The Central Law Journal.

ST. LOUIS, JANUARY 10, 1890.

THE retirement of Mr. Austin Abbott; from the editorial management of the New York Daily Register, is an event which we chronicle with deep regret. For thirteen years he has, in the columns of that paper, rendered valuable services to his readers, by the intelligent and vigorous reviews of the work of courts, of legislators and the text-writers. The light which his clear intellect has shed upon many of the obscure subjects of the law, will be greatly missed, not only by the profession at large, but by the legal journals who have from time to time made frequent use of the results of his thought and labor. In conclusion, we express the hope that he may, through other channels, for many years continue to impress his vigorous personality upon the development and study of the law. The following from his valedictory is worthy of reflection:

The time has gone by when the law can be learned like a matter of ancient history. The records of the past, whether ancient, mediæval or modern, and whether in text-books or annals or reports, can show nothing more than the roots of the law. The law is not in the books. The book gives us what this judge *or writer thinks about the law, or did think about it when he wrote. But the law is in the air-it is in the life and force of the community about us, as regulated by the ever developing judgments of judicial power. The books give us approximate statements. But the original thought and fresh observation of the reader must incessantly verify and test what has been written, and cannot help modifying these records of the past in their application to the controversies of the day. The legal journals of our day are rendering a yet too little recognized service in this respect, and to have co-operated in this service has been a pleasure quite as great as any that my readers have found in what I have put before them.

made. There are many cases which come before the courts, the details of which, in the interest of public morals, it would be much better to keep from the public ear. But that the courts of our country should close their doors to any who might enter would not be tolerated for a moment, as a return to the methods of ancient Venice. Publicity in some matters is often unpleasant to the participant, but such publicity is often a wholesome provision, and one which a liberty-loving people would not willingly abridge.

THE Hon. Edward J. Phelps, ex-minister to England, and lecturer on law at Yale College, has turned his attention to the subject of divorce in the United States, with an effort to discover a practical means of lessening the evil. How great that evil is, we have frequently shown by statistics. In an arti

cle contributed to the December number of the Forum, Mr. Phelps treats the subject from a practical legal point of view, and considers the means whereby the law may be best used as a preventive.

A uniform divorce law in all the States he regards as impossible to obtain, and his view of the federal constitution is that it would be illegal for the United States to enact a law on that subject, it being a matter which falls with in State jurisdiction. He addresses himself therefore to State laws, and after a discussion of the main features of all these laws, reaches the conclusion that the remedy will be found in a prohibition of marriage by either divorced party so long as the other lives. He shows historically, that it is the liberty to marry again that has caused such an increase in divorces; and he concludes that it is the desire for another marriage alliance that is the main cause of most separations between husbands and wives.

A new departure in English jurisprudence is that which allows cases of a certain nature to be tried in private. Under a recent decision of the Queen's bench, it is in the discretion of the judge, in cases in which both contesting parties are agreed, to try the case with closed doors. It is scarcely probable that such a procedure as this would receive public approval in this country, even if it should be VOL. 30-No. 2.

STATE taxation as well as State regulations of commerce must be confined to subjects which are clearly within State jurisdiction. This is a doctrine which one would think should have been definitely settled by this time, but only within the past month the Supreme Court of the United States was called upon to reaffirm it in а case com

ing from Alabama. Under a law passed by the legislature of that State, telegraph companies were taxed not only on business done entirely within the State, but also on messages The sent to or received from other States. supreme court, of course, held the law unconstitutional on the ground that the taxation of the latter class of messages was an interference with interstate commerce. This is the logical outcome of the principle laid down in the Pensacola Telegraph Company's case, that telegraph companies are instruments of commerce, and that their business is commerce itself.

THE oft-repeated assertion of certain prominent newspapers that the United States Supreme Court was packed to reverse the legal tender decision, has at length drawn out an indignant denial from Justice Bradley, who writes:

Mr. Charles S. Sminck-Dear Sir: The vile slander referred to in your letter of the 23d ult. about the supreme court being packed to reverse the legal-tender decision has been so often refuted that it is hardly necessary to notice it again. The story that Judge Strong called on me to ascertain my views is new and purely fictitious. I think I never met Judge Strong until we met as judges of the court. The entire charge that our nomination was made in reference to the legal-tender question is totally false and gratuitous, and is kept on foot by those whose interests, political or pecuniary, are supposed to be promoted by it. Yours respectfully, Jos. P. BRADLEY. Washington, Dec. 2, 1889.

NOTES OF RECENT DECISIONS.

THE rule of damages in an action for deceit, as distinguished from an action for breach of contract or warranty, was tersely stated by Chief Justice Fuller in Smith v. Bolles, 10 S. C. Rep. 39. The suit was brought to recover damages sustained by plaintiff by purchasing stock in reliance on fraudulent misrepresentations which defendant was alleged to have made. The trial judge charged that he was entitled to recover the difference between the contract price and what would have been reasonable value if the representations had been true. The chief justice, in the course of his opinion, reversing this, said:

What the plaintiff might have gained is not the

question; but what he had lost by being deceived into the purchase. The suit was not brought for breach of contract. The gist of the action was that the plaintiff was fraudulently induced by the defendant to purchase stock upon the faith of certain false and fraudulent representations, and so as to the other persons on whose claims the plaintiff sought to recover. If the jury believed from the evidence that the defendant was guilty of fraudulent and false representations alleged, and that the purchase of stock had been made in reliance thereon, then the defendant was liable to respond in such damages as naturally and proximately resulted from the fraud. He was bound to make good the loss sustained-such as the moneys the plaintiff had paid out and interest, and any other outlay legitimately attributable to defendant's fraudulent conduct; but this liabliity did not include the expected fruits of an unrealized speculation. The reasonable market value, if the property had been as represented, afforded, therefore, no proper element of recovery. Nor had the contract price the bearing given to it by the court. What the plaintiff paid for the stock was properly put in evidence, not as the basis of the application of the rule in relation to the difference between the contract price and the market or actual value, but as establishing the loss he had sustained in that particular. If the stock had a value in fact, that would necessarily be applied in reduction of the damages. "The damage to be recovered must always be the natural and proximate consequence of the act complained of," says Mr. Greenleaf (volume 2, § 256); and "the test is," adds Chief Justice Beasley, in Crater v. Binninger, 33 N. J. Law, 513, "that those results are proximate which the wrong-doer, from his position, must have contemplated as the probable consequence of his fraud or breach of contract." In that case the plaintiff had been induced by the deceit of the defendant to enter into an oil speculation, and the defendant was held responsible for the moneys put into the scheme by the plaintiff in the ordinary course of the business, which moneys were lost, less the value of the interest which the plaintiff retained in the property held by those associated in the speculation. And see Horne v. Walton, 117 Ill. 130, 141, 7 N. E. Rep. 100, 103, Slingerland v. Bennett, 66 N. Y. 611; Schwabacker v. Riddle, 84 Ill. 517; Fitzsimmons v. Chapman, 37 Mich. 139.

The New York Register in commenting on this case, says that it was this same distinction in law of damages that gave sharpness to the controversy in the Bric-a-brac case which has just been tried in England, but has not perhaps yet got beyond the newspapers into reports. The purchasers of two vases from a dealer in second hand articles, got them for three or four pounds, when they would have been worth twelve pounds had they been genuine old Chelsea ware as represented; and finding that he had been deceived he sued, expecting to recover the difference in value. The contest, which excited considerable interest in London, turned, in a technical point of view, on whether the plaintiff's evidence made out a warranty and breach, or only a false representation. Be

fore buying he had asked the dealer if he warranted the vases to be old Chelsea, to which the dealer replied "yes, and there is the guarantee," pointing to a mark or stamp upon them. This mark was in fact false. If the dealer had simply said "yes;" plaintiff would have made out his warranty and might perhaps have recovered what he failed to gain by the bargain; but as the dealer added and appealed to the evidence of the truth of his statement, Lord Coleridge held his response was not a warranty, but that it left the buyer to judge himself of the apparent mark.

AN instructive case upon the same subject and one which shows that an important element in the application of the rules as to what constitutes actionable deceit is the question what are matters of fact as distinguished from matters of opinion, is Nounnan v. Sutter County Land Co., Supreme Court of California, 22 Pac. Rep. 515. There the plaintiffs claimed damages for fraudulent representations, in that defendant induced them to undertake the construction of a certain levee by representing that the amount of earth necessary to construct the same was 350,000 cubic yards, and that the earth to be moved was light, sandy loam. They alleged that, upon the faith of these representations, they entered into a written contract to build a levee on defendant's lands by a given date, for which they were to be paid 12 cents per cubic yard of excavation; that in the performance of the work they had moved 400, 000 cubic yards of earth, more than half of which was much harder than represented by defendant; and that by reason of the character of such earth it was impossible to complete the levee as they contracted to do. The court held that such representations were

expressions of opinion as to matters equally in the power of both parties to ascertain, and the omission of any reference to them in the contract showed that plaintiffs did not regard the same as material; and plaintiffs' continuance of the work after discovering that such representations were false was a waiver of right to contest the contract upon that ground.

THE effect of fraud in inducing defendant to come within jurisdiction in order to serve him with process was considered by the Su

preme Court of Oregon in Commercial National Bank v. Davidson, 22 Pac. Rep. 517. The court in overruling the motion to change the venue of the suit says:

The claim by appellant's counsel that there was an abuse of process in the commencement of the suit arises out of the fact that the respondent's counsel represented to the appellant and his counsel that they were coming to Portland to bring a suit in the United States court to adjudicate the question of the lien, and that appellant and his counsel were thereby, in order to save time and unnecessary expense, induced to come to Portland also, to contest an application for a receiver, or give bond if a receiver should be ordered; that a stipulation was signed, entitled in that court, waiving demand for possession; that when appellant arrived in Portland he was almost immediately served with process from the State court. The appellant resided in Malheur county, Oreg., and claims that he should have been sued in the circuit court for that county if sued in the State court, and that it was a deceit in respondent's counsel in so inducing him to come to Portland. I do not think the facts referred to constitute such a deceit as required the circuit court to set aside the service of the summons upon the appellant. It appeared that the respondent's counsel did intend to bring the suit in the United States court, but when he got to Portland he found that that court had no jurisdiction in such a case, and he therefore brought the suit in the State court for Multnomah county. If the statement of the respondent's counsel was made as claimed by the appellant's counsel, it constituted no ground of deceit. As the appellant was bound to know whether the suit could be brought in the United States court or not, he should not have allowed himself to have been deceived by a statement which his counsel would have informed him was untrue. But the deception, if there were any, did not prejudice the appellant. He could not possibly have been injured by being sued in Multnomah county instead of Malheur county. In any equity case where the testimony is taken by deposition it can make very little difference where the suit is brought. In this case all the counsel on both sides, who had the management of the suit after it was begun, resided in Portland, and it is very evident that its commencement there was a convenience to all parties.

THE measure of damages for delay in the delivery of a cipher telegraph message was stated in Abeles v. West. Union Tel. Co., recently decided by the St. Louis Court of

Appeals. There it was held that where a message in cipher is delivered to the agent of a telegraph company, without informing him of the meaning of the words nor of the damnon-delivery or delay, substantial damages. ages which will probably ensue in the case of beyond the charges for transmitting the message cannot be recovered. Judge Thompson, who delivered the opinion of the court says:

The question of the liability of a telegraph company for delay in delivering a cipher dispatch, or for the non-delivery of such a dispatch, has never been before the courts of this State so far as we know. We are of opinion that the measure of damages in such a case i

that laid down in the leading case of Hadley v. Baxendale, 9 Exch. 341, which is tha where two parties have made a contract which one of them has broken, the damages which the other ought to recover in respect of such breach of contract, should be either such as may fairly and substantially be considered as arising naturally, that is, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time when they made the contract, as the probable result of the breach of it. Where the agent of a telegaph company receives for transmission a dispatch, the meaning of which is unknown, no consequential damages such as are sought to be recovered in this case, can be fairly regarded as arising naturally, that is, in the usual course of things from a failure to deliver the message; nor can such damages be supposed to have been in the contemplation of the sender of the message and the agent of the company who received it at the time when it was received for transmission.

Re-affirming this doctrine and speaking with reference to a case where the dispatch, though not in cipher, was in terms not calculated to advise the company that extraordinary care or speed was expected in transmitting the dispatch, it was said by Allen, J., in the Court of Appeals of New York: "Whenever special or extraordinary damages, such as would not naturally or ordinarily flow from a breach, have been awarded for the non-performance of contracts, whether for the sale or carriage of goods, or for the delivery of messages by telegraph, 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 natural and necessary consequences of the breach of contract, in the minds of the parties, interpreting the contract in the light of the circumstances nnder which, and the knowledge of the parties of the purposes for which it was made; and when a special purpose is intended by one party, but is not known to the other, such special purpose will not be taken into account in the assessment of damages for the breach. The damages in such cases will be limited to those resulting from the ordinary and obvious purpose of the contract." Baldwin v. United States Telegraph Co., 45 N. Y. 744; s. C., 6 Am. Rep. 165, 169. Applying this rule of damages, we find that several authoritative courts have held that in the case of an unreasonable delay in delivering a cipher dispatch the terms of which have not been communicated to the telegraph company, the plaintiff can recover at most nominal damages, or, as some hold, the amount received for transmission. Saunders v. Stewart, 1 C. P. Div. 326; 8. C., 35 L. T. N. S., 370; Candee v. Western Union Tel. Co., 34 Wis 471; s. c., 17 Am. Rep. 462; Daniel v. Western Union Tel. Co., 61 Tex. 452; s. c. 48 Am. Dec. 805; Western Union Tel. Co. v. Martin, 8 Bradw. Ill. 587; Behm v. Western Union Tel. Co., 8 Biss. (U. S. 131.)

We have been cited to three opposing decisions Western Union Tel. Co. v. Reynolds, 77 Va. 173; s. C., 46 Am. Rep. 715; Western Union Tel. Co. v. Way, 83 Ala. 542; 8. C., 4 South. Rep. 844; Western Union Tel. Co. v. Hyer, 21 Fla. 637; s. c., 1 Am. St. Rep. 222. These decisions were all rendered by divided courts. They either ignore o1 seek to restrain the rule of damages laid down in Hadley v. Baxendale, 9 Exch. 341, and they do not commend themselves to our approval.

Aside from the reasons which support the rule of damages in Hadley v. Baxendale, there is here a question of public policy to which we could not shut our eyes if we were in doubt upon the question. Under any other rule, where a cipher dispatch is delivered to a telegraph company for transmission and not translated to them, and there is a delay in delivering it or a total failure to deliver it, the door is open for unlimited fraud upon the company. The evidence of its meaning is entirely in the breast of the sender and persons to whom it is sent. They can construct any meaning which they may choose, and upon the meaning thus constructed they may, by evidence which the company will be powerless to rebut, construct any fabric of facts on which to build an action for damages which they may see fit.

While telegraph companies are not common carriers, their duties are analogous to those of common carriers; and the well known rule in regard to the liability of a common carrier in the case of goods of such a peculiar character that extra precautions must be taken in carrying or storing them, that the carrier is not liable for the failure to take such extra precautions where a knowledge of the nature of the goods was not communicated to him. If the shipper wishes to charge the carrier with the peculiar or kind of diligence which the extraordinary nature of the property requires, he is bound in reason and justice to apprise the carrier of the nature of the goods. Upon the same principle it has been suggested that it would be a fair conclusion in a case of this kind, that in order to charge the telegraph company with any extraordinary damages which might accrue for its failure promptly to transmit a cipher message, the sender ought in reason and justice, at least, to apprise the carrier of the translation of the message. In respect of the exact damages to which the plaintiff is entitled on this petition, we incline to think that the proper view is, that where the delay has not been so great as to amount to a substantial failure of the telegraph company to perform the duty which it has undertaken and for which it has been paid, the plaintiff can recover nominal damages only. But where the delay has been so great as to amount substantially to a failure to perform the duty undertaken, we are of opinion that the proper measure of damages in such a case as the one before us is the sum paid for the transmission of the message, with interest. This was the rule of damages laid down by the Supreme Court of Wisconsin in Candee v. Western Union Tel. Co., 34 Wis. 471; s. c., 17 Am. Rep. 452, where there was a total failure to deliver the message.

A CONTRACT to do work to the satisfaction of the employer was inquired into by the New York Court of Appeals in Doll v. Noble, 22 N. E. Rep. 406. It was held that evidence that the employer unreasonably and in bad faith declared himself not satisfied is equivalent to satisfaction, or rather dispenses with the necessity of proving satisfaction. It is noticable in this case that there was conflicting evidence as to whether the work was done according to the contract, but a verdict for plaintiff was upheld notwithstanding the defendant declared himself not satisfied; and that the appellate court put the

solution of the question on the same test that is applied where the stipulation is for the approval of a third person, viz, that fraud or bad faith dispenses with the condition. And the court goes somewhat beyond some of the preceding cases in that they hold that unreasonable refusal is as good a ground as a fraudulent refusal. See also on this subject Chism v. Shipper, 28 Cent. L. J. 160; Sweet v. Morrison, 22 N. E. Rep. 276.

AN important decision on the frequently questioned power of the court to require or allow a jury to amend their verdict is Gaither v. Wilmer, 18 Atl. Rep. 590, decided by the Court of Appeals of Maryland. The action was on a promissory note and an account stated; the defense being a general denial and set-off. The jury were directed to return a sealed verdict, which being brought into court was found to be a finding for the plaintiff, not specifying any amount. The judge told the counsel there was a defect in the verdict, and asked if they would agree that it be corrected. The counsel for the defendant declined to consent. The corrected verdict was thereupon entered, and read to, and assented to by the jury, and the jury were dismissed and dispersed. The court after citing instances in England and even in this country where, in exceptional cases, and by authority of statutes, amendment of verdicts have been made, concludes that in States where the common law is the only guide on the subject, the decided weight of authority is against allowing such a thing to be done; and that no American case can be found in which an amendment like this, in matter of substance, has been made upon affidavits, or from the judge's recollection of what occurred at the trial, after the imperfect verdict has been duly recorded, and the jury have separated. A citation or review of these authorities is unnecessary, because it seems to us that the question has been settled in Maryland by the decisions of its court Macnemara v. Brannock, 4 Har. & McH. 480; Edelen v. Thompson, 2 Har. & G. 31; Ford v. State, 12 Md. 546; Williams v. State, 60 Md. 402. The court says in conclusion that it is firmly convinced that the adoption of any other rule on this subject than that so plainly laid down by our predecessors, and so long adhered to in practice by the

courts of the State, would be dangerous in the extreme, would open the door to abuses, and lead to doubtful, and possibly pernicious, results; and we cannot escape the legal conclusion that, by making the amendment complained of in this case, the judge has invaded the exclusive province of the jury, and substituted his verdict for theirs.

CONDITIONAL sales of personal property, their validity and effect, have been a prolific and constant subject of consideration by the Supreme Court of Connecticut. The latest decision, from that court upon the subject is Mack v. Story, 18 Atl. Rep. 707. There liquors were sold and delivered to a retail liquor dealer under an agreement that the title should remain in the seller until they were fully paid for. It was further understood that the purchaser might retail them to customers and that the seller could only enforce the condition of the sale against the portion remaining unsold. The goods were received and a portion was sold to customers. The question was whether the condition was valid and operative as against creditors of the purchaser. The court held that it was, basing their judgment entirely upon the authority of Lewis v. McCabe, 49 Conn. 141, the facts of which, its subject-matter and all its essential provisions being so nearly identical with the present case "as to suggest that the former decision must have been in the minds of the parties when the latter contract was made." The court concludes:

Our reasoning of course implies that we are well satisfied with that decision; but, however this may be, conditional sales have been too long and too firmly established in this jurisdiction by repeated decisions of this court to be now called in question, or to require further discussion. Since the decision in Lewis v. McCabe, such sales have been distinctly approved by this court in Loomis v. Bragg, 50 Conn. 228; Cooley v. Gillan, 54 Conn. 80, 6 Atl. Rep. 180; Manufacturing Co. v. Bleaching Co., 56 Conn. 70, 13 Atl. Rep. 135; and in the New Haven Wire Company Cases, 16 Atl. Rep. 393. Such sales are also recognized and approved by the necessary implication contained in the provisions of section 920 of our General Statutes, which provides that "any property sold upon condition and put by the vendor into the visible possession of the vendee, unless otherwise exempt from execution may be attached and levied upon, and sold or set out on execution, in any suit against such vendee, subject to the rights of the vendor, to its possession or ownership; and the party attaching or levying shall have the same rights which the vendee would otherwise have had to tender to the vendor performance of the conditions of sale." It will be observed that the statute saves the rights of the conditional vendor in every