a trifling sum, appears to have been paid. A motion was made to set aside the verdict on the ground that the damages were excessive, but it was denied. Wilde, C. J., said, "With respect to the

amount of damages, it was for the jury to say what amount [352] of compensation the plaintiff was entitled to for the defendant's breach of contract." And Maule, J., said, "There is no ground for saying that the damages were miscomputed. It must be borne in mind that embezzlement was imputed to the plaintiff." The result at which the verdict arrived seems not open to observation. But the language of the court appears by no means equally free from objection. Why, in a case of this kind of simple contract, is it for the jury to fix without control the defendant's liability? and what has a charge of embezzlement set up in the plea, to do with the quantum of damages? If in a case of this description there is no rule of damages, it would seem to be difficult to declare one in any; and if an unfounded defense is to have the effect of turning an action of contract into one of tort, and to give the uncontrolled discretion of the subject to the jury, the principles which govern the measure of damages will in all cases be in great risk of being lost sight of. That there is a rule in cases of this kind, seems not to me to be doubtful; and it is, that the plaintiff has a right to recover the stipulated wages for the full time, subject to the defendant's right to recover whatever the plaintiff might during the period have reasonably earned.

So again, where it was agreed between the plaintiff and the defendant that in case of a vacancy occurring in the command of a certain East India vessel the plaintiff should be appointed for two voyages, it was held that the jury might give damages for what the plaintiff could have earned on both the voyages, and that they were not limited to one. (u) Here, too, I apprehend that the jury were bound to give their verdict for both the voyages, subject, of course, to the right to recoupment.

It has been very justly decided in Massachusetts, that a factor cannot recover commissions when there is a loss to a greater amount occasioned by his negligence. (v) (1) But it is well settled

(u) Richardson v. Mellish, 2 Bing., (v) Dodge v. Tileston, 12 Pick., 328.

229.

(1) But where an agent was employed to find a purchaser for some land at a certain price, at a commission of £1 10s. per cent, on the purchase money if a sale

that if an agent, without default, incurs losses or damages in the course of transacting the business of his agency, or in following the instructions of his principal, he will be entitled to full compensation therefor. (w) So an agent has been allowed to recover the damages paid by him on a protested bill drawn [353] for his principal's benefit. (x) So an agent, who was indemnified against the commission of an act which was not known at the time to be a trespass, but which proved to be such, was allowed to recover against his principal the amount of the judg ment recovered against himself. (y) And it is quite immaterial in these cases, whether the agent have a promise to indemnify him or not; the law implies an agreement on the part of the principal to save him harmless. (2)

It has been said that if an agent abroad, as for example, a foreign factor, should, at his own risk and peril, evade the payment of foreign customs and duties, he would still be entitled to charge them against his principal, as if they had been actually paid. But the lively moral sense of Mr. Justice Story is shocked at this idea; and he justly says, that it may well be doubted whether this doctrine is sound or maintainable. (a)

Where merchants here gave a written engagement to their agent at the Havana, to save them harmless from all costs, damages, and expenses which might arise in consequence of any lawsuit which then was or might be brought against them for the recovery of freight or average on the cargo of a certain ship, it was held that the agents were entitled to recover for money which they were obliged to pay in consequence of legal proceedings on an award made previous to obtaining the written engagement. (b)

(w) Story on Agency, § 339.

(x) Ramsay v. Gardner, 11 J. R., 439. (y) Coventry v. Barton, 17 J. R.. 142. (2) Powell v. Trustees of Newburgh, 19 J. R., 284. D'Arcy v. Lyle, 5 Binn., 441; Stocking v. Sage, 1 Day Conn., 522. Story on Agency, § 339.

(a) Story on Agency, § 443, and authorities there cited.

(b) Hill v. Packard. 5 Wend., 375. See, also, Rogers v. Kneeland, 10 Wend., 219. S. C. in Error, 13 Wend., 114. In Pennsylvania, see Tiernan v. Andrews, 4 Wash. C. C. R., 564, and Elliott v. Walker, 1 Rawle, 126.

were effected; and he found a purchaser, but the owner of the land refused to complete the sale,-in an action by the agent to recover his commission, it was held that the law implied a promise to remunerate the agent for his services, and he could recover on a quantum meruit for work and labor done. Pricket v. Badger, 37 Eng. L. & E., 428. As to actions relating to attorneys' fees, under special contracts, see Radcliff v. Baird, 14 Tex., 45; Myres v. Crockett, Ib., 257.

It has been held, that where a factor employs a sub-agent for the purpose of carrying out the instructions of the principal, if the sub-agent, by neglecting the directions of the factor, commit a breach of duty for which the factor is compelled to answer the principal in damages, the factor will be entitled to recover over

from the sub-agent the damages which he has so sustained. [354] This is the measure of his damages. Thus, (c) where the plaintiff had been commissioned by Gevers & Co. to ship a quantity of best Porto Rico tobacco for them to Holland, the defendants were employed by the plaintiff to execute the order, but bought Porto Pico tobacco not of the best quality, and which was proved at the trial to be very bad. Gevers & Co. refused to receive it, and sued the present plaintiff. He notified the defendants to furnish a defense to the action. Gevers & Co. recovered, and it was contended in the action against the subagent, that the measure of damages was the amount recovered by Gevers & Co. in the former suit, with the costs thereof. The defendants insisted that the true measure of damages was either the difference between the relative prices of the article in the London market, or between the relative values in the market in Holland; but the court held that the measure of relief should be the damages and costs recovered in the first action against the plaintiff the plaintiff undertaking to assign the tobacco to the defendants, or to sell it and account to the defendants for the proceeds; and this having been so held at the sittings, a rule for a new trial was refused. (d) And on the analogous cases of warranties and sureties, it seems very rightly decided.

(c) Mainwaring v. Brandon, 8 Taunt., 202 (1818).

(d) Vide Russell on Factors and Brokers, 257.

CHAPTER XIII.

THE MEASURE OF DAMAGES IN REGARD TO COMMON CARRIERS UPON BILLS OF LADING, AND ON CONTRACTS OF AFFREIGHTMENT.

The value of the article at the place of destination fixes the measure of damagesCases examined-Mode of arriving at the value-Rule, when suit is brought by Carrier on breach of agreement to furnish freight.

THE class of cases which we now proceed to consider, like those discussed in the last chapter, cannot be made to conform to the line that separates our forms of proceedings; as the actions against common carriers may be framed either ex contractu upon the breach of the engagement, or ex delicto upon the violation of the public duty. But we shall find that, whether the action be assumpsit on the contract, or case on the violation of duty, the measure of damages is equally a question of law, and as much under the control of the court as if the right rested in agreement merely. The liabilities flowing from bills of lading, (1) which are express contracts, and can only be treated as such, will also be examined under this head. In this class, however, are by no means included those cases where carriers are sued for injuries to the person resulting from negligence. In these no recovery can be had, unless misconduct on the defendant's part is proved; and then, although there be no express malice or deliberate intent to injure, still the law, unable to fix on any precise rule of compensation, surrenders the matter to the control of the jury, subject

(1) In case of a shipment of goods upon which freight has been paid in advance, the usual clause in the bill of lading exempting the ship-owner from loss by perils of the sea, does not conclude the shipper from recovering back the full amount of the freight advanced, when by the dangers of the sea the voyage has been broken up and the delivery of the goods prevented. Phelps v. Williamson, 5 Sandf. (N. Y.), 578.

always to the restriction that their verdict must be free from corruption, prejudice, or passion.

As a general rule, where goods are entrusted to a carrier, (1) and they are not delivered according to the contract, the value of the goods with interest thereon from the day when they should have been delivered, is the measure of damages. (e) (2) But [356] the question at once, arises, whether that value is to be computed at the place where delivered to the carrier, or at the place of destination. We have seen it said that, in cases of illegal capture and of collision, the actual damage sustained at the time and place of the injury fixes the measure of damages; (f) but in regard to carriers, it seems to be well settled that the analogy of this rule does not hold good, and that the measure of damages is the value of the goods at the place of destination. This sometimes involves an inquiry into foreign markets, and will generally include the profits of the adventure; but it has been rightly held that nothing less will satisfy the contract. (3) It is the value of the article at the place of delivery, that the plaintiff, relying on the carrier, has lost; it is that value which he would have received if the contract had been performed. (4) If the goods have been transported by the carrier, he is entitled to deduct his freight; but if he do not perform any part of his contract, then the difference between the value of the article at the place of shipment and at the place of delivery, furnishes the measure of damages, deducting in this case also the freight or price of carriage. If, however, another conveyance can be found by

(e) Ludwig v. Mayer, 5 Watts & Serg., 435; Hand v. Baynes, 4 Wharton, 204; Segura v. Reed, 3 La. Ann. R., 695.

577.

(ƒ) Ante, 69, 70, et seq.

(1) As to the liability of express companies, see Hersfield v. Adams, 19 Barb.,

(2) But in an action against a railroad company for negligence in transporting plaintiff's slave, whereby he escaped from his master's service, the jury are not bound, as in cases where property has been destroyed, to give damages to the full value of the slave. O'Neall v. The South Carolina Railroad Company, 9 Rich. (S. C.) L., 465.

(3) Sangamon & Morgan Railroad Company v. Henry, 14 Ill., 146; Bailey v. Shaw, 4 Fost. (N. H.), 297; Ringgold v. Haven, Cal., 108; Price v. The Steamship Uriel, 10 La. Ann., 412; Shaw v. The South Carolina Railroad Company, 5 Rich. (S. C.) L., 462; Nettles v. The Same, 9 Ib., 465.

(4) And if by acts of the carrier the plaintiff is prevented from showing the value, the jury may allow the value of the best quality of such goods. Bailey v. Shaw, 4 Fost. (N. H.), 297.