Id. 447); Maine (Pike v. Dilling, 48 Me. 539); and Texas (Cole v. Tucker, 6 Texas 266.)

On the other hand, there are several states where there seems no fair opportunity for doubt, that they are completely committed to the doctrine. Of these are New York, Alabama, Illinois, Kentucky, Maryland, Vermont and Missouri. The position of the Federal Courts is hard to define. Most of the cases usually cited, do not touch the point. The strongest United States dicta are in Day v. Woodworth, 13 How. 363; and Berry v. Fletcher, 1 Dillon 67.

There are some states which clearly and satisfactorily limit damages to compensation. It is a relief to find a healthful practical view, among the many vacillating and contradictory decisions. Massachusetts (Barnard v. Poor, 21 Pick, 378; Austin v. Wilson, 4 Cush 273) and Nevada (Johnson v. Wells, Fargo & Co., 6 Nev. 224; Quigley v. C. P. Railroad Co., 11 Id. 350), have consistently taken this stand; and New Hampshire is now, as we have seen, classed with them.

The preponderance of authorities is, however, in favor of exemplary damages. It is a great mistake which should be corrected, either by legislative enactment or the law-making power of the courts. For the doctrine is productive of positive evil. "It has demoralized an honorable profession by the prizes held out to the litigious and unscrupulous, and their advocates in court expecting to share in the promised confiscation of another man's property: (6 Cent. L. J., p. 74). There would be fewer damage suits filling up the dockets of our courts with useless, or else unrightful litigation, if plaintiffs could recover only what they have suffered; and the courts would not be obliged to resort to the thin fiction of "public example," in order to make reparation for the ruin of character and destruction of homes, brought about by slanderers and seducers. The reproach upon our law, that it compensates for the loss of the slightest service, but not for the severance of the dearest ties, or the ruin of human happiness, would not exist.

In a late Nevada case, Quigley v. Central Pacific Railroad Company, 11 Nev. 350, the consideration of the question is thorough and satisfactory; and the words of Beatty, J., therein reported, accord so closely with my views of what is right upon this subject, that they may be taken as an appropriate conclusion, and apt expression of what it has been the aim of this article to establish: "As to the question whether a jury in awarding vindictive damages, can go beyond a full compensation to the plaintiff for his pecuniary loss, and bodily and mental suffering, and add a further sum by way of punishment to the defendant, for the sake of example, I think the weight of reason and the best considered cases are in favor of restricting the award to compensation to the plaintiff. Of course the amount of compensation to which he will be entitled, will depend, in every case, upon the circumstances of the injury; and in cases of gross and wanton outrage, heavy damages should be allowed, which, while they would go to the plaintiff as a com

pensation, would operate incidentally as a severe punishment to the defendant. In this sense and in this sense only, in my opinion, is it proper to say that a defendant may be punished in vindictive damages." EDW. C. ELIOT.

Am. Law Register.

SUPREME COURT OF PENNSYLVANIA.

LYNCH'S APPEAL.

MARCH 21, 1881.

A decree of a court of equity rescinding a contract for the sale of land, should be made only on the ground of mutual mistake or misrepresentation and fraud; unless the evidence of these be so clear as to leave no room for hesitation or doubt in the mind of the court, the parties should be remitted to their legal remedies.

A chancellor may refuse to enforce the execution of a contract on the ground of improvidence, surprise or hardship; but should rescind a contract only for fraud, illegality or mistake.

If an agent of the vendor attempt to impose on the vendee by representations which he ought to have known to be false, and which he did not know to be true, and the vendee falsely state the object of his purchase, in order to get a better bargain, neither of the parties act fairly, and a chancellor should refuse to interfere either to execute or rescind the contract, but should leave the parties to any legal remedies they may have.

Appeal of I. V. Lynch, J. C. Miles and John W. Miller from a decree of the Court of Common Pleas of Luzerne county.

Bill in equity, filed by Victor Koch against I. V. Lynch, J. C. Miles and John W. Miller, praying that certain articles of agreement for the sale of land by defendant to complainant be rescinded, and the moneys paid thereon be returned, on the ground of the misrepresentations of W. H. Stanton, the agent of the defendants.

By the articles of agreement the defendants sold to the complainant for $6,000, to be paid in installments, "the coal in and upon and under the (described) tract of land, with all the privi leges of mining and transporting the same, with the full and free right to enter upon said land, sink shafts," etc.

The answer alleged misrepresentations on the part of the plaintiff, and denied the authority of Stanton.

George R. Bedford, the Examiner and Master, after hearing the case made his report, concluding as follows:

It being determined that the defendants were bound by the representations of Stanton; that they were not true; that the plaintiff had a right to rely upon them, and in fact did rely upon them, and purchased, believing them to be true, it follows that the plaintiff is entitled to have his contract with the defendants rescinded, and the Master, therefore, in conclusion, reports that, in his opinion, it is proper to decree that, so far as said contract remains unexecuted by the actual payment of the purchase moneys, the same be rescinded and delivered to be cancelled; but that the prayer for the re-payment of the five hundred dollars be denied.

To this report the defendants filed various ex

ceptions of law and of fact, which were dismissed by the court; whereupon they took this appeal, assigning for error the dismissal of their exceptions, and the confirmation of the Master's report.

GORDON, J.

This is a case where the court below in the exercise of its equity powers has undertaken to rescind a contract under seal between the defendants Lynch, Miles and Miller of the one part, and the plaintiff, Victor Koch, of the other part, for the sale of all the coal lying under one hundred acres of land therein described. This could be done only on the ground of mutual mistake, or misrepresentation and fraud, and of these the evidence should be so clear as to leave no room for hesitation or doubt in the mind of the court. If there be any such hesitation or doubt the bill ought to be dismissed, and the parties turned over to their legal remedies. Herein it is, that we think both the Master and the court below fell into a mistake.

The decree was based on certain representations, alleged to have been made by W. H. Stanton, who, as the Master found, was acting as the agent of the defendants in the sale to Koch, but he has not found that these representations were, at that time, known by either Stanton or his principals to be misrepresentations. The Master says: "Arrived upon the ground, Stanton, claiming to be familiar with coal lands, asserted that there were three underlying veins of coal, though it was apparent there was no development of the land, or evidence of its having been subjected to any test to determine the existence, or non-existence, of coal. Koch, however, was evidently impressed with Stanton's sagacity, and put entire faith in the latter's opinion."

It is thus quite obvious that Stanton's representations were not and did not profess to be of known facts, but were expressions of opinion only. It is true he may have impressed Koch with the idea that he was an expert, and thus may have given to his opinions a weight which they otherwise would not have had, nevertheless they were but opinions, and were not represented as facts. Indeed such could not well be for Koch was upon the land, and could and did see for himself that the land was not developed. He, therefore, knew certainly that Stanton's representations were merely the expressions of his opinions. Then when he met with the defendants in person, they dealt with him at arm's length; they made no representations whatever; they had what they believed to be a coal reservation to sell; to them Koch professed to be utterly indifferent whether it contained coal or not, representing that his object was to acquire their right for the purpose of relieving the surface, which he alleged he was about to buy, from intrusion by those who otherwise might enter to prospect a mine. Under such circumstances as these, a chancellor might well hesitate about the rescission of a solemn contract of the parties. It may be admitted that the agent of the de

fendants did attempt to impose on the plaintiff by representations which he ought to have known to be false, and which he certainly did not know to be true; on the other hand it is an uncontroverted fact that the plaintiff approached the defendants with a falsehood in his mouth in order to conceal his true purpose, and get their claim for as low a price as possible.

Here then is more than doubt; neither of the parties is acting fairly with the other, hence a chancellor will interfere for neither. Under such conditions he will interpose neither to execute nor rescind their contract, but will leave them to their legal remedies, if any such they have.

But there is another principle involved in this case, which seems to have been overlooked by both Master and court, and that is the wide difference between the facts and circumstances necessary to move a chancellor to refuse the execution of a contract, and those necessary to induce him to rescind it. In the one case interposition will be refused on the ground of improvidence, surprise or even mere hardship; in the other a court will act only on the ground of fraud, illegality, or mistake: Graham v. Pancoast, 6 Cas., 89; Edmond's Appeal, 8 P. F. S., 220; Yard v. Patton, 1 Har., 278; Stewart's Appeal, 28 P. F. S., 88; Rockafellow v. Baker, 5 Wr., 319.

The Master confesses "that during the whole process of the case, his impressions on this point were all against the plaintiff, and with the defendants, and that the rule of caveat emptor applied." He furthermore says that he reached the conclusion that the plaintiff had a right to rely on the statements made by Stanton as to the existence of coal with much hesitation. This hesitation was overcome by what he supposed the binding authority of Fisher v. Worrall, 5 W. & S., 478; and Smith v. Richards, 13 Peters, 26. But the former was a case of specific execution, and the latter one of plain misrepresentation and fraud, so that neither was in point. On all authority then this very hesitation should have led him to a different result. It might well be, especially if the testimony of Vanhooser is to be believed, that neither a chancellor nor a court and jury would enforce this contract against Koch, but under all the circumstances, especially in view of the fact that Koch himself approached the defendants with falsehood and misrepresentation, though perhaps they were not deceived thereby, yet as it may have induced them to deal with him differently from what they would otherwise have done, a chancellor will refuse his interposition to relieve him by the rescission of his contract. The decree is reversed, and bill dismissed at the costs of the appellee.

A sea captain was brought before a justice and mercilessly attacked by his opponent's lawyer. When at length he was suffered to speak, he said: "Your Honor, I ask a delay of one week in the proceedings, so that I may find a big enough liar to answer that man." His request was granted.

DICKINSON, J.

This action was brought to recover the amount of a promissory note made by the defendant to the plaintiffs for part of the purchase-price of a harvester purchased by the former from the latter. The making of the note is not in issue; the only defense asserted being in the nature of a counterclaim for damages from an alleged breach of warranty, on the part of the plaintiffs, in respect to the harvester.

By his answer the defendant avers that he first took the machine on trial, and upon the trial it proved to be unsatisfactory and would not do good work, and that he notified the plaintiffs to take the machine away; whereupon the plaintiffs promised and agreed with the defendant to put the machine in good order; to furnish certain parts of the machine new, and warranted the machine to be well made, of good material, durable, and not liable to break or get out of order; that it would cut and elevate grain as well as any other machine, and was in all respects a first-class machine, and capable of doing first-class and satisfactory work as a harvesting machine; relying upon which promises, agreements and warranties, defendant purchased the machine giving the note in question.

The answer further alleges that the plaintiffs refused to put the machine in good order, or to furnish new parts for the machine, and sets forth a breach of the terms of the warranty.

By a reply the plaintiffs put in issue the making of a warranty, as well as the agreement to furnish new parts for the machine. The evidence on the part of the defendant tended to prove that he got the machine for trial before the commencement of the harvest of 1878; that it did not work well, although he used it to cut about seventy acres of grain; that he often made complaint to the agents of the plaintiffs, who urged him to keep the machine, and do the best he could with it; and that after harvest the agents of the plaintiffs represented that it was as good a machine as there was in the market, and he would make it so; that it was all right, and would do as good work as any machine in market, and it should be fixed up in first-class order, with the new parts referred to in the answer; that the defendant purchased the machine then, and gave the note, relying, as he testifies, upon the representations made. The evidence

tends to show that at this time the defendant knew the defects in the machine of which he now complains.

At the request of the defendant the court instructed the jury as follows: "If the jury find, from the evidence, that the plaintiffs expressly warranted the machine for which the note in suit was given, and that the defendant was induced by such warranty to execute and deliver said note, the plaintiffs are liable for all damages which the defendant has sustained by reason of the breach of such warranty, and this liability is not affected by the fact that the defendant tried said machine before the making of said warranty." To this the plaintiffs excepted.

At the request of the plaintiffs the court instructed the jury as follows: "I charge you that where a general warranty is given on the sale of a machine, defects that were apparent at the time of making of the bargain, and were fully known to the purchaser, cannot be relied upon as a defense to a note given for such machine, when the purchaser has such knowledge at the time of giving the same. (2) If you find that the machine was taken on trial under a contract to purchase, and that after having fully tried it the defendant gave his note therefor, he cannot offset against any such note damages arising from any alleged breach of warranty against defects known to the defendant at the time of settlement and giving of the note."

* *

The court further instructed the jury in the following language: "A vendor may warrant against a defect that is patent and obvious. * * You sell me a horse, and you warrant that horse to have four legs, and he has only three. I will take your word for it. [The court then read in the hearing of the jury the following from Addison on Contracts: When a general warranty is given on a sale, defects which were apparent at the time of the making of the bargain, and were known to the purchaser, cannot be relied on as a ground of action. If one sells purple to another and saith to him, 'This is scarlet,' the warranty is to no purpose, for that other may perceive this; and this gives no cause of action to him.. To warrant a thing which may be perceived at sight is not good." Gentlemen, that is not the law of this State."

The court erred in these instructions to the jury. It has always been held that a general warranty should not be considered as applying to or giving a cause of action for defects known to the parties at the time of making the warranty, and both the weight of authority and reason authorize this proposition, víz: that for representations in the terms or form of warranty of personal property no action will lie on account of defects actaully known and understood by the purchaser at the time of the bargain. Margetson v. Wright, 7 Bing. 603; Dyer v. Hargrave, 10 Ves. Jr. 506; Schuyler v. Russ, 2 Caines 202; Kener v. Harding, 85 Ill. 264; Williams v. Ingram, 31 Tex. 300; Marshall v. Drawhorn, 27 Ga. 275; Shewalter v. Ford, 34 Miss. 417, Brown v. Bigelow, 10 Allen, 252; Story on

Cont., §830; Benj. on Sales (2d ed.), 502; Chitty on Cont. (11th Am. ed.) 644.

A warranty, for the breach of the condition of which an action ex contractu for damages can be maintained, must be a legal contract, and not a mere naked agreement. It must be a representation of something as a fact, upon which the purchaser relies and by which he is induced, to some extent, to make the purchase, or is influenced in respect to the price or consideration. Oneida Manuf. Society v. Lawrence, 4 Cow. 440; Lindsey v. Lindsey, 34 Miss. 432; Blythe v. Speake, 23 Tex. 429; Adams v. Johnson, 15 Ill. 345; Ender v. Scott, 11 id. 35; Hawkins v. Berry, 5 Gil. 36; 2 Add. on Cont. 626 (Morgan's ed.)

In the nature of things one cannot rely upon the truth of that which he knows to be untrue; and to a purchaser fully knowing the facts in respect to the property, misrepresentation cannot have been an inducement or consideration to the making of the purchase, and hence could have been no part of the contract. It has often been said that a general warranty may cover patent defects, and it has led to some misapprehension of the law. The proposition is strictly true, but as was said by the court in Marshall v. Drawhorn, supra, it is "confined to those cases of doubt and difficulty where the purchaser relies on his warranty and not on his judgment." It has no application to a purchaser who knows the defects in the property and the untruthfulnesss in the vendor's representations. We do not, however, mean to say there may not be a warranty against the future consequences or results from even known defects. The fact that a portion of the charge given at the request of the plaintiffs stated correctly the legal principle under consideration, cannot affect the result. In fact, that the instructions to the jury were thus inconsistent, and calculated to mislead or confuse rather than inform or guide the jury, is in itself sufficient reason why the verdict should not stand. Vanslyck v. Mills, 34 Iowa, 375; C. B. & Q. R. Co. v. Payne, 49 Ill. 499.

For the reasons already indicated, a new trial must be awarded, and it is unnecessary to consider whether the verdict is supported by the evidence presented in this case; nor is it necessary to consider some other alleged errors involving no doubtful questions of law, and which are not likely to recur upon another trial. Anticipating, however, upon the retrial, as in the former one, the question may arise as to the authority which an agent empowered to sell machinery of the kind in question may be presumed to possess in respect to the warranting of the property, in the absence of any proof of express authority we will pass upon the question as it is presented by the facts in this case, For the purposes of this case it is sufficient to say that an agent engaged for his principal in the business of selling personal property is presumed to be authorized to sell with warranty. It may be, however, that if the property be of a kind not usually sold with warranty, no such presumption will be exercised. Nelson v. Cowing, 6 Hill, 336;

Smith v. Tracy, 36 N. Y. 79; Schuchardt v. Allens, 1 Wall, 359; Upton v. Suffolk, Co. Mills, 11 Cush. 586; Boothby v. Scales, 27 Wis. 626; Ahern v. Goodspeed, 72 N. Y. 108; Murray v. Brooks, 41 Iowa. 45. In the case of such an agent engaged in selling harvesters without proof of express authority to warrant, the court will presume such authority.

The order refusing a new trial is reversed and a new trial is awarded.

SUPREME COURT OF MINNESOTA.

FLYNN V. MESSENGER.

JULY 29, 1881.

The common-law rule, that a married woman living with her husband is presumed to have authority from him to order such goods or services as are ordinarily required for family use, is not changed by the statutes regulating the rights and liabilities of married women. If the party dealing with the wife knows she is a married woman living with her husband, and the order is of a character to indicate that it is for the benefit of her husband's family, he is bound to presume that she is acting for her husband, and cannot hold her personally liable unless she especially agrees to become so. The employment of a seamstress for ordinary domestic service in and for the benefit of the husband's family, held, prima facie, to be within the rule respecting the presumptive agency of the wife.

Appeal from judgment of municipal court, city of St. Paul.

CLARK, J.

By the common law, a married woman living with her husband is presumed to have authority from him to order such things as are ordinarily required for family use. The rule is laid down by Lord Abinger, in Emmett v. Norton, 8 Car. & P. 506, in these words: "Where a wife is living with her husband, and where, in the ordinary arrangements of the husband's household, she gives orders to tradesmen for the benefit of her husband and family, and these orders are proper and not extravagant, it is presumed that she has the authority of her husband for so doing. This rule is founded on common sense, for a wife would be of little use to her husband in their domestic arrangements if she could not order such things as are proper for the use of a house and for her own use without the interference of her husband. The law, therefore, presumes that she does this by her husband's authority."

There can be no doubt (especially under the statutes of this State, conferring upon a married woman the power to transact business, and make contracts which shall bind her) that it is perfectly competent for the wife to bind herself personally to the payment for such orders; but if the party dealing with her knows she is a married woman, living with her husband, and the order is of a character to indicate that it is intended for the benefit of the family, he is bound to presume that she is acting for her husband, and not on her account, and cannot hold her personally liable unless she expressly agrees to become so.

The principle is laid down in Powers v. Russell, 26 Mich. 179, in the following language: "Now, if he (the tradesman) knew that she was a married woman, living with her husband, and the goods were not of a character to indicate that they were bought for other than family use in the husband's family, and she did not claim affirmatively to be purchasing them on her individual account, the natural inference would be that she was purchasing them on her husband's accourt, and for the use of his family; and she could not be made individually liable without an express agreement to become so, or that the goods should be charged or the credit given to herself."

We do not think the statutory provision regulating the rights and liabilities of married women, have changed the obligation of the husband to support and maintain the family, nor taken away from the wife the presumption of authority, arising out of the marital relation to act in his behalf in supplying the ordinary wants of his household. We have been referred more especially to section 3, c. 69, Gen. St. 1878, as changing the common law so as to make the wife individually liable for goods ordered by her for domestic use, unless she has express authority from her husband and makes the purchase expressly on his account; but we do not think its scope is so broad. If it was intended to make so important a change in the law and the usages of society, it is to be presumed that the legislature would have declared it in express terms, and not left it to be brought about by implication from other provisions not directed to the rules of evidence connected with the marital relation, or the presumption of the common law arising therefrom.

These principles apply with equal force to the employment by the wife of servants for ordinary domestic service in and for the benefit of the husband's family, and dispose of this case. The plaintiff's case rested exclusively upon her own testimony. She testified, in substance, that the defendant engaged her as a seamstress to sew at her residence, where she lived with her husband and their children; that she went there in pursuance of such engagement and sewed for twenty-four days upon clothing for the children; that she knew at the time of the employment the defendant was a married woman, living with her husband and family; that the defendant agreed with her as to the amount of her wages, but did not mention her husband or state who would pay her; that while she was at work in the family the defendant told her she had property of her own, and her husband had property, and that she was going to sell some land, and when she did she would pay her, and that two months after the completion of the service she paid her four dollars on account thereof.

It does not appear from the evidence that, at the tne of the employment, any express agreement was made that the defendant should be resprisible, as principal, for the wages, or that anyt ing occurred to take the case out of the ordinary presumption that the employment was

in behalf of the husband; nor does it appear that the husband disputes his liability on the contract. What was said with reference to the ownership of separate property by the defendant, and the payment of the plaintiff from the proceeds of the sale, after the contract of employment was made, (which was, for reasons already stated, binding on the husband,) and while it was being performed, was not, we think, sufficient to shift the obligation of payment from the husband to the defendant, or to render her liable. It is to be regarded, under the circumstances, as a mere voluntary promise. We also think it is to be assumed, prima facie at least, in the absence of anything in the proceedings or proofs to the contrary, on grounds of common knowledge, that the service performed by the plaintiff was an ordinary domestic service, such as the wife might reasonably employ for the benefit of the family.

It follows from these views that the motion to dismiss, when the plaintiff rested, should have been granted, and it is, therefore, unnecessary to consider alleged errors in the instructions to the jury. The judgment appealed from is reversed, and a new trial granted.

SUPREME COURT OF VERMONT.

SQUIRES v. SQUIRES.

An agreement of separation, signed by the husband and the father of the wife, as her agent, is a good defense to a petition for a divorce, alleging intolerable severity, brought two years after the said agreement, and after it had been substantially complied with by the husband, the same being entered into after the alleged cause had

accrued.

Although strictly the deed of separation is not a condonation of alleged wrongs, yet under the circumstances, the court think the parties should be held to their own settlement.

Libel for divorce. The libellee moved to dismiss the petition. The motion was in writing, claiming that the written agreement signed by the libellee and the father of the libellant, acting as her agent, was a good defense, especially as he had performed his part of the contract, in paying all that he agreed to, and delivering the property, etc., to the libellant. The petition was dated April 24, 1879; the deed of separation, September 17, 1877. This agreement, in effect, was that the said husband and wife had mutually contracted to live separate and apart; that the libellee was to give up and surrender all property to the libellant which belonged to her before marriage, and pay her $500 in money, and $100 for the benefit of her daughter. The wife was to release all her right or interest in the homestead, dower or thirds; and to support herself. The agreement was sealed. The other parts of it sufficiently appear in the opinion of the court. It was conceded that the libellant had paid over the money according to the contract; but it was claimed that he had not delivered all the furniture. Tne parties had not lived together after the accruing of the alleged