This

son assigned cannot support the objection. But the defendant contends that the instruction announces a correct principle of law as applicable to the facts which the evidence tended to establish. The following facts stand admitted by the pleadings: That, at the time of entering into the contract, the defendant well knew and had in contemplation the known purpose of plaintiff to resell said cattle at the public market rates current for cattle which should prevail upon the day of their contemplated arrival in San Francisco, to a buyer then known to plaintiff, and who had theretofore agreed with him to purchase at such rates and at the time of such arrival. It may be stated as a general rule that the measure of damages for the breach of an executory contract to sell and deliver is the difference between the contract price and the market price of the goods bargained for at the time and place of the contemplated delivery. The reason of the rule is that the purchaser may, if the vendor fails in delivery, go into the market, and supply himself with such goods as he had contracted for; and thus it is that, if the market price exceeds the contract price, he would be directly injured by the amount of the difference. difference he could recover as damages. But the rule fails of application when there is no market at the place of delivery, and the goods are bought for resale at a distant market, and this fact was known to the vendor at the time of entering into the contract. 1 Suth. Dam. (2d Ed.) 116. The leading case announcing the principle upon which damages are awarded for breach of contract where the conditions above suggested prevail is that of Hadley v. Baxendale, 9 Exch. 341. At page 353, Alderson, B., says: "Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally (i. e. according to the usual course of things) from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances,

from such a breach of contract." Mr. Benjamin deduces the following rule from the English cases where goods have been bought for the purpose of resale, and there is no market in which the buyer can readily obtain them: "If, at the time of making the contract, the seller knows that the buyer buys the goods with the intention and for the purpose of reselling them, although he may or may not know of any particular subcontract existing or contemplated, the inference is that the seller contracts to be liable for the increased damages which will flow from a breach of the contract under the special circumstances; and, applying the second part of the rule laid down in Hadley v. Baxendale, those damages may readily be supposed to be within the contemplation of the parties." Benj. Sales (6th Ed.) 879. The American doctrine is substantially the same, and comes within the reasoning of many cases, which may be stated briefly: A person injured by the breach of a contract to which he has become a party with another is entitled, upon principle, to recover damages commensurate with the injury he has sustained, and this will include gains prevented as well as losses sustained. They must be such, however, as naturally result from the breach, or may reasonably be considered to have been in the minds of the parties at the time of entering into the contract; the contract itself being, impliedly at least, formulated with reference thereto in the event of a violation of its conditions. The intention of the parties is to be ascertained from a consideration of the contract, taken in connection with the surrounding circumstances and conditions of whicn they are cognizant; and, if the circumstances and conditions are such as to make it apparent that the contract was entered into and known by the contracting parties to have been consummated to enable one of them to serve or accomplish a particular purpose, the liability of the other for its violation will be determined, and the damages ascertained with reference to the effect of the breach, in hindering or defeating the contemplated object. They must also be certain, and flow directly and naturally from the breach; or, to put it in another way, they must not be the remote, but the proximate, consequence thereof, and not speculative or contingent. 1 Suth. Dam. (2d Ed.) 103, 118; Griffin v. Colver, 69 Am. Dec. 718; Booth v. Mill Co., 60 N. Y. 492; Lewis v. Rountree, 79 N. C. 122; Harrow Spring Co. v. Whipple Harrow Co. (Mich.) 51 N. W. 197; McHose v. Fulmer, 73 Pa. St. 367; Abbott v. Hapgood, 150 Mass. 248, 22 N. E 907; Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444; Vickery v. McCormick, 117 Ind. 594, 20 N. E. 495; and Cockburn v. Lumber Co., 54 Wis. 619, 12 N. W. 49. The last case cited is much in point. The plaintiff purchased of defendant at Ashland, Wis., two cargoes of white pine deals, for resale in the market at Quebec, which was known to the defendant. The defendant failed to fill the contract; and, there being

no market at Ashland into which plaintiff could go to purchase the cargoes, the measure of damages was adjudged to be the difference between the contract price, with expense of transportation from Ashland to Quebec and costs of inspection added, and the price of such lumber at Queber. Now, assuming that there was no market at Medford whereat the plaintiff could purchase other cattle, as to which there was some evidence (the question, however, being left to the jury if disputed), the court's instruction was proper.

As to the second objection,-that the court, in effect, told the jury that defendant had violated the contract on his part,-while the instruction is perhaps subject to criticism, yet it is not probable that the jury was misled, and it was therefore harmless. But, as the case must go back, there may be no occasion for such criticism on a retrial.

The next objection was taken to the instruction of the court touching an expense incurred on account of having contracted with the Southern Pacific Railroad Company specially for cars by which to have the cattle shipped to San Francisco. It is alleged that the contract with the company contemplated that, if the cars furnished in accordance therewith were not used, plaintiff should pay it for specially furnishing and holding them in readiness, and that it was understood by the partie that transportation would have to be so .specially provided for, in order to enable plaintiff to ship the cattle in obedience to the conditions of the contract between him and the defendant. If there was evidence tending to support such allegation, it was competent to instruct that, in case of a breach on the part of defendant, plaintiff was entitled to recover as damages such usual and reasonable charges as plaintiff was compelled to pay the company for specially furnishing and holding in readiness the cars and appliances for transportation necessary for the shipment of this lot of cattle. This element of damages comes also within the reasoning of the rule hereinbefore discussed, and the court's instruction in this regard is unobjectionable. As sustaining this special item of damages, see Borries v. Hutchinson, 18 C. B. (N. S.) 460, and Harrow Spring Co. v. Whipple Harrow Co., supra.

Some other errors are assigned, but, as the questions to which they allude will probably not arise on a retrial, we have not considered them. The judgment of the court below will be reversed, and a new trial ordered.

chief that he gave a consideration for the note, such testimony is material to the issues made, and the defendant is entitled to cross-examine in regard to the consideration.

Appeal from circuit court, Jackson county; H. K. Hanna, Judge.

Action by T. J. Kenny against Enoch Walker and others. Judgment for plaintiff, and defendants appeal. Reversed.

This is an action to recover the amount claimed to be due on two promissory notes executed by the defendants to the order of one W. J. Gooch, who, it is alleged, assigned them to the plaintiff for a valuable consideration, and before maturity. The complaint contains two separate causes of action, and is in the usual form. The defendants, after denying the material allegations of the complaint, allege, as a further defense to each cause of action, that they were induced by the fraud and false representations of the payee to sign and deliver said notes without consideration, and that the plaintiff had full notice and knowledge of such false representations and fraud prior to his alleged purchase of them, and also knew that the defendants claimed to have and expected to maintain a good defense to any action that might be instituted thereon. Upon the issues made a trial was had before the court, at which the plaintiff testified in chief that he was the owner and holder of said notes, and had purchased them for a valuable consideration, before maturity, and that the indorsement on each was in the handwriting of the payee. Thereupon the notes, over the objection and exception of the defendants, were received in evidence. No evidence having been offered on behalf of the plaintiff tending to show what consideration was paid for either note, the following questions were then propounded to him on cross-examination: "How much did you pay for these notes, or either of them? You say you paid a valuable consideration for these notes. What was that valuable consideration?"-to each of which the plaintiff, by his counsel, objected, and, the objections being sustained, exceptions to the ruling were taken and allowed. Thereupon both parties rested, and the court, having made findings on all the issues in favor of the plaintiff, gave judgment thereon, from which the defendants appeal.

Francis Fitch, for appellants. Wm. M. Colvig, for respondent.

MOORE, J. It is contended in behalf of the defendants that, the plaintiff having testified in chief that he paid a valuable consideration for the notes, the court erred in refusing to permit the witness to be crossexamined in respect to the nature or amount thereof, while the plaintiff's counsel insists that the burden was on the defendants to show a want of consideration or fraud in their execution, and that, the notes having been received in evidence, his testimony was

him, says: "These were all matters of legitimate cross-examination, and went to impeach the consideration of the very instrument under which plaintiff was claiming the right to the possession of the property in question." The plaintiff, having testified that he paid a valuable consideration for the notes, might deem further evidence of the fact unnecessary; and, although the defendants, by their evidence, might thereafter shift the burden, the plaintiff, by anticipating it, met the contingency, and proved the fact in issue, and, if he could not then be cross-examined, he might escape it altogether by declining to take the witness stand, thereby depriving the defendants of a substantial right. The plaintiff's opinion of what he considered a valuable consideration might not satisfy a court or jury; but if he could not be crossexamined on the subject it would be binding, and must necessarily aid in giving weight to the presumptions incident to possession of the notes. Had the defendants introduced evidence tending to show a want of consideration or fraud in their execution, and the plaintiff thereupon testified that he paid a valuable consideration for them, no one would deny the right to cross-examine the witness on the subject. The plaintiff, declining to rely on the legal presumptions which he might have invoked, anticipated the defense, and voluntarily assumed the burden of showing that he paid a valuable consideration for the notes; and, having adopted this course, he thereby accepted the burden of proving the fact in issue, and, his evidence being material, the court erred in refusing to permit the defendants to cross-examine him. It follows that the judgment must be reversed, and a new trial ordered.

1. On a trial for assault and battery, it appeared that a lease from defendant to prosecutor contained a covenant against sale of intoxicants on the premises, and a stipulation that, on breach of such covenant, defendant could enter without process of law, and use such force as might be necessary to regain possession; and it was shown that defendant, after prosecutor had refused to surrender the premises on breach of condition, entered and locked the building, and that the only force used was in preventing re-entry by prosecuto. Held, that it was error to charge for conviction if defendant used force in "obtaining possession."

2. The statute taking away the right of a lessor to use force in regaining possession for breach of condition does not invalidate a clause in a lease providing that, on breach of condition, the lessor may enter and use such force as is necessary to remove the lessee.

3. On trial of a lessor for assault and battery alleged to have been committed in regaining possession for breach of condition, it was error to charge that the entry was with force, within the statute forbidding forcible entry, if made against the will of the occupant.

Error to El Paso county court. William Goshen was convicted of assault and battery, and brings error. Reversed. William Harrison, Brinson & Musser, and J. L. Williams, for plaintiff in error. Byron L. Carr, Atty. Gen., and F. P. Secor, for the People.

GODDARD, J. To understand the ground upon which the correctness of the instructions complained of is challenged, a brief statement of the facts is necessary. On the 29th day of May. 1893, Goshen executed a lease to V. J. Holeck, the complaining witness, for certain premises situate in Colorado Springs, Colo., for the term of three years, which contained a covenant that the lessee would not use or permit said premises to be used for any purpose prohibited by the laws of the United States or of Colorado, or contrary to what is known as the "Colorado Springs Special Covenant," with reference to the sale of intoxicating liquors, and furthermore stipulated that, upon a breach of any of the covenants therein contained, it should be lawful for the lessor, at his election, to declare the term ended, and, either with or without process of law, to re-enter and remove the lessee, using such force as was necessary. On the 30th day of June, Goshen went to the premises in company with Mr. Berry and Mr. Fletcher, and demanded possession of the premises, for an alleged breach of this covenant. Holeck refused to give up possession, but, having temporarily stepped outside, Goshen locked the door, and refused him admittance. Thereupon Holeck went away, and, after an absence of about two hours, returned, and, being again refused admittance, broke the door in, and attempted to enter, when he claims that Berry and Fletcher, who were there acting in behalf of Goshen, seized hold of him, and beat him.

The court instructed the jury, in substance, that, under the terms of the lease, Holeck was in lawful possession of the property at the time of the first assault and battery charged; and that, although he may have broken some of the covenants therein, Goshen had no right to regain possession of the property by force, but should have resorted to the remedies given by the laws of the state; and that if, in attempting to take possession, he, or any one whom he advised or encouraged to perpetrate the act, did use force in obtaining possession, and, in doing so, struck or beat Holeck, then they should find him guilty, as charged in the information. The court further instructed the jury that the defendant had the right, after the condition was broken, to enter, if he could, without force, and that any entry was with force, within the meaning of the law, that was made against the will of the occupant.

We think these instructions are erroneous when applied to the facts in the case. There was no evidence tending to show that the defendant, or any one else in his behalf, used

any force in entering the premises, or committed any assault upon the prosecuting witness at that time; that whatever violence was used, if any, against the prosecuting witness, was at the time he broke the door and attempted to re-enter. And, furthermore, the instructions are erroneous in so far as they deny the right of the defendant to regain possession of the property by force, except as defined by the court. Nor is it true that an entry is with force simply because against the will of the occupant. The force contemplated by the forcible entry act is actual force, aud an entry made with no more force than such as is implied in an ordinary trespass is not within the meaning of the statute. While our statute of forcible entry takes away the right that existed at common law to make entry by force, although the right to possession may exist, a license to make such an entry does not contravene this statute; and the landlord may, under the provisions contained in this lease, enter and remove a tenant upon covenant broken, if he uses no unnecessary force to accomplish the purpose. Ambrose v. Root,

11 Ill. 497; Page v. De Puy, 40 Ill. 506; Fabri v. Bryan, 80 Ill. 182. If plaintiff in error had the right of entry by reason of a breach of covenant on the part of Holeck, he was not obliged to resort "to remedies given by the laws of the state," but could avail himself of the right to re-enter, under the stipulation in the lease, using no more force than was necessary to remove the complaining witness; and, if he so entered, his possession at the time the assaults and batteries are alleged to have occurred was lawful, and he had the right to defend that possession by resort to force, if necessary. His guilt or innocence of the charges, therefore, depended upon whether he used excessive and unnecessary force in defending a possession which was rightful at the time. This theory of the law was correctly stated in the second instruction asked by the defendant, and the court erred in refusing it. For the errors specified, the judgments of the county court are reversed, and the causes remanded. Reversed.

(22 Colo. 264)

BROWN v. LAPHAM et ux. (Supreme Court of Colorado. March 2, 1896.) SPECIFIC PERFORMANCE-CONTRACT TO CONVEYWANT OF TITLE IN VENDOR-TRIAL.

1. Where an owner of property, while negotiating for its sale by correspondence, conveyed it to his wife, an offer subsequently made by him, and its acceptance by the correspondent after the conveyance of the wife had been placed on record, do not constitute a contract which can be specifically enforced against the wife, in the absence of proof that the offer was authorized by her.

2. Where defendants in equity were entitled by the evidence to a decree on the merits, the erroneous entry of a nonsuit is without prejudice to the plaintiff.

Appeal from district court, Lake county.

Action by S. P. Brown against Joseph

Lapham and Lucy Ellen Lapham. Judgment of nonsuit, from which plaintiff appeals. Affirmed.

This action was commenced in the district court by appellant, S. P. Brown, for the specific performance of an alleged contract made with Joseph Lapham, one of the appellees. Plaintiff, in his complaint, alleges that Joseph, the defendant, at all times mentioned was, and still is, the owner of a onefourth interest in certain mining claims, which are particularly described; that upon October 2, 1891, the defendant Joseph agreed in writing to sell and transfer to plaintiff the one-fourth interest in all of these properties for a consideration of $2,000, one-half the amount to be paid in cash, and the balance in 12 months; this balance to be secured by either a land contract or deed of trust upon the property conveyed. Plaintiff alleges acceptance on his part of this offer, and his possession and working of the property, and that he has since developed a valuable body of ore therein. He alleges his willingness to comply with all the terms of his contract with Joseph, and that he has performed every act requisite or in his power required by said contract. Notwithstanding his willingness to perform, he alleges that on October 26, 1891, Joseph refused to sign any conveyance whatever of said interest, and refused to accept the cash payment provided by said contract, and refused to accept security for the balance, and that he still refuses to comply with his agreement. It is further alleged that Lucy, the wife of the defendant Joseph, resides with him at Chicago, Ill., and that she had full knowledge of the dealings and contract of her husband with plaintiff, as hereinbefore set forth. It is averred that Joseph, for the purpose of defeating any action which plaintiff might bring to compel a specific performance of the contract or for damages for its breach, on or about October 6, 1891, transferred to his wife, Lucy, his interest in the property, and that she had at the time full knowledge of the fraudulent intent and object of her husband in making the transfer. Separate general demurrers were filed by the defendants, and overruled. Afterwards each defendant filed a separate answer, and in these answers each allegation of the complaint is specifically denied. In the separate answer of Joseph, it is averred that he had no title to the property in controversy at the time of the transactions complained of by the plaintiff, but that the title thereto was vested in his co-defendant. The separate answer of Lucy is not materially different from the answer of her husband. Afterwards a replication was filed, and upon these issues the cause was tried to the court, without a jury. The trial resulted in a judgment of nonsuit. The plaintiff brings the case here by appeal.

J. W. Easton and H. P. Krell, for appellant John A. Ewing and Charles Cavender, for ap pellees.