agreeing to have the line finished by a certain day, and to pay the interest on certain bonds. Snell assumed the obligations of the L. B. & M. Co., and agreed with the T. W. & W. Co. that if the road should be completed before the time agreed between the two companies the interest on the bonds should be saved for all the time gained. The time fixed by Cottingham's contract was earlier than that of the contract between the companies. Snell had made his agreement with Cottingham with reference to his contract with the company, but this Cottingham did not know. Cottingham did not finish the road within the time agreed. It was held that Snell could only recover the value of the use of the road during the delay, and that the other contract could not be considered, as it was not in the contemplation of the parties.

In Phillips & Colby Construction Company v. Seymour, (*) the defendant failed in the payment of an instalment which was due the plaintiff for labor in the construction of the defendant's railroad. It was held, in an action for the defendant's breach of contract, that the defendant could generally recover for delays by the plaintiff in performance; yet in this particular case it was not error to have excluded this claim, for "the whole basis of this calculation is conjectural, uncertain, and vague. There is nothing on which a jury could have done anything but conjecture and speculate, at the hazard of sacrificing truth and justice." * In regard to contractors for works, another question sometimes presents itself, of great importance to the amount of recovery; and it is settled that where the parties agree that the estimate of any third party shall be conclusive on the question of remuneration, the courts will so treat it. If, indeed,

(") 91 U. S. 646. See this case as to the items recoverable in such actions.

§§ 626, 627. ACTIONS AGAINST STOCKHOLDERS.

279

by fraud or collusion, the arbitrator selected refuses to make an estimate, then the plaintiff may resort to other testimony. But he cannot do this so long as the defendant observes and insists on the contract.1**

§ 626. For forbearance.-* Contracts for forbearance are often entered into by creditors for certain considerations, on which they forbear to pursue their debtor during a given time. In a case of this kind, where the plaintiff had recovered judgment against his debtor, the defendant, in consideration that the plaintiff would forbear to sue out execution for a certain time, agreed to erect a house and lease it to the plaintiff; such erection and lease to be in full satisfaction of the judgment. The agreement not being performed, it was held that the value of the house was the measure of damages, and not the difference between the amount of the judgment and value of the house.*** For breach of a contract to forbear, it is held in Indiana that the measure of damages is limited by the amount forborne, with interest and costs to the sale. Damages sustained by a forced sale of the property levied on are too remote.(") Where the defendant had the plaintiff arrested, the latter may also recover the expense of obtaining a discharge.()

627. Actions against stockholders.--* The measure of damages in actions brought by incorporated companies against stockholders, upon calls made for payment of stock, furnishes us with another subject of inquiry. Where the defendant subscribed for stock which had been forfeited by the company, it has been held in New

1 Hotham 7. East India Co., 1 T. R. 638; Canal Trustees v. Lynch, 10 Ill. 521; Merrill v. Gore, 29 Me. 346; Easton v. Penn. & O. C. Co., 13 Ohio

79; Randel v. Chesapeake and D. Cana! Co., I Harr. 233.

2 Strutt v. Farlar, 16 M. & W. 249. See Ellison v. Dove, 8 Blatchf. 571.

(*) Indiana & I. C. Ry. Co. v. Scearce, 23 Ind. 223.
() Smith v. Way, 6 All. 212.

York that the forfeiture was not a bar to the action, but that the nominal value of the stock forfeited, less the actual cash value at the time it was declared forfeited, was the measure of compensation. And unless the value of the stock reaches the whole debt and interest,' the plaintiff must have judgment for the balance. (*) ** Where, in such actions, all the money subscribed is necessary for the purpose intended, the recovery is of course measured and limited by the amount subscribed; but if an amount less than the amount subscribed is all that is in fact required, it is held, in Illinois, that the recovery should be pro rata.() A promise to subscribe for a certain amount of stock in a plank-road company, to induce the selection of a particular route, if accepted, is valid, and may be enforced. The measure of damages is the difference between the value of the stock at the time of the trial, and the amount agreed to be paid for it. (©) On the other hand, on a breach of an agreement to give land for stock, if a specific performance cannot be decreed, in estimating the damages, reference should be had not to the nominal value of the stock, but to the land which ought to have been conveyed. (“)

§ 628. By assignees of bankrupts.-* Interesting questions are often presented in suits by assignees seeking to enforce contracts made by the bankrupt. In a case in assumpsit in the English Exchequer, the facts were that the bankrupt had, previous to his bankruptcy, delivered to the defendant a bill of exchange for £600, which he promised to discount, retaining 100 and the discount.

1 Herkimer Man. & H. Co. v. Small, 2 S. C. 2 Hill, 127.

21 Wend. 273.

(*) Johnson v. Stear, 15 C. B. N. S. 330.

() Miller v. Ballard, 46 Ill. 377.

(c) Rhey v. Ebensburg & S. P. R. Co., 27 Pa. 261.
(d) Dayton & C. R.R. Co. v. Hatch, 1 Disney 84.

§ 629. He kept the bill, however, and paid nothing to the bankrupt. On this state of facts, the judge who tried the cause told the jury that they were bound to give the £600, less the 100 and the discount. An effort was made to set the verdict aside, on the ground that the cause should have been left to the jury at large, and that the judge erred in telling them, as a point of law, that the sum above stated was the measure of damages. But the charge was held right, and the court said: "No doubt all questions of damage are, strictly speaking, for the jury, and however clear and plain may be the rule of law on which the damages are to be found, the act of finding is for them. But there are certain established rules according to which they ought to find; and here there is a clear rule that the amount which would have been received if the contract had been kept, is the measure of damages if the contract is broken." 1 (*)**

AGREEMENTS FOR ARBITRATION AND AWARD. 281

1

§ 629. Agreements for arbitration and award.-Where the defendant broke his contract to submit a dispute to arbitrators, it was held that the plaintiff could recover substantial damages, although it was found that he had no valid claim. The damages would include "expenses to which he had been subjected by reason of his necessary preparation for a trial before the arbitrators, on account of his own loss of time and trouble, and in employing counsel, taking depositions, payments to witnesses and arbitrators," and other expenditures; but he could only recover these so far as they were not available for the trial of his cause before the court, for he had to repair to the latter, and the only result of the defendant's act was

1 Alder v. Keighley, 15 M. & W. 117.

(*) The equitable assignee in this class of cases has no greater right than the plaintiffs in the record. Griffiths v. Perry, 1 E. & E. 680. But his right is equal to theirs: Ashdown v. Ingamells, 5 Ex. Div. 280.

to make him incur the extra expenses. It was said that the counsel fees were recoverable, for they were suitable and properly incurred, and the plaintiff was deprived of their benefit by the wrongful act of the defendant.(")

§ 630. To construct stations, etc.—Where a railroad company breaks an agreement to build a station at any given place, the measure of damages is the enhanced value of the land had the depot been erected.() In Missouri, K. & T. Ry. Co. v. Fort Scott () the company broke its contracts to extend its line to Fort Scott. It was held that plaintiff could recover either the value of the improvements for purposes of taxation, or, as the contract was entire, the whole consideration paid in advance; but evidence to show a decline in population and depreciation in real estate was inadmissible as being too speculative. Where a subscription was made to the stock of a railway company on the condition that the railway should pass by a certain place, which condition the company failed to comply with, but before their failure the subscriber had paid his subscription by a transfer of land to the company in an action by the subscriber against the company for breach of the agreement, the measure of damages was held the value of the land at the time of the transfer.()

§ 631. To build fences, walls, etc.-For breach of an agreement to build fences and cattle-guards, the measure of damages is the cost of building them.() But where

(*) Pond v. Harris, 113 Mass. 114.

() Mobile & M. Ry. Co. v. Gilmer, 85 Ala. 422; Louisville N. A. & C. Ry. Co. v. Sumner, 106 Ind. 55; Watterson v. Alleghany V. R.R. Co., 74 Pa. 208; Houston & T. C. Ry. Co. v. Molloy, 64 Tex. 607. This was said, however, to be too remote in Rockford, R. I. & St. L. R.R. Co. v. Beckemeier, 72 Ill. 267. See § 194.

(c) 15 Kas. 435.

(d) Jewett v. Lawrenceburgh & U. M. Ry. Co., 10 Ind. 539. (*) Logansport, C. & S. W. Ry. Co. v. Wray, 52 Ind. 578.