3. The buyer was not bound to receive 32 florins for his turf at a time when he could sell them for 40. But the cause was decided on the basis of the offer of 32 florins; and Huberus seems to deplore the arbitrary control exercised by the courts over the subject of compensation. "Quanquam juris igitur rationes, pro triumphante (the plaintiff) militare viderentur, tamen ut est hujus rei praxis valde lubrica et tantum non arbitraria, factum est ut venditor vix ultra quam obtulerat sit condemnatus."*

It might be curious, if our space permitted, to compare the decision here made with what it would be in a similar case, say a conveyance with a covenant of right of way, according to our jurisprudence.

Among the more recent writers on the modern civil law, we find the same absence of any definite rule of which I have already complained.

Domat says, the seller who fails to deliver, must pay the damages caused by his default, according to the circumstances of the case. Thus, he who contracts to deliver any article of merchandise, the price of which rises at the time and place fixed for delivery, must pay the actual value at such time and place, as well on account of the profit that the purchaser would have made by re-selling them there, as on account of the loss that he sustains, by being obliged to purchase other articles at a price exceeding that of his bargain.

So, he says that the purchaser would be entitled to his expences actually incurred on coming to receive the article which was to have been delivered; but that remote and unforeseen consequences are not to be taken into consideration. Thus, for instance, if the seller, failing to deliver the commodity at the time and place fixed on, the purchaser has been unable to

* Huberus Præl. Juris., Vol. III., 88 et 89, § 30 to 35.

+ Contrat de Vente, Loix Civiles, Liv. 1, tit. 2, sec. 2, § 27. "Le vendeur qui est en demeure de delivrer, doit les dommages et intérêts qu' aura causés le retardement selon l'etat des choses et les circonstances. * * Ainsi celui qui devoit delivrer a un certain jour, dans un certain lieu, du bled, du vin, et d'autres denrées donc le prix se trouve augmenté au jour et au lieu où la delivrance devait étre faite, doit à l ácheteur la valeur presente du jour et du lieu, pour le profit qu'il aurait fait en les y revendant, ou pour le perte qu'il souffre si pour son usage il est obligé d'en acheter d'autres a ce prix qui excède celui de la vente." Troplong, in his masterly treatise De la Vente, complains of the looseness of Domat on the subject of the measure of damages; but the difficulty appears to me rather to be in the system than in the author.

transport them to another place, where he could sell them at an advance; or, if, by reason of the non-delivery of the article, he has been obliged to send off his workmen, and to stop some work of which the cessation causes him considerable injury,— the seller will not be considered liable, neither for the profit lost, nor the injury sustained, for these consequences are not to be imputed to the default of delivery, but result from the arrangements of a higher power, and accidental circumstances which no one can control.*

* Cont. de Vente, Liv. I., tit. 2, sec. 2, § 18: "Dans le même cas la depense qu'aurait faite l'acheteur, pour venir recevoir et pour transporter les grains achetés, et les autres suites immediates qu'on doit naturellement attendre du retardement. Mais on ne doit pas étendre les dommages et intérêts aux suites plus eloignées et imprevues, qui sont plutot un effet extraordinaire de quelque évènement et de quelque conjoncture que fait naitre l'ordre divin, que du retardement de la délivrance. Ainsi, par exemple, si le vendeur ne délivrant pas au jour et au lieu des grains qu'il a vendus, l'acheteur a manqué, par le defaut de la delivrance, de faire un transport et un commerce de ces grains dans un autre lieu où il aurait pu les vendre encore plus cher que dans le lieu où la delivrance devoit etre faite, on si, faute d'avoir ces grains, il a été obligé de renvoyer des ouvriers, et de faire cesser un ouvrage dont l'interruption lui cause un dommage considérable, le vendeur ne sera tenu, ni de ce gain manqué ni de ce dommage incouru, qui ne sont pas tant des suites qu'on puisse imputer au retardement de la delivrance, que des effets de l'ordre divin, et des cas fortuits dont personne ne doit répondre."

CHAPTER XI.

THE MEASURE OF DAMAGES IN ACTIONS GROWING OUT OF THE CONTRACT OF PRINCIPAL AND SURETY.

Various contracts of suretyship-Rights resulting from implied promise-Express promise to do a particular act-Express promise to indemnify and save harmless -As a general rule, the surety cannot make any claim against his principal until he has actually paid the debt-Exception where the party contracts to do a particular thing-The measure of damages as affected by the mode of paymentwhen made in land or property other than money-when in securities-What expences or costs the surety can recover against the principal-Measure of damages as between surety and co-surety-as between lessee and sub-lessee.

THE contract of suretyship is one of very frequent occurrence, arising sometimes by implication of law, as between the parties to negotiable paper, or debtors and their bail; at others created by express agreements of guarantee. These again sometimes take the form of indemnities and contracts to save harmless, and at others assume the more binding shape of express contracts to do the particular thing in question; in which last case, indeed, the peculiar relation of principal and surety often ceases to exist."

*

The questions that present themselves, as between the principal debtor and the party who has assumed for him the obligations of a surety, relate to the circumstances which entitle the latter to call for re-payment of any sum he may have been obliged to pay for him; the mode of that payment; and the collateral expenses, legal or otherwise, of which he can demand reimbursement.

"In ancient times," said Buller, J., in Toussaint vs. Martinant, 2 T. R., 100, "no action could be maintained at law, where a surety had paid the debt of his principal. Now, why does the law raise such a promise? because there is no security given by the party. But if the party choose to take a security, there is no occasion for the law to raise a promise."

These questions are sometimes presented in actions by sureties against their principals, sometimes in suits against the sureties themselves; and though the law generally tends to favor the surety, still, so far as the construction of the contract is concerned, no difference is made as to the manner in which the case is presented.

There is another class of cases of a mixed character, where actions are brought against sureties for sheriffs, constables, or other public officers. As these cases involve as well the duty of the principal as the contract of the surety, we shall defer their consideration till we come to examine actions against public officers. We shall for the present confine ourselves to the liabilities of principal and surety as arising out of private contract.

Let us first bear in mind the clear distinction that exists between two classes of cases, falling under the general head. "It is the distinction between an affirmative covenant for a specific thing; and one of indemnity against damage by reason of the non-performance of the thing specified. The object of both may be to save the covenantee from damages, but their legal consequences are essentially different."+

It is a general rule that a surety for the payment of money cannot call on his principal until he has paid the debt. So it was early held by Lord Mansfield, in regard to a surety in a bond; "till damnified," said his lordship, "which he could not be till he had been called upon and had paid, he could not bring an action." And so it has been held in New York, where the surety had been sued and charged in execution, that not having paid the debt, and having no promise to indemnify him, he could not recover against his principal.§ For this a technical reason also exists; the only action that can be maintained in such case is assumpsit for money paid, which, of course, will not lie until money or its equivalent is paid.

Where, however, the surety holds an express promise to indemnify and save him harmless, there he can maintain an action without having paid the debt; and we shall presently examine

*Post, Ch. XXI.

† Gilbert vs. Wiman, 1 Comstock, 550.

Taylor vs. Mills, Cowp., 525. Paul vs. Jones, 1 T. R., 599. Powell vs. Smith, 8 J. R., 249. Rodman vs. Hedden, 10 Wend., 498.

§ Powell vs. Smith, 8 J. R., 249.

the extent of compensation allowed for the injury he alleges himself to have sustained.* But where the plaintiff holds not merely an agreement to indemnify and save him harmless against the consequences of the default of the other, but an express promise to pay a debt, or to do some particular act, then the position of the parties entirely changes, the relation of principal and surety disappears, and it has been held, that the failure to perform the act agreed on gives the plaintiff a right of action, even before he has suffered any direct damage himself; and so it has also been decided as a rule of pleading.

Where the defendant agrees to discharge the plaintiff from any bond or other particular thing, there the defendant, having agreed to do a particular act, cannot plead non damnificatus ; but where the condition is to discharge the plaintiff from damage by reason of any particular thing, or to indemnify and save harmless, there the damage must be shown, and consequently non damnificatus is a good plea.†

So in New-York, where the plaintiff as lessee of a term of years had assigned it to the defendant, who executed a covenant to pay the rent to the head landlord, it was insisted on the part of the defendant, that the plaintiff could only recover nominal damages, unless he showed that he had paid the rent; but the court said, "the covenant is express and positive that the defendant will pay the rent, and it would be against all reason and justice to say that the plaintiff shall himself pay and advance the money before his right of action against the defendant to recover it arises;" and the rent was held to be the measure of damages.‡

So again in the same State, if one, by bond, guarantees that a third party shall pay a certain sum of money by a given day, on demand, the plaintiff must assign the non-payment of the

*Rodman vs. Hedden, 10 Wend., 498. The bail of the deputy Sheriff are not liable unless the Sheriff has been damnified or made legally liable in consequence of the dereliction of the deputy. Hughes vs. Smith, 5 John., 168. Rowe vs. Richardson, 5 Barb. S. C. R., 385.

+ Cutler vs. Southern, 1 Saund., 116, n. 1. Holmes vs. Rhodes, 1 Bos. & Pul., 639. Hodgson vs. Bell, 7 T. R., 97. Port vs. Jackson, 17 J. R., 239. S. C. affirmed in Error, ib., 479. Thomas vs. Allen, 1 Hill, 145. These two last cases overrule that of Douglass vs. Clarke, 14 J. R., 177.

Port vs. Jackson, 17 J. R., 239. S. C. in Error, ib., 479. See Toussaint vs. Martinant, 2 T. R., 100. Martin vs. Court, 2 T. R., 640. Hodgson vs. Bell, 7 T. R., 97. Atkinson vs. Coatsworth, 8 Mod., 33.