for the purpose of paying a firm debt, the plaintiff mortgaged his
house, and mortgage was foreclosed, the rule of damages in an action
upon the contract to hold the plaintifE harmless, was held to be the
value of the house, not to exceed the amount of the firm debt and
interest. Duran v. Ayer, 67 — 145.
66. DiscHAEGE OF Laborer. Where one had contracted to labor
in the service of another, during a given time, at a specified rate of
wages, he is entitled to recover all the damage he has sustained, by
having been discharged by his employer before the expiration of the
time, without justifiable cause. Sutherland v. Wyer, 67 — 64.
67. Currency. Damages for the breach of a contract, made in a
foreign country, and calling for the payment of a specified specie cur-
rency, are recoverable here in coin. Stringer v. Uoombs, 62 — 160.
68. Total Failure or Performance. The plaintiff, a town,
agreed to issue certain bonds in aid of a railroad, the bonds to be is-
sued from time to time as the road should be built, and the defend-
ant agreed, in case the road should not be completed to a specified
place within a specified time, to return each and every bond issued by
the town. The road was partially built, bonds issued, and on failure
to complete it, the town brought suit upon the agreement to return
the bonds. Held, that the measure of damages was the full value of
the bonds, as there was a total failure of performance. Canton v.
Smith, 65—203.
69. The plaintiff agreed to run a stage line from D. to G., accord-
ing to a certain time table, which specified when the stage should
leave D. and arrive at G., and also when it should leave G. and arrive
at K., and the defendant agreed to give the plaintiff the exclusive
right of ticketing between D. and G. for a specified time, and at a
specified rate. Held, (1) that for a breach of the contract by the defend-
ant, the measure of damages was not the difference between what the
plaintiff was to receive as the contract price for carrying the through
passengers, and what it would actually cost to carry such passengers,
without reference to any other contract or business, but was the loss
of profits which would have been made by the plaintiff in carrying
passengers under the contract — that if the plaintiff, from his prepa-
ration for the business, from his profits from an express business and
from way passengers, could carry the through passengers more cheap-
ly than others, it was his good fortune of which he should reap the
benefit. (2) That the loss of ticketing between G. and K. was not
an element of damage, within the terms of the contract, and was not
such as might reasonably be supposed to have been in the contempla-
tion of both parties, as a probable result of a breach of the contract,
but was too remote to be considered a part of the damages occasioned
by a breach of the contract. Frye v. Maine Ventral JR. H. Co., 67
—414.
70. Prevention of Performance. When a plaintiff has been
wrongfully prevented by the defendant from completing his contract,
the measure of damages is the difference between the price agreed
upon to be paid for its performance and what it would cost the plain-
tiff to complete it. Morgan v. Hefler, 68 — 131.
71. For Conveyance of Land. In an action for damages for
DAMAGES. 153
breach of an agreement' to convey land, the rule of damages is the
value of the land at the time the conveyance should have been made,
less so much of the consideration agreed to be given for it as remain-
ed unpaid. Dolierty v. Dolan, 65 — 87.
" 72. This rule does not depend upon the cause of the failure to con-
vey, and applies to cases where the vender, through unanticipated
causes, is unable to convey, as well as to oases where he has the power
to do so. Ih.
73. But in an action for money had and received, the consideration
paid may be recovered back with interest. lb.
(e) Prospective damages.
74. When there is a breach in the condition of a mortgage given
for the support of the mortgagee during life, and the mortgagee sues
for possession of the mortgaged premises, the conditional judgment
should be for a sum which is a present equivalent for a full perform-
ance, including prospective damages. Fales v. Semenway, 64 —
373.
75. The plaintiff agreed to play for the defendant for a specified
time, at a specified rate per week. Before the expiration of the time
he was discharged by the defendant without cause. An action for
breach of the contract was commenced before the expiration of the
time the plaintiff had agreed to play. Held, that the rule of dam-
ages was the amount of wages for the remainder of the term of service,
after the discharge, less what the plaintiff earned or might have earned
by the use of ordinary diligence in securing employment elsewhere.
Sutherland Y . Wyer, 67 — 64.
(f) When a sum named is a penalty or liquidated damages.
76. In a bond in the ordinary form, where the obligor binds him-
self in a fixed sum, and condition that he will abstained from certain
acts, the sum inserted will not be regarded as liquidated damages.
Caswell V. Johnson, 58 — 164.
77. Where a party binds himself in a sum named, not to carry on
any particular business, within certain limits, or within a specified pe-
riod of time, and the sum named is not out of all proportion to any
possible damage which the other party might suffer, it will be regard-
ed as liquidated damages, and not a penalty. HolhrooJc v. Tobey 66
—410.
(g) Mitigation or recoupmient.
78. When a firm manufactures articles for the defendant which are
paid for, although defective, and one of the partners who succeeds to
the business of the firm repairs them, the defendant cannot have de-
ducted from the bill for repairs, any claim for over payment to the
original manufacturers. Fessenden v. Forest Paper Company, 63
—175.
79. In a suit upon a fiduciary debt which has been proved in bank-
ruptcy, the creditor must account for dividends received, and for those
he might have received but for his own neglect. Richmond v. Brown.
66—373.
80. A defense by way of recoupment can be made available, only
154 DAMAGES.
when it appears that there is some stipulation in the contract which
the plaintiffs have violated. This can only be when the liability of
both parties arises out of the same transaction, or from mutual and
dependent covenants or agreements. Winthrop Savings Bank v.
Jackson, 67 — 570.
81. In recoupment, as well as in set off, the defendant can only be
allowed for what he could maintain an action for. lb.
See Ante, 75. Post, 84.
Infant, 5.
III. ACTION'S AGAINST CAEEIERS AND TELEGRAPH COM-
PANIES.
82. In an action against a carrier for the non-delivery of goods, the
measure of damages is the value of the goods at the place of delivery,
less the freight if unpaid. Little v. Boston S Maine B. B. Co., 66
—239.
83. Where an express forwarder delivered a box to a railroad com-
pany for transportation, and the box was never delivered to the
consignee, in an action by the forwarder against the company, judg-
ment was rendered for the amount of the damages assessed in a suit
by the consignee against the forwarder, and interest. JLittle v. Bos-
ton S Maine B. B. Co., 66—239.
84. In an action against a carrier for the non-delivery of money
sent by the plaintiff's intestate for the purpose of paying a premium
upon a life insurance policy, which would, by its terms, lapse if the
premium was not paid shortly afterwards, of which the defendants'
agent had notice, and had reasonable time to have carried the money
and delivered it in season to prevent the forfeiture, primarily, the
carrier was held liable for the net value of the policy on the day it
lapsed, but, as it was the duty of the assured to ha-, d used all reason-
able means to re-instate himself with the insurance company, or to
re-insure, for damage caused by his failure so to do the carrier was
held not liable. Grindle v. Eastern Express Co., 67 — 317.
85. Where parties in Baltimore offered to sell plaintiff corn at a
certain price, and plaintiff telegraphed his acceptance of the offer, but
the telegram was never delivered, and corn rose in price, the rule of
damages was held to be the difference between the price nnmed and
that which plaintiff would have been obliged to pay in Baltimore, in
order, by due diligence after notice of non-delivery of message, to
replace the corn ; with same rule as to freight. True v. Internation-
al Tel. Co., 60—1.
86. In an action against a telegraph company for an error in the
transmission of a message directing the purchase of ten thousand
bushels of corn, which, when received, directed the purchase of one
thousand bushels, where the plaintiff, as soon as notified of the error,
directed the purchase at the same place of the remaining nine thou-
sand, the rule of damages was held to be the difference between the
price of the nine thousand bushels at the time when it would have
been bought had the message been correctly sent, and the time when
it was actually bought. Bartlett v. Western Union Tel. Co., 62 —
209.
BAMAGES. 155
IV. DAMAGES GIVEN BY STATUTE.
87. PooK Debtor's Bond. If a debtor, having failed to disclose
in accordance with the conditions of a bond given under R. S., c. 113,
§ 16, would reduce the amount of damages to be recovered thereon to
a nominal sum, he must satisfy the court upon the hearing in chan-
cery, that during the thirty days next after judgment in the original
suit, he was utterly worthless in property, so that the plaintiff suffered
no damages by the debtor's failure to disclose. Webster v. Hailey,
57—364.
88. Proof that he was insolvent, during that time, is insufficient.
lb.
89. Railkoad. Fieb. Where, in an action under R. S., o. 51, §
31, to recover damages for property injured by fire, communicated by
a locomotive engine, the plaintiff has an absolute title to the whole
property destroyed, he may recover for the whole injury although he
held the title as security for a debt, and had agreed, that, upon pay-
ment of the debt, he would re-convey. £ean v. At. & St. L. H. jR.
Co., 58—82. I
90. And where the plaintiff had a policy of insurance upon a build-
ing thus destroyed, and, upon payment of the amount of the debt for
which he held the property as security by the insurers, he assigned to
them the statute claim with a stipulation on their part, that any excess
recovered by the insurers, beyond the amount paid to him by them,
should belong to him, — the insurers may recover in the name of the
plaintiff, for the whole injury. Jb.
91. Land Damages. In estimating the damages of a land-owner,
for the taking of a strip of his land across his lot for the location of a
railroad, the award must be restricted to the direct injuries to the lot
in question. £. (& P. R. JR. Co. v. Mc Comb, 60—290.
92. Thus, a sheriff's jury may consider the value of the land taken ;
and if the remainder of the lot is rendered less valuable by reason of
being severed, or disfigured on account of the strip taken and the use
made of it, they may allow such sum as they find the injury to be ;
arid in determining the consequent depreciation of the lot, they may
consider the use to which the strip taken is appropriated ; the char-
acter, situation, f)resent and probable use of the remainder of the lot,
the distance of the owner's buildings from the location of the railroad,
and any facts which the jury, from a view and the testimony, shall
find injure the value of the premises by a proper and legal use of the
road. lb.
93. So, also, they may consider all inconveniences from the sound-
ing of whistles, ringing of bells, rattling of trains, jarring of the
ground, and from smoke, so far as they severally arose from the use
of the strip taken and upon it, excluding all common and indirect
damages. ' lb.
94. So, also, if they find that the real value of the remainder of the
lot and of the erections thereon was actually diminished, by exposure
to fire from the company's locomotives, they may assesss such sum as
will be a just compensation for such diminution, taking into consider-
ation, at the same time, that by the statute, if property is injured by
fire communicated by a locomotive engine, the company using it is
absolutely responsible for such injury. lb. See also Morrison v.
Bucksport & Bangor B. B. Co., 67 — 357.
156 DAMAGES — ^DAT'S "WORK.
95. The conversion of a way dedicated to the purchasers of adjoin-
ing lots into a public way does not authorize the award of more than
nominal damages. Stetson v. JBangor, 60 — 313.
96. When the owner of land makes a plan of it, delineating thereon
lots and streets, and then sells one or more of the lots, he thereby
secures to the purchaser a right of way in the street, and if the street
is taken for a public highway, the owner is entitled to no more than
nominal damages. Bartlette v. Bangor^ 67 — 460.
97. A jury appointed to estimate damages for land taken by a rail-
road company may include in their verdict damages caused by blast-
ing, but not damages caused by the neglect of the company to remove
the stones thrown upon the adjacent land of the petitioner. WMte-
house V. Androscoggin JR. M. Co., 52 — 208.
98. Deaist. Damages awarded for the location of a drain are to be
only those resulting from its proper construction. Jackson v.
Portland, 63—55.
V. ASSESSMENT.
99. After a default of an action of debt on a collector's bond, the
defendants cannot have the damages assessed by a jury, especially
after an auditor, appointed for that purpose, has heard the parties and
presented his report for acceptance. Gforham v. Hall, 57 — 58.
100. The duties of the person appointed to assess the damages in
such a case are different from those contemplated by R. S. of 1857, c.
82, §§ 59, 60, and 61. lb.
101. In trespass against several, for an assault upon the plaintiff,
the damages must be joint, not several. The question is, what dam-
ages has the plaintiff suffered. For those, all the participants in the
assault are liable. Currier v. Swan, 63—323.
102. In an action of trespass, under R. S., 1871, c. 95, § 11, after
a verdict for the actual damage has been rendered, it is proper for the
presiding judge to order judgment for thrice that amount, although
treble damages are not specifically claimed in the declaration. Black
V. Mace, 66—49.
DAY'S WORK.
1. The rule that ten hours labor shall constitute a day's work, ap-
plies when the contract is for work in a grist mill, for no specified
time, at an agreed price per day, to be paid weekly. Bachelder v.
Bickford, 62—526.
2. If a laborer works nights, after his legal day's work is done, at
the request and for the benefit of his employer, the law implies a
promise on the part of the latter to pay for such labor. lb.
3. If a laborer works nights, after his legal day's work is done, and
on settlement, the employer refuses to pay for the night labor, the
acceptance by the laborer of payment for the day labor will not pre-
clude Mm from recovering for the night labor. lb.
DEALER — DEBT.
DEALER.
157
A single sale of a lot of goods, without evidence of preparation,
or readiness to make other sales, will not ordinarily constitute the ven-
der a dealer. Goodwin v. Clark, 65 — 280.
DEBT.
1. When it Lies. An action of debt will not lie on a sealed
instrument wherein is contained no promise to pay any gum of money,
under any terms or conditions, but a bill of sale of certain tools used
in and about the boot and shoe business, together with the vender's
good-will, and an agreement "not to carry on the boot and shoe busi-
ness in the city of Portland for one year from the date hereof."
Mitchell V. McITabb, 58—506.
2. Debt may be maintained upon a promissory note. Nat. Exchange
Bank V. Ahell, 63—346.
3. Also on a quantum meruit and quantum valebat. Ih.
4. An action of debt may be maintained on a simple contract as well
as on a specialty. Portland v. Atlantic dt /St. Lawrence JR. JR. Co.,
66—485.
5. Bail Bond. An action of debt will not lie on a statute bail
bond given in a civil case. 8cire facias is the only remedy. JSewins
V. Currier, 62 — 236.
6. Judgment. After an execution, extended on land, is returned
and recorded, if the levy proves invalid the only remedy of the creditor
to revive the judgment is scire facias. Debt wiU not lie. Prescott
V. Prescott, 65 — 478.
7. But, before the execution is returned and recorded, if the levy is
ascertained to be invalid, the creditor may wave the levy and resort
to any other remedy for the satisfaction of the judgment. lb.
8. And when the levy is void on account of a fatal variance between
the judgment and the execution, the remedy is by debt on the judg-
ment, lb.
9. Debt will lie on a decree in favor of the wife against the husband
for alimony. lb.
10. The ASSIGNEE of a judgment for debt and costs may maintain an
action of debt thereon in his own name, under the act of 1874. Wood
V. Pecoster, 66 — 542.
11. Nor is the right confined to the immediate assignee of the
judgment creditor, but is available to any subsequent assignee. lb.
12. Pleading. In a declaration containing four counts, the first two
debt on a judgment, and the third upon a promissory note alleging a
promise, and the fourth the general omnibus count, the defendant
being called upon in the first count to answer in a plea of debt, but
no plea being stated in the other three, the last two counts are to be
considered as defective counts in debt. Nat. JEJxchange Bank v.
Abdl, 63—846.
13. Paexibs. When the obligors in a bond are bound unto A. in
158 DEED.
a certain sum to be paid to B., her heirs or assigns, an action on the
bond in the name of B. can not be sustained. Packard v. Brewster^
59—404.
See Pleading, 67, 99, 100.
DEED.
I. PARTIES.
II. ESECUTIOlSr.
III. DELIVERY A2SrD REGISTRATION.
IV. VALIDITY AND EFFICACY.
V. WHAT ESTATE PASSES.
VI. EXCEPTION AND RESERVATION.
VII. BOUNDARIES.
(a) Conflicting DBSCBiPTioNS.
(b) General dbschiptions.
(o) BOUNDAEIBS UPON ADJOININO PEOPEIETOR.
(d) Streams and roads.
(e) Location by parties and surveys.
(f) Not affected by covenants.
(g) Other matters.
VIII. GENERALLY.
I. PARTIES.
1. Husband and Wife. Real estate paid for by the husband but
conveyed to the wife can not be conveyed by her without the joinder
of the husband. Call v. Perkins, 65 — 439. ^
2. The joinder of the husband may be in the same deed with the
wife, or by a separate deed. Ih.
3. Agents. Under the provision of R. S., 1871, c. 73, § 15, that
"deeds and contracts, executed by an authorized agent of an individ-
ual or corporation in the name of his principal, or in his own name
for his principal, are to be regarded as the deeds and contracts of such
principal." The intention of the parties to bind the principal or
constituent, — that the deed or contract should be his deed or contract
— ^must appear by the deed or contract itself, and no evidence aliunde,
except evidence of the authority of the agent or attorney, can be
received to show such intent. Nohlehoro v. Clark, 68 — 87.
4. A deed in which the inhabitants of N. "remise, release, bargain,
sell and convey." In witness whereof, they, , "by the hand of H. of
said N., hereunto duly authorized, . . . have hereunto set their seal,
and the said H. has hereunder subscribed his name, and which H., as
agent of said town, acknowledged to be the free act and deed of the
inhabitants of the town, is the deed of the town. lb.
5. Tax. The deed of A. B., treasurer of the town of C, of land
sold for the non-payment of taxes, under R. S., c. 6, § 160, so describ-
ing himself in the deed, and signing it A. B., treasurer, is only the
personal deed of A. B. Treat v. Bmith, 68 — 394.
DEED. 159
II. EXECUTION.
6. Acknowledgment. A deed may be "duly executed" without
an acknowledgment. Poor v. Zarrabee, 58 — 543.
7. Evidence. The testimony of the subscribing witness to a deed
that he witnessed it, and also on a subsequent day, took the acknowl-
edgment of the grantor, "at which time it was delivered," is suffi-
cient formal proof of its execution. Emery v. Legro, 63 — 357.
8. When the subscribing witnesses to a deed are out of the juris-
diction of the court, their testimony is not necessary to prove its exe-
cution and delivery. Jones v. Roberts, 65 — 273.
9. SiGNATtTEE. A grantor unable to write, may verbally direct
another to write the signature for him, and if he afterwards acknowl-
edges and delivers the deed it is valid. Bird v. Decker, 64 — 550.
10. The signature to a deed, made, at the request and in the presence
of, and acknowledged by, the grantor, is to be deemed his signature.
Lovejoy v. Richardson, 68 — 386.
11. Seal. Land in this State cannot be conveyed by a written in-
strument not under seal. McLaughlin v. Randall, 66 — 226.
12. A scroll is not a seal nor does it have the effect of one. lb.
III. DELIVEKT AND KEGISTEATION.
13. A sheriff''s deed of an equity of redemption, executed at the
time of the sale on execution, conveys to the purchaser all the judg-
ment debtor's right, title, and interest in the premises, as against the
debtor having legal notice of the sale, although the deed was not ac-
knowledged, delivered or recorded until three months and fourteen
days after the sale. Sohbs v. Walker, 60 — 184.
14. An administrator's deed dated and delivered after the expira-
tion of the license, conveys no title, although the land was sold at
public auction within the year, and the facts are recited in the deed.
Poor V. Ziarrabee, 58 — 543.
15. But where the deed is dated within the year, and the acknowl-
ment is subsequent thereto, it takes effect from its date, in the absence
of proof of the actual time of delivery. Poor v. Ziarrabee, 58 — 543.
Fowle V. Coe, 63—245.
16. Delivery of Reooi{ded Deed. When a grantee named in a
deed already registered, takes a delivery, he accepts the deed and its
registration with the same effect thenceforward, as if recorded by
him at the date of its delivery. Jones v. Roberts, 65 — 274.
17. Deliveet, Requisites oe. It is indispensable to the delivery
of a deed that it shall pass beyond the control and dominion of the
grantor. Brown v. Brown, 66 — 316.
18. Where a grantor committed a deed to a third person for safe
keeping and delivery, reserving the right at any time to withdraw it,
but with directions in case it should not be withdrawn during the
life time of the grantor, then immediately after his decease to be
delivered to the grantee, and the deed was accordingly kept by such
third person until after the death of the grantor and delivered to the
grantee, it was held not a legal delivery, and that no title passed to
the grantee. lb.
19. When Pkbsumed. A deed may be presumed to have been
160 DEED.
delivered on the day of its date, though it is not acknowledged until
afterward, when such presumption is necessary to give it effect. Poor
V. Larrabee, 58 — 543. Fowle v. Coe, 63 — 245.
20. Evidence of. The possession and production of a deed by a
grantee is prima facie evidence of delivery. Patterson v. Snell,
67—560.
21. And, in the absence of all contradictory testimony, when the
deed is found in the possession of, and is produced by, the grantor,
the presumption arises that it has not been delivered. lb.
22. The appearance of a deed upon the record does not operate as
a delivery, nor does it supersede the necessity of proof of delivery.
lb.
23. A deed can take effect only when delivered, and if not delivered
before the death of the grantor, can never be. lb.
24. Rbcoeb. The rule upon the subject of notice, to purchasers,
of prior conveyances, is, that they are affected with constructive
notice of all that is apparent on the face of the title deeds under
which they claim, and of such other facts as those already known
necessarily put them upon inquiry for, and as such inquiry, pursued
with ordinary diligence and prudence, would bring to their knowl-
edge. Jones V. McNarrin, 68 — 334.
25. The record of a deed of, or levy upon, lot 29 is not notice of any
conveyance of lot 32. lb.
26. Though a deed of land with an unrecorded bond of defeasance
constitutes a mortgage as between the parties, yet as to the public
without notice, the grantor is as of record, the owner of the fee.
Knight Y. JDyer, 57—174.
27. When such owner conveys an easment in the premises, even
without consideration, and his grantee conveys it to a third person for