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and has "sought with diligent and loving care" to make the new edition a faithful representation of the law on this vast and very interesting subject. Long may he live to enjoy his work, and to receive the grateful acknowledgments of his brethren for a debt which few men have ever been able to accu

be permitted to find a little fault, and we shall restrict it to the title-page. Judge Dillon's honorary titles and ex-official descriptions are of no importance to the profession nor to him. He has always bestowed more honor than he can possibly receive, and these additions to his simple name are as meaningless as they would be to the name of Kent or of Story or of Bishop.

was the scene of the anti-rent war in 1840, hardly less famous and deadly than that carried on by Peter Stuyvesant in the Jerseys, as recorded by Diederich Knickerbocker. One of the rhymstersnot Mrs. Washbon, as we are given to understand expostulates against the introduction of a lawyer into that happy place, in apparent answer to an ad-mulate against the profession. As critics, we may vertisement of "Wanted, a Lawyer for the village of Rensselaerville and vicinity," and puts into metre that awful old tale about the disappearance of the dead bodies of lawyers, leaving a sulphurous smell. And yet Mrs. Washbon records with pride that among the natives of the town were Mortimer M. Jackson, judge of the Supreme Court of Wisconsin; Addison C. Niles, judge of the Supreme Court of California; Rufus W. Peckham, judge of the Court of Appeals; Malbone Watson, judge of the Supreme Court; James Lamoroux, Robert W. Murphy, judges of Albany county; Marcellus Weston, judge of Montgomery county; Hiram Gardner, judge of Niagara county. Mr. Justice Bradley, of the United States Supreme Court, was born in that part of the original town set off as Berne. (He used to burn charcoal there, we believe.) Judge A. Melvin Osborn, of our Supreme Court, was educated and resided in the town. Counsellor Rufus H. King, of Catskill, was born there, and Attorney-General Lyman Tremain was born just over the line in Durham. The village boasted, or endured, three lawyers in 1843, and there were nine occupants of the shoemaker's bench. This is a list which ought to put to shame the metrical jocose pessimist. Other celebrated citizens first saw the light in this hamlet, prominent among whom are Peter Palmer, the great merchant of Chicago, and Sir Walter A. Wood, the great inventor and manufacturer of agricultural implements. Some authorities say that Daniel Shays, the arch-rebel, went there to live in 1795. Rensselaerville is a famous place for a small one, and it would be well if every locality in our country had a historian so painstaking and intelligent as Mrs. Washbon. This is the way history ought to be written, and every attempt to perpetuate the simple annals of such modest places should meet with favor.

The fourth edition of Judge Dillon's treatise on Municipal Corporations is at hand, from the house of Little, Brown & Company. This is one of the ablest and most famous law books ever written, and one of the most useful. It has had absolutely no rival, and so long as its gifted author remains to edit new editions it can never have any. This edition has been substantially rewritten by the author himself. Every section has been considered by him personally, and personally he has adapted every section to meet the present state of the law, and personally he has re-edited the notes. In this process the work has grown considerably, for as he modestly says in the preface, "The adjudged cases to date have been examined one by one, and the results thereof are embodied in this edition." "Scarcely a single section is without alterations or additions." Judge Dillon takes a just pride in his celebrated work,

"The judges are not working hard." Such is the oracular language of one of our city newspapers, displayed in small capitals, in a report of decisions handed down by the Court of Appeals. Unless the reporter is deep in the confidence of the judges, we should diffidently beg leave to differ from him. His reason for the assertion, namely, the small number of decisions handed down, does not bear him out, but rather argues the reverse, for the harder the cases the fewer the decisions. Newspaper men are frequently too smart. This is one of the instances. Such unfounded assertions serve to make lawyers laugh, but may well cause the judges to suffer unmerited blame from others. These inspired newspaper people should remember that Providence has not given to the judges the capacity to decide causes off-hand which they possess.

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When a man pays a compliment that costs him money it really means business. So the Law Librarian must have been sincere in telegraphing us from San Francisco (and prepaying the dispatch) as follows: "Your Shingle' is superb. Holmes never did any thing more brilliant or touching. But are we growing old?" To which we now answer: one stanza shows signs of age, and we move to amend it as follows:

I tack my old friend on the wall,

So that infantile grandson of mine
May not think, if my name he recall,
That I died without making a sign.

A friend writes us of these verses: "Judge Marvin,
now eighty-nine years of age, I think he said, and
the last of the judges who took office under the
Constitution of 1846, says he has no reason to be-
lieve the lines surround him, or that the sentiment
is expressive of his condition; in fact, they don't
apply, and won't for a hundred years." Judge Mar-
vin is an athlete who has "got his second wind,"
and there is no telling how long he may fight, Long
may his shingle wave!

We have had frequent occasion to commend the enterprise of the West Publishing Company, and now we must call attention to a new example of it. In its current advertisement it announces that it owns "the entire set of U. S. Digest from 1754 to 1887." This is a proof of hindsight as well as of foresight.

The legal menagerie season has fairly opened, and in Graham v. Payne, Indiana Supreme Court, March 11, 1890, we find a fresh ram case, which would answer as a foot-note to Oakes v. Spaulding. It appears that the plaintiff, a male infant, was walking with his father through defendant's sheep pasture, where the ram was kept, and the ram, being vicious, singled out the child, and butted him, breaking his arm, bruising and crushing his hip, and producing inguinal hernia. It did not appear that the child was a trespasser, the scienter was shown, and the court held that the ram was not properly restrained, observing: "To give to a mischievous or vicious animal the freedom of a pasture field, and thereby afford him an opportunity to injure and molest every person who may have occasion to go into or pass through the field, is not such confinement as the law regards in this class of cases. "There is also a very recent ram case in the New York Court of Appeals, but it has no special animal interest.

[To whom it may concern.]

As the victim of prolonged dissipation

Will ne'er admit he's bound to yield his breath,
The journal brags about its "circulation "
Most loudly in the article of death.

NOTES OF CASES.

or to some one for his use, under such circumstances as that the person to whom delivery is made is thenceforward affected with a trust or duty in the donee's behalf. Smith v. Ferguson, 90 Ind. 229; Wilcox v. Matteson, 53 Wis. 23; Gano v. Fisk, 43 Ohio St. 462; 21 Am. Law Rev. 732; 19 Cent. L. J. 222; Walsh's Appeal, 122 Penn. St. 177. No particular form of words is necessary to give effect to the transaction, if the intention of the donor sufficiently appears, and the intention to give is either accompanied with or followed by acts requisite to constitute a valid delivery. Keniston v. Sceva, 54 N. H. 24; Martin v. Funk, 75 N. Y. 134; Coleman v. Parker, 114 Mass. 30; Hatch v. Atkinson, 56 Me. 324; Clough v. Clough, 117 Mass. 83. The title of the donee in gifts causa mortis is of an inchoate character until the death of the donor occurs; but notwithstanding this, where the nature of the gift admits of it, a complete manual transfer of the possession of the subject should take place, and the transaction should be accompanied by words, signs or a writing adequately expressive of the donor's intention. Flood Wills, 8. It is well settled however that the delivery need not be made to the donee personally, but may be made to another as his agent or trustee. A delivery thus made is as effectual as though it had been made directly to the donee. Milroy v. Lord, 4 De Gex, F. & J. 264. * * * Martin v. Funk, supra; Beals v. Crowley,

'N Devol v. Dye, Supreme Court of Indiana, April 59 Cal. 665; Hill v. Stevenson, 63 Me. 364; Minor v.

prison, 78

Ky. 572. It has been held that if delivery is made to a third person, with instructions to deliver to the intended donee at the death of the donor, the latter retaining dominion over it meanwhile, the delivery is ineffectual, because the third person in such a case becomes merely the agent or bailee of the donor. If however the delivery is made to a third person for the use of the donee, or under such circumstances as indicate that the donor relinquishes all right to the possession or control of the thing

coin in a sack, in a bank vault, marked: "$2,000. This belongs to P. G. D." Three days before his death, with knowledge of its probability, deceased declared that it had always been his purpose to give D. $5,000. He then directed the bank cashier, to whom he had delivered the keys to his drawer in the vault, to place $3,000 more in another sack, to be similarly marked, and to place $1,000 in currency in an envelope for another person, to be marked with his name. When informed that his directions had been fulfilled deceased replied ap-given, and intends to vest a present title in the provingly. Held a sufficient delivery of the property to the cashier, as trustee for the donees, to constitute a valid gift causa mortis. The court said: "The concurrence of three things is essential to the consummation of a gift causa mortis: (1) The thing given must have been of the personal goods of the donor; (2) it must have been given while the latter was in peril of death, or while he was under the apprehension of impending dissolution from an existing malady; and (3) the possession of the thing given must have been actually or constructively delivered to the donee, or to some one for his use, with the intention that the title should then vest, conditioned upon the death of the donor, leaving sufficient assets, in addition, to pay his debts. 8 Am. & Eng. Cyclop. Law, 1349-1354. A mere unexecuted purpose, however clearly or forcibly expressed, so long as it rests merely in intention, is not effectual. The intention must not only have been manifested, but in addition, in order to consummate the gift, the donor must have transferred the possession of the thing to the donee in person,

donee, the gift will be sustained. Farquharson v. Cave, 2 Colly. 356; 15 Law J. Ch. 137; Flood Wills, 28. Where one, in view of impending dissolution, clearly and intelligently manifests an intention to make a present gift of personal property to another, and in consummation of his intention makes such delivery to a third person for the use of the intended donee as he is then capable of making, considering the character and situation of the property, the person to whom delivery is thus made will be presumed, in the absence of controverting circumstances, to take the property as the trustee of the intended donee, and not merely as the agent of the donor. Shackelford v. Brown, 89 Mo. 546; Michener v. Dale, 23 Penn. St. 59; Sessions v. Moseley, 4 Cush. 87. Thus it has been said: 'The death-bed delivery to a third person for the donee, which takes effect, is essentially a delivery, not to any agent of the donor, but to a trustee for the donee.' 2 Schouler Pers. Prop., § 176; Bouts v. Ellis, 17 Beav. 121; Grymes v. Hone, 49 N. Y. 17; Borneman v. Sidlinger, 15 Me. 429; Drury v. Smith, 1 P. Wms. 404.

*

* *

* The rule requiring delivery, either actual or symbolical, must be maintained, but its application is to be militated and applied according to the relative importance of the subject of the gift and the condition of the donor. The intention of a donor in peril of death, when clearly ascertained and fairly consummated within the meaning of wellestablished rules, is not to be thwarted by a narrow and illiberal construction of what may have been intended for and deemed by him a sufficient delivery. The rule which requires delivery of the subject of the gift is not to be enforced arbitrarily. Stephenson v. King, 81 Ky. 425. Without pausing to review the authorities, it is sufficient to say that where property is delivered to a third person, for the use of another, as a gift causa mortis, and its delivery is accompanied by a written declaration, clearly indicating that it is delivered for the use or upon a trust for an intended donee, or where a death-bed delivery is made in the presence of witnesses who are disinterested and called for the purpose, the intention of the donor should not be permitted to fail by a narrow and illiberal construction, in case a delivery corresponding with the condition of the donor and the situation of the property was actually made. Ellis v. Secor, 31 Mich. 185; Williams v. Guile (N. Y.), 22 N. E. Rep. 1071; 2 Schouler Pers. Prop., § 179."

In Oviatt v. Dakota Cent. Ry. Co., Supreme Court of Minnesota, May 19, 1890, it was held that a railroad company is not guilty of negligence in not having a bell-rope on a mixed train operated as a way freight and passenger accommodation combined. The court said that the evidence was that it "" was impracticable, for the following reasons: First, every time a car is taken in or set out, or a switch made, at an intermediate station, the rope would have to be divided and carried back, and afterward coupled on again; second, that in windy weather it would blow all over the top of the cars, to the inconvenience and danger of the brakemen; third, that with the varying length of the train, as cars were taken in or set out, the rope would have to be lengthened or shortened; fourth, that the greater the length of the train the greater the slack in the rope, and the greater the friction by its contact with the cars, foot-board, etc., and hence that it is almost impossible to pull a rope over ten carlengths. * Carriers of passengers are of course bound to use the best precautions in known practical use to secure the safety of their passengers, or as the rule is sometimes stated, they are held to the highest possible care. This rule applies when they carry passengers on mixed or freight trains, as well as when they carry them on regular passenger trains. But this does not mean that they are required to use every possible preventive of danger which the highest scientific skill might have suggested, nor all the care and diligence which the human mind can conceive, nor such as would render the transportation free from all peril. It would not, for instance, in the present state of railroading, require the use of iron or stone cross-ties, because less

* *

liable to decay than wood. Neither does it require that when they carry passengers on mixed or freight trains they should adopt all the appliances to insure safety which they use on exclusively passenger trains; for when a passenger takes passage on such trains he assumes all the risks reasonably and necessarily incident to being carried by the method which he voluntarily chooses. What the law does require is every thing necessary to the security of passengers consistent with the business of the carrier and the means of conveyance employed - the highest degree of care consistent with the practical operation of such trains. While it is easy to thus lay down a general rule as to the measure of the carrier's duty, it is true, as the trial judge remarked, that it is not always easy to determine whether it is a question of law for the court or of fact for the jury to decide whether in a given case the doing or omitting to do a thing is negligence. It is also true that when the standard of duty is not fixed, but is variable or depends upon a variety of circumstances, the question of negligence is ordinarily one for the jury; and the fact that all the evidence is on one side does not necessarily warrant the court in taking the question from the jury. It may be of such a character, notwithstanding that it is not directly contradicted, that it would be the province of the jury to weigh it, and draw their own conclusions. But the jury have no right arbitrarily to reject evidence, nor to find a verdict against the entire weight of it. Nor is it true that in every case where the standard of duty is not definitely fixed, but depends on circumstances, the question of negligence is one for the jury, regardless of the state of the evidence. Our own decisions abound in cases of that kind, where we have held, as a matter of law, that the evidence established, or failed to establish, negligence. It is also to be remembered that the burden of proof is on the plaintiff. If he claims to hold the company liable for failing to provide a bell-rope, it is not enough for him to prove that none was furnished. The law requires of him prima facie proof that the omission to do so was negligence. It is not like the case of a broken rail or axle, when the fact of the accident might constitute presumptive evidence of negligence. It is to be further noticed that this matter of failure to provide a bell-rope is in itself a separate, complete and independent charge of negligence. Consequently a fair test whether the evidence on that point made a case for the jury is, would it have supported a verdict in favor of the plaintiff had this been the only negli gence charged against the defendant?"

In Forbes v. Willamette Falls Electric Co., Supreme Court of Oregon, March 31, 1890, it was held that poles set in the ground, connected together by wire in the usual way for the transmission of electricity for the purpose of light and power, constitute a "structure," and a lien attaches for labor per formed on such structure under employment by the contractor. The court said: "The principal question litigated on this appeal is whether or not this statute gives a lien for labor against the property de

i

scribed in the complaint; in other words, do these poles planted in the ground, connected together with wires and insulators, constitute a structure within the true intent and meaning of this statute? In answering this question but little aid can be had from the decisions of other States, for the reason that no general principle of law is involved, and such decisions have generally turned upon the special or peculiar phraseology of the particular statute. Without attempting to indulge in any refined distinctions or definitions, and having in view the object and purpose of the enactment in question, I think it may properly be held that the poles, wires, insulators, etc., mentioned in the complaint, constitute a structure within the meaning of the statute, and that the same is subject to a lien for labor performed thereon. In reaching this conclusion we do not find it necessary to go as far as the court did in Helm v. Chapman, 66 Cal. 291, where it was held that a mine or pit sunk within a mining claim was a structure, within the meaning of the statute giving a lien on a building, improvement or structure.'

DAMAGES FOR MENTAL SUFFERING OCCASIONED BY THE NEGLIGENCE OF A TELEGRAPH COMPANY.

[The following article is sent to us with the following letter. We regret the injunction against publishing the author's name.- ED.]

RALEIGH, N. C., April 15, 1890. "I inclose the following short discussion of a subject which seems to have some vitality yet. It is written by a man who, during a confinement now extending well into the fifth year, has had access to no other law book than your excellent journal. This explains the dearth of authority in the article. I send it you as an illustration of the value of your journal, which has enabled this young man, while it relieved the tedium of many suffering hours, to keep nearly abreast with the course of decision in our courts. is for you to make such use as you please of it. Of course if you think it worthy of publication you will oblige by doing so without the name of its author."

It

Old, but vigorous and sturdy, dignified and upright, the common law, unmindful of gospel warning, has sewed many new legislative or judicial woven patches on his old garment, and now is trying to bring his raiment to the fashion of the times. There is a serious attempt to sew on another patch; let us see if we can help along this tailoring.

The great function of the law is to remedy wrong. To this end it supplies a suitor with compensation for an injury inflicted upon him. It is the distinguishing mark of the common law, that it considers pecuniary compensation a balm for all legal wounds. This is called damages. They are either compensatory or punitory. In the first class damages are meted to fit the amount of wrong done the suitor. The second class go beyond compensation, and punish the wrongdoer. The first class of damages are allowed in actions ex contractu, or ex delicto where the tort is not active or malicious; the second, in one instance ex contractu, breach of promise of marriage, in all others ex delicto, based on a malicious tort. The former, in which is estimated the amount of damage, enters also as an element in the formulation of rules by which they are estimated. The jury though having in many instances

considerable, scarcely limited discretion, are here subjected to certain rules which prevent practical injustice, and guide to a certain conclusion. Damages then are allowed only for a wrong which can be compensated in dollars and cents, and can be estimated by a certain and invariable rule. So the general rule is then that an injury causing only mental suffering, is damnum absque injuria, it being beyoud the power of any physical law to measure such an intangible wrong. Lynch v. Knight, 9 H. L. Cas. 577; Wyman v. Leavit, 71 Me. 227; Victoria Coms. v. Coulten, 37 Alb. L. J. 447. In actions ex delicto however where the tort is malicious, the jury, under the oversight of the court, has almost unlimited discretion in the estimation of damages as a measure of punishment to the wrong-doer. Mental suffering alone cannot be the foundation of an action, but where it is the accompaniment of physical injury, an immediate result of the wrongful act, and itself but a mere record of the physical pain, or reflection of the bodily pain, or physical injury upon the sensitive mind, then the jury in compensating for the physical injury may compensate also for the accompanying mental suffering. Of course the same rule applies in both classes of damages, punitory and compensatory. In cases where the injury only occasioned mental suffering, the practical difficulties to a just estimate of damages are the difficulty of its proof, the ease with which it is feigned, and its dependence upon the accident of temperament and health; so, as the law makes general rules, it cannot formulate an invariable rule for such cases. Perhaps the damages allowed in a statutory action for the death of a relative, occasioned by the negligence of defendant, best illustrate the unwillingness of the law to allow damages for mental suffering. It allows damages only to the extent that the life is of pecuniary value to plaintiff. It allows nothing for the natural grief and consequent mental suffering from the loss of a near relative. Railroad Co. v. Stephens, 9 Heisk. 12; Blake v. Railroad Co., 18 Q. B. Div. 93. Such was the law when telegraphy was invented. I will take the facts in the case of Railroad Co. v. Levy, 59 Tex. 542, as the basis of the discussion. A son sent a message to a father, announcing the death of his (the son's) wife and child. The company had notice of the contents of the telegram. The message was negligently delayed in its transmission, and was not delivered until it was too late for the father to attend the funeral. The sou sued the company in an action for tort, claiming damages in addition to the fees paid, for his mental suffering on account of the absence of his father in his grief. The court said: "Upon the whole case as made by the petition and evidence, we are of opinion that the appellee was entitled to recover whatever damages the proof may justify, over and above such sum as he paid for the transmission of the message, and this in the way of exemplary damages, if the negligence of the appellants in failing to deliver the message was willful and gross." Thus putting the case on all fours, as Judge Pearson used to say, with those cases where the tort is so active as to amount to a public wrong, which was to be redressed by the jury in its verdict, as well as the smaller private wrong. Even this ruling was afterward broadened in Railroad Co. v. Wilson or Miller, 69 Tex. 679, where it was held that the right to recover would not depend upon the degree of negligence causing it. These cases and those like it, which allow such damages, when the action is ex delicto, on the ground that the loss of the fees opens the doors of the court, and the plaintiff being in may be compensated by pecuniary damages for the mental suffering, which is the most difficult of all others to estimate, the easiest feigned, the most dependent upon the accident of temperament and circumstance, are, it seems to me, entire departures from precedent and the principle which underlies the decided cases. I know no case where damages for mental

suffering are allowed solely because the plaintiff has a standing in court. They are allowed because of their intimate connection with the physical injury, because the physical injury cannot be separated from the mental suffering, so that damages from the former alone would adequately or justly compensate the person injured. The mental suffering is wrapped up with the physical. Here there is no connection between the tangible wrong, the loss of the fee, and the larger mental suffering. Here they are as distinct as two raisins on a bunch; in the precedents they are, like the same raisins in a plum pudding, part of one whole. The plum pudding illustration is scarcely sufficiently strong to show the dependence of the mental suffering in other cases upon the physical injury. The case of Victoria R. Coms. v. Coulten, supra, illustrates this part of the discussion. In that case the railroad company was negligent, causing fright resulting in damage to plaintiff, but no physical injury. The court, in the absence of physical injury could find no remedy for the plaintiff in all the books. See Lehman v. Railroad Co., 37 Alb. L. J. 285. The necessity for a judicial device, the loss of service in actions for seduction, shows also the dependence of the mental suffering upon the tangible injury. It is true that it is sometimes said that the loss of service in these cases permits the plaintiff to enter court; but after he enters, be recovers only that damage which is incident to the tangible wrong, including damage for mental suffering. Here too the damage is exemplary or punitory. It is scarcely possible to imagine a case where the negligence of these companies could amount to a malicious tort. Punitory damage is allowed only where the tort is active aud malicious. There is another point of view in which to view this case, which it seems to me shows that the conclusion of the court was wrong. The contract made by the company, and for which it received payment in advance, was to deliver the message correctly and without delay. It failed, through its own negligence, to fulfill its part of the contract. Can it be said then the plaintiff's loss of money paid for the transmission of the message, was in any sense the consequence of their negligence? If I hire A. to take my horse to another town and pay him in advance for the service, and he negligently fails, with no loss to me, except the money I have paid for the service, can I bring an action on the case for negligence, laying my damages only for the loss of the money I paid him voluntarily? It seems to me that it is plain that my only remedy is an action for breach of contract. In both instances the contractee fails to receive the fruit of his contract, the contractor not doing his part. The failure of fruit to the contract is the consequence of the negligence, not the failure of consideration. The title of plaintiff to the fees paid is founded on this total failure of consideration. I apprehend that it makes no difference, where time was of the essence of the contract, with the knowledge of the company, whether there was a simple delay or a total failure in the delivery of the message. In either case there would be a failure of consideration, and we need not and cannot look behind such failure for its cause, because whether it was a fault or misfortune, negligence or the act of God, or the public enemy is immaterial. This, it seems to me, is not analogous to the cases where a tangible loss has been incurred on account of the negligence of the company. There the fruit of the contract is lost, and such damages may be recovered in an action on the contract or on the tort, as the parties contemplated would ensue from the breach of the contract or the wrongful

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of the matter however, and it is right to say that the failure of plaintiff to receive a quid pro quo was a proximate consequence of the negligence, and so is an ele ment of substantial damages in an action on such tort, still the allowance of compensation for mental suffer ing in connection with the recovery of such fees, seems unsustained by precedent, and contrary to the principle which underlies the case. An action for se duction seems the only action which gives color to the idea that when the plaintiff has a standing in court, it will, from the necessity of the case, allow compensation for the larger mental suffering which flows from the wrong. There can be no reasonable claim that such suffering is incident to the tangible loss of the fees in this case. The Texas court to sustain itself must hold broadly that when once there is a tangible loss or physical injury, the plaintiff may recover damages not only for the mental suffering wrapped up with or incident to the tangible loss or injury, but all that flows from the wrongful act itself. I cannot reconcile this view with the decisions in statutory actions for damages for the killing of a rela tive. But there is another side to the question. These companies are public agencies, whose business is the transmission of intelligence, in which the feelings and affections of human nature have so large an interest. In the conduct of their business the public has an interest, and over such conduct exercises a control. It may be well then to examine the principles of the common law with a view to the discovery of one which will make them liable to respond in damages for the mental suffering they occasion by negligence in the performance of their contract, and in their public duty in the transmission of messages which they have notice will cause such suffering if not delivered in due time. The prin ciple as formulated by Mr. Sutherland (1 Suth. Dam. 157, 158), throws some light on the discussion. "When a contract is made to secure exemption from a particular inconvenience or annoyance, or to confer a particular enjoyment, the breach so far as it disappoints in respect to that purpose, may give a right to damages appropriate to the objects of the contract." In other words, when one enters into a contract, the performance of which will confer a special enjoyment, or prevent certain suffering, though the enjoyment or suffering is entirely mental, upon the breach he will be held to compensate the contractees for the suffering undergone or the enjoyment lost in consequence of such breach. In this case there was a breach of con tract as well as negligence on the part of the company. I think it will be fair to state the contract thus: the company knew the contents of the telegram; it may therefore be taken to have contracted to do all on its part which was necessary to be done to bring the father to his son. It must be taken to have contracted with

a view to the usual consequences which flow from a breach of such contract. One of these consequences was the distress of the son at the absence of his father. It failed to perform its contract. This seems to bring the case within the principle as formulated by Mr. Sutherland. It is true that the company did not contract to convey the father to the son, but it did contract to do a necessary one of a series of acts that lead to that result. In the absence of its performance, the particular enjoyment could not be conferred. Why cannot it be held liable to compensate the sender for the suffering which was in plain view of a breach of the contract? The action for breach of contract of marriage, which is only unique in allowing punitory damages for a breach of contract, seems somewhat analogous. There compensation is allowed for the suffering of mind and heart, which is the natural and usual consequence of a breach in such cases. It is so seldom that there is a tangible loss in these cases, that the evidence in nearly every one of them is confined to proof of contract, breach and the size of defendant's

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