What is sought to be effected by allowance of damages for breach of contract is to place the party wronged, as nearly as can be done, in the same situation with respect to the subject of the contract as its performance would have placed him in. Damages are substituted from necessity in the place of the contract performance, and are in theory an equivalent for performance. But compensation in money can rarely be an actual and exact equivalent. To come as near to it as possible is the object of the rules of law governing the rates of damages allowable under various circumstances.

No damages are claimed in this case for delay in performing the contract, but only for leaving the work undone. The case is, therefore, very simple, the only question being what amount in money, is with the part performed, most nearly an equivalent for the contract fully performed. Most clearly it is what it will cost to complete the contract. That will enable plaintiff to put the work in the condition contemplated. Judgment affirmed.

MICHAEL O'GORMAN, Respondent, vs. THE VILLAGE OF MORRIS, Appellant.

Filed November 25, 1879.

Recovery against a village corporation for damages occurring in consequence of neglect to properly cover a culvert across a street approved.

Appeal from order of district court, counties of Stevens, Big Stone and Traverse, denying defendant's motion for a new trial.

W. H. Harris, for respondent.

C. L. Brown, for appellant.

GILFILLAN, C. J. The common council of the village corporation has by the charter, authority to raise money for opening, building, grading, paving or repairing streets and crosswalks. Chapter 5, § 16, subd. 25, Sp. Laws 1878.

It appears that the injury to the plaintiff occurred in consequence, not of the omission of the corporation to assume

control of a street, but of its failure to properly cover a culvert laid across a street by authority of the corporation. If there was negligence in this, and the jury has found there was, of course the corporation is liable unless there was contributory negligence on the part of plaintiff. The verdict negatives the proposition that there was negligence on the part of plaintiff, and the evidence justifies the finding. There is nothing in the proposition that the damages are excessive. The plaintiff being entitled to recover they are very moderate. Order affirmed.

THE STATE OF MINNESOTA, Appellant, vs. R. B. GALUSHA, Respondent.

Filed November 21, 1879.

On motion for modification of original order.

*PER CURRIAM. In this case, the cause having been tried by the court below without a jury, and a judgment rendered in favor of the defendant, the plaintiff appealed to this court.

The only question on the appeal was who was entitled to judgment on the facts found by the court below. This court held that on such facts the plaintiff should have judgment, and ordered accordingly, reversing the judgment of the court below.

The respondent now asks that the order be modified so as to direct a new trial, instead of ordering judgment on the facts found; suggesting that the court below erred in its finding upon a material fact, without the existence of which fact the appellant could not be entitled to judgment.

This court has the power to order a new trial in such a case, instead of directing judgment on the facts found; and that is the proper course where it is made to appear that in the trial of any issue of fact the court below or the referee erred to the prejudice of the respondent, provided the fact be such that a different finding upon it from that made by the *For original opinion see 2 N. W. REP. 939; Minn. 179.

court below or referee would necessarily affect the judgment to be entered. If such do not appear upon the record the respondent may show it by affidavit or the minutes of the court, or of the short-hand reporter, where there was one.

In this case the issue as to which it is suggested the court below erred was as to the ownership of the lands upon which the timber was cut.

Upon an examination of the minutes of the trial we are satisfied that in the settlement with the auditor, and on the trial, it was taken for granted and not disputed that the lands belonged to the state. The auditor, as a witness, testified to it without any objections. No point was made of it till the evidence had closed.

Application denied.

MARY SANDERS, Respondent, vs. MARTIN S. CHANDLER,

Appellant.

Filed November 26, 1879.

In an action, by the owner, for converting personal property against a defendant who justifies as sheriff, under a judgment and execution against a third person, alleging that the property in question was the property of such third person, there being at the trial no evidence that the property belonged to such third person, it was proper for the court to withdraw the execution which defendant had proved from the consideration of the jury, and also to direct a verdict for the plaintiff.

In such an action, it being proved by plaintiff that the property converted (a quantity of wheat) was raised by her on a farm once owned by her husband, the defendant in the judgment and execution under which the sheriff justifies, and which was transferred to her several years before the debt on which the judgment was rendered accrued; and, also, that since said transfer she managed and controlled the farm, and the crops from it, for her own use and benefit, and there being no evidence that the husband was in possession of the wheat, or that he managed or controlled the farm, or received or enjoyed the proceeds thereof, it is not competent for the defendant to show that the transfer of the farm to the plaintiff was made with the intent to hinder and delay the creditors of the husband.

Appeal from order of district court, county of Goodhue, denying defendant's motion for a new trial.

J. C. McClure for appellant.

Williston & Hall, for respondent.

GILFILLAN, C. J. Action for taking and converting a quantity of wheat. The defendant justified as sheriff of the county of Goodhue, under an execution issued upon a judgment against James Sanders, who is plaintiff's husband. On the trial the plaintiff introduced evidence that the wheat taken was hers, and was raised on a farm managed by her, which in 1868 was conveyed by one Nugent to said James Sanders, and in 1871 by James Sanders and plaintiff to one Ward, and by Ward the next day to plaintiff.

The defendant introduced the judgment and execution under which he justified, and other evidence not of itself tending to disprove plaintiff's title, nor to disprove that she managed and controlled the farm, and then offered to show that the conveyance from Ward to her, in 1871, was made without any consideration, and for the purpose of hindering, delaying and defrauding the creditors of James Sanders, plaintiff's husband, and for the purpose of hindering, delaying and preventing the collection of the debts of James Sanders then existing and those to be contracted by him in the future. This was objected to as incompetent and immaterial, and excluded.

The judgment under which the defendant justifies was rendered five and a half years after the conveyance, upon an indebtedness incurred more than four years after, and it does not appear, nor was there any offer to prove, that at the date of the conveyance the plaintiff in the judgment was a creditor of James Sanders. The defendant thereupon rested his

case.

The court then, upon plaintiff's motion, withdrew from the consideration of the jury the execution introduced by defendant, and both parties having rested, instructed the jury to render a verdict for plaintiff for the value of the wheat taken, which the jury did.

It may be doubted if the reason given by the court below, on the trial, for withdrawing the execution introduced by defendant from the consideration of the jury, was correct; but its action was correct, for, as the evidence stood, there was nothing from which the jury could have found that the wheat was not the property of the plaintiff, and, therefore, the execution could have no effect in the case; and for the same reason the instruction to the jury to render a verdict for plaintiff was correct.

The evidence offered by defendant and excluded, as to fraudulent intent in the transfer of the farm to plaintiff in

1871, would not, if admitted, with all the other evidence in the case, have shown that plaintiff did not own the wheat, nor justified the jury in so finding.

The validity of that transfer as against creditors was not directly in issue, nor was the creditor in the judgment under which defendant justified in position to impeach the transfer unless for incidental purpose; for he was not a creditor at the time of the transfer, nor does the offer include evidence of a scheme by which he was to be induced to give credit to James Sanders, and to be prevented by such transfer collecting his debt to be so incurred.

It is unnecessary to determine whether, if the evidence already introduced tended to show that James Sanders was in possession of the wheat, or that he managed and controlled the farm, or received or enjoyed the proceeds; the evidence offered would have been proper in corroboration or explanation of such evidence to characterize, as it were, the acts of the parties in reference to this wheat, the property directly in question. For the evidence is uncontradicted that plaintiff, from the time of the transfer to her, managed and controlled the farm and the crops from it for her own use and benefit, as she had a right to do, under her title to the farm and while it remained in in her.

The fact that the farm was transferred to her with intent to defraud the grantor's creditors would not of itself defeat her right to the crops raised by her on the farm.

The court was, therefore, right in excluding evidence of the fact.

Order affirmed.

SAMUEL S. GILLAM, Respondent, vs. THE SIOUX CITY & ST. PAUL RAILROAD COMPANY, Appellant.

November 26, 1879.

Chapter 73, Laws of 1871, amending section 24, Laws of 1876, makes the obligation to construct fences, &c., provided by section 1 of said chapter 24, applicable to all railroad companies in the state. Regulating the construction and maintenance by railroad companies of fences and cattleguards at and along their track is the exercise of police power of the state. In any case the legislature may bind the state not to exercise this power.