versity of judicial opinion in reference to the matter. The authorities pro and con are cited in note to the case of Rutherford v. Hill, 22 Or. 218; 29 Am. St. Rep. 596. Conceding that the rule approved by Cook, in section 234, to be the correct one, we do not perceive how an association of persons can exist as a corporation de facto, unless they can legally become a corporation de jure. It is stated in Snider's Sons' Co. v. Troy, 91 Ala. 224, 24 Am. St. Rep. 887, that "a corporation de facto exists when, from irregularity or defect in the organization or constitution, or from some omission to comply with the conditions precedent, a corporation de jure is not created, but there has been a colorable compliance with the requirements of some law under which an association might be lawfully incorporated for the purpose and powers assumed, and a user of the rights claimed to be conferred by the law, when there is an organization with color of law, 77 and the exercise of corporate franchises." The cases cited in note to Rutherford v. Hill, 22 Or. 218, 29 Am. St. Rep. 596, show that when the organization of a corporation never had any appearance of validity, the participants therein will be held liable as partners. The attempted organization of the corporation in this state under the supposed Tennessee charter was wholly illegal and without any semblance of authority. There is no law in this state, nor in Tennessee, so far as we are advised, to authorize such proceeding, and the claim of the existence of the corporation de facto under it is without support. Neither do we see that the appellant is estopped from proceeding against appellees as partners. The fact that the note, indorsed to him before maturity, is executed by persons as president and secretary of the company does not create a presumption that it was a corporation: Clark v. Jones, 87 Ala., 474; Holloway v. Memphis etc. R. R. Co., 23 Tex. 465; 76 Am. Dec. 68. The body of the note indicates an unusual paper for a corporate body to make, and contains no recital that the company in whose name it was executed was a corporation. There is nothing sufficient to overcome the positive testimony of appellant that he did not know the company was a corporation, or claimed to be a corporation, when he received the note, which was before its maturity; nor that he contracted with or dealt with the company. as a corporation, so as to be estopped from gainsaying its existence as a corporation. The facts of the case do not bring it within the principle decided in Booske v. Gulf Ice Co., 24 Fla. 550, and Jackson Sharp Co. v. Holland, 14 Fla. 384, to the ef does it appear fect that one who contracts with 78 an association as a corporation and exercising corporate powers is estopped to deny it. Objections were made to the admission of certain evidence on the part of appellees, but as the trial was before the judge, without a jury, we have not considered the objections. On all the evidence proper in the case our conclusion is, that the judgment was wrong, and must be reversed. It is so ordered. CORPORATIONS-DOMICILE.-A foreign corporation has its domicile in the state from which it derives its existence: Holbrook v. Ford, 153 Ill. 633; 46 Am. St. Rep. 917, and note. A corporation dwells within the state of its creation and cannot migrate to another, though it may there contract and exercise such other corporate franchise as the laws of that state permit: Combes v. Keyes, 89 Wis. 297; 46 Am. St. Rep. 839, and note. A corporation dwells only in the state of its creation: Note to Young v. South Tredegar Iron Co., 4 Am. St. Rep. 760. CORPORATIONS-POWER TO DO BUSINESS IN ANOTHER STATE.-Corporations may be formed in one state and do business In another: Oakdale Mfg. Co. v. Garst, 18 R. I. 484; 49 Am. St. Rep. 784, and note. See, also, the notes to Taylor v. Branham, 48 Am. St. Rep. 254; Dudley v. Collier, 13 Am. St. Rep. 60; Young v. South Tredegar Iron Co., 4 Am. St. Rep. 760, and Deringer v. Deringer, 1 Am. St. Rep. 160, 161. CORPORATIONS-PLACE OF MEETINGS.-The directors of a corporation may hold meetings and transact business in another state unless the contrary is expressly provided for by the charter, by-laws, or general laws of the state under which the corporation is organized: Missouri Lead etc. Co. v. Reinhard, 114 Mo. 218; 35 Am. St. Rep. 746, and note. CORPORATIONS-PROOF OF CORPORATE EXISTENCE.—If a company is plaintiff in a suit and relies on its corporate capacity, it must, as a general rule, assume the burden of proving it: Jones v. Aspen Hardware Co., 21 Col. 263; 52 Am. St. Rep. 220, and note; Bank v. Jefferson, 92 Tenn. 537; 36 Am. St. Rep. 100, and note. CORPORATIONS DE FACTO-WHEN EXIST.-A body is regarded as a de facto corporation only when there has been an erfort to conform to the forms of law in establishing a corporation and some formal defect as to the mode of complying with the law, and the body acts as a corporation: Allen v. Long, 80 Tex. 261; 26 Am. St. Rep. 735, and note; Georgia etc. R. R. Co. v. Mercantile Trust Co., 94 Ga. 306; 47 Am. St. Rep. 153, and note; Finnegan v. Norrenberg, 52 Minn. 239; 38 Am. St. Rep. 552, and note. See, especially, the extended note to People v. Montecito Water Co., 33 Am. St. Rep. 180. CORPORATIONS-WHEN PERSONS ACTING ARE LIABLE AS PARTNERS.-If a number of individuals assume to act in a corporate capacity in a state where they have not been clothed with corporate authority, such persons are to be treated as, and held to the responsibility of, partners in the state where they unlawfully claim corporate capacity: Taylor v. Branham, 35 Fla. 297; 48 Am. St. Rep. 249. A company intended to be a corporation, but which has failed to comply with the statute requiring it to file its certificate of incorporation and to pay a fee therefor, is simply a voluntary association of individuals in the nature of a partnership: Jones v. Aspen Hardware Co., 21 Col. 263; 52 Am. St. Rep. 220. SULLIVAN V. MOMILLAN. [37 FLORIDA, 134.] DAMAGES FOR BREACH OF CONTRACT.-The rule that one damaged by a breach of contract must do all that reasonably lies within his power to protect himself from loss, by seeking another contract of like character, the profits of which are to be applied in mitigation of such damages, has especial reference to contracts for personal services, or for the use of some special instrumentality, either with or without connection with such personal services, but does not apply to a contract to deliver certain logs at a designated place, which might have been performed by the parties with their own teams and personal labor, or by any other means or agency to which they might have resorted, and there is nothing to show that the execution of the contract required all or any great portion of the time or personal attention of the parties, to the exclusion of their engagement in other business and the performance of other contracts at the same time. DAMAGES FOR BREACH OF CONTRACT-The rule that one who is injured by breach of contract must do all that is reasonably within his power to mitigate the damages caused thereby, does not prevail to the extent that one who has been injured by a violation of an agreement to do a specific act, not necessarily involving personal services, must seek and perform other contracts for the benefit of one who, by breaking faith with him, has caused the injury. DAMAGES-INTEREST ON UNLIQUIDATED DEMANDS.— In the allowance of interest the distinction formerly existing between liquidated and unliquidated demands is practically obliterated, and whenever a verdict liquidates a claim and fixes it as of a prior date, interest should be allowed on the claim from that date. DAMAGES-INTEREST ON.-As soon as it is the legal duty of one to pay a claim, he is liable for interest, and as he must have been in default before an action could be maintained against him, and as his default consisted in withholding money due, he is liable for interest on the claim in suit from the date of the writ thereon. INTEREST IS NOT THE MERE INCIDENT of a debt, attaching only to contracts, express or implied, for the payment of money, but is compensation for the use of, or for the detention of, money. DAMAGES-INTEREST ON.-Whenever it is ascertained that at a particular time money ought to have been paid, whether in satisfaction of a debt, or as compensation for a breach of duty, or for failure to keep a contract, interest attaches as an incident. R. L. Campbell, for the appellants. W. A. Blount, for the appellees. 136 LIDDON, J. This is the second appeal in this case. On the first appeal all questions of law presented by the case have been settled, except two matters now controverted between the parties. The nature of the case will fully appear by reference to the reported opinion, and the statements of fact accompanying the same: Sullivan v. McMillan, 26 Fla. 543. The suit was brought by appellees, hereafter called the plaintiffs, against appellants, hereafter called the defendants, for the breach of a contract, whereby appellees agreed to deliver to the testator of appellants all the logs of certain specified dimensions, and free from certain specified defects, growing upon certain described lands of said testator. The breach alleged to have been made by the defendants after the death of said testator was in refusing to receive the remainder of said logs, after a portion of the same had been delivered. From the evidence it appears that it would have taken appellees two years, or thereabouts, from the time the contract was broken by appellants, to have completed the contract on their part by delivery of the other logs embraced within the provisions of the same. After the appellants broke the contract by refusing to receive any more logs under the same, the appellees, with some of the same teams that had been engaged in the work required for the performance of such contract, engaged in other work of delivering logs under other contracts to other parties. The appellants sought to prove what gains and profits were made by the appellees by their own labor and the use of such teams in such other work and contracts during the time that it would have 137 taken them to perform the contract with the appellants' testator, and for the breach of which the suit was brought. The circuit court excluded such evidence. The proof upon the trial did show the value of the use of these teams, and what other teams could have been engaged for, and were taken into consideration in estimating plaintiffs' profits upon which the verdict was based. The appellants claim that such evidence should have been admitted, that they were entitled to prove the amount of such gains and profits, and that such amount should have been deducted by the jury from the amount found to be due the appellees, under the rule for the measure of damages established by this court: Sullivan v. McMillan, 26 Fla. 543. The first of the matters controverted, above alluded to, is whether such gains and profits made by the appellees in subsequent contracts should be deducted from the general amount of damages which, under the measure of damages established as stated, could be recovered by them. The second is, whether any interest should be recovered on the damages caused by the breach of the contract for which the action was brought. It is urged by appellants that the plaintiffs, when they received notice that the defendants would not further comply with or perform the contract, should have done all that reasonably lay within their power to protect themselves from loss, by seeking other contract of like character, and that the plaintiffs having sought and obtained such a contract immediately after the breach sued upon, the defendants were entitled to have a proportionate amount of the profits applied in mitigation of the damages for which they were liable. Otherwise it is contended that the plaintiffs would 138 make two profits for the same time and with the same teams, and that speculation would be substituted for compensation, which is the basis of the law of damages for breaches of contract. These propositions are undoubtedly correct when applied to some class of cases. They have special reference to contracts for personal services, or for the use of some special instrumentality, either with or without connection with such personal services. Thus, in a contract for teaching in a school, which was broken by a refusal to receive the services, it was held to be the plaintiff's duty to make reasonable exertion to obtain other like employment in the same vicinity, and thus mitigate the damages: Gillis v. Space, 63 Barb. 177; Benziger v. Miller, 50 Ala. 206. The same rule was laid down for a similar breach of a contract with an actress: Howard v. Daly, 61 N. Y. 362; 19 Am. Rep. 285. Where the plaintiff, owner of a portable sawmill, agreed to remove it to the farm of the defendant and to saw a stated number of logs, to be furnished by the defendant, during certain seasons of the year 1865, and the defendant, after furnishing a portion, broke his contract by refusing to furnish more of such logs, but, during the time he (plaintiff) would have been engaged in sawing defendant's logs, he was offered other employment of the same kind, so that his mill need not have been idle, it was held that the damages caused by the breach sued upon should have been mitigated: Heavilon v. Kramer, 31 Ind. 241. The facts in the case of Frazier v. Clark, 88 Ky. 260, a sawmill case, very much resemble those of Heavilon v. Kramer, 31 Ind. 241, and the same point was likewise determined. In a case of a breach of a contract to furnish a cargo for a vessel, it was held to be "the duty of the 139 master of a chartered vessel, on the failure or refusal of the charterer to furnish the cargo as agreed on, to avail himself of all ordinary means and proper opportunities to obtain another cargo; and if he neglect to perform this duty, the owners cannot hold the charterer liable for the increased damages resulting from such neglect": Murrell v. Whiting, 32 Ala. 54. A very similar case, and a very similar holding, is Shannon v. Comstock, 21 Wend. 457; 34 Am. Dec. 262. In Hodges v. Fries, 34 Fla. 63, a suit for violation of a contract for rent of a store building, by refusing to put plaintiff in possession of same, it was held to be the duty of the plaintiff to miti AM. ST. REP., VOL LIII.-16 |