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denial of an opportunity to those assessed to be heard and permitted to obtain the deductions and corrections allowed by the general system of assessments. Albany City Nat. Bank v. Maher, 9 Fed. Rep. 884. (3) The general rule has often been declared that the Legislature may validate retrospectively any proceedings which they may have authorized in advance; and it is immaterial that such legislation may operate to divest an individual of a right of action existing in his favor, or subject him to a liability which did not exist originally. In a large class of cases this is the paramount object of such legislation. (4) If it was within the power of the Legislature to provide for the collection of a tax by a system which requires the tax-payers to pay in advance of an opportunity to be heard, but permits them to have a subsequent hearing and to obtain restitution, if restitution ought to be made, the validating act was constitutional. Undoubtedly it is beyond the power of the Legislature to validate the acts of taxing officers of a character which cannot be justified as an exercise of the taxing power; as where a part of the property in a taxing district should be assessed at one rate and a part at another, or if persons or property should be assessed for taxation in a district which did not include them. And it is stated in general terms, by a text writer of high authority, that a validating act cannot cure the illegality of an assessment made without any notice to the persons interested. Cooley Taxn. 227, 228. The case of Marsh v. Chesnut, 14 Ill. 223, and Billings v. Detten, 15 id. 218, are referred to as sustaining the proposition. These were cases where the curative act was held bad for the same reason that the curative act of 1881 was held to be nugatory by this court, because it did not provide for an assessment upon notice to the taxpayer, and thus perpetuated the vice of the original assessment. The present act, as has been said, is framed to obviate this objection. No adjudged case has been cited by counsel or has met the attention of the court where such an act has been considered. It is asserted in many cases that notice and an opportunity for hearing of some description are matters of constitutional right; but it has nowhere been declared that it is indispensable that the hearing should be one in advance of the collection of the tax. The operation of the present act is to preserve substantially to the tax-payers the right of which they were originally deprived, to give them an opportunity to question the justice of the assessment, and to restore to them the sums which were illegally collected of them. In view of the large and almost unlimited discretion which resides in the Legislature to regulate the mode and conditions of taxation, it is believed to be valid and effectual to legalize the proceedings here. (5) In judicial proceedings due process of law requires a hearing before condemnation, and judgment before dispossession; but when property is appropriated to or under the power of taxation, different considerations from those which prevail between individuals obtain. It is not indispensable that a hearing be secured before assessment or before collection of the tax; but it is sufficient if reasonable provision is made for a hearing afterward, a correction of errors, or a restitution of the tax or part of a tax unjustly imposed. Cir. Ct., S. D. New York, July 23, 1884. Williams v. Board of Supervisors of Albany County. Opinion by Wallace, J.

REMOVAL OF CAUSE-ACT OF 1875-CITIZENSHIP— CONTROVERSY.-Where all the parties on the one side are residents of different States from any of the parties on the other side, a suit containing but a single controversy may be removed by either one of the plaintiffs or defendants, under the second clause of section 2 of the act of 1875; or by all the plaintiffs or

by all the defendants jointly under the first clause. (2) The natural import of the language of one part of a statute should not be narrowed by construction though it overlap in part the provisions of another part of the same statute, where both will still have a distinct and exclusive purpose to subserve. (3) Only the first clause of the above section embraces cases of a single plaintiff and defendant; only the second clause embraces cases in which removable and non-removable controversies are joined in the same suit; both clauses cover cases having several plaintiffs or defendants, and only a single controversy, and that a removable one. If the point raised by this motion has not been expressly decided, it has been at least suggested by the Supreme Court, without deciding the question, and without any adverse intimation, that a single controversy might possibly be removable under the second clause as well as under the first. Removal Cases, 100 U. S. 470. The decisions upon the second clause are not inharmonious with the construction here given, and any different construction would involve anomalies altogether inadmissible. In the leading case of Hyde v. Ruble, 104 U. S. 407, the Supreme Court, in defining when a cause is removable under the second clause, make no mention of the existence of several controversies in the suit as one of its conditions. The court say: "To entitle to removal under this clause, there must exist in the suit a separate and distinct cause of action, in respect to which all the necessary parties on one side are citizens of different States from those on the other." (4) Where a controversy is a removable one under the United States Constitution by reason of the citizenship of the several plaintiffs and defendants in different States, the individual right of either defendant to remove the cause has been recognized by Congress in the second clause of section 2 of the act of 1875; and this clause should therefore be construed as embracing suits having but a single controversy, in furtherance of the apparent general intent of the act of 1875, to provide for the removal of causes between individuals up to the limits of the undoubted intent of the constitution, since the language of the second clause is broad enough to include this, and there is no other clause sufficient for that purpose. It is an unsettled question whether the phrase "controversies * * * between citizens of different States" means a controversy which is wholly between citizens of different States, or whether it may include controversies in which some only, but not all of the parties on opposite sides are citizens of different States. The question was elaborately argued, but not decided in the case of the Sewing Machine Companies, 18 Wall. 553. It was again referred to in Blake v. McKim, 103 U. S. 336, 338. In the Removal Cases, 100 U. S. 479, Justices Bradley and Swayne expressed the opinion that it embraces every controversy in which any of the opposing parties are citizens of different States; and entertaining that view they differed from the majority of the court, and held that the word "party," in the first clause, should have a wider construction than the word "plaintiff" or "defendant " under the judiciary act, and should include any one of several plaintiffs or defendants, and not be limited to all jointly. Cir. Ct., S. D. New York, July, 1884. Mutual Life Ins. Co. v. Champlin. Opinion by Brown, J.


COVENANT-PLEADING-MINING SPECIFIC AMOUNT OF ORE-NON-EXISTENCE OF ORE.-In covenant, if non est factum is not pleaded, the plaintiff need offer no

*Appearing in 46 N. J. L. Reports.

Where a

proof of the execution of the instrument. mining lease stipulated for raising annually a specified quantity of ore or to pay a stipulated rent, held, under the provisions of the instrument in question, that the non-existence of the quantity of ore agreed to be taken out was no defense to an action for the rent. This construction is in all respects in harmony with the decided cases; for in all the precedents the distinction is drawn between an agreement to pay a royalty, which is held to be dependent on the existence of the ore out of which it is to arise, and an agreement to pay a fixed sum in lieu of such royalty, in which latter condition of things such rent is held to be collectible irrespectively of the state of the mine. The rule of law upon this subject is accurately stated by Mr. Wharton in his treatise on Contracts. 1 Whart. on Cont., § 298. This author says: "But a specific agreement to pay rent is not vacated by the fact that the property leased turns out, without the fault of the lessor, of far less value than was supposed. This, as is elsewhere seen, is the case with leases of improved land where the improvements have been destroyed by fire, and the same rule is applied to leases of mines when the mine turns out to be unworkable, which if there be a lease covenanting to pay a fixed rent is no defense on the covenant. On the other hand, where the rent is payable in the shape of a royalty on minerals in the soil, no royalty is payable when no minerals are found." The same principle is propounded and illustrated in the following authorities, viz.: Ridgway v. Sneyd, Kay, 627; Phillips v. Jones, 9 Sim. 519; Marquis of Bute v. Thompson, 13 M. & W. 487; Jefferys v. Fairs, L. R., 4 Ch. Div. 448. Wharton v. Stoutenburgh. Opinion by Beasley, C. J.

DAMAGES-EJECTING PASSENGER-INJURY TO FEELINGS. A passenger upon a ferry boat, who has paid his fare and is forcibly and unlawfully ejected by an agent of the company, is entitled by way of damages to a reasonable compensation for the indignity and consequen. injury to his feelings on being thus treated. At the trial the judge charged that if the jury should find that the plaintiff did pay his fare, the damages, under the evidence and pleadings in the cause, should be only compensation for his loss of time for the period that he was detained from his business, and the money he paid, or its equivalent, to go across the river at the Market street (another) ferry, and the injury (if any) to his clothing, and other actual damages (if any), and that it was not a case, under the evidence and pleadings, in which they legally could give what are termed punitive, vindictive, or exemplary damages, and that there was no evidence that the plaintiff was injured in his person. The plaintiff's counsel excepted to this charge, and requested the court to instruct the jury that if they should find that the plaintiff had paid his fare before he was ejected from the boat, he would be entitled to be awarded a fair and reasonable compensation for the indignity and consequent injury to his feelings on being thus treated, but the court refused, and again charged on the subject of damages as above stated. The charge was erroneous; the judge should have charged as requested. The judgment should be reversed. Allen v. Camden and Philadelphia Ferry Co. Opinion by Runyon, Chan.


EVIDENCE-TERMS OF ART-MAY BE EXPLAINEDLATENT AMBIGUITY.-(1) In cases where terms of art or science occur, in mercantile contracts where a peculiar language is used, employed by those only who are conversant in trade and commerce, and all other

instances in which words, besides their general, com mon meaning, have acquired by custom or otherwise, a well known, peculiar, idiomatic meaning in a par ticular country or a particular society, the sense and meaning of such language or words may be explained by evidence dehors the instrument itself. (2) Where the contract was that S. was to saw lumber for H. "at the price of two dollars per thousand feet to include thirty feet logs," held, that the "per thousand feet" in the written contract is a latent ambiguity not appearing in the face of the instrument and may be explained by oral proof. 1 Greenl. Ev., § 278; Gunn v. Clendenin, 68 Ala. 294; Chambers v. Ringstaff, 69 id. 140. In the case of Drake v. Goree, 22 Ala. 409, Justice Goldthwaite employed the following clear and forci ble language: "The contract may relate to the time required for the making of an article, the process of which is known only to those actually engaged in its manufacture; to a thousand matters of art or skill, where truth is only to be obtained through the medium of experts; and in cases of this character, is the court blindly to grope its way to conclusions for no other reason than because the construction of a writ ten instrument is involved, or to obtain through testimony that information upon which alone it can decide understandingly? Upon principle as well as authority, we entertain no doubt that in all cases where a written contract, although complete in itself, contains a term which it is impossible for the court to con strue without the aid of evidence aliunde, it is proper to resort to evidence for that purpose." Smith v. Aiken. Opinion by Stone, J.

EMINENT DOMAIN-TRESPASS-INJUNCTION -COMPENSATION-LACHES-A court of equity has jurisdiction to restrain the commission or continuance of trespasses to lands. But when as in the present case, the title is purely legal, and the property not of peculiar value, the court will not intervene unless the remedy at law is inadequate, or there is a necessity for intervention to prevent irreparable injury. M. & W. P. R. Co. v. Walton, 14 Ala. 207; Burnett v. Craig, 30 id. 135; Brooks v. Diaz, 35 id. 599; Nevers v. Myer, 52 id. 198; Boulo v. R. Co., 55 id. 480. "There must be," says Judge Story, "such an injury, as from its nature is not susceptible of being compensated by damages at law, or such as from its continuance or permanent mischief must occasion a constantly recurring griev ance, which cannot be prevented otherwise but by an injunction." 2 Story Eq., § 925; see also High on Inj., § 697. There is no authority which authorizes the interference of the court to prevent the mere taking possession of lands and holding them vi et armis; nor is there any authority which will justify interference be cause of the mere continuance of a tortious possession. The entry and possession however long it may continue, forms but one grievance, a single and indivisi ble cause of action, capable of full redress by legal remedies. Ballantine v. Town of Harrison, 37 N. J. Eq. 560; S. C., 45 Am. Rep. 667. The general rule is, that a corporation having the right to take lands in the exercise of the power of eminent domain, if it enters upon them without making just compensation to the owner, a court of equity will intervene for the protec tion of the owner until just compensation is made, if applies seasonably. High on Inj., § 622; Pierce on Railroads, 167-68. But the application must be made seasonably-the right to relief is lost by laches in seeking the protection of the court. High on Inj., § 643. In Bassett v. Salisbury Manfg. Co., 47 N. H. 439, the court said: "Another principle which is held to govern the discretion of the court in these cases is that the application for injunction must be seasonably made; and therefore if it appears that the owner of the property supposed to be affected by a nuisance

has allowed it to exist for several years, with a knowledge of its existence and without any objection, and especially if he has acquiesced in the claim of another to use and enjoy the subject of complaint as of right, and to expend money upon the strength of it, with his knowledge and without objection, courts of equity will decline to grant an injunction, but leave him to his remedy at law." It was said in Goodin v. Cincinnati R. Co., 18 Ohio St. 169: "Considerations of public policy, as well as recognized principles of justice between parties, require that we should hold that the property of the owner cannot be reclaimed, and that there only remains to him a right of compensation." This is the doctrine of all the courts, and it is rigidly applied even by those courts which interfere most liberally for the protection of the owners of lands against the unlawful entry of railroad and similar corporations. Binney's case, 2 Bland Ch. 99; M. & E. R. Co. v. Prudden, 20 N. J. Eq. 530; Easten v. N. Y. & L. B. R. Co., 26 id. 359; Traphager v. Mayor, 29 id. 206. Western Union Tel. Co. v. Judkins. Opinion by Brickell, C. J.


-Equity will interfere to rectify a misdescription of certain lands conveyed in a mortgage executed by a married man and his wife, and intended by them to embrace their homestead; the mortgage being executed with all the formalities required by the statute to convey the homestead. Styer v.Robbins,76 Ind.547; Hamar v. Medskar, 60 id.413; Carper v. Munger, 62 id. 481; Houx v. County of Bates, 61 Mo. 391. (2) Equity will not reform a conveyance by a femme covert of her statutory separate estate or homestead when the rectification requires an order at the hands of the court for re-execution, or such reformation operates strictly as the creation of a new conveyance. Knowles v. McCamley, 10 Paige, 342; Purcell v. Goshorn, 17 Ohio, 105; Lead. Cas. Eq. 1002; 3 Pom. Eq. Jur., § 1375. The rule may be conceded to be generally settled, both in England and in this country, that a court of equity will not entervene to decree the specific execution of an agreement made by a married woman during her coverture. Her only mode of conveying real estate was by uniting with her husband in the solemn proceeding of record known as fine and recovery. Martiu v. Dwelly, 6 Wend. (N. Y.) 9. In a recent case, Jenkins v. Harrison, 66 Ala. 345, decided by this court, where an instrument was held defective and inoperative as a deed for want of delivery, but was deemed good only as a contract to convey by husband and wife, specific performance of it was refused after the death of the husband, against the objection of the surviving wife, as to the homestead of the parties. See also Butts v. Broughton, 72 Ala. 294. The reason upon which the two cases are based is essentially the same-that a married woman has no authority, under the statutes of this State, to enter into an executory agreement to sell either her separate estate under the statute, or the homestead occupied by herself and husband. No attempted conveyance of either is binding on her unless it is executed with due formality and in substantial conformity to the requirements of the statute. Waddell v. Weaver, 42 Ala. 293; Bish. on Marr. Wom., § 601; Cross v. Everts, 28 Tex. 523; Thomp. Homest. & Exemp., § 491. The wife possesses no authority to convey except in the mode prescribed by the statute. Her power to sell and convey is a statutory power, and a court of equity has no jurisdiction to aid the defective execution of such a power by supplying elements of form made prerequisite by statute to its valid execution. McBryde v. Wilkinson, 29 Ala. 662; Tiernan v. Poor, 19 Am. Dec. 225; note, p. 230; Blythe v. Dargin, 68 Ala. 370, supra; Gebb

v. Rose, 40 Md. 387. For these reasons equity will refuse to enforce the specific performance of a married woman's contract to convey real estate, whether made alone or by uniting with her husband, where her power to convey is derived from the statute. Nor will it any more intervene to give effect to an instrument executed by her which is inoperative for want of compliance with a statutory requirement. Pilcher v. Smith, 2 Head (Tenn.), 208; Carr v. Williams, 10 Ohio, 305; Cont. of Mar. Wom. (Kelly) 100-105; Holland v. Moon, 39 Ark. 120. Gardner v. Moore. Opinion by Somerville, J.


DAMAGES- UNINTENTIONAL TRESPASS. trespass is the result of inadvertence or mistake, and there is no intentional wrong, the value of the property when first taken must govern; or if the conversion sued for was after value had been added to it by the work of the defendant, he should in such cases be credited with this addition. Defendant peaceably entered on the premises in controversy under a bona fide claim of title, and cut and removed the grass growing thereon. The title having beeu subsequently adjudged to be in the plaintiff, held, in an action by him for the conversion of the hay, that the proper measure of his damages was the value of the standing grass, and not the value of the hay after it was removed. In Washburn v. Cutter, 17 Minn. 361 (Gil. 335), the plaintiff was the owner and constructively in the possession of pine lands which were unoccupied, and upon which defendant entered and cut and carried away pine logs and timber, under a claim of title based upon a tax deed which was in fact void. The court held that such entry and removal of the timber did not constitute a disseisin or adverse possession, and that defendant was to be regarded as a trespasser, and plaintiff entitled to follow and recover the logs in replevin. Whether if he had waived his right to reclaim the property itself, and had sued for damages in trover or trespass, he would have been entitled to have recovered the full value of the logs, was not considered. Had that issue been involved in the case, its determination might have been influenced by the character of defendant's claim and the nature of his title, as well as the circumstances of the alleged trespass, as bearing on the good faith of the transaction. Grant v. Smith, 26 Mich. 201; Winchester v. Craig, 33 id. 221. In Nesbitt v. Lumber Co., 21 Minn. 492, logs appeared to have been wrongfully cut and carried away from plaintiff's land without his permission, and without any color or claim of title, and this court held that plaintiff was entitled to recover in trover the full value of the logs which had been driven into the boom and sold to the defendants, who were innocent purchasers. The defendants could not claim to be credited with the additional value which the wrong-doers had imparted to the logs by acts involving a willful trespass upon the rights of plaintiff. Had the value of the logs been enhanced by the expenditure of further labor thereon by defendants in good faith before demand by plaintiff, as to such additional value, a different question would have been presented. The case of Nesbitt v. Lumber Co. is approved and followed by the Supreme Court of the United States in Bolles Wooden Ware Co. v. United States, 106 U. S. 433. The court in that case also declares that the weight of authority, both in this country and in England, is that where a trespass is the result of inadvertence or mistake, and the wrong is not intentional, the value of the property when first taken must govern; or if the conversion sued for was after value had been added to it by the

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work of the defendant, he should in such case be credited with this addition. Winchester v. Craig, 33 Mich. 205. This rule is reasonable, and is graunded in plain principles of justice, and it is clearly applicable to the case at bar. Order affirmed. Hinman v. Heyerstadt. Opinion by Vanderburgh, J. [See 36 Am. Rep. 770; 29 id. 293; 33 Eng. Rep. 639.-ED.]

[Decided June 30, 1884.]


AGENCY AGENT.-Plaintiff sent money to defendant, a commission merchant, with which to buy wheat for it, writing to him, "We will want you to buy sound wheat; do not want damp or musty grain;" and he accepted the employment. Held, that this imposed on defendant only the duty and liability of an agent, and he is not liable, without proof of want of proper care or skill, for the fact that the wheat proved to have been damp when purchased. The contract was one of employment. It created the relation of principal and agent. In the absence of express agreement or a usage of the business modifying them, the law attaches to the relation certain rights, duties and liabilities. On the part of the agent he is to obey the instructions of his principal, and to exercise in his employment reasonable skill and ordinary diligence; that is, the degree of skill ordinarily possessed and employed by persons of common capacity engaged in the same business, and the diligence which persons of common prudence are accustomed to use about their own business and affairs. Story Ag., § 183. For a loss to his principal from neglect of these duties he is liable. But he is not an insurer of success in the business. He does not, by merely accepting the employment, guarantee his principal against such incidental losses as may occur in the course of the employment, "because," says Mr. Justice Cooley, in Page v. Wells, 37 Mich. 415, "these are incident to all avocations,and no one by implication of law ever undertakes to protect another against them." If the principal desires to hold his agent liable for such losses he must make his contract of employment accordingly. Lake City Flouring Mill Co. v. McVean. Opinion by Gilfillan, C. J. [Decided July 18, 1884.]


EVIDENCE-CONTRACTING PARTY CANNOT BE SHOWN BY PAROL WARRANTY BREACH OFFER TO RETURN. It is incompetent to prove by parol that a written contract was made on behalf of one not named in it, unless there be words (such as “agent," "trustee,' or the like) affixed to the name of the contracting party, which may indicate that he is contracting for another. Although the authorities are not in harmony on the point, the weight of them is to the effect that it cannot be done by parol. Ewell's Evans Ag. 248, and note. A departure to some extent from this rule was established in this State by the cases of Pratt v. Beaupre, 13 Minn. 187 (Gil. 177), and Bingham v. Stewart, 14 Minn. 214 (Gil. 153), followed by Deering v. Thom, 29 Minn. 120, in which the court acted upon the proposition that when words (such as "agent," "trustee," or the like) which may be either descriptive of the person or indicative of the character in which he contracts, are affixed to the name of a contracting party, they are prima facie descriptive only, but it may be shown by extrinsic evidence that they were used to determine the character in which the party contracts. The same proposition is stated in 1 Pars. Cont. 54, that it may be determined "in each instance and with whatever technical inaccuracy the signature is made, from the facts and the evidence, that a party is an agent or a principal in accordance with the intention of the parties to the contract, if the words are sufficient to bear the construction." In other words, when upon the face of the contract it is doubtful with what purpose the terms "ageut," "trustee," or the

like were used, it may be shown by parol. The cases we have referred to go as far as is safe in that direction. Where in a warranty is this clause, "If said machine will not bear the above warranty it is to be returned after a trial of two weeks to the place of delivery, and another substituted that will answer such warranty, or the money and notes immediately refunded," the warrantee cannot maintain an action for a breach without returning or offering to return the machine. Rowell v. Olson. Opinion by Gilfillan, C. J.

[Decided July 10, 1884.]

LANDLORD AND TENANT--COVENANTS IN LEASE--ERASURE-CONSTRUCTION.-Parties prepared a lease upon a printed form. In the form was a covenant not to sublet without the lessor's written consent. Following the covenants were conditions, one reserving the right to re-enter in case of subletting without the lessor's consent. Before executing they erased the clause containing the covenants, but left that containing the condition unchanged. Held, that the erasure of the covenant did not raise an inference that they intended the condition to be of no effect. Pond v. Holbrook. Opinion by Gilfillan, C. J. [Decided July 10, 1884.]


OF DIRECTORS-DUTY OF.-Subject to some extent to an exception in favor of the right of the State to amend the charter of a private corporation, under an express reservation of authority to do so, or in the exercise of its police power, the rule is that the amendment of snch charters, to become binding and effectual, must be accepted on the part of the corporators. Altera tions in such charters, which are not fundamental,and are authorized by the Legislature, may be effectually accepted by a majority of the stockholders; that is to say, by a majority per capita, when the right to vote is per capita, and by a majority of stock, where each share of the stock is entitled to one vote. Alterations which change the nature and purposes of the corporation, or of the enterprise for which it was created, are fundamental, while those which work no material change are not fundamental. In support of these propositions we cite the following authorities: H. & N. H. R. Co. v. Croswell, 5 Hill, 383; Stevens v. R. & B. R. Co., 29 Vt. 546; Curry v. Scott, 54 Penn. St. 270; K. R. & R. I. R. Co. v. Marsh, 17 Wis. 13; Pierce, R. R. 66 et seq.; Nugent v. Sup'rs, 19 Wall. 241; Everhart v. W. C. & P. R. Co., 28 Penn. St. 339; N. H. & D. R. Co. v. Chapman, 38 Conn. 56; Joy v. J. & M. Plankroad Co., 11 Mich. 156; Clearwater v. Meredith, 1 Wall. 25; Union Locks & Canals v. Towne, 1 N. H. 44; Martin v. Railroad Co., 8 Fla. 382; Witter v. M., O. & R. R. R. Co., 20 Ark. 463; Hester v. M. & C. R. Co., 32 Miss. 378; Winter v. Muscogee R. Co., 11 Ga. 438; Hoey v. Henderson, 32 La. Ann. 1069; Banet v. Alton & S. R. Co., 13 Ill. 504; Zabriskie v. H. & N. Y. R. Co., 18 N. J. Eq. 178; Mowrey v. I. & C. R. Co., 4 Biss. 78; Field Corp., §§ 81, 388. The principle upon which these cases appear to go is that alterations, or as they are sometimes called, amendments, which do not change the nature, purpose or character of a corporation or its enterprise, but which are designed to enable the corporation to conduct its authorized business with greater facility, more beneficially or more wisely, are auxiliary to the original object, and that therefore when one becomes a stockholder, he impliedly assents that such alteration or general amendment may be made. Stev ens v. R. Co., supra; N. H. & D. R. C. v. Chapman, supra; Banet v. A. & S. R. Co., supra; H. & N. H. R. Co. v. Croswell, supra; Kenosha R. Co. v. Marsh, supra; Joy v. J. & M. Plank-road Co., supra. We may add what appears to be an obvious consideration, that

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if no alteration or amendment of a corporate charter can be made, even in matters of administrative detail, or as to the means and agencies through which the corporate enterprise shall be carried on, except with the consent of every stockholder, the result would be not only great public and private inconvenience, but in many cases a complete practical failure of the enterprise itself. Certainly this is not in accordance with the understanding nor the practice of the courts, of the profession, or of those who have been engaged in carrying on our great corporate undertakings. The alteration proposed in the present case, by increasing the number of directors from five to nine, is clearly not fundamental within the definition above given and sanctioned by the authorities cited. It in no way changes the nature or purpose of the boom company, or of the enterprise for which it was created. It is a change respecting modus operandi merely; a change, not of the nature or purpose or character of the company, or of the company's enterprise, but a change of the instrumentalities and agency-the machinery by which that purpose is to be effected and that enterprise carried on. Everhart v. W. C. & P. R. Co., supra, was a case in which a charter amendment providing for the election of three additional managers, i. e., directors, was upheld. N. H. & D. R. Co. v. Chapman, supra, was a case of an amendment authorizing two of the directors to be appointed by the city of New Haven, a subscriber for stock. Joy v. J. & M. Plank-road Co., supra. It is argued that if the four additional directors are elected it will be in the power of the board, and the board will manage the business of the corporation for the private advantage of some of the directors, and against the interest of the corporation and of the stockholders, and particularly of this plaintiff. We see no reason why this might not be done with five, the present number of directors, The plaintiff owns a little over one-third of the shares. Although this makes him a large stockholder, he is still in the minority. But the danger apprehended is com-mon to all corporations, and the remedy lies, not in withholding the power to make amendments to the charter, but in enforcing the responsibility of the directors for abuse of trust. They have no right to run the corporation for the individual benefit of any of their number, to the detriment of the stockholders, and if they do, or attempt to do this, the law furnishes a remedy, as in other cases of abuse of trust or disregard of legal duty. Pierce R. R. 43, and cases cited; Ewell's Evans Ag. [276]. Mower v. Staples. Opinion by Berry, J. [Decided July 9, 1884.]

DAMAGES BREACH OF EXECUTORY CONTRACT PROFITS.-Upon the breach of an executory contract, whereby the injured party is prevented from perform ing on his part, and from realizing a profit which was contemplated by the terms of the contract as a result of the performance of it, a recovery of damages may be had equal to the profit which would have accrued directly from the performance of the contract. Morrison v. Lovejoy, 6 Minn. 319 (Gil. 224); Fox v. Harding, 7 Cush. 516; Masterton v. Mayor of Brooklyn, 7 Hill, 61; Devlin v. Mayor of New York. 63 N. Y. 8; Royalton v. Royalton & Woodstock Turnpike Co., 14 Vt. 311; McAndrews v. Tippett, 39 N. J. 105; Richinond v. D. & S. C. R. Co., 40 Iowa, 264; S. C., 33 id. 422, 501, 502; Hoy v. Gronoble, 34 Peun. St. 9; Burrell v. N. Y. & Saginaw Salt Co., 14 Mich. 34; U. S. v. Speed, 8 Wall. 77; Cook v. Com'rs Hamilton Co., 6 McLean C. C. 612. But one seeking a recovery must show by proof both his right to recover, and the measure or extent of the loss or injury for which he demands compensation. It was necessary for the plaintiff to prove that he would have sold the land for a

price exceeding $36,000, within the time fixed by the contract, if his authority had not been terminated. It was not necessary however that the evidence should show this to an absolute certainty. Proof establishing the facts in the estimation of the jury to a reasonable degree of certainty would be sufficient. Goebel v. Hough, 26 Minn. 252; S. C., 2 N. W. Rep. 847; Allison v. Chandler, 11 Mich. 542; Chapman v. Kirby, 49 Ill. 211; Simmons v. Brown, 5 R. I. 299. See also cases previously cited. In the cases we have cited, as in this case, the result depended upon facts which were not susceptible of certain, absolute proof, such as the profits which might have accrued from an established mercantile business; what it would have cost to manufacture machinery to construct salt vats; to build a bridge; to erect a court house; to quarry and transport stone during a period of years; to construct a tunnel in the earth; the profit which might have resulted from the cultivation of a farm, or from the manufacture and sale of cloth. A case more precisely like that before us was Alexander v. Breeden, 14 B. Mon. 154. The defendant, the owner of real estate, by contract made the plaintiff his agent to sell it for the price of $2,050. The plaintiff was to have $50 as his compensation. A purchaser called upon the agent and procured a description of the property, the price, and the name of the owner. He then went to the owner and purchased from him for $2,000. The plaintiff sued to recover the $50 agreed upon as his compensation for a sale. The court, reviewing the facts proved, considered that there was no positive testimony that the agent could have made the sale for $2,050, but that the circumstances persuasively showed that he could have done so. A recovery was therefore allowed. When the power of this plaintiff to sell was terminated by the sale of the property by the defendant, thirteen days remained of the sixty days during which, as the proof tends to show, plaintiff had an exclusive right to sell. The market value of the property, as appears by all the evidence, exceeded $36,000, the sum which defendant was to realize from any sale that might be made. Of several witnesses testifying as to value, only one places it as low as $37,500; others make it $45,000 or more, a sum $9,000 in excess of the amount which defendant was to receive out of the purchase price if plaintiff had effected a sale. The evidence tended to show that the land was then rising in value; that the real estate market was active; that property in this vicinity was easily salable for its value; that nearly every piece of property in that vicinity that was put upon the market was readily sold at the time; and that before defendant sold the property the plaintiff had offered it to the same person, who became the purchaser. This evidence was such as might have established the fact, with reasonable certainty, in the minds of the jury, that the plaintiff would have effected a sale for an amount largely in excess of $36,000, if his alleged contract right had not been interrupted, and from it the jury would have been warranted in determining upon some certain sum for which in all proba bility a sale would have been made, and which would have determined the amount of the plaintiff's recovery. Fairchild v. Rogers. Opinion by Dickinson, J.

[Decided July 7, 1884.]


NEGOTIABLE INSTRUMENT--BONA FIDE HOLDER--DEFENSE OF USURY.-A promissory note, to be the subject of sale, must be an existing valid note in the hands of the payee, and given for some actual consideration, so that it can be enforced between the original parties. One who buys it of the payee with knowledge of the

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