LEADING ILLUSTRATIVE CASES LAW OF DAMAGES CHAPTER I. THE SUBJECT OUTLINED AND DEFINED. Damnum Absque Injuria. PAUL K. RANDALL v. HORACE L. HAZELTON AND ANOTHER. 12 Allen 412 (Mass.). 1866. In this case the plaintiff was the owner of certain premises on which he had executed a mortgage. Before the mortgage became due the mortgagees assured him that they did not care for the money and would give him ample notice when they desired payment. Plaintiff alleges, however, that the defendants in the case conspired together for the purpose of obtaining control of the mortgage and depriving the plaintiff of his property, and by maliciously representing to the mortgagees that they desired the mortgage assigned to one Merrill, they induced the mortgagees to assign the mortgage; that the defendants in this manner secured the mortgage and sold the premises, in accordance with the terms of the mortgage, and put the plaintiff to great expense in redeeming the land and again legally obtaining possession of it. He brings this action in tort against defendants to recover the damages thus sustained. To his petition the defendants filed a demurrer. COLT, J. The question raised by the demurrer is whether, upon the facts charged, the action can be maintained. It is an ancient and well-established legal principle that fraud without damage or damage without fraud gives no cause of action; yet when the two do concur, there an action lieth. 3 Bulst. 95. Actions like the one under consideration are all based upon this proposition; but it cannot safely be applied as a test by which to determine whether the facts in any case constitute an actionable wrong, without keeping in mind the meaning which the law, by a series of judicial decisions, has attached to the terms used. It is well settled that every falsehood is not necessarily a legal fraud or false representation. It is said that a false representation is an affirmation of that which the party knows to be false or does not know to be true, to another's loss or his own gain. Lobdell v. Baker, 1 Met. 201. So in reference to the term damage, the law is that it must be a loss brought upon the party complaining by a violation of some legal right, or it will be considered as merely damnum absque injuria. There is a large class of moral rights and duties, sometimes called imperfect rights and obligations, which the law does not attempt to enforce or protect. The refusal or discontinuance of a favor gives no cause of action. If one trusts to a mere gratuitous promise of favor from another and is disappointed, the law will not protect him from the consequence of his undue confidence, nor encourage carelessness or want of prudence in affairs. Damages can never be recovered where they result from a lawful act of the defendant. The exercise of a right conferred by a valid contract, in the manner provided by its terms, cannot be the ground of an action. The law will not inquire into the motives of the party exercising such right, however unfriendly and selfish. The trouble and expense and risk of loss ought to and must be presumed to have been contemplated when the contract was entered into. The foreclosure of a mortgage under a power of sale, for example, may be made at such time and under such circumstances as to cause great distress and sacrifice to the mortgagor; but, whatever the motive of the mortgagee, no remedy is afforded for his oppressive conduct, if the requirements of the contract have been fulfilled. But a more important consideration in this connection is, that the damage which this doctrine contemplates must not only be caused by the fraud and misconduct of the defendant, but it must be the direct and immediate consequence of the wrongful act. The law looks to the proximate and not the remote cause of the injury. It were infinite, says Lord Bacon, to consider the cause of causes and their impulsion of each other; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree. This is the only practical rule which, in view of the complication which surrounds this doctrine of causation, can be adopted in the administration of justice by human tribunals. Where the fraud and damage sustain this intimate relation of proximate cause and effect, and not otherwise, they are said to concur, in the sense of the proposition above stated. Applying the doctrine thus explained to the plaintiff's case as stated in the first count, we are of opinion that he sets forth no legal cause of action. The declaration shows no consideration for the alleged promise of the mortgagees to inform the plaintiff, in case the amount of the debt should be wanted by them. It was an agreement not legally binding upon them. There was nothing in it to prevent them in law from proceeding to do all the acts in relation to advertising and selling the property which were done by the defendants; nor did it prevent them from assigning the mortgage. It cannot be said to be an invasion of any legal right for the defendants to deprive the plaintiff, even by falsehood, of the benefit of this gratuitous undertaking. Hutchins v. Hutchins, 7 Hill 104. It is not alleged that the defendants knew of the alleged promise of the mortgagees. The false representation of a material existing fact for the purpose of procuring the transfer might have enabled the mortgagees to avoid it, or maintain an action for any loss sustained by them, but until avoided the title passed to the defendants. If the declaration had contained averments of a good legal consideration for the promise to give the notice to the plaintiff, then it would seem to follow that the plaintiff's remedy would be ample against the mortgagees for all loss suffered by him by reason of the breach of their agreement, leaving them to whatever remedy they might have against the defendants for the fraud practised by them. And this fact is said by Morton, J., in Lamb v. Stone, 11 Pick. 532, which was a case like this, to be good ground for refusing relief; for if the plaintiff "may have redress by any of the forms of actions now known and practised, it would be unwise and unsafe to sanction an untried one, the practical operation of which cannot be fully foreseen." But the more important fact is, that this specific act of obtaining the assignment in the manner stated in itself produced no direct and immediate damage to the plaintiff. The damage resulted solely from the foreclosure and forced sale of the premises, and would have been no more and no less if the mortgage had not been assigned, and the mortgagees had pursued precisely the course charged upon the defendants in regard to the sale. It was undoubtedly a necessary step in order that the defendants might practise the alleged oppression; but it was not the immediate cause of the injury. The substantial, efficient and immediate cause of the loss to the plaintiff was the foreclosure and sale. And we are not permitted to go behind and inquire into the antecedent causes, near or remote. Contribution Between Tort-Feasors. FARWELL & CO. v. GERHARD BECKER AND ELBERT SHIRK. 129 Ill. 261, 16 Am. St. Rep. 267. Bill in equity by John V. Farwell & Co. against Gerhard Becker and Elbert W. Shirk for contribution. In December, 1881, the plaintiffs and the defendants brought separate actions against the firm of Olquist Brothers, in Jones County and in Linn County, Iowa, and attached under their separate writs a stock of goods which Olquist Brothers had sold and delivered to N. A. Sunberg, and also another stock of goods sold by Olquist Brothers to N. A. Sunberg and one F. B. Olquist. The several suits by attachment were prosecuted to judgment, and a receiver was appointed who took charge of the goods and sold them, and realized from the goods attached in Jones County $4,080.14. N. A. Sunberg and Sunberg and Olquist, claiming under the sales herein before mentioned, commenced separate actions against the sheriffs of Linn and Jones counties, and the complainants and defendants in this action were substituted as defendants in place of the sheriffs of those counties. Those actions resulted in judgments in favor of the plaintiffs therein, and against the plaintiffs and defendants in the present action; and the complainants in this action, being pressed for the immediate payment of those judgments, and threatened with a levy upon their property, gave checks for the full amounts thereof, and took an assignment thereof in favor of one of their attorneys for the |