cause the case of Vance vs. Foster, offers a clear and simple mode of arriving at the desired result with accuracy and safety. The court say, "We perceive no use in the double estimate." The utility of it is two-fold. In the first place, to secure the great object of not leaving the matter to the loose and unguarded decision of the jury; and in the second place, because, no practical man, whether mason or builder or juryman, has any means of arriving at the value of an old or second hand building, save by this very double estimate. He first calculates what it would cost to put up such a building originally, and then how much it has been deteriorated. And it is only by this two-fold process that justice can be arrived at. It is a legal solecism to call the contract of insurance a contract of indemnity, if verdicts upon policies are to be governed by the uncontrolled discretion of the jury. This reasoning would not be admitted even in a common case of trespass free from malice. If a building was destroyed by ordinary negligence, would a jury ever be told that without being governed by any estimate of its value, they are the sole masters of the subject? Nothing is more important than to reduce this branch of our law to system; and nothing short of extraordinary difficulty in laying down a rule, difficulty vastly greater than any existing in cases like this, should warrant a court to shuffle off the matter on the jury. The tribunals of Massachusetts have long been so eminent for their learning and sagacity, that it is with unaffected deference that any writer should venture to differ from them. persuade myself to refrain from this criticism. Still I cannot For a more complete understanding of this branch of our subject, the reader is referred to the various treatises devoted to this particular branch of the law. But I cannot quit it without expressing the opinion that the principle of arbitrary remuneration has been carried, in this country, to a very dangerous extent. It certainly removes difficulties, lessens the labor of all parties concerned in the inquiry, and may perhaps be said, on the whole, to do justice: but on the other hand, it is the business of the law and her officers not to shun but to grapple with difficulties; it hardly becomes the dignity of jurisprudence to declare its inability to do right in the particular instance; a rough average of justice is far from satisfactory to the suitor who suffers gross hardship in the individual case, and as applied to the subject of technical or constructive total loss, the fixed rule holds out infinite temptations to fraud and litigation.* It has already been stated that nice questions often present themselves, as to the amount and character of evidence necessary to prove damage; and in no branch of the law are they more perplexing than in insurance cases. We shall have occasion to recur to the subject when treating of evidence. I shall at present content myself with referring to the judicious language of Mr. Justice Story.+ *It is superfluous to name the leading English and French authors on the subject of this chapter, or Mr. Phillips's work, which is equally well known; but I can, with propriety, mention the learned treatise with which Mr. Duer, of New York, is now enriching our libraries; and I may also be allowed to state the pleasure and benefit that I have received from the very able work of M. ALAUZET.—Traité Général des Assurances. + Rogers vs. Mechanics' Ins. Co., 1 Story, 603. 17 CHAPTER X. MEASURE OF DAMAGES UPON THE BREACH OF CONTRACTS FOR THE SALE OF PERSONAL PROPERTY. Roman Law-General rule as against vendor is the difference between the contract price and the value of the article on the day fixed for delivery-How far this rule is modified by payment of the price in advance-Examination of the decisions-As against vendee, the whole price may be recovered, although the article be not delivered-Rules of the modern Civil Law-Molinaeus-Pothier-Measure of damages against vendor upon breach of warranty, is the difference between the value of the article as warranted, and its value as delivered. WE now approach the consideration of a large class of cases falling under the head of the common law action of assumpsit -that of contracts for the sale of chattels or personal property. These contracts may be broken either completely, by the vendor's neglect to deliver the article, or by the vendee refusing to pay the price; or partially, by the article proving different from some warranty made in regard to it at the time of sale. Generally it may be said that these agreements furnish their own measure of damages; in other words, that courts of justice, without desiring to fix any arbitrary rate of remuneration, endeavor solely to carry into effect the contract of the parties; and to this rule the only exception that can be said to exist, is that in regard to agreements of an unconscionable and oppressive character, which we have already considered.* The general language of the Roman law is, that in case of the breach of contract of sale by non-delivery, the measure of damages is all that the buyer loses or fails to gain in relation to the thing itself, over and above the price paid; id quod interest propter rem ipsam non habitam. And, embarrassed by no form of action, the civil law inquires in each case into the motives * Supra, 215, et seq. of the defendant, and apportions the damages according to his delay, fault or fraud. The language of the digest on the subject of damages for non-delivery is as follows: "Si res vendita non tradatur, in id quod interest agitur; hoc est quod rem habere interest emptoris." And so says the Code, "Sit raditio rei venditae, juxta emptoris contractum, procacia venditoris non fiat, quanti interesse compleri emptionem fuerit arbitratus præses provinciae tantum in condemnationis taxationem deducere curabit. Hoc autem pretium egreditur. Si pluris interest quam res valet vel empta est." And so, again, "Quum per venditorem steterit quominus rem tradat, omnis utilitas emptoris in æstimationem venit quæ modo circa ipsam rem consistit. Neque enim si potuit ex vino (puta) negotiari et lucrum facere, id aestimandum est non magis quam si triticum emerit et ob eam rem quod non sit traditum familia ejus fame laboraverit. Nam pretium tritici non servatorum fame necatorum consequitur. Nec major fit obligatio quod tardius agitur, quamvis æstimatio crescat si vinum hodie pluris sit: ne exito; quia sive datum esset, haberet emptor sive non: quoniam saltem hodie dandum est quod jam olim dare oportuit.§ The form of action prescribed against the seller of any merchantable commodity, who was in default for not delivering, was the Condictio triticiaria; and when treating of this subject, the digest says: "Si merx aliqua, quæ certo die dari debebat, petita sit; veluti vinum, oleum, frumentum, tanti litem asti *Dig., Lib. XIX., Tit. 1, de Actionibus Emti et Venditi. + Cod., Lib. IV., Tit. 49, de Actionibus Emti et Venditi. ↑ Dig., Lib. XIX., Tit. 1, de Act. Em. et Vend. § Dig., Lib. XIX., Tit. 1, § 21, 8. See, also, Pandectes par Pothier, vol. 7, 120. Condictio triticiaria a tritico, tanquam nobilissimo mercium genere, vel a primis edicti verbis dicta, est actio personalis arbitraria ad rem quamlibet, praeter pecuniam numeratam spectans, et ex quacumque causa debitam, vel etiam nostram, ex causis, quibus condici potest, veluti ex causa furtiva vel re mobili vi abrepta. Vicat; Vocabularium Utriusque Juris, in voc. Conf. Hevelke, Juristisches Wörterbuch. The original Roman proceeding, per condictionem, one of the earliest of their curious and complex forms of action, and the true character of which had become dubious even in the time of Gaius, took its name from the act peculiar to it, viz., the condictio, or notice given by the plaintiff to the defendant, to be present on the thirtieth day to select a judge, ut ad judicem capiendum, die tricesimo adesset. Das Römische PrivatRecht, von Wilhelm Reim, Book 5. The condictio of the Digest, in the time of Justinian was a more modern form. It seems to have been analogous to our action of Debt, in that it demanded some certain thing, or a sum certain of money, the price mandum, Cassius ait, quanti fuisset eo die quo dari debuit; si de die nihil convenit, quanti tunc judicium acciperetur."* But these and other texts of the Justinian law on this subject, as on many treated of in that wonderful repository of acute and profound, but loose and ill-arranged decisions, are contradictory and perplexing. And their general terms throw little light on the complex relations of modern commerce. We have first to consider the cases arising from the failure of the seller to perform his agreement. When contracts for the sale of chattels are broken by the vendor failing to deliver the property according to the terms of the bargain, it seems to be well settled, as a general rule, both in England and the United States, that the measure of damages is the difference between the contract price and the market value of the article at the time when it should be delivered, upon the ground that this is the plaintiff's real loss, and that with this sum he can go into the market and supply himself with the same article from another vendor. It follows from this rule, that, if at the time fixed for the delivery, the article has not risen in value, the vendee having lost nothing can recover nothing. And it will also be observed that in laying down this rule, the analogies of real estate are departed from, and that the price paid, or the consideration money is not considered conclusive, but that the actual value is inquired into. A doubt may arise as to what is the time stipulated for delivery. Where oats were to be delivered "on or about" a certain day, it was held that the plaintiff was not limited to the difference between the contract price and the market value on the precise day named, but might recover the difference between the contract price and the market value within a reasonable time after that day. But a different case is presented where the purchaser has paid the price in advance, or has otherwise, as by the transfer of stocks, been deprived of the use of his property; and here it has been insisted that the purchaser is not to be limited to the * Dig., De Con. Trit., Lib. XIII., tit. 3, § 4. + Dey vs. Dox, 9 Wend., 129. Davis vs. Shields, 24 Wend., 322. Beals vs. Terry, 2 Sandf. S. C., 127. Kipp vs. Wiles, 8 Sandf. S. C. R., 585. |