An interesting question is sometimes presented, where the carrier brings suit on the violation of an agreement to furnish him a stipulated quantity of freight. And here the principle applies which we have already had occasion to notice,* that the party plaintiff is bound to take reasonable measures to reduce the amount of injury consequent on the defendant's default; and it is held that the carrier must stand ready to receive any other freight that is offered, and thus, as far as is reasonably practicable, avoid throwing an unnecessary loss on the party in default. Thus in New York, it has been decided, where a party contracts to load a ship with a given number of tons at a stipulated price and fails to deliver the whole quantity, that if goods are offered by a third person to be shipped, to an amount sufficient to make up the deficiency, though at a reduced rate of compensation, but still at current prices, the owner or master is bound to receive such goods, and place to the credit of the original charterer the net earnings of the substituted cargo, after making all reasonable deductions resulting from the circumstances of the case; and such is the English rule.t

In a case that came up to the Supreme Court of the United States, from the Pennsylvania circuit, the plaintiff's intestate agreed to deliver for the defendant at St. Louis by a certain time a quantity of army stores, supposed to amount to 3,700 barrels, which the defendant on his part agreed to furnish on the Ohio River; the defendant to pay a certain sum per barrel, one half to be paid at St. Louis and the other half at Cincinnati, with a memorandum "that the payment to be made at Cincinnati was to be made in the paper of the Miami Exporting Company, or its equivalent." The defendant did not furnish the whole 3,700 barrels; and the plaintiff brought suit, as well for the freight of the portion delivered, as damages

Fisher, 4 Moore & P., 790. S. C., 7 Bing., 153. Willoughby vs. Backhouse, 2 Barn. & Cres., 821.

* Supra, 98, and see post, Ch. XVII., Recoupment.

Hecksher vs. McCrea, 24 Wend., 304. Shannon vs. Comstock, 21 Wend., 457. Pullen vs. Staniforth, 11 East, 232. See these cases cited and confirmed in Costigan vs. Mohawk & Hudson R. R. Co., 2 Denio, 610. See, also, the reasoning of these cases adopted in Arkansas, in an able opinion of Scott, J., as to a contract for personal services, Walworth vs. Pool, 4 English, 394. Abbott on Shipping, Part IV., Ch. I. Of the carriage of goods in merchant ships, and cases there cited.

Robinson vs. Noble's Adm'rs, 8 Peters, 181.

for the non-delivery of the remainder. The notes of the Miami Company were not worth more than 66 per cent. The judge who tried the cause, held:

"That the plaintiff could not recover damages, according to the number of tons the boat was capable of containing. The rule of law in cases where there has been a failure to furnish the stipulated freight and there exists no charter party, is for the jury to take all the circumstances into consideration, and to make an allowance for any freight which the master has it in his power to transport in addition to that which was furnished. If the lading should not be complete without the default of the master, the rule is to estimate the freight by means of an average, so as to take neither the greatest possible freight nor the least; and such average is the proper measure of damages."

And that as to the paper of the Miami Exporting Company, the defendant having failed to tender to the plaintiff's intestate that paper or its equivalent, the plaintiff was entitled to recover the amount in specie with interest. The Supreme Court reversed this judgment, on the grounds that the defendant had not stipulated to furnish any precise amount of freight, and that the specie value of the notes at the time they should have been paid was the rule by which the damages should have been estimated.*

*This case, though it raises some important questions, properly decides nothing as to the amount of damages; but it may be noticed, as to the latter point, that it is adverse to the decisions of the courts of New York in regard to notes payable in a specific article, it being there held, that if the specific article is not tendered the party loses his privilege and must pay in money. Supra, 242, 281-2.

CHAPTER XIV.

OF CERTAIN SPECIAL CONTRACTS, AND OF THE ACTION OF COVENANT.

Cases of Contracts not considered in the previous chapters-Damages on Agreements for forbearance-Contractors on Public Works-Misappropriation of PledgesCases examined-Forfeiture of Stock by Corporation-Refusal by Corporation to permit transfer of Stock-Damages in suits by Assignees of Bankrupts-Breach of Promise of Marriage-Action of Covenant-Charter Parties-Assignments of Judgments-Leases.

WE have thus examined the measure of relief in the prominent cases of contract, where the damages are in no way liquidated by the parties. Before we approach the consideration of those cases where the compensation is controlled either by a penalty or a more precise stipulation, we have yet to discuss the question of interest, together with some contracts not embraced in the foregoing divisions, as well as the measure of damages in the action of covenant.

Reserving for the next chapter the examination of the subject of interest, we shall here discuss some particular contracts not included in our previous classification, and shall then treat of those cases which are exclusively presented in the action of covenant.

And first, of contracts for forbearance. These contracts are often entered into by creditors for certain considerations on which they forbear to pursue their debtor during a given time. In a case of this kind where the plaintiff had recovered judgment against his debtor, the defendant, in consideration that the plaintiff would forbear to sue out execution for a certain time, agreed to erect a house and lease it to the plaintiff; such erection and lease to be in full satisfaction of the judgment. The agreement not being performed, it was held that the value of the house was the measure of damages, and not the differ

ence between the amount of the judgment and value of the house.*

There is another class of cases of not infrequent occurrence, to which incidental reference has already been had,† that of contractors, as they are called, or parties who undertake to construct public works on a large scale, such as railroads, canals, or government buildings. It appears to be settled in regard to this class of agreements, that the contractor is entitled to recover the profits which he has lost by the default of the other party to the undertaking; that in estimating these profits, his sub-contracts are not to be taken as evidence thereof; but that they are to be arrived at by taking the market value at the time of the breach, and if there be no market value, then by a minute inquiry into the cost of materials, the expense of transportation, the amount and value of labor required; and the opinions of witnesses will not be received.‡

Even with these data the estimate of profits must be somewhat conjectural; and in such case it has been said to be the duty of the jury not to assess damages rigorously, but to moderate them so as to make allowance for any partial uncertainty that may exist.§

Where a millwright agreed to put machinery into the plaintiff's mill in a good and workmanlike manner, and he did it so unskillfully that the same was of little or no value, and the plaintiff lost the profit and benefit of his mill for a long space of time, and was obliged to alter the machinery, the plaintiff was

* Strutt vs. Farlan, 16 M. & Wels., 249. See Ellison vs. Dove, 8 Blackf., 571, and supra, 200.

+ Supra, 227.

Masterton vs. Mayor of Brooklyn, 7 Hill, 62. Lawrence vs. Wardwell, 6 Barb. S. C. R., 423. N. Y. & H. R. R. Co. vs. Story, 6 Barb. S. C. R., 419. Clark es. The Mayor, 3 Barb. S. C. R., 288. This case was reversed by the Court of Appeals, on the ground that when the contractor elects to consider the contract as rescinded, and brings his action for work and labor generally, he cannot recover for profits on the unexecuted part of the work; and that in such a case the rule of damages is the actual value of what has been done. But the general right to recover the profits which he would have made, where he brings his action for a breach of the agreement, was affirmed. Clark vs. The Mayor, 4 Comstock, 338. Seaton vs. Second Municipality, 3 La. Ann. R., 45. In Louisiana, a contract made by a partnership as undertakers for the construction of a railroad will be canceled by the death of any of the parties, and the other contracting party is only bound to pay the value of the work already done, and that of the materials already prepared, proportionably to the price agreed on. McCord vs. the West Feliciana Railroad Company, 8 La. Ann. R., 285.

Seaton vs. Second Municipality, 8 La. Ann. R., 45.

held entitled to recover such additional sum, beyond the expense of the repairs, as the mill would have been worth to him if the defendant had fulfilled his contract, more than it was worth while the machinery was insufficient; and the opinions of witnesses may be received. I suppose that in this case the court meant to give the profits of working the mill.*

We come next to pledges.

Where an article is pledged for a specific object, and the pledgee misappropriates it in violation of the agreement, the remedy furnished by our law is either in an action of assumpsit or covenant, according as the engagement is sealed or unsealed, or in an action of trover. In either case, however, the question turns on the true construction of the contract.

In an early case in New York, the plaintiff's intestate deposited with the defendant a certain depreciation note on the 29th of April, 1786, of the nominal value of $2,629, to be delivered to the intestate on the payment of $600 and interest. In 1788, the defendant sold the note for the best price he could get, leaving a small balance still due him. In 1791 or 1792, the intestate died, and the plaintiff as his administrator, in 1799, went to the defendant's house to redeem, but was prevented by his illness from seeing him. The Supreme Court held that the defendant's sale was unauthorized, and that the rule of damages was the value of the certificate at the time of the application to redeem. It would seem, from the language of the opinion, that the note had risen in value between the time of the sale and that of the application. It was insisted in this case, that the measure of damages was a mere question for the jury; but Kent, J., said, "In cases where there is a criterion for an accurate computation, that criterion must be followed, and it becomes then a rule of law. I have no doubt the rule in the present case is a rule of law, and the only examination is to discover it."+

It is matter of inquiry, in a case like this, whether the measure of damages should be the value at the time of conversion, which in Cortelyou vs. Lansing, would have been the price

* Clifford vs. Richardson, 18 Verm., 620.

+ Cortelyou vs. Lansing, 2 C. C. in Error, 200 and 215. In Barrow vs. Paxton, 5 J. R., 258, 260, it is said by Kent, J., that he never delivered this opinion; but it has been frequently recognized as law; Garlick vs. James, 12 J. R., 146.