for one cent each. He further offered to prove, that Alpine mulberry trees were not worth cultivating for the purpose of raising silk-worms; that those in question were purchased by the plaintiff with a view of growing seedlings for sale, and that they were of no value for that purpose the next year after they were bought. These offers were overruled, and (notwithstanding the dissenting opinion of Cowen, J.) the Supreme Court held, rightly. Nelson, J., in delivering the opinion of the court said,—

[360]

"The damages should afford the plaintiff an adequate indemnity for the loss sustained at the time the injury happened. Assuming that there is no defect in the quality of the article, the fair test of its value, and consequently of the loss to the owner, is its price at the time in the market. The objection to the evidence offered is, that it proposes to take into consideration the fluctuations of the market value long subsequent to the time when the injury happened, thereby making the measure of damage to depend on the accidental fall of prices at some future period, which might or might not occur, and if it did, the loss might or might not have fallen on the plaintiff, as for aught the court or jury could know he may have parted with the property before its depreciation.”

The general rule that we have noticed, when discussing the subject of agency, applies also to the class of cases which we are now examining, viz: that if the carrier break his contract or disobey his orders, any subsequent loss will be attributed to his illegal act; but it is still competent for him to show that if he had performed his contract the same loss would have resulted to his employer; and in such a case the verdict will be for nominal damages only.

An action was brought in the English Common Pleas, against the owner of a ship for a breach of an agreement that she should, with all convenient speed, after discharging her cargo at Plymouth, proceed to Liverpool and take in a cargo of salt for Terceira, and after delivering it, should go to St. Maloes for fruit. The captain refused to go to Terceira, on the ground that that port was blockaded. But as to whether it was an effective blockake or not there was much contradictory testimony. Tindale, C. J., charged, that if the ship, when she arrived off Terceira, would have been prevented from entering by an effective blockade, then it would be a case for nominal damages only. But if otherwise, or if by waiting a reasonable time she could have got in, the jury should not confine themselves to nominal damages.

It is well settled, that in cases of negligence, the subsequent acceptance of the goods is no bar to an action for injuries such as those of which we have been treating. Nothing but a release or satisfaction constitutes such a bar. But acceptance may be given in evidence in mitigation of damages, so as to limit the recovery to the actual loss sustained by the owner. (q)

An interesting question is sometimes presented, where [361] the carrier brings suit on the violation of an agreement to furnish him a stipulated quantity of freight. (1) And here the principle applies which we have already had occasion to notice, (r) 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. (2) 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. (8)

(q) Story on Bailments, § 582 a. Bowman v. Teal, 23 Wend., 306. Baylis v. Fisher, 4 Moore & P.,790. S. C., 7 Bing., 153. Willoughby v. Backhouse, 2 Barn. & Cres., 821.

(r) Ante, 95; and see post, Chap. XVII., Recoupment.

(8) Hecksher v. McCrea, 24 Wend, 304. Shannon v. Comstock, 21 Wend., 457. Pullen v. Staniforth, 11 East, 232.

See these cases cited and confirmed in Costigan v. Mohawk and Hudson R. R. Co., 2 Denio, 610. See, also, the reason-` ing of these cases adopted in Arkansas, in an able opinion of Scott, J., as to a contract for personal services. Walworth v. Pool, 4 English, 394. Abbott on Shipping, Part iv., chap. 1. Of the carriage of goods in merchant ships, and cases there cited.

(1) On a contract to furnish freight at a distant port, to load a vessel which goes to the port but finds none, and is compelled to return empty, the measure of damages is the contract price. Bradley v. Denton, 3 Wis., 557.

(2) The measure of damages against a charterer who refuses to furnish a cargo according to his contract, is the stipulated price, deducting the net earnings of the vessel during the time she would have been occupied in the charter, including the lay days. Ashburner v. Balchen, 3 Seld. (N. Y.), 262; Dean v. Ritter, 18 Mo., 182. Where goods are wrongfully taken from a vessel by the shipper before the com

In a case (t) 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 [362] portion furnished, as damages 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

(t) Robinson v. Noble's Adm'rs, 8 Peters, 181.

mencement of the voyage, the shipowner is not entitled to the stipulated freight as such, but only to an indemnity for the breach of contract. All the attendant circumstances should be laid before the jury, to enable them to determine what will be an indemnity. If the carrier has received other goods in place of those withdrawn, or if by diligence he might have done so, or if he could have abandoned the contemplated voyage, and have found other employment for his vessel, these facts may be ground for a deduction from the entire sum stipulated to be paid as freight Bailey v. Damon, 3 Gray (Mass.) 92.

rule by which the damages should have been estimated. (u) Agreements of this kind are sometimes broken, on the other hand, by the shipowner refusing to receive the cargo on board. In a case of this kind, where the contract was to take on board a vessel a cargo of wheat at a certain freight, and it was proved that the defendant refused to receive the wheat, and that the price of freight rose threepence per bushel between the date of the agreement and the sailing of the vessel, it was held that the difference between the price agreed upon for transporting the wheat and that for which its carriage might have been obtained by others at the time when the ship was to receive it, was the true measure of damages. It was insisted that the shipper was bound to show affirmatively that he had a cargo of the kind agreed on ready for shipment at the time fixed by the contract, or that he could only recover nominal damages; but it was decided that this was not necessary. (v) (1)

(u) This case, though it raises some mportant 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. Ante,

252, 295.

(v) Ogden v. Marshall, 4 Seld., 340.

(1) It is proper to mention also, in connection with this chapter, the measure of damages for failure or delay to transport a passenger.

In an action against a common carrier for unreasonable delay in the transportation of a passenger, plaintiff is only entitled (no malice or fraud being shown) to recover his actual damages. Evidence of the rate of wages earned by persons of plaintiff's trade at the place of plaintiff's destination, during the period of the delay, is admissible to guide the jury in fixing the damages. But that rate of wages is not the measure of damages. The jury are to consider the probabilities that plaintiff would have obtained employment immediately upon his arrival, and that it would have continued during the entire period covered by the delay. Young v. The Pacific Mail Steamship Company, 1 Cal., 333. And where a person in a foreign port contracted with the master of a vessel for a passage to this country, and paid a part of the passage-money in advance, but the master failed to fulfill his contract, it was held that the other party was entitled to recover the sum paid in advance, the expenses incurred in awaiting the sailing of another ship, and the sum paid to the second vessel for a passage in her. The Zenobia, 1 Abbotts' Adm. R. 80. See also on this branch of the subject, Hamlin v. The Great Northern Railway Co., 38 Eng. L. & E., 835; Porter v. The Steamboat New England, 17 Mo. 290.

CHAPTER XIV.

OF CERTAIN SPECIAL CONTRACTS, AND OF THE COMMON LAW 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 in. cluded in our previous classification, and shall then treat of those cases which are exclusively presented in the common-law 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