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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"

QlortifU IGaw ^rl|0til ICIibtary 



Cornell University Library 
KF 446.S44 1891 

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




3 1924 018 784 904 




1 Cornell University 
J Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924018784904 



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. 
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. 

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. 
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. 
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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. "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. 
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. 

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. 

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. 
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. 

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, 10 2 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. 

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. 

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. 

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. 

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. 

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. 

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. 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 Wm