NOTES OF CASES. The Washington Law Reporter has a peculiar case, arising under the act of congress of June 1, 1870, relating to divorce, a vinculo, on the ground of desertion.

cure engines, etc., necessary to extinguish fires, is not liable to an individual whose house has been burned, for defect in the execution of such power, nor for any a neglect of duty on the part of fire companies. So in Fisher v. City of Boston, 104 Mass. 87; S. C., 6 Am. Rep. 196, it was held, that in the absence of express statute, municipal corporations are not liable for

In Schell v. Stein, 31 Leg. Intel. 397, it was held, that a deed regularly acknowledged and recorded, and indexed in the separate index appropriate to the book, but not in the general index of all the deed books, is not defectively recorded. This case was distinguished from Speer v. Evans, 11 Wr. 141, where there had been a total omission to index a mortgage. But in Bishop v. Schneider, 46 Mo. 472; S. C., 2 Am. Rep. 533, it was held that a mortgage filed and copied but not indexed at all is notice to subsequent purchasers, although it was provided by statute that deeds should be indexed. The judge in this case said.: "The grantee has no control over the official acts of the recorder, and when he has delivered to the officer his deed, he has performed all the duty in his power, and when the deed is copied on the record the statute says it shall be considered as recorded. * * * The subsequent sections are distinct and independent provisions respecting indexing, and do not form a part of the law as to recording." In Curtis v. Lyman, 24 Vt. 338, it was also held that a mortgage copied in the proper book but not indexed was not defectively recorded.

In Field v. City of Des Moines, reported in a recent number of the Western Jurist, it was held, by the Supreme Court of Iowa, that municipal corporations authorized to order the destruction of any building, in order to arrest the progress of a fire, are not liable to the owners of the property destroyed in the absence of express statute creating the liability. The case also holds that the destruction of buildings, under such circumstances, is not "taking private property for public use" in the constitutional sense. For illustrations of this doctrine see 2 Kent's Com. 338; Mouse's Case, 12 Coke, 63; Republica v. Sparhawk, 1 Dall. 337; Dillon on Mun. Corp., § 756. In many States the citizen whose property is thus destroyed is furnished with a remedy by special statute. In Wheeler v. City of Cincinnati, 19 Ohio St. 19; S. C., 2 Am. Rep. 368, it was also held that a city, authorized by statute to establish a fire department and pro

LIABILITY OF TELEGRAPH COMPANIES. In Hibbard v. Western Union Telegraph Co., 1 Monthly West. Jurist, 364, the Supreme Court of Wisconsin considered the liability of telegraph companies in reference to night dispatches. Cole, J., delivered the opinion, in which he said:

"The facts of this case, upon which the questions of law arise, are few and undisputed. The plaintiffs, who were engaged in buying and selling grain in Milwaukee, through their agent, on the 6th of May, 1872, at Port Huron, Michigan, delivered at about 7.25 P. M. to the defendant company for transmission over its line a message directed to their agent at Milwaukee, of the following language: 'Buy twenty thousand seller, June, pay telegraph there.' This message was written upon one of the printed blanks furnished by the company for the transmission of night dispatches, and was sent by the company to its agent at Milwaukee, during the night of the 6th, and could have been delivered to the agent of the plaintiffs by 9 A. M. of the 7th, but was never delivered, and was lost. On the trial no explanation was given, nor excuse shown on the part of the company, to account for the non-delivery of the dispatch. It is admitted that the message meant and would have been understood by plaintiffs' agent, as directing him to buy 20,000 bushels of No. 2 wheat, deliverable during the month of June, and that he was to pay the expense of sending the dispatch. If the agent had received the dispatch on the 7th, when it should have been delivered, he could and would have purchased wheat at Milwaukee, for the market price of $1.48 per bushel. Wheat advanced in the market on the 8th to $1.55 per bushel, when the agent sold some at that price. The agent received from the plaintiffs on the 8th, in the afternoon, a letter advising him of the sending of the dispatch. From the 8th of May to the 29th of June, wheat fluctuated in price, and on the last-named day, being Saturday, and also being the last day the seller would have had for the delivery of the wheat, had a contract been entered into according to the dispatch, its market price was $1.23% per bushel. The contemplated bargain or transaction was what is termed in the chamber of commerce of Milwaukee, buying on option,' which means that the seller should deliver the wheat sold at any time at his own option in the month of June. The plaintiffs' agent, on the receipt of the letter on the 8th of May, took no steps to make the purchase, and no purchase was in fact ever made, as intended when the dispatch was delivered to the company for transmission. The action is brought to recover damages alleged to have been sustained by the plaintiffs in consequence of the nondelivery of the dispatch.

"The blanks furnished by the company for night dispatches, and subject to which the message in question was sent, provide that the company will receive

the company were the vendor of the wheat, the plaintiffs could not recover this loss of profits on a re-sale. That question was expressly so decided in Williams v. Reynolds, 118 Eng. C. L. 493; and we consider that as a strong authority adverse to the claim of the plaintiffs. That was an action on a contract for the sale of cotton by the defendants to the plaintiff, at the price of 16 d. per lb., to be delivered in the month of August. The plaintiff contracted to sell the same quality of cotton to be delivered in the month of August, at 19 d. per lb. The defendants failed to deliver the cotton sold by them and the plaintiff was consequently incapacitated from performing his sub-contract, for the sale at a higher price. He claimed damages for a breach of the contract by the defendants, including the loss of profit which he would have realized on the re-sale. But the court held that the proper measure of damages was the difference between the contract price (164d. lb.) and the price (18 d. lb.) on the last day of delivery, and that the plaintiff was not entitled to recover damages for the loss of profit on his sub-contract. Such damage, the judges in that case say, do not naturally flow from the breach of the contract to deliver; nor is it such as must be deemed within the contemplation of the parties at the time the contract was entered into, in case of a breach of it. The case of Hadley v. Baxendale, 9 Exch. 341, is cited as laying down the true rule: a case which this court referred to with approbation in Shepard v. Milwaukee Gas Light Co., 15 Wis. 218. In the Shepard case, Mr. Justice Paine refers to a class of cases where parties contract for articles with reference to use or sale on some particular occasion, and when, by reason of want of time, or their situation with reference to the market, they are unable to supply themselves for that occasion, in case of failure to deliver, where the difference between the contract price and market price at the time when they ought to have been delivered, does not completely indemnify the injured party. See Richardson v. Chynowith, 26 Wis. 656. But the general rule is, where the action is brought by the vendee for a failure to deliver, the difference between the price agreed to be paid and the market price of the article on the day delivery should have been made on the contract. Havemyer v. Cunningham, 35 Barb. 515; Hamilton v. Ganyard, 34 id. 204. Now, applying the rule laid down in Williams v. Reynolds and Hadley v. Baxendale, how can it be said that the loss of profit upon a contract which the agent of the plaintiffs might possibly have entered into, but which he never did, naturally resulted from a failure to deliver the message; or could reasonably be supposed to be within the contemplation of the parties as a result of such failure when the dispatch was left with the company to be sent on its line. If the agent had received the dispatch, so as to make the purchase on the 7th, what presumption is there that he would have resold at a profit? None whatever. 'Selling at a profit is not the natural result of buying with an intention to resell.' Shee, J., Williams v. Reynolds. For that depends on circumstances altogether out of the ordinary course of things.' And, therefore, if we presume that the agent would have made the purchase according to the order if the dispatch had been delivered, we cannot presume that he would have sold the next day so as to realize a profit. The breach of the contract complained of is the failure to deliver the message, and the recovery should be limited to an indemnification of the plaintiff's for actual loss sustained. Profits upon a contract never made are quite too remote and uncertain to be taken into consideration. Nor can

it be said that the parties may fairly be supposed to have contemplated' such profits as are claimed in the damages which might result from the failure to deliver the dispatch. Since this opinion was prepared, my attention has been called to the decision of the Court of Appeals of New York, in Baker v. Drake (published in the ALBANY LAW JOURNAL, Nov. 29, 1873), which in its general reasoning supports the result reached in this case. It is apparent that in this case there was a technical breach of contract on the part of the company, for which the plaintiffs were entitled to recover nominal damages. But this would be the extent of the recovery. A judgment for nominal damages would not have carried costs, because the action might have been brought in a justice's court. The dispatch was to be paid for on delivery in Milwaukee, but as it was never delivered, the plaintiffs were at no expense for its transmission. And while the county court was wrong in not rendering judgment for the plaintiffs for nominal damages, yet in a case like the present this constitutes no ground for a reversal of the judgment. This point was so ruled in Lanbenheimer v. Mann, 19 Wis. 519, and the doctrine of that case was · approved in Easton v. Lyman, 30 Wis. 41, and in Jones v. King, decided at this term. According to this rule, laid down and approved in these decisions, the judgment in the present case must be affirmed."

In Redpath v. Western Union Telegraph Company, 1 Monthly West. Jurist, 371, the Supreme Court of Massachusetts considered the liability of telegraph companies in relation to unrepeated messages. The opinion was delivered by Chapman, Ch. J., who said:

The plaintiffs sent over defendants' line, June 23, 1872, a message directed to "Hon. William Parsons care H. B. Hassier, Owego, N. Y." It was written on the usual blanks furnished by the defendants, a copy of the heading of which is as follows: "The Western Union Telegraph Company. All messages taken by this company subject to the following terms: To guard against mistakes, the sender of a message should order it repeated, that is, telegraphed back to the originating office. For repeating, one-half the regular rate is charged in addition. And it is agreed between the sender of the following message, and the company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, beyond the amount received for sending the same. Not for mistakes or delays in the transmission or delivery, or for non-delivery, of any repeated message beyond fifty times the sum received for sending the same, unless specially insured. Not in any case for delays arising from unavoidable interruption in the working of their lines, or for errors in cipher or obscure messages. And the company is hereby made the agents of the sender, without liability, to forward any messages over the line of any other company, when necessary to reach its destination. Correctness in the transmission of messages to any point on the line of this company can be insured by contract in writing, stating agreed amount of risk, and payment of premium thereon, at the following rates, in addition to the usual charge for repeated messages, viz.: one per cent for any distance not exceeding 1,000 miles, and two per cent for any greater distance. No employee of this company is authorized to vary the foregoing. The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message. O. H. Palmer,

Secretary; (Thos. J. Eckert, General Superintendent, New York;) William Orton, President."

In a separate line immediately above the blank for the message, the following is printed: "Send the following message subject to the above terms, which are agreed to."

The plaintiffs did not ask to have the message repeated, which it is agreed would have tended to prevent the error hereafter stated, or to have its correctness insured, and did not pay any extra charge for having the message repeated or insured. Nor did they give the defendant any information other than that contained in the message. The dispatch was not sent to Owego, N. Y., but to Oswego, N. Y., and Mr. Parsons failed to receive the information given in it. This action is brought to recover damages for the failure to send it correctly. It is immaterial whether the plaintiffs or their agent read the printed document or not. Grace v. Adams, 100 Mass. 505. It is sufficient that they assented in writing to its terms, and paid for the sending of a message not insured. The question here is, whether the defendants are liable for the errors notwithstanding the agreement. The case of Ellis v. American Telegraph Co., 13 Allen, 226, was quite similar to this. The message was sent, subject to conditions similar to those here stated, and no extra fees were paid for repeating it. It was a direction to send ten men one hundred and twenty-five dollars, "the error was in stating the sum, one hundred and seventyfive dollars." And the arguments for the plaintiffs were similar to those urged for the plaintiffs here. The jury in the court below were instructed that, notwithstanding the terms and conditions set forth, the defendants were bound to make use of ordinary care, attention and skill, and were liable to damages arising from inattention or carelessness in such transmission, either to the sender or to the receiver, according to their respective interests in the message; and that the error in the message was prima facie evidence of a want of ordinary care, attention and skill, on the part of the defendants. A verdict was rendered for the plaintiff, which the court set aside, on the ground that the ruling was erroneous. It was held that the liability of the telegraph company was not like that of a common carrier; and the distinction and the reasons of it are stated; and that the printed conditions limiting their liability were reasonable and valid. The error in that case was of the same nature with the error in this case, and did not arise from the state of the atmosphere, or the imperfection of instruments. In the statement of facts in this case, there is nothing from which it can be inferred that the defendants were guilty of fraud or gross negligence; or, that the error was of such a character that the company could not legally contract for their own protection against liability for it, on such terms as the printed conditions contain.

The case referred to substantially settles this case; but that case does not stand alone. In MacAndrew v. Electric Telegraph Co., 17 C. B. 3, the message was sent subject to the condition that "this company will not be responsible for mistakes in the transmission of unrepeated messages, from whatever cause they may arise." In the transmission of the message which was unrepeated "Southampton" was substituted for "Hull." This was a similar mistake to that made here, and the message went to the wrong town. But the court held that the condition was a reasonable one, and afforded an answer to the action of damages. The

same principle is sustained in other cases, Camp v. Western Union Telegraph Co., 1 Metc. (Ky.) 165; Breese v. United States Telegraph Co., 45 Barb. 274, which was sustained in the Court of Appeals; Mann v. Western Union Telegraph Co., 37 Mo. 472. These and other cases, generally sustaining the same doctrine, but some of them dissenting from it in some particulars, and most of them considering the question fully, are found collected in Allen's Telegraph Cases.

It seems to us, that one who elects to save the small sum charged for a more extended liability, cannot reasonably claim the benefit of it in a business where careful operators are so liable to make mistakes, and that this principle applies to every stage of dealing with the message. Judgment for the defendant.

COURT OF APPEALS ABSTRACT.
CONTRACT.

1. Defendant leased to plaintiff a saw-mill for the term of three years, subject to the contingency of a sale of the property, in which case the parties agreed that, upon a sale of the premises, defendant could terminate the lease upon giving plaintiff notice, that the latter should have two months' notice to "saw out," and if any logs remained over, then he should have the privilege to continue in possession (at the option of defendant) at the same rent until the logs on hand are sawed, or should be allowed the extra expense of removing and sawing the logs at another mill. The premises were sold, and defendant gave the required notice. It appeared from the evidence that the mill yard could not contain more than enough logs to supply the mill for one or two weeks. That plaintiff had purchased, in the usual course of business, before notice of the sale, a large quantity of logs to be sawed at the mill; the logs were on their way or got out ready for transportation, but had not been sent on for want of storage room. The mill, after the notice, was run steadily night and day; a portion of the time, however, was spent in sawing logs purchased and delivered since the notice of sale. At the end of two months after the notice plaintiff had on hand 160,000 feet of logs, purchased prior to the notice, and he brought this action to recover the extra cost of removing and sawing these at another mill. Held, that the words "logs on hand" meant those bought and provided in the regular course of business, not simply those in the mill yard; that plaintiff was bound to use due diligence in "sawing out," and in case of neglect or use of the mill for another purpose, he could not be allowed for removing and sawing at another mill such logs as, with the use of due diligence, could have been sawed, but he was not precluded from recovering the extra expense upon those which would necessarily have remained over; that it was not a condition precedent that the full force of the mill should be employed to "saw out" the logs on hand.

Also held, that the fact that plaintiff had agreed to divide the profits did not affect defendant's liability; that if plaintiff had a partner, who was a necessary party, the objection not having been taken by answer was not available.

Also held, that the minutes of a former trial, kept by an attorney since deceased, are not competent evidence although it appeared that such attorney kept minutes during the entire trial, and that the minutes offered according to the recollection of a witness present appear to be of the entire trial Crouch v. Parker. Opinion by Rapallo, J.

2. This was an action brought to recover damages for the alleged breach of a contract in the sale of a quantity of jute, "to arrive from London per ship Robena." S., plaintiffs' agent, made the contract for them. Only a portion of the jute arrived upon the Robena, the balance was shipped by another vessel which did not arrive until a month later than the Robena. A short time after the arrival of the Robena and the unloading of the jute, it was examined by the defendants, and they declined to accept it on the ground that it was inferior in quality to that called for by the contract, and they thereupon notified S., plaintiffs' agent. The case was tried before a referee, who found that the quality conformed to the contract. One of the plaintiffs testified, and the referee found that S. was only agent for the sale and not for the delivery of the jute. There was evidence given, and the referee found, that when defendants gave the notice to S. they did not know but that the whole quantity had arrived by the Robena. Held, that in order to recover it was necessary for plaintiffs to show ability and willingness to perform the entire contract, and an offer so to do, or a waiver of such performance; that the evidence showed an inability to perform, and failed to show a waiver, as what defendants said to S., after he had ceased to be plaintiffs' agent, did not affect the rights and duties of the latter, and as defendants could not be held to have waived a point of which they were then ignorant.

On cross-examination by defendants' counsel S. testified that he told one of the defendants that the plaintiffs could not deliver all the jute. One of the defendants was permitted to testify under objection that S. did not tell him so. Held, no error; that in answer to the position that by their refusal to accept upon another ground, they had waived an entire performance, it was important for defendants to show that they were ignorant of this inability, and so they were not bound by the testimony of S., although given on cross-examination, but were entitled to show the fact to be different from what he testified to. Newbury et al. v. Furnival et al. Opinion by Grover, J.

MECHANIC'S LIEN.

1. This was a proceeding to enforce a mechanic's lien, under chapter 500, Laws of 1863, upon premises situated in New York city, and owned by defendant S. In 1870 H. entered into a contract with S. to furnish the materials and do the mason work on four buildings on the said premises. H. contracted with M. and his two partners, composing the firm of M., K. & D., to furnish the brown stone for $5,800, $3,000 to be paid when the fronts were up and the balance when the stone work was completed. After the fronts were up, M.'s partners absconded and the contract was abandoned. H., S. and M. arranged that H. should draw on S. in favor of M. for $2,755, the balance of the $5,800 unpaid, payable when the stone work was completed. On the same day H. accepted the draft, and M. therefore resumed and completed the contract on January 12, 1872, and filed notice of lien on that day for $1,349, the balance unpaid upon the draft. The notice, after properly stating the claimant's residence, stated that he had a claim for $1,349 against H., and after stating for what work and materials, added that the stone was furnished cut and set, pursuant to the agreements, written and by parol, between H., S. and M., and then named the owner and described the premises. The referee before whom the matter was tried allowed M.'s claim, and directed a personal judgment

against S., the owner. S. appealed, and the judgment was reversed by the General Term on the following grounds: 1st. That a personal judgment was improper upon a claim stated in the notice to be against the contractor. 2d. That M. did not acquire any valid lien, as the claim was due to him jointly with two others. Held, that the balance claimed was not under the original contract with the firm, nor was any part of it earned under that contract, for the amount due when it was abandoned had been overpaid; that, as by the subsequent arrangement M. assumed individually the completion of the contract, his partners had no claim for the money earned under it, and were in no way interested, and the undertaking between S. and H. to pay M. individually was absolute, and the notice filed described the claim with substantial accuracy, it was a claim against H., in one sense, as he was the immediate debtor to M., and but for the acceptance of the draft would have been the principal, and the subsequent part of the notice relieved the statement from all uncertainty, if any; but if there was a mistake in naming the debtor, not clearly explained in other parts of the notice, it was cured by the second section of said act, which provides that no variance in that respect shall impair or affect the rights of a claimant.

Also held, that the personal judgment was proper because by the acceptance the debt became that of the owner as well as contractor, and the work was done and material furnished upon the credit of both. Hubbell v. Schreyer et al. Opinion by Allen, J.

2. This action was brought to foreclose a mechanic's lien upon property in the city of New York. The premises were deeded to the defendant December 10, 1870, prior to that time she had held the premises under a contract for the purchase thereof. Defendant's counsel claimed that the premises were not subject to a lien for work and materials supplied defendant prior to the date of the deed. Held, that within the principle of the case of Rollin v. Cross, 45 N. Y. 766, after the execution of the contract of sale a lien for work and materials furnished was acquired.

Defendant's counsel asked, upon the trial, to amend the answer by setting up new defenses; this motion was denied. Held, that the provision of the mechanic's lien law for the city of New York (§ 5, chapter 500, Laws 1863) making matters of form amendable at all times, does not require the court to amend, as a matter of course, the pleadings upon the trial of an action to foreclose a lien under such act, but it is within its discretion, and is not an abuse thereof to refuse an amendment which introduces an entirely new cause of action or defense.

The lien expired before the coming in of the referee's report; this fact was found by him, and he directed judgment for the amount found due against defendant personally. Defendant's counsel claimed here that such a judgment was unauthorized. Held, that the court did not lose its jurisdiction because of the expiration of the lien before judgment, but it may proceed upon the merits and give a personal judgment against defendant. McGraw v. Godfrey. Opinion by Folger, J.

MINING STOCK.

This action was brought to recover for certain shares of defendant's stock, alleged to have been converted by it. The defendant was a corporation, organized under a statute of the State of Vermont. Its shares were issued as full paid. D. became the owner by pur