when he leased the premises to the White House Lunch Room people that it would be necessary to move the partition.

A plumber testified that he undertook to install a boiler and hot water heater for plaintiff in premises 503 G street, charging $25 for the job. Did not finish the job because defendant's agent stopped him; was paid $15 for work done.

Defendant's testimony tended to show that he agreed to let plaintiff 503 G street, which had been a drug store; that between 501 and 503 he had run a partition. Agreed to let 501 for $80 per month, and 503 for $50. 505 and 507 were worth $50 each per month. Between the time that the lease was executed to the White House Lunch Room people and their taking possession, defendant talked with plaintiff about fixing up 507 for him. The White House Lunch Room people were in the corner a week before taking possession of 503. After plaintiff declined to take 507, defendant tendered him $50 back, which he declined, saying he would let defendant out of it for $200, which defendant refused. Premises 503, 505, and 507 were exactly of the same size. 507 had been rented at $45 per month. Plaintiff had locked the premises 503 when defendant tore out the partition between it and 501. On the trial defendant tendered back the $50 paid by plaintiff, which his counsel received. This had not been claimed as damages in the fourth count.

Counsel for defendant requested the court to charge the jury that they could only find nominal damages, because there was no evidence that the lease was worth more than $50 per month. The court refused this instruction.

The court left to the jury the question of whether the plaintiff's lease was for 503 or 507, and charged them that the measure of damages was the difference between the value of the leased premises and what plaintiff had agreed to pay. The jury were permitted to find exemplary damages, if they found that defendants had acted in a high-handed way in entering upon 503, and had acted wantonly and with a reckless disregard of the rights of plaintiff. This was objected to also and exception taken.

The jury were then instructed to assess the actual damages and exemplary damages in separate sums.

They returned a verdict for $650 actual, and $500 exemplary, damages.

Mr. W. Gwynn Gardiner and Mr. Blaine Coppinger for the appellant.

Mr. Daniel W. Baker and Mr. John W. Staggers for the appellee.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

We think it was error to permit the introduction of the lease as evidence of the value of 503.

There was no evidence tending to show that the corner, 501, was worth no more than the other rooms. On the contrary, the evidence tended to show that room was rented always at $80 per month, which left $100 for the other rooms, 503 and 505. The only evidence offered by plaintiff was that the lease on 503 was worth just what he had agreed to pay for it, namely, $50 per month. The only actual damage shown was the charge of the plumber of $15. Aside from this there was no evidence that 503 was worth more than the amount paid for it.

The question of the right to recover exemplary damages may be briefly considered.

There is no doubt that exemplary damages may be recovered for a wilful, wanton, and oppressive use of the landlord's power, nor is it necessary that there should be substantially actual damages as a foundation for the recovery of exemplary damages. Washington Post Co. v. O'Donnell, present term [ante, 215]. The judgment is reversed with costs, and the cause remanded for a new trial.

Reversed.

D. C.]

Syllabus.

RALSTON v. EASTER.*

TRUSTS AND TRUSTEES; DEFAULT OF COTRUSTEE; FORFEITURE; FEES AND COMMISSIONS; EQUITY; ACCOUNTING; COSTS; COMPROMISE AND SETTLEMENT.

1. Where the petition of one of two trustees for an order compelling his cotrustee to deposit the trust estate, consisting of cash and deed of trust notes, to their joint account, so that it will be under their joint control, has been refused by the court, it is the duty of the petitioning trustee to force an accounting by his cotrustee, and, failing in that, to resign and file with the court and his successor in office a full account of his transactions; and if after the denial of his petition he continues to act as trustee for several years, during which time the notes are paid and his cotrustee makes worthless investments of the proceeds, and on resigning he makes no report either to the court or his successor in office, he is liable to his cestui que trust for the default of his cotrustee.

2. Where trustees default or permit a trust estate to be wasted through their negligence, they may be held to forfeit any commissions or fees that have been paid them during their trusteeship.

3. A trustee who for several years, and until his resignation and the appointment of his successor, permitted his cotrustee to have the sole management and control of the trust estate, consisting of cash and deed of trust notes, during which time the cotrustee collected the notes and invested the proceeds in his own business, and his successor, who did not, on his acceptance of office, require an accounting by his predecessor or the managing trustee, are both liable to the beneficiaries of the trust estate for the default of the managing trustee, and forfeit any commissions which they have received; but since they have been at no time cotrustees, in an accounting they should be charged individually, and not jointly, with the commissions respectively received, as neither should be held responsible for commissions received by the other.

Trustees Liability-Default of Cotrustee.-For cases passing upon the liability of inactive trustee for defalcation of cotrustee, see note to Caldwell v. Graham, 38 L.R.A. (N.S.) 1029; as to the liability of coexecutor for default of one permitted to manage the estate, see note to Cheever v. Ellis, 11 L.R.A. (N.S.) 296.

Vol. XLIII.-33.

4. Where trustees under a will are authorized in a pending equity suit to sell the trust estate, and do so, and the purchaser refuses to take title because certain remaindermen are not parties to the suit, and their cestui que trust institute another suit making such remaindermen parties, the trustees in an accounting are entitled to credit for the costs and expenses incurred in the second suit, even though the object sought by it could have been accomplished in the first suit.

5. Where a trustee permitted his cotrustee, since deceased, to have the sole management of the trust estate, with the result that the latter sold a portion of it and invested the proceeds in partially worthless securities, and thereafter the surviving trustee, under direction of the court, effected a compromise and settlement, whereby something was realized from such securities, he is nevertheless chargeable with the full face value of the securities, as his neglect made the compromise and settlement necessary.

No. 2755. Submitted April 8, 1915. Decided April 26, 1915.

HEARING on separate appeals by the respondents from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity, requiring them to account as trustees of a trust estate created by will. Modified and affirmed.

The facts are stated in the opinion.

Mr. William E. Richardson and Mr. Stanley D. Willis, for the appellant Ralston, in their brief, cited: Adair v. Brimmer, 74 N. Y. 539; Adams' Estate, 221 Pa. 77; American Bonding Co. v. Richardson, 214 Fed. 897; Brown's Appeal, 1 Dall. 311; Banks v. Wilkes, 3 Sandf. Ch. 99; Bates v. Underhill, 3 Redf. 365; Bruen v. Gillet, 115 N. Y. 10; Cocks v. Haviland, 124 N. Y. 426; Cogbill v. Boyd, 77 Va. 450; Colburn v. Grant, 181 U. S. 601, 16 App. D. C. 107; Cozzens Estate, 15 N. Y. Supp. 771; Croft v. Williams, 88 N. Y. 384; Davis v. Kerr, 38 N. Y. Supp. 387; DeForest v. Fulton F. Ins. Co. 1 Hall, 130; Earle v. Earle, 93 N. Y. 104; Easter v. Ralston, 32 App. D. C. 12; Emery v. Batchelder, 78 Me. 233; Fesmire's Estate, 134 Pa. 67; Glacias v. Fogel, 83 N. Y. 434; Green v. Gaskill, 175 Mass. 265; Re Halstead, 89 N. Y. Supp. 806; Hays v. Hays, 3

Tenn. Ch. 88; Re Halstead, 89 N. Y. Supp. 806; Joy v. Campbell. 1 Schoales & L. 341; Kip v. Deniston, 4 Johns. 23; Kirby v. Turner, Hopk. Ch. 330; Langford v. Gascoyne, 11 Ves. 333; Manahan v. Gibbons, 19 Johns. 427; Mills v. Hoffman, 26 Hun, 594; Monell v. Monell, 5 Johns. Ch. 283; Ohio v. Guilford, 18 Ohio, 500; Ormiston v. Olcott, 84 N. Y. 339; Paulding v. Sharkey, 88 N. Y. 432; Peckham v. Newton, 15 R. I. 321; Purdy v. Lynch, 145 N. Y. 462; Ringold v. Ringold, 1 Harr. & G. 11; Shipbrook v. Hinchinbrook, 11 Ves. Jr. 252; Sutherland v. Brush, 7 Johns. Ch. 22; Taylor v. Roberst, 3 Ala. 83; Underwood v. Stevens, 1 Meriv. 712; Walker v. Walker, 88 Ky. 615; Westley v. Clerk, 1 Eden, 357; Williams v. Nixon, 2 Beav. 472; Wilmerding v. McKesson, 103 N. Y. 329; Hill, Trustees, 309, note 1; Perry, Trusts, $$ 453, 458; Story's Eq. § 1280, p. 520; 3 Williams, Exrs. 6th Amer. ed. p. 1930.

Mr. Charles Cowles Tucker, Mr. Evans Browne, and Mr. James G. Phillips, for the appellant Raleigh, in their brief, cited: 28 Am. & Eng. Enc. Law, 2d ed. 1069 et seq.; Amer. Bond Co. v. Richardson, 214 Fed. 897; Bruen v. Gillet, 115 N. Y. 10; Colburn v. Grant, 181 U. S. 601, 606, 607; Copeland v. Bruning, 44 Ind. App. 405, 414; Croft v. Williams, 88 N. Y. 384; 2 Dan. Ch. Pl. & Pr. 2d Eng. and 1 Am. ed. p. 1009; Dyer v. Riley, 51 N. J. Eq. 124; Fesmire's Estate, 134 Pa. 67; Fisher v. Boody, 1 Curtis, 206, 219; Glenn v. McKim, 3 Gill, 366, 386; Hanson v. Worthington, 12 Md. 441; Ilough v. Richardson, 3 Story, 659; McBurney v. Carson, 99 U. S. 567; McCabe v. Fowler, 84 N. Y. 314; McKim v. Aulbach, 130 Mass. 481; Re Halstead, 44 Misc. 176, affirmed in 110 App. Div. 909, reaffirmed in 184 N. Y. 563; O'Malley v. Mears, 240 Pa. 373, 87 Atl. 862; Ohio v. Guilford, 15 Ohio, 593, 18 Ohio, 500; Ormiston v. Olcott, 84 N. Y. 339; Peter v. Beverly, 10 Pet. 562; Preston v. Horwitz, 85 Md. 164; Purdy v. Lynch, 145 N. Y. 462; Re Rogers, 31 App. Div. 632, 53 N. Y. Supp. 25 and 1113; Snodgrass v. Snodgrass (Ala.; 1914), 64 So. 594; State v. Guilford, 18 Ohio, 500, 509; Stearns v. Page, 1 Story, 204, 214; Stowe v. Bowen, 99 Mass. 194; Townley v. Sherborne, Bridgeman's Reports, 35; Wagener's Estate, 190