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 expenses 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 [302] has been unable to 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. (2) (i) 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 de faut 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; ou 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 considerable,-le vendeur ne sera tenu, ni de ce gain manqué ni de ce dommage incouru, qui ne sent 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 payment -when made in land or property other than money-when in securities-What expenses 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 in some cases by implication of law, as between the parties to negotiable paper, or debtors and their bail; in others it is 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 ordinarily 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. (j) "In ancient times," said Buller, J., in Toussaint v. 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 se curity given by the party. But if the party choose to take a security, there is no occasion for the law to raise a promise." [304] These questions sometimes arise 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. (k) (1) We shall for the present confine ourselves to the liabilities of principal and surety as arising out of private con tract. 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 (k) Post, Chap. XXI. (1) Here may be mentioned instances of actions brought by sheriffs upon bonds given by them for their own security. In New Hampshire, in a suit by a sheriff on a bond given by sureties of his deputy, conditioned to indemnify him against all loss, damages and costs, on account of the acts and neglects of the deputy, he is entitled to receive, as damages, in addition to the sums paid by him or his sureties on his official bond to the county, to satisfy judgments recovered against him for the default of the deputy, and interest thereon, all such reasonable expenses as were incurred by him in and about the defense of the suits in which the judgments were rendered, including counsel fees and a reasonable compensation for his personal services; and in the suit on the bond the same expenses and compensation for services, beyond the taxable costs, but not the costs or expenses incurred in a suit upon his official bond, brought to enforce payment of such judgment; and upon a judgment in favor of the sheriff for the penalty of the bond, execution will be awarded as well for the damages that may have accrued subsequent to the commencement of the suit upon the bond, as for those prior thereto. Hoitt v. Holcomb, 32 N. H. R., 186. So in New York, in an action by a sheriff against the sureties of his deputy to recover damages for the neglect of the deputy to levy on execution, in consequence of which, the execution-creditor has recovered a judgment against the sheriff, the reasonable expenses of the sheriff in defending the suit against himself, are recoverable as a part of his damages. Westervelt v. Smith, 2 Duer, 449. As to the proper measure of damages in an action on a bond given to indemnify a sheriff for sale of property on execution, see Crump v. Fichlin, 1 Patt. & H., 201. CHAP. XI.] INDEMNITIES. 321 be to save the covenantee from damages, but their legal consequences are essentially different." () In conformity to the rule which we have had occasion to notice, that actual loss must precede or create a right of action, 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." (m) 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. (n) 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 the extent of compensation allowed for the injury [305] he alleges himself to have sustained. (o) (1) 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 () Gilbert v. Wiman, 1 Comstock, 550. (n) Powell v. Smith, 8 J. R., 249. 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 v. Smith, 5 Johns., 168. Rowe v. Richardson, 5 Barb. S. C. R., 385. (1) In an action upon a bond to "save harmless from all damage," it was held that counsel fees and other expenses paid, and interest on the amount of the bond, were not recoverable as damages Gadsden v. The Bank of Georgetown, 5 Rich., (S. C.) L., 336. But see Sims v. Goudelock, 7 Ib., 23. On a covenant to indemnify against all damages, costs, and expenses, by reason of a demand, the surety is not liable for a premium or bonus which the party is compelled to pay to raise the amount necessary to meet the demand. Law v. Archer. 2 Kern., 277. And see Scott v. Tyler, 14 Barb., 202; Lathrop v. Atwood, 21 Conn., 117. 21 right of action, even before he has suffered any direct damage himself; and so it has also been decided as a rule of pleading. (1) 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. (p) 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. (2) 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 [306] the money by the third party as a breach of the condition of the bond sued on, but he is not bound to give any further evidence of the extent of his damages, the instrument itself fixing the amount he is entitled to recover; and it was so held against the defendant, who insisted that, in the absence of such evidence, the plaintiff could only recover nominal damages. (r) And a similar decision has been recently made in the English Exchequer. (s) The defendant was indebted to H. D. and G. B. in the sum of £400, secured by a promissory note made by the defendant, and by the plaintiff as the defendant's surety; and thereupon the defendant covenanted that he would pay H. D. and (p) Cutler v. Southern, 1 Saund., 116, n. 1. Holmes v. Rhodes, 1 Bos. & Pul., 638. Hodgson v. Bell, 7 T. R., 97. Port v. Jackson, 17 J. R., 237. S. C. affirmed in Error, ib., 479. Thomas v. Allen, 1 Hill, 145. These two last cases overrule that of Douglass v. Clarke, 14 J. R., 177. (9) Port v. Jackson, 17 J. R., 239. S. C. in Error, ib., 479. See Toussaint v. Martinant, 2 T. R., 100. Martin v. Court, 2 T. R.. 640. Hodgson v. Bell, 7 T. R., 97. Atkinson v. Coatsworth, 8 Mod., 33. (r) Mann v. Eckford's Ex'rs, 15 Wend., 502. Ex parte Negus, 7 Wend., 499. (8) Loosemore v. Radford, 9 Mees. & Wels., 657. (1) M'Gee v. Roen, 4 Abbott's Pr. R., 8. |