transported his turf. 3. That the buyer had an offer of thirty-two florins, which he had refused; and that, consequently, the seller was not liable unless, perhaps, for the expense of the bridge that the buyer might have made, and the transportation of the turf over it. Huberus thus answers these arguments: 1. The price was the common one, and, at all events, the objection was inadmissible in a case like this of fraud. Præterea per dolum hic prætextus excludebatur. 2. The objection came too late, because the seller was already condemned to respond in damages. As to the bridge, it was not to be required that this idea should have suggested itself to the buyer, nor was he bound to resort to such an expedient in case of fraud. 3. The buyer was not bound to receive thirtytwo florins for his turf at a time when he could sell them for forty. But the cause was decided on the basis of the offer of thirty-two florins; and Huberus seems to deplore the arbitrary control exercised by the courts over the subject of compensation. Quanquam juris ignitur rationes, pro triumphante (the plaintiff) militaire viderentur, tamen ut est hujus rei praxis valde lubrica et tantum non arbitraria, factum est ut venditor vix ultra quam obtulerat sit condemnatus.' It might be curious, if our space permitted, to compare the decision here made with what it would be in a similar case-say, a conveyance with a covenant of right of way-according to our jurisprudence. Among the more recent writers on the modern civil law, we find the same absence of any definite rule, of which I have already complained. Domat says,' the seller who fails to deliver must pay the damages caused Huberus, Prael. Juris., vol. iii, pp. 88, 89, SS 30 to 35. 2 Contrat de Vente, Loix Civiles, liv. 1, tit. 2, sec. 2, § 27. Troplong, in his masterly treatise De la Vente, com plains of the looseness of Domat on the subject of the measure of damages; but the difficulty appears to be rather in the system than in the author. by his default, according to the circumstances of the case. Thus, he who contracts to deliver any article of merchandise, the price of which rises at the time and place fixed for delivery, must pay the actual value at such time and place, as well on account of the profit that the purchaser would have made by reselling them there, as on account of the loss that he sustains by being obliged to purchase other articles at a price exceeding that of his bargain. So, he says that the purchaser would be entitled to his expenses actually incurred on coming to receive the article which was to have been delivered, but that remote and unforeseen consequences are not to be taken into consideration. Thus, for instance, if the seller failing to deliver the commodity at the time and place fixed on, the purchaser has been made unable to transport them to another place, where he could sell them at an advance; or if, by reason of the non-delivery of the article, he has been obliged to send off his workmen, and to stop some work of which the cessation causes him considerable injury, the seller will be considered liable, neither for the profit lost nor the injury sustained; for these consequences are not to be imputed to the default of delivery, but result from the arrangements of a higher power, and accidental circumstances which no one can control.1 ** 1 Cont. de Vente, liv.. i, tit. 2, sec. 2, § 18. CHAPTER XXVI. THE MEASURE OF DAMAGES IN ACTIONS UPON CONTRACTS OF INDEMNITY. 784. Contract of principal and § 796. Payment. surety. 785. Implied contract of indemnity. 786. Express contract of indemnity. 787. Interpretation of the contract. 788. Measure of damages on contracts of indemnity. 789. Contracts to pay or discharge a debt. 790. The rule not to be approved on principle. 791. Contracts to indemnify or save harmless. 792. Early cases erroneous. 793. Later cases follow the true rule. 794. Actual loss always recoverable. 795. Contracts to save from liability, etc. 797. Payment by note. 798. Note must be accepted as payment. 799. Payment by bond or non-negotiable note. 800. Payment in land or goods. 801. Compensation for actual loss only. 802. Judgment against surety often conclusive on principal. 803. Litigation expenses. 804. None where suit was unneces- 805. Notice of suit. 807. Co-sureties. 808. Costs between co-sureties. §784. Contract of principal and surety.-* The contract of suretyship is one of very frequent occurrence, arising in some cases by implication of law, as between the parties to negotiable paper, or debtors and their bail; in others it is created by express agreements of guarantee. These, again, sometimes take the form of indemnities and contracts to save harmless, and at others assume the more binding shape of express contracts to do the particular thing in question; in which last case, indeed, the peculiar relation of principal and surety often ceases to exist.' "In ancient times," said Buller, J.. in Toussaint v. Martinnant, 2 T. R. 100, "no action could be maintained at law, where a surety had paid the debt of his principal. Now, why does the law raise such a promise? Because there is no security given by the party. But if the party choose to take a security, there is no occasion for the law to raise a promise." The questions that ordinarily present themselves, as between the principal debtor and the party who has assumed for him the obligations of a surety, relate to the circumstances which entitle the latter to call for repayment of any sum he may have been obliged to pay for him; the mode of that payment; and the collateral expenses, legal or otherwise, of which he can demand reimbursement. These questions sometimes arise in actions by sureties against their principals, sometimes in suits against the sureties themselves; and though the law generally tends to favor the surety, still, so far as the construction of the contract is concerned, no difference is made as to the manner in which the case is presented. There is another class of cases of a mixed character, where actions are brought against sureties for sheriffs, constables, or other public officers. As these cases involve the consideration of the principles of the measure of damages in actions on official bonds, we have already treated them in the chapter on that subject. It is only necessary, therefore, here to consider the liabilities of principal and surety as arising out of private contract. Let us first bear in mind the clear distinction that exists between two classes of cases, falling under the general head. "It is the distinction between an affirmative covenant for a specific thing, and one of indemnity against damage by reason of the non-performance of the thing specified. The object of both may be to save the covenantee from damages, but their legal consequences are essentially different."** § 785. Implied contract of indemnity.-* A surety for the payment of money cannot call on his principal until he has paid the debt.(*) So it was early held by Lord Mansfield, 1 Gilbert v. Wiman, I N. Y 550, 562. (*) Churchill v. Moore, 15 Kas. 255; Hall v. Nash, 10 Mich. 303; Butler v. in regard to a surety in a bond; "till damnified," said his lordship, "which he could not be till he had been called upon and had paid, he could not bring an action." And so it has been held in New York, where the surety had been sued and charged in execution, that not having paid the debt, and having no promise to indemnify him, he could not recover against his principal.' For this a technical reason also exists, that the only action that can be maintained in such case is assumpsit for money paid, which, of course, will not lie until money or its equivalent is paid.** There is in this case no express contract of indemnity, and no reason for the law to create a promise until the surety has actually lost property for which the principal should in equity compensate him. S786. Express contract of indemnity.-* Where the plaintiff holds an express promise to indemnify and save him harmless, there he can maintain an action without having paid the debt; and we shall presently examine the extent of compensation allowed for the injury he alleges himself to have sustained. But where the plaintiff holds not merely an agreement to indemnify and save him harmless against the consequences of the default of the other, but an express promise to pay a debt, or to do some particular act, then the position of the parties entirely changes. The relation of principal and surety disappears, and it has been held that the failure to perform the act agreed on gives the plaintiff a right of action. 1 Taylor v. Mills, Cowp. 525; Paul v. Jones, 1 T. R. 599; Powell v. Smith, 8 Johns. 249: Rodman v. Hedden, to Wend. 498; Pigou v. French, I Wash. C. C. 278. 2 Powell v. Smith, 8 Johns. 249. 3 Rodman v. Hedden, 10 Wend. 498. The bail of a deputy sheriff are not liable unless the sheriff has been damnified or made legally liable in consequence of the dereliction of the deputy. Hughes v. Smith, 5 Johns. 168; Rowe v. Richardson, 5 Barb. 385. Ladue, 12 Mich. 173; Thompson v. Richards, 14 Mich. 172; Kenyon v. Woodruff, 33 Mich. 310; Burt v. Dewey, 40 N. Y. 283. |