§ 1999. Breach of warranty of notes.-Where notes are given in exchange for other property and are taken as cash, and the prices fixed by the parties on the property exchanged are not fixed with special reference to the medium of payment, in an action for a breach of warranty of such notes the measure of damages will be the price fixed in the notes in the transaction. 57 56 55 § 2000. Foreign bill-Rate of exchange-Statutory damages.—Where a foreign bill of exchange is protested for nonpayment the holder may generally recover as damages the amount of such bill with interest, and in addition thereto an allowance for re-exchange. And in some states statutory damages have been allowed either in addition to, or in lieu of, re-exchange, they being generally, however, regarded as in lieu thereof. But statutory damages are not recoverable from the acceptor of a foreign bill, they being only allowed against the makers or indorsers thereof. And it has been determined that no damages are recoverable where a bill is returned which was remitted to pay an antecedent debt.61 59 § 2001. Attorney's fees-Costs-Expenses, etc.—Where a party by fraud obtains a draft from a bank and causes the same to be cashed, there may be a recovery, in an action by the bank against him, of attorney's fees and expenses incurred in good faith in saving itself from loss, a recovery of damages therefor being compensatory and not in the nature of exemplary damages. And where a note provides for the allowance of an attorney's fee but does not specify any amount therefor, 62 65 Vance v. McBurnett, 94 Ga. 251; | (N. Y.) 322; Van Arsdale v. Board21 S. E. 520. 56 Graves v. Dash, 12 Johns. (N. Y.) 17; De Rham v. Grove, 18 Abb. Pr. (N. Y.) 43. 57 Graves v. Dash, 12 Johns. (N. Y.) 17; DeRham v. Grove, 18 Abb. Pr. (N. Y.) 43; Denston v. Henderson, 13 Johns. (N. Y.) 322; In re Gillespie, 16 Q. B. D. 702. 58 Wood v. Watson, 53 Me. 300; Fiske v. Foster, 10 Metc. (Mass.) 507; Denston v. Henderson, 13 Johns. man, 3 How. Prac. (N. Y.) 60; 3 Randolph on Com. Paper, sec. 1720. 59 See 3 Randolph on Com. Paper, sec. 1720. 60 Van Arsdale v. Boardman, 3 How. Prac. (N. Y.) 60. 61 Kenworthy v. Hopkins, 1 Johns. Cas. (N. Y.) 107; Thompson v. Robertson, 4 Johns. (N. Y.) 27. 62 First Nat. Bank v. Williams (Kan. 1901), 63 Pac. 744. evidence is admissible as to the reasonable value of an attorney's fees for collecting the note though there is no specific averment that an attorney has been employed. But where under the stipulation in a note for the allowance of attorney's fees they should only be allowed on such amount as remains due at the time of the suit, it is error to instruct the jury that they should after computing the interest on the notes and the attorney's fees deduct from the entire amount such payments as may have been made. And there can be no recovery by an indorser, in an action against the maker, of costs and expenses incurred by the former through a sale of his property under a judgment against him as indorser. And expenses needlessly incurred by an indorser or accommodation acceptor in resisting payment of a bill are not recoverable. Nor can there be a recovery of costs of protest where there were no indorsers." 65 § 2002. Set-off, Recoupment, etc.-In an action upon a purchase price note damages to which the defendant may be entitled by reason of a breach of warranty as to the property purchased, may be set up by way of recoupment or counterclaim. And where a note is given in pursuance of an agreement to deliver property at a later date, damage resulting from a failure of the payee to perform his agreement is available as a counterclaim in an action on the note. And there may be a recoupment of damages for fraud in obtaining the note or in 69 63 Stames v. Schofield (Ind. App.), | (N. D.) 63 N. W. 892; Laney v. In31 N. E. 480. See Alexander v. Mc- galls, 5 S. D. 183; 58 N. W. 572; Dow, 108 Cal. 25; 41 Pac. 24. Brown v. Viscaya (Tex. Civ. App.) 64 McSpadden v. La Force (Tex. 42 S. W. 309. But examine National Civ. App.), 39 S. W. 163. Bank of Commerce v. Feeney, 9 S. 65 March v. Barnet, 114 Cal. 375; D. 550; 70 N. W. 874, holding that 46 Pac. 152. 66 Simpson v. Griffin, 9 Johns. (N. Y.) 131. See 3 Randolph on Com. Paper, sec. 1727. But see as to accommodation acceptor, Jones V. Brooke, 4 Taunt. 464. such set-off is not available against the assignee, the notes and a chattel mortgage sued on being given by the plaintiff's assignor; Johnson v. Kelley (Vt.), 31 Atl. 849, holding that though a breach of warranty may be 67 Cramer v. Eagle M. Co., 23 Kan. a good defense, the defendant cannot 399. 68 Aultman v. Falkum, 47 Minn. 414; 50 N. W. 471; Loring v. Morrison, 15 App. Div. (N. Y.) 498; 44 N. Y. Supp. 526; Heebner v. Shepard have an affirmative judgment therefor. 69 Hurst v. Combs, 17 K. L. Rep. 84; 30 S. W. 416. 70 the consideration thereof. So in an action on a purchase price note there may be an allowance of such sum as the defendant was fraudulently induced to pay in excess of what he might otherwise have purchased the property for." And where chattels are converted and sold without the stipulated notice, damages therefor may be pleaded in recoupment to an action on the note for the balance due after such sale. So again where a party with whom notes are pledged as collateral negligently permits them to become barred by limitation without making proper effort to collect them, damages therefor may be set off in an action by him upon the note to secure which the other notes were so pledged. And where notes are pledged with a bank to secure a debt due it, it may, in an action by an assignee of the pledgor to recover damages for the loss of such notes by its negligence in collecting them, set off the amount due from the pledgor for which such notes were pledged." 73 75 § 2003. What is not the subject of set-off, recoupment, etc.—In an action upon a note given in one transaction, it has been decided that there cannot be a set-off of unliquidated damages which arise out of a breach of covenants of warranty in a deed given in another transaction. And where a note is given for services, in an action thereon by the payee, the defendant cannot set off damages by the former to the latter's property while in his employ. Nor in an action on a note given for borrowed money can the maker set up as a counterclaim a slander upon his credit." Nor can a defendant plead as a set-off a claim for damages as a result of stagnant water and sewer gas being allowed to accumulate and thus constituting a nuisance. And expenses incurred by one in an ac 78 70 Bell v. Sheridan, 21 D. C. 370. 71 Kilgore v. Bruce, 116 Mass. 136; 44 N. E. 108; 12 Nat. Corp. Rep. 726. 72 Waring v. Gaskill, 95 Ga. 731; 22 S. E. 659. Examine Richardson v. Ashby, 132 Mo. 238; 33 S. W. 806. 78 Ft. Dodge First Nat. Bank v. O'Connell (Iowa), 51 N. W. 162. 74 Northwestern Nat. Bank 76 v. 24 S. E. 39. tion by him, under the erroneous belief that there was a defect in his title, to have the question of title adjudicated when as a matter of law he had a good legal title, cannot be recouped in an action on notes given for the purchase price of the property. So again under a code provision that in an action by the assignee of a chose in action, the defendant may interpose any defense or counterclaim existing in his favor against the "assignor," it has been decided that in an action by the assignee of a bill of exchange the acceptors cannot avail themselves of a set-off against the maker for a breach of contract. And in an action on a bill or note on which payments of usurious interest have been made, the penalty of double the amount of such interest which it is provided by law may be recovered in an action in the nature of debt, cannot be set off. So in Louisiana it is decided that a party cannot plead in compensation against a note a demand which is based on a penal clause, unliquidated and disputed. And the fact that pending a suit on a note a mortgage given to secure the same was foreclosed and the property, by collusion between the crier and the agent of the plaintiff, was bid off for less than its market value, though it was worth more than was due on the note, is held not available as a set-off to the action on the note. 83 79 Ray v. Pease, 97 Ga. 618; 25 S. E. 360. 80 Jack v. Hosmer, 97 Iowa, 17; 65 N. W. 1009. 81 Slack v. First Nat. Bank, 19 Ky. L. Rep. 1684; 44 S. W. 354. 2058 82 Goldman v. Goldman, 47 La. Ann. 1463; 17 So. 881. 83 Giles v. Bank of Southwestern Georgia, 102 Ga. 702; 29 S. E. 600. TITLE IX. FIDUCIARY AND OTHER SPECIAL RELATIONS. CHAPTER LXX. FIDUCIARY AND OTHER SPECIAL RELATIONS. HUSBAND AND WIFE-PARENT AND CHILD-GUARD- MASTER AND SERVANT-EMPLOYER AND EMPLOYEE AGENTS, FACTORS, BROKERS, COMMISSION MER- OFFICERS OF CORPORATIONS. ATTORNEYS, SOLICITORS AND COUNSELORS. PUBLIC OFFICERS. TRUSTEES, EXECUTORS AND ADMINISTRATORS, AND RECEIVERS. VIII. SURETIES, GUARANTORS AND INDEMNITY. SUBD. I. HUSBAND AND WIFE-PARENT AND CHILD SUBD. II. MASTER AND SERVANT-EMPLOYER AND EMPLOYEE-CONTRACTS FOR SERVICES-TORTS. § 2012. Breach of contract of em ployment or for services General decisions. 2013. Breach by employer-Gen erally. 2014. Breach of agreement to hire |