sold at the limited prices, and after due notice and request, the consignor had refused or neglected to repay the advances. The defendants were therefore liable to the plaintiff for the damages consequent upon the sale without authority.

The question then arises, By what rule are the damages to be estimated? The plaintiff claimed to recover the difference between the amount of the invoices with charges and interest, and the net proceeds of the goods. The defendants insist that the plaintiff is entitled to recover, if at all, only according to the actual value of the goods after deducting the proceeds and charges. Prima facie the invoice prices with the charges and interest ought to be regarded as the actual value, and if no other evidence of value had been given or offered, the plaintiff should have recovered, according to his claim: Stevens v. Low, 2 Hill (N. Y.), 132.

But the defendants proved that the goods were fairly sold at auction, on due notice with the usual publicity, and that they produced full auction prices. They offered to prove that the goods could not be sold at private sale at the invoice prices after diligent efforts for that purpose; that the goods were of inferior quality, not worth during the season more than they actually sold for at auction; and that they were likely to become unfashionable and unsalable if kept over to another season. evidence was excluded by the court; and the judge charged the jury that the plaintiff was entitled to recover the difference between the invoice prices with charges and interest and the net proceeds. Exceptions were taken to these decisions.

This

We are of opinion that the court erred in excluding the evidence of actual value offered by the defendants, and in the rule of damages stated to the jury. In all cases, excepting those of willful or malicious wrong, the recovery should be such as to give the plaintiff a just compensation for the wrong done or the right withheld, and nothing more. This rule applies as well to actions brought by a principal against his agent as to other cases. Where, in the action against the agent, the breach of duty is clear, it will, in the absence of all evidence of other damage, be presumed that the party has sustained a nominal damage. But to recover more, there must be proof of real loss, or actual damage: Story on Agency, sec. 217 c. It is a good defense that the misconduct of the agent has been followed by no loss or damage to the principal, for then the rule applies that, although it is a wrong, yet it is without any damage, and to maintain an action both must concur, for damnum absque injuria, and injuria

absque damno, are in general equally objections to any recovery: Id., sec. 236. Assuming as true, what the defendants offered to prove, that the goods in question sold for their full value, the plaintiff has sustained no loss, and should have recovered nominal damages only. If this verdict should be upheld, he will recover damages without having sustained injury, and be placed in better condition than if his instructions had been obeyed.

I am not aware that any considerations of public policy require the application to the present case, of a rule which produces such a result. It seems to have been thought in the court below that if the consignor were not allowed to recover according to this rule, it would render his instructions nugatory, and practically annul the power of the owner of property to fix a price below which it should not be sold. But if the proof offered by the defendants had been admitted, the plaintiff would have been allowed to show that he could have sold the goods to better advantage by reshipping them to France or elsewhere, and in that case would have been entitled to recover accordingly. Or if the market price of such goods had risen after the sale made by the defendants, they would have been liable to pay according to such increased value. A factor thus selling goods in violation of his instructions takes upon himself the hazard of loss from the fluctuations in the market without the possibility of gain; and this is practically a sufficient security against the disobedience of his principal's order. There is no need of subjecting him to a higher penalty.

There is a direct adjudication on this point in 12 N. H. 239, 242, in the case of Frothingham v. Everton. Everton delivered a quantity of wool in the month of March, to be sold at not less than twenty-four cents the pound. Frothingham made advances. The price of wool fell soon after the consignment, and continued to fall until October, when Frothingham, without calling on his principal to refund the advances, and without notice to him, sold the wool at fourteen cents the pound, which was all it was then or afterwards worth. It was held, in an able opinion delivered by Chief Justice Parker, that the measure of damages was the amount of injury sustained by the sale contrary to the orders of the principal, and that no actual loss appearing to have been sustained by the wrongful act of the factor, the principal was entitled only to nominal damages. The present case should be governed by the same principle.

The judgment of the superior court should therefore be reversed, and a new trial awarded.

BRONSON, J. (concurring). The consignees had no right to sell the goods below the price mentioned in their instructions from the consignor, without first calling on him for the reimbursement of their advances. As no such demand was made, the defendants are liable to an action, and must pay nominal damages at the least. In settling the amount of damages in such cases, if there is no proof to the contrary, the price mentioned in the instructions should, I think, be deemed the true value of the goods. But the consignor would be at liberty to enhance the damages by proving that the goods were worth more than the minimum price which he had put upon them; and I see no reason why the consignees should not be allowed to reduce the damages, by showing that the goods were of less value than the price mentioned in the instructions. If the goods were sold at their full value, the consignor has sustained no damage, and should recover only a nominal sum. The factor should be required to give strong proof for the purpose of showing the market value to be less than the instruction price; but he may, I think, give the proof if he can. Clearly the consignor has sustained no damage beyond the difference between the actual value and the price obtained on the sale; and I see no ground for making this case an exception to the general rule, which gives the injured party compensation for the pecuniary loss which he has sustained, and nothing more. In Frothingham v. Everton, 12 N. H. 239, the court held that the measure of damages in cases of this kind is the amount of injury which the consignor has sustained by selling contrary to orders; and if there has been no actual loss, he will only be entitled to nominal damages. I think this a sound rule; and am not aware of any case which holds a different doctrine.

It is said, that this rule of damages will enable factors to violate the instructions of their principals with impunity. But that is a mistake. If they sell below the instruction price, though at the then market value, they will take the peril of a rise in the value of the goods at any time before an action is brought for the wrong; and, perhaps, down to the trial. The owner has a right to keep his goods for a better price; and if the market value advances after the wrongful sale, the increased price will form the standard for ascertaining his loss, which the factor, who has departed from instructions, must make good.

If it be a matter of any moment in this action, there is no

room for doubt that the defendants, though they mistook the law, intended to act in entire good faith towards their principals. And if the evidence which they offered had been received, it would have appeared that the plaintiff, instead of suffering loss, was benefited by the sale.

When the consignment is of articles which have no market value, such, for example, as antique paintings, statues, or vases, the rule which has been mentioned will not apply. In this case, the goods had a market value, which could easily be ascertained.

I am of opinion that the court erred in rejecting evidence, and in the rule which it gave concerning the measure of damages.

Judgment reversed.

FACTOR SELLING BELOW PRICE NAMED IN INSTRUCTIONS liable, when and when not: See George v. McNeill, 26 Am. Dec. 498. See, as to the liability of a factor selling on credit in violation of instructions, Bliss v. Arnold, 30 Id. 467. In Scott v. Rogers, 4 Abb. App. Dec. 163, in an opinion of Balcom, J., a synopsis of which is given in the note, the principal case is cited as an authority for the position that an offer of sale made by a factor contrary to instructions is unauthorized, and not binding on the principal.

MEASURE OF DAMAGES FOR SALE BY FACTOR AT LOWER PRICE than that limited in his instructions is the actual damage or loss to the principal, and not the difference between the price at which the goods were in fact sold and the price at which the factor was instructed to sell: Hinde v. Smith, 6 Lans 466, citing the principal case. See also George v. McNeill, 26 Am. Dec. 498. In Romaine v. Van Allen, 26 N. Y. 315, it is held, adopting the rule suggested by Bronson, J., in the principal case, that where a factor sells at a price less than that at which he is instructed to sell, he will be liable for any increase in the market price down to the time of trial, or at least to the commencement of action, and the same rule is applied to a case of wrongful conversion of shares of corporate stock. In an action against a telegraph company for damages resulting from an incorrect transmission of a dispatch sent to the plaintiff's agent at Oswego, New York, by his agent at Chicago, whereby the former was induced to purchase and ship a large quantity of salt, which had not been in fact ordered, and the salt after arrival was sold at a loss, the difference between the price at which it was sold and the market price at the point of shipment, together with the expense of transportation, allowing nothing for storage, was held to be a measure of damages sufficiently favorable to the defendants: Leonard v. New York etc. Tel. Co., 41 N. Y. 573, citing the principal case. In Mills v. Gould, 10 Jones & S. 123, the principal case was cited to the point that nominal damages at least must be allowed for a breach of a valid contract. See, as to the measure of damages for a wrongful sale of stock by a pledgee thereof, Wilson v. Little, ante, 297, and note.

The principal case is cited in Devendorf v. West, 42 Barb. 229, to the general proposition that when a valid contract and a breach are proved, the plaintiff is entitled at least to nominal damages.

HARRIS v. CLARK.

[3 NEW YORK (3 COMSTOCK), 93.]

GIFT IN VIEW OF DEATH, equally with a gift between the living, requires for validity that either the thing to be given, or some sufficient means of reducing it to possession, should be delivered to the donee.

DRAFT DOES NOT OPERATE AS AN ASSIGNMENT UNTIL ACCEPTED, although drawn for a specific sum and against funds of the drawer in the hands of the drawee. The delivery of such draft unaccepted is, therefore, inoperative as a gift in view of death; and the draft can not be enforced against the personal representatives of the drawer.

GIFTS CAUSA MORTIS ARE NOT FAVORED, but are against the policy of the law.

ERROR to the supreme court, to review a judgment for plaintiff, against executors, on a draft drawn by their testator; reported, 2 Barb. 94. The case appears from the opinion.

B. F. Rexford, attorney, and John C. Spencer, of counsel, for the plaintiff in error, the donee.

Charles O'Conor, for the defendants in error, the executors. By Court, RUGGLES, J. The plaintiff's claim is founded on a bill or draft in these words:

"MESSRS. R. CLARK & Co.

"Please to pay Nancy Harris or order, thirty thousand dollars, and place the same to my account.

"New York, 9th July, 1844.

SIDNEY SMITH.

(Indorsed.) Pay to the order of Levi Harris.

"NANCY HARRIS.”

This draft was made at New York, during Sidney Smith's last illness, and was intended to take effect only in case of his death before he should be able to reach the residence of his sister, Mrs. Harris, in Chenango county. It was not intended nor can it be supported as a gift inter vivos; and the question is, whether it is valid as a donatio mortis causa to entitle her to recover the money mentioned in it against the representatives of the drawer.

If the draft had been accepted by Clark & Co., the drawees, before or after the death of Sidney Smith, the drawer, it would have operated from the time of Smith's death, as an assignment to Mrs. Harris, of so much money in the hands of Clark & Co., and it would have afforded to the plaintiff a remedy against that firm. In that case, it would have been like a gift of a promissory note, or other chose in action against a third person; and the delivery of possession would have been sufficient to make the gift valid, because, although there was no actual de