Page images
PDF
EPUB

general subject of the elector's rights, says that "the oath is the conclusive evidence on which the inspectors are to act; and they are not at liberty to refuse to administer the oath, or to refuse the vote after the oath has been taken. They are only ministerial officers in such a case, and have no discretion but to obey the law and receive the vote." He refers, in support of

ing to furnish her with necessaries. Held, that while the daughter was emancipated from the duty of service to the father, there was no such emancipation from care and control as would release his liability for necessaries furnished her, and that a physician who attends her in sickness, though without the father's knowledge, could recover from him for the services rendered.

PPEAL from District Court, Dallas county; O. B. Ayres, J.

his propositions, to People v. Pease, and to decisions AP

in several other States.

Practically, the law leaves it to the conscience of the person offering to vote to decide whether he can or will do so when his right is challenged. The inspectors cannot do more than to make use of the machinery provided by the law to test the voter's legal qualifications, and they cannot decide upon the truth or falsity of the answers to their questions. The law provides for the punishment of a person who falsely personates a registered voter; and the proposed elector, who is challenged for that cause, if he persists in his attempt to vote, may accomplish his purpose, but at the peril consequent upon false swearing and of false personation. If, with all the safeguards with which popular elections are legally and naturally surrounded, frauds are perpetrated, the tribunals are open, and laws and a system of procedure exist for the punishment of the offenders, and for the rectification of consequent errors, in behalf of an individual whose legal rights are affected; and legislative bodies are judges as to the qualifications, returns and elections of their members.

The election return or certificate is not a conclusive proof of the right of a person to the office. It is nothing more than evidence of the right, and like all other proof, may be the subject of inquiry and of disproof. It is the statement of the whole number of ballots taken for each candidate for office, and that is its whole probative force in an inquiry, competently instituted, with respect to the right of the person claiming office under the election returns. It is only prima facie evidence, and may be impeached and set aside for errors and frauds. People v. Thacher, 55 N. Y. 525. Andrews, J., said in that case that it was "the disposition of the courts in this State, in election cases, to look through the formal evidence of the right to the right itself, and to set aside the return of election officers when necessary to promote the ends of justice." If a person claiming the right to cast his ballot shows himself to be qualified to do so by the application of statutory tests, he should not be deprived of that right by any action of the authorities, State or local. Ample means are provided for holding him for punishment, if believed and charged to be guilty of a violation of the law; and ample means exist for the rectification of the result affected by his acts. It follows that all votes cast must be counted and returned, and the signature by every inspector to the certificate containing the statement required by law is obligatory upon him.

I have discussed this appeal at some length, but the public nature of the question is my warrant for doing 80. The order appealed from should be affirmed, but without costs.

All concur.

PARENT AND CHILD-LIABILITY OF PARENT TO THIRD PERSON.

IOWA SUPREME COURT, JAN. 29, 1890.

PORTER V. POWELL.

A girl of fourteen, with the consent of her father, went to live at a place thirty miles distant from her home, where for three years she contracted for, earned and controlled her own wages, her father neither furnishing nor agree

The District Court certifies to this court the following question, upon which it is desirable to have the opinion of the Supreme Court: "Is a father legally li able to a physician for the latter's services in professionally treating the minor daughter of said father, dangerously attacked with typhoid fever, who, at the date of said treatment, was seventeen years of age, and was then, and had been, residing away from her father's house for three years prior to the rendition of said services, earning and controlling her own wages, and providing herself with clothing, at a place thirty miles distant from her father's place of residence, the father not furnishing, or agreeing with his daughter to furnish, her with any money or means of support, but consenting to her absence from home, the said professional services being rendered at the request of the said minor daughter, but were rendered and furnished without the procurement, knowledge or consent of the defendant, and without knowledge of the sickness, until demand was made for payment of said services by plaintiff, the attendance of plaintiff being from day to day, for a period of twenty days?" Judgment for plaintiff. Defendant appeals.

W. W. Cardell and R. S. Barr, for appellant. Parsons & Perry and D. W. Wooden, for appellee.

GIVEN, J. 1. Appellant's contention is that the obligation of parents to support their minor children is only a moral one, and is not enforceable in the absence of statute or promise; that such promise is not to be implied from mere moral obligation, nor from the stat ute providing for the reimbursement of the public; and that an omission of duty, from which a jury may find a promise by implication of law, must be a legal duty, capable of enforcement by process of law. At first glance, this view of the law seems opposed to our natural sense of justice; yet it is not without support in the authorities. Such is held to be the law in New Hampshire and Vermont. See Kelley v. Davis, 49 N. H. 187; Farmington v. Jones, 36 id. 271; Gordon v. Potter, 17 Vt. 348. A different doctrine has long 'since been held in this State. In Dawson v. Dawson, 12 Iowa, 513, this court held that "the duty of the parent to maintain his offspring until they attain the age of maturity is a perfect common-law duty." In Johnson v. Barnes, 69 lowa, 641, which was an action by the mother, who had been divorced, against the father, for support furnished their children, the court say: "As there was no promise, the question to be determined is whether one can be inferred in favor of a wife, who supports her child, as against a husband, who has without cause abandoned her and his child. The obligation of parents to support their children at common law is somewhat uncertain, ill-defined and doubtful. Indeed, it has been said that there is no such obligation. * * But we are not prepared to say that this rule has been adopted in this country, and it should be conceded, we think, that, independent of any statute, parents are bound to contribute to the support of their minor children, and that such obligation rests mainly on the father, in the absence of a statute, if of sufficient ability; and that, in favor of a third person, who supports a child, a promise to pay may and should be inferred on the ground of the legal duty imposed." In Van Valkenburgh v. Watson, 13 Johus. 480, it is said: "A parent is under a natural ob

*

[ocr errors]

*

ligation to furnish necessaries for his infant children;
and, if the parent neglect that duty, any other person
who supplies such necessaries is deemed to have con-
ferred a benefit on the delinquent parent, for which
the law raises an implied promise to pay on the part
of the parent." In 5 Wait Act. & Def. 50, the author
says: "The duty of parents to support, protect and
educate their offspring is founded upon the nature of
the connection between them. It is not only a moral
obligation, but it is one which is recognized and en-
forced by law.
* In order to hold the person
liable in any case for goods furnished, either actual
authority for the purchase must be shown, or circum-
stances from which such authority may be implied.
** * The legal obligation of parents in respect to
support, extends only to those things which are neces-
sary; and if a parent refuses or neglects to provide
such things for his child, and they are supplied by a
stranger, the law will imply a promise on the part of
the parent to pay for them." Without further citation
of authorities, we announce as our conclusions that it
is the legal as well as moral duty of parents to furnish
necessary support to their children during minority;
that a parent cannot be charged for necessaries fur-
nished by a stranger for his minor child, except upon
an express or implied promise to pay for the same; and
that such promise may be inferred on the grounds of
the legal duty imposed.

court say:
"There could be no such harboring as
would render the defendant liable to the father in this
action, if the son was in truth emancipated, and, if the
son was not emancipated, it will still be a question
whether there was such harboring as renders the de-
fendant liable. By "emancipation," in this connec-
tion, we understand such act of the father as sets the
son free from his subjection, and gives him the ca-
pacity of managing his own affairs as if he was of age.",
The following is given as a condensed statement of the
facts: "In the spring or summer of 1852, plaintiff's son,
a minor of the age of seventeen, went to reside at de-
fendant's house, and was then and afterward em-
ployed by him as a hired hand for over one year, the
defendant paying the son full wages for his services.
In February, 1853, plaintiff sued defendant to recover
for the services, in which suit the judgment was for
the defendant. The son was of a dissatisfied and rov-
ing disposition, careless and improvident in his habits,
not under parental control, and, either through will-
fulness or negligence, had not received the education
proper for a person of his age and condition. In De-
cember, 1851, a misunderstanding arose between the
parent and the child, which resulted in the son's leav
ing home, and residing and working in various places,
before he went into the defendant's service. After
said December, 1851, the father did not, apparently,
have or exercise the proper and necessary control and
authority over the said minor that a parent of a well-
regulated family ought and should exercise, and per-
mitted and sanctioned the hiring out of said minor at
various places, and at different employments, away
from home; but who made the contracts, or received
the pay, is not stated nor proven. The father had also
stated that he had no control over his son, and had in
some instances waived his authority over him. It also
appears that on the 11th of September, 1852, the plain-
tiff, by publication in a newspaper, forewarned all per-
sons from crediting his said son on his account, avow-

tracting, and that he would not fulfill any contracts, or pay debts, entered into by him." The court say: "From these circumstances, to mention none others, we think the court might fairly conclude there was a manumission or emancipation up to the time above stated, and that there was no liability for giving the son shelter, residence and a home. At least, we think it so fairly deducible from the facts that we should not disturb the conclusion."

2. It is further contended on behalf of appellant that the facts certified show an emancipation of his daughter, such as to relieve him from liability for the services sued for; that support and services are reciprocal duties, and if one is withheld the other may be withdrawn. Parents are entitled to the care, custody, coutrol and services of their children during minority. To emancipate is to release, to set free. It need not be evidenced by any formal or required act. It may be proven by direct proof or by circumstances. To free a child, for all the period of minority, from care, custody, control and service would be a general emanci-ing, also, therein that he would pay no debts of his conpation; bnt to free him from only a part of the period of minority, or from only a part of the parent's rights, would be limited. The parent, having the several rights of care, custody, control and service during minority, may surely release from either without waiving his right to the other, or from a part of the time without waiving as to the whole. A father frees his son from service. That does not waive the right to care, custody and control, so far as the same can be exercised consistently with the right waived. He frees his son of eighteen from service for one year. That does not waive the right to his services after the year; and if the waiver has been for an indefinite period the parent may assert his right to the services of the child at any time within the period of minority, subject to the rights of those who have contracted with the child on the strength of the waiver as to services. In the law of contracts, where a father expressly or impliedly by his conduct waives his right generally to the services of a minor child, such child is said to be emancipated. The child may sue, under such circumstances, on such contracts, as are made with him for his services. Nightingale v. Withington, 15 Mass. 272; McCoy v. Huffman, 8 Cow. 84: Stiles v. Granville, 6 Cush. 458; Schoul. Dom. Rel., § 267. There is nothing in these authorities, nor any reason, against the view expressed, that emancipation may be general or limited. There is uo direct evidence as to the purpose of the defendant with respect to his daughter; but we are to say, from the circumstances shown, whether they evidence either a general or limited emancipation. The case of Everett v. Sherfey, 1 Iowa, 358, is relied upon. That was an action to recover damages of the defendant for having harbored and retained the plaintiff's minor son in his employ. The issues and circumstances were quite different from those certified in this case. The

The circumstances disclosed in this case are these: The defendant's daughter, at the age of fourteen, went to reside away from her father's house, at a place thirty miles distant, where for three years she contracted for, earned and controlled her own wages, and provided herself with clothing, her father consenting thereto, he not furnishing, or agreeing to furnish, her with any money or means of support. That, while thus absent, she was dangerously attacked with typhoid fever, and at her request was attended by the plaintiff, as her physician, from day to day, for a period of twenty-one days, which services were rendered without the procurement, knowledge or consent of the defendant. These circumstances are widely different from those in Everett v. Sherfey. Here there was no disagreement that resulted in the daughter leaving home; no want or waiver of parental authority; no dissatisfied and roving disposition; no statement by the father that he had no control over his daughter, and no publication by the father notifying persons not to credit her on his account. The circumstances disclosed in this case are such as are of frequent occurrence in this country. Parents, either from necessity or from a desire to teach their children to be industrious and self-supporting, emancipate them from service for a definite or indefinite time, without any intention of thereby releasing their right to exercise care, cus

tody and control over the child. The obligation of parents to support their minor children does not arise alone out of the duty of the child to serve. If so, those who are unable to render service because of infancy, sickness or accident-who, most of all others, need support-would not be entitled to it. Blackstone, in his Commentaries (vol. 1, p. 446) says: "The duty of parents to provide for the maintenance of their children is a principle of natural law-an obligation, says Puffendorf, laid on them, not only by nature herself, but by their own proper act in bringing them into the world; for they would be in the highest manner injurious to their issue if they only gave their children life that they might afterward see them perish. By begetting them therefore they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported | and preserved. And thus the children will have the perfect right of receiving maintenance from their parents." This obligation to support is not grounded on the duty of the child to serve, but rather upon the inability of the child to care for itself. It is not only a duty to the child, but to the public. The duties extend only to the furnishing of necessaries. What are necessaries must be determined by the facts in each case. The law has fixed the age of majority; and it is until that age is attained that the law presumes the child incapable of taking care of itself, and has conferred upon the parent the right to care, custody, control and services, with the duty to support.

3. There being no direct evidence as to the purposes of the defendant with respect to his daughter, we are to say with what intention he consented to his daughter's going and remaining away from his home as she did. That he intended she should control her own earnings, at least until such time as he should declare otherwise, is evident; but that it was ever his intention that if, by sickness or accident, she should be reudered unable to support herself, he would not be responsible to those who might minister to her actual necessities, we do not believe. Such an inference from these facts would be a discredit to any father. In our view, there was, at most, but a partial emancipationan emancipation from service for an indefinite time. The father had a right at any time to require the daughter to return to his home and service; and she had a right at any time to return to his service, and to claim his care, custody, control and support. There was no such an emancipation as exempted the father from liability for actual necessaries furnished to his daughter. In view of the legal as well as the moral duty of appellant to furnish necessary support to his daughter during minority, and especially when unable, from infancy, disease or accident to earn her own necessary support, we think he may well be understood as promising payment to any third person for actual necessaries furnished to her. As already stated, what are necessaries must be determined from the facts of each case. What would be necessary support to a child in sickness would not be necessary in health. The services sued for were evidently necessary for the support and well-being of the defendant's daughter. As we have seen, he had not relieved himself from the duty to furnish her such support, and, from his obligation to do so, may be presumed to have promised payment to any one who did furnish it in his absence. Our conclusion is that the judgment of the District Court should be affirmed.

BECK, J. (dissenting). 1. I cannot assent to the doctrines and conclusions announced in the majority opinion in this case. The facts are presented in the certificate of the judge upon which the case is brought here on appeal. We cannot look elsewhere for the facts. They are, briefly stated, these: The daughter was seventeen years old, and, with the father's consent, was at

service thirty miles away from his home, and had been for three years, all the time controlling her own wages, and supplying her own wants, and receiving nothing for support or necessaries from her father. The father had no knowledge that services were rendered to the daughter by plaintiff, or that his daughter was sick. It is not shown that the daughter was a pauper or without means to pay the plaintiff. No presumption to that effect will be entertained.

2. These facts show that the daughter was emancipated by the father. Emancipation may be shown by circumstances from which may be inferred the consent of the father that the child may control his own time, earnings and actions. Slight circumstances tending to show such consent are sufficient, in the absence of contradictory evidence. Schoul. Dom. Rel., § 267; Everett v. Sherfey, 1 Iowa, 356.

3. Emancipation relieves the child of subjection to the parent, and bestows upon him the capacity of man. aging his own affairs as if he were of age (Everett v. Sherfey, supra; Schoul. Dem. Rel., § 268), and it also relieves the parent of all legal obligation to support the child. Id., § 268.

4. A parent is bound neither at common law nor by any statute of the State to support his children who are of age. Monroe Co. v. Teller, 51 Iowa, 670; Blachley v. Laba, 63 id. 22. As I have shown, an emancipated child stands as to his obligation to his parent and the points exempt to or from obligation for his support, just as a child who is of age.

5. It may be that the parent would be under obligation to support a pauper child who is of full age, or that a promise would be imposed on the part of the father to render such support. But that point is not in this case, as it is not shown or claimed that the child for whose support the father was sued is a pauper, or not possessed of ample means to pay plaintiff for the services rendered by him.

6. Doctrines as to the liability of the father for the support of his minor child, and his liability therefor upon a promise, express or implied, and upon other points of the law, are found in the majority opinion, to which I dissent. As tending to support my views, I cite the following decisions of this court: Dawson v. Dawson, 12 Iowa, 512; Johnson v. Barnes, 69 id. 641. See to the same effect, Schoul. Dom. Rel., § 236. In my opinion, the judgment of the District Court ought to be reversed.

[blocks in formation]

STATE INS. Co. v. JAMISON. Defendant, as plaintiff's agent, issued a certain policy of insurance, but failed to make a report containing a com. plete description of such policy, as he was required to do, upon the same day of issuing the policy, in order that plaintiff might exercise its right of cancelling the risk; and before any report was made the premises insured were burned, and plaintiff paid the loss. Held, that in an action against defendant for his failure to perform his duty, evidence that plaintiff would have cancelled the policy when it was reported to it, as it had the right to do under the terms of the policy, is admissible.

[blocks in formation]

sued a policy of insurance on behalf of the plaintiff company to the Independent Order of Odd Fellows, insuring a frame hall and furniture, in the aggregate $1,400. He made no report of this policy until after the property insured by it was burned, on the 9th day of August, 1884. The company paid the loss in full, and brings this suit to recover the amount paid to the insured, on the ground that the defendant negligently failed to perform his duty, and thus prevented the company from exercising its right to cancel the risk. Upon the trial the court, at the close of plaintiff's testimony, directed the jury to find for the defendant, and gave judgment for the defendant, from which the plaintiff appeals.

Cummins & Wright, for appellant.

without any reference to the policy or the report, and the loss would have been paid. But the loss to the plaintiff depended entirely on the existence of the policy. The policy was in existence when the loss occurred, and the plaintiff was made liable for its payment. Now, was it in existence in consequence of the wrongful act of the defendant? Admitting it, and it must be conceded that such wrongful act or neglect caused the loss to the plaintiff, and we think it must be conceded that it was a direct result of the wrongful act. Admit for the argument that the policy would have been cancelled if the report had been duly made. It is exactly equivalent to admitting that the policy at the time of the fire would not have been in existence, and hence no liability of the plaintiff. Appellee refers to the case of Kimball v. Connolly, 2 Abb. Dec. 504, but the holding there is upon facts very dissimilar. In brief, the point in that case is that a party desiring to obtain a loan applied to the clerk to have the records searched as to the title of the land to be offered as security. The law of New York made it the duty of the clerk to have "searchers" in his office for that purpose, and made it the duty of the clerk to certify to the correctness of the return, and also made him liable for errors, etc. In that case the return omitted a certain judgment, but upon the title as returned by the clerk the loan was obtained. The premises were afterward sold by virtue of the omitted judgment, and the executor of the party, who had procured the search and return, paid quite a large amount to secure a reconveyance of the land. The suit was for damage against the clerk for error in the return as to the title. The court held that there could be no recovery, but based its holding on the fact that Mrs. Le Roy, who procured the return, "bought no property, and parted with nothing of value by reason of the erroneous return." The case practically holds that the return was obtained to secure the loan, and that it was secured; that the loan company might have been subjected to loss by the security being insufficient because of the lien not reported. The court says it was no injury to Mrs. Le Roy to have the money paid to her, instead of being paid by the loan company in satisfaction of the judgment. Appellee quotes the following language from the opinion in the case, and seems to rely upon it: "However probable it may be that the judgment would have been paid off by the insurance company out of the proceeds of the loan, if it had been returned upon the search, it is impossible to declare at this time that it would have certainly been so applied. Her object in causing the search to be made was not defeated by the omission to return the judgment. She did not seek information about her title for any purpose but that of obtaining the loan. It is no ground of com

Freeland & Miles and W. F. Vermillion, for appellee. GRANGER, J. The specific errors assigned and argued have reference to the action of the court in excluding evidence. The ground upon which the court instructed the jury to return a verdict for the defendant does not appear, as the defendant's motion for that purpose is not in the record. However, from the argument of counsel we infer that the ground of the ruling was that the damage sought to be recovered was not the proximate result of the wrongs complained of, or, in other words, that the loss did not result from the failure to report the policy. To a proper understanding of the court's rulings upon the testimony offered, a few facts should be well in mind: (1) That the insurance company had paid the policy issued by its agent, the defeudaut; (2) that the loss occurred after the policy issued, and before the agent notified the company of its issuance; (3) that it was the duty of the defendant to give such notice on the day a policy issued, in order that the company might avoid the policy if it so elected; (4) that the company was, in any event, liable on the policy until it was cancelled. A fact which the plaintiff sought on the trial to establish was that if the notice had been given by the agent (defendant) of the issuance of the policy, it would have been annulled, and the company's liability avoided. As we understand, the court excluded all testimony tending to establish this fact, and the principal inquiry on this appeal is, should the evidence have been admitted? Or, in other words, is the fact sought to be established a material one in the case? By the terms of the policy the company had the right to cancel when reported by their agent. If the policy had been reported and cancelled before the fire, the loss of the company would certainly have been avoided. The company, in making its contract with the agent, whereby he could issue policies, had taken the precaution to direct that the company should be notified on the day a policy is-plaint that she was not awakened by the return to take sued, that it might determine the character of the risk, and continue or cancel, as it thought advisable. Such a direction is certainly judicious, and in the interest of safe business management. Keeping in view the fact that the object of the prompt reporting of policies issued was to enable the company, and not the agent, issuing the policy, to judge of the character of the risk, we think we may satisfactorily determine this question. Appellee, in argument, says: "Was plaintiff's loss the direct or natural result of defendant's failure to report, or was the defendant's failure to report to plaintiff the proximate cause of plaintiff's loss?" Appellee answers in the negative. But let us consider the question. We think appellee submits his query with reference to the loss of plaintiff, but in his reasoning and conclusion he has in view the loss of the assured. He says: "The fire was the cause of plaintiff's loss, and surely defendant's neglect to report in no way caused the fire." That is true; but the real question is, did defendant's neglect to report cause plaintiff to pay for the loss by fire? The fire would have occurred

action for the removal of this judgment. The knowledge which she would have derived from the return of it would have been merely incidental; and it is uncertain whether the return or the knowledge thereby acquired would have been applied by Mrs. Le Roy to any purpose whatever. No one can say what actually would have been done under a different state of facts from those which actually occurred. It is no answer to say that she could, or that she might, have paid the judgment or prevented a sale. It does not make it certain that it would have been done. The payment was not a necessary consequence of a correct return by the clerk, and without such a direct and necessary result to flow from his act or omission the defendant cannot be made chargeable with damages."

As we understand, this citation by appellee is to show that the fact that the policy would have been cancelled if it had been reported cannot be established; that it is not susceptible of proof. It seems to us that the citation from the opinion is rather against than in support of such a rule. The entire reasoning of the

case is that Mrs. Le Roy was not seeking the return for information that she might know of incumbrances and pay them off, but to show a title on which to obtain a loan, and that with the title as it was returned she obtained the money, which would otherwise have gone to pay the judgment. There does not appear to have been an attempt to prove that she herself would have paid off the judgment had she have known it after the loan was obtained. It is in view of such facts that the court, in the opinion, says: "It is uncertain whether the return or the knowledge thereby acquired would have been applied by Mrs. Le Roy to any purpose whatever. * * * It is no answer to say that she could, or that she might have, paid the judgment or prevented a sale. It does not make it certain that it would have been done."

There is no purpose in this case to show that the policy could or might have been cancelled, but the attempt was to prove that it would have been done. There is nothing in the New York case to show, or from which it could be inferred, that if the return had been obtained to guide her in the discharge of liens against the land, and the error had occurred by which she suffered damage, she might not have shown that if the judgment had been returned she would have paid it off, and avoided the damage. The case of Smith v. Telegraph Co., 7 Ky. Law Rep. 22, is cited by appellee. The case is this: A broker had purchased stocks for the plaintiff, and attempted to inform him of the purchase by telegram. The telegraph company negligently failed to deliver the message. The market declined, margins were not put up, and the broker not hearing from his principal sold the stocks at a loss, to recover which the suit was brought. The court held there could be a recovery of no more than nominal damages, because the damages claimed were uncertain, remote and speculative. It must be conceded that the rule in that case is closely drawn upon the facts stated, and the conclusion seems to be based on the theory that the damages sought "could not in the ordinary course of events have been expected to arise from" the cause of action. That cannot be said of the case at bar. The defendant was engaged in the business of insurance. It must have occurred to him that a principal object of an early report of policies issued was for the company to determine if it would carry the risk, and the payment of any loss that might occur under the terms of the policy is just the damage that reasonably might have been anticipated. The citations from Sutherland on Damages are in harmony with the rule we here announced. There is no conflict as to the rule of law, if the facts are properly understood. A question in the case is, how can it be established that the company would have cancelled the policy if it had been duly reported? Of course, the fact, under the testimony, must be determined by the jury. But sup. pose it should appear in testimony that the company had an invariable business rule that it would carry only a certain number of risks in a single block or row of buildings, and that in many and all cases where a risk in excess of the number had been reported it had been cancelled, and that this case came clearly within such a rule; and let it be added that this was an extra hazardous risk; that it was such a risk as is generally refused by insurance companies, and such a one as to the ordinary observer would be unsafe and undesirable. Hundreds of facts are established between litigants upon evidence less satisfactory and conclusive. In judicial proceedings it is often necessary and proper to establish what a party would have done under certain facts in fixing the liability of another. Suppose A., as the agent of B., is stationed in Iowa to purchase and forward horses to B. in New York, to be sold on the market, and his instructions are to forward the purchases of each week on the Monday following. After several weeks he neglects to forward as directed,

for a particular week, and before the horses are received there is a decline in the market, and a loss of $500. Must B. lose the $500 because it could not be shown that he would have sold the horses if they bad been forwarded? If it should appear in evidence that he had from week to week been selling under the same circumstances, and he should testify that if the horses had been there he would have sold them, would not the testimony justify a finding of the fact? The most numerous, and, we may say, notable, cases of this character grow out of the failure of telegraph companies to deliver dispatches, and damages are asked because of the failure to deliver, and the loss to the plaintiff has resulted from a failure to sell in the market; and in such cases the question is directly involved, if the party would have sold. The case of Parks v. Telegraph Co., 13 Cal. 423, is directly in point; and upon this precise question the court said: "To ascertain the damages sustained by the breach of this contract these inquiries are pertinent. If the message had been sent, was the plaintiff's agent in Stockton at the time? And would he have received it? Next, would he have then taken out an attachment on the debt? At what time could he have done this? Could he have given security? Could he have procured attorneys to issue the writ? At what hour could and would it have been put in the hands of the sheriff? Was property there of the debtor's subject to the writ? If a telegraphic dispatch had reached the agent at 8 o'clock on the 7th, the agent would have been bound to act at once. It is to be presumed that he would have done so. At least he can testify whether he would." Telegraph Co. v. Wenger, 55 Penn. St. 262, involves precisely the same principle. It was a question what the party would have done. Wenger purchased stock at an enhanced price, because of a failure to deliver a message, and the case presented the query what he would have done if the message had been delivered. The inquiry was held proper and a recovery had. The books abound with cases where the principle or rule is recognized, though not questioned which shows its relation to and importance in the business affairs of the country. In this connection, see the following cases: Manville v. Telegraph Co., 37 Iowa, 214; Thompson v. Telegraph Co., 64 Wis. 531; Rittenhouse v. Telegraph Line, 44 N. Y. 263; True v. Telegraph Co., 60 Me. 26. In the record are set out some eleven questions, or questions and answers, on which rulings were had and exceptions taken, and directed to the establishment of the fact in question, but the arguments have been directed to the general proposition above discussed, and not to the particular assign. ments, and hence we think it not important to notice them severally; the several rulings having likely been made under the court's view of the one proposition of law. We think the fact sought to be established is a material one in the case, and reasonably susceptible of proof, and that in excluding the testimony for that purpose, and instructing the jury to return a verdict for the defendant, the District Court erred. Reversed.

NEW YORK COURT OF APPEALS ABSTRACTS.

CONTRACT-CONSTRUCTION.-Defendants, merchants in New York city, had for several months been accustomed to order matches by cipher telegram of plaintiff, a match manufacturer in Norway. The line of steamers by which all shipments had been made having refused to carry matches, it became essential to defendants to secure a sure means of transit for the matches. They thereupon cabled plaintiff: "Gagged, make firm immediate contract Wilson Line, all you can ship eight months." The word "gagged," in the code, meant two hundred cases "Bear" matches. Ou

« PreviousContinue »