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Id. 447); Maine (Pike v. Dilling, 48 Me. 539); pensation, would operate incidentally as a severe and Texas (Cole v. Tucker, 6 Texas 266.) punishment to the defendant. In this sense and

On the other hand, there are several states in this sense only, in my opinion, is it proper to where there seems no fair opportunity for doubt, say that a defendant may be punished in vinthat they are completely committed to the doc- dictive damages." trine. Of these are New York, Alabama, Illi

Edw. C. ELIOT. nois, Kentucky, Maryland, Vermont and Mis- Am. Lau Register. souri. The position of the Federal Courts is hard to define. Most of the cases• usually cited, do not touch the point. The strongest United

SUPREME COURT OF PENNSYLVANIA. States dicta are in Day v. Woodworth, 13 How. 363; and Berry v. Fletcher, 1 Dillon 67.

LYNCH'S APPEAL. There are some states which clearly and satisfactorily limit damages to compensation. It is

March 21, 1881. a relief to find a healthful practical view, among

A decree of a court of equity rescinding a contract for

the sale of land, should be made only on the ground of the many vacillating and contradictory decisions.

mutual mistake or misrepresentation aud fraud; unless Massachusetts (Barnard v. Poor, 21 Pick, 378; the evidence of these be so clear as to leave no room for Austin v. Wilson, 4 Cush 273) and Nevada (John- hesitation or doubt in the mind of the court, the parties son v. Wells, Fargo & Co., 6 Nev. 224; Quigley v.

should be remitted to their legal reinedies.

A chancellor may refuse to enforce the execution of a C. P. Railroad Co., 11 Id. 350), have consistently contract on the ground of improvidence, surprise or taken this stand; and New Hanı pshire is now, hardship; but should rescind a contract only for fraud, as we have seen, classed with them.

illegality or mistake.

If an agent of the vendor attempt to impose on the The preponderance of authorities is, however, vendee by, representations, which he ought to have in favor of exemplary damages. It is a great known to be false, and which he did not know to be mistake which should be corrected, either by

true, and the vendee falsely state the object of his purlegislative enactment or the law-making power

chase, in order to get a better bargain, neither of the

parties act fairly, and a chancellor should refuse to interof the courts. For the doctrine is productive of fere either to execute or rescind the contract, but should positive evil. “It has demoralized an honorable

leave the parties to any legal remedies they may have. profession by the prizes held out to the litigious Appeal of I. V. Lynch, J. C. Miles and John and unscrupulous, and their advocates in court W. Miller from a decree of the Court of Comexpecting to share in the promised confiscation mon Pleas of Luzerne county. of another man's property :” (6 Cent. L. J., p. Bill in equity, filed by Victor Koch against I. 74). There would be fewer damage suits filling V. Lynch, J. C. Miles and John W. Miller, up the dockets of our courts with useless, or else praying that certain articles of agreement for unrightful litigation, if plaintiffs could recover the sale of land by defendant to complainant be only what they have suffered; and the courts rescinded, and the moneys paid thereon be rewould not be obliged to resort to the thin fiction of turned, on the ground of the misrepresentations "public example,” in order to make reparation of W. H. Stanton, the agent of the defendants. for the ruin of character and destruction of By the articles of agreement the defendants hoines, brought about by slanderers and seducers. sold to the complainant for $6,000, to be paid in The reproach upon our law, that it compensates installments, "the coal in and upon and under for the loss of the slightest service, but not for the the (described) tract of land, with all the priviseverance of the dearest ties, or the ruin of human leges of mining and transporting the same, with happiness, would not exist.

the full and free right to enter upon said land, In a late Nevada case, Quigley v. Central Pa- sink shafts," etc. cific Railroad Company, 11 Nev. 350, the consid- The answer alleged misrepresentations on the eration of the question is thorough and satisfac- part of the plaintiff, and denied the authority tory; and the words of Beatty, J., therein re- of Stanton. ported, accord so closely with my views of what George R. Bedford, the Examiner and Master, is right upon this subject, that they may be taken after hearing the case made his report, concludas an appropriate conclusion, and apt expression ing as follows: of what it has been the aim of this article to es- It being determined that the defendants were tablish: “As to the question whether a jury in bound by the representations of Stanton ; that awarding vindictive damages, can go beyond a they were not true; that the plaintiff had a full compensation to the plaintiff for his pecu- right to rely upon them, and in fact did rely niary loss, and bodily and mental suffering, and upon them, and purchased, believing them to be add a further sum by way of punishment to the true, it follows that the plaintiff is entitled to lefendant, for the sake of example, I think the have his contract with the defendants rescinded, weight of reason and the best considered cases and the Master, therefore, in conclusion, reports are in favor of restricting the award to compen- that, in his opinion, it is proper to decree that, Sation to the plaintiff. Of course the amount of so far as said contract remains unexecuted by compensation to which he will be entitled, will the actual payment of the purchase moneys, the depend, in every case, upon the circumstances of same be rescinded and delivered to be cancelled; the injury; and in cases of gross and wanton out- but that the prayer for the re-payment of the rage, heavy damages should be allowed, which, five hundred dollars be denied. while they would go to the plaintiff as a com- To this report the defendants filed various ex

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ceptions of law and of fact, which were dis- fendants did attempt to impose on the plaintiff missed by the court; whereupon they took this by representations which he ought to have appeal, assigning for error the dismissal of their known to be false, and which he certainly did exceptions, and the confirmation of the Master's not know to be true; on the other hand it is an report.

uncontroverted fact that the plaintiff apGORDON, J.

proached the defendants with a falsehood in his This is a case where the court below in the mouth in order to conceal his true purpose, and exercise of its equity powers has undertaken to get their claim for as low a price as possible. rescind a contract under seal between the de- Here then is more than doubt; neither of the fendants Lynch, Miles and Miller of the one parties is acting fairly with the other, hence a part, and the plaintiff, Victor Koch, of the other chancellor will interfere for neither. Under part, for the sale of all the coal lying under one such conditions he will interpose neither to exehundred acres of land therein described. This cute nor rescind their contract, but will leave could be done only on the ground of mutual them to their legal remedies, if any such they mistake, or misrepresentation and fraud, and of have. these the evidence should be so clear as to leave But there is another principle involved in no room for hesitation or doubt in the mind of this case, which seems to have been overlooked the court. If there be any such hesitation or by both Master and court, and that is the wide doubt the bill ought to be dismissed, and the difference between the facts and circumstances parties turned over to their legal remedies. necessary to move a chancellor to refuse the Herein it is, that we think both the Master and execution of a contract, and those necessary to the court below fell into a mistake.

induce him to rescind it. In the one case interThe decree was based on certain representa- | position will be refused on the ground of imtions, alleged to have been made by W. H. providence, surprise or even mere hardship; Stanton, who, as the Master found, was acting in the other a court will act only on the ground as the agent of the defendants in the sale to of fraud, illegality, or mistake: Graham v. Koch, but he has not found that these represent- Pancoast, 6 Cas., 89; Edmond's Appeal, 8 P. F. ations were, at that time, known by either S., 220; Yard v. Patton, 1 Har., 278; Stewart's Stanton or his principals to be misrepresenta- Appeal, 28 P. F. S., 88; Rockafellow v. Baker, 5 tions. The Master says: "Arrived upon the Wr., 319. ground, Stanton, claiming to be familiar with The Master confesses “that during the whole coal lands, asserted that there were three under- process of the case, his impressions on this point lying veins of coal, though it was apparent were all against the plaintiff

, and with the dethere was no development of the land, or evi- fendants, and that the rule of caveat emptor apdence of its having been subjected to any test plied.” He furthermore says that he reached to determine the existence, or non-existence, of the conclusion that the plaintiff had a right to coal. Koch, however, was evidently impressed rely on the statements made by Stanton as to with Stanton's sagacity, and put entire faith in the existence of coal with much hesitation. the latter's opinion.”

This hesitation was overcome by_what he supIt is thus quite obvious that Stanton's repre- posed the binding authority of Fisher v. Worsentations were not and did not profess to be of rall, 5 W. & S., 478; and Smith v. Richards, 13 known facts, but were expressions of opinion Peters, 26. But the former was a case of specific only. It is true he may have impressed Koch execution, and the latter one of plain misreprewith the idea that he was an expert, and thus sentation and fraud, so that neither was in may have given to his opinions a weight which point. On all authority then this very hesitathey otherwise would not have had, neverthe- tion should have led him to a different result. less they were but opinions, and were not repre- It might well be, especially if the testimony of sented as facts. Indeed such could not well be Vanhooser is to be believed, that neither a for Koch was upon the land, and could and did chancellor nor a court and jury would enforce see for himself that the land was not developed. this contract against Koch, but under all the He, therefore, knew certainly that Stanton's circumstances, especially in view of the fact representations were merely the expressions of that Koch himself approached the defendants his opinions. Then when he met with the de with falsehood and misrepresentation, though fendants in person, they dealt with him at arm's perhaps they were not deceived thereby, yet as length; they made no representations whatever; it may have induced them to deal with him difthey had what they believed to be a coal resery- ferently from what they would otherwise have ation to sell; to them Koch professed to be utter- done, a chancellor will refuse his interposition ly indifferent whether it contained coal or not, to relieve him by the rescission of his contract. representing that his object was to acquire their The decree is reversed, and bill dismissed at right for the purpose of relieving the surface, the costs of the appellee. which he alleged he was about to buy, from intrusion by those who otherwise night enter to

A sea captaid was brought before a justice and merciprospect a mine. Under such circumstances as lessly, attacked by his opponent's lawyer. When at these, a chancellor might well hesitate about the length he was suffered to speak, he said: * Your Honor, rescission of a solemn contract of the parties.

I ask a delay of one week in the proceedings, so that I SUPREME COURT OF MINNESOTA. tends to show that at this time the defendant

may find a big enough liar to answer that man." His It may be admitted that the agent of the de

request was granted.

knew the defects in the machine of which he now McCORMICK V. KELLY.


At the request of the defendant the court in

July 15, 1881. structed the jury as follows: "If the jury find, An action upon a general warranty of an article gold, from the evidence, that the plaintiffs expressly will not lie for defects known to the purchaser at the warranted the machine for which the note in time of sale. He must be misled and induced to purcbase by the warranty.

suit was given, and that the defendant was inAn agent to sell barvesting machines is presumed to duced by such warranty to execute and deliver have authority to warrant the same.

said note, the plaintiffs are liable for all damages Action upon a promissory note given

given which the defendant høs sustained by reason of for an agricultural machine. The opinion states the breach of such warfanty, and this liability is the facts. From an order denying a new trial not affected by the fact that the defendant tried after verdict for the plaintiffs, defendant ap- said machine before the making of said warpealed.

ranty.” To this the plaintiffs excepted. DICKINSON, J.

At the request of the plaintiffs the court inThis action was brought to recover the amount structed the jury as follows: "I charge you that of a promissory note made by the defendant to the where a general warranty is given on the sale of plaintiffs for part of the purchase-price of a har- a machine, defects that were apparent at the vester purchased by the former from the latter. time of making of the bargain, and were fully The making of the note is not in issue; the only known to the purchaser, cannot be relied upon defense asserted being in the nature of a counter- as a defense to a note given for such machine, claim for damages from an alleged breach of war- when the purchaser has such knowledge at the ranty, on the part of the plaintiffs, in respect to time of giving the same. (2) If you find that the harvester.

the machine was taken on trial under å contract By his answer the defendant avers that he to purchase, and that after having fully tried it first took the machine on trial, and upon the the defendant gave his note therefor, he cannot trial it proved to be unsatisfactory and would not offset against any such note damages arising do good work, and that he notified the plaintiffs to from any alleged breach of warranty against detake the machine away; whereupon the plaint- fects known to the defendant at the time of iffs promised and agreed with the defendant to settlement and giving of the note.” put the machine in good order; to furnish cer- The court further instructed the jury in the tain parts of the machine new, and warranted following language: “A vendor may warrant the machine to be well made, of good material, against a defect that is patent and obvious. * * durable, and not liable to break or get out of * * You sell me a horse, and you warrant that order; that it would cut and elevate grain as horse to have four legs, and he has only three. well as any other machine, and was in all re- I will take your word for it. [The court then' spects a first-class machine, and capable of doing read in the hearing of the jury the following first-class and satisfactory work as a harvesting from Addison on Contracts : When a general machine; relying upon which promises, agree- warranty is given on a sale, defects which were ments and warranties, defendant purchased the apparent at the time of the making of the barmachine giving the note in question.

gain, and were known to the purchaser, cannot The answer further alleges that the plaintiffs be relied on as a ground of action. If one sells refused to put the machine in good order, or to purple to another and saith to him, This is scarfurnish new parts for the machine, and sets forth let,' the warranty is to no purpose, for that other a breach of the terms of the warranty.

may perceive this; and this gives no cause of By a reply the plaintiffs put in issue the mak- action to him. To warrant a thing which may ing of a warranty, as well as the agreement to be perceived at sight is not good.' Gentlemen, furnish new parts for the machine. The evi- that is not the law of this State." dence on the part of the defendant tended to The court erred in these instructions to the prove that he got the machine for trial before jury. It has always been held that a general the commencement of the harvest of 1878; that warranty should not be considered as applying it did not work well, although he used it to cut to or giving a cause of action for defects known about seventy acres of grain; that he often made to the parties at the time of making the complaint to the agents of the plaintiffs, who warranty, and both the weight of author. urged him to keep the machine, and do the best ity and reason authorize. this proposition, he could with it; and that after harvest the víz: that for representations in the terms or form ugents of the plaintiffs represented that it was of warranty of personal property no action will as good a machine as there was in the market, lie on account of defects actaully known and unand he would make it so; that it was all right, derstood by the purchaser at the time of the bar. and would do as good work as any machine in gain. Margetson v. Wright, 7 Bing. 603; Dyer market, and it should be fixed up in first-class v. Hargrave, 10 Ves. Jr. 506; Schuyler v. Russ, 2 order, with the new parts referred to in the an- Caines 202 ; Kener v. Harding, 85 Ill. 264; Wilgwer; that the defendant purchased the machine liams v. Ingram, 31 Tex. 300; Marshall v. Drawthen, and gave the note, relying, as he testifies, horn, 27 Ga. 275 ; Shewalter v. Ford, 34 Miss. upon the representations made. The evidence 417, Brown v. Bigelow, 10 Allen, 252; Story on Cont., 8830; Benj. on Sales (2d ed.), 502; Chitty Smith v. Tracy, 36 N. Y. 79; Schuchardt v. Alon Cont. (11th Am. ed.) 644.

lens, 1 Wall, 359; Upton v. Suffolk, Co. Mills, 11 A warranty, for the breach of the condition of Cush. 586; Boothby v. Scales, 27 Wis. 626 ; which an action ex contractu for damages can be Ahern v. Goodspeed, 72 N. Y. 108; Murray u. maintained, must be a legal contract, and not a Brooks, 41 Iowa. 45. In the case of such an agent mere naked agreement. It must be a represen- engaged in selling harvesters without proof of tation of something as a fact, upon which the express authority to warrant, the court will prepurchaser relies and by which he is induced, to sume such authority. some extent, to make the purchase, or is influ- The order refusing a new trial is reversed and enced in respect to the price or consideration. a new trial is awarded. Oneida Manuf. Society v. Lawrence, 4 Cow. 440; Lindsey 0. Lindsey, 34 Miss. 432; Blythe v. Speake, 23 Tex. 429; Adams v. Johnson, 15 Ill.

SUPREME COURT OF MINNESOTA. 345; Ender v. Scott, 11 id. 35; Hawkins v. Berry, 5 Gíl. 36; 2 Add. on Cont. 626 (Morgan's ed.)

FLYNN V. MESSENGER. In the nature of things one cannot rely upon the truth of that which he knows to be untrue;

July 29, 1881. and to a purchaser fully knowing the facts in re- The common-law rule, that a married woman living spect to the property, misrepresentation cannot

with her husband is presumed to have authority from

him to order such goods or services as are ordinarily have been an inducement or consideration to the required for family use, is not changed by the statutes making of the purchase, and hence could have regulating the rights and liabilities of married women. been no part of the contract. It has often been

If the party dealing with the wife knows she is a marsaid that a general warranty may cover patent

ried woman living with her husband, and the order is of

a character to indicate that it is for the benefit of her defects, and it has led to some misapprehension husband's family, he is bound to presume that she is of the law. The proposition is strictly true, but

acting for her husband, and cannot hold her personally

liable unless she especially agrees to become so. The as was said by the court in Marshall v. Draw horn,

employment of a seamstress for ordinary domestic supra, it is "confined to those cases of doubt and service in and for the benefit of the husband's family, difficulty where the purchaser relies on his war

held, prima facie, to be within the rule respecting the

presumptive agency of the wife. ranty and not on his judgment.” It has no application to a purchaser who knows the defects in Appeal from judgment of municipal court, the property and the untruthfulnesss in the ven- city of St. Paul. dor's representations. We do not, however,

CLARK, J. mean to say there may not be a warranty against By the common law, a married woman living the future consequences or results from even with her husband is presumed to have authority known defects. The fact that a portion of the from him to order such things as are ordinarily charge given at the request of the plaintiffs required for family use. The rule is laid down stated correctly the legal principle under consid- by Lord Abinger, in Emmett v. Norton, 8 Car. & eration, cannot affect the result. In fact, that P. 506, in these words : “Where a wife is living the instructions to the jury were thus inconsist- with her husband, and where, in the ordinary ent, and calculated to mislead or confuse rather arrangements of the husband's household, she than inform or guide the jury, is in itself suffi- gives orders to tradesmen for the benefit of her cient reason why the verdict should not stand. husband and family, and these orders are proper Vanslyck v. Mills, 34 Iowa, 375; C. B. & Q. R. Co. and not extravagant, it is presumed that she v. Payne, 49 Ill. 499.

has the authority of her husband for so doing. For the reasons already indicated, a new trial This rule is founded on common sense, for a must be awarded, and it is unnecessary to con- wife would be of little use to her husband in sider whether the verdict is supported by the their domestic arrangements if she could not evidence presented in this case ; nor is it neces- order such things as are proper for the use of a sary to consider some other alleged errors involv- house and for her own use without the interfering no doubtful questions of law, and which are ence of her husband. The law, therefore, prenot likely to recur upon another trial. Antici- sumes that she does this by her husband's pating, however, upon the retrial, as in the for-authority.” mer one, the question may arise as to the au- There can be no doubt (especially under the thority which an agent empowered to sell machin- statutes of this State, conferring upon a mar. ery of the kind in question may be presumed to ried woman the power to transact business, and possess in respect to the warranting of the make contracts which shall bind her) that it is property, in the absence of any proof of express perfectly competent for the wife to bind herself authority we will pass upon the question as it is personally to the payment for such orders; but presented by the facts in this case, For the pur- if the party dealing with her knows she is a poses of this case it is sufficient to say that an married woman, living with her husband, and agent engaged for his principal in the business the order is of a character to indicate that it is of selling personal property is presumed to be intended for the benefit of the family, he is authorized to sell with warranty. It may be bound to presume that she is acting for her however, that if the property be of a kind not husband, and not on her account, and cannot usually sold with warranty, no such presumption hold her personally liable unless she expressly will be exercised. Nelson v. Cowing, 6 Hill, 336; | agrees to become so.

The principle is laid down in Powers 0. in behalf of the husband; nor does it appear Russell, 26 Mich. 179, in the following language: that the husband disputes his liability on the “Now, if he (the tradesman) knew that she was contract. What was said with reference to the a married woman, living with her husband, and ownership of separate property by the defendthe goods were not of a character to indicate that ant, and the payment of the plaintiff from the they were bought for other than family use in the proceeds of the sale, after the contract of emhusband's family, and she did not claim affirma- ployment was made, (which was, for reasons tively to be purchasing them on her individual already stated, binding on the husband,) and account, the natural inference would be that she while it was being performed, was not, we was purchasing them on her husband's accourt, think, sufficient to shift the obligation of payand for the use of his family, and she could not ment from the husband to the defendant, or to be made individually liable without an express render her liable. It is to be regarded, under agreement to become so, or that the goods should the circumstances, as a mere voluntary promise. be charged or the credit given to herself.”

We also think it is to be assumed, prima facie at We do not think the statutory provision regu; least, in the absence of anything in the proceedlating the rights and liabilities of married ings or proofs to the contrary, on grounds of women, have changed the obligation of the hus- common knowledge, that the service performed band to support and maintain the family, nor by the plaintiff was

by the plaintiff was an ordinary domestic taken away from the wife the presumption of service, such as the wife might reasonably emauthority, arising out of the marital relation to ploy for the benefit of the family. act in his behalf in supplying the ordinary It follows from these views that the motion to wants of his household. We have been referred dismiss, when the plaintiff rested, should have more especially to section 3, c. 69, Gen. St. 1878, been granted, and it is, therefore, unnecessary as changing the common law so as to make the to consider alleged errors in the instructions to wife individually liable for goods ordered by her the jury. The judgment appealed from is for domestic use, unless she has express author- reversed, and a new trial granted. ity from her husband and makes the purchase expressly on his account; but we do not think

SUPREME COURT OF VERMONT. 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

SQUIRES v. SQUIRES. legislature would have declared it in express terms, and not left it to be brought about by An agreement of separation, signed by the husband implication from other provisions not directed and the father of the wife, as her agent, is a good defense to the rules of evidence connected with the

to a petition for a divorce, alleging intolerable severity,

brought two years after the said agreement, and after it marital relation, or the presumption of the com- had been substantially complied with by the husband, mon law arising therefrom.

the same being entered into after the alleged cause had These principles apply with equal force to the


Although strictly the deed of separation is not a condoemployment by the wife of servants for ordin

nation of alleged wrongs, yet under the circumstances, ary domestic service in and for the benefit of the the court think the parties should be held to their own husband's family, and dispose of this case. The

settlement. plaintiff's case rested exclusively upon her own Libel for divorce. The libellee moved to distestimony. She testified, in substance, that the miss the petition.

miss the petition. The motion was in writing, defendant engaged her as a seamstress to sew at claiming that the written agreement signed by her residence, where she lived with her husband the libellee and the father of the libellant, actand their children ; that she went there in puring as her agent, was a good defense, especially suance of such engagement and sewed for twen- as he had performed his part of the contract, in ty-four days upon clothing for the children; paying all that he agreed to, and delivering the that she knew at the time of the employment property, etc., to the libellant. The petition the defendant was a married woman, living was dated April 24, 1879; the deed of separawith her husband and family; that the defend tion, September 17, 1877, This agreement, in ant agreed with her as to the amount of her effect, was that the said husband and wife had wages, but did not mention her husband or state mutually contracted to live separate and apart; who would

that while she was at work that the libellee was to give up and surrender in the family the defendant told her she had all property to the libellant which belonged to her property of her own, and her husband had


before marriage, and pay her $500 in money, erty, and that she was going to sell some land, and $100 for the benefit of her daughter. The and when she did she would pay her, and that wife was to release all her right or interest in two months after the completion of the service the homestead, dower or thirds; and to support she paid her four dollars on account thereof. herself. The agreement was sealed. The other

It does not appear from the evidence that, at parts of it sufficiently appear in the opinion of the ti ne of the employment, any express agree

the court. It was conceded that the libellant ment was made that the defendant should be had paid over the money according to the conrespr 1sible, as principal, for the wages, or that tract; but it was claimed that he had not delivanyt iing occurred to take the case out of the ered all the furniture. Tne parties had not ordinary presumption that the employment was lived together after the accruing of the alleged



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