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ally from the breach of contract under those special circumstances, then such special damage may be supposed to have been contemplated by the parties to the contract, and such damage is recoverable. Damage which cannot be considered as fairly and naturally arising from breach of contract under any given circumstances, cannot be recovered whether such circumstances were or were not known to the person who is sought to be held responsible.

For instance, in a celebrated case, a miller delivered to a carrier the broken shaft of the engine which supplied his mill with power, for carriage, to be delivered to an engineer in a distant city, who was to make a new one. During this time the mill was shut down for want of the shaft. The carrier was negligent in delivering the broken shaft, thus causing damage to the proprietor of the mill. In a suit for damages against the carrier, it was decided that the loss caused by the nondelivery of the shaft was not reasonably to be contemplated by the carrier, and that he was not liable. Had the carrier known of the loss which would result from his negligence, he would have been responsible.

Damages may be recovered for past and future damage, providing such damage can be ascertained with reasonable certainty.

Sometimes parties by their contract state what the damages shall be in case of breach. When such damages are fixed at a reasonable amount, that is, fairly approximate the actual damage, the agreement of the parties will be allowed to prevail. Such damages are then known as liquidated damages. When, however, a sum is provided to be paid which is out of proportion to the actual damage, the courts call the amount provided for a penalty, and will not enforce it. In such cases the courts say that the amount was provided for for the purpose of enforcing performance and not compensation. It may be stated generally that when the payment of the amount provided for will work an injustice, the courts will consider it a penalty, and will allow only the actual damages.

When, in actions for breach of contract, the value of an article is in controversy, the courts will take the usual market value, that is, the value in the open market at the time and place of delivery agreed upon. What such value

is, is of course a matter of proof. In the case of breach of contract for the sale of goods, the general rule of damages is the difference between the market value at the time and place specified for delivery and the contract price.

In case of a breach of warranty the usual rule of damages is the difference between the value of the goods at the time and place specified for delivery and the value they would have had at such time and place, had they complied with the warranty. It should be noted that here the damage is not the difference between the contract price and the actual value, because such a rule would allow a person to break his contract and profit by the breach. In case goods have been paid for and are not delivered, the damage is the value of the same at the time and place set for delivery. (Not the contract price.)

Damages for the withholding of money usually consist of interest at the legal rate.

A telegraph company is liable for damages caused by the non-delivery of messages for such damage as is the natural and probable consequence of its default, or that of its agents. The fact that loss will occur from a non-delivery must be apparent from the face of the message, or the company's agent must have knowledge that loss will result from non-delivery. A message relating to an ordinary business transaction, however, is sufficient notice to the company that loss may be occasioned by its non-delivery. Telegraph companies are not liable for injury to feelings caused by non-delivery of a message. Thus, a man in Dakota was sent a telegram from Wisconsin announcing the death of his mother. On account of the nondelivery of the message he did not attend the funeral. In a a suit for damages against the company for injury to his feelings the court decided that he could not recover. A telegraph company is not responsible for the non-delivery of cipher messages unless it is informed of the contents thereof, when the rules already stated apply. See, also, Telephone and Telegraph Companies, in the chapter on Bailments.

In case of the breach of contract for the sale of real estate, the measure of damages is the difference between the market value of the land and the price at which it was agreed to be sold. If part of the purchase

price has been paid, that may be recovered also, with interest. Courts will usually compel the specific performance of contracts to sell real estate, that is, compel the party refusing, to convey.

It may happen, of course, when a contract is broken that the party who has a right to sue for a breach will not do so because he has suffered no loss, other than nominal. For instance, a man who had agreed to pay the full market value for an article which is not delivered to him, could not recover any damage for its non-delivery, since there is no difference between the market value and the contract price.

CHAPTER VI.

ILLEGAL CONTRACTS.

Generally. The term illegal contract involves a contradiction, since an illegal agreement can never amount to a contract. The term, however, is frequently used to designate all illegal agreements, and attempted contracts which are illegal, and is therefore retained. Any agreement which violates positive law, or the tendency of which is to corrupt morals or which in any way is injurious to the public in its tendency is illegal and void. Such contracts are usually said to be against “public policy". The question of whether a contract is illegal usually arises when an attempt is made to enforce it. What is the public policy is hard to define. It is largely determined by the nature and form of our government, and the constitution and laws of a state. A particular contract may not have any evil effect, and still it may be void on account of its evil tendency. The question in each case is whether the contract is tainted with anything that has been forbidden by positive law, or anything which in its tendency is injurious to the public welfare. The fact that a contract appears to be unobjectionable on its face, will not save it; illegality in any form may be made to appear orally. The fact that the courts have never decided that a certain contract is illegal will not make it legal; the courts will decide in each case whether the contract under consideration has an evil tendency. The question is not so much what effect it has on the parties, but on the public. The different kinds of illegal contracts cannot be specified, as illegality may assume an unlimited variety of forms. The following are the most usual of such contracts, and will serve to sufficiently illustrate the general principle.

Contracts against positive law. -Generally, when an act is prohibited by statute, any contract which involves the

doing of such an act is void. Such acts are usually prohibited under penalty, but if no penalty is stated, contracts which contemplate the doing of such acts are nevertheless void. Thus, it has been decided in this state that where a city ordinance prohibits any person from exercising the calling of a night-scavenger in the city without first obtaining a license, a person who performs services as a scavenger without having a license cannot recover for them. Intoxicating liquors, sold without a license, cannot be recovered for. A foreign insurance company, not authorized to do business under the laws of Wisconsin, cannot sue in this state on a note taken for a policy of insurance issued by such company on property in this state. The court says that a statute which imposes a penalty for doing an act amounts to a prohibition to do the act otherwise, and a contract for its performance is void. The acts prohibited by law are almost innumerable, but this general principle applies to them all.

The statutes of Wisconsin now provide certain conditions on which foreign corporations of all kinds can do business in this state, and also declare that contracts made by such foreign corporations before the statutes have been complied with shall be void on their behalf, but shall be enforceable against them. The Supreme Court under this statute has decided that if a foreign corporation does not comply with the law, and makes a contract in this state, it cannot enforce such contract, no matter what benefit the other party has received under it. "The general rule of law is that all contracts which are repugnant to justice, or founded upon an immoral consideration, or which are against the general policy of the common law, or contrary to the provisions of any statute are void; and that if a party claiming a right to recover a debt is obliged to trace his title or right through any such illegal contract, he cannot recover, because he cannot be allowed to prove the illegal contract as a foundation for his right of recovery

And a contract in violation of a statute is void although the statute fails to provide expressly that contracts made in violation of its provisions shall not be valid. It is sufficient that it is prohibited, and its invalidity follows as a legal consequence."

Restraint of trade.-Generally, contracts in restraint of trade are void. The reason for this is that it would be

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