Branger v. Chevalier.

Chevalier had paid out of it for Chamon to others, not including the firm; and then whatever net sum Chevalier received for the firm, should have been charged to him. To ascertain the sum collected and retained by Chevalier for the firm, the interest received on the $5,267 32 should have been apportioned between him and the firm, in proportion to the amount due to each. But, in the account of Driard and Branger with the firm, they are credited with several items, (on pages 205 and 207 of the record,) as having been received by Chevalier from Chamon, amounting in all to the sum of $2,561 48; and the same items are charged to Chevalier in his account with the firm, (record, pages 176 and 178.) From the account rendered by Chevalier as to the amounts collected by him of Chamon, there was only the sum of $1,244 remaining in his hands as the property of the firm; the other portion of the $2,315 having been paid to others, according to the terms of the mortgage. This sum of $1,244 was subject to distribution among the partners. Instead of which Chevalier is charged with a larger sum than the whole gross amount received by him from Chamon, and is not allowed any credits for payments made to others for Chamon. This would seem to be error. There may be some entry in some other portion of the accounts correcting this mistake, but we have been unable to find it, if there be such; and it has not been pointed out by the counsel on either side.

It is insisted by the counsel for plaintiffs that if there be error in the report of the referee, the defendant has not taken the proper method of bringing it before the Court. The testimony is contained in the report of the referee, and properly certified by him. When the referee excludes proper testimony, or admits improper evidence, or does any other act materially affecting the rights of either party during the progress of the trial before him, then such party should except, and see that the exception is truly stated in the report. But when the alleged error consists in the final conclusions of law or fact drawn from the testimony, and the evidence is certified to the Court by the referee, the proper course is to move to set aside the report, and for a new trial. This was done in this case. It is true that the statement on the motion for a new trial was not settled by the Judge. The statement was made by the attorney for defendant, and proposed amendments filed by the attorney of plaintiffs; and nothing further was done in reference to it, as appears from the record. In such a case the attorney of defendant must be held as consenting to the amendments, and both parties as agreeing to the statement as amended. It is also true that the affidavits used upon the hearing of the motion for a new trial are not set forth in the record. The only effect of this omission is to deprive the defendant of all ground of error based upon the affida

Coffee v. Meiggs.

vits; but the omission does not affect his right to raise the question as to errors apparent upon the face of the report itself.

There is nothing in the record to show what was the testimony before the jury; and we must presume that it was sufficient to warrant their conclusion that there was a mistake in the stated account of the thirty-first of August, 1854.

Our conclusion is, that the Court erred in setting aside the stated account aud directing an account to be taken de novo. We also think that the report of the referee, in reference to transactions since the date of the mortgage, was erroneous in some particulars, and should have been set aside.

For these reasons the judgment is reversed, and the cause remanded for further proceedings.

COFFEE v. MEIGGS et al.

Where from the nature of the contract it is not practicable to ascertain the amount of damages sustained by a breach of contract, the measure is the price agreed to be paid.

APPEAL from the District Court of the Twelfth Judicial District, County of San Francisco.

A statement of the facts appears in the opinion of the Court.

S. M. Bowman for Appellant.

The plaintiff made no proof of the value of the work done, nor for any damages sustained. He cannot claim the whole contract price. Sedgwick on Damages, 222; Clark v. Mayer, 4 Com., 338; Freeman v. Clute, Barb. S. Ct., 424; Marston v. The Mayor of Brooklyn, 7 Hill, 73. Reynolds v. Jordan, 6 Cal. R., 108, is in point.

John Satterlee for Respondent.

The only point really in this case, is the rule of damages laid down by the Court. In such a case as this, the rule or measure of damages is the price agreed to be paid.

The contract was not to build a steam-engine or boiler of certain materials and certain capacity, the cost and expenses of which any builder of engines and boilers, or competent engineer, could exactly estimate. It was not to build a steamboat of certain dimensions and materials, the cost of which any ship-carpenter could exactly ascertain. It was not to build a house according to certain plans and specifications, which any

Coffee v. Meiggs.

architect or house-builder could accurately calculate, but it was "to make such alterations and repairs in the steamer Resolute as he (the plaintiff) might deem necessary, so as to make the boat and boiler and engine perform in a certain manner." If he could succeed in accomplishing the object aimed at, within six days from the date of the contract, the defendants were to pay him one thousand dollars. If he failed, he was to "forfeit all claims for services and materials."

It is impossible for anybody to tell what it would have cost plaintiff to perform the work-impossible to tell what profits he could have made. Only a part of his plan of alterations was disclosed; only a part of what he intended to do was done. So far as he went, his alterations were an improvement. Nobody can tell but that when his men stopped work, he had made all the alterations and repairs which he intended to make, except what he intended to perform with his own hands. The alterations and repairs contemplated by the plaintiff, he was not bound to disclose. That was his secret. His skill, knowledge, and experience, were his capital upon which he relied, and took his risk.

Indeed, he was not bound to prove that he could have succeeded. He was entitled to the opportunity to try.

There is, therefore, no mode of ascertaining the damages of the plaintiff, except by adopting the contract price as the measSee Judge Norton's opinion in this case; 1 Labatt's Dist. Court Reports, p. 248; see, also, particularly Baldwin v. Bennett, 4 California Rep., 392; see, also, Byrd v. Boyd, 4 McCord, 246.

ure.

TERRY, C. J., delivered the opinion of the Court-BURNETT, J., and FIELD, J., concurring.

Plaintiff was employed by defendants to make certain alterations on a steam-engine, defendants agreeing, in the event that a certain result was attained by such alterations, they would pay the plaintiff one thousand dollars; plaintiff to forfeit all compensation for labor or materials if the alterations did not produce the desired result.

The nature and extent of the alterations were left entirely to the option of plaintiff.

In the progress of the work, plaintiff attempted to remove a certain copper pipe belonging to the engine, for the purpose of making alterations in it, but was prevented by defendant; plaintiff then abandoned the work.

Plaintiff had judgment below for the full amount named in the contract, and defendants appealed.

In Baldwin v. Bennett, 4 Cal., 392, it was held that where, from the nature of the contract, it is not practicable to ascertain the amount of damages sustained by a breach of contract, the measure is the price agreed to be paid.

McMillan v. Richards.

In this case, it is impossible to arrive at the precise amount of damage sustained by plaintiff; if the nature, extent, and probable cost of the alterations contemplated by him were known, then the measure would be the difference between such cost and price agreed to be paid. But as there was no evidence on this point, the rule adopted by the Court below was the only one applicable to the contract. Judgment affirmed.

MCMILLAN v. RICHARDS et al.—PEOPLE ex rel. MCMILLAN v. VISCHER, SHERIFF OF MARIN CO.-McMILLAN v. HYATT et al.

The settled doctrine of equity now is, that a mortgage is a mere security for a debt, and passes only a chattel interest; that the debt is the principal and the land the incident; that the mortgage constitutes simply a lien or incumbrance; and that the equity of redemption is the real and beneficial estate in the land, which may be sold and conveyed by the mortgagor in any of the ordinary modes of assurance, subject only to the lien of the mortgage.

This equitable doctrine has been adopted in this State, and asserted, directly or indirectly, in repeated instances by this Court.

The mortgage being a mere security for a debt, it must follow, that the payment of the debt, whether before or after default, will operate as an extinguishment of the mortgage.

The original character of mortgages has undergone a change. They have ceased to be conveyances except in form. They are no longer understood as contracts of purchase and sale between the parties, but as transactions by which a loan is made on the one side, and security for its repayment furnished on the other. They pass no estate in the lands, but are mere securities; and default in the payment of the money secured does not change their character.

Proceedings for the foreclosure of mortgages, in the sense in which the terms are used in England, and in several of the States, by which the mortgagor, after default, is called upon to repay the loan by a specified day, or be for ever barred of his equity of redemption, are unknown to our law. The owner of the mortgage in this State can in no case become the owner of the mortgaged premises except by purchase upon sale under judicial decree consummated by conveyance.

A foreclosure suit by our law, results only in a legal ascertainment of the amount due, and a decree directing the sale of the premises, for its satisfaction, the surplus, if any, going to subsequent incumbrancers or the owner of the premises, and execution following for any deficiency.

The statutory right of redemption is equally applicable to sales under decrees in mortgage cases as to sales under ordinary judgments at law.

The estate of a mortgagor and of a judgment-debtor after sale, stand upon the same. footing, and the insertion in the decree of a clause foreclosing the equity of redemption, is a useless formula, which cannot enlarge the effect of the decree, or any rights of the mortgagee under it.

The decisions as to the estate of the judgment-debtor after sale become, therefore, authorities for determining the estate of the mortgagor after sale under the decree; and from them it will be found that the estate must remain in the mortgagor until a consummation of the sale by conveyance, as it does in the judgment-debtor, and that the conveyance when executed will take effect, in the one case, from the date of the mortgage, as it does in the other from the time the lien of the judgment attached.

McMillan v. Richards.

It follows, that a creditor of the mortgagor obtaining a judgment after sale under the decree of foreclosure, but before the execution of the conveyance thereunder, acquires a lien on the estate entitling him to redeem.

Such lien and right to redeem would be lost, where a prior judgment had been obtained by a third party against the mortgagor, under which his estate subject to the mortgage had been sold, and the time for redemption had elapsed, and a conveyance had been executed.

The legal estate exists in the judgment-debtor after expiration of the time to redeem, until execution of the conveyance to the purchaser.

The purchaser at an execution-sale, before conveyance to him, has a right to redeem the property sold on the enforcement of a prior lien; after conveyance to him he has the same right as successor in interest to the debtor or mortgagor.

A redemption of property sold under a decree of foreclosure is accomplished, by payment, under protest, of the amount claimed to be due by the sheriff, though certain portions claimed are disputed.

The object of a protest is to take from the payment its voluntary character, and thus conserve to the party a right of action to recover back the money. It is available only in cases of payment under duress or coercion, or when undue advantage is taken of the party's situation. It has no application to voluntary payments. It does not create a lien upon the money paid, or any legal impediment to its control. It does not impair, in any respect, the operative effect of the payment as a discharge of the demand upon which it is made, so far as such demand is legal. It is notice, only, to the party receiving the payment, that, if the demand is illegal in whole, or in any specified particulars, he may be subjected to an action for the recovery back of the amount to which objection is made; and if action be brought, the protest is only available as evidence of the fact of compulsion.

Nor will the subsequent institution of suits by attachment and injunction to obtain and secure the repayment of the amount alleged to have been overpaid in the redemption, destroy the operative effect of the payment as a redemption.

Where money has been placed on general deposit in a bank, and negotiable certificates of deposit have been issued to the depositor for the amount, there is nothing left in the possession of the bankers belonging to the depositor, upon which an attachment issued against his property can fasten. The bankers, by their certificates, become liable, not to refund to the depositor the specific money deposited, but to pay its amount to the holder of the certificates, whoever he may be, on their presentation. Where money is paid upon compulsion, the law raises an obligation to refund, and the form of the action is for money had and received to the plaintiffs' use. The words "had and received to the plaintiffs' use," are put as the consideration upon which to support the assumpsit on the part of the defendant.

Proceedings for a mandamus to compel the execution of a sheriff's deed to a redemptioner, after sixty days from the redemption, under section 232 of the Practice Act, can be commenced in the county where the relator resides; the provision of the statute that actions against a public officer for acts done by him in virtue of his office, shall be tried in the county where the cause or some part thereof arose, applies only to affirmative acts of the officer, by which, in the execution of process or otherwise, he interferes with the property or rights of third persons, and not to mere omissions or neglect of official duty.

The proceeding does not involve the determination of a right or interest in real estate. The relator claims only an official document, the possession of which will enable him to assert any rights he may have acquired. The awarding of the mandamus can not determine these rights, or in any respect affect the interests of third parties.

APPEALS from the District Courts of the Seventh and Twelfth Judicial Districts, Counties of Marin and San Francisco.

These three cases were argued together, as they all grew out of the same transaction. The first of the actions was ejectment, brought by plaintiff against defendants, to recover a tract of land in Marin county, tried before the District Court without a jury. The Court rendered a decision in favor of defendants, against