 
compensatory.     See  Compensation. 
consequential.    See  Consequential  Damages. 
exemplary.     See  Exemplary  Damages. 
future.     See  Prospective  Damages. 
nominal.    See  Nominal  Damages. 
prospective.    See  Prospective  Damages. 
profits  as.     See  Profits. 
remote.    See  Consequeiitial  Damages. 
uncertain.     Bee  Certainty  of  Proof 

DAMNUM,  derivation  of,  5  n. 

DAMNUM  ABSQ  UE  INJURIA,  32. 

DAMNUM  EMERGENS,  22. 

DEBASED  CURRENCY,  268. 


^TST  INDEX   TO   VOL.    I.  63 1 

DEBT,  interest  on,  389,  301. 

action  of,  when  it  lay  at  common  law,  389. 

on  bond,  390. 

d.  recoverable  for  detention  only,  890. 

DEBTOR,  liquidated  d.  for  breacb  of  agreement  for  extension  of  time  to,  407. 

DECEIT,  nominal  d.  in  action  of,  100. 
consequential  d.,  143,  195. 
avoidable  consequences,  314. 
interest,  320. 

DEFAMATION,  exemplary  d.  for,  377. 

DEFENDANTS,  joint,  liability  to  exemplary  d.,  882. 

DELAY,  compensation  for  in  nature  of  interest,  322. 
liquidated  d.  tor,  in  payment  of  money,  411. 
in  completing  work,  397,  402,  407,  419. 
in  carriage  of  goods,  419. 
in  surrender  of  premises,  419. 
in  delivery  of  goods  sold,  419. 
of  carrier.    See  Carrier. 

DEMAND  FOR  PAYMENT,  effect  on  interest,  302,  314. 
prevented  by  debtor,  309. 

DEMAND  NOTE,  rate  of  interest  on,  330. 

DEMANDS,  indivisible  when  entire,  84. 

DE  MINIMIS  NON  CURAT  LEX,  32,  103. 

DEMURRAGE,  394  n.,  419. 

DENTIST,  injury  to,  180. 

DEPARTURE  FROM  SERVICE  without  notice,  consequential  d.  for,  137. 
liquidated  d.  for,  407. 

DEPOSIT  of  gold.  269. 

of  Confederate  currency,  278. 

whether  liquidated  d.  forfeited  on  default,  414. 

DEPOSITOR,  when  entitled  to  interest,  309. 

DEPOT,  breach  of  contract  to  construct,  194. 

DERIVATION  OF  DAMNUM,  5  n. 

DETENTION  OF  PROPERTY,  loss  from,  135. 

DETERMINATE  AND  INDETERMINATE  DAMAGES,  859. 

DETINUE,  exemplary  d.  in  actions  of,  375. 

DIRECT  CONSEQUENCES,  111,  113. 
what  are.  111. 
always  compensated,  112. 
of  an  assault,  112. 


632  INDEX    TO    VOL.    I.  ^ZS^!' 

DIRECT  CONSEQUENCES-omimMeei. 
of  destruction  of  building,  113. 
of  negligence,  112. 

aggravation  of  pre-existing  injury  or  disease,  113. 
loss  of  goods  by  carrier,  113. 

DISCONTINUANCE  OF   CAUSE   OF   OFFENSE   mitigates  exemplary 
d.,  383. 

DISEASE,  communication  of,  131,  143. 
pre-existing  aggravation  of,  113. 

DISPROPORTIONATE,  liquidated  d.  must  not  be,  407. 

DISTRAINT,  illegal,  nominal  d.,  100. 

interest  not  intluded  in  amount  of,  307. 

DIVORCE,  liquidated  d.  for  breach  of,  contract  to  give  no  cause  for,  415. 

DOCKET,  SOLICITORS,  value  of,  261. 

DOG.    See  Animals. 

furious,  exemplary  d.  for  allowing  to  run  at  large,  368. 

DOLLARS,  269. 

DOL  U8,  in  the  Roman  law,  22. 

DOMMAGE-INTERETS,  amount  of  discretionary  with  judge,  26,  27. 

BOMMAOEB  exemplaires,  359. 
reeU,  359. 

DRAFT,  agreement  to  return  or  pay  amount  of,  433. 

DUTY  to  avoid  consequences  a  misapplication  of  term,  201. 
to  seek  employment,  206. 

EDUCATION  OF  PLAINTIFF  enhances  value  of  his  services,  255. 

ELECTION  on  alternative  contract,  423. 

EMBANKMENT,  prospective  d.  for  erection  of,  95. 
d.  for  cutting  through,  230. 

EMINENT  DOMAIN,  avoidable  consequences  in  cases  of,  230. 
interest  on  property  taken  by,  818. 
time  from  which  it  runs,  318. 

EMPLOYMENT.    See  Sbrvicb,  Contkact  op. 
duty  to  seek,  206,  207,  218. 

ENGINEER,  injury  to,  180. 

ENTICEMENT  OF  SERVANT,  exemplary  d.  for,  376. 

EQUITY,  fundamentally  different  from  common  law,  1. 
remedies  given  by,  3. 
does  not  award  pecuniary  d. ,  3. 
except  by  Sir  Hagh  Cairn's  Act,  3. 


to  sections.  INDEX    TO    VOL.     I.  633 

EQUITY— co»«raMe(Z. 

gives  compensation  once  for  all,  3. 
does  not  award  exemplary  d.,  3  ».,  371. 
may  proceed  ^ia  timet,  96. 

EKKOR,  interest  in,  336. 

ESCAPE,  expense  of  litigation  recoverable  by  sheriff  in  action  for,  841. 

ETHELBERT,  laws  of,  8. 

EVASION  OF  USURY  LAWS,  stipulation  for,  420. 

EVICTION,  wrongful,  188. 

EXCAVATION,  d.  from  after  suit  brought,  91,  93. 

EXCESSIVE,  verdict  for  exemplary  d.  may  be  set  aside  if  grossly,  388. 

EXCHANGE,  rate  of,  how  fixed,  275. 

of  land,  liquidated  d.  for  breach  of  contract  for,  400,  417. 

EXCHEQUER  formerly  part  of  Aula  Regis,  18. 

EXCITED  FEELINGS  OF  PLAINTIFF  not  to  be  satisfied  by  exemplary 
d.,  388. 

EXECUTOR  not  liable  in  exemplary  d.,  362. 

de  son  tort  may  reduce  d.  by  showing  payment  of  debts,  61. 

EXEMPLARY  DAMAGES,  347  et  seq. 
meaning  of  the  term,  347. 
vindictive,  punitory,  or  punitive  d.  and  smart  money  synonymous 

with,  347  n. 
distinction  between  and  punitory  d.  not  well  taken,  347  n. 
origin  of  the  doctrine,  348. 
original  position  of  jury  in  assessment  of  d.,  849. 
evolution  of  theory  of,  350. 
history  of  doctrine  of,  in  America,  351. 
given  to  punish,  352. 

except  in  a  few  States,  359. 
do  not  involve  a  consideration  of  value,  243. 
objections  to  the  doctrine  of,  353. 

by  Professor  Greenleaf,  353. 

by  the  Supreme  Court  of  New  Hampshire,  353. 
rule  of,  established  by  authority  and  convenience,  354. 
in  the  Roman  and  civil  law,  355. 
in  the  Scotch  law,  355. 
in  equity,  3  n.,  371. 

not  the  same  as  d.  for  mental  suflfering,  356. 
in  addition  to  compensatory  d.,  357. 
not  awarded  in  some  States,  358. 
in  some  States  based  on  compensation,  359. 
including  expenses  of  litigation,  234,  359. 


634  INDEX   TO    VOL.     I.  -^f^T^'T.'"' 

EXEMPLARY  D AM AGtES— continued. 

where  based  on  distinction  between  determinate  and  indeterminate  d.^ 

359. 
generally  given  as  punishment,  360. 
not  allowed  without  actual  loss,  361. 
do  not  survive  against  personal  representatives,  363. 
allowed  only  for  wilful  injury,  363. 
not  for  tort  committed  by  accident  or  mistake,  363. 
for  malice,  364. 

for  oppression,  brutality,  or  insult,  365. 
for  wantonness,  366. 
for  fraud,  367. 
for  gross  negligence,  368. 
circumstances  preventing  allowance  of,  369. 
in  what  actions  recoverable,  370. 
admiralty,  853. 

wrongful  sale  of  intoxicating  liquor,  359,  363,  387. 
forcible  entry  and  detainer,  373. 
actions  of  contract,  370. 

for  breach  of  promise  of  marriage,  351,  370. 

on  statutory  bond,  370. 
actions  of  tort,  370. 

for  personal  injury,  373. 

assault,  350,  352,  372,  384. 

false  imprisonment,  352,  373. 

malicious  prosecution,  353,  373. 

malicious  arrest,  388. 

expulsion  from  railway  train,  365,  373,  383,  888. 
for  defamation,  377. 

libel,  351,  352,  377,  383. 
mitigation  of,  in  actions  for  defamation,  377. 
for  injury  to  property,  373. 

trespass,  g.  e.f.,  350,  361,  363,  373,  383,  384 

flowing  land,  373. 

injury  to  personal  property,  351,  353,  373. 

conversion,  374. 

replevin,  375. 

detinue,  375. 
for  loss  of  service,  376. 

enticement,  376. 

seduction,  376. 

crim.  con.,  376. 

harboring,  376. 
against  public  officer,  350,  351,  363,  365. 
master's  liability  to  for  act  of  agent  or  servant,  378. 
liability  of  corporation  to,  379,  380. 
of  officer,  381. 
of  one  of  two  joint  defendants,  383. 


^fSiLT  INDEX    TO    VOL.    I.  635 

EXEMPLARY  DAMAGES— contirmed. 
of  husband  for  wife's  act,  383. 
mitigation  and  aggravation  of,  383  et  seg. 

by  lack  of  malice,  383. 

by  good  faith,  383. 

by  advice  of  counsel,  383. 

by  belief  of  right,  383. 

by  provocation,  384. 

by  pecuniary  condition  of  defendant,  385. 

by  fine  paid  in  a  criminal  proceeding,  386. 
in  amicable  suits,  383. 
for  injuries  which  are  crimes,  386. 
relations  of  court  and  jury  in  awarding,  387. 
not  allowed  as  matter  of  law,  387. 
instructions  to  jury  as  to,  387. 
amount  of  in  control  of  jury,  388. 
power  of  court  to  set  aside  as  excessive,  388. 

EXPENSES  of  avoiding  consequences,  215  et  seq. 
of  following  property,  216. 
of  regaining  property,  58. 
of  repairs,  217,  218. 

of  medical  attendance  and  nursing,  217. 
of  curing  an  animal,  217. 
of  repair  or  cure,  interest  on,  320. 
of  following  or  regaining  property,  interest  on,  320. 
after  suit.    See  Prospective  Damages. 
of  litigation,  229  et  seq. 
of  carrying  on  suit  not  recoverable,  229. 
reason  of  the  rule,  230. 
civil  and  old  common  law,  231. 
rule  in  actions  of  contract,  232. 
in  actions  of  tort,  233. 
in  Connecticut  and  Ohio,  233,  234. 
included  in  exemplary  d. ,  234,  359. 
in  patent  and  admiralty  cases,  235. 
of  prior  litigation  recoverable,  236. 
not  if  it  was  unnecessary,  236. 
liability  to  pay  enough  without  payment,  236. 
notice  of  prior  litigation,  whether  necessary,  236,  238,  241. 
of  dissolving  injunction  or  discharging  attachment,  237. 
on  covenants  and  contracts  of  warranty  or  indemnity,  238. 
recovery  of  against  one  who  misrepresented  his  authority,  238. 
by  agent  against  undisclosed  principal,  338. 
must  be  reasonable,  239. 

to  which  plaintiff  was  subjected  through  defendant's  breach  of  con- 
tract, 240. 
through  defendant's  tort,  241. 


636  INDEX   TO    VOL.     I.  TSr:' 

EXPULSION  FROM  RAILROAD  CAR.    See  Cabbibb  op  Passengebs. 
exemplary  d.  for,  365,  372,  383. 

EXTENSION  OP  TIME  TO  DEBTOR,  Uquidated  d.  on  breach  of  agree- 
ment for,  407. 

EXTRAVAGANT,  liquidated  d.  must  not  be,  407. 

FACTOR,  recovery  by,  against  principal,  78. 
against  wrong-doei-,  76. 

FALSE  IMPRISONMENT.    See  Imprisonment,  False. 

FALSE  REPRESENTATIONS,  interest  in  action  for,  330. 

FAMILY    RELATIONS,  Injury  to  compensated,  39,  48. 

FEELINGS,  injury  to.    See  Mental  Sufpeking;  Pain. 

FENCE,  loss  by  defect  in,  when  remote,  133. 
avoidable  consequences,  201,  302. 

FILTH,  percolating,  whether  cause  of  action,  33. 

FINDER  OF  PROPERTY,  recovery  by,  76. 

FINE,  interest  on,  333. 

as  mitigating  exemplary  d.,  386. 

FIRE,  escape  of,  whether  cause  of  action,  33. 
d.  for,  315. 
whether  remote,  152. 
avoidable  consequences,  314. 
expenses  of  litigation,  233. 
exemplary  d.  for  maliciously  setting,  373. 

FISHING,  bond  to  prevent,  whether  liquidated  d.,  397. 

FLOOD,  loss  by,  whether  remote,  153. 

FLOODING  LAND,  whether  cause  of  action,  33. 
damages  after  writ,  91. 
nominal  d. ,  99. 
exemplary  <?.,  373. 

FORCED  SALE  OF  PROPERTY,  loss  by,  whether  remote,  130. 

FORCIBLE  ENTRY  AND  DETAINER,  exemplary  d.,  373. 

FOREIGN  ATTACHMENT,  when  it  suspends  interest,  340. 

FOREIGN  CONTRACTS,  rules  of  d.  as  to,  374. 

FOREIGN  MONEY,  273,  374. 

time  of  estimating. value  of,  273. 

FORFEIT,  use  of  word  not  conclusive,  406,  408. 

FORFEITED  PROPERTY,  value  of,  265. 

FORFEITURE,  395. 


TSiT"  INDEX   TO    VOL.    1.  637 

FORM  OF  ACTION  does  not  affect  d.,  30. 

FORMULA,  in  the  Roman  law,  33. 

FRANCE,  system  in,  previous  to  Code  Napoleon,  35. 

FRAUD,  as  affecting  the  allowance  of  interest,  386. 
interest  on  money  obtained  by,  303. 
compound  interest  on  account  of,  344. 
exemplary  d.  for,  367. 

FREIGHT,  failure  to  furnish,  avoidable  consequences,  813,  313,  331. 

FRENCH  LAW,  evidence  as  to  motive  admitted  in,  119. 
remote  consequences  compensated  in,  118. 
liquidation  of  d.  in,  437. 

FRESH  DAMAGE  will  not  give  fresh  action,  84. 

FRIGHT,  compensation  for,  47. 

FRISIAN  LAW,  10  n. 

FRIVOLOUS  SUIT,  no  redress  for,  beyond  costs,  333. 

FURNITURE,  second-hand,  value  of,  351. 

FUTURE  CONSEQUENCES.    See  Prospbctivb  Damages. 

FUTURE  USE,  value  of  property  for,  353. 

GAIN  PREVENTED.    See  Certainty  of  Proof. 

GAMBLING,  injury  to  business  of,  183. 

GARNISHEE,  cannot  retain  funds  for  expenses  of  litigation,  839. 

GARNISHMENT,  suspends  interest  when,  340. 

GENERAL  WARRANTS,  liberal  d.  in  actions  arising  from,  350. 

GOLD,  payment  in  not  overpayment,  869. 

contract  payable  in,  370. 

judgment  on  contract  payable  in,  371. 

tort  for  loss  of,  373. 

an  article  of  merchandise,  372  n. 
GOLD  STANDARD,  369. 

GOOD  FAITH  in  mitigation  of  exemplary  d.,  383. 
GOODS  SOLD,  debt  the  early  action  for,  390. 

GOOD-WILL,  compensation  for  loss  of,  183,  188. 
value  of,  354. 

GROSS  NEGLIGENCE,  what  is,  368. 
exemplary  d.  for,  368. 

GROSSLY  EXCESSIVE,  liquidated  d.  must  not  be,  407. 

verdict  for  exemplary  d.  get  aside  as,  388. 
GROUNDS  FOR  SETTING  ASIDE  VERDICT  for  exemplary  d.,  388. 


638  INDEX   TO    VOL.     I.  ''I^'SST 

HADLEY  V.  BAXENDALB,  rule  in,  144  et  seq. 
followed  in  America,  145. 
meaning  of,  146. 
English  interpretation  of,  147. 
interpretation  of  in  New  York,  148. 
results  of,  149. 

as  affected  by  Hobbs  v.  L.  &  S.  W.  Ry.  Co.,  150. 
a  rule  of  limitation,  151. 
what  are  natural  consequences,  152  ei  seq. 

breach  of  obligation  of  passenger  carrier,  150. 

natural  causes  supervene,  153. 

loss  by  flood,  storm,  or  fire,  153. 

deprivation  of  means  of  manufacture  or  trade,  153. 

default  of  telegraph  companies,  154,  169. 

failure  to  repair,  155. 

loss  upon  resale,  156. 

loss  of  sub-contract,  156. 
effect  of  notice  under.    See  Notice. 

HARBORING,  exemplary  d.  for,  376. 

HINDOO  LAW,  31. 

HOEL  DDA,  laws  of,  10  to. 

HORSE,  value  of,  352. 

HOTEL,  agreement  to  build,  liquidated  d.  for  breach  of,  416. 

HOUSEHOLD  GOODS,  value  of,  251. 

HUMILIATION,  compensation  for,  47. 

HUSBAND,  liability  of  in  exemplary  d.  for  tort  of  wife,  383. 

ILLEGALITY,  effect  of  on  value  of  property,  265. 

ILLNESS,  d.  for,  from  carrier's  delay,  150. 

IMPOSSIBILITIES  not  required  by  rule  of  avoidable  consequences,  219. 

IMPRISONMENT,  FALSE,  mental  suffering  in  actions  for,  43. 
compensation  for  wounded  pride  in  actions  for,  47. 
nominal  d.  for,  101. 
consequential  d.  for,  136. 
avoidable  consequences,  315. 

expenses  of  former  defense  recoverable  in  actions  for,  341. 
interest  not  allowed  in  actions  for,  320. 
exemplary  d.  for,  352,  373. 
mitigation  of  exemplary  (Z.  for,  384. 

IMPROVEMENTS,  contracts  to  make,  avoidable  consequences,  311. 

INCONVENIENCE,  when  compensated,  4*. 

INCUMBRANCES,  contract  against,  nominal  d.  for  breach  of,  106. 


""tlSrr  INDEX   TO    VOL.    I.  639 

INDEMNITY,  covenant  of,  recovery  of  expenses  of  litigation  caused  by  breach 
of,  238. 

INDETERMINATE  AND  DETERMINATE  DAMAGES,  359. 

INDIGNITY,  compensation  for,  47. 

INFECTIOUS  DISEASE,  loss  by  communication  of,  131,  143. 

INFLUENCE,  UNDUE,  a  ground  for  setting  aside  verdict  for  exemplary  d., 

388. 

INJUNCTION,  expense  of  dissolving,  337. 

against  payment  of  money,  when  interest  is  suspended  by,  340. 

INJUNCTION  BOND,  no  recovery  of  expense  of  litigation  upon,  233. 
expenses  of  resistiog  or  dissolving  injunction  recoverable  on,  337. 

INJURIA  SINE  DAMNO,  33,  96. 

INJURY,  possible,  173. 

liability  for  direct,  though  not  contemplated,  113. 

to  business,  183,  183,  185. 

to  feelings.    See  Mental  Suffbking. 

probable,  173. 

implied  by  law,  97. 

insurance  not  deducted  from  recovery  for,  67. 

by  animals.     Bee  Animals. 

stipulated  sum  not  proportioned  to,  a  penalty,  413. 

INSOLVENCY  OF  MAKER,  value  of  bill  or  note  how  affected  by,  356. 

INSTALLMENTS,  liquidated  d.  on  contract  payable  by,  413. 

INSULT,  exemplary  d.  for,  365. 

INSURANCE,  amount  of  d.  not  reduced  because  of,  67. 

INSURANCE  POLICY,  avoidable  consequences  on  breach  of  contract  to 
assign,  336. 
value  of,  259. 
interest  on,  389,  301. 

INTENT,  recovery  of  interest  not  affected  by,  341. 

effect  of  on  liquidated  d.,  406. 
INTEREST,  283  et  seq. 
nature  of,  383. 

measure  of  d.  for  loss  of  use  of  money,  174,  179. 
rate  of,  383. 
by  agreement,  383. 
as  d.,  283. 

origin  of  allowance  of,  383. 
Lord  Mansfield's  rule  as  to,  384. 
English  rule  as  to,  384,  391. 

where  time  of  payment  is  indefinite,  285. 

in  case  of  fraud,  286. 

on  mercantile  securities,  387. 


640  INDEX    TO    VOL.    I.  ^fZSrZ" 

XS.TESS&l—emtinvM. 

on  contract  express  or  implied,  388.   5 

by  statute,  289. 

discretion  of  jury  under  statute,  289. 

on  detention  of  money,  290. 

on  overdue  paper,  290. 
result  of  the  English  cases,  291. 

difference  between  English  and  American  rules  as  to,  293. 
frequently  regulated  by  statute,  293. 
on  money  vexatiously  withheld,  294. 
allowance  and  amount  of,  formerly  matter  for  jury,  395. 

now  usually  a  question  of  law,  296. 
gradual  extension  of  principle  allowing,  as  matter  of  law,  297. 
difference  between  liquidated  and  unliquidated  demands  as  to,  299. 

unsatisfactory  as  test  of  allowance  of,  300. 
for  non-payment  of  money,  301. 
after  maturity  of  note,  301. 
on  liquidated  d.,  801. 
on  legacy,  301. 
on  policy  of  insurance,  301. 
on  capital  of  firm  not  advanced,  301. 
time  from  which  it  runs,  302. 
demand  sets  running,  302. 
on  money  illegally  acquired  or  used,  303. 

trustee  when  chargeable  with,  303. 

agent  when  chargeable  with,  303. 
on  money  paid  out  for  defendant,  304. 

by  agent,  trustee,  or  surety,  304. 
on  money  had  and  received,  305. 

received  or  retained  by  mutual  mistake,  306. 
on  rent,  307. 
on  mesne  profits,  307. 
in  distraint,  307. 

on  fixed  price  for  property  or  work,  308. 
in  action  for  price  of  goods  sold,  808. 

time  from  which  recoverable,  308. 

after  reasonable  time,  308. 

sale  on  credit,  308. 
on  land  sold,  308. 
in  action  for  price  of  work,  308. 
where  debtor  prevents  demand,  309. 
on  simple  account,  310. 
on  balance  of  mutual  account,  311. 
on  partnership  accounts,  311. 
on  brokers'  accounts,  311. 

on  account  stated,  312. 
on  unliquidated  demands,  312-315. 
on  debt  ascertainable  by  computation,  813. 


""tTS^:'  INDEX   TO   VOL.    I.  64 1 

INTEREST— cora«mM«(i. 

New  York  rule  as  to,  313. 

does  not  extend  to  mutual  accounts,  313. 

time  from  which  it  runs,  314. 
on  demand  for  payment,  314. 

allowed  at  least  from  date  of  writ,  315. 
on  value  of  property  destroyed  or  converted,  316. 
in  case  of  conversion,  316. 
against  carrier,  816. 
in  case  of  collision,  316. 
on  property  destroyed  by  mob,  316. 
in  case  of  replevin,  316. 
on  property  destroyed  by  negligence,  317. 
on  property  taken  by  eminent  domain,  318. 

time  from  which  it  runs,  318. 
on  failure  to  deliver  goods,  319. 
in  tort,  320. 

on  breach  of  warranty,  320. 
in  discretion  of  jury,  331. 
d.  in  nature  of,  331. 
peculiar  rules.     Pennsylvania,  333. 

Massachusetts,  333. 

U.  S.  Supreme  Court,  334. 
on  overdue  paper,  335  et  seq. 

rate  of,  335-339. 

conflict  of  laws  regarding,  336. 

rule  in  U.  S.  Supreme  Court,  337. 
in  Indiana,  328. 

general  conclusions  as  to,  339. 

expressed  intention  always  governs,  330. 
interest  "till  paid,"  330. 
on  demand  note,  330. 

stipulated  higher  rate  after  maturity,  331. 
on  taxes,  333. 
on  fines  and  penalties,  333. 
on  judgments,  334. 
between  verdict  and  judgment,  335. 
in  error,  336. 

by  IT.  S.  judiciary  act,  336. 
from  municipal  corporations,  337. 
from  the  State,  337. 
after  payment  of  principal,  338. 
rate  of,  339. 

change  in  statutory  rate  of,  339. 
what  will  relieve  defendant  from,  340. 

tender,  340. 

offer  of  settlement,  340. 

laches,  340. 
Vol.  I. — 41 


642  INDEX   TO    VOL.    I.  ^t^S^!' 

INTEREST— contfntwd. 

war,  340. 

foreign  attachment  or  trustee  process,  340. 

injunction,  340. 

deatli  of  payee,  340. 
not  affected  by  intent,  341. 
conflict  of  laws  as  to,  843. 
compound  interest  not  originally  allowed,  343. 

by  custom,  344. 

for  fraud,  344. 

on  arrears  of  stipulated  interest,  345. 

on  annuity,  345. 

on  overdue  coupons,  345. 
never  allowed  by  way  of  damages,  345. 
in  admiralty,  346. 
from  date  of  note  not  paid  at  maturity  as  liquidated  d.,  411. 

INTEREST  OF  PLAINTIFF,  d.  as  affected  by.    See  Owner,  Special. 

INTEKET8  AND  BOMMAQES-INTMETa,  25. 

INTERPRETATION,  rules  of,  in  connection  with  liquidated  d.,  409. 

INTOXICATING  LIQUORS,  liquidated  d.  on  breach  of  contract  to  refrain 
from,  415. 

IRRELIGIOUS  PAMPHLETS,  value  of,  265. 

JEWISH  LAW,  20. 

JOINT  OWNER  OF  CHATTELS,  d.  recoverable  by,  83. 

JUDEX,  office  of  the,  under  the  Roman  law,  18,  22,  23. 

JUDGE,  power  of,  relatively  to  jury.     See  Couet. 

JUDGMENT,  form  of,  on  contract  payable  in  gold,  271. 
interest  on,  334. 

JURY,  its  origin,  17. 
trial  by,  17. 

early  indefiniteness  of  its  powers,  19. 
called  "chancellors,"  19,  397. 
discretion  of,  as  to  interest,  289,  295,  317,  321,  324, 
original  position  of  in  assessment  of  d.,  349. 
allowed  to  give  liberal  d.  under  circumstances  of  aggravation,  350. 
relation  of  to  award  of  exemplary  d ,  387. 
question  of  allowing  exemplary  d.  for,  387. 
not  to  be  instructed  to  give  exemplary  d.,  387. 

or  not  to  give  them,  if  any  evidence  justifies  them,  387. 
amount  of  exemplary  d.  for,  388. 

subject  to  revision  of  court,  388. 

JUSTINIAN'S  LAWS,  definition  of  d.  in,  32. 


^'tS^:'  INDEX   TO    VOL.    I.  643 

KAIMS,  LORD,  cited,  as  to  consequential  d.,  120  n. 
as  to  bonds,  395. 

LABEL,  UNION,  liquidated  d.  for  breach  of  contract  not  to  use,  415,  416. 

LACHES,  claim  for  interest  prevented  by,  340. 

LAND,  value  of,  353. 

d.  recoverable  for  injury  to  a  limited  interest  in,  69  et  seq. 

to  an  occupant  of,  70. 

to  a  lessee  of,  71. 

to  a  life-tenant  of,  73. 

to  a  mortgagee  of,  73. 

to  a  reversioner,  74. 
d.  after  suit  brought  for  breach  of  contract  to  convey,  89. 

for  causing  to  fall,  91. 

for  trespass  on,  92. 
nominal  d.  for  trespass  on,  99,  101. 
d.  for  obstructing  use  of,  184. 
d.  for  wrongful  eviction  from,  188. 
interest  on  purchase-money  for,  308, 
interest  on  value  of,  taken  by  eminent  domain,  318. 
flooding.     See  Floodlng  Land. 
liquidated  d.  for  failure  to  convey  or  exchange,  397,  400,  410,  417. 

LANDLORD  AND  TENANT,  nominal  d.  in  actions  between,  101. 

avoidable  consequences  in  actions  between,  for  failure  to  repair,  209, 
210,  211. 

LAND  SCRIP,  value  of,  363. 

LANGUAGE  OF  CONTRACT  not  conclusive  of  liquidated  d.,  408. 

LAW,  COMMON,  distinction  between  and  equity  fundamental,  1. 
gives  redress  usually  by  awarding  pecuniary  damages,  2,  4. 
relieves  only  in  case  of  actual  injury,  96. 
aim  of,  as  to  d.,  29,  30. 
wager  of,  16. 

civil  and  common,  difference  between,  119. 
Anglo-Saxon,  7. 
civil.    See  CrviL  Law. 
Frisian,  10  n. 
Hindoo,  31. 
Jewish,  20. 
Roman,  22. 

LAW,  measure  of  d.  a  matter  of,  31. 

allowance  of  interest  a  matter  of,  396,  397. 

LAWYER,  injury  to,  180. 

LEASE,  value  of  document  containing,  260. 

liquidated  d.  for  breach  of  covenant  to  assign,  400. 

for  delay  in  surrendering  possession  at  termination  of,  419. 


644  INDEX   TO    VOL.    I.  ^t?^,^ 

LEASE — continued. 

failure  to  give  possession  under,  inconvenience  of  other  quarters,  43. 
expenses  of  removal,  wlien  remote,  140. 
loss  on  stock  bought,  when  remote,  141. 
consequential  d.,  167,  185. 
avoidable  consequences,  208,  331. 

LEAST  BENEFICIAL  ALTERNATIVE,  rule  of,  431. 

LEGACY,  interest  on,  301. 

LEGAL  RELIEF,  necessary  incompleteness  of,  31. 

LEGAL  TENDER.    See  Payment,  Medium  of. 

LEGES  AETHELBIBETI,  9. 

LESSEE,  liability  of  corporation  in  exemplary  d.  for  act  of,  380. 

LESSEE  OF  LAND,  d.  recoverable  by,  71. 
for  permanent  injury,  71. 
for  temporary  injury,  71. 
how  affected  by  covenant  to  repair,  71. 
deposit  by,  whether  liquidated  d.,  414. 

LESSEE  OF  CHATTELS,  d.  recoverable  by,  76. 
against  owner,  78. 

LEX  AQUILIA,  d.  under,  24. 

LIABILITY,  when  stands  in  place  of  actual  d.,  336. 

LIBEL  AND  SLANDER,  position  of  parties  in  mitigation  or  aggravation  of 
d.  for,  53. 
nominal  d.  for,  98. 

expenses  of  litigation,  when  recoverable  in  action  for,  234. 
interest  not  included  in  recovery  for,  330. 
exemplary  d.  in  actions  for,  351,  353. 

LIBELLOUS  PORTRAIT,  value  of,  365. 

LIBERTY,  compensation  for  injury  to,  39,  49. 

LICENSE  TO  USE  PATENT,  liquidated  d.  for  breach  of  term  of,  416. 

LIENOR,  d.  recoverable  by,  76. 

d.  against  owner  recoverable  by,  78. 
d.  recoverable  by  owner  against,  80. 

LIFE,  value  of,  363. 

LIFE  TENANT  of  chattels,  d.  recoverable  by,  83. 
of  land,  d.  recoverable  by,  73. 

LIMITED  OWNERSHIP.    See  Ownership,  Limited. 
LIQUIDATED  DAMAGES,  389  et  aeq. 

amount  of  damages  stipulated  by  the  parties,  389. 

debt  on  bond,  390. 

damages  within  penalty,  391. 


h  sections.  INDEX   TO    VOL.     I.  O45 

LIQUIDATED  DAMAGES— coratoraMecJ. 
assignment  of  breaches,  392. 
only  actual  loss  recoverable,  393. 
liquidated  d.  and  penalty,  394. 
classification  of,  395. 
Roman  law  as  to,  395. 
general  observations  upon,  398. 
civil  law  as  to,  396. 
early  English  cases  on,  897. 
recovery  beyond  penalty,  396  n. 
leading  cases  of  in  England,  398,  399. 
on  actor's  contracts,  398,  399. 
early  cases  of  in  New  York,  400. 
on  exchange  or  conveyance  of  land,  400. 
on  sale  of  newspaper,  401. 
for  delay  in  construction,  402. 
on  failure  to  convey  land,  403. 
on  agreement  of  apprenticeship,  404. 
leading  cases  as  to,  401-404. 
general  rule  as  to,  405. 
liquidation  of  d.  must  be  by  contract,  408  n. 
intent  of  parties  to  liquidate  d.,  406. 
burden  of  proof  as  to,  406. 

principle  of  compensation  must  be  observed  in  fixing,  406. 
liquidation  must  be  reasonable,  407. 
language  not  conclusive,  408. 
rule  in  case  of  doubt,  408. 
rules  of  interpretation,  409. 
penal  sum  collateral  to  object  of  contract,  410. 
stipulated  sum  for  non-payment  of  smaller  sum,  411. 

not  proportioned  to  injury,  412. 
one  sum  for  breach  of  contract  securing  several  things,  413. 
deposit  to  be  forfeited  on  default,  414. 
contracts  performed  in  part,  415. 
stipulated  gum  in  liquidation  of  uncertain  damage,  416. 
on  breach  of  contract  of  sale,  417. 

not  to  carry  on  business,  418. 
for  delay  in  completing  performance,  419. 
stipulations  to  evade  usury  laws,  420. 
alternative  contracts,  421-424. 

rule  of  least  beneficial  alternative,  421. 

ordinary  rule  as  to,  423. 

to  do  an  act  or  pay  money,  423. 

doctrine  of  election,  423. 

sum  to  be  paid  must  be  reasonable,  434. 
stipulation  for  strictly  con-itrued,  425. 

postponement  of  performance,  cfEect  of,  425. 

consequences  of  liquidating  d.,  426. 


646  INDEX    TO    VOL.     I.  "^tZ^^ 

LIQUIDATED  DAMAGES— cowimwef. 

specific  performance,  whether  liquidated  d.  take  away  right  to,  426. 

bail,  efEect  of  liquidating  d.  on  right  to  hold  to,  426. 
under  French  Code,  427. 
under  Louisiana  Code,  487  n. 
interest  on,  301. 

LIQUIDATED  DEMANDS  and  UNLIQUIDATED  DEMANDS,  difference 
between  as  to  interest,  299. 
interest  on,  299,  300,  301. 

LIQUOR,  wrongful  sale  of.  -  Ses  Civil  Damage  Act. 

LITIGATION,  EXPENSES  OP.    See  Expenses  op  Litigation. 

LITIS  JESTIMATIO,  what,  23. 

LOAN  OP  MONEY,  interest  on,  304. 

LOSS  AFTER  ACTION,  84,  85. 

LOSS  OF  CREDIT,  d.  for  remote,  127. 

d.  for  included  in  exemplary  d.,  859. 

LOSS  OP  SERVICE.     See  Service,  Loss  or. 

LOUISIANA  CODE,  remote  consequences  in,  121. 
provisions  of,  as  to  liquidated  d.,  427. 

LUCRUM  CESSANS,  22,  173. 

MACHINERY,  loss  through  deprivation  of,  when  remote,  133. 
delay  in  delivery  of,  144,  145,  165. 
failure  to  furnish,  183. 
injury  to,  190. 
avoidable  consequences  on  breach  of  warranty  of,  226. 

MAKER'S  INSOLVENCY  as  affecting  value  of  bill  or  note,  256. 

MALICE,  exemplary  d.  because  of,  364. 

want  of,  mitigates  exemplary  d.,  383. 

MALICIOUS  ARREST,  exemplary  d.  for,  388. 

MALICIOUS  PROSECUTION,  wounded  pride  compensated  in  action  for, 

expenses  of  former  defense  recoverable  in  action  for,  241. 
exemplary  d.  in  action  for,  352,  372. 

MANUFACTURE,  profits  of ,  199. 

value  of  property  in  process  of,  248. 

MARKET  PRICE  often  includes  profits,  198. 

MARKET  VALUE.    See  Value. 

MARLBRIDGE,  statute  of,  nominal  d.  in  action  under,  100. 

MARRIAGE,  compensation  for  loss  of  advantages  of,  50. 


%"S,S:'  INDEX   TO   VOL.    I.  647 

MARRY,  bond  not  to,  397. 

liquidated  d.  for  breach  of  contract  to,  415. 

MASTER,  liability  of  in  exemplary  d.  for  act  of  servant,  378. 
for  negligence  in  hiring  servant,  878. 

MATURITY  of  commercial  paper,  interest  after,  325  et  aeq. 
rate  of,  325-831. 

expressed  intention  governs  as  to,  830. 
on  demand  note,  830. 
higher  rate  after  maturity,  331. 
interest  from  date  on  nonpayment  at,  as  liquidated  d.,  411. 

excessive  interest  after,  whether  usurious,  420  n. 
of  coupon  bond,  interest  after,  345. 

MAXIMS,  Oausa  proxima  rum  remota  spectatur,  114. 
De  minimis  non  curat  lex,  32,  108. 
Bie  utere  tuo  ut  alienum  non  Usdas,  104. 
Vbijus  ibi  remedium,  97. 

MAYHEM,  power  of  court  as  to  d.  for,  19,  349. 

MEAT,  liquidated  d.  for  breach  of  contract  to  buy  of  plaintiff,  416. 

MEDICAL  EXPENSES  recoverable,  217. 

MEDIUM  OF  PAYMENT.    See  Payment,  Medium  of. 

MENTAL  CAPACITY,  compensation  for  loss  of,  47. 

MENTAL  INJURIES,  compensation  for,  39. 

MENTAL  SUFFERING,  compensation  for  in  actions  of  assault,  43. 

of  false  Imprisonment,  43. 
not  of  itself  a  cause  of  action,  43. 
in  addition  to  physical  suffering,  44.   . 
when  remote,  44. 
resulting  from  injury  to  property,  44. 

breach  of  contract,  45. 

breach  of  promise  of  marriage,  45. 

breach  of  obligation  of  telegraph  company,  45. 
compensation  for,  how  estimated,  46. 

difficulty  of  estimating  compensation  in  money  no  objection  to  allow- 
ance of  d.  for,  46. 
kinds  of  compensated,  47. 
accompanying  physical  pain,  47. 
kinds  of:  mental  pain,  47. 

anxiety  and  distress,  47. 

fright.  47. 

loss  of  peace  of  mind  and  happiness,  47 

sense  of  insult,  47. 
-  indignity,  47. 

mortification,  47. 

wounded  pride,  47. 


648  INDEX   TO    VOL.     I.  TSiL"''' 

MENTAL  SUFFEEIEQ— continued. 
shame,  47. 
humiliation,  47. 
blow  to  aflfections,  47. 
d.  for  not  the  same  thing  a^  exemplary  d.,  356,  357. 

MERCANTILE  SECURITIES.    8eB  Notes;  Bills  akd  Notes. 
interest  on  in  England,  287. 

MESNE  PROFITS,  interest  on,  307. 

MIDWIFE,  injury  to,  180. 

MILL-DAM,  d.  for  injury  to,  189. 
d.  for  not  repairing,  302. 

MILL,  d.  for  stoppage  of,  183,  144,  145,  153,  165, 166,  189,  190. 
d.  for  failure  to  build,  186. 
d.  for  interference  with,  189,  190. 
avoidable  consequences  in  actions  for  loss  of  use  of,  327. 

MINE,  FLOODING,  whether  a  cause  of  action,  33. 
prospective  d.  for,  93. 

MINISTERIAL  OFFICER,  liability  of,  in  exemplary  d.,  381,  883. 

MISTAKE,  interest  on  money  received  or  retained  by,  806. 
no  exemplary  d.  for  tort  resulting  from,  363,  383. 

MITIGATION  of  d.,  51. 

a  matter  of  evidence,  53. 
of  exemplary  d.  in  actions  for  defamation,  877. 
because  of  lack  of  malice,  383. 
because  of  advice  of  counsel,  383. 
because  of  good  fajth,  383. 
because  of  provocation,  384. 
because  of  payment  of  fine  in  criminal  proceeding,  386. 

MOB,  injury  by,  138. 

interest  on  property  destroyed  by,  816. 

MONEY,  consequential  d.  for  loss  of,  168. 
d.  for  loss  of  use  of,  174,  179. 
value  of,  364. 
"  Confederate,"  378. 
foreign,  273,  374. 

banker's  liability  for  depreciation  of,  269. 
legal  tender  for,  269. 
different  kinds  of,  369. 

interest  as  d.  for  detention  of,  290,  301.    See  Interest. 
liquidated  d.  for  delay  in  payment  of,  411. 
stipulation  for  larger  sum  of,  on  non-payment  of  smaller  sum,  when 

liquidated  d.,  411. 
action  for,  whether  a  suit  for  specific  performance,  4. 


^'Zmri:'  INDEX   TO   VOL.    I.  649 

MORTGAGE,  interest  on,  in  England,  290. 

compound  interest  on,  not  allowed,  344. 

liquidated  d.  for  breach  of  terms  of  assignment  of,  416. 

MORTGAGEE  OF  LAND,  d.  recoverable  by,  73. 
action  for  impairment  of  security,  73. 
whether  whole  loss  recoverable  by,  73. 
loss  how  apportioned  between  senior  and  junior,  78. 

MORTGAGEE  OP  CHATTELS,  d.  recoverable  by,  81. 
recovery  by  successive  mortgagees,  81. 
recovery  against  mortgagor,  82. 
recovery  against  attaching  sheiiff,  82. 

MORTGAGOR  OP  CHATTELS,  d.  recoverable  by,  81. 
recovery  against  mortgagee,  82. 

MORTIPICATION,  compensation  for,  47. 

MOTIVE,  evidence  as  to,  admitted  in  Prance,  119. 
considered  in  awarding  exemplary  d.,  463. 

MUNICIPAL  CORPORATION,  liability  of,  to  interest,  337. 
liability  in  exemplary  d.,  379. 

MUSIC  TEACHER,  injury  to,  180. 

MUTILATION,  PHYSICAL,  compensation  for  mortification  resulting  from, 
47. 

NATURAL  CONSEQUENCE.    See  Consbqtjential  Damages. 

NEAREST  MARKET.    See  Valtje. 

NEGLIGENCE  in  constructing  public  work,  prospective  d.  for,  95. 
interest  on  value  of  property  destroyed  by,  317. 
gross,  368. 

exemplary  d.  for  gross,  368. 
of  master  in  hiring  servant  as  a  ground  for  exemplary  d.,  378,  380. 

NEWSPAPER,  liquidated  d.  on  contract  for  sale  of,  401. 

NEW  TRIAL  not  granted  to  a  plaintiff  entitled  to  nominal  d.  only,  109. 
unless  it  would  carry  costs  or  establish  title.  109. 
for  excessive  d.,  grounds  for,  when  exemplary  d.  are  allowed,  388. 

NOISE  BY  RAILROAD,  compensation  for,  43. 

NOMINAL  DAMAGES,  96  et  seg. 

de  minimis  rum  curat  lev  no  bar,  34  n.,  103. 
recoverable  though  return  of  property  accepted,  55. 
for  incumbrance  removed  by  grantor,  56. 
damage  inferred  from  fact  of  wrong,  97.  . 
actual  damage  unnecessary  where  right  infringed,  98. 
for  breach  of  contract,  98,  105,  106. 


650  INDEX   TO   VOL.    I.  '%"S&^I'" 

NOMINAL  DAMAGES— continued. 
for  libel  or  slander,  98. 
establish  title,  99. 
for  trespass  5.  c. /.,  99. 
for  flooding  land,  99. 
for  possible  or  probable  injury.  100. 
as  to  trade-marlis,  100. 
as  to  landlord  and  tenant,  100. 
for  tort  in  general,  100,  101,  104. 
allowed  even  where  trespass  benefits  plaintiff,  101. 
against  banlsers,  105. 

recoverable  for  bare  infringement  of  right,  98. 
against  attorney  for  compromising  suit,  103. 
determine  important  rights,  99. 
for  obstructing  highways,  101. 
against  ofiicers,  103. 
in  actions  for  services,  106. 

on  sealed  instruments,  106. 

on  bonds,  106. 

on  covenants,  106. 

against  receiptor,  106. 

for  false  imprisonment,  101. 

in  suits  brought  by  reversioners,  98,  100. 

for  diversion  of  watercourses,  100. 

for  private  letters,  107. 
in  life  insurance,  100. 
in  case  of  mortgage,  107. 
in  case  submitted  to  court  on  agreed  facts,  106. 
where  recovery  restricted  to,  107. 
in  Scotch  law,  107  n. 
in  admiralty,  108  n. 
in  actions  on  patents,  103. 
error  in  disallowance  of,  109. 
nonsuit  not  allowed  when  entitled  to,  109. 
new  trial  not  granted  merely  to  give,  109. 

granted  when  they  carry  costs  or  establish  title,  109. 
do  not  generally  carry  costs,  108  n. 
court  may  amend  record  by  giving,  109. 
where  no  proof  of  amount  of  d.  is  offered,  171. 
for  failure  to  finish  building,  186. 
for  conversion  of  altered  note,  256. 
right  to,  may  authorize  exemplary  d.,  361. 

NOMINE  P(ENJE,  397. 

NON-DELIVERY  OP  GOODS  BOUGHT.    See  Sale. 

NON-PAYMENT  OF   MONEY,  stipulation  for   larger  amount  upon,  a 
penalty,  411. 

NONSUIT  not  to  be  granted  where  plaintiff  is  entitled  to  nominal  d.,  109. 


^^TiT"  INDEX   TO   VOL.    I.  65 1 

NORMAL  CONSEQUENCES.    See  CoNSBQCEimAL  Daiiageb. 
NOTE,  promissory,  value  of,  356. 
contract  payable  in,  376. 
interest  on,  287,  801,  335,  339. 

expressed  intention  governs,  330. 
payable  on  demand,  interest  on,  330. 
interest  on  at  higher  rate  after  maturity,  331. 
attorney's  fee  as  liquidated  d.  for  non-payment  of,  416. 
NOTICE,  157  et  seq.    Bee  Consequential  Damages:  Hadlet  ».  Baxendale. 
effect  of,  in  enlarging  scope  of  compensation  for  breach  of  contract, 

158. 
must  form  basis  of  contract,  159. 
need  not  be  part  of  contract,  160. 
of  sub-contract,  161. 
of  contemplated  resale,  163. 
of  resale,  but  not  of  price.  163. 
of  special  use  for  goods,  164. 
for  machinery,  165. 
for  material  for  manufacture,  166. 
for  premises,  167. 
for  money,  168. 
for  information,  169. 
necessary  for  application  of  rule  of  avoidable  consequences,  323. 
of  prior  litigation,  necessity  of,  to  recover  expenses,  336,  338,  341. 
NUISANCE,  no  action  for,  if  common,  34. 

unless  particular  damage  results,  35. 
what  is  particular  damage  from,  35. 
to  what  time  d.  are  recoverable  in  action  for,  81. 
NURSING,  expense  of,  recoverable,  317. 

OBLIGATION,  form  of,  390. 
penal,  390. 

OBSTRUCTION  OP  HIGHWAY,  prospective  d.  for,  95. 
OCCUPANT  OP  LAND,  d.  recoverable  by,  70. 
OPPENSE,  composition  of,  36. 

discontinuance  of,  mitigates  exemplary  d.,  383. 
OPFER  of  reparation  does  not  reduce  d.,  53. 
unless  accepted,  55. 
or  unless  it  prevents  loss,  56. 
of  settlement  relieves  from  interest,  340. 
OFFICER,  PUBLIC,  nominal  d.  against,  103. 

avoidable  consequences  in  actions  against,  314. 
interest  on  money  withheld  by,  303. 
liberal  d.  against,  350.. 

liable  in  exemplary  d.  when,  350,  351,  365,  381,  383. 
not  without  wrong  motive,  363. 


t^-^  Tx^T^T7v    Tn    \7r\t       t  Befereruxs  are 

052  INDEX   TO    VOL.    I.  tosectione. 

OIL-WELL,  contract  to  bore,  or  pay  money,  434. 

OPPRESSION,  exemplary  d.  for,  365. 

OPPRESSIVE,  liquidated  d.  must  not  be,  407. 

ORDEAL,  trial  by,  14. 

OVERDUE  PAPER,  interest  on,  390,  301,  335. 
rate  of  interest  on,  335-339. 

expressed  intention  governs  rate  of  interest  on,  330. 
payable  on  demand,  830. 
interest  on  at  higher  rate  than  before  maturity,  331. 

OWNER  OF  CHATTELS  out  of  possession,  d.  recoverable  by,  80. 

OWNER,  limited  compensation  of,  C8  et  aeg. 
of  land,  d.  recoverable  by,  69. 
of  freehold,  recovers  whole  d.,  69. 
d.  recoverable  by  occupant  of  land,  70. 

by  lessee  for  permanent  injury,  69,  71. 

by  lessee  for  temporary  injury,  71. 

by  lessee,  how  affected  by  covenant  to  repair,  71. 

by  life-tenant  of  land,  73. 

by  mortgagee  of  land  for  impairment  of  security,  73. 

by  senior  and  junior  mortgagees,  how  apportioned,  73. 

by  reversioner,  69,  74. 

for  injury  to  reversion,  74. 

by  tenant  in  common  of  land,  75. 
of  chattel,  d.  recoverable  by,  76. 
d.  recoverable  by  possessor  of  chattel,  76. 

by  possessor  in  replevin,  77. 

by  possessor  against  owner,  78. 

by  possessor  against  one  from  whom  owner  could  not  recover,  79. 

by  owner  out  of  possession,  80. 

by  mortgagor  of  chattels,  81. 

by  mortgagor  against  mortgagee,  83. 

^by  mortgagee  of  chattels,  81. 

by  mortgagee  against  mortgagor,  83. 

by  part  owner  of  chattels,  83. 

by  a  partner,  83. 

by  a  life-tenant,  83. 

PAIN,  MENTAL.    See  Mental  Sxtppering. 

PAIN,  PHYSICAL,  compensation  for,  41. 
arbitrarily  estimated  by  jury,  171. 
compensation  for  does  not  involve  consideration  of  value,  343. 

PAMPHLETS,  irreligious,  value  of,  365. 

PAPER  CURRENCY.    See  Payment,  Medium  op. 

PART  PERFORMANCE,  liquidated  d.  how  affected  by,  415. 


""tefr"  INDEX   TO    VOL.    I.  653 

PARTIALITY,  ground  for  setting  aside  verdict  for  exemplary  d.,  388. 

PARTNER,  d.  recoverable  by,  83. 

entitled  to  interest  from  copartner  when,  301,  304. 
liability  of  in  exemplary  d.,  378. 

PARTNERS,  liquidated  d.  for  breach  of  bond  between,  397. 

PARTNERSHIP,  d.  for  breach  of  contract  of,  193,  194. 
interest  on  capital  of,  not  advanced,  301. 
accounts  of,  interest  on.  311. 
liquidated  d.  for  breach  of  contract  for  sale  of  interest  in,  417. 

PASS  ON  RAILROAD,  value  of,  250. 

PASSENGER.    See  Caeeier  of  Passengers. 

PASSION,  ground  for  setting  aside  verdict  for  exemplary  d.,  388. 

PATENTS,  nominal  d.  in  actions  upon,  103. 

whether  expenses  ot  litigation  compensated,  235. 
liquidated  d.  for  breach  of  term  of  license  to  use,  416. 

PAWNEE,  recovery  against  by  owner,  80. 

PAYMENT  in  goods  or  cattle,  10,  10  n. 
in  specific  articles,  279. 
of  principal,  interest  after,  338. 
medium  of,  266  ei  seg. 
primitive  substitutes  for  money,  266 
new  standard  of  value,  268. 
new  legal  tender,  269. 
Legal  Tender  Act,  269,  270,  274. 
double  standard,  269. 
gold  standard,  269. 

bank  deposit,  in  what  medium  payable,  369. 
contract  payable  in  gold,  270. 

form  of  judgment  on,  271. 
tort  for  loss  of  gold,  273. 
contract  payable  in  foreign  currency,  373. 
foreign  contract,  274. 
exchange,  275. 

contract  payable  in  mercantile  securities,  376. 
alternative  medium,  377. 
Confederate  money,  378 
payment  in  medium  other  than  money,  379. 
rule  allowing  recovery  of  stipulated  amount,  280. 

of  value  of  commodity,  281. 

PECUNIARY  CONDITION  OF  DEPENDANT,  exemplary  d.  aggravated 
by,  385. 

PENAL,  use  of  term  not  conclusive,  406,  408. 

PENAL  SUM  collateral  to  object  of  contract,  whether  liquidated  d.,  410. 


654  INDEX   TO  VOL.    I.  "^{^Zm^ 

PENALTY,  interest  on,  333.    Bee  Liquidated  Damages. 
whole  formerly  recovered  in  debt  on  bond,  390. 
of  bond,  A.  within,  391. 

beyond,  396  n. 
use  of  term  not  conclusive  in  stipulations  for  d.,  406,  408. 
actual  loss  only  recoverable,  393. 
intent  of  parties  as  to,  406. 
alternative  contracts  where  one  alternative  is,  434. 

PERFORMANCE,  preparations  for,  139. 

in  part,  liquidated  d.  how  affected  by,  415. 
postponement  of,  liquidated  d.  how  affected  by,  425. 

PERSONAL  INJURY,  what  consequences  of  are  natural,  143. 
proof  of  prospective  d.  for,  173. 
compensation  for  loss  of  time  from,  180. 

of  business,  181. 
interest  not  given  in  action  for,  330. 

PHYSICAL  INJURIES,  compensation  for,  39. 

PHYSICIAN,  injury  to,  180. 

PICTURE,  LIBELLOUS,  value  of,  365. 

PLEDGEE,  recovery  by,  76. 
against  owner,  78. 
by  owner  against,  80. 

POLICY  OF  INSURANCE,  value  of,  259. 
interest  on,  301. 

POOL,  breach  of  contract  to  enter,  300. 

PORTRAIT,  value  of,  351. 

libellous,  value  of,  265. 

POSSESSOR  OF  CHATTELS,  d.  recoverable  by,  76. 
in  replevin,  77. 
.against  owner,  78. 
against  one  from  whom  owner  cannot  recover,  79. 

POSTPONEMENT  OF  PERFORMANCE,  liquidated  d.  prevented  by,  435. 

POUND  STERLING,  exchange  for,  275. 
value  of  in  this  country,  375. 

PRE-EXISTING  DISEASE,  compensation  for  aggravation  of,  112. 

PREJUDICE,  ground  for  setting  aside  verdict  for  exemplary  d.,  388. 

PREPARATIONS  FOR  PERFORMANCE,  139. 

PBBTIUM  AFFECTI0NI8,  120,  251. 

Scotch  law  as  to,  120. 
PREVENTING  LOSS,  duty  of  party  as  to.    See  Avoidablb  Conseqtjenceb. 
PRIOR  INJURY,  recovery  for  aggravation  of,  112. 


^fc'«r"  INDEX   TO    VOL.    I.  655 

PRIOR  LITIGATION,  expenses  of.    See  Expenses  op  Litigation. 

PRIZE,  loss  of  opportunity  to  compete  for,  200. 

PROFESSIONAL  EARNINGS,  180. 

PROFITS,  173  et  aeg.    See  Cbrtaintt  op  Proof. 
what  are,  173. 
when  recoverable,  174,  176. 
early  cases  as  to,  175. 
rule  governing  recovery  of,  177. 
must  be  proved,  174. 

cannot  be  recovered  upon  entire  destruction  of  property,  178. 
of  money,  equivalent  to  interest,  179. 
of  established  business,  183. 
of  business  of  uncertain  nature,  183. 
of  new  business,  183. 
loss  of,  in  cases  of  capture,  175. 
of  collision,  175. 
for  obstructing  the  use  of  land,  184. 
from  failure  to  give  possession  of  land,  185. 

to  put  a  structure  on  land,  186. 
from  loss  of  use  of  road  or  bridge,  187. 

of  business  premises,  189. 
from  wrongful  eviction,  188 
from  injury  to  machinery,  190. 

to  crop,  191. 
on  breach  of  warranty  of  seed,  191. 
of  a  contract,  193. 

of  a  contract  for  a  share  in  a  business,  198. 
of  a  partnership  agreement,  193. 
of  an  undertaking  collateral  to  contract  in  suit,  194. 
of  the  use  of  personal  property,  195. 

of  a  vessel,  196. 
of  resale  at  retail,  197. 

included  in  market  value,  198. 
in  actual  value,  347. 
of  manufacture  of  raw  material,  199. 
loss  of,  on  breach  of  warranty  of  raw  material,  199. 
in  case  of  telegraph,  300. 
for  not  delivering  machine,  190. 
in  case  of  wrongful  attachment,  175. 

on  stopping  mill,  by  reason  of  steam-engine  not  being  furnished, 
165. 
raw  material  not  being  delivered,  166. 
by  carrier's  neglect  to  deliver  shaft  of  engine,  144. 

personal  injury,  180-182. 
probable,  of  whaling  voyage  not  recoverable,  193. 
of  competition,  300. 
of  speculation,  300. 


656  INDEX    TO   VOL.     I. 

PROPERTY,  compensation  for  injury  to,  39. 
how  measured,  40. 

mental  suffering  caused  by  injury  to,  44. 
interest  on  value  of,  316. 

on  diminution  in  value  of,  330. 
value  of.    See  Value. 

PROSECUTION,  liability  to,  whether  a  bar  to  exemplary  d.,  386. 

PROSPECTIVE  DAMAGES.    Bee  Cbbtaditt  op  Pboof. 
when  allowed,  84  et  seq. 
in  actions  for  personal  injuries,  86. 

for  loss  of  service,  86,  91. 

for  negligence,  86. 

of  contract,  89,  90. 

under  continuing  agreements,  87. 

of  contract,  where  breach  destroys  contract,  90. 

for  contract  to  support,  90. 
of  service,  90. 
to  repair,  90. 

for  trespass  on  land,  92. 

for  flooding  lands,  93. 

for  diverting  or  obstructing  stream,  93. 

for  obstructing  light,  93. 

for  permanent  tort,  94. 

for  erection  of  permanent  structure,  95. 
of  railroad  embankment,  95. 

for  obstructing  highway,  95. 

for  negligence  in  carrying  out  a  public  work,  95. 
must  be  proved  with  reasonable  certainty,  173. 
when  probable,  173. 

PROTECTION,  loss  through  deprivation  of,  when  remote,  134 

PROTEST,  interest  on  money  paid  under,  303. 

PROVOCATION,  mitigation  of  exemplary  d.  by,  384. 

PROXIMATE  DAMAGES.    See  Consequential  Damages. 

PUNISHMENT,  exemplary  d.  given  as,  360. 

PUNITIVE  DAMAGES.    See  Exemplary  Damages. 

PUNITORY  DAMAGES.    See  Exemplakt  Damages. 

QUANTUM  of  (?.,  a  question  for  jury,  19. 
QUANTUM  MERUIT,  interest  on,  395,  312,  314. 
QUI  TAM  ACTIONS,  interest  in,  333. 

RACE,  loss  of  opportunity  to  compete  in,  300. 


to  sections. 


""tZtSr^:'  INDEX   TO    VOL.     I.  "657 

RAILROAD.    See  Caeribk  of  Passengers. 

whetlier  injury  through  operation  of  is  cause  of  action,  33. 

failure  to  complete  in  time,  187. 

d.  on  breach  of  contract  to  construct  station,  194. 

RATE  OF  INTEREST,  339.    See  Interest. 

REASONABLE  EXPENDITURE,  power  of  court  to  determine  what  is.  2-8. 

RECEIPTOR,  nominal  d.  against,  106. 

REDRESS,  subject  of  d.  a  branch  of  the  law  of,  1. 

REDUCTION  OP  LOSS,  how  effected,  53  et  seq. 
not  by  offer  of  specific  reparation,  53. 
whether  by  bringing  property  into  court,  54. 
by  reparation  accepted  by  plaintiff,  55. 
by  reparation  preventing  actual  loss,  56,  213. 
by  reparation  accepted  from  third  party,  57. 
by  recovery  of  property,  58. 
by  application  of  property  to  plaintiff's  benefit,  59. 

only  if  accepted  by  plaintiff,  59. 

or  if  he  cannot  object,  60. 

In  case  of  seizure  by  creditor,  60. 
by.  payment  of  plaintiff's  debt  by  sheriff,  61. 

by  executor  de  son  tort,  61. 
by  offer  of  reparation  that  would  prevent  further  loss,  62. 
by  benefit  conferred  on  injured  party,  63. 

in  actions  for  flooding  lands,  64. 
none  where  benefit  is  enjoyed  in  common  with  others,  65. 
nor  where  not  caused  directly  by  wrongful  act  itself,  66. 
nor  by  benefit  received  from  third  parties,  67. 

charitable  aid,  67. 
•  insurance  money,  67. 

REMEDY,  to  be  commensurate  with  injury,  29. 
rule  of  d.  as  affected  by,  389. 

REMOTE,  avoidable  consequences  are,  202. 
counsel  fees  said  to  be,  230. 

REMOTE  DAMAGES.    See  Consequential  Damageb. 

REMOVAL,  expense  of,  when  remote,  140. 

RENT,  interest  on,  307. 

payable  in  chattels,  interest  on,  319. 
deposit- to  secure,  whether  liquidated  d.,  414. 

REPAIR,  breach  of  contract  to,  prospective  d.  on,  89,  90. 
consequential  d.,  155. 

avoidable  consequences,  202,  205,  209,  226. 
expense  of  litigation,  240. 
expense  of,  recoverable,  217,  218. 
VOL.  I. — 42 


658  INDEX    TO    VOL.    I.  ^t'Zi^:' 

KEPARATION,  oflEer  of  does  not  reduce  d.,  53. 
accepted,  reduces  d.,  55. 
ofEer  of,  reduces  d.  if  it  would  prevent  loss,  56. 

REPLEVIN,  recovery  in  by  owner  of  limited  interest  in  possession,  77. 
by  general  owner,  78. 
expenses  of  litigation  not  recoverable  in,  233. 
interest  in,  316. 
exemplary  d.  in,  375. 
avoidable  consequences  in,  214. 

REPUTATION,  injury  to  compensated,  39,  50. 

RESALE,  d.  for  loss  of,  161,  162,  163. 
profits  expected  from,  197. 
at  another  place,  goods  purchased  for,  246. 

RESERVOIR,  collection  of  water  in,  whether  cause  of  action,  33. 

RESTS,  annual,  in  accounts  when  allowed,  344. 

RETAIL,  profits  from  sale  at,  197. 

RETAIL  PRICE  Includes  profits,  197. 

RETURN  OF  PROPERTY  WRONGFULLY  TAKEN,  55. 

REVERSION,  d.  for  injury  to,  74- 

REVERSIONER,  d.  recoverable  by,  74. 

nominal  d.  recoverable  by,  98,  100. 

RIGHT,  belief  of,  exemplary  d.  mitigated  by,  383. 

RIGHT  OF  ACTION,  what  injuries  give,  33. 

question  of,  often  confounded  with  remote  consequences,  114. 
exemplary  d.  alone  never  give,  361. 

ROMAN  LAW,  d,.  under,  22. 

damnum,  emergens  and  lucrum  cessans,  22. 
no  exemplary  d.  in,  855. 
liquidated  d.  in,  395. 

ROOF,  ice  falling  from,  whether  cause  of  action,  33. 

RULES  FOR  CONSTRUING  stipulations  for  d.   See  Liquidated  DAMAaEB. 

SALE  OF  CHATTELS,  consequential  d.  for  failure  to  deliver,  153,  164. 
avoidable  consequences,  201,  205. 
interest,  319. 
liquidated  d.  for  failure  to  deliver,  417. 

for  delay  in  delivering,  419. 
interest  on  price  unpaid,  308. 

SALE  of  land.     Sec  Land. 

of  newspaper,  liquidated  d.  for  breach  of  term  of,  401. 
SAVINGS-BANK  BOOK,  value  of,  258. 


""t'Sr  INDEX   TO    VOL.    1.  659 

SAXON  LAW,  10  n. 

SCIRE  FACIAS,  interest  on,  334. 

SCOTCH  LAW,  nominal  d.  in,  107  n. 
remote  d.  in,  130. 
no  exemplary  d.  in,  355. 
solatium  in,  865. 

SEA-WALL,  exclusion  from,  134. 

SECONDAEY  DAMAGES.    See  Consequential  Damages. 

SECOND-HAND  GOODS,  value  of,  251. 

SECURITY,  value  of,  358. 

SEDUCTION,  compensation  for  shame  in  action  for,  47. 
for  injury  to  family  relations,  48. 
interest  not  allowed,  330. 
exemplary  d.  for,  376. 

SEED,  warranty  of,  d.  for  loss  of  crop,  191. 
interest,  320  n. 

SEIZIN,  breach  of  covenant  of,  recovery  of  expenses  of  prior  litigation  on,  238. 

"SELLING  SHORT,"  effect  of  on  market  value,  349. 

SERVANT,  master's  liability  in  exemplary  d.  for  act  of,  378. 
corporation's  liability,  380. 
master's  liability  in  exemplary  d.  for  negligence  in  hiring,  378,  380. 

SERVICE,  contract  of,  avoidable  consequences,  206. 

duty  to  seek  employment  on  breach  of,  306,  307. 
to  accept  employment  offered  by  defendant,  313. 
expenses  of  removal  to  accept  employment,  139. 
departure  from  without  notice,  consequential  d.  for,  137. 

liquidated  d.  for,  407. 
loss  of,  exemplary  d.  in  actions  for,  376. 

SERVICES,  value  of,  355. 

nominal  d.  in  actions  for,  106. 

SETTING  ASIDE  VERDICT  for  exemplary  d.,  grounds  for,  888. 

SHAME,  compensation  for  sense  of,  47. 

SHERIFF  may  reduce  d.  for  wrongful  seizure  by  showing  subsequent  legal 
seizure,  60. 
action  against  for  illegal  seizure,  60. 

for  informal  sale,  61. 
recovery  by,  76,  79. 
recovery  in  replevin,  77. 
recovery  against  owner,  78. 

"  SHORT."    See  "  Selling  Short." 

SIC  UTEBE  TUO  UT  ALIENUM  NON  LJEIBAS,  104. 


66o  INDEX    TO    VOL.     I.  ""'tZZA" 

SINGER,  profits  from,  not  recoverable  on  breach  of  contract  to  lease  opera 
house,  185. 

SKILL,  value  of,  255. 

SMART  MONEY.    8ee  Exemplakt  Damages. 

SMOKE  OP  RAILROAD,  compensation  for,  43. 

SOLATIUM  in  the  Scotch  law,  355. 

SOLICITOR'S  DOCKET,  value  of,  361. 

SOVEREIGN,  ENGLISH,  value  of,  375. 

SPECIAL  OWNER.     See  Owner,  Special. 

SPECIAL  TRAIN,  expense  of,  whether  recoverable,  318. 

SPECIAL  VALUE.     Bee  Value. 

SPECIFIC  MONEY  ACT,  370. 

SPECIFIC  PERFORMANCE,  when  suit  at  law  becomes  suit  for,  4. 
agreement  not  capable  of,  not  within  Sir  Hugh  Cairn's  Act,  3. 
whether  right  to,  lost  by  liquidating  d.,  436. 

SPECULATION,  loss  of  opportunity  to  engage  in,  300. 
effect  of  on  market  value,  249,  365. 

SQUIB,  action  for  throwing  lighted,  115. 

STAKEHOLDER,  when  chargeable  with  interest,  805. 

STANDARD  OF  VALUE.     See  Payment,  Medium  of. 

STATE,  whether  liable  to  interest,  387. 

STATED  DAMAGES,  same  as  liquidated  d.,  894. 

STATION,  railway,  breach  of  contract  to  construct,  194. 

STAY  OF  PROCEEDINGS  on  bringing  property  into  court,  54. 
in  actions  on  bonds,  391. 

STIPULATED  DAMAGES.    See  Liquidated  Damages. 
use  of  term  not  conclusive,  406,  408. 

8TIPULATI0  DUPLEX,  396. 

STIPULATORS,  liability  of,  to  interest,  346. 

STOCK,  loss  through  purchase  of,  when  remote,  141. 
in  corporation,  value  of,  257. 
contract  payable  in,  376. 
interest  upon  failure  to  return  borrowed,  319. 

STORM,  loss  by,  whether  recoverable,  153. 

STREET,  liquidated  d.  on  breach  of  contract  to  lay  out,  416. 

SUB-CONTRACT,  d.  for  loss  of,  156,  157,  161,  162,  163. 

avoidable  consequences,  219. 

expenses  of  litigation  on,  whether  recoverable,  240. 


%TchZ:'  index  to  vol.  I,  66 1 

SUBSEQUENT  LOSS,  no  recovery  for,  84. 
SUPER  VISUM  VULNERIS,  19,  349. 

SUPPORT,  prospective  d.  for  breach,  of  agreement  to,  89,  90. 

bond  to,  393  n. 

liquidated  d.  on  contract  to,  897,  415. 
SUPPORT  OF  LAND.     See  Lateral  Support. 

easement  of,  d.  after  writ  for  infringement  of,  91. 
SURETY,  when  entitled  to  interest,  304. 

TAXES,  interest  on,  832. 
TEACHER,  injury  to,  180. 

TELEGRAM,  consequential  d.  on  delay  or  failure  to  deliver,  153,  200. 
after  notice,  169. 
avoidable  consequences,  305,  314. 
TENANT,  recovery  for  injury  to  land,  69,  71. 
for  life.     See  Lipb-Tbstant. 
in  common  of  land,  d.  recoverable  by,  75. 
of  chattels,  83. 
TENDER  relieves  from  interest,  340. 
TENDER,  LEGAL,  369. 

THEATRE,  liquidated  d.  to  secure  actor's  performance  at,  398,  899. 
TIME  to  which  compensation  may  be  recovered,  84  et  seq. 

prospective  and  past  damages  recoverable  in  single  action,  84. 

early  rule  different,  85. 
loss  accruing  after  action  brought,  85. 
prospective  loss,  86. 

damages  for  breach  of  continuing  agreements,  87. 
new  action  must  be  brought  for  renewed  injury,  88. 
continuing  breach  of  subsisting  contract,  damages  to  date  of  writ, 

89. 
breach  destroying  contract,  prospective  damages,  00. 
continuing  tort,  damages  to  date  of  writ.  91. 
tort  by  trespass  on  plaintiff's  land,  to  what  time  damages  recover- 
able, 93. 
by  unauthorized  private  structure,  or  use  of  land  by  defend- 
ant, 98. 
tort  causing  permanent  injury,  94. 
authorized  permanent  public  work,  95. 
when  negligently  constnicted,  95. 
from  which  interest  runs,  303,  310,  314,  315,  318. 
compensation  for  loss  of,  180. 
value  of,  351. 
TITLE,  nominal  d.  establish,  99. 
value  of  abstract  of,  361. 
TITLE  DEEDS,  value  of,  363. 


662  INDEX    TO    VOL.     I.  TSo«r 

TOBACCO,  early  substitute  for  money  in  Virginia,  866. 

TOLLS,  loss  of,  187. 

TORT,  continuing  d.  recoverable  for  till  action,  91. 
nominal  d.  for  100. 

expensi  s  of  litigation  not  recoverable  in  action  of,  233. 
interest  in  action  of,  320. 
exemplary  d.  in  action  of,  370. 
for  loss  of  gold,  372. 
joint,  liability  of  defendants  in  exemplary  d.,  383. 

TOWN,  expenses  of  litigation  for  injury  on  highway  recoverable  by,  from 
wrong-doer,  241. 

TRADE,  agreement  not  to  continue,  183,  400,  408,  418. 

TRADE-MARK,  nominal  d.  for  infringement  of,  100. 

TRANSPORTATION,  cost  of,  included  in  value,  346,  247. 

TREASURY  NOTES  of  United  States  as  legal  tender,  269. 

TRESPASS  on  real  estate,  prospective  d.  for,  92. 
nominal  d.  for,  99,  101. 
exemplary  d.  for,  350,  361,  373. 

none  if  accidental  or  in  belief  of  right,  363. 
mitigation  of,  384. 
on  personal  property,  exemplary  d.  for,  351,  353. 

TRIAL  by  battle,  15. 
by  ordeal,  14. 
by  wager  of  law,  16. 
by  jury,  17. 
damage  accruing  subsequently  to,  not  cause  of  action,  84,  85. 

TROVER,  interest  in  action  for  in  England,  289.    See  Conveesion. 

TRUSTEE.     See  Garnishee. 

mingling  trust  funds  with  his  own,  liable  to  interest,  303. 
when  liable  to  compound  interest,  344. 
entitled  to  interest  on  advances,  304. 

TRUSTEE  PROCESS,  interest  when  suspended  by,  340. 

TURNPIKE,  failure  to  complete  at  agreed  time,  187. 

TWELVE  TABLES,  d.  in,  24  n. 

TTBI  JUS  IBI  REMEDIUM,  97. 

UNCERTAIN  DAMAGE,  stipulation  in  liquidation  of,  416. 

UNCERTAIN  DAMAGES.     See  Cektaintt  of  Proof. 

UNDUE  INFLUENCE,  ground  for  setting  aside  verdict  for  exemplary  d., 

888. 
UNION  LABEL,  liquidated  d.  on  breach  of  contract  not  to  use,  415,  416. 


Eeferences  are  ...^  _,„        _  f.1:.- 

iosec'dom.  I^DEX    TO    VOL.     I.  OO3 

UNION  MEN,  liquidated  d.  on  breach  of  contract  not  to  employ,  415,  416. 

UNITED  STATES  TREASURY  NOTES,  269. 

UNITS  OF  VALUE  in  United  States,  368. 

UNJUST,  liquidation  of  d.  must  not  be,  407. 

UNLAWFUL  BUSINESS,  injury  to,  183. 

UNLIQUIDATED  DEMANDS,  interest  on,  399,  300,  313-315. 

UNREASONABLE,  liquidated  d.  must  not  be,  407. 

USE,  value  for  special,  253. 

USURY,  what  is,  430. 

USURY  LAWS,  cannot  be  evaded  by  stipulating  d.,  430. 

VALUE,  243  ei  seq. 

market,  not  conclusive,  243. 

commonest  test  of  real  value,  343. 

what  is,  244. 

how  determined,  245. 
in  nearest  market,  246. 

cost  of  transportation,  whether  included,  346,  347. 

allowance  of  profit,  when  made,  347. 
of  property  in  process  of  manufacture,  348. 
fictitious,  349. 

artificially  enhanced,  349,  365. 
none  in  market,  350. 
peculiar,  of  portrait,  351. 

of  household  goods,  351. 

of  clothing,  251. 

preiium  a^eciionis,  251. 
for  special  use,  353. 
for  possible  future  use,  353. 
of  land,  353. 
of  good -will,  254. 
of  time,  355. 
of  services,  355. 
of  elwse  in  action,  356. 
of  bill  or  note,  256. 
of  municipal  bond,  257. 
of  corporate  stock,  357. 
of  other  securities,  358. 
of  policy  of  insurance,  359. 
of  other  sealed  instruments,  360. 
of  documents,  261. 
of  title  deeds,  263. 
of  life,  263. 

of  money,  364,  366  et  seq. 
of  foreign  money,  273-275. 
of  illegal  and  noxious  property,  265. 


664  INDEX    TO    VOL.     I.  ''t'Sr^" 

VERDICT  does  not  create  right  to  d.,  5. 
interest  on'  before  judgment,  335. 
for  exemplary  d.,  on  what  grounds  set  aside,  388. 

VESSEL,  failure  to  furnish,  194. 
loss  of  use  of,  196. 
avoidable  consequences  on  failure  to  furnish  freight  for,  313. 

VEXATION,  no  compensation  for,  43. 

VEXATIOUS  SUIT,  no  recovery  for,  in  cases  of  contract,  beyond  costs,  332. 

VEXATI0U8LY  WITHHELD,  interest  on  money,  394. 

VINDICTIVE  DAMAGES.    Bee  Exemplary  Damages. 

VIVA  PBCUNIA,  10. 

VOYAGE,  WHALING,  loss  of  profits  of,  193. 

WAGER  OP  LAW,  trial  by,  16. 

when  abolished  in  England,  16  n. 

WAGES,  forfeiture  of  on  leaving  without  notice,  whether  a  penalty,  407. 

WANTONNESS,  exemplary  d.  for,  366. 

WAR,  when  payment  of  interest  suspended  by,  340. 

WAREHOUSEMAN,  recovery  by,  76. 

WARRANTS,  general,  liberal  d.  in  actions  arising  from,  350. 

WARRANTY,  recovery  of  expenses  of  prior  litigation  in  action  for  breach  of 
covenant  of,  338. 

WARRANTY  of  chattels,  consequential  d.  on  breach  of,  163. 

d.  for  loss  of  crop  on  breach  of,  191. 

expenses  of  litigation  on  breach  of,  338. 

interest  on  breach  of,  330. 
of  raw  materials,  109. 
of  seed,  191. 

WASTE,  interest  in  actions  of,  330. 

liquidated  d.  on  breach  of  bond  against,  397. 

WATER,  nominal  d.  for  diversion  of,  100. 

litigation  expenses  in  actions  for  setting  back,  333. 

WATERCOURSE,  d.  after  writ  for  diverting  or  polluting,  91. 
for  obstructing,  93. 
avoidable  consequences  on  obstruction  of,  314. 

WEALTH  OP  DEPENDANT,  exemplary  d.  aggravated  by,  385. 

WERE,  the  Anglo-Saxon,  8. 

WEREQILD,  8. 

WIPE,  tort  of,  whether  husband  liable  in  exemplary  d.  for,  383. 


""t'SrS:'  INDEX   TO    VOL.     I.  665 

WITE,  9. 

WITNESS  FEES,  239  n. 

WORK,  interest  oh  price  of,  308. 

WORK  AND  LABOR,  debt  the  early  action  for,  390. 

WRIT,  d.  accruing  after  date  of.    See  PKOsPECTrvB  Damages. 
interest  allowed  at  least  from  date  of,  316. 

WRITS,  classification  of  by  Lord  Coke,  96  n. 

WRONG,  plaintiflE  need  not  anticipate,  234.
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Full text of "A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice"

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