Fisk v. Fowler.

"It has been held, by all sound decisions, that an action upon the covenant of warranty would not lie until eviction.

"The reason of this principle is founded upon the position that there can be no approximation to a correct measure of damages." Norton v. Jackson, 5 Cal., 60.

"The policy of the law does not regard penalties or forfeitures with favor, and equity relieves against them. And, therefore, because by treating the sum as a mere penalty, the case is open to relief in equity according to the actual damages, the sum will generally be so considered, and the burden of proof will be on him who claims it as liquidated damages, to show that it was intended as such by the parties." 2 Greenl. Ev., § 257.

"Our Courts will be generally found to be inclined to treat a fixed sum as a penalty, and to hold that the real damages are to be inquired into." Sedgwick on Damages, 397-8, 412.

In debt on bond, if the damages actually sustained be greater than the penalty and interest, the only remedy is by an action of covenant, which may be maintained where the condition discloses an agreement to perform any specific act; in which case, if it be other than the payment of money, the jury may ordinarily award the damages actually sustained, without regard to the amount of the penalty. 2 Greenl. Ev., § 263; Sedgwick on Dam., pp. 425-6, and notes.

George F. and Wm. H. Sharp for Respondents.

I. The sum stated in the bond sued on, must be taken as liquidated damages.

Whether damages were liquidated or not, was formerly left to much uncertainty, arising from an endeavor on the part of Courts to make better contracts than the parties themselves, notwithstanding the parties are the best judges, and can appreciate the consequences best.

That action of Courts was wrong upon principle. The office of Courts is to carry out the intention of parties, provided that those intentions are not contrary to law. They have no authority to put a different construction upon the clause relating to damages, than upon any other clause.

Courts have made an endeavor, of late, to get back to the true rule; and in considering the question whether the amount stated in a bond is a penalty, or as liquidated damages, they will look at three things:

First At the language employed.

Second-The subject-matter.

Third-The intention of the parties themselves.

The last two are looked upon as the controlling guides. As to the language employed in the bond in question, the appellants say: "If they do not give a good and sufficient title and register in three months, they will pay the plaintiff's the sum of $2000."

Fisk v. Fowler.

They failed to do it, and they have no right now to say that the plaintiffs have no right to the $2000, especially when there is nothing illegal in allowing the parties to fix the damages, and those damages fixed at a sum less than the sum actually paid by plaintiffs.

The Court will notice, also, that the bond is in the alternative, from which fact the intention of the parties is apparent. The obligors agree to do one of two things. They had their election to do either-and having made their election not to perform the act required, there is no hardship in making them pay the sum stipulated to be paid, in case they did not perform. Sedgwick on Dam., 421; Darkin v. Williams, 17 Wend., 447; same case, in error, 22 Wend., 201.

Again, as to the subject-matter: a ship restricted in its employment or use. In a case like this, it would be impossible to give such evidence as would enable the Court to do complete justice the claim for damages depending not only upon things done, but also upon things to be done, which is impossible to prove-like the value of a man's customers.

The policy of all commercial nations is, that a ship shall be kept employed-not to rot at the dock, nor its employment be in any way restricted. For the want of a registry, a ship loses the privileges and benefits of ships of the United States; can not make a foreign voyage; subject to extra tonnage duties, etc. Abbott on Shipping, 72, 77, (Story's ed.)

There is no rule to ascertain the profits of a prospective voyage, hence, it would be vain to attempt to get at the actual damages; therefore, the Court did right in inclining to give the relief which parties had agreed upon, and which was evidently their intention to liquidate at the sum stated.

There can be no better guide than the estimation of the parties themselves, who are acquainted with all the facts, and who anxiously guard their respective rights.

In a case like this, the sum stated is very much like the sum fixed in a charter-party for demurrage, and it has never been questioned in that case that the sum is liquidated.

The authorities fully sustain this proposition. Cases cited above; also, Sedgwick on Damages, 401, 404, 408-11; Green's Ex'r v. Price, 13 Mees. & Wels., 695; Rawlinson v. Clarke, 14 Ib., 187; Smedbery v. More, 24 Wend., 244; Cal. Steam Nav. Co. v. Wright, 6 Cal., 258.

II. As to the minor points:

Evidence of defendants themselves shows a demand, so that if a want of a demand was cause for a nonsuit, it is waived. The evidence shows, also, that the appellants could at no time have complied.

The paper purporting to be a bill of sale, was not tendered until six months after giving the bond-which was refused, be

Chase v. Ries.

cause the persons making the same had no title. The person in whose name the vessel was registered, is the only one who can give a bill of sale-that person was one Barton Ricketson.

No officer can dispense with the production of the bill of sale, in any case, for the purpose of getting a new register. Abbott on Shipping, 95, (S. and P.'s ed.)

The appellants lay great stress on the fact, that, according to the decisions of some Courts, a vessel can be transferred by parol. A sufficient answer to all this is, that the parties had agreed upon a higher order of transfer, and that must be the form of transfer in this case.

TERRY, C. J., after stating the facts, delivered the opinion of the Court-BALDWIN, J., concurring.

There is no error in the judgment.

This is one of those cases in which it is difficult, if not impracticable, to estimate the exact amount of damage suffered by the failure of the defendant to comply with his contract, and we think the amount of the bond should be considered as liquidated damages, within the rule laid down by this Court in Steam Navigation Company v. Wright, (6 Cal., 258.) Judgment affirmed.

CHASE v. RIES et als

Where, in an action on an appeal-bond, conditioned to pay the judgment appealed from if the same should be affirmed by the Appellate Court, it appeared that the judgment appealed from was reversed, with directions to enter a different judgment: Held, that the conditions of such bond were not broken, and that no action would lie thereon.

APPEAL from the District Court of the Fourteenth Judicial District, County of Sierra.

Vanclief and Stewart for Appellants.

R. H. Taylor for Respondent.

TERRY, C. J., delivered the opinion of the Court-BALDWIN, J., and FIELD, J., concurring.

This is an action on an appeal-bond, executed by defendants, conditioned to pay the judgment appealed from, if the same should be affirmed by the Appellate Court.

It appears, from the record, that the judgment appealed from was reversed, with directions to the Court below to enter a dif

Hurlburd v. Bogardus.

ferent judgment, consequently no liability attached to defendants under the conditions of the bond.

Judgment affirmed.

HURLBURD et als. v. BOGARDUS.

K. and S. were the owners of a mule team, which they used in hauling quartz-rock to their quartz-mill-the team was driven by one L., an employee. K. and S. sold the team to H., executing a bill of sale, and delivering the team by the discharge of L., the driver, who was immediately employed by H., and saying to H. "there is the team." K. and S. then hired of H. the team at $8 per day, and put it in the same business of hauling quartz-rock as before, and with L., the same driver. Team was kept and fed at K. and S.'s stable, as before the sale: Held, that there was no such actual and continued change in the possession of the property, under H.'s purchase, as to take the case out of the operation of the Statute of Frauds.

APPEAL from the District Court of the Eleventh Judicial District, County of El Dorado.

This was an action to recover the value of four mules, harness, and wagon, of the value of $1150.

McKean and Strohn were the owners of a certain team of mules, harness, and wagon, which they used in hauling quartzrock to their quartz-mill, in Grizzly Flat, El Dorado county. This team was driven by one Laycock, a hired hand in their employ. On the 22d day of October, 1857, they being indebted by promissory note to the plaintiffs Hurlburds, executed and delivered to them, in consideration of $1000, a bill of sale of the team, harness, and wagon. The amount was credited on the note which plaintiffs held against them. On the day of sale, the team was engaged in hauling rocks to wall a well of McKean's, and were driven by Laycock. At the time of the execution of the bill of sale, the team and wagon were driven in front of plaintiffs' store, and the act of delivery was made by McKean discharging Laycock, and plaintiffs hiring him to drive the team. McKean then said, pointing to the team, "Here is the team and wagon, and I deliver them to you," (plaintiff,) and saying at the same time, "I have sold them to plaintiffs." Two or three persons were present.

McKean and Strohn then hired the team of plaintiffs at eight dollars per day, to continue the hauling of quartz-rock. Some goods belonging to McKean and Strohn were then put into the wagon, and Laycock then drove the team to McKean and Strohn's mill, and then went to hauling rock for them as before the sale, and continued to do so up to the time they were seized by the defendant on a process against McKean and Strohn. After the sale, the team was kept and fed at McKean and Strohn's

Cummings v. Chevrier.

stable. The Court below finds that the sale was bona fide; that plaintiffs paid the teamster, etc., but that there was nothing which would give notice to a stranger that a change of possession had taken place. The property was sold by defendant, as sheriff, to satisfy an execution against McKean and Strohn, and plaintiffs brought this suit to recover the value. Defendants had judgment in the Court below, and plaintiffs appealed.

John Hume for Appellants,

Cited Wood's Digest, Art. 403, § 16, Statute of Frauds.

Thos. H. Hewes for Respondents.

Cited Fitzgerald v. Graham, 4 Cal., 289; Stewart v. Scannell, 8 Cal., 82; Whitney v. Stark, Ib., 517; Vance v. Boynton, Ib., 554.

TERRY, C. J., delivered the opinion of the Court-BALDWIN, J., concurring.

In this case, there was no such actual and continued change in the possession of the property, under plaintiffs' purchase, as to take the case out of the operation of the Statute of Frauds. It remained in charge of the same person, at the same place, and was used in the same manner after as before such purchase. Judgment affirmed.

CUMMINGS v. CHEVRIER, (NO. 1.)

In order to entitle a surviving husband or wife to the whole common property, it must be affirmatively shown that there are no descendants of the deceased.

APPEAL from the Probate Court of the County of Siskiyou.

Letters of administration were granted by the Probate Court of Siskiyou county, on the estate of Victorine Massey, deceased, to the plaintiff, who was the public administrator of the county. The defendant, Eugene Chevrier, subsequently petitioned the Court to revoke the letters granted to plaintiff, and order the property of the deceased to be delivered to him as the surviving husband of the deceased, there being no debts against the estate, except the funeral expenses. Chevrier did not allege, in his petition, nor was it shown to the Court, on the hearing thereof, that there were no descendants of the deceased. The Court revoked the letters of plaintiff, and ordered that the property be delivered to the defendant as the surviving husband of the deceased. Plaintiff appealed to this Court, and assigned as error: