Page images
PDF
EPUB

NOTES OF CASES.

In Thorn v. Mayor, etc., of London, 31 L. T. N. S. 455 the court of exchequer made the following important decision: A contractor who, having seen plans and a specification of a proposed building, and its mode of construction, prepared by the engineer of the persons desirous of having it erected, renders and contracts with such persons for the execution and completion of the work, according to the terms of such plans and specification, on the faith of their being accurate and sufficient for the purpose, and without previously ascertaining for himself whether or not the work could be done in the manner thereby specified, cannot, when it afterward turns out, in the course of the work, to be impracticable to perform it in the specified way, and an alteration in the mode of construction is therefore necessarily made by the engineer, maintain an action against the persons with whom he so contracted, to recover compensation for the extra expense and loss of time incurred by him in completing the work according to such alteration, inasmuch as there is no implied warranty on their part that the work could be executed in the manner originally prescribed by the plans and specification. This case is unique in its character and will doubtless form a precedent. The general rule is that where alterations are ordered to be made they are to be paid for as extras See Aiken v. Bloodgood, 12 Ala. 221; Dubois, v. Del. & Hud. Canal Co., 4 Wend. 285; Hayward v. Leonard, 7 Pick. 181; Wheeden v. Fiske, 50 N. H. 125; Marsh v. Richards, 29, Mo. 99; De Boom v. Priestly, 1 Col. 206 ; Mc Celland v. Linder, 18 Ill. 58; Mc Cormick v. Connolly, 2 Bay, 401.

In Pittsburg, etc., R. R. Co. v. Pillow, 7 Leg. Gazette, 13, the Supreme Court of Pennsylvania decided that where a passenger, on a railroad car, lost an eye through the quarrel of drunken men the company was liable to the injured passenger. The decision proceeds on the ground that carriers of passengers are just as liable for the misconduct of fellowpassengers, as they are for the mismanagement of the train. It is the duty of the company to maintain order; and if they are negligent in this respect and injury results to a passenger they are liable. In Railway v. Hinds, 53 Penn. St. 512, a passenger's arm was broken in a fight between drunken persons, and the company was held liable because the conductor did not stop the train and endeavor to expel the disorderly persons. In Godderd v. Railroad Co., 57 Me. 202; S. C., 2 Am. Rep. 39, it was said that the carrier "must not only protect his passenger against the violence and insults of strangers and copassengers; but, a fortiori, against the violence and insults of his own servants." In Flint v. Norwich,

etc., Transp. Co., 34 Conn. 554, it was held that it is the duty of passenger carriers to repress all disorderly and indecent conduct in their cars, and that persons guilty of rude or profane conduct should at once be expelled. In Putnam v. Broadway, etc., R. R. Co., 55 N. Y. 108, the principle of the foregoing cases seems to have been sustained; but it was held that where there was nothing in the condition, conduct, appearance or manner of the passenger from which it could be reasonably inferred that he was about to make an attack on a fellow-passenger, the company was not liable for a sudden attack on a passenger. It is not the duty of the conductor to remove a drunken person who is not disorderly or offensive, or who remains quiet after admonition

from the conductor.

The provisions of the Federal statutes providing for a removal of causes under certain circumstances from the State to the Federal courts have given rise to a number of conflicting decisions in the state courts. These decisions we have from time to time noted, and need not now refer to them. The

Supreme Court of the United States has, however, recently settled some of the disputed points, as, for instance, in the Sewing Machine cases, 18 Wall, 553, that an action upon a contract by a plaintiff, who was a citizen of the State in which the action was

son.

brought against two defendants, who were citizens of other States and a third who was a citizen of the same State as the plaintiff, was not removable to the Circuit Court under the act of 1867 upon the petition of the two non-residents. The court has just passsd upon another point of much doubt, in Vanneoar v. Bryant. The following extract from the opinion will fully illustrate the decision: "The transfer was also properly refused for another reaThe act authorizes the petition for removal to be filed at any time before the final hearing or trial of the suit.' The hearing or trial, here referred to, is the examination of the facts in issue. Hearing applies to suits in chancery and trial to actions at law. In Insurance Co. v. Dunn, 19 Wall.. it was held, that after a motion for a new trial had been granted, a removal might be had. But after one trial the right to a second must be perfected before a demand for the transfer can properly be made. Every trial of a cause is final until, in some form, it has been vacated. Causes cannot be removed to the Circuit Court for a review of the action of the State court, but only for trial. The Circuit Court cannot, after one trial in a State court, determine whether there shall be another. That is for the State court. To authorize the removal, the action must, at the time of the application, be actually pending for trial. Such was not the case here."

LIABILITY OF JUDGES FOR JUDICIAL ACTS.

We are indebted to the courtesy of Mr. William Henry Arnoux, of counsel for Edward Lange in his action against Judge Benedict, for a copy of the opinion of Judge Van Brunt, overruling the defendant's demurrer. We re-stated the facts upon which this action was founded, and gave a short extract from this opinion, in our last issue. The case, however, is of such novelty and importance, that we have deemed it worth while to give a brief review of the authorities cited, and the principles enunciated in Judge Van Brunt's excellent opinion.

The court concede that, as a general rule, judges of courts of superior or general jurisdiction, acting under color of jurisdiction, are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. But they draw a distinction between excess of jurisdiction and the absence of jurisdiction over the subject-matter or person. In the latter case a judge is liable like any other person who acts without authority or warrant. Judge Van Brunt expresses the idea very exactly, when he says that Judge Benedict would not have been liable to an action for damages for his error in his first sentence of fine and imprisonment against Mr. Lange, because he had jurisdiction and simply exceeded it; but when he imposed his second sentence he acted without jurisdiction and was a trespasser. 66 'Where there is clearly no jurisdiction over the subject-matter," says Justice Field, in Bradley v. Fisher, 13 Wallace, 350, "any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised, are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of the judgment may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But, on the other hand, if a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not, by the law, made an offense, and proceed to the arrest and trial of the party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil

action for such acts would attach to the judge, although these acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration whenever his general jurisdiction of the subject-matter is invoked."

The language of Justice Field contains the kernel of the whole matter. Similar doctrine was laid down in the court of Queen's Bench, in Ackerly v. Parkinson, 3 M. & S. 411. The action was brought against the vicar-general of the Bishop of Chester and his surrogate who held the consistorial and episcopal court of the bishop, for excommunicating the plaintiff with a greater excommunication of contumacy in not having taken upon himself the administration of the effects of an intestate to whom the plaintiff was next of kin. The citation issued to him being void, the court on appeal held all the subsequent proceedings invalid. Justice Blanc drew the same distinction between excess and absence of jurisdiction.

In Houlden v. Smith, 14 Q. B. 841, the plaintiff, who dwelt and carried on business at Cambridge, out of the jurisdiction of the Spilsby court, was sued in that court, by leave of the judge under the statute, the cause of action having arisen within the jurisdiction of the court, and judgment was duly obtained against him. Afterwards, while the plaintiff still dwelt and did business at Cambridge, a judgment summons (which seems equivalent to our order in supplementary proceedings), was issued by order of the judge of the Spilsby court, citing the plaintiff to be examined as to his estate and effects, and the plaintiff not appearing, the judge, knowing the facts but believing he had jurisdiction, made an order that he should be committed for contempt. This action was brought for damages, and sustained. The court say: "Although it is clear that the judge of a court of record is not answerable at common law, in an action for erroneous judgment, or for the act of any officer of the court wrongfully done not in pursuance though under color of a judgment of the court, yet we have found no authority for saying that he is not answerable in an action for an act done by his command and authority, when he has no jurisdiction."

These authorities seem to dispose of this part of the inquiry. Indeed, we do not see how it can be doubted that a judge, acting without color of jurisdiction or authority, is as little protected as a simple citizen; they are alike trespassers.

The only remaining question in the case then is, did Judge Benedict proceed without color of jurisdiction? This matter seems as simple as the other. Judge Benedict had jurisdiction originally, but he had exhausted it. He had power, by law, to fine or imprison Lange. He did both. If he had stopped here he would not personally have been liable, although Lange, having paid his fine, could have re

gained his liberty. But he called Lange again before him, without any fresh indictment, arraignment or conviction, and proceeded to sentence him anew to imprisonment alone. Lange had already expiated his offense by paying his fine, and Judge Benedict's "new departure" was as clearly void and without jurisdiction or color of jurisdiction, as if on his way down the court-house stairs, after adjournment, a newsboy had ran against his honor's judicial person, and his honor had ordered his marshal to carry him off to the house of correction for a year. As Judge Van Brunt says, Lange "had the lawful right to assert his freedom by force." The Supreme Court of the United States seem to have settled this question rather effectually by their judgment on Lange's application for release on the imprisonment imposed upon him by Judge Benedict. They say: "We are of opinion that when the prisoner, as in this case, by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone, that the principle that we have discussed interposed its shield, and forbade that he should be punished again for that ofiense." The court then remark that the records of the court, at the moment of the new sentence, showed that for that very offense the prisoner had suffered one of the alternative punishments prescribed, and showed that the court had no further power to punish; that "the new sentence was error because of want of power." And again: "In the present case the court could render no second judgment against the prisoner. Its authority was ended. All further exercise of it in that direction was forbidden by the common law, by the constitution, and by the dearest principles of personal rights which both of them are supposed to maintain."

second sentence on Mr. Lange, Judge Benedict did not act judicially, and he does not deserve judicial protection. He had made a mistake; he recognized the fact; in endeavoring to correct the mistake he did what he had no color of right to do as a judge, and caused a great wrong and disgrace to a man who had expiated his offense. Judge Benedict must suffer the consequences, just as if he were simply Mr. Benedict. We hope the case will go to the ultimate court on the legal point, and if the present judgment shall be sustained, that Mr. Lange, who is said to be a christian gentleman, having vindicated himself, and having, we trust, no desire to extort money from Judge Benedict, will content himself with a compensatory verdict.

IMPLIED WARRANTY OF CHATTELS. The common-law doctrine, caveat emptor, has received very important modification in the course of modern adjudications. We purpose very briefly to examine the questions, first, when will a warranty of chattels be implied? and second, what is the measure of damages on a breach of such warranty? Two cases in the Court of Appeals of this State will furnish the materials for our investigation, and the text for some remarks, namely: Passinger v. Thorburn, 34 N. Y., 634, and Hawkins v. Pemberton, 51 id. 198.

In the first place, then, when will a warranty on a sale of chattels be implied? The doctrine of implied warranties is elaborately discussed in the latter case. The defendant had purchased at auction an article represented by the auctioneer to be blue vitriol, and having the appearance of blue vitriol, the defendant relying upon the representation. The article turned out to be very different and inferior, and the defendant refused to accept or pay for it. The plaintiff resold the article and sought to charge the defendant with the loss. A verdict was di

This, then, is conclusive of the whole question, unless courts of general jurisdiction have some immunity in this regard which courts of limited juris-rected for the plaintiff. The court held that the diction do not possess. Judge Van Brunt can see no distinction between them, nor can we see any. If a judge acts clearly without the proper steps to acquire jurisdiction in a particular case, it can afford no excuse to him that he has power to act in all cases in which he has taken the proper steps to acquire jurisdiction. The defect is in not having taken the steps. He is none the less a trespasser. As well might a policeman extenuate the clubbing of an unresisting prisoner by saying that he has power to club all prisoners who resist.

We are glad that Judge Van Brunt has decided this case in this way. We agree with him, "that it is necessary, for the independence of the judiciary, that the broadest shield of protection should be thrown around them in respect to their official acts, but this does not require that they should be exempt from all penalties when they clearly act without any claim to jurisdiction." In passing his

representation amounted to a warranty or at least the question should have been submitted to the jury. They also held that it is not necessary, in order to constitute a warranty upon a sale, that the representation should have been intended by the vendor as a warranty; if the representation is clear and positive, not a mere expression of opinion, and the vendor understands it as a warranty, and purchases in reliance upon it, the vendor cannot escape liability by claiming that he did not intend what his language declared; and there is no distinction in principle between a representation as to the quality and condition of an article, and one as to its character, and that a warranty need not be expressed but may be implied from positive affirmations.

This case is certainly a departure from the earlier decisions in this State, in Seiras v. Woods, 2 Cai. 48, and Swett v. Colgate, 20 Johns, 196, and disapproves of those decisions. In both the latter cases

goods were advertised, invoiced and sold as articles
of a superior description, but the court held that
this did not amount to a warranty. These cases
were founded on the case of Chandelour v. Lopus, |
Cro. Jac. 4, the case of the bezoar stone, where it
was held that "the bare affirmation that it was a
bezoar stone, without warranting it to be so, is no
cause of action." But in several subsequent
English and American cases this doctrine was dis-
approved, and advertisements and invoices of goods
were held to amount to a warranty, or at least the
question was left to the jury. Lord Denman ex-
pressed the idea in Power v. Barham, 4 A. & E.
473, the case of the Canaletto paintings:
"It was
for the jury to say, under all the circumstances,
what was the effect of the words, and whether they
implied a warranty of genuineness, or conveyed
only a description or an expression of opinion."

It is thus settled that any positive affirmation of character, as well as of quality or condition, may be construed as a warranty. This doctrine certainly seems much more accordant with reason than the ancient doctrine. The question whether a warranty can be implied in the absence of some such positive affirmation on the part of the vendor, is more serious. For instance, if one goes to a jeweler, and merely asks to look at seal rings, and selects one appearing to be gold, there is perhaps no implied warranty that the ring is gold. But if the purchaser had asked for gold seal rings, would not a warranty have been implied that the rings shown were of the character demanded? Chief Justice Best, in Jones v. Bright, 5 Bing. 533, laid down the true distinction, as it seems to us: "If a man sells a horse, generally he warrants no more than that it is a horse; the buyer puts no question, and perhaps gets the animal the cheaper. But if he asks for a carriage horse, or a horse to carry a female, or a timid or infirm rider, he who knows the qualities of the animal, and sells, undertakes, on every principle of honesty, that it is fit for the purpose indicated. The selling upon a demand for a horse with particular qualities, is an affirmation that he possesses those qualities."

Second. What is the measure of damages upon a breach of such warranty? Ordinarily, we suppose, the difference between the real value of the article and the value which it would have possessed if it had corresponded to the warranty. In cases of express warranty, however, the courts have, in late years, gone further, and given all the damages naturally flowing from the breach, and which might reasonably be supposed to have entered into the mind of the vendor at the time of warranting. Thus, in Bonadale v. Bruxton, 8 Term, 535, a chain cable was warranted to last two years, but broke within that time, whereby the anchor was lost, and a recovery was had for both anchor and cable; in Brown v. Edgerton, 2 Mann. & Granger, 279, the detendant was applied to for a rope for a crane to

raise and lower heavy casks and pipes, the rope broke and a cask of wine was lost, and the recovery embraced the value of the wine lost; in Smeed v. Ford, 102 E. C. L. 612, a machine was ordered for the express purpose of threshing a crop of wheat in the field, and the defendant promised to complete it in season for that purpose; there was a failure to complete it, the plaintiff was obliged to stack the wheat, and it was damaged by the rain; the value of the wheat was included in the recovery. In all these cases it will be observed that the loss or damages was definite and certain, and in no way dependent on conjecture or contingency.

But in some cases of express warranty the courts have gone still further, and have allowed a recovery for contingent profits. This doctrine has been generally laid down in cases of sale of seed. Thus, in Page v. Pavey, 8 Carr. & Payne, 769, the declaration alleged a sale of old cone wheat for seed, with a warranty that it would grow, and a breach that it did not grow, etc.; the plaintiff was allowed to give evidence of the value of the crops of straw and corn which would have been produced if the seed had answered the warranty. Randall v. Roper, 96 E. C. L. 82, was a very similar case, in respect to barley warranted to be chevalier seed barley, and the plaintiff recovered not only the difference between the seed barley sold and chevalier seed barley, but also the difference between the value of the crops. And in Passinger v. Thorburn, supra, the defendant warranted seed to be Bristol cabbage seed and that it would produce Bristol cabbages, and the plaintiff recovered the difference in value of the crops. In the latter case, it will be seen by reference to the case as reported in the Supreme Court, that the defendant, on the sale of the seed, exhibited to the plaintiff a cabbage, and warranted that the seed would produce cabbage like the one exhibited.

It will be noted that in this latter class of cases there was an express warranty. Still it is somewhat difficult to see how the court can reconcile the measure of damages allowed with that ordinarily prevailing, by which, as is well known, contingent profits are excluded. It seems to us that the measure of damages should be confined to the difference in the actual price of the seeds, and in the case of a worthless crop, the cost of cultivation. We have | always regarded Passinger v. Thorburn as an extremely robust holding, even upon the peculiar facts of the case, and certainly not as a case to be followed, except under precisely similar circumstances. It is true that the Court of Appeals, in Griffin v. Colver,. 16 N. Y. 489, said that "profits which would certainly have been realized but for the defendant's default, are recoverable," and that "the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained," which language is relied on by the court, in Passinger v.

Thorburn; but they also say, "those" profits "which are speculative or contingent, are not " recoverable, and the gains prevented "must be certain, both in their nature and in respect to the cause from which they proceed." It is not easy to see how possible profits from a crop that is never raised can be regarded otherwise than as speculative and contingent. We very much doubt the commercial policy of imposing such tremendous consequences on a sale of such articles. It would seem that compensatory damages for the actual injury sustained would be a sufficient award. That a vendor who realizes a profit of, perhaps, a dollar on six dollars worth of seed, should possibly be liable for six thousand dollars damage because of his innocent mistake, seems rather hard measure. Of the present qualities of an article of sale the vendor may reasonably be expected to possess a better knowledge than the vendee; of its future qualities or fruit he can know no better than the vendee, and the vendee must necessarily be aware of it.

We do not know that the doctrine of Passinger v. Thorburn has ever been extended to cases of mere implied warranty. If Passinger had inquired of Thorburn for Bristol cabbage seed, and Thorburn had simply delivered him the seed in question, without any declaration or representation in regard to it, a warranty might be implied that it was seed produced from Bristol cabbage, but a warranty could hardly be implied that it would itself produce Bristol cabbages. A warranty as to what an article is, may reasonably be implied without any affirmation on the part of the vendor; a warranty as to what an article will produce by cultivation, cannot reasonably be implied in the absence of an express warranty.

THE MEASURE OF DAMAGES FOR BREACH OF COVENANTS TO REPAIR.

A recently reported decision of the Court of Common Pleas, in England, illustrates a principle which must prove of considerable importance to the relations subsisting between landlords and tenants. It is desirable that the attention of the profession should be called to this case, as, at first sight, it would seem incompatible with a reported case of considerable authority, the circumstances in the two cases being very similar and requiring careful attention, before the distinction between them can be seen. The former of the cases to which we refer Williams v. Williams, will be found reported in L. R. 9 C. P. 659. Its facts were shortly as follows: The plaintiffs were assignees of a lease of the premises in question; that lease contained a general covenant to repair, and also a covenant to repair after three calendar months' notice. The plaintiffs demised the premises to the defendant on similar covenants to those contained in the original lease, except that the notice stipulated for was a two, and not a three months' notice. In September, 1872, a notice to repair the premises was left by the superior landlord on the premises, calling on the plaintiffs to repair. This notice was left with the defendant, but he, being no party to

the original lease, took no notice of the requisition. Notice was given to the plaintiffs on 17th January, 1873, The plaintiffs, thereupon, called on the defendant to repair in very general terms, and on 20th March, 1873, the defendant received a formal notice from the plaintiff's attorney, requiring him to repair the premises "in accordance with the terms of his lease." The plaintiffs, being pressed by their superior landlord, in order to avoid a forfeiture, themselves did the necessary re-.

pairs, which were finished shortly before the present

06 the meas

action was brought, which was to recover the amount so expended. At the trial it was held that the plaintiffs could not recover upon the breaches which charged an omission to repair the premises, not being out of repair at the time of bringing the action, and that the first notice served by the plaintiffs in January was not sufficient. On the plaintiffs appealing to the full court, they strongly relied on Colley v. Streeton, 2 B. & C. 273, to sustain the proposition that, where the superior landlord gives a notice to repair to his lessee, and the latter gives notice to his sub-lessee, and upon his default goes in and does the necessary repair, the lessee can recover against his sub-lessee. That case, however, went upon the ground that the sub-lessee had proper notice to repair, before the commencement of the action. It was admitted by Lord Coleridge, in the present case, that, had there been a breach of the specific covenant to repair within two months after notice, the measure of damages which the plaintiffs would have been entitled to recover would have been the expenses which they had incurred in putting the premises in repair. That view of the case is fully in accordance with the opinion of Mr. Justice Bayley, expressed in his judgment in Colley v. Streeton, that ure of damages was properly the loss which the plaintiffs sustained by reason of the default of the defendants. That was the sum reasonably expended by them in doing such repairs as were necessary, for the purpose of avoiding a forfeiture of the lease." On this point of the case, however, it was held that the two months' notice, which was requisite to be given, had not been duly given by the plaintiffs, and in consequence the plaintiffs could not rely on a breach of this covenant. The plaintiffs, however, fell back upon the breach of the general covenant to repair, and upon that point also the court decided against them, holding that no substantial damages can be recovered under the general covenant where no damage has been done to the reversion, and the reversioner has not been injured by any thing done, or omitted to be done by the defendant. Mr. Justice Brett observed: "The lessors would, also, have an implied right to sue for damages, but they had no right to go upon the premises and do the repairs themselves. It is admitted that the premises were out of repair; but, instead of availing themselves of the right of forfeiture, the plaintiffs do the necessary repairs themselves, in order to save a forfeiture as between themselves and a superior landlord; and they claim to be entitled to recover the expenses thus incurred as damages under the third breach (which was founded upon the general contract). That they cannot do." The court subsequently intimated that, had the point been taken at the trial, the plaintiffs would have been entitled to nominal damages under the third breach. The court treated the case of Duvis v. Underwood (2 H. & N. 570), where substantial damages were recovered, as merely deciding that where the mesne landlord had determined his lease by his own act, this did not prevent his

« PreviousContinue »