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tiffs were ordered to mend their practice by making the complaint definite and certain as to the errors alleged. The plaintiffs' attorney having succeeded, after about four years, in getting his case properly before the court, it was tried in November last, before Mr. Justice Westbrook, as an equity cause, and judgment very promptly rendered for the defendant on the merits. An extra allowance of $5,500 was ordered, and this order the General Term has affirmed. The plaintiffs' attorney—the Attorney-General farmed the case out we believe will probably expect $5,000 more, so that the " "People will really get out of it for about $10,000. Cheap, as the times go.

NOTES OF CASES.

IN N Dawes v. Harness, 32 L. T. (N. S.) 159, the English Common Pleas applied the doctrine that a contract induced by fraud is voidable and not void, and a party seeking to avoid such a contract must first renounce all advantage from it. In this case the plaintiff declared as payee of a check against defendant as drawer; and the defendant pleaded that he was induced to draw the check by the fraud | of plaintiff. It appeared in evidence that the check was drawn in consideration of a business and leasehold shop, sold by plaintiff to defendant, and the jury specially found that the plaintiff had fraudulently misrepresented the value of the business, but that defendant had continued to manage the business and to occupy the shop after having become aware of the misrepresentations. It was held that the plaintiff was entitled to recover. Brett, J., said: "If it could be maintained that the mere fact that a contract was obtained by fraud is sufficient to avoid it, the defendant would be entitled to succeed. But such is not the true legal doctrine. In law, fraud renders a contract voidable only, and not void.

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In Cleveland, Columbus & Cincinnati R. R. Co. v. Crawford, 24 Ohio St. 631, the Supreme Court of Ohio considered the question whether an omission to look and listen for an approaching train before attempting to cross a railroad track is, as matter of law, such negligence on the part of the person attempting to cross as will preclude his recovery for an injury done by a passing train while crossing the track. Upon this point McIlvaine, J., who delivered the opinion, laid down the following rules: "The failure to look or listen for an approaching train, though such failure may contribute to the injury, cannot, under all circumstances, be regarded as

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exercise of ordinary care to avoid an injury is all the law requires; and no one can be held to be negligent who exercises such care. True, when the danger is imminent and human life is at stake, great precaution should be exercised; but this is only ordinary care under the circumstances; because persons of ordinary prudence, under such circumstances, exercise great caution and care. When, therefore, a person about to cross a railroad track, under a given state of circumstances, exercises that degree and amount of care which prudent persons usually exercise under like circumstances, he is without fault. In other words, when the circumstances are such that prudent persons would not ordinarily look or listen for an approaching train, there is no negligence in omitting to look or listen." But in Pennsylvania it is held to be negligence per se for a traveler to fail to stop immediately before crossing a railroad track. Pennsylvania R. R. Co. v. v. Beale, 73 Penn. St. 504; S. C., 13 Am. Rep. 753; North Pennsylvania R. R. Co. v. Heileman, 13 Wright, 60.

In Dugdale v. Lovering, 32 L. T. (N. S.) 155, the English Common Pleas maintained the principle that where goods are claimed from A by both B and C, and A delivers them to B at his request, A may recover from B for loss sustained by C having made good his claim. The plaintiffs, who were colliery owners, had in their possession certain coal trucks, sent to them by P., a customer in the course of business. P. filed a petition for liquidation. The K. company claimed the trucks both before and after the date of the petition, as bought by them of P. Defendant claimed them as trustees of P. in liquidation. Plaintiffs had notice of both claims, but sent the trucks to defendant in compliance with his written order, defendant also having notice of the claim of the K. company. The K. company afterward made good its claim and plaintiff settled with them. Held, that plaintiffs were entitled to indemnity from defendant. Four cases were relied upon in support of this position: Adamson v. Jarvis, 4 Bing. 66; Humphreys v. Pratt, 2 Dow. & Clark, 288; Betts v. Gibbins, 2 A. & E. 57; 4 N. & M. 64; Toplis v. Grane, 7 Scott, 620. In the latter case Tindal, C. J., said, that where an act has been done by the plaintiff, under the express directions of the defendant, which occasions an injury to the rights of third persons, if such an act is not apparently illegal in itself, but is done honestly and bona fide in compliance with the defendant's directions, he shall be bound to indemnify the plaintiff against the consequences thereof. See to the same effect the following American cases: Jacobs v. Pollard, 10 Cush. 287; Moore v. Appleton, 26 Ala. 633; Acheson v. Miller, 2 Ohio (N. S.), 203.

MEASURE OF DAMAGES FOR BREACH OF CONTRACT TO CONVEY REAL ESTATE.

WE

E were much interested in the able discussion of this matter in a late number of this Journal of December 26, 1874, and have had occasion to recur to the subject again to ascertain whether there is any uniform rule applicable in such cases, and what it is? Having failed to satisfy ourselves that such is the case, the inquiry presents itself whether there ought not to be one, and what it should be?

To understand the question in its proper bearings, we must go back to the case of Kirkpatrick v. Downing, reported in the Central Law Journal of December 11, 1874, upon which the article in this Journal above-mentioned was based. The doctrine of that case, as stated in the head-note, is this: "Where the vendee sues to recover damages sustained through the failure of his vendor to convey land according to contract, the measure of his damage is the actual loss he has sustained, and this is the difference between the price agreed to be paid and the value of the land at the time of the breach of contract to convey." This rule is in accordance with the one which is, we believe, uniformly applied to cases of contracts to sell personal property where the vendor fails to perform, as in cases of contracts to sell and deliver stock. The damages recoverable are the difference between the contract price and the market price of the subject-matter of the contract at the time of the breach. This rule, as thus stated, has no reference to the motives or reasons for which the contracting party fails to perform. By his contract the other party had acquired a right to have, at the day agreed upon, that which, in the market, would bring him a certain sum of money; and the difference between what he will have to pay and what he will thereupon be entitled to receive, measures his loss. It matters not, so far as what sum shall indemnify him for this loss, whether the other party withholds performance from a bad motive or an innocent cause. Opposed to this rule, which commends itself to the good sense of every one, is what appears, at first sight, to be the inconsistent one applied by the English courts to cases of contracts of sale of real property, which dates back to Flureau v. Thornhill, in the time of Sir William Blackstone, 2 W. Bl. 1078, which has held its place as an authority although not very satisfactory to succeeding judges either in the reasoning upon which it rests, or the results to which it tends. The headnote of the case is, that "contractor, for a purchase of real estate to which the title proves (without collusion) defective, is entitled to no satisfaction for the loss of his bargain." In this case the vendor, when he came to perform his contract, discovered that he could not do it, and the other contracting party sued for damages in the loss of a valuable

bargain and recovered a verdict. The chief justice denied.the right of a purchaser, under such circumstances, to recover damages "for the fancied goodness of the bargain which he supposes he has lost." Blackstone, J., held that "these contracts are merely upon condition, frequently expressed, but always implied, that the vendor has a good title."

While the English courts yield to the authority of this case, some of them seize upon the slightest circumstance which can distinguish other cases from it, and then rule according to those circumstances. One of the main grounds upon which this has been done, is imputing some fault to the party failing to perform, such as fraud, carelessness or neglect. In Paunsett v. Fuller, 17 C. B. 677, Jervis, C. J., says, "where a person professing to sell that which he knows he cannot sell, he may be liable for substantial damages for the loss of the bargain." In Hopkins v. Grosebrook, 6 B. & C. 31, Crowder, J., says, "the defendant was blamable, he acted with undue precipitation in putting up to auction, and thereby representing himself to be the owner of the property which he had no right to sell. In this respect he was guilty of something like misconduct. That is the ground upon which the decision of the case proceeded." In that action the purchaser recovered full damages. In Engel v. Fitch, L. R., 3 Q. B. 314, Cockburn, C. J., speaks of Flureau v. Thornhill, as "any thing but satisfactory," and as being "further open to exception in this, that it introduces a qualification into the rule that it shall only be applied in the absence of fraud," and in that case full damages were allowed.

In this review it is to be observed that the action is upon a contract, and the right to recover does not depend upon how much the plaintiff has lost by the failure of the defendant to perform, but upon whether the defendant has been guilty of "something like misconduct." If he has, the plaintiff may claim full damages, otherwise none at all. And the inequality of this rule seems to be, that it makes no distinction, in the way of visiting the consequences of his neglect upon one failing to perform, between actual misconduct, however gross, and "something like misconduct." Each has to pay full damages to the injured party. If the action were one upon the case, for the fraud or misconduct, there are authorities which go a great way in giving the injured party even exemplary or vindictive damages. But we have the authority of a very respectable writer (Broom's Com. Law, 622), for saying, “that in an action for a breach of contract, the intention or motive of the party charged cannot be inquired into, and, indeed, will be irrelevant to the issue raised.” "If the terms of the contract be ascertained, and its breach be proved, the only other inquiry will be as to the amount of damages to be awarded, and in estimating those damages the malice or intention of the defendant is immaterial.”

"Our law makes a broad distinction in regard to the proper measure of compensation to be awarded to the plaintiff, between actions of contract and actions of tort." "In actions of contract, the motive or animus of the defendant is, in general, entirely disregarded, and the damages should be limited to the pecuniary loss resulting, not too remotely, from the breach of contract." Another thing seems to have escaped the attention of those courts in allowing damages in these cases of failure to execute the contract to convey land, and that is, what would have been the measure of damages, if the contracting parties had actually gone through the form of executing and delivering deeds of what they had contracted to sell, and had, thereby, entered into the usual covenants for title. If we understand the English law in cases of breaches of these covenants, by a loss of the land purporting to be conveyed, the ordinary measure of damages is the consideration paid and interest. Such would certainly be the case in many, if not most, of the States in our own country. This rule would limit the contracting party to a recovery back of just what he had paid, and would have no regard to any enhanced sum he might have realized if he had been able to sell the estate in market. If, on the other hand, the contracting party do not deliver his deed, as agreed, while the loss to the purchaser would be the same from either case, if the rule referred to were applied he would recover nothing, if it arose from the contracting party being unable, without fault on his part, to give a deed conveying a title, but would be entitled to his full damages if the contracting party was, in any fault, in failing to perform, giving one who deals with a careless or unreasonable man, a better chance than if he was simply ignorant of what his rights were when he entered into the agreement.

The ground of distinction in respect to damages between contracts to convey lands and personal chattels, to which we have alluded, growing out of the rule of damages in actions for breaches of covenants for title, has been fully recognized by several of the State courts in our country, though the measure is still made to depend more or less upon the motive with which it is done. Thus, in Hammond v. Hannin, 21 Mich. 874, the defendant bargained with another, who he supposed had a right to sell, for a parcel of land, and then made a contract to convey the same to the plaintiff, but failed to convey, because it turned out that the one from whom he was to derive his title had, in fact, no right to convey. In an action by the plaintiff against the defendant for a breach of this contract he was allowed only nominal damages. In many respects it will be found that this case was like that of Hopkins v. Grosebrook, already referred to, in which the court allowed full damages. Cooley, J., refers to the last-named case, among the other leading

ones upon the subject, and adds: "One very strong reason for limiting the recovery to the consideration money and interest in cases free from bad faith, is that the measure of damages is thus made to conform to the rule, where the party assumes to convey land which he does not own, and an action is brought against him on the covenants of title contained in his deed. This reason is made specially prominent, and it cannot be denied that it is an anomaly if the vendee is restricted to the recovery of one sum when an ineffectual deed is given, but allowed to recover a larger compensation in case the vendor, when he discovers the defect in his title, has the manliness to inform the vendee of the fact, and to decline to execute worthless papers. So long as the rule stands which thus limits the damages in suits upon the covenants of title, so long ought we also, I think, to adhere to the decisions which restrict the recovery, as above stated, in actions upon contracts to convey." A like doctrine is, in effect, sustained in Conger v. Weaver, 20 N. Y. 144, 146, and in Lester v. Botson, 6 Kansas, 425. The courts in these cases in their decisions assume, it is true, that the defendants acted in good faith in what they did. And in another case, Allen v. Atkinson, 21 Mich. 363, Cooley, J., says: "If the vendor willfully refuses to perform his contract, he must place his vendee, as near as money can do so, in the same position in which he would have been if he had obtained that for which he contracted."

In examining this question it should not be forgotten that, in some States, in actions upon covenants of warranty, the plaintiff recovers, not the price he paid for the land, but the value of the land at the time of eviction, however much it may have become enhanced since the conveyance. And applying the same rule to contracts to convey, the purchaser would always recover what he had lost by a failure to perform on the part of the vendor. And the question might arise whether, if a contract of this kind made in Michigan and sued in Massachusetts, the courts of the latter State would measure the damages to be recovered by the good or bad faith of the party who fails to perform?

Coming back, then, to the inquiry with which we started, is there a rule of damages for breach of contract to convey real estate? Is it, like that laid down in Kirkpatrick v. Downing, cited above, the same as in contracts to deliver chattels? If it is not, because, when performed and the title to the land conveyed fails, only nominal damages could be recovered upon the covenants of title, is there one rule of damages in New York and another in Massachusetts which have different laws upon this subject of damages, recoverable in actions upon covenants for title? Or does it depend upon the fact merely, and not the degree of bad faith on the part of the one who fails to perform, so that if A contracts with B for a thousand bushels of grain, to

be delivered at a certain place on a certain day, and he fails, A can recover the amount he has thereby lost without showing what B's motives were, whereas, if he had contracted for a thousand acres of land, to be conveyed on a certain day, before which it rises twenty-five per cent in price, whether he can, if B fails to perform, recover a shilling damages unless he can show that B was guilty of positive fault?

If this element of bad faith is to be a test of the amount of damages one is to recover if another has failed to perform his promise, and is applied in some actions of assumpsit, how far is it to be carried? If A owes B a note of hand due to-day, and fails to pay, and a suit is brought to recover damages for such non-payment, does the amount of these depend upon A's motive in refusing to keep his promise?

We had written thus far when we accidentally came across the case of Bain v. Fothergill, in the House of Lords, reported in The Law Times, vol. 31, N. S., 387, November, 1874, where the whole subject, as resented in Flureau v. Thornhill, is considered by Keating, Brett and Denmore, JJ., and Martin, Pigott and Pollock, BB., and judgment was pronounced by Lords Chelmsford and Hatherly. They do not sustain the decision of Hopkins v. Grosebrook, but hold that the doctrine of Flureau v. Thornhill has been too long settled and acted upon as an authority to be now controverted. The reasoning of the judges and the opinions of the lords are too long to give an abstract of them here.

The facts in the case are much like those of Hopkins v. Grosebrook and Hammond v. Hannin. All the judges but one considered it as coming within the principle of Flureau v. Thornhill, though all of them are somewhat careful to speak of the failure to perform on the part of the defendant as having been "without his default." But none of them refer to any analogy between such contracts and covenants for title. It is only in giving their judgments that the point is touched upon by the lords, to which we have alluded somewhat at length, how far, in an action upon a contract, the damages to be allowed for its breach are to depend upon the good or bad faith with which it is done. Lord Chelmsford seems to us to place it on the true ground: “If a person enters into a contract for the sale of real estate, knowing that he has no title to it, nor any means of acquiring it, the purchaser cannot recover beyond the expenses he has incurred by an action for the breach of the contract; he can only obtain other damages by an action of deceit."

If, now, we take this rule in actions of contract as our guide, and adopt the analogy applied by the American courts which there is between losing a title by reason of a grantor's failing to make a deed, and losing it by its failing after the deed has been made, we have an intelligible standard, giving full damages in those States where the measure, in such

cases, is calculated upon the value of the estate at the time of eviction, and nominal damages only where the covenantee can recover only the money paid for the title and the interest.

THE CERTAINTY OF PUNISHMENT.

A BILL has been offered in the present legislature

of this State, providing, in substance, that any convict now or hereafter sentenced to imprisonment for life, who shall have been, in all respects, obedient to the rules and regulations of the prison for the term of fifteen years, and have conducted himself peaceably and not transgressed any law of the land, shall, at the expiration of that term, be released from imprisonment during a probationary term of ten years, if the governor, in his discretion, shall so direct; and, at the end of such period of ten years, shall be fully pardoned, if, during said probationary period, he shall not have been convicted of any crime in this or any other State, to the information or knowledge of the governor; but if during said probationary period he shall be convicted of crime, he may, in the discretion of the court, be remanded to imprisonment for life, without further abatement or commutation of sentence. This bill, we understand, originated and was passed in the senate, but was recalled after having been sent to the lower house. Of its present standing we are ignorant.

Our first impression was against the policy of the measure. Our original view was shaken by the fact that some of the newspapers have strenuously attacked the measure. This led us to suspect that it might be right, or at least, not decidedly objectionable, and to this latter view we now incline.

It will be observed that the proposed act does not give to the convict any privilege which he does not now possess. He has a right, even now, after being imprisoned fifteen years or fifteen days, to ask the governor to pardon him, and the governor may grant his prayer. The proposed probationary release is at the discretion of the governor; he may grant or refuse the petition; there is nothing mandatory in the act. One newspaper says, "it is evident that the friends of the bill do not expect that the governor will refrain from using his prerogative in such cases." But there is no evidence or probability that they expect that the governor will grant the pardon in every case. The presumption is that he will grant it in those cases in which he ought, and he would do that without this bill. If it is right that a convict should be pardoned at the end of fifteen years, there is no impropriety in a proposed law which provides that the governor may pardon him, although if this were all, it might be superfluous.

But this is not all. This is not the purpose of the law. Under the present provisions of law, if a person, sentenced to imprisonment for life, is pardoned,

and subsequently commits a crime punishable with imprisonment for a shorter term, he cannot be remanded for life. This defect is precisely what this bill proposes to remedy. It proposes to keep the rod in its hand. And it proposes to make the reimprisonment absolutely without further abatement or commutation. Now if the legislature will also enact that the imprisonment shall be beyond the power of pardon, they will have the matter in exactly the right shape. Perhaps they think that is what the proposed bill means, but it is quite doubtful-indeed, we think it does not necessarily include that idea in its present shape.

With the emendation which we suggest, the proposed bill would operate as an important increase of the efficiency of our present law. If a convict has behaved so as to commend him to the executive clemency, the governor will grant him, not an absolute, but a conditional, pardon, and put him on probation; if after that for ten years, he behaves himself lawfully, he is to be pardoned; if, on the other hand, he again lapses from virtue, he is to be remanded for life, without hope of pardon. "The door is shut." This, we think, would be right. If a man conducts himself as a law-abiding citizen for a quarter of a century, it is excellent assurance that he will continue to do so. At all events it is assurance enough to warrant the law in giving him another trial of citizenship. The habits of twenty-five years, good or bad, are pretty apt to stick to the man. The bill viewed in this light would add to the certainty of punishment, while it would not detract from the quality of mercy.

But the newspapers say that this bill will let murderers loose upon the community. So would an ordinary pardon. And this bill would not let them so loose as the existing system; they would be put on good behavior. But, says a newspaper: "Should the pending bill pass it will practically reduce the penalty of murder below that which may be and often is inflicted upon a simple thief." This is not quite correct; it is not "the pending bill" which would do that; the law in its existing shape may do and often does it; this bill proposes a safeguard, a check, and a restraint. But, says a newspaper: "A certain sort of restraint is imposed upon him," the governor, "through the influence of public opinion, which the bill under consideration is intended to remove or weaken; otherwise it is supererogatory." The error in this statement is in the idea that the bill is intended to increase the frequency of pardons; it is only designed to render them conditional instead of absolute. It is not intended to "weaken" the force of public opinion, but rather to strengthen the hands of justice.

We are informed that the statistics show that the average of the term of imprisonment in this State is very much less than fifteen years. Indeed, if we remember correctly, Mr. Eaton makes it less than

six years. Now the proposed enactment would have one effect at least; it would render it pretty certain that a sentence of imprisonment for life would last fifteen years. In this respect, therefore, the new enactment would have a tendency to render punishment more certain.

Now, unless the object of punishment is revenge, rather than the reformation of the offender and the security of society, we can see no objection to the new law upon general principles. If punishment has done its work, it should cease. If the criminal has become penitent, and there is a reasonable assurance that the safety of the public will not be endangered by his release, we do not regard his release as impolitic. At all events, we have put the responsibility of judging on this matter into the hands of the governor, who, it is presumable, will exercise it wisely as well as mercifully. We are not of those who believe that too many pardons are granted. We think it will be difficult to find an instance in the history of our State where the recipient of executive clemency has abused the confidence reposed in him. We have been informed by the chairman of the committee on the pardoning power in the late constitutional convention, that our distinguished fellow-citizen, Ex-Governor Seymour, being requested to give his views to the committee, stated that in reviewing his action as governor it was not the pardons which he had granted that gave him trouble, but those which he had refused, and that he believed the experience of the other governors of the State would accord with his. This is a sentiment that does that eminent gentleman great credit. We have no sympathy with a false sentimentality on this subject; we would have crime certainly and severely punished; but we do believe that the pardoning power has rarely been abused. And so we believe that its abuse or mistaken exercise will not be rendered any more frequent by the passage of this contemplated law.

The idea of conditional pardons for grave offenses is one that recommends itself to the common sense. It is urged that it is much wiser to keep the candidate for clemency under the surveillance of the State during a long period of probation, than to restore to him at once, unconditionally and absolutely, the rights of citizenship, before a practical trial has been made of his sincerity or constancy. A ten years' trial under the consciousness of the consequences of a misstep, would create in many men a habit of well-doing that would become second nature; whereas the sense of irresponsibility and independence, resulting from absolute remission, might result in the return of the old habits and impulses.

We trust that the legislature will give this proposition a calm and deliberate examination, and not be influenced by the enthusiasm of visionaries on the one hand, nor by the clamors of an unfeeling and unwise press on the other.

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